Transkript Objave Presude Šestorci

Judgement (Open Session) Page 117
1 Wednesday, 29 November 2017
2 [Judgement]
3 [Open session]
4 [The appellants entered court]
5 [The Appellant Pusic not present]
6 --- Upon commencing at 10.00 a.m.
7 JUDGE AGIUS: Good morning, everybody.
8 Madam Registrar, could you call the case, please.
9 THE REGISTRAR: Good morning, Your Honours. This is case number
10 IT-04-74-A, The Prosecutor versus Mr. Prlic, Mr. Stojic, Mr. Praljak,
11 Mr. Petkovic, Mr. Coric, and Mr. Pusic.
12 JUDGE AGIUS: I thank you. I am pleased to recognise the
13 presence of the Deputy Registrar of the Tribunal today.
14 Let me now ask for the appearances of the parties, starting with
15 the Prosecution.
16 MR. STRINGER: Good morning, Mr. President, Your Honours. For
17 the Prosecution, appearing is myself Douglas Stringer, with Laurel Baig,
18 Barbara Goy, Katrina Gustafson, Aditya Menon, and Janet Stewart.
19 JUDGE AGIUS: Thank you very much.
20 And appearances for the Defence. I note, however, that Mr. Pusic
21 has waived his right to be present at the pronouncement of the appeal
22 Judgement today. So I'll just proceed to acknowledge the presence of the
23 Defence counsel.
24 For Mr. Prlic.
25 MR. KARNAVAS: Good morning, Your Honour. Michael Karnavas and
Wednesday, 29 November 2017 Case No. IT-04-74-A

1 Suzana Tomanovic.
2 JUDGE AGIUS: Thank you.
3 For Mr. Stojic.
4 MS. NOZICA: [Interpretation] Appearing on behalf of Mr. Stojic,
5 Senka Nozica and our legal consultant Aidan Ellis.
7 For Mr. Praljak.
8 MS. PINTER: [Interpretation] Good morning, Your Honour. Good
9 morning to you and to all those present in and around the courtroom. On
10 behalf of Mr. Praljak, Ms. Nika Pinter and Ms. Natacha Fauveau-Ivanovic,
11 from Paris appearing.
13 For Mr. Petkovic.
14 MS. ALABURIC: [Interpretation] Good morning, Your Honour. On
15 behalf of Mr. Petkovic, Ms. Alaburic and Mr. Lazic.
17 For Mr. Coric.
18 MS. TOMASEGOVIC-TOMIC: [Interpretation] Good morning, Your
19 Honours. Lead counsel Dijana Tomasegovic-Tomic and co-counsel
20 Drazen Plavec, appearing on behalf of Mr. Coric.
22 And for Mr. Pusic.
23 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour. On
24 behalf of Mr. Pusic, Mr. Ibrisimovic and Mr. Sahota appearing.
25 JUDGE AGIUS: Before I proceed any further, I would like to

1 confirm with the Defence appellants whether they can all follow the
2 proceedings in a language that they can understand.
3 THE APPELLANT PRLIC: Good morning, Mr. President, and members of
4 chamber. I'm able to follow --
6 THE APPELLANT PRLIC: -- in a language which I've understood.
8 Mr. Stojic.
9 THE APPELLANT STOJIC: [Interpretation] Good morning, Your Honour.
10 Everything is fine. Thank you.
12 Mr. Praljak.
13 THE APPELLANT PRALJAK: [Interpretation] Thank you. I can follow
14 completely.
16 Mr. Petkovic.
17 THE APPELLANT PETKOVIC: [Interpretation] Good morning, Your
18 Honour. I can follow.
20 And Mr. Coric.
21 THE APPELLANT CORIC: [Interpretation] Good morning, Your Honour.
22 Everything is fine. Thank you.
23 JUDGE AGIUS: I thank you all and good morning to all of you.
24 The Appeals Chamber is sitting today in accordance with Rule
25 117(D) of the Tribunal's Rules of Procedure and Evidence and the

1 Scheduling Order issued on 5 October 2017. This will be the last sitting
2 of and the final Judgement pronounced by the International Criminal
3 Tribunal for the former Yugoslavia.
4 This has been a long and complex case, with much time having
5 passed since the trial proceedings began in 2006 and since the Appeals
6 Chamber was first seized by a Notice of Appeal in June 2013. The appeal
7 hearing in this case was held between 20 and 28 March of this year. The
8 Appeals Chamber would like to thank the parties for their co-operation
9 and professionalism, as well as all sections of the Registry for their
10 dedication and support.
11 I will now summarise the findings of the Appeals Chamber in the
12 case of Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic,
13 Valentin Coric, and Berislav Pusic. Not every issue discussed in the
14 Judgement will be addressed in this summary. Also, and very importantly,
15 this oral summary does not constitute any part of the authoritative
16 written Judgement of the Appeals Chamber which will be distributed to the
17 parties at the close of this hearing.
18 The events giving rise to the appeals in this case occurred
19 between 1992 and 1994, in eight municipalities and five detention centres
20 in the territory of Bosnia and Herzegovina that was claimed as part of
21 the Croatian Community and later the Croatian Republic of Herceg-Bosna.
22 Prlic, Stojic, and Coric served in the government of these entities
23 respectively as President of the government, Head of the Department of
24 Defence, and Chief of the Military Police Administration, with Coric
25 later being appointed Minister of the Interior. Praljak and Petkovic

1 served at different times as the Commander or Chief of the Main Staff of
2 the Bosnian Croat army, or the HVO, as I will be referring to it. Pusic
3 served as an officer in the military police of the HVO and was later
4 appointed as the head of its exchange service and detention commission,
5 bodies which were mandated with the responsibilities in the areas of
6 detention and prisoner exchange. Praljak also served as the assistant
7 and then Deputy Minister of Defence of Croatia, before later returning to
8 Croatia as an advisor to the Croatian Minister of Defence.
9 The Trial Chamber found that by mid-January 1993, a joint
10 criminal enterprise, or a JCE as I will be referring to it, had come into
11 existence that was aimed at creating a Croatian entity in Bosnia and
12 Herzegovina that would facilitate the reunification of the Croatian
13 people. According to the Trial Chamber, this joint criminal enterprise
14 had as its common criminal purpose the "domination by Croats of the
15 Croatian Republic of Herceg-Bosna through ethnic cleansing of the Muslim
16 population."
17 The members of this JCE were found to have implemented an entire
18 system for deporting the Muslim population of the Croatian Republic of
19 Herceg-Bosna. This system consisted of a wide range of crimes: That is
20 the removal and placement in detention of civilians, murders and
21 destruction of property during attacks, mistreatment and destruction of
22 property during eviction operations, mistreatment and very harsh
23 conditions of confinement in HVO detention centres, the use of detainees
24 on the front lines for labour or as human shields, and the removal of
25 detainees and their families to other territories once they were released

1 from detention. The Trial Chamber found that thousands of persons lay
2 victim to these acts of violence, which were committed in an organised
3 fashion by the military and political forces of the HVO.
4 The Trial Chamber concluded that all six Defence appellants were
5 participants in the JCE. They were convicted for committing grave
6 breaches of the Geneva Conventions, violations of the laws or customs of
7 war, and crimes against humanity, including, murder, persecution,
8 imprisonment, unlawful labour, forcible transfer, deportation, inhumane
9 acts, inhumane treatment, extensive destruction of property not justified
10 by military necessity, destruction of institutions dedicated to religion
11 or education, and unlawful attacks on civilians, and, lastly, unlawful
12 infliction of terror on civilians. In addition, under the third category
13 of JCE liability, Prlic, Stojic, Petkovic, and Coric were also convicted
14 of rape and sexual assault, and Defence appellants, with the exception of
15 Pusic, were found guilty of plunder and extensive appropriation of
16 property. Coric was also found to bear superior responsibility for
17 certain crimes that occurred in 1992.
18 The Trial Chamber sentenced Prlic to 25 years of imprisonment,
19 Stojic, Praljak, and Petkovic to 20 years each, Coric to 16 years, and
20 Pusic to 10 years of imprisonment. All six Defence appellants as well as
21 the Prosecution have lodged appeals against the Trial Judgement, and I
22 now turn to these appeals.
23 Starting with the fairness of proceedings, Prlic contends that he
24 was systematically denied adequate time and facilities to question
25 witnesses, while Stojic alleges that the Trial Chamber erroneously relied

