Tribunal Criminal Tribunal for the Former Yugoslavia

Page 166

1 Wednesday, 25 February 2004

2 [Judgement on Appeal]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.32 p.m.

6 JUDGE MERON: Please be seated.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Case Number IT-98-32-A, The Prosecutor versus

9 Mitar Vasiljevic.

10 JUDGE MERON: Thank you.

11 Mr. Vasiljevic, can you hear me? Can you hear me, Mr. Vasiljevic?

12 THE ACCUSED: [Interpretation] Yes, Your Honour.

13 JUDGE MERON: Thank you, you may now sit down. I will ask for the

14 appearances for the parties. Could we have appearances for the

15 Prosecution, first.

16 MS. BRADY: Good afternoon, Your Honours. My name is Helen Brady,

17 and I appear on behalf of the Prosecution. With me today is Ms. Michelle

18 Jarvis and Mr. Steffen Wirth, and our case manager Ms. Lourdes Galicia.

19 JUDGE MERON: Thank you very much. Appearances for the Defence,

20 please.

21 MR. DOMAZET: Yes, Your Honour. Vladimir Domazet as lead counsel

22 for the appellant. Mr. Knoops is absent today.

23 JUDGE MERON: Thank you very much.

24 The Appeals Chamber today will deliver its judgement on appeal in

25 the case of the Prosecutor against Mr. Mitar Vasiljevic. Mr. Vasiljevic

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1 has appealed against the judgement issued by Trial Chamber II of this

2 Tribunal on the 29th of November 2002. This case relates to events which

3 took place in June 1992 in the region of Visegrad. After the Yugoslav

4 National Army withdrew from the region, various Serb paramilitary units

5 took control. One such group with a reputation for being particularly

6 violent was led by a certain Milan Lukic. The Trial Chamber found that

7 sometime in May 1992 Mitar Vasiljevic was present when Milan Lukic and his

8 men searched the village of Musici. It was found that on the 7th of June

9 1992, he was present at the Vilina Vlas Hotel, Lukic's headquarters, when

10 Lukic and two unidentified men brought in seven forcibly detained Muslim

11 men. When the appellant left the hotel with Lukic and two unidentified

12 men, he was armed with an automatic weapon. The seven Muslim men were

13 forcibly transported to the eastern bank of the Drina River where they

14 were shot. Five of the men died as a result of the shooting, and two

15 survived by falling into the river and pretending to be dead.

16 The Trial Chamber convicted Mr. Vasiljevic on two of the ten

17 counts charged by the Prosecution. First, on count 3 of the indictment,

18 for persecution as a crime against humanity based on the underlying murder

19 of five Muslim men, and inhumane acts inflicted on the other two Muslim

20 men. This conviction was entered under Article 5 of the Tribunal's

21 Statute. Second, the Trial Chamber convicted Mr. Vasiljevic on count 5,

22 for murder, as a violation of the laws or customs of war, for the murder

23 of five Muslim men during the Drina River incident. This conviction is

24 pursuant to Article 3 of the Statute.

25 The Trial Chamber acquitted Mr. Mitar Vasiljevic of the remaining

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1 charges. Mr. Vasiljevic was sentenced to a single 20-year term

2 imprisonment. On 30 December 2002, Mr. Vasiljevic appealed both the

3 conviction and the sentence, raising eight grounds of appeal. The

4 Prosecution did not appeal.

5 Following the practice of the Tribunal, I will not read out the

6 text of the judgement except for the disposition. Instead, I will

7 summarise the issues on this appeal and the reasoning and rulings of the

8 Appeals Chamber. I emphasise that this is only a summary, and that it

9 forms no part of the judgement. The only authoritative account of the

10 Appeals Chamber rulings and of its reasons is the written judgement,

11 copies of which will be made available to the parties and to the public at

12 the conclusion of this hearing.

