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Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

17. An alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime”[4] or, otherwise stated, present evidence “likely to raise a reasonable doubt in the Prosecution case.”[5] If the alibi is reasonably possibly true, it must be accepted.[6]

18. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[7] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the relevant time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[8] for example, by demonstrating that the alibi evidence is not credible.

19. The Appeals Chamber has considered on several occasions whether Trial Chambers have erroneously shifted the burden of proof to the accused with respect to their alibis. Appellants have frequently pointed to language in the assessment of alibi evidence intimating that they were required to disprove the Prosecution’s evidence through their alibis. The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must “negate” the Prosecution’s evidence,[9] “exonerate” himself,[10] or “refute the possibility” that he participated in a crime[11] indicates that the Trial Chamber misapplied the burden of proof. Indeed, as stated in the Musema Appeal Judgement, “[i]n considering the manner in which the Trial Chamber applied the burden and standard of proof, the Appeals Chamber must start off by assuming that the words used in the Trial Judgement accurately describe the approach adopted by the Trial Chamber.”[12]

20. In assessing whether a Trial Chamber, when using this type of language, has in fact shifted the burden of proof, the Appeals Chamber carries out an in-depth analysis of the specific findings related to a given incident.[13] The Appeals Chamber has generally found that such language, while inappropriate, is not fatal when viewed in the broader context of a Trial Chamber’s findings. This is especially the case where the Trial Chamber accurately refers elsewhere in the judgement to the appropriate burden of proof for the evaluation of alibi evidence, its overall approach evinces a careful assessment of the alibi evidence, and its conclusion that the alibi evidence is ultimately not credible is reasonable when weighed against the evidence of participation in a crime.[14]

38. The Appeals Chamber observes that the Trial Chamber correctly stated that the Prosecution bears the burden of establishing the accused’s guilt beyond reasonable doubt[15] and that it would consider each piece of evidence in light of the totality of the evidence admitted at trial.[16] […]

39. Nonetheless, the Appeals Chamber finds that the Trial Chamber’s assessment of Zigiranyirazo’s alibi involves three serious errors that, taken together, invalidate his convictions based on the events at Kesho Hill. Specifically, the Trial Chamber erred by misapprehending the burden of proof in the context of alibi, failing to consider or provide a reasoned opinion with respect to relevant circumstantial evidence, and misconstruing key evidence which, properly considered, bolstered Zigiranyirazo’s alibi.

42. The Appeals Chamber emphasizes that a successful alibi does not require conclusive proof of an accused’s whereabouts.[17] Indeed, there is no requirement that an alibi “exclude the possibility” that the accused committed a crime.[18] The alibi need only raise reasonable doubt that the accused was in a position to commit the crime.[19]

[1] Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.

[2] Nahimana et al. Appeal Judgement, para. 414; Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 106; Delalić et al. Appeal Judgement, para. 581.

[3] Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Karera Appeal Judgement, para. 331; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 107.

[4] Musema Appeal Judgement, para. 202.

[5] Karera Appeal Judgement, para. 331 (internal citation omitted); Simba Appeal Judgement, para. 184 (internal citation omitted); Kajelijeli Appeal Judgement, para. 42 (internal citation omitted); Niyitegeka Appeal Judgement, para. 60.

[6] Nahimana et al. Appeal Judgement, para. 414; Kamuhanda Appeal Judgement, para. 38; Kajelijeli Appeal Judgement, para. 41; Musema Appeal Judgement, paras. 205, 206.

[7] Karera Appeal Judgement, para. 330; Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Kajelijeli Appeal Judgement, para. 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 107. See also Limaj et al. Appeal Judgement, para. 64, quoting Limaj et al. Trial Judgement, para. 11 (“[A] finding that an alibi is false does not in itself ‘establish the opposite to what it asserts’. The Prosecution must not only rebut the validity of the alibi but also establish beyond reasonable doubt the guilt of the Accused as alleged in the Indictment.”).

[8] Kajelijeli Appeal Judgement, para. 41 (internal citation omitted); Kayishema and Ruzindana Appeal Judgement, para. 106 (internal citation omitted). See also Limaj et al. Appeal Judgement, paras. 64, 65 (internal citation omitted); Delalić et al. Appeal Judgement, para. 581.

[9] See Limaj et al. Appeal Judgement, para. 65 (“When evaluating Haradin Bala’s alibi evidence, the Trial Chamber observed that ‘the testimony of most of the witnesses for the Defence for Haradin Bala does not necessarily negate the evidence that Haradin Bala remained in Llapushnik/Lapušnik after the end of May.’ The use of the phrase ‘to negate the evidence’ could be read in the sense that the Trial Chamber required Haradin Bala to negate the Prosecution evidence”), quoting Limaj et al. Trial Judgement, para. 647.

[10] See Kamuhanda Appeal Judgement, para. 39 (“the Appeals Chamber notes that in some instances the Trial Chamber applied language which prima facie supports the Appellant’s arguments [that the Trial Chamber shifted the burden of proof], for example in paragraph 174 of the [Kamuhanda] Trial Judgement: ‘[…] the evidence of Witness ALB does not exonerate the Accused from being present at Gikomero.’”) (emphasis in original).