1 on evidence related to Franjo Tudjman and other senior leaders of the
2 Republic of Croatia who passed away before the proceedings started. The
3 Appeals Chamber finds no merit in either contention and dismisses them
4 accordingly.
5 With regard to the indictment and other fair trial issues, Stojic
6 and Petkovic allege that the Trial Chamber impermissibly altered the
7 Prosecution's charges against them by contemplating a JCE other than the
8 one pleaded in the indictment. Petkovic adds that the Prosecution's
9 final trial brief indicated that it was pursuing a narrower case than the
10 one for which he was convicted. The Prosecution responds that the Trial
11 Chamber did not depart from the indictment, that the Prosecution's
12 opening statement, presentation of evidence, and mid-case submissions
13 were consistent with the indictment, and that its final trial brief did
14 not alter the notices of its charges. The Appeals Chamber observes that
15 the indictment clearly put the Defence appellants on notice of the crimes
16 and modes of responsibility with which they were charged. The Appeals
17 Chamber further considers, Judge Pocar dissenting, that the Prosecution's
18 final trial brief, which did not expressly and formally withdraw any
19 allegations, cannot reasonably be interpreted to mean that the
20 Prosecution was abandoning modes of liability charged in the indictment.
21 The Appeals Chamber therefore finds, Judge Pocar dissenting, that Stojic
22 and Petkovic have failed to demonstrate any error.
23 Coric also challenges three aspects of the notice of charges
24 against him. The first and second challenges alleging that the Trial
25 Chamber exceeded the indictment in finding a state of occupation and in

1 finding the extent of protections applicable to certain detainees are
2 unsubstantiated and unpersuasive. The third such challenge is that the
3 Trial Chamber erred by considering that he contributed to the JCE by
4 exercising his powers as Minister of the Interior since this was not
5 charged in the indictment. The Prosecution responds that he was provided
6 with clear notice that any defect was appropriately cured and that, in
7 any event, Coric's ability to prepare his Defence was not materially
8 impaired. The Appeals Chamber finds that the indictment was ambiguous on
9 this point, thereby rendering it vague and defective. This defect was
10 not cured through the Prosecution's post-indictment disclosures. A
11 defective indictment which has not been cured causes prejudice to the
12 accused, and this defect can only be deemed harmless through a
13 demonstration that the accused's ability to prepare his or her Defence
14 was not materially impaired. The Prosecution has not met its burden in
15 this regard. In light of the prejudice suffered, the Appeals Chamber
16 grants Coric's appeal, in part, reverses the Trial Chamber 's finding on
17 his role in the JCE as Minister of the Interior as of 10 November 1993,
18 and vacates his convictions in relation to his responsibility as Ministry
19 of the Interior based on JCE liability.
20 I now turn to the challenges regarding admissibility and weight
21 of the evidence as well as witness credibility.
22 Prlic and Praljak contend that the Trial Chamber erred when it
23 admitted and relied on extracts of Ratko Mladic's diaries, while denying
24 them the opportunity to reopen their case or tender evidence in response.
25 Stojic adds that this constituted uncorroborated and untested hearsay

1 evidence. The Appeals Chamber finds that they have not demonstrated that
2 the Trial Chamber abused its discretion in admitting the extracts. Prlic
3 never unconditionally requested that his case be reopened, and, in any
4 event, the Trial Chamber expressly permitted him to admit evidence to
5 rebut these diary extracts, which he did. Praljak was likewise offered
6 an opportunity to challenge these extracts. Neither Prlic, nor Praljak,
7 nor Stojic, show that no reasonable trier of fact could have relied on
8 this evidence. Their arguments are dismissed.
9 Prlic, Stojic, Praljak, and Coric also contest decisions
10 pertaining to the admission or assessment of evidence, including with
11 regard to witness credibility and Praljak's own testimony. The Appeals
12 Chamber finds that they fail to show any error. With respect to
13 Praljak's claim that the Trial Chamber failed to explain what parts of
14 his testimony it found credible or not credible and why, the Appeals
15 Chamber finds that he does not demonstrate how the lack of a more
16 detailed discussion would invalidate the Trial Judgement and therefore
17 dismisses this challenge accordingly.
18 I will now turn to the legal requirements for grave breaches of
19 the Geneva Conventions.
20 The Appeals Chamber reverses proprio motu the Trial Chamber's
21 conclusion that an international armed conflict between the HVO and the
22 Bosnian Muslim army, the ABiH, only existed where active combat was
23 taking place. The Appeals Chamber recalls that the temporal and
24 geographic scope of an international armed conflict extends beyond the
25 exact time and place of hostilities, and considers that the Trial

1 Chamber's finding of an international armed conflict in specific parts of
2 the Bosnian territory were sufficient for the grave breaches regime to be
3 applied to crimes committed elsewhere in Bosnia and Herzegovina until the
4 end of the armed conflict, so long as the necessary nexus to the armed
5 conflict was established.
6 With regard to the Trial Chamber's finding of a state of
7 occupation, the Appeals Chamber considers that the Trial Chamber
8 appropriately examined whether a state of occupation existed in the
9 relevant municipalities at the time certain crimes were committed against
10 protected persons in and protected property on occupied territory. The
11 Appeals Chamber considers that occupation is a question of fact that
12 needs to be examined on a case-by-case basis. The Appeals Chamber
13 further considers that a power can, by proxy, exercise the authority
14 necessary for occupation through de facto, organised and hierarchically
15 structured groups. There were numerous factors indicating that Croatia,
16 through the HVO, had actual authority over the relevant municipalities
17 and the Appeals Chamber finds that Prlic, Stojic, Praljak, Petkovic and
18 Coric have failed to show any error by the Trial Chamber in reaching this
19 conclusion.
20 The Trial Chamber also found that two locations in Vares
21 municipality were occupied after 23 October 1993, and the Prosecution
22 concedes that occupation was not proven at the time that certain property
23 was destroyed and appropriated in these locations. The Appeals Chamber
24 thus vacates the Defence appellants' conviction for extensive destruction
25 and appropriation of property insofar as these incidents are concerned.

1 The Trial Chamber further found that the HVO detained two
2 categories of Muslim men who benefitted from the overarching protection
3 of Geneva Convention IV, rather than being prisoners of war receiving the
4 different protections under Geneva Convention III.
5 First, with respect to the Muslim members of the HVO, Stojic,
6 Praljak, Petkovic and Coric allege that war crimes cannot be committed by
7 soldiers against members of their own military force. The Appeals
8 Chamber considers that in this case the Trial Chamber correctly took into
9 account the allegiance of Muslim HVO members rather than merely
10 considering their nationality. Since the detaining authority's view of
11 the victims' allegiance is a relevant factor in this assessment, the
12 Appeals Chamber finds that no error has been demonstrated.
13 Second, with respect to Muslim men of military age, Praljak,
14 Petkovic, Coric, and Pusic submit that the Trial Chamber erred in finding
15 that such men were not members of the armed forces. They refer to
16 Bosnian law regarding reserve forces as well as a general mobilisation
17 order. The Trial Chamber duly considered these arguments at trial. The
18 Appeals Chamber further finds that a reasonable trier of fact could have
19 concluded that the HVO failed to carry out individualised assessments of
20 military-aged Muslim men within a reasonable time as required by law.
21 Moreover, the Trial Chamber made findings demonstrating that such men
22 were arrested en masse together with Muslim women, children, and the
23 elderly, and that all Muslims were detained and treated in the same
24 manner, irrespective of their status. The challenges to these findings
25 are dismissed.

1 Petkovic finally submits that the detention was necessary for
2 security reasons and therefore justified under Geneva Convention IV. The
3 Appeals Chamber observes that such a detention requires an individualised
4 assessment that each civilian poses a particular security risk. The
5 Trial Chamber concludes that the arrests were not justified, and that
6 Petkovic's orders to arrest these groups of Muslim men also ran afoul of
7 Geneva Convention IV. Petkovic has not shown that the Trial Chamber
8 erred in reaching these conclusions.
9 I now turn to the underlying crimes for which the Defence
10 appellants were convicted. Before doing so, I note that Judge Liu
11 dissents from all portions of the Judgement dealing with the unlawful
12 infliction of terror on civilians as a violation of the laws or customs
13 of war because he is of the view that the Tribunal does not have
14 jurisdiction over this crime and that the elements of this offence, as
15 set out in the Judgement, do not adequately define a criminal charge.
16 Praljak appeals the Trial Chamber's finding that the HVO unlawful
17 imprisoned more than 1.000 Muslim civilians in houses in Prozor
18 municipality and held them in harsh and overcrowded conditions. He
19 argues that some Muslims might have gone to the houses voluntarily, that
20 their relocation was necessary to ensure their safety, and that, although
21 restricted, they still enjoyed some freedom of movement and were not
22 detained. The Appeals Chamber dismisses his first two contentions, which
23 ignore the extent of the evidence relied upon by the Trial Chamber or
24 otherwise failed to show that no reasonable trier of fact could have
25 reached the same conclusion. With respect to his third contention, the

