127. […] The requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.[1] In cases of specific intent crimes such as persecutions or genocide, the aider and abettor must know of the principal perpetrator’s specific intent.[2]

221.  In describing the applicable law for aiding and abetting, the Trial Chamber restated the formulation of the mens rea for aiding and abetting found in the Vasiljević Appeal Judgement:

[I]t is not required that the aider and abettor shared the mens rea required for the crime; it is sufficient that the aider and abettor had knowledge that his or her own acts assisted in the commission of the specific crime by the principal offender. The aider and abettor must also be aware of the “essential elements” of the crime committed by the principal offender, including the state of mind of the principal offender.[3]

The Appeals Chamber has applied this formulation consistently in its judgements.[4] Consequently, the Appeals Chamber finds no legal error on the part of the Trial Chamber in this regard.

23. A participant in the International Tribunal’s legal aid system has the right to competent assigned counsel.[1] An assigned counsel is presumed to be competent and such a presumption can only be rebutted by evidence to the contrary.[2] Among other things, an appellant must demonstrate “gross incompetence” on the part of the assigned counsel.[3]

25. As a general matter, in his submissions Blagojević simply disagrees or complains about decisions made by his counsel.[4] Moreover, Blagojević’s complaints about his counsel’s performance during trial stem from his refusal to communicate with his counsel and instruct his Defence team. The Appeals Chamber considers that this is not an acceptable basis for challenging counsel’s conduct. His cursory submissions therefore fail to demonstrate that his counsel’s performance constituted “gross incompetence”.

Nature:

101. […] The totality of evidence relating to the forcible transfer and the detention and mistreatment in Bratunac town, in particular when coupled with the humanitarian crisis that followed the fall of the Srebrenica enclave, leaves no room for any other reasonable conclusion about the nature of the attack.

Knowledge:

102. Blagojević also submits that the Trial Chamber erred in fact in finding that he was aware of this broader context.[1] His simple denial that he lacked knowledge of the context in which the attack occurred is insufficient to call into question the reasonableness of the Trial Chamber’s findings on this point. As discussed elsewhere in this Judgement, the Trial Chamber reasonably concluded that he was aware, among other things, of the dire humanitarian situation, the forcible transfer, and the detention and mistreatment of thousands of Bosnian Muslim men in Bratunac town, as well as the role played by brigade personnel in these events.[2] Moreover, it was also reasonable for the Trial Chamber to conclude that given his role as a commanding officer of a brigade operating in the area at the time, Blagojević would have had knowledge of the wider context in which his own acts occurred, namely the widespread or systematic attack against the civilian population of Srebrenica. Though the Trial Chamber concluded that he lacked knowledge of the mass murder operation,[3] the events of which he had knowledge, mentioned above, were sufficient to put him on notice of the nature of the attack.

The Trial Chamber determined that Blagojević was complicit in genocide by allowing Bratunac Brigade resources and personnel to be used in connection with the forcible transfer from Potočari and the mistreatment and murder of the Bosnian Muslim detainees in Bratunac town.[1] For the Trial Chamber, the forcible transfer of the women and others was a “manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population” and the killings and mistreatment at Bratunac town were a similar “manifestation of this intent to destroy the group.”[2]

122. The main question for the Appeals Chamber is whether, in the absence of knowledge about the mass killings, the above findings form a sufficient basis to conclude that Blagojević knew of the principal perpetrators’ genocidal intent. It follows from the Krstić Appeal Judgement that the existence of the mass killings which followed the take-over of Srebrenica was key to the finding that genocide had been committed.[3] In this respect, the Appeals Chamber stated: “[t]he main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.”[4] Moreover, the Appeals Chamber also placed significant weight on Radislav Krstić’s awareness of the mass killings in determining that he had knowledge of the genocidal intent of the principal perpetrators.[5] In this respect, the Appeals Chamber refers to its assessment of the impact of Radislav Krstić’s awareness of the forcible transfer operation, the separations in Potočari, and the detention and mistreatment of Bosnian Muslim men in Bratunac town on his knowledge of the genocidal intent of the principal perpetrators.[6]