13 The appeals procedure provided for under Article 25 of the Statute

14 is corrective and does not give rise to a de novo review of the case on

15 appeal. The review is limited to legal errors invalidating the decision

16 and factual errors which could result in a miscarriage of justice. The

17 Appeals Chamber may affirm, reverse, or revise the decisions taken by the

18 Trial Chamber. The Appeals Chamber may correct errors of law which

19 invalidates the Trial Chamber's judgement for reasons advanced by the

20 appellant or for other reasons.

21 As regards errors of fact, the Appeals Chamber will reject the

22 Trial Chamber's finding only when the evidence on which the Trial Chamber

23 relied could not have been accepted by any reasonable Tribunal and the

24 resulting error led to a miscarriage of justice; that is to say, to a

25 grossly unfair outcome in judicial proceedings. As well, a defendant is

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1 convicted despite the lack of evidence on an essential element of the

2 crime. Where an appellant challenges only the Trial Chamber's factual

3 findings and suggests an alternative assessment of the evidence without

4 demonstrating why the Trial Chamber's assessment was unreasonable, the

5 appellant will have failed to discharge the burden incumbent upon him. As

6 to the appeal from the sentencing decision, the sentence will be revised

7 only if the Trial Chamber committed a discernible error in the exercise of

8 its discretion. An appellant is also required to provide the Appeals

9 Chamber with exact references to the parts of the record, transcript,

10 judgement, and exhibits supporting his arguments. The Appeals Chamber

11 will not consider a party's submissions in detail if they are obscure,

12 contradictory, or vague. In such circumstances, the Appeals Chamber may

13 dismiss the arguments without a reasoned discussion. The appellant was

14 reminded of these requirements during the appeal hearing.

15 Before considering the arguments of the appellant on the merits,

16 the Appeals Chamber determines whether the appellant's submissions met

17 these requirements. There are three categories of formal or procedural

18 deficiencies in the appellant's submissions relating to alleged errors of

19 fact. The first category concerns arguments in the relation to which

20 appellant did not identify a particular error by the Trial Chamber and

21 merely offered an alternative reading of the evidence. The second

22 category concerns arguments where the appellant failed to submit that the

23 Trial Chamber's findings could not have been made by any reasonable trier

24 of fact. The third category concerns arguments in relation to which the

25 appellant failed to state how the alleged error led to a miscarriage of

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1 justice. The Appeals Chamber dismisses these arguments without

2 considering their merits. I will not list all the arguments falling

3 within the above-mentioned categories, as they can easily be found in the

4 written version of the judgement distributed today.

5 Furthermore, the Appeals Chamber dismisses without considering on

6 the merits several of the appellant's arguments with respect to sentencing

7 in which he failed to identify any alleged error or raised these arguments

8 for the first time only in the reply brief.

9 I will now turn to the appellant's arguments which have been found

10 to meet the formal requirements. The Appeals Chamber restructured these

11 arguments into four groups. The first group consists of the alleged

12 factual errors relating to the general requirements of Articles 3 and 5 of

13 the Statute; the second of alleged factual errors relating the Drina River

14 incident and the appellant's relationship with the Lukic paramilitary

15 group; the third group relates to the appellant's participation in a joint

16 criminal enterprise and his related criminal responsibility; and the

17 fourth, to sentencing. These issues form parts 3 through 6 of the appeals

18 judgement.

19 In part 3 of the judgement, the Appeals Chamber considers the

20 merits of two of the appellant's arguments related to the chapeau

21 requirements of Articles 3 and 5 of the Statute which are set out in the

22 appellant's third ground of appeal. The Chamber concludes that the

23 appellant has not demonstrated that no reasonable trier of fact could find

24 that his acts were closely related to the armed conflict. The Appeals

25 Chamber also dismisses the appellant's allegation that the Trial Chamber

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1 erred in finding that his acts formed part of a widespread or systematic

2 attack of which he had knowledge and concludes instead that a reasonable

3 Trial Chamber could have found that the appellant knew about the ongoing

4 attack against the Muslim civilian population in Visegrad.