1 Appeals Chamber recalls that imprisonment and unlawful confinement can
2 occur each when civilians are held in houses without guards or where they
3 have some freedom of movement. In light of the findings that the HVO
4 soldiers and military police arrested civilians, brought them to the
5 houses, and remained present in these locations, the Appeals Chamber
6 finds no error in the conclusion that these civilians were imprisoned and
7 unlawfully confined. Even if their internment had been a necessary
8 restriction on their movement under Geneva Convention IV, this would have
9 been subject to strict rules and requirements, which the HVO failed to
10 respect, thereby belying the true nature of the detention. Praljak's
11 appeal is, therefore, dismissed.
12 A month into this detention, the HVO forcibly removed and
13 transferred Muslim women, children, and elderly persons, according to the
14 Trial Chamber. Praljak submits that the Trial Chamber wrongly found that
15 they were forced to leave, instead of considering that they may have left
16 by choice, and that in any event the removal may have been necessary for
17 security or military reasons. The Trial Chamber found that HVO soldiers
18 used trucks to transfer these civilians, fired into the air to force the
19 Muslims to get onto the trucks, and later forced them to walk on foot
20 under military escort. Praljak fails to demonstrate any error in these
21 findings. As for the necessity of relocating civilians, the Appeals
22 Chamber recalls that the displacement of a population cannot be justified
23 where it is caused by a humanitarian crisis resulting from the accused's
24 own unlawful activity. The Trial Chamber found that Praljak shared
25 responsibility for the harsh conditions of detention, that the transfer

1 took place when there was no fighting in the area, and that there was no
2 possibility of return. The Appeals Chamber identifies no errors in these
3 findings and rejects Praljak's appeal.
4 The Appeals Chamber now turns to the appeals concerning the
5 wanton destruction of cities or towns or villages, or devastation not
6 justified by military necessity.
7 The Trial Chamber found that throughout the day on 8
8 November 1993 an HVO tank fired at the old bridge of Mostar, rendering it
9 on the verge of collapse by the evening. The Trial Chamber also found
10 that the old bridge was essential for combat activities, and that at the
11 time of attack it was a military target, given that its destruction would
12 cut off practically all possibilities for the ABiH to continue its supply
13 operations. The destruction of the old bridge resulted in virtually
14 total isolation of certain residents and had a significant psychological
15 impact on the Muslim population of Mostar, and the Trial Chamber
16 therefore concluded that the impact of the destruction was
17 disproportionate to the concrete and direct military advantage expected.
18 The Trial Chamber also found that the HVO destroyed the old bridge in
19 order to sap the morale of the Muslim population and therefore concluded
20 that the HVO committed wanton destruction not justified by military
21 necessity.
22 Stojic, Praljak, and Petkovic challenge the Trial Chamber's
23 findings concerning this event. Stojic alleges that the Trial Chamber
24 focussed on actual harm rather than reasonably anticipated harm, failed
25 to analyse the harm caused in terms of tangible injuries, and should have

1 placed more weight on the old bridge's crucial importance as a military
2 objective. Praljak and Petkovic also submit that the Trial Chamber erred
3 in assessing proportionality. The Prosecution responds that Stojic,
4 Praljak and Petkovic have not shown an error, that the Trial Chamber did
5 not give insufficient weight to the anticipated military advantage, and
6 that the Trial Chamber appropriately considered that the HVO's primary
7 aim was to cause psychological and physical harm of the population. The
8 Appeals Chamber finds, Judge Pocar dissenting, that since the old bridge
9 was a military target at the time of the attack and thus its destruction
10 offered a definite military advantage, it cannot be considered in and of
11 itself as wanton destruction not justified by military necessity. In the
12 absence of any destruction of property not justified by military
13 necessity in the Trial Chamber's legal findings, the Appeals Chamber
14 concludes, Judge Pocar dissenting, that a requisite element of the crime
15 was not satisfied and therefore overturns the finding that in this case
16 the Prosecution proved that destroying the old bridge constituted the
17 crime of wanton destruction of cities, towns or villages, or devastation
18 not justified by military necessity.
19 The Trial Chamber relied on these findings as a basis to find
20 that the HVO committed persecution and unlawful infliction of terror on
21 civilians when it destroyed the old bridge. At the appeal hearing, the
22 Appeals Chamber invited submissions as to what impact an error on wanton
23 destruction would have on these other two crimes. In light of the Trial
24 Chamber's finding that the HVO had a military interest in destroying the
25 old bridge and that it was a military target, the Appeals Chamber finds

1 that no reasonable trier of fact could have found that the HVO forces had
2 the specific intent to discriminate or the specific intent to commit
3 terror when it destroyed the old bridge. The Appeals Chamber reverses,
4 Judge Pocar dissenting, the Trial Chamber's finding that the destruction
5 of the old bridge constituted persecution and the unlawful infliction of
6 terror on civilians and acquits the Defence appellants of these crimes in
7 relation to the old bridge. The Appeals Chamber also considers that
8 these conclusions warrant the reversal of the Trial Chamber's further
9 finding that Prlic knew about HVO crimes in destroying the old bridge and
10 contributed to the JCE by attempting to minimise or deny this criminal
11 destruction.
12 The Trial Chamber further found that the HVO laid siege to east
13 Mostar from June 1993 to April 1994, confining the population to a
14 cramped enclave. The population could not leave east Mostar and was
15 forced to endure extremely harsh conditions without food, water,
16 electricity or appropriate medical care, while the HVO subjected east
17 Mostar to intense and uninterrupted shelling, engaged in a campaign of
18 sniper fire, deliberately targeted members of international
19 organisations, and hindered or blocked humanity aid. The Trial Chamber
20 concluded that these actions were specifically intended to discriminate
21 against the Muslims of Mostar municipality and to inflict terror on the
22 civilian population. Stojic, Praljak, and Petkovic contest these and
23 related findings. They fail to demonstrate any error by the Trial
24 Chamber. The Appeals Chamber dismisses their challenges.
25 The Trial Chamber also found that, during attacks, the HVO

1 targeted and destroyed or significantly damaged ten mosques in east
2 Mostar, as well as Muslim property in Prozor municipality. The Trial
3 Chamber, however, overlooked its finding that these incidents did not
4 qualify as a grave breach of the Geneva Conventions, and neglected to
5 enter convictions for wanton destruction as a violation of the laws or
6 customs of war. This was an error, and the Appeals Chamber allows the
7 Prosecution's ground of appeal in this respect but declines to enter new
8 convictions on appeal.
9 With respect to the attacks in Gornji Vakuf municipality in
10 January 1993, the Trial Chamber found that the HVO attacked four
11 villages, including Dusa, which the HVO shelled indiscriminately, thereby
12 killing seven civilians. The Trial Chamber found that the attack on Dusa
13 was indiscriminate because the HVO: (1) used weapons - more
14 specifically, "shells" - the nature of which makes it impossible to
15 distinguish military from civilian targets; and (2) made no efforts to
16 allow the civilian population to flee. Stojic and Praljak argue that the
17 Trial Chamber erred when concluding that shells are inherently
18 indiscriminate and in this regard that the house destroyed by the HVO in
19 Dusa was a legitimate military target. The Appeals Chamber finds that
20 the Trial Chamber's conclusion in relation to the nature of shells was
21 not based on any evidence that the weapons used during the attack were
22 inevitably indiscriminate. Absent such a basis, the Appeals Chamber
23 reverses the finding that "shells" are inherently indiscriminate. The
24 Trial Chamber's remaining finding is insufficient for a reasonable trier
25 of fact to conclude that the attack on Dusa was indiscriminate. Because

1 the Trial Chamber's reasoning with respect to Dusa applied equally to the
2 attacks on the other three villages, the Appeals Chamber also reverses
3 the finding that these attacks were indiscriminate.
4 The Trial Chamber relied on the indiscriminate nature of this
5 attack to substantiate its finding that the HVO forces had the mens rea
6 for murder and wilful killing. The Prosecution argues that the Trial
7 Chamber reasonably rejected the argument that the HVO aimed at legitimate
8 military targets, and if the attack was not indiscriminate, then it was a
9 deliberate attack on civilians. Given the combat activity and the
10 position of the defenders of the village, the Appeals Chamber finds that
11 no reasonable trier of fact could have concluded that the HVO forces in
12 Dusa possessed the mens rea for murder and wilful killing. The Trial
13 Chamber's factual error occasioned a miscarriage of justice and the
14 Appeals Chamber reverses the subsequent findings and convictions in
15 relation to the killings in Dusa. The Appeals Chamber also reverses the
16 Trial Chamber's findings on the wanton destruction of property during the
17 attacks on the four villages on the same day and the related convictions
18 for persecution.
19 The reversal of the findings in relation to the Dusa killings
20 also impacts the Trial Chamber's conclusion that the HVO engaged in a
21 clear pattern of murderous conduct from January until June 1993, when the
22 siege of east Mostar started. The Appeals Chamber therefore considers
23 that the Trial Chamber's remaining findings establish that wilful killing
24 and murder were part of the JCE's common criminal purpose only as of
25 June 1993 and not from January 1993 until June 1993. Consequently, the