[11] See Musema Appeal Judgement, para. 295 (“The wording ‘are by themselves, insufficient to refute the possibility’ used by the Trial Chamber with respect to alibi evidence might be an error on a point of law, had Musema’s evidence been sufficient to sustain a potential alibi.”)(emphasis in original), quoting Musema Trial Judgement, para. 740.

[12] Musema Appeal Judgement, para. 209.

[13] See, e.g., Musema Appeal Judgement, paras. 210, 211.

[14] See, e.g., Limaj et al. Appeal Judgement, para. 65; Kamuhanda Appeal Judgement, paras. 38-44; Musema Appeal Judgement, paras. 317, 318.

[15] Trial Judgement, para. 89 (“Pursuant to Article 20(3) of the Statute, an accused shall be presumed innocent until proven guilty. This presumption places on the Prosecution the burden of establishing the guilt of the accused, a burden which remains on the Prosecution throughout the entire trial. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.”) (internal citation omitted).

[16] Trial Judgement, paras. 87, 88.

[17] See Simba Appeal Judgement, para. 185 (“The Appeals Chamber is further satisfied that the Trial Chamber correctly applied [the legal standard on alibi evidence] in its subsequent findings on alibi. The Trial Chamber first found that, although the alibi evidence for the period of 6-13 April 1994 ‘[did] not account for every moment of [the Appellant’s time]], viewed as a whole and when weighed against the Prosecution evidence, it [provided]] a reasonable and satisfactory explanation for [the Appellant’s]] activities [for this period]].’ The Appeals Chamber notes that this wording reflects that in assessing the alibi evidence for this period the Trial Chamber did not require the Defence to prove its case beyond reasonable doubt.”), quoting Simba Trial Judgement, para. 349. See also Nahimana et al. Appeal Judgement, paras. 428-431, 473, 474 (reversing a Trial Chamber finding that an alibi based on hearsay had not been established).

[18] See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi). See also Muhimana Appeal Judgement, para. 18 (“An accused does not need to prove at trial that a crime ‘could not have occurred’ or ‘preclude the possibility that it could occur’.”).

[19] See supra Section III.A.1 (Burden of Proof in the Assessment of Alibi).

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Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

43. The Appeals Chamber therefore finds that the Trial Chamber reversed the burden of proof in its assessment of Zigiranyirazo’s alibi. The Appeals Chamber’s conclusion is reinforced by the Trial Chamber’s failure, in contrast to other cases where similar language was used, to articulate correctly the applicable burden of proof specific to the assessment of an alibi as well as by the numerous other factual and legal errors identified below. In view of the clear legal error in the application of the burden of proof, the Appeals Chamber will proceed to consider the relevant evidence de novo under the correct legal standard.

51. In sum, the Appeals Chamber concludes that the Trial Chamber erred in law and in fact in its assessment of the alibi evidence, by misapprehending the applicable legal principles, failing to consider or provide a reasoned opinion with respect to relevant evidence, and misconstruing key evidence which further bolstered Zigiranyirazo’s alibi. The Appeals Chamber considers that these errors constituted a miscarriage of justice and invalidated the verdict, and thus that the Trial Chamber’s findings on Zigiranyirazo’s participation in the attack at Kesho Hill on 8 April 1994 must be overturned. [see also para. 73 of this Appeal Judgement]

63. The Appeals Chamber recalls its conclusions in connection with the Sixth Ground of Appeal that the Trial Chamber’s failure to maintain a record of the site visit did not invalidate the verdict.[2] Nevertheless, a review of the Trial Chamber’s discussion of the alibi in relation to the Kiyovu Roadblock reveals that it committed three significant errors: not applying the correct legal standard to the assessment of the alibi; misconstruing key evidence to discount the alibi; and failing to consider or provide a reasoned opinion with respect to relevant evidence.

71. When viewed as a whole under the correct standard, the evidence in support of Zigiranyirazo’s alibi, which was not discounted by the Trial Chamber, provides a reasonable basis to conclude that he remained in Rubaya and its surrounding area on 12 and 17 April 1994. Accordingly, the Appeals Chamber finds that the alibi evidence casts doubt on the Prosecution evidence placing him at the Kiyovu Roadblock on 12 and 17 April 1994.

75. In reversing Zigiranyirazo’s convictions for genocide and extermination as a crime against humanity, the Appeals Chamber again underscores the seriousness of the Trial Chamber’s errors. The crimes Zigiranyirazo was accused of were very grave, meriting the most careful of analyses. Instead, the Trial Judgement misstated the principles of law governing the distribution of the burden of proof with regards to alibi and seriously erred in its handling of the evidence. Zigiranyirazo’s resulting convictions relating to Kesho Hill and the Kiyovu Roadblock violated the most basic and fundamental principles of justice. In these circumstances, the Appeals Chamber had no choice but to reverse Zigiranyirazo’s convictions.

[1] See supra para. 10.

[2] See supra Section III.A.2 (Ground 6: Alleged Errors in Evaluating Exculpatory Evidence Related to Kesho Hill).

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Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

36. As a preliminary matter, the Appeals Chamber has previously stated that a detailed record of a Trial Chamber’s site visit should normally be maintained.[1] The Appeals Chamber observes, however, that Zigiranyirazo did not object at trial to the lack of record. In addition, there appears to be no dispute with respect to the itinerary and travel times taken by the Trial Chamber during its site visit. The absence of a record also did not prevent Zigiranyirazo from fully addressing issues arising from the site visit in his Defence Closing Brief. Consequently, the Appeals Chamber does not consider that the lack of a record of the site visit invalidated the verdict.