5 In part 4 of the judgement, the Appeals Chamber considers seven

6 alleged errors of fact relating to the Drina River incident and the

7 appellant's relationship with the Lukic paramilitary group which are

8 mainly set out in the appellant's first and second grounds of appeal. The

9 Appeals Chamber dismisses four of these alleged errors of fact. The

10 Appeals Chamber first dismisses the appellant's allegation that the Trial

11 Chamber erred in finding that he was armed on the 7th June 1992. The

12 arguments of the appellant do not establish that no reasonable Trial

13 Chamber could have found, based on the testimony of two witnesses, that

14 the appellant was armed at the Vilina Vlas Hotel and that at the Drina

15 River he pointed his gun at the seven Muslim men and prevented them from

16 fleeing.

17 The Appeals Chamber also dismisses the argument that the Trial

18 Chamber erred in rejecting the appellant's assertion that he had attempted

19 to dissuade Milan Lukic from carrying out the killings. The appellant has

20 failed to demonstrate how the fact that none of the other persons present

21 during the incident could have influenced Milan Lukic would be relevant to

22 the assessment as to whether or not he attempted to dissuade Lukic. The

23 appellant has failed to show that no reasonable tribunal could have

24 reached the Trial Chamber's conclusion.

25 Third, the Appeals Chamber dismisses the appellant's allegation

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1 that the Trial Chamber erred in rejecting his argument that he remained at

2 a distance from the scene of the crime. Even if the testimony of a

3 witness confirms the appellant's version that he was several metres away

4 from Milan Lukic and the two other armed men during the shooting, the

5 appellant has not established that the Trial Chamber erred in finding that

6 he stood behind the seven Muslim men with his weapon, together with the

7 three other men shortly before the shooting.

8 The Appeals Chamber cannot find any error committed by the Trial

9 Chamber in its treatment of the testimony of the witness or its assessment

10 of the evidence presented at trial. In any event, the appellant has not

11 established that the alleged error would lead to a miscarriage of justice.

12 Fourth, the Appeals Chamber dismisses the appellant's allegation

13 that the Trial Chamber's findings, based on the testimony of two

14 witnesses, related to his role during the search in Musici are erroneous.

15 The contradictions alleged by the appellant are nonexistent, minor, or

16 immaterial, and the appellant has failed to show that no reasonable trier

17 of fact could have found on the basis of this evidence that the appellant

18 stood guard at the entrance to the house of the witness's father, thereby

19 participating in the search of the house.

20 I turn now to the three remaining alleged factual errors made by

21 the Trial Chamber on which the Appeals Chamber agrees with the appellant.

22 The first error relates to the Trial Chamber's finding that the appellant

23 was an informant to the Milan Lukic group. The Appeals Chamber notes that

24 on the evidence cited by the Trial Chamber to suggest this conclusion, the

25 testimony of Witness VG-14, that while he was in the hands of the

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1 appellant and Milan Lukic in the red Volkswagen Passat, the appellant

2 pointed to a nearby house and told Milan Lukic that it belonged to a

3 Muslim family. The Trial Chamber expressly rejected as not sufficiently

4 reliable or credible the evidence of two other witnesses relied upon by

5 the Prosecution to show that the appellant acted as an informant to the

6 group.

7 Moreover, the Trial Chamber's findings with respect to the Musici

8 search do not support the inference that the appellant had pointed out the

9 house in question to Milan Lukic and his men. No reasonable Tribunal,

10 therefore, could have found based solely on the testimony of Witness VG-14

11 that the appellant was an informant to the Lukic group and that he knew

12 that the information would be used to persecute Muslims. The appellant

13 argues that the Trial Chamber's erroneous finding that he was an informant

14 to the Lukic group formed the basis for the Trial Chamber's conclusion

15 that he possessed a discriminatory intent. The Trial Chamber found,

16 however, that the appellant was associated with the Milan Lukic group and

17 that the acts of the appellant were closely related to the armed conflict

18 and formed part of the widespread and systematic attack against the

19 non-Serb population of Visegrad. The Trial Chamber did not deduce the

20 appellant's discriminatory intent from the fact that he was an informant

21 of the group. The appellant, therefore, fails to establish that the Trial

22 Chamber's erroneous finding that he was an informant led to a miscarriage

23 of justice.

