Replacing a conviction under Article 7(1)
|Appeal Judgement - 12.11.2009||
Having concluded that the Trial Chamber’s findings that Milošević planned and ordered the crimes resulting from the sniping incidents were unreasonable, the Appeals Chamber proceeded to analyse whether he could be held responsible for the same crimes as a superior for having failed to prevent and punish them.
278. However, the Appeals Chamber notes that its findings above do not exclude Milošević being held responsible for the sniping incidents under Article 7(3) of the Statute. The Appeals Chamber notes that the Indictment alleges Milošević’s responsibility for planning and ordering the crimes charged (and in addition or in the alternative, for aiding and abetting the planning, preparation and/or execution of the crimes), as well as for the crimes committed by his subordinates which he knew or had reason to know about and failed to take reasonable and necessary measures to prevent or punish.
279. The Trial Chamber concluded that there was a conflict between the Indictment and the Prosecution Closing Brief as to whether Milošević was charged under Article 7(3) in the alternative, or in addition to, Article 7(1). The Trial Chamber did not pursue the discussion with respect to Milošević’s alleged responsibility under Article 7(3) given that it found him guilty under Article 7(1). The Appeals Chamber recalls that both cumulative and alternative charging on the basis of the same conduct are generally permissible and is satisfied that Milošević’s responsibility under Article 7(3) was correctly pleaded in the present case.
281. The Appeals Chamber is satisfied that, although the Trial Chamber did not convict Milošević under Article 7(3) of the Statute, it made the findings necessary for the establishment of his responsibility under this provision for the sniping incidents. […] Having applied the correct legal framework to the conclusions of the Trial Chamber, the Appeals Chamber is satisfied that Milošević’s responsibility under Article 7(3) of the Statute for having failed to prevent and punish the said crimes committed by his subordinates is established beyond reasonable doubt.
 Indictment, paras 19-21.
 Trial Judgement, paras 982-984.
 Trial Judgement, para. 984, referring to Blaškić Appeal Judgement, para. 91; Krštić Trial Judgement, paras 605, 652 and Krštić Appeal Judgement, fn. 250; Kordić and Čerkez Appeal Judgement, para. 34; Kvočka et al. Appeal Judgement, para. 104; Kajelijeli Appeal Judgement, paras 81, 82; Naletilić and Martinović Appeal Judgement, para. 368.
 Naletilić and Martinović Appeal Judgement, paras 102-103.
 Cf. Stakić Appeal Judgement, paras 63, 104.
|ICTR Statute Article 6(3) ICTY Statute Article 7(3)|