[1] Karera Appeal Judgement, para. 50.

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Appeal Judgement - 16.11.2009 ZIGIRANYIRAZO Protais
(ICTR-01-73-A)

44. The second error of the Trial Chamber was its failure to provide a reasoned opinion in relation to the feasibility of travel between Kesho Hill and Kanombe. […]

45. The Appeals Chamber notes that “[t]here is a presumption that a Trial Chamber has evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence.”[1] However, this presumption may be rebutted “when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.”[2] […]

69. The Appeals Chamber is mindful that evidence concerning specific travel details taken after several years can only be of limited assistance in establishing the time and exact itinerary purportedly taken by Zigiranyirazo on 12 and 17 April 1994. Nevertheless, the various estimates reflect that Rubaya in GisenyiPrefecture is not in close geographic proximity with the Kiyovu area of Kigali. As a result, the distance, time, and feasibility of travel are highly relevant factors in view of the evidence placing Zigiranyirazo at Rubaya on 12 April 1994 and 17 April 1994, as each trip would have resulted in a significant period of absence from Rubaya.[3] […]

70. The Appeals Chamber notes that the Trial Chamber did refer generally to the lengthy journey from Kanombe, which is near Kigali, to Rubaya in recounting the alibi evidence.[4] Therefore, it follows that it was aware of the significant distance in assessing the allegations related to the Kiyovu Roadblock. In such circumstances, the Trial Chamber should have provided clear reasons as to why the alibi did not account for the time when Zigiranyirazo was seen at the Kiyovu Roadblock. This is especially so given the alibi evidence that Witness Bararengana saw Zigiranyirazo on 12 April 1994,[5] evidence which is not easily reconciled with Zigiranyirazo’s presence, according to Witness BCW, at the Kiyovu Roadblock around 11.00 a.m. or 12.00 p.m. on 12 April 1994. As noted above, the brief absences in the area surrounding Rubaya did not provide a reasonable basis for discounting the alibi. While the Trial Chamber might have reasonably rejected Witness Bararengana’s testimony for a number of other reasons when weighed against that of Witness BCW, it did not do so. Rather, it expressly stated that it did not discount Witness Bararengana’s evidence.[6]

[1] Halilović Appeal Judgement, para. 121. See also Kvoèka et al. Appeal Judgement, para. 23.

[2] Kvoèka et al. Appeal Judgement, para. 23.

[3] In view of this conclusion, the Appeals Chamber does not find it necessary to discuss the additional evidence related to the viability of the Ruhengeri route.

[4] Trial Judgement, paras. 246-248. See also Trial Judgement, para. 87, fn. 88.

[5] See T. 6 March 2007 p. 45.

[6] Trial Judgement, para. 250.

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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

32. The Appeals Chamber recalls that when noting Article 49 (1) of Additional Protocol I, the Galić Appeals Chamber held that the crime of terror can comprise attacks or threats of attacks against the civilian population.[1] It did not limit the possible consequences of such attacks to death or serious injuries among the victims.[2] Rather, it concentrated on the assessment of whether the allegations before it would qualify for the crime of terror under international customary law.

33. The Appeals Chamber finds that the Trial Chamber misinterpreted the Galić jurisprudence by stating that “actual infliction of death or serious harm to body or health is a required element of the crime of terror”, and thus committed an error of law.Causing death or serious injury to body or health represents only one of the possible modes of commission of the crime of terror, and thus is not an element of the offence per se. What is required, however, in order for the offence to fall under the jurisdiction of this Tribunal, is that the victims suffered grave consequences resulting from the acts or threats of violence;[4] such grave consequences include, but are not limited to death or serious injury to body or health. Accordingly, because the Trial Chamber established in the present case that all the incidents imputed to the SRK constituted unlawful attacks against civilians, and thus caused death or serious injury to body or health of civilians,[5] the threshold of gravity required for the crime of terror based on those incidents has been met. Whereas the nature of the acts of violence or threats thereof constitutive of the crime of terror can vary,[6] the Appeals Chamber is satisfied that the actus reus of the crime of terror has been established in this case and does not find it necessary to explore the matter any further.

34. As for the Prosecution’s submission that the crime of terror has no result requirement provided that the underlying acts or threats of violence are “capable of spreading terror”,[7] the Appeals Chamber notes that the travaux préparatoires to Additional Protocol I show that there had been attempts among the delegations to introduce “acts capable of spreading terror” into the language of the prohibition enshrined under Article 51(2) thereof.[8] However, these proposals were not reflected in the final text of the provision.[9] In addition, the Appeals Chamber considers that the definition of the actus reus of the crime of terror suggested by the Prosecution, notably “acts capable of spreading terror”, does not necessarily imply grave consequences for the civilian population and thus does not per se render the violation of the said prohibition serious enough for it to become a war crime within the Tribunal’s jurisdiction.

35. The Appeals Chamber further recalls that the Galić Appeal Judgement clarifies that while “extensive trauma and psychological damage form part of the acts or threats of violence”, the “actual terrorisation of the civilian population is not an element of the crime”.[10] It should be noted, however, that evidence of actual terrorisation may contribute to establishing other elements of the crime of terror.[11] The Trial Chamber in the instant case established that the incidents had had a psychological impact on the population of Sarajevo.[12] In the circumstances of the case, such psychological impact also satisfies the required gravity threshold.[13]

[1] Galić Appeal Judgement, para 102.