24 The second error relates to the Trial Chamber's findings that at

25 the time the appellant was at the Vilina Vlas Hotel, he knew that the

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1 seven Muslim men were going to be killed and that Milan Lukic had

2 committed serious crimes, including killings in the area of Visegrad

3 shortly prior to the Drina River incident. The Trial Chamber relied upon

4 the evidence given by the appellant himself that during the drive from

5 Visegrad to the Vilina Vlas Hotel on the afternoon of 7 June 1992, the

6 appellant had been told by the man driving the car, Stanko Pecikoza, that

7 Milan Lukic had on several occasions taken out Muslim employees from the

8 Varda factory to mistreat or kill them. Accordingly, the Trial Chamber

9 rejected the appellant's evidence that it was only when Milan Lukic

10 stopped the cars near Sase and ordered the seven men to walk towards the

11 bank of the Drina River that he understood these men were not to be

12 exchanged.

13 Having reviewed the relevant excerpts of the appellant's evidence,

14 the Appeals Chamber concludes that his testimony is unclear and

15 contradictory as to what he was told by Stanko Pecikoza on 7 June 1992 on

16 their way to the Vilina Vlas Hotel. While the testimony supports the

17 Trial Chamber's findings as to mistreatment, it is ambiguous as to

18 killings. The evidence leaves it unclear whether Stanko Pecikoza told the

19 appellant about the discovery of the body of a young man named Velagic in

20 the car on the way to the hotel or whether Pecikoza only expressed his

21 suspicion that Milan Lukic had killed Velagic. Furthermore, it must be

22 noted that this certain Velagic was, according to paragraph 15 of the

23 indictment, killed on 10 June by Milan Lukic at the Varda factory. This

24 factor renders the testimony of the appellant even more unclear as to

25 which killings he was referring to. There is also a contradiction between

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1 the Trial Chamber's judgement and the indictment as to the date of the

2 Varda factory incident.

3 Consequently, the evidence in question does not support the Trial

4 Chamber's finding that Stanko Pecikoza told the appellant about any

5 killings of workers from the Varda factory that would have taken place

6 before 7 June 1992. Even if Pecikoza told the appellant that Velagic had

7 been killed by Milan Lukic, this would be insufficient to infer that the

8 appellant knew at the time he left the hotel that the seven Muslim men

9 were going to be killed and not exchanged. For this reason, and in light

10 of additional factors which are explained in the appeals judgement, the

11 Appeals Chamber finds no reasonable trier of fact could have made this

12 finding merely on the basis of the evidence.

13 I turn now to the third factual error which relates to the finding

14 that the appellant pointed a gun at the seven Muslim men while at the

15 Vilina Vlas Hotel. As already explained, the Appeals Chamber concluded

16 that it was reasonable for the Trial Chamber to find that the appellant

17 was armed at the Vilina Vlas Hotel. The Trial Chamber's conclusion that

18 the appellant pointed his gun at the seven Muslim men at the hotel is,

19 however, not supported by the Trial Chamber's own finding that one of the

20 unidentified armed men guarded the seven Muslim men pointing his automatic

21 rifle at them and prevented them from leaving the lobby of the hotel. The

22 Prosecution conceded this point. In conclusion, no reasonable trier of

23 fact could have found that the appellant pointed a gun at the seven Muslim

24 men at the Vilina Vlas Hotel. The question of whether the last two

25 above-mentioned errors led to a miscarriage of justice will be discussed

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1 later in the context of the alleged error relating to the appellant's

2 intent to kill the seven Muslim men.