1 Appeals Chamber reverses the Defence appellants' conviction for the
2 murder of two unarmed men in April 1993 in Toscanica, Prozor
3 municipality, as being outside the scope of the JCE. The Appeals Chamber
4 also finds that this reversal impacts the reasonableness of the Trial
5 Chamber's conclusion that Prlic could have foreseen the possible
6 commission of these crimes and other murders that took place in
7 April 1993 and willingly took this risk and reverses this conclusion.
8 The Trial Chamber also found that following these attacks on Dusa
9 and other villages, HVO soldiers set fire to the houses of Bosnian
10 Muslims, illegally arrested and detained civilians, and forcibly removed
11 and unlawfully displaced women, children and elderly persons. Praljak
12 appeals against these findings. However, he fails to substantiate his
13 allegations of error and his arguments are therefore dismissed.
14 I now turn to the Trial Chamber's findings on the JCE and the
15 responsibility of the Defence appellants pursuant to the first and third
16 categories of this mode of liability. The Appeals Chamber's
17 considerations of these grounds of appeal amounts to the majority of the
18 appeal Judgement. For the sake of brevity, I will focus only on key
19 outcomes. Before doing so, I note that, in light of his dissenting
20 opinion on the scope of the JCE charged by the Prosecution, Judge Pocar
21 does not join the majority opinion with respect to its findings that
22 Counts 2, 3, and 21 constitute JCE I crimes.
23 I first address the Defence appellants' contentions concerning
24 the existence of JCE liability in customary international law. Prlic,
25 Praljak, Coric, and Pusic maintain that there are cogent reasons for the

1 Appeals Chamber to depart from its prior jurisprudence that JCE, in all
2 its forms, was a mode of liability firmly established in customary
3 international law at the relevant time. They have failed to demonstrate
4 any such cogent reasons and their contentions are dismissed.
5 Turning next to how the Trial Chamber described the ultimate
6 purpose of the JCE, Prlic, Stojic, Praljak, and Pusic challenge the Trial
7 Chamber's finding that this ultimate purpose was shared by Franjo Tudjman
8 and other leaders and was aimed at setting up a Croatian entity that
9 reconstituted earlier borders and that facilitated the reunification of
10 the Croatian people. The Appeals Chamber finds that they have not
11 demonstrated that the Trial Chamber misinterpreted the relevant evidence,
12 disregarded any evidence, or otherwise erred in reaching its conclusion.
13 They, along with Petkovic, also allege a variety of factual errors
14 underpinning the Trial Chamber's conclusion concerning the ultimate
15 purpose of the joint criminal enterprise. Their arguments are lacking
16 merit and are dismissed.
17 All six Defence appellants challenge the Trial Chamber's
18 conclusion that the common criminal purpose shared by the JCE members was
19 the "domination by Croats of the Croatian Republic of Herceg-Bosna
20 through ethnic cleansing of the Muslim population." In particular, they
21 allege errors with regards to this definition of the common criminal
22 purpose, the Trial Chamber's approach to its scope and subsequent
23 expansion, and the findings on the stages of its implementation. Despite
24 the extent of their appeals, none of the Defence appellants demonstrate
25 any error of fact or law in the Trial Chamber's consideration of these

1 issues.
2 Prlic challenges the Trial Chamber's finding that he was a
3 principal member of the JCE and that he significantly contributed to it
4 from January 1993 to April 1994, including through his involvement in
5 blocking humanitarian aid as well as in the mass arrests of Muslims, the
6 participation in planning the attack on Gornji Vakuf municipality, the
7 eviction and movement of the population, and the concealment of crimes.
8 Prlic submits that the Trial Chamber erred with respect to his powers in
9 both civilian and military matters, the ways in which he significantly
10 contributed to the JCE, his intent, and his ability to foresee crimes not
11 within the scope of the JCE and willingness to accept this risk. The
12 Appeals Chamber finds no such error, and dismisses his appeal in this
13 respect.
14 Stojic alleges that the Trial Chamber erred in finding that he
15 commanded and had effective control over the HVO and its military police,
16 that he failed to prevent and punish their crimes, that he used the HVO
17 and its military police to commit crimes, and that he significantly
18 contributed to the JCE. Stojic also challenges the Trial Chamber's
19 findings on his knowledge of crimes in the various municipalities and
20 detention centres. Having examined his arguments, the Appeals Chamber
21 finds that he fails to establish that the Trial Chamber reached its
22 conclusions in error. However, the Appeals Chamber grants his appeal of
23 the finding that he learned and accepted that civilians, who were
24 relocated from Prozor Secondary School, were being detained in Ljubuski
25 prison in July 1993, but considers that this does not affect his overall

1 responsibility for these crimes as a member of the JCE. The Appeals
2 Chamber also finds that the Trial Chamber failed to provide a reasoned
3 opinion on Stojic's intent for the crime of unlawful infliction of terror
4 on civilians but concludes that Stojic fails to show how this error
5 invalidates his conviction for this crime. Nor has Stojic demonstrated
6 any error in the Trial Chamber's findings that he specifically intended
7 to discriminate against the Muslim population, intended to commit crimes
8 in various municipalities and detention centres, and willingly took the
9 risk that rape, sexual assault, and thefts would take place. His appeals
10 are dismissed.
11 Praljak appeals the findings that he wielded command authority
12 over the HVO and its military police, that he was a conduit between the
13 Croatian government and the HVO in furtherance of the JCE, and that he
14 significantly contributed to the JCE with the requisite intent. He also
15 challenges the Trial Chamber's conclusions concerning his involvement,
16 knowledge, and intent for crimes committed in various municipalities and
17 detention centres. The Trial Chamber stated that when Praljak
18 relinquished his functions within the HVO Main Staff on 9 November 1993,
19 he ceased to be a member of the JCE. The Trial Chamber, however, failed
20 to provide a reasoned opinion as to whether it convicted him for crimes
21 occurring after 9 November 1993, in particular, the destruction of seven
22 mosques in east Mostar that could not reasonably be found to have
23 occurred before this date, and also sniping incidents committed in east
24 Mostar the following year. The Appeals Chamber finds that Praljak cannot
25 be held responsible for crimes occurring after 9 November 1993. The

1 Appeals Chamber also finds that the Trial Chamber failed to provide a
2 reasoned opinion on Praljak's intent for the crime of unlawful infliction
3 of terror on civilians but concludes that Praljak fails to show how this
4 error invalidates his conviction for this crime. The Appeals Chamber
5 also grants Praljak's appeal that no reasonable trier of fact could have
6 concluded that he facilitated the murders and property destruction that
7 took place in Stupni Do, Vares municipality, on 23 October 1993.
8 Praljak, however, has not demonstrated an error in the finding that he
9 participated in the planning and direction of the operations in Vares
10 municipality, and the Appeals Chamber affirms his contribution in this
11 regard. The remainder of Praljak's challenges are dismissed.
12 Petkovic contends that the Trial Chamber erred with regard to his
13 powers and functions, his involvement in crimes committed in
14 municipalities and detention centres, his intent, and his ability to
15 foresee crimes not within the scope of the JCE and willingness to accept
16 this risk, as well as his responsibility for crimes committed by certain
17 groups. With respect to the murders and property destructions in Stupni
18 Do, as well as arrests of Muslim men in Vares town, the Appeals Chamber
19 finds that there was insufficient support for a reasonable trier of fact
20 to conclude that Petkovic directly contributed to these crimes. This has
21 no impact, however, on the Trial Chamber's findings that Petkovic was
22 informed of these crimes, failed to take measures against the
23 perpetrators, launched a fake investigation with regard to Stupni Do, and
24 accepted these crimes. The Appeals Chamber also finds that the Trial
25 Chamber erroneously concluded without referring to any evidence that

1 Petkovic knew that the Bruno Busic Regiment committed crimes in Gornji
2 Vakuf municipality in January 1993, even though there was sufficient
3 support for its conclusion that Petkovic learned of the regiment's crimes
4 three months later. The Appeals Chamber reverses the finding that
5 Petkovic contributed to the regiment's crimes by ordering its
6 redeployment while knowing of the crimes it committed before April 1993.
7 Finally, the Appeals Chamber grants Petkovic's appeal as to his
8 responsibility based on the first category of JCE responsibility for the
9 destruction of two mosques that occurred before the Trial Chamber found
10 that destruction or wilful damage to religious institutions was part of
11 the JCE's common criminal purpose. The findings of the Trial Chamber,
12 however, support responsibility for the destruction of these mosques
13 pursuant to the third category of JCE responsibility, and the Appeals
14 Chamber finds that Petkovic is so responsible. Petkovic's appeal is
15 otherwise dismissed.
16 Coric challenges the Trial Chamber's findings related to his JCE
17 contribution, as well as his mens rea, that is, both his intent and his
18 ability to foresee crimes not within the scope of the JCE combined with
19 his willingness to take the risk. The Appeals Chamber observes that he
20 repeats arguments that were unsuccessful at trial without any
21 demonstration that their rejection by the Trial Chamber constitutes an
22 error warranting appellate intervention. Coric also regularly fails to
23 identify the findings that he purports to contest. He misrepresents the
24 Trial Chamber's factual findings and puts forward arguments that are
25 undeveloped, irrelevant or obscure. With respect to his submissions that