[2] Galić Appeal Judgement, para 102.

[3] Trial Judgement [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Judgement, 12 December 2007], paras 876, 880.

[4] In paragraph 94 of its Tadić Jurisdiction Decision [Prosecutor v. Duško Tadić a/k/a “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], the Appeals Chamber held that for criminal conduct to fall within the scope of Article 3 of the Statute, the following four conditions must be satisfied:

“(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met […];

(iii) the violation must be “serious”, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a “serious violation of international humanitarian law” although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby “private property must be respected” by any army occupying an enemy territory;

(iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.”

[5] Trial Judgement, paras 911-913, 953.

[6] Galić Appeal Judgement, para 102.

[7] AT. 122-123.

[8] Travaux Préparatoires, Vol. III, CDDH/III/38, p. 203, CDDH/III/51, p. 206; Vol. XIV, CDDH/III/SR. 8, pp. 60, 64.

[9] The committee entrusted with the consideration of draft Article 51 submitted the following with regard to the prohibition of spreading terror: “The prohibition of 'acts or threats of violence which have the primary object of spreading terror is directed to intentional conduct specifically directed toward the spreading of terror and excludes terror which was not intended by a belligerent and terror' that is merely an incidental effect of acts of warfare which have another primary object and are in all other respects lawful.” (Galić Appeal Judgement, para. 103, citing Travaux préparatoires, Vol. XIV, CDDH/215/Freq., p. 274).

[10] Galić Appeal Judgement, paras 102, 104.

[11] See Galić Appeal Judgement, para. 107.

[12] Trial Judgement, paras 740-746, 910.

[13] See supra, para. 33. See also the Prosecution’s oral submissions in this regard (AT. 118).

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ICTY Statute Article 3 Other instruments Additional Protocol I: Article 49(1); 51(2).
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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
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37. The Appeals Chamber notes that the mens rea of the crime of terror consists of the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of the acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population.[1] While spreading terror must be the primary purpose of the acts or threats of violence, it need not be the only one.[2] The Galić Appeal Judgement suggests that such intent can be inferred from the “nature, manner, timing and duration” of the acts or threats.[3] However, this is not an exhaustive list of mandatory considerations but an indication of some factors that may be taken into account according to the circumstances of the case. […] Furthermore, the Appeals Chamber rejects Milošević’s argument that the Trial Chamber could not take into account the evidence relative to the actus reus of the crime when establishing the mens rea. In this regard, the Appeals Chamber finds that both the actual infliction of terror and the indiscriminate nature of the attack were reasonable factors for the Trial Chamber to consider in determining the specific intent of the accused in this case.

[1] Galić Appeal Judgement, para. 104.

[2] Galić Appeal Judgement, para. 104.

[3] Galić Appeal Judgement, para. 104.

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ICTY Statute Article 3
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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

39. […] [T]he Appeals Chamber recalls the two-pronged test articulated in the Čelebići Appeal Judgement[1] and emphasizes that the focus of the analysis is to be placed on the legal elements of each crime, rather than on the underlying conduct of the accused.[2] With respect to the offence of unlawful attacks against civilians, the Appeals Chamber recalls that it requires proof of death or serious injury to body or health, which, as explained in paragraph 33 above, is not per se an element of the crime of terror. Conversely, the offence of terror requires proof of an intent to spread terror among the civilian population which is not an element of the crime of unlawful attacks against civilians. Therefore, the Appeals Chamber finds that each offence has an element requiring proof of a fact not required by the other, thus allowing cumulative convictions. The Trial Chamber’s conclusion to the contrary was, accordingly, erroneous.

[1] Čelebići Appeal Judgement, paras 412-413.

[2] Stakić Appeal Judgement, para. 356.

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53. The Appeals Chamber recalls that it is well established that the principle of distinction requires parties to distinguish at all times “between the civilian population and combatants, between civilian and military objectives, and accordingly direct attacks only against military objectives”.[1] There is an absolute prohibition against the targeting of civilians in customary international law,[2] encompassing indiscriminate attacks.[3] […]

54. There is no requirement that particular areas or zones be designated as civilian or military in nature. Rather, a distinction is to be made between the civilian population and combatants, or between civilian and military objectives. Such distinctions must be made on a case-by-case basis. Further, considering the obligations incumbent upon combatants to distinguish and target exclusively military objectives, the Appeals Chamber finds Milošević’s argument regarding the proportion of civilians present in areas “replete with military objectives”[4] unpersuasive. In fact, Milošević does not even attempt to argue that the civilian victims in Sarajevo were proportional casualties of lawful military attacks launched by the SRK. A general assertion that the attacks were legitimate because they allegedly targeted “military zones” throughout the city is bound to fail.

55. The Appeals Chamber recognizes that some of the language used in paragraphs 896-904 of the Trial Judgement may appear confusing and lead to the conclusion that the Trial Chamber actually accepted Milošević’s approach of defining the status of the “areas”. However, the Appeals Chamber understands the Trial Judgement to have adopted this terminology for the sole purpose of addressing Milošević’s arguments, whereas in reality, the Trial Chamber meant to establish the civilian status of the population targeted in specific incidents.[5]

139. The Appeals Chamber has already found that despite the somewhat confusing language used by the Trial Chamber, it correctly engaged in a case-by-case analysis of the targets and modalities of the attacks, rather than that of “zones”.[6] Therefore, the Appeals Chamber will pursue its analysis on the basis of its understanding that when referring to certain neighbourhoods of Sarajevo, the Trial Chamber meant to establish the civilian status of the population targeted in the attacks that took place there during the Indictment period (and not that of the areas or zones as such).