3 Part 5 of the judgement deals with the appellant's participation

4 in a joint criminal enterprise and the related issue of his individual

5 criminal responsibility. The appellant's fourth, fifth, sixth, and

6 seventh grounds of appeal relate respectively to murder, inhumane acts,

7 persecution, and a joint criminal enterprise. They share, as a central

8 issue, the question of whether the appellant intended to kill the seven

9 Muslim men during the Drina River incident. The Appeals Chamber finds

10 that only the first category of joint criminal enterprise described by the

11 Tadic appeals judgement, that is, the basic form of joint criminal

12 enterprise is relevant in the present case. The Appeals Chamber dismisses

13 the appellant's three subgrounds of appeal which allege that the Trial

14 Chamber erred in law in relation to the concept of joint criminal

15 enterprise by failing to explicitly indicate which exact criteria applied

16 to assess the existence of this enterprise. By finding that the existence

17 of an arrangement or understanding amounting to an agreement between two

18 or more persons need not be expressed, but can also be inferred, and by

19 finding that all of the participants in the joint criminal enterprise were

20 equally guilty of the crime, regardless of the part played by each in its

21 commission, the Appeals Chamber also dismisses the appellant's allegation

22 that the Trial Chamber erred in finding him guilty in persecution solely

23 on the basis of one incident.

24 I now turn to the appellant's arguments that the Trial Chamber

25 erred in finding that he shared the intent to kill the seven Muslim men.

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1 The Trial Chamber inferred the appellant's intent from his actions of

2 preventing the seven Muslim men from fleeing by pointing a gun at them

3 while they were detained at the Vilina Vlas Hotel, escorting them to the

4 bank of the Drina River, and pointing a gun at them to prevent their

5 escape, and standing behind the Muslim men with his gun alongside the

6 other three offenders shortly before the shooting started. To find the

7 appellant individual criminally responsible as a coperpetrator, it must be

8 established that an accused voluntarily participated in one aspect of the

9 common purpose, even if he did not physically commit the crime, and that

10 an accused, even if not personally carrying out the crime, nevertheless

11 intended its result.

12 The Appeals Chamber agrees with the test adopted by the Trial

13 Chamber according to which when the Prosecution relies upon proof of the

14 state of mind of an accused by inference, that inference must be the only

15 reasonable inference available on the evidence. The question here is

16 whether no reasonable Tribunal could have found that the only reasonable

17 inference from the evidence was that the appellant by his actions intended

18 to kill the seven Muslim men.

19 As already stated, the Appeals Chamber concluded that the Trial

20 Chamber erred in finding that the appellant pointed his gun at the seven

21 men while at the Vilina Vlas Hotel. Moreover, the Appeals Chamber

22 concluded that the Trial Chamber erred in finding that the appellant at

23 that time had knowledge that the seven Muslim men were to be killed and

24 not exchanged. Since the appellant lacked at that time the knowledge that

25 the seven Muslim men were to be killed, the fact that he prevented the

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1 Muslim men from fleeing the hotel is not decisive as to whether or not he

2 shared the intent to kill them.

3 The Trial Chamber also relied on the appellant's actions from the

4 moment the Lukic group stopped the cars in Sase to infer that he intended

5 that the seven Muslim men be killed. When Milan Lukic, the two

6 unidentified men, and the appellant escorted the seven Muslim men to the

7 bank of the Drina River, he pointed a gun at them to prevent their escape.

8 Then the appellant stood behind the Muslim men with his gun shortly before

9 the shooting occurred. The Trial Chamber did not find, however, that the

10 appellant acted at the same level of authority or with the same degree of

11 control over the killings as the other three actors.

12 To the contrary, the Trial Chamber stated that it, and I quote,

13 "is not satisfied that the Prosecution has established beyond a

14 reasonable doubt that the accused fired his weapon at the same time as the

15 other three or that he personally killed any one or more of the victims."

16 The Trial Chamber did not even make an explicit finding that the appellant

17 pointed his gun at the seven Muslim men while they were lined up facing

18 the Drina River.