1 are in accordance with the standard of appellate review, the Appeals
2 Chamber finds that they fail to demonstrate an error. In particular, he
3 has not demonstrated any error in the Trial Chamber's conclusion
4 concerning his powers, his involvement in HVO detention centres, and his
5 involvement in other crimes committed in municipalities. Coric's
6 challenges are, therefore, dismissed.
7 Pusic appeals against the Trial Chamber's finding that he was a
8 member of the JCE from April 1993 until April 1994, which the Trial
9 Chamber based on his powers and contributions to crimes in the HVO
10 network of detention centres, through prisoner exchanges and in various
11 municipalities, his spreading of false information in relation to HVO
12 crimes and his intent. The Appeals Chamber finds merit in some aspects
13 of his appeal and accordingly overturns three findings of the Trial
14 Chamber's with respect to Pusic's contribution to the joint criminal
15 enterprise. Nevertheless, the Appeals Chamber upholds a majority of the
16 Trial Chamber's findings, including those which formed the bedrock for
17 the Trial Chamber's conclusion that he significantly contributed to the
18 JCE. These related to his role in organising the release of Muslim
19 detainees to ABiH-held territories or to third countries and his role as
20 the link between the network of HVO detention centres and the most
21 important JCE members. The Appeals Chamber finds that Pusic has failed
22 to demonstrate an error in the Trial Chamber's conclusion that he
23 contributed significantly to the JCE and intended the crimes which formed
24 part of it.
25 Turning now to the Prosecution's appeal, the Prosecution argues

1 that the Trial Chamber erred in assessing the appellants' responsibility
2 pursuant to the third category of JCE responsibility. All six Defence
3 appellants respond that these acquittals were appropriate. The Appeals
4 Chamber considers, Judge Liu dissenting, that a close examination of the
5 Trial Chamber's Judgement reveals that the Trial Chamber frequently used
6 language indicating the use of an incorrect foreseeability standard for
7 this category of JCE responsibility. In light of the context and manner
8 in which the Trial Chamber used the terminology in question, at least
9 with respect to the incidents specifically challenged by the Prosecution,
10 the Appeals Chamber finds, Judge Liu dissenting, that when assessing
11 foreseeability, the Trial Chamber applied a higher threshold than
12 required by correct legal standard. This was an error of law. The
13 Appeals Chamber also finds, Judge Liu dissenting, that the Trial Chamber
14 committed an error of law by failing to provide a reasoned opinion for
15 why it found Prlic, Stojic, Praljak, Petkovic, and Coric not responsible
16 for numerous crimes pursuant to the third category of joint criminal
17 enterprise.
18 Collectively, these errors concern Prlic's alleged responsibility
19 for 26 separate incidents of murder, sexual violence, theft, and
20 destruction of mosques; Stojic's alleged responsibility for 30 such
21 incidents; Praljak's alleged responsibility for 32 such incidents;
22 Petkovic's alleged responsibility for 18 such incidents, with the
23 exception of destruction -- expect none for the destruction of mosques;
24 and finally, Coric's alleged responsibility for 31 such incidents; and
25 Pusic's alleged responsibility for 35 such incidents.

1 The Prosecution requests that the Appeals Chamber correct these
2 errors, engage in a de novo review, find that requisite elements are met,
3 overturn the acquittals, convict the Defence appellants, and increase
4 their sentences accordingly. In the alternative, the Prosecution asks
5 the Appeals Chamber to exercise its discretion to remand this issue to a
6 Bench of the Tribunal to apply the correct legal standards to the trial
7 records. The Appeals Chamber observes that if it were to conduct its own
8 review of the relevant evidence and factual findings of the Trial
9 Chamber, it would have to make findings on each of the six Defence
10 appellants' responsibility for the numerous incidents, involving four
11 different types of crimes that occurred in six municipalities and three
12 detention centres over a period of 11 months. Moreover, the evidence
13 concerning mens rea is of a circumstantial nature pertaining to the
14 conduct, knowledge and intent over more than a year in various locations.
15 Conducting such an analysis would amount to a re-evaluation of the entire
16 trial record and in effect require the Appeals Chamber to decide the case
17 anew. However, an appeal is not a trial de novo and the Appeals Chamber
18 cannot be expected to act as a primary trier of fact. The Appeals
19 Chamber accordingly declines to determine whether the elements of the
20 third category of JCE liability are met with respect to the incidents at
21 issue. Moreover, taking into account, inter alia, the protracted length
22 of the proceedings which have been ongoing for more than 13 years, with
23 sentences ranging from 10 to 25 years of imprisonment, the Appeals
24 Chamber also declines to order a retrial or remit limited issues for
25 further proceedings.

1 With respect to certain incidents concerning the killing of
2 persons who were detained, the Appeals Chamber finds, Judge Liu
3 dissenting, that the Prosecution has shown that all reasonable doubt as
4 to Prlic's and Petkovic's guilt under the third category of JCE
5 responsibility has been eliminated and that no reasonable trier of fact
6 could have acquitted them for these crimes. Thus, the Trial Chamber
7 committed errors of fact. The Appeals Chamber declines to enter new
8 convictions in this regard on appeal.
9 The Prosecution also alleges that the Trial Chamber failed to
10 adjudicate the superior responsibility of Prlic, Stojic, Praljak,
11 Petkovic and Coric who respond either that there was no such error or
12 that it would be unfair to remedy the error by entering a conviction on
13 appeal. The Appeals Chamber recalls that when an accused is charged
14 cumulatively under both Articles 7(1) and 7(3) of the Statute, the Trial
15 Chamber is legally required to make findings as to whether the accused
16 incurred superior responsibility. The Appeals Chamber finds that the
17 Trial Chamber erred by failing to make such findings on whether Prlic,
18 Stojic, Praljak, Petkovic, and Coric bear superior responsibility for
19 failing to punish certain crimes. The Appeals Chamber grants this aspect
20 of the Prosecution's appeal. However, it declines to embark on a de novo
21 determination of their superior responsibility or to order a remittance
22 or retrial of this case for that purpose.
23 The Trial Chamber did find Coric responsible as a superior for
24 crimes committed in Prozor municipality in October 1992, specifically for
25 the destruction of around 75 Muslim homes and other property as well as

1 the theft of vehicles. Coric disputes the Trial Chamber's assessment of
2 the evidence as well as its findings that he exercised effective control
3 over the perpetrators, knew or had reason to know of the crimes, and
4 failed to punish his subordinates. The Appeals Chamber finds that Coric
5 has not demonstrated any error by the Trial Chamber and dismisses his
6 appeal accordingly.
7 Coric also alleges that the Trial Chamber erred by entering
8 convictions cumulatively for grave breaches of the Geneva Conventions and
9 violations of the laws or customs of war, as well as for war crimes and
10 crimes against humanity. The Appeals Chamber finds that he misinterprets
11 the well-established legal standard that convictions can be entered where
12 there is a materially distinct element for the same set of crimes, and
13 that he fails to demonstrate any error by the Trial Chamber in entering
14 such convictions in this case. His argument is dismissed.
15 Sentencing.
16 Turning now to sentencing, all parties, except for Praljak,
17 appealed.
18 The Appeals Chamber finds merit in the Prosecution's argument
19 that the Trial Chamber failed to take into account Coric's superior
20 responsibility in sentencing. The Appeals Chamber dismisses all other
21 grounds of appeal raised by the Prosecution as well as by the Defence
22 appellants concerning gravity, aggravating circumstances, mitigating
23 circumstances, and comparisons to sentencing practices in the former
24 Yugoslavia and to other cases.
25 As for the calculation of time already served, Stojic, Petkovic,

1 Coric and Pusic submit that the Trial Chamber wrongly excluded their time
2 spent on provisional release, including while being under home
3 confinement or receiving medical treatment. The Appeals Chamber recalls
4 that Rule 101(C) of the Rules provides that credit shall be given for the
5 period "during which the convicted person was detained in custody"
6 pending surrender, trial or appeal.
7 The Appeals Chamber considers, Judge Liu dissenting in part, that
8 the provisional release imposed on Stojic, Petkovic, Coric, and Pusic
9 fall short of being tantamount to detention in custody and therefore
10 rejects their submissions that the Trial Chamber erred when it excluded
11 the periods of their provisional release when calculating the time that
12 they already served while being detained in custody.
13 Finally, with regard to the impact of the Appeals Chamber's
14 findings on the sentence imposed by the Trial Chamber, the Appeals
15 Chamber has taken into account the extent to which it has reversed
16 certain convictions and findings of culpability for all six Defence
17 appellants. All six, however, remain convicted of numerous and very
18 serious crimes.
19 I shall now read out the full operative text of the Appeals
20 Chamber disposition.
21 For the foregoing reasons, the Appeals Chamber,
22 Pursuant to Article 25 of the Statute and Rules 117 and 118 of
23 the Rules;
24 Noting the respective written submissions of the parties and the
25 arguments presented at the appeal hearing on 20 to 24 and 27 to 28 of