[1] Galić Appeal Judgement, para. 190.

[2] Galić Appeal Judgement, para. 190, referring to the Blaškić Appeal Judgement, para. 109.

[3] By way of example, the Appeals Chamber recalls Article 51(5)(a) of Additional Protocol I [Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3] which, although mainly concerned with cases of carpet bombing and similar military activities (ICRC Commentary to Additional Protocols [ Claude Pillot, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva/Dordrecht: ICRC/Martinus Nijhoff Publishers, 1987) International Committee of the Red Cross of Geneva, 1987], paras 1979-1981) and not with a protracted campaign of sniping and shelling during a siege-like situation, is undoubtedly instructive of the approach belligerents are required to take in establishing and pursuing military targets.

[4] See supra, Section III.C.1.(a), para. 44.

[5] See also infra, Section VII.B, paras 139 et seq. The Appeals Chamber further notes that Section III.A.3.(a) of the Trial Judgement containing the Trial Chamber’s evaluation of the evidence is entitled “Civilian Status of the Population”.

[6] See supra, Section III.C.1.(b)(ii), para. 55.

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ICTR Statute Article 3 ICTY Statute Article 5
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Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
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58. Concerning the status of victims of crimes under Article 5 of the Statute, the Appeals Chamber recalls that “there is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber, that requires that individual victims of crimes against humanity be civilians”.[1] Nonetheless, it notes that the civilian status of the victims remains relevant for the purpose of the chapeau requirement of Article 5 of the Statute as one of the factors to be assessed in determining whether the civilian population was the primary target of an attack.[2] Furthermore, “the fact that a population, under the chapeau of Article 5 of the Statute, must be 'civilian' does not imply that such population shall only be comprised of civilians.”[3] Accordingly, the civilian status of the victims and the proportion of civilians within a population are factors relevant to satisfy the chapeau requirement that an attack was directed against a “civilian population”, yet it is not an element of the crimes against humanity that individual victims of the underlying crimes be “civilians”.[4]

[1] Martić Appeal Judgement, para. 307.

[2] Mrkšić and Šljivančanin Appeal Judgement, paras 30-31; Martić Appeal Judgement, paras 307-308; Kunarac et al. Appeal Judgement paras 91-92.

[3] Mrkšić and Šljivančanin Appeal Judgement, para. 31.

[4] Mrkšić and Šljivančanin Appeal Judgement, para. 32.

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250. […] Moreover, with respect to Milošević’s allegation that the bombing was “a legal response to ABiH attacks”, the Appeals Chamber re-emphasizes that reciprocity or tu quoque defence may not be used to justify a serious violation of international humanitarian law.[1]

[1] Martić Appeal Judgement, para. 111; Kupreškić et al. Appeal Judgement, para. 25.

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302. […] [T]he Appeals Chamber recalls that it is settled jurisprudence of this Tribunal that while a position of authority, even at a high level, does not automatically warrant a harsher sentence, the abuse of such may indeed constitute an aggravating factor.[1] The Appeals Chamber further reiterates, Judge Liu dissenting, that this holds true in the context of a conviction under Article 7(1) of the Statute, including the mode of responsibility for planning and ordering crimes.[2] Before arriving at its conclusion, the Trial Chamber in the instant case specifically took into account Milošević’s high rank within the VRS, the ensuing special responsibility to uphold the standards of international humanitarian law, and the fact that he was highly respected by the SRK staff.[3] In this regard, the Appeals Chamber recalls that whereas the mode of liability of ordering requires that the person giving the order has a position of authority, the abuse of such authority may still be considered an aggravating factor in sentencing.[4] The Trial Chamber was mindful of the fact that the superior position per se does not constitute an aggravating factor and did not consider Milošević’s authority to give orders to that effect.[5] Rather, it took into account the particularly high level of Milošević’s authority and the high esteem of his soldiers in assessing whether his conduct amounted to an abuse of his superior position. Milošević has failed to demonstrate any error in this regard.

303. […] In addition, the Appeals Chamber recalls that the superior’s abuse of his position of a high level of authority may also be taken into consideration for a conviction under Article 7(3) of the Statute.[6]

[1] See, e.g., Martić Appeal Judgement, para. 350; Hadžihasanović and Kubura Appeal Judgement, para. 320; Blagojević and Jokić Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 411; M. Nikolić Appeal Judgement, para. 61. Moreover, the Appeals Chamber recalls that where responsibility under both Article 7(1) and Article 7(3) is alleged under the same counts, and where the legal requirements pertaining to both of these modes of responsibility have been established, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused’s superior position as an aggravating factor in sentencing (Blaškić Appeal Judgement, paras 91, 727).

[2] Naletilić and Martinović Appeal Judgement, paras 613, 626; Blagojević and Jokić Appeal Judgement, para. 324; Stakić Appeal Judgement, para. 411; Blaškić Appeal Judgement, para. 91.

[3] Trial Judgement, para. 999.