19 In addition to these findings, the Appeals Chamber takes into

20 consideration the following: The overall context of the Drina River

21 incident, the previous association of the appellant with the Milan Lukic

22 group at Musici and at the Vilina Vlas Hotel, as well as his actions at

23 both locations. The fact that the appellant did not know until the car

24 stopped in Sase that the seven Muslim men were to be killed; that the

25 behaviour of the Serb soldiers changed drastically from the moment Milan

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1 Lukic ordered them to leave the car; that throughout the entire Drina

2 River incident, the impression of the two survivors was that no around

3 Lukic could have influenced him or his decisions; and finally, that the

4 appellant willingly accompanied Lukic and his group of the seven Muslim

5 men to the Drina River, when the Chamber is confronted with the task of

6 determining whether it can infer from the acts of an accused that he

7 shared the intent to commit a crime, special attention must be paid to

8 whether these acts are ambiguous and therefore allow for several

9 reasonable inferences.

10 The Appeals Chamber concludes that no reasonable Tribunal could

11 have found that the only reasonable inference available on the evidence as

12 cited above is that the appellant had the intent to kill the seven Muslim

13 men. The Trial Chamber found that the appellant assisted Milan Lukic and

14 his men by preventing the seven Muslim men from fleeing. It did not find,

15 however, that the appellant shot at the Muslim men himself, nor did it

16 find that he exercised control over the firing. Compared to the

17 involvement of Milan Lukic and potentially one or both of the other men,

18 the participation of the appellant in the overall course of the killings

19 did not reach the same level. The above-mentioned acts of the appellant

20 were ambiguous as to whether or not the appellant intended the seven

21 Muslim men to be killed. This conclusion is further supported, among

22 other factors, by the relatively short period of time between the change

23 of attitude of Milan Lukic and the shooting, and the strong personality of

24 Milan Lukic compared to that of the appellant. The Trial Chamber erred by

25 finding that the only reasonable inference from the evidence was that the

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1 appellant shared the intent to kill the seven Muslim men. This error led

2 to a miscarriage of justice because without the proof of the appellant's

3 intent to kill, he could not be found responsible as a coperpetrator.

4 The Appeals Chamber now considers whether the appellant is

5 responsible as an aider and abettor. The appellant's argument under his

6 fourth ground of appeal is that his actions do not amount to aiding and

7 abetting as he did not facilitate the commission of the crime. The

8 Appeals Chamber has already concluded that the appellant knew that the

9 seven Muslim men were to be killed, that he walked armed with the Lukic

10 group from the place where they had parked the cars to the Drina River,

11 that he pointed his gun at the seven Muslim men, and that he stood behind

12 the Muslim men with his gun, together with the other three offenders,

13 shortly before the shooting started. The only reasonable inference

14 available on the totality of evidence is that the appellant knew that his

15 acts would assist the commission of the murders. In preventing the men

16 from escaping on the way to the riverbank and during the shooting, the

17 appellant's actions were specifically directed to assist the perpetration

18 of the murders and the inhumane acts and his support had a substantial

19 effect on upon the perpetration of the crimes. The Appeals Chamber,

20 therefore, finds the appellant guilty for aiding and abetting murder

21 pursuant to Article 3 of the Statute, count 5. Further, the Appeals

22 Chamber finds the appellant guilty as an aider and abettor with respect to

23 murder as a crime against humanity pursuant to Article 5(a) of the Statute

24 (count 4) and inhumane acts as a crime against humanity pursuant to

25 Article 5(i) of the Statute (count 6). The appellant, however, is not

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1 convicted on murder as a crime against humanity pursuant to Article 5(a)

2 (count 4) and inhumane acts as a crime against humanity pursuant to

3 Article 5(i) (count 6) in accordance with the Tribunal's jurisprudence on

4 cumulative convictions.

5 I now turn to the appellant's submission that the Trial Chamber

6 erred in finding that he had the requisite discriminatory intent as he did

7 not take part in the singling out of the seven Muslim men, did not know

8 why they were arrested, or what Milan Lukic wanted to do with them.