1 March of this year;
2 Sitting in open session;
3 Mr. Prlic, will you please stand.
4 With respect to Jadranko Prlic,
5 Dismisses Prlic's appeal in its entirety;
6 Reverses, as a result of granting Stojic's subground of appeal
7 45.1 and Praljak's ground of appeal 12, Prlic's convictions as a
8 participant in the joint criminal enterprise for, first, persecution,
9 murder and inhumane acts as crimes against humanity and wilful killing
10 and inhumane treatment as grave breaches of the Geneva Conventions with
11 regard to the killing of seven civilians in Dusa, Gornji Vakuf
12 municipality. That's Counts 1, 2, 3, 15, and 16 all in part. Secondly,
13 murder, as a crime against humanity and wilful killing as a grave breach
14 of the Geneva Convention for the killing of two unarmed men in Toscanica,
15 Prozor municipality. That is Counts 2 and 3, both in part. And three,
16 murder, as a crime against humanity and wilful killing as a grave breach
17 of the Geneva Conventions for the murders linked to detentions committed
18 in Jablanica municipality in April 1993, Counts 2 and 3, both in part;
19 Reverses, as a result of allowing the additional ground of appeal
20 submitted by, variously, Prlic, Stojic, Praljak, and Coric in response to
21 the Prosecution's ground of appeal 3, Prlic's convictions as a
22 participant in the JCE for, first, persecution as a crime against
23 humanity in relation to destruction during attacks of houses in Gornji
24 Vakuf municipality on 18 January 1993. That is Count 1, in part. And,
25 two, Judge Pocar dissenting, persecution as a crime against humanity and

1 unlawful infliction of terror on civilians as a violation of the laws or
2 customs of war in relation to the destruction of the old bridge of
3 Mostar, Counts 1 and 25, both in part;
4 Reverses proprio motu Prlic's conviction as a participant in a
5 JCE for extensive destruction of property, not justified by military
6 necessity and carried out unlawfully and wantonly as a grave breach of
7 the Geneva Conventions, in relation to the destruction of houses and
8 buildings in Vares municipality, Count 19, in part;
9 Affirms, Judge Liu dissenting with respect to Count 25 and
10 Judge Pocar dissenting in part with respect to Counts 2, 3, and 21, the
11 remainder of Prlic's convictions under Counts 1 to 13, 15 to 16, 18 to
12 19, 21 to 25;
13 Allows, Judge Liu dissenting, the Prosecution's ground of appeal
14 1(C) concerning Prlic's responsibility as a participant in a JCE for the
15 incidents as set out in paragraphs 3079 and 3114 of this Judgement, but
16 declines to quash the acquittals in this regard, or to order a retrial or
17 a remittance;
19 1(E) in part and finds, Judge Liu dissenting, that the Trial Chamber
20 incorrectly found Prlic not guilty for committing through his
21 participation in a JCE murder as a crime against humanity and wilful
22 killing as a grave breach of the Geneva Conventions with respect to the
23 killings of: (1) a Muslim detainee in Dretelj prison on 16 July 1993; a
24 detainee in Vojno Detention Centre of 5 December 1993, Counts 2 and 3,
25 both in part, but declines to enter new convictions against him in this

1 regard;
2 Allows the Prosecution's ground of appeal 2 concerning Prlic's
3 superior responsibility for the incidents as set out in paragraphs 3134
4 and 3151 of this Judgement, but declines to quash the acquittals in this
5 regard or to order a retrial or a remittance;
6 Allows the Prosecution ground of appeal 3 in part and finds that
7 the Trial Chamber erred by failing to enter convictions for wanton
8 destruction of cities, towns or villages, or devastation not justified by
9 military necessity as a violation of the laws or customs of war with
10 respect to the destruction during attacks of, first, Muslim property in
11 Prozor municipality between May or June and early July 1993; and,
12 secondly, mosques in east Mostar, Mostar municipality, between June and
13 December 1993, Count 20, in part, but declines to enter new convictions
14 against Prlic in this regard;
15 Dismisses the Prosecution appeal concerning Prlic in all other
16 respects;
17 Affirms the sentence of 25 years of imprisonment, subject to
18 credit being given under Rule 101(C) of the Rules for the period he has
19 already spent in detention.
20 Mr. Prlic you may be seated.
21 Mr. Stojic, will you please stand.
22 With respect to Bruno Stojic,
23 Grants Stojic's subground of appeal 45.1 and reverses his
24 conviction as a participant in a JCE for persecution, murder, and
25 inhumane acts as crimes against humanity and wilful killings and inhumane

1 treatment as grave breaches of the Geneva Conventions with regard to the
2 killing of seven civilians in Dusa, Gornji Vakuf municipality. That's
3 Counts 1, 2, 3, 15 and 16, all in part;
4 Dismisses, Judge Liu dissenting in part and Judge Pocar
5 dissenting in part, Stojic's appeal in all other respects;
6 Reverses, as a result of granting of Stojic's subground of appeal
7 45.1 and Praljak's ground of appeal 12, Stojic's conviction as a
8 participant in a JCE for murder as a crime against humanity and wilful
9 killing as a grave breach of the Geneva Convention for the killing of two
10 unarmed men in Toscanica, Prozor municipality, Counts 2 and 3, both in
11 part;
12 Reverses, as a result of allowing the additional grounds of
13 appeal submitted by, variously, Prlic, Stojic, Praljak and Coric in
14 response to the Prosecution's ground of appeal 3, Stojic's convictions as
15 a participant in a JCE for persecution as a crime against humanity in
16 relation to the destruction, during attacks, of houses in Gornji Vakuf
17 municipality on 18 January 1993, count 1, in part; and (2) Judge Pocar
18 dissenting, persecution as a crime against humanity and unlawful
19 infliction of terror on civilians as a violation of the laws or customs
20 of war in relation to the destruction of the old bridge of Mostar, Counts
21 1 and 25, both in part;
22 Reverses proprio motu Stojic's conviction as a participant in a
23 joint criminal enterprise for extensive destruction of property, not
24 justified by military necessity and carried out unlawfully and wantonly,
25 as a grave breach of the Geneva Conventions, in relation to the

1 destruction of houses and buildings in Vares municipality, Count 19, in
2 part;
3 Reverses proprio motu Stojic's conviction as a participant in a
4 JCE, under JCE III responsibility, for murder as a crime against humanity
5 and wilful killing as a grave breach of the Geneva Conventions with
6 respect to the killings of detainees from the Heliodrom during forced
7 labour or while being used as human shields, but affirms his convictions
8 for the same crimes in relation to these killings under JCE I liability.
9 That's Counts 2 and 3, both in part;
11 Judge Pocar dissenting with respect to Counts 2, 3, and 21, the remainder
12 of Stojic's convictions under Counts 1 to 13, 15 to 16, 18 to 19, 21 to
13 25;
15 1(A) and 1(C) concerning Stojic's responsibility as a participant in a
16 joint criminal enterprise for incidents as set out in paragraphs 3018 and
17 3030 of this Judgement, but declines to quash the acquittals in this
19 Allows the Prosecution's ground of appeal 2 concerning Stojic's
23 Allows the Prosecution's ground of appeal 3 in part and finds
24 that the Trial Chamber erred by failing to enter convictions for wanton

2 respect to the destruction, during attacks, of, first, Muslim property in
3 Prozor municipality between May or June or early July 1993; secondly,
4 mosques in east Mostar, Mostar municipality, between June and 15
5 November 1993. That's Count 20, in part. But declines to enter new
6 convictions against Stojic in this regard;
7 Dismisses the Prosecution's appeal concerning Stojic in all other
8 respects;
12 Mr. Stojic, you may be seated.
13 THE INTERPRETER: Kindly slow down for the purposes of
14 interpretation. Thank you.
15 JUDGE AGIUS: Okay. Thank you. Sorry about that. I will try to
16 slow down.
17 Mr. Praljak, thank you for standing.
18 With respect to Slobodan Praljak,
19 Grants ground of appeal 12 and reverses his conviction as a
20 participant in a JCE for persecution, murder, and inhumane acts as crimes
21 against humanity and wilful killing and inhumane treatment as grave
22 breaches of the Geneva Convention with regard to the killing of seven
23 civilians in Dusa, Gornji Vakuf municipality. That's Counts 1, 2, 3, 15,
24 and 16, all in part;
25 Grants Praljak's subground of appeal 44.1 in part to the extent