[4] Galić Appeal Judgement, para. 412.

[5] Trial Judgement, para. 996, fn. 3202.

[6] Hadžihasanović and Kubura Appeal Judgement, para. 320. The Appeals Chamber notes that in Naletilić and Martinović, the Appeals Chamber found that the Trial Chamber erred in finding that Martinović’s and Naletilić’s respective superior positions constituted aggravating factors for their convictions under Article 7(3) (Naletilić and Martinović Appeal Judgement, paras 613, 626). However, the Appeals Chamber emphasizes that this finding was not concerned with the abuse of such position as is the case in the present instance.

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23. The Appeals Chamber notes that the Trial Chamber did not establish the nature of the armed conflict concerned by the Indictment.[1] Given that the Indictment charged Milošević under Article 51(2) of Additional Protocol I and, in the alternative, Article 13(2) of Additional Protocol II, the Trial Judgement cites to both Protocols without specifying which of them applies to the conflict at issue. Although the Appeals Chamber considers that the Trial Chamber should have made a clear finding as to the nature of the armed conflict or the applicability of the Additional Protocols,[2] the Appeals Chamber finds the references to the relevant provisions of both Additional Protocols permissible given that they form part of customary international law and apply both in international and internal armed conflicts.[3] The Appeals Chamber further notes that the Trial Chamber referred to Additional Protocol I, notably in defining the notion of “civilians”.[4] It recalls in this respect that the definition of civilians contained in Article 50 of Additional Protocol I applies to crimes under both Article 3 and Article 5 of the Statute,[5] and finds that, provided that the direct participation in hostilities is adequately taken into account,[6] the application of this definition is appropriate in this case.[7] Additionally, the Appeals Chamber notes that Additional Protocol I was incorporated into Yugoslavia’s Armed Forces Regulations on the Application of the International Laws of War.[8]

[1] Trial Judgement, paras 870-872.

[2] Cf. Galić Trial Judgement, paras 22-25.

[3] Galić Appeal Judgement, paras 86-87.

[4] Trial Judgement, paras 921-924.

Martić Appeal Judgement, paras 299, 302.

[6] See infra, Section III.C.1.(b)(iii), paras 57-58.

[7] Cf. Strugar Appeal Judgement, para. 187, where the Appeals Chamber found that because the Trial Chamber had not concluded on the nature of the armed conflict (thus not limiting the applicability of the international humanitarian law), it was necessary to analyse whether the alleged victims of the war crimes, although not actively participating in the hostilities, could not have been otherwise constituted lawful targets, such as being combatants or being injured as a result of a proportionate attack.

[8] Agreed Facts [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Prosecution’s Catalogue of Facts Agreed Between the Prosecution and Defence, with Annex A thereto, 28 February 2007], para. 24. 

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ICTY Statute Article 3 Other instruments Additional Protocol I: Article 50; 51(2).
Additional Protocol II: Article 13(2).
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306. […] [T]he Appeals Chamber observes that the language of the Trial Judgement may be read to conclude that certain factors were taken into account twice by the Trial Chamber in its assessment of the gravity of the crimes and the aggravating circumstances.[1] Where established, such double-counting amounts to a legal error since “factors taken into consideration as aspects of the gravity of a crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.”[2] […]

309. The Appeals Chamber is not convinced by the Prosecution’s argument that relying on different aspects of the same fact is permissible. In weighing a fact, either as an aspect of the gravity of the crime or as an aggravating circumstance, the Trial Chamber is required to consider and account all of its aspects and implications on the sentence in order to ensure that no double-counting occurs. The Appeals Chamber thus finds that the said facts could only be taken into consideration once – either as factors relevant to the gravity of the crimes or as aggravating circumstances.

[1] Trial Judgement, paras 991-994, 999-1001.

[2] M. Nikolić Judgement on Sentencing Appeal, para. 58; Deronjić Judgement on Sentencing Appeal, para. 106.

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215. […] [N]othing prohibits a Trial Chamber from relying on uncorroborated evidence; it has the discretion to decide in the circumstances of each case whether corroboration is necessary or whether to rely on uncorroborated, but otherwise credible, witness testimony.[1]

248. The Appeals Chamber recalls that “corroboration of testimonies, even by many witnesses, does not establish automatically the credibility, reliability or weight of those testimonies” and that it is “neither a condition nor a guarantee of reliability of a single piece of evidence”.[2] However, given that the assessment of evidence, including corroboration, is a matter of the Trial Chamber’s discretion, the Appeals Chamber is not satisfied that Milošević has shown that in the circumstances of the case, the Trial Chamber abused its discretion in rejecting witnesses Knowles and Hansen’s evidence while relying on the evidence supporting the Prosecution’s case.

[1] See, e.g., Aleksovski Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras 49, 101, 120, 159 and 207; Nahimana et al. Appeal Judgement, paras 633 and 810; Gacumbitsi Appeal Judgement, para. 72; Kajelijeli Appeal Judgement, para. 170, citing Niyitegeka Appeal Judgement, para. 92; Rutaganda Appeal Judgement, para. 29; Musema Appeal Judgement, para. 36. See also infra, Section X.B.2, para. 248.

[2] Limaj et al. Appeal Judgement, para. 203, referring, inter alia, to Aleksovski Appeal Judgement, paras 62-63; Čelebići Appeal Judgement, paras 492, 506; Gacumbitsi Appeal Judgement, para. 72; Musema Appeal Judgement, paras 37-38; See also Karera Appeal Judgement, para. 45.