9 Contrary to what the appellant argues, the Trial Chamber made it clear

10 that regardless of whether or not the appellant was an informant and

11 whether or not he shared the intention of the group to persecute the

12 Muslim population, the Prosecution also had to establish that the accused

13 participated in the commission of a persecutory act with a discriminatory

14 intention. Consequently, the Trial Chamber assessed whether the acts of

15 the appellant during the Drina River incident showed that he possessed the

16 requisite mens rea for the crime of persecution. The Appeals Chamber

17 recently upheld the approach taken by the Trial Chamber in the Krnojelac

18 appeals judgement. Furthermore, and again contrary to the submission of

19 the appellant, the Trial Chamber did not deduce the discriminatory intent

20 of the appellant from the fact that the seven Muslim men were singled out

21 by him. The Trial Chamber affirmed that, and I quote, "the acts of the

22 accused were, in fact, discriminatory in that the men were killed only

23 because they were Muslims." The appellant's participation in the joint

24 criminal enterprise at the Vilina Vlas Hotel during the transfer of the

25 victims to the bank of the Drina River and during the events that took

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1 place there represents the concrete acts from which the Trial Chamber

2 could infer that his action had discriminatory consequences and that he

3 possessed the requisite discriminatory intent.

4 The appellant's arguments with respect to the approach taken by

5 the Trial Chamber in assessing whether he had the discriminatory intent to

6 persecute are, therefore, rejected.

7 The Appeals Chamber also has to determine whether the Trial

8 Chamber erred in finding the appellant individually responsible as a

9 coperpetrator for the crime of persecution based on the underlying crimes

10 of murder and inhumane acts. The Appeals Chamber already concluded that

11 the Trial Chamber erred in finding that the appellant possessed the intent

12 to kill. The intent to kill the seven Muslim men, including the two

13 survivors, constituted the basis for the Trial Chamber's finding that the

14 appellant was a coperpetrator to a joint criminal enterprise. In the

15 absence of this intent, no reasonable trier of fact could have found the

16 appellant responsible for committing the crime of persecution by murders

17 and inhumane acts as a coperpetrator to the joint criminal enterprise.

18 This error resulted in a miscarriage of justice.

19 The Appeals Chamber now considers whether the appellant incurs

20 individual criminal responsibility under Article 7(1) of the Statute by

21 aiding and abetting the persecution of the Muslim men through his

22 participation in the killings on the bank of the Drina River. The acts

23 committed by Milan Lukic and the two other men unquestionably amount to

24 the crime of persecution. They killed the five Muslim men and committed

25 inhumane acts against the two survivors with the deliberate intent to

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1 discriminate on religious or political grounds. Furthermore, the Appeals

2 Chamber agrees with the Trial Chamber that the appellant participated in

3 the Drina River incident with full awareness that the intent of Milan

4 Lukic's group was to persecute the local Muslim population of Visegrad

5 through the commission of the underlying crimes. The only reason why the

6 seven Muslim men were arrested and killed was because they belonged to the

7 Muslim population of Visegrad. The appellant was aware of this fact, and

8 he willingly participated in the Drina River massacre by pointing his gun

9 at the victims and preventing them from fleeing. His support had a

10 substantial effect upon the perpetration of the crimes on the bank of the

11 Drina River. He was at that time fully aware that his participation

12 assisted the commission of the crime of persecution by the principal

13 perpetrators. The appellant is therefore responsible for having aided and

14 abetted the crime of persecution by way of murder of the five Muslim men

15 and of inhumane acts against the two other Muslim men.

16 The appellant argues that he cannot be convicted cumulatively with

17 respect to the same conduct of both murder under Article 3 of the Statute,

18 count 5, and persecution by way of murder under Article 5(a) of the

19 Statute, count 4. The jurisprudence of the Tribunal on cumulative

20 conviction shows that it is permissible to convict for both of these

21 offences as each has an element materially distinct from the other. This

22 subground of appeal, therefore, fails.