1 that it concerns Praljak's responsibility as a participant in a JCE for
2 the incidents as set out in paragraph 2003 of this Judgement;
3 Dismisses Praljak's appeal in all other respects;
5 45.1 and Praljak's ground of appeal 12, Praljak's convictions as a
7 killing as a grave breach of the Geneva Conventions for the killing of
8 two unarmed men in Toscanica, Prozor municipality;
10 appeal submitted by, variously, Prlic, Stojic, Praljak, and Coric in
11 response to the Prosecution's ground of appeal 3, Praljak's convictions
12 as a participant in a JCE for, first, persecution as a crime against
13 humanity in relation to the destruction, during attacks, of houses in
14 Gornji Vakuf municipality on 18 January 1993. That's Count 1, in part.
15 And (2), Judge Pocar dissenting, persecution as a crime against humanity
16 and unlawful infliction of terror on civilians as violation of the laws
17 or customs of war in relation to the destruction of the old bridge of
18 Mostar;
19 Reverses proprio motu Praljak's conviction as a participant in a
21 necessity and carried out unlawfully and wantonly, as a grave breach of
22 the Geneva Conventions in relation to the destruction of houses and
23 buildings in Vares municipality, Count 19 in part;

1 of Praljak's convictions under Counts 1 to 3, 6 to 13, 15 and 16, 18 and
2 19, and 21 to 25;
4 1(A) and 1(C) concerning Praljak's responsibility as a participant in a
5 JCE for the incidents as set out in paragraphs 3018, 3030, 3079, and 3114
6 of this Judgement, but declines to quash the acquittals in this regard,
7 or to order a retrial or a remittance;
8 Allows the Prosecution's ground of appeal 2 concerning Praljak's
16 respect to the destruction, during attacks, of: (1) Muslim property in
17 Prozor Municipality between May or June and early July 1993; and (2)
18 mosques in East Mostar, Mostar Municipality, between June and November
19 1993 (Count 20 in part), but declines to enter new convictions against
20 Praljak in this regard;
21 Dismisses the Prosecution's appeal concerning Praljak in all
22 other respects;
23 Affirms the sentence of 20 years of imprisonment subject to

1 Mr. Praljak, you may be seated.
2 THE APPELLANT PRALJAK: [No interpretation].
3 JUDGE AGIUS: Stop, please. Please sit down.
4 Mr. Petkovic, will you please stand.
5 With respect to Milivoj Petkovic,
6 Grants Petkovic's subground of appeal 5.2.2.4 in part and the
7 Prosecution's ground of appeal 1 in part and reverses the Trial Chamber's
8 findings that Petkovic was responsible as a participant in a JCE, under
9 JCE --
10 THE APPELLANT PRLIC: [Microphone not activated]. There's a
11 problem here. Let's show a little bit profession. He is not in good
12 position here.
13 THE APPELLANT PRALJAK: [Interpretation] I have taken poison.
14 MS. FAUVEAU-IVANOVIC: [No interpretation].
15 JUDGE AGIUS: Okay. We suspend the -- we suspend -- please, the
16 curtains.
17 MS. FAUVEAU-IVANOVIC: Sorry, Your Honours -- [No
18 interpretation].
19 [Trial Chamber confers]
20 JUDGE AGIUS: Guard, don't take away the glass that he used when
21 he drank something.
22 MR. PRLIC: [Microphone not activated]. We need a doctor here.
23 JUDGE AGIUS: Yes. Registrar, please, we are suspending the
24 sitting for 15 minutes. But, in the meantime, please, someone liaise
25 with my office.

1 All right. The hearing is adjourned for 15 minutes.
2 --- Break taken at 11.44 a.m.
3 [The Appellant Praljak not present]
4 --- On resuming at 2.22 p.m.
5 JUDGE AGIUS: Good afternoon. The Appeals Chamber now reconvenes
6 the proceedings.
7 I would like to first start with an update, since we were obliged
8 to suspend the hearing earlier on today. I have consulted with my
9 colleagues, and the requirements of the right to a fair trial, including
10 the right to a public judgement, compel me to continue with the
11 pronouncement of the Judgement as it concerns the other Defence
12 appellants in this case, namely, Mr. Petkovic, Mr. Coric, and Mr. Pusic.
13 They have a right to know the result of their own case and it would also
14 be unfair to keep them waiting any longer. As a consequence, I will now
15 move to the operative part of the disposition as it concerns
16 Mr. Petkovic, Mr. Coric, and Mr. Pusic.
17 I would also like to explain why we are meeting in this courtroom
18 rather than where we were before. The reason is that Courtroom I now is
19 a crime scene, and the Dutch authorities have already made it secure for
20 the purpose of the investigation that will take place.
21 Mr. Petkovic, I had started already reading the disposition, the
22 operative part of the disposition, as it relates to you. I will start
23 again.
24 For the record, I also wish to underline that Appellant Praljak
25 is absent from the courtroom.

1 With respect to Milivoj Petkovic -- you can follow the
2 proceedings in a language that you can understand, Mr. Petkovic? All
3 right.
4 Grants Petkovic's subground of appeal 5.2.2.4 in part and the
5 Prosecution's ground of appeal 1 in part and reverses the Trial Chamber's
6 findings that Petkovic was responsible as a participant in a JCE, under
7 JCE I responsibility, for destruction or wilful damage done to
8 institutions dedicated to religion or education as a violation of the
9 laws or customs of war, in relation to the destruction of Baba Besir
10 mosque, in Mostar municipality, and the Skrobucani mosque, in Prozor
11 municipality, Count 21, in part, but finds him responsible in this regard
12 as a participant in a JCE, under JCE III liability;
13 Dismisses, Judge Liu dissenting in part and Judge Pocar
14 dissenting in part, Petkovic's appeal in all other respects;
16 45.1 and Praljak's ground of appeal 12, Petkovic's convictions as a
17 participant in a JCE for, first, persecution, murder, and inhumane acts
18 as crimes against humanity and wilful killing and inhumane treatment as
19 grave breaches of the Geneva Conventions with regard to the killing of
20 seven civilians in Dusa, Gornji Vakuf municipality. And that relates to
21 Counts 1, 2, 3, 15 and 16, all in part. And secondly, murder as a crime
22 against humanity and wilful killing as a grave breach of the
23 Geneva Conventions for the killing of two unarmed men in Toscanica,
24 Prozor municipality, Counts 2 and 3, both in part;
25 Reverse, as a result of allowing the additional grounds of appeal

1 submitted by, variously, Prlic, Stojic, Praljak and Coric in response to
2 the Prosecution's ground of appeal 3, Petkovic's conviction as a
3 participant in a JCE for: persecution as a crime against humanity in
5 municipality, on 18 January 1993. That deals with Count 1, in part.
6 And, secondly, Judge Pocar dissenting, persecution as a crime against
7 humanity and unlawful infliction of terror on civilians as a violation of
8 the laws or customs of war in relation to the destruction of the old
9 bridge of Mostar. That's Count 1 and 25, both in part;
10 Reverses proprio motu Petkovic's convictions as a participant in
11 a JCE for extensive destruction and appropriation of property, not
12 justified by military necessity and carried out unlawfully and wantonly,
13 as grave breaches of the Geneva Conventions, in relation to the
14 destruction of houses and buildings and the appropriation of property
15 committed in Vares municipality, Counts 19 and 22, both in part;
17 Judge Pocar dissenting with respect to Counts 2 and 3 and in part Count
18 21, the remainder of Petkovic's convictions under Counts 1 to 13, 15-16,
19 18-19, 21 to 25;
21 1(A) and 1(C) concerning Petkovic's responsibility as a participant in a
22 JCE for the incidents as set out in paragraphs 3018, 3030, 3079 and 3114
23 of the Judgement, but declines to quash the acquittals in this regard, or
24 to order a retrial or a remittance;

1 1(E) in part and finds, Judge Liu dissenting, that the Trial Chamber
2 incorrectly found Petkovic not guilty for committing through his
3 participation in a JCE murder as a crime against humanity and wilful
4 killing as a grave breach of the Geneva Conventions with respect to the
5 killings in Dretelj prison, of one Muslim detainee on 16 July 1993 and
6 three other detainees in mid-July 1993, Counts 2 and 3, both in part, but
7 declines to enter new convictions against him in this regard;
8 Allows the Prosecution ground of appeal 2 concerning Petkovic's
10 and 3151 of this judgement, but declines to quash the acquittals in this
14 destruction of cities, town or villages, or devastation not justified by
16 respect to the destruction, during attacks, of, first, Muslim property in
17 Prozor municipality between May or June and early July 1993; and (2)
18 mosques in east Mostar, Mostar municipality, between June and
19 December 1993, Count 20, in part, but declines to enter new convictions
20 against Petkovic in this regard;
21 Dismisses the Prosecution's appeal concerning Petkovic in all
22 other respects;
24 credit being given under Rule 101 of the Rules for the period he has