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265. The Trial Chamber has adopted a very general approach in that it did not analyse whether Milošević ordered every sniping or shelling incident, but rather concluded that those incidents could only take place if ordered by him in the framework of the campaign directed against the civilian population of Sarajevo. In principle, this approach is not erroneous as such, given that both the actus reus and the mens rea of ordering can be established through inferences from circumstantial evidence, provided that those inferences are the only reasonable ones. The Appeals Chamber underlines, however, that when applying such an approach to the facts of the case, great caution is required.

266. First, the Appeals Chamber emphasizes that, as the Trial Chamber correctly held in its discussion of the widespread or systematic attack, “[a] campaign is a military strategy; it is not an ingredient of any of the charges in the Indictment, be that terror, murder or inhumane acts”.[1] The Appeals Chamber notes, however, that in other parts of the Trial Judgement, the Trial Chamber appears to hold Milošević responsible for planning and ordering a campaign of crimes.[2] The Appeals Chamber understands these references as illustrating that the crimes at stake formed a pattern comprised by the SRK military campaign in Sarajevo. Therefore, the “campaign” in the present Appeal Judgement shall be understood as a descriptive term illustrating that the attacks against the civilian population in Sarajevo, in the form of sniping and shelling, were carried out as a pattern forming part of the military strategy in place.

Having clarified that Milošević could not be held criminally responsible for planning or ordering a military campaign (but rather for the crimes resulting therefrom), the Appeals Chamber further concluded that there was no evidence of him planning or ordering the campaign as such. Therefore, there was no basis for a conclusion that he planned and ordered the crimes on the ground that they resulted from a military campaign. Consequently, the Appeals Chamber proceeded to analyse whether there was evidence supporting the Trial Chamber’s conclusions that Milošević planned and ordered the crimes resulting from the specific shelling and sniping incidents. The Appeals Chamber further underlined:

271. The Appeals Chamber emphasizes that its findings above pertain strictly to Milošević’s individual criminal responsibility for ordering and planning the campaign of shelling and sniping of civilians in Sarajevo as such, given that not all the legal requirements necessary for these modes of liability have been established at trial. These findings do not affect the conclusions of the Trial Chamber or those of the Galić Trial and Appeal Chambers that such a campaign took place in Sarajevo during the relevant period.

[1] Trial Judgement, para. 927.

[2] Trial Judgement, paras 910-913, 927-928, 932, 938, 953, 966, 975, 978. 

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267. […] The Appeals Chamber recalls that the actus reus of ordering cannot be established in the absence of a prior positive act because the very notion of “instructing”, pivotal to the understanding of the question of “ordering”, requires “a positive action by the person in a position of authority”.[1] The Appeals Chamber accepts that an order does not necessarily need to be explicit in relation to the consequences it will have.[2] […]

290. The Appeals Chamber recalls that ordering requires that a person in a position of de jure or de facto authority instructs another person to commit a crime.[3] It does not, however, require the physical presence of the perpetrator at the site of the crime.

[1] Galić Appeal Judgement, para. 176. See also, Nahimana et al. Appeal Judgement, para. 481, referring to Gacumbitsi Appeal Judgement, para. 182; Kamuhanda Appeal Judgement, para. 75; Semanza Appeal Judgement, para. 361; Ntagerura et al. Appeal Judgement, para. 365; Kordić and Čerkez Appeal Judgement, paras 28-30.

[2] Cf. Nahimana et al. Appeal Judgement, para. 481: “Responsibility is also incurred when an individual in a position of authority orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, and if that crime is effectively committed subsequently by the person who received the order.” See also, Galić Appeal Judgement, paras 152 and 157; Kordić and Čerkez Appeal Judgement, para. 30; Blaškić Appeal Judgement, para. 42.

[3] Trial Judgement, para. 957. See Kordić and Čerkez Appeal Judgement, para. 28.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
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The Trial Chamber sentenced Milošević to 33 years of imprisonment.

333. The Appeals Chamber recalls that it overturned Milošević’s convictions for planning the crimes of terror, murder and inhumane acts on the basis that his responsibility for ordering the relevant crimes pursuant to Article 7(1) of the Statute fully encompasses his criminal conduct and does not warrant a separate conviction for planning the same crimes.[1] In this context, where the findings with respect to Milošević’s criminal conduct and the seriousness of the crimes remain undisturbed, the Appeals Chamber finds that no reduction of sentence is warranted.

334. In addition, the Appeals Chamber has vacated Milošević’s convictions under Article 7(1) with respect to crimes committed through sniping incidents and replaced them with convictions pursuant to Article 7(3) of the Statute.[2] The Appeals Chamber acknowledges that in appropriate cases, a conviction under Article 7(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 7(1) conviction.[3] However, in this particular case, the Appeal Chamber finds that its conclusions with respect to the form of Milošević’s responsibility for the crimes at stake do not in any way diminish his active and central role in the commission of the crimes.[4] Indeed, Milošević did more than merely tolerate the crimes as a commander; in maintaining and intensifying the campaign of shelling and sniping the civilian population in Sarajevo throughout the Indictment period, he provided additional encouragement to his subordinates to commit the crimes against civilians. Therefore, no reduction of sentence is warranted on this basis either.