23 I will now discuss part 6 of the judgement which deals with

24 sentencing. In his eighth ground of appeal, the appellant alleges seven

25 errors of law and fact related to sentencing. He first alleges that the

Page 185

1 sentence imposed by the Trial Chamber, 20 years of imprisonment for

2 persecution and murder, is excessively high in comparison with sentences

3 imposed in the Tribunal case law. Secondly, the appellant alleges that

4 the Trial Chamber erred in taking into consideration as aggravating

5 factors the method of killing, verbal abuses of the victims, the trauma

6 suffered by the victims, and the discriminatory state of mind. Third, he

7 argues that the Trial Chamber erred in failing to consider as a mitigating

8 factor the remorse shown by him after the Drina River incident and his

9 cooperation with the Prosecution.

10 The Appeals Chamber rejects all these arguments, and the reasons

11 are fully explained in the judgement. The Appeals Chamber, however, is of

12 the view that the sentence needs to be adjusted due to the fact that the

13 appellant's conviction as a coperpetrator in a joint criminal enterprise

14 for murder as a violation of the laws or customs of war under Article 3 of

15 the Statute and persecution by way of murder and inhumane acts under

16 Article 5(h) is now replaced by conviction as an aider and abettor. The

17 Appeals Chamber has the power to revise the sentence itself without

18 remitting it to the Trial Chamber. Aiding and abetting is a form of

19 responsibility which generally warrants a lower sentence than is

20 appropriate to responsibility as a coperpetrator. At the same time, the

21 sentence to be imposed must also reflect the inherent gravity of the

22 criminal conduct of an accused. The appellant committed serious crimes.

23 Therefore, taking into account the particular circumstances of this case

24 as well as the form and degree of the appellant's participation in the

25 crimes committed, the Appeals Chamber concludes that the sentence of

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1 15 years is appropriate.

2 I shall now read the operative paragraph of the Appeals Chamber

3 judgement.

4 Mr. Vasiljevic, please, would you stand.

5 For the foregoing reasons, the Appeals Chamber, pursuant to

6 Article 25 of the Statute and Rules 117 and 188 of the Rules of Procedure

7 and Evidence; noting the respective written submissions of the parties and

8 the arguments they presented at the hearing of 18 November 2003; sitting

9 in open session; allows, Judge Shahabuddeen dissenting, Mitar Vasiljevic's

10 appeal insofar as it relates to his convictions as a coperpetrator of

11 persecution, a crime against humanity (murder and inhumane acts) under

12 count 3 of the indictment, and of murder, a violation of the laws or

13 customs of war, under count 5 of the indictment; sets aside,

14 Judge Shahabuddeen dissenting, these convictions, and finds, Judge

15 Shahabuddeen dissenting, Mitar Vasiljevic guilty of counts 3 and 5 of the

16 indictment as an aider and abettor to persecution, a crime against

17 humanity (murder and inhumane acts), and as an aider and abettor to

18 murder, a violation of the laws or customs of war, pursuant to

19 Article 7(1) of the Statute; dismisses Mitar Vasiljevic's appeal against

20 convictions in all other respects; dismisses Mitar Vasiljevic's appeal

21 against sentence and imposes, Judge Shahabuddeen dissenting, a new

22 sentence, taking into account his responsibility established on the basis

23 of the new convictions entered on appeal; sentences Mitar Vasiljevic to

24 15 years' imprisonment to run as of this day, subject to credit being

25 given under Rule 101(C) of the Rules for the period Mitar Vasiljevic has

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1 already spent in detention, that is from the 25th of January 2000 to the

2 present day; orders, in accordance with Rules 103(C) and 107 of the Rules

3 of Procedure and Evidence, that Mitar Vasiljevic is to remain in the

4 custody of the International Tribunal pending the finalisation of

5 arrangements for his transfer to the State where his sentence will be

6 served.

7 Madam Registrar, would you please deliver copies of the judgement

8 to the parties.

9 Mr. Vasiljevic, you may be seated.

10 The Appeals Chamber stands adjourned.

11 --- Whereupon the hearing adjourned at 3.19 p.m.

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