Mixed errors (law and fact)
|Appeal Judgement - 17.07.2008||
252. Although this sub-ground of appeal is presented as relating to an alleged error of law, the Appeals Chamber is of the view that it is more accurately characterized as a mixed error of law and fact. Hence, the Appeals Chamber will determine whether the conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached. However, before doing so, the Appeals Chamber will clarify the legal standard employed by the Trial Chamber in the Trial Judgement.
269. At the outset, the Appeals Chamber notes that, although Strugar qualifies the relevant alleged errors of the Trial Chamber as errors of law, it understands him to challenge both the Trial Chamber’s legal and factual conclusions with respect to defining the mens rea requirement of the crimes in question and its application to the conduct of JNA forces in the region of Dubrovnik on 6 December 1991. Hence, the Appeals Chamber will first examine the applicable law and then determine whether the factual conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached.
 The Appeals Chamber notes that the Trial Chamber made legal and factual findings with respect to Count 3 (attacks on civilians) and Count 5 (attacks on civilian objects) simultaneously (Trial Judgement, paras 277 et seq.). Strugar has not presented any argument concerning the Trial Chamber’s findings in relation the mens rea element of the crime of attack on civilian objects, given that, in light of its conlusion on cumulation, the Trial Chamber did not enter a conviction under Count 5. Both parties clarified that, in their views, the mens rea requirement of the crime of attack on civilians and the crime of attack on civilian objects are identical (AT. 137; AT. 212).