335. [The Appeals Chamber reversed Milošević’s convictions for three shelling incidents] […] Although these findings do not change the fact that the entire population of Sarajevo was the victim of the crime of terror committed under Milošević’s command, they do involve fewer victims of the crimes of murder and other inhumane acts imputable to Milošević under counts 5 and 6 of the Indictment. The Appeals Chamber thus finds that these reversals have an impact, although limited, on Milošević’s overall culpability.

337. Taking into account the particular circumstances of this case, the gravity of the crimes for which Milošević’s convictions have been upheld, and the quashing of the convictions outlined above, the Appeals Chamber concludes that Milošević’s sentence should be reduced to a term of imprisonment of 29 years.

[1] See supra, Section XI.A.2.(b), para. 274.

[2] See supra, Section XI.A.2.(d), para. 281.

[3] Cf. Strugar Appeal Judgement, paras 353-354.

[4] Cf. Hadžihasanović and Kubura Appeal Judgement, para. 320, referring to Aleksovski Appeal Judgement, para. 183, where the Appeals Chamber held as follows:

[…] As warden of a prison he took part in violence against the inmates. The Trial Chamber recognised the seriousness of these offences but stated that his participation was relatively limited. In fact, his superior responsibility as a warden seriously aggravated the Appellant’s offences. Instead of preventing it, he involved himself in violence against those whom he should have been protecting, and allowed them to be subjected to psychological terror. He also failed to punish those responsible. […] The combination of these factors should, therefore, have resulted in a longer sentence and should certainly not have provided grounds for mitigation. 

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326. Regarding the comparison with the sentence imposed on Galić on appeal, the Appeals Chamber recalls that “sentences of like individuals in like cases should be comparable”.[1] However, similar cases do not provide “a legally binding tariff of sentences”.[2] While the Appeals Chamber does not discount the assistance that may be drawn from previous decisions, such assistance is often limited, as each case contains a multitude of variables.[3] Differences between cases are often more significant than similarities and different mitigating and aggravating circumstances might dictate different results.[4]

[1] Strugar Appeal Judgement, para. 348, referring to Kvočka et al. Appeal Judgement, para. 681.

[2] Strugar Appeal Judgement, para. 348, referring to Jelisić Appeal Judgement, para. 96; D. Nikolić Judgement on Sentencing Appeal, para. 16.

[3] Strugar Appeal Judgement, para. 348: “a number of elements, relating, inter alia, to the number, type and gravity of the crimes committed, the personal circumstances of the convicted person and the presence of mitigating and aggravating circumstances, dictate different results in different cases such that it is frequently impossible to transpose the sentence in one case mutatis mutandis to another”. See also, e.g., Blagojević and Jokić Appeal Judgement, para. 333; Stakić Appeal Judgement, para. 381; Kvočka et al. Appeal Judgement, para. 681; Čelebići Appeal Judgement, para. 721; Nahimana et al. Appeal Judgement, para. 1046.

[4] See, e.g., Limaj et al. Appeal Judgement, para. 135, citing D. Nikolić Judgement on Sentencing Appeal, para. 19. 

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297. Due to their obligation to individualise the penalties to fit the circumstance of an accused and the gravity of the crime, Trial Chambers are vested with broad discretion in determining the appropriate sentence, including the determination of the weight given to mitigating or aggravating circumstances.[1] As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. It is for the appellant to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

[1] Mrkšić and Šljivančanin Appeal Judgement, para. 352; Strugar Appeal Judgement, para. 336; Hadžihasanović and Kubura Appeal Judgement, para. 302.

[2] See, e.g., Mrkšić and Šljivančanin Appeal Judgement, para. 353; Martić Appeal Judgement, para. 326; Strugar Appeal Judgement, paras 336-337. 

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17. […] [T]he Appeals Chamber recalls that it has identified the types of deficient submissions on appeal which are bound to be summarily dismissed.[1] In particular, the Appeals Chamber will dismiss without detailed analysis (i) arguments that fail to identify the challenged factual findings, that misrepresent the factual findings or the evidence, or that ignore other relevant factual findings; (ii) mere assertions that the Trial Chamber must have failed to consider relevant evidence, without showing that no reasonable trier of fact, based on the evidence could have reached the same conclusion as the Trial Chamber did; (iii) challenges to factual findings on which a conviction does not rely, and arguments that are clearly irrelevant, that lend support to, or that are not inconsistent with the challenged finding; (iv) arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence, without explaining why the conviction should not stand on the basis of the remaining evidence; (v) arguments contrary to common sense; (vi) challenges to factual findings where the relevance of the factual finding is unclear and has not been explained by the appealing party; (vii) mere repetition of arguments that were unsuccessful at trial without any demonstration that their rejection by the Trial Chamber constituted an error warranting the intervention of the Appeals Chamber; (viii) allegations based on material not on record; (ix) mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate error; and (x) mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner.[2]

[1] Krajišnik Appeal Judgement, para. 17; Martić Appeal Judgement, para. 15; Strugar Appeal Judgement, para. 17.

[2] Krajišnik Appeal Judgement, paras 17-27; Martić Appeal Judgement, paras 14-21; Strugar Appeal Judgement, paras 18-24; Brđanin Appeal Judgement, paras 17-31; Galić Appeal Judgement, paras 256-313.

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