1 Mr. Petkovic, you may be seated.
2 Mr. Coric, would you please stand up?
3 With respect to Valentin Coric,
4 Grants Coric's ground of appeal 11 in part and reverses his
5 convictions as a participant in a JCE for crimes committed as of 10
6 November 1993;
7 Dismisses, Judge Liu dissenting in part, Coric's appeal in all
8 other respects;
10 45.1 and Praljak's ground of appeal 12, Coric's conviction as a
11 participant in a JCE for: persecution, murder, and inhumane acts as
12 crimes against humanity and wilful killing and inhumane treatment as
13 grave breaches of the Geneva Conventions with regard to the killing of
14 seven civilians in Dusa, Gornji Vakuf municipality. That covers Counts
15 1, 2, 3, 15 and 16, all in part. And, secondly, murder as a crime
16 against humanity and wilful killing as a grave breach of the
17 Geneva Conventions for the killing of two unarmed men in Toscanica,
18 Prozor municipality. That covers Counts 2 and 3, both in part;
20 appeal submitted by, variously, Prlic, Stojic, Praljak, and Coric, in
21 response to the Prosecution's ground of appeal 3, Coric's convictions as
22 a participant in a JCE for: persecution as crime against humanity in
24 municipality on 18 January 1993; and, Judge Pocar dissenting, persecution
25 as a crime against humanity and unlawful infliction of terror on

1 civilians as a violation of the laws or customs of war in relation to the
2 destruction of the old bridge of Mostar;
3 Reverses proprio motu Coric's conviction as a participant in a
6 the Geneva Conventions in relation to the destruction of houses and
7 buildings in Vares municipality;
9 Judge Pocar dissenting with respect to Counts 2 and 3, both in part, and
10 Count 21, the remainder of Coric's conviction under Counts 1 to 13,
11 15-16, 18-19, 21-25;
13 1(A) and 1(C) concerning Coric's responsibility as a participant in a JCE
14 for incidents as set out in paragraphs 3018, 3030, 3079 and 3114 of this
15 Judgement, but declines to quash the acquittals in this regard, or to
16 order a retrial or a remittance;
17 Allows the Prosecution's ground of appeal 2 concerning Coric's
19 and 3151 of this judgement, but declines to quash the acquittals in this
20 regard, or to order a retrial or a remittance;
25 respect to destruction, during attacks, of Muslim property in Prozor

1 municipality between May or June and early July 1993; and (2) mosques in
2 east Mostar, Mostar municipality, between June and 10 November 1993,
3 Count 20 in part, but declines to enter a new conviction against Coric in
4 this regard;
5 Grants the Prosecution's ground of appeal 4 concerning sentencing
6 in part insofar as it relates to Coric's superior responsibility;
7 Dismisses the Prosecution's appeal concerning Coric in all other
8 respects;
12 Mr. Coric, you may be seated.
13 Mr. Pusic is not here, but I will read the disposition.
14 First, we dismiss, Judge Liu dissenting in part, Pusic's appeal
15 in its entirety;
17 45.1 and Praljak's ground of appeal 12, Pusic's conviction as a
19 killing as a grave breach of the Geneva Conventions for the killing of
20 two unarmed men in Toscanica, Prozor municipality;
22 appeal submitted by, variously, Prlic, Stojic, Praljak, and Coric, in
23 response to the Prosecution's ground of appeal 3, and Judge Pocar
24 dissenting, Pusic's conviction as a participant in a JCE for persecution
25 as a crime against humanity and unlawful infliction of terror on

1 civilians as a violation of the laws or customs of war in relation to the
2 destruction of the old bridge of Mostar;
3 Reverses proprio motu Pusic's conviction as a participant in a
6 Geneva Conventions in relation to the destruction of houses and buildings
7 in Vares municipality;
8 Affirms, Judge Liu dissenting, with respect to Count 25 and
10 of Pusic's convictions under Counts 1-3, 6-13, 15-16, 18-19, 21, 24-25;
11 Allows, Judge Liu dissenting, the Prosecution's subground of
12 appeal 1(A) concerning Pusic's responsibility as a participant in a JCE
13 for incidents as set out in paragraphs 3018 and 3030 of the Judgement,
14 but declines to quash the acquittals in this regard, or to order a
15 retrial or a remittance;
16 Allows the Prosecution's grounds of appeal 3 in part and finds
20 respect to the destruction, during attacks, of Muslim property in Prozor
21 municipality between May or June and early July 1993; and, second,
22 mosques in east Mostar, Mostar municipality, between June and
23 December 1993, but declines to enter new convictions against Pusic in
24 this regard;
25 Dismisses the Prosecution's appeal concerning Pusic in all other

1 respects;
4 already spent in detention;
5 Rules that this Judgement shall be enforced immediately pursuant
6 to Rule 118 of the Rules;
7 Orders, pursuant to Rule 118(B) of the Rules, the arrest or
8 surrender of Berislav Pusic to the UNDU in The Hague to be facilitated as
9 early as practicable;
10 Orders, in accordance with Rules 103(C) and 107 of the Rules,
11 that the appellants are to remain in the custody of the Tribunal pending
12 the finalisation of arrangements for their transfer to the state where
13 their sentences will be served.
14 Judge Daqun Liu appends dissenting opinions, a partially
15 dissenting opinion, and a declaration.
16 Judge Fausto Pocar appends a dissenting opinion.
17 This concludes the appellate proceedings in this case.
18 Before we rise, I wish to also inform you that following my
19 instructions to the Registrar, the Dutch authorities have already
20 commenced an investigation into what happened this morning.
21 The Chamber now will rise. Thank you.
22 --- Whereupon the hearing adjourned at 2.43 p.m.
23
24
25

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Judgement (Open Session) Page 117

1 Wednesday, 29 November 2017

4 [The appellants entered court]

5 [The Appellant Pusic not present]

6 --- Upon commencing at 10.00 a.m.

7 JUDGE AGIUS: Good morning, everybody.

8 Madam Registrar, could you call the case, please.

9 THE REGISTRAR: Good morning, Your Honours. This is case number

11 Mr. Petkovic, Mr. Coric, and Mr. Pusic.

12 JUDGE AGIUS: I thank you. I am pleased to recognise the

13 presence of the Deputy Registrar of the Tribunal today.

16 MR. STRINGER: Good morning, Mr. President, Your Honours. For

17 the Prosecution, appearing is myself Douglas Stringer, with Laurel Baig,

18 Barbara Goy, Katrina Gustafson, Aditya Menon, and Janet Stewart.

19 JUDGE AGIUS: Thank you very much.

21 has waived his right to be present at the pronouncement of the appeal

22 Judgement today. So I'll just proceed to acknowledge the presence of the

24 For Mr. Prlic.

25 MR. KARNAVAS: Good morning, Your Honour. Michael Karnavas and

Wednesday, 29 November 2017 Case No. IT-04-74-A

2 JUDGE AGIUS: Thank you.

3 For Mr. Stojic.

4 MS. NOZICA: [Interpretation] Appearing on behalf of Mr. Stojic,

5 Senka Nozica and our legal consultant Aidan Ellis.

6 JUDGE AGIUS: Thank you.

7 For Mr. Praljak.

8 MS. PINTER: [Interpretation] Good morning, Your Honour. Good

11 from Paris appearing.

12 JUDGE AGIUS: Thank you.

13 For Mr. Petkovic.

14 MS. ALABURIC: [Interpretation] Good morning, Your Honour. On

15 behalf of Mr. Petkovic, Ms. Alaburic and Mr. Lazic.

16 JUDGE AGIUS: Thank you.

17 For Mr. Coric.

18 MS. TOMASEGOVIC-TOMIC: [Interpretation] Good morning, Your

19 Honours. Lead counsel Dijana Tomasegovic-Tomic and co-counsel

20 Drazen Plavec, appearing on behalf of Mr. Coric.

21 JUDGE AGIUS: Thank you.

22 And for Mr. Pusic.

23 MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honour. On

24 behalf of Mr. Pusic, Mr. Ibrisimovic and Mr. Sahota appearing.

25 JUDGE AGIUS: Before I proceed any further, I would like to

Wednesday, 29 November 2017 Case No. IT-04-74-A

2 proceedings in a language that they can understand.

3 THE APPELLANT PRLIC: Good morning, Mr. President, and members of

4 chamber. I'm able to follow --

5 JUDGE AGIUS: Thank you.

6 THE APPELLANT PRLIC: -- in a language which I've understood.

7 JUDGE AGIUS: Thank you.

9 THE APPELLANT STOJIC: [Interpretation] Good morning, Your Honour.

10 Everything is fine. Thank you.

11 JUDGE AGIUS: Thank you.

13 THE APPELLANT PRALJAK: [Interpretation] Thank you. I can follow

15 JUDGE AGIUS: Thank you.

17 THE APPELLANT PETKOVIC: [Interpretation] Good morning, Your

18 Honour. I can follow.

19 JUDGE AGIUS: Thank you.

20 And Mr. Coric.

21 THE APPELLANT CORIC: [Interpretation] Good morning, Your Honour.

22 Everything is fine. Thank you.

24 The Appeals Chamber is sitting today in accordance with Rule

25 117(D) of the Tribunal's Rules of Procedure and Evidence and the

Wednesday, 29 November 2017 Case No. IT-04-74-A