123. The Appeals Chamber notes that genocidal intent may be inferred, among other facts, from evidence of other culpable acts systematically directed against the same group.[7] Thus, the Appeals Chamber accepts that the forcible transfer operation, the separations, and the mistreatment and murders in Bratunac town are relevant considerations in assessing whether the principal perpetrators had genocidal intent.[8] However, the Appeals Chamber is not convinced by the Trial Chamber’s reasoning that the forcible transfer operation alone or coupled with the murders and mistreatment in Bratunac town would suffice to demonstrate the principal perpetrators’ intent to “destroy” the protected group.[9] The Krstić Appeal Judgement clearly held that “forcible transfer does not constitute in and of itself a genocidal act”, and it is simply a relevant consideration as part of the overall factual assessment.[10] Similarly, the Appeals Chamber notes that “opportunistic killings” by their very nature provide a very limited basis for inferring genocidal intent. Rather, as the Appeals Chamber determined in the Krstić Appeal Judgement, these culpable acts simply assist in placing the mass killings in their proper context.[11] Consequently, no reasonable trier of fact could find beyond a reasonable doubt that, without knowledge of the mass killings, Blagojević’s awareness of the other facts related to the forcible transfer operation shows that he had knowledge of the principal perpetrators’ genocidal intent.[12]

342. […] Mere compliance with the law is not ordinarily a factor in assessing an accused’s good character, but the Appeals Chamber has noted that a Trial Chamber, in the exercise of its discretion, may credit an accused for fully complying with certain obligations, such as the terms and conditions of an accused’s provisional release,[1] or may permissibly credit an accused for preventing the commission of crimes.[2]

344. […] Nor does the Prosecution demonstrate error in the weight accorded by the Trial Chamber to Jokić’s voluntary surrender. The Prosecution argues that an accused is under an obligation to surrender to the International Tribunal,[1] but this does not mean that doing so may not be considered in mitigation,[2] as the Trial Chamber did here. Although voluntary surrender is not cooperation with the Prosecution per se, it is cooperation with the International Tribunal, and the Trial Chamber could consider it a mitigating circumstance. Therefore, the Appeals Chamber dismisses this sub-ground of the appeal. […]

142. [the Trial Chamber sentenced Blagojević to 18 years] The Appeals Chamber has reversed Blagojević’s conviction for complicity in genocide on the basis that his knowledge of the forcible transfer operation, the separations, and the mistreatment and murders in Bratunac town were insufficient, without knowledge of the mass killings, to allow a reasonable trier of fact to find genocidal intent beyond reasonable doubt. However, the Appeals Chamber has upheld Blagojević’s convictions for aiding and abetting murder as a violation of the laws or customs of war, and aiding and abetting murder, persecutions, and other inhumane acts (forcible transfer) as crimes against humanity. The Appeals Chamber proceeds with the adjustment of Blagojević’s sentence in light of its findings, and in accordance with the requirements of the Statute and the Rules. In light of the circumstances of this case, as well as the gravity of the crimes for which Blagojević is responsible, the Appeals Chamber, taking into account the principle of proportionality, considers that the sentence imposed by the Trial Chamber should be reduced to fifteen years. […]

339. The Appeals Chamber recalls that “the governing criterion in sentencing is that the sentence should reflect the totality of the offender's conduct (the ‘totality’ rinciple), and that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate.”[1] […]

9. […] Where the Prosecution is appealing, the Appeals Chamber will reverse only if it finds that no reasonable trier of fact could have failed to make the particular finding of fact beyond reasonable doubt and the acquittal relied on the absence of this finding.[1] […]

280. As a threshold matter, the Appeals Chamber confirms that superior responsibility under Article 7(3) of the Statute encompasses all forms of criminal conduct by subordinates, not only the “committing” of crimes in the restricted sense of the term, but all other modes of participation under Article 7(1). The Appeals Chamber notes that the term “commit” is used throughout the Statute in a broad sense, encompassing all modes of responsibility covered by Article 7(1)[1] and that such a construction is clearly manifest in Article 29 (co-operation and judicial assistance) of the Statute, referring to States’ obligation to co-operate with the International Tribunal “in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.”

281. The Appeals Chamber has previously determined that criminal responsibility under Article 7(3) is based primarily on Article 86(2) of Protocol I.[2] Accordingly, the meaning of “commit”, as used in Article 7(3) of the Statute, necessarily tracks the term’s broader and more ordinary meaning, as employed in Protocol I.[3] The object and purpose of Protocol I, as reflected in its preamble, is to “reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application”. The preamble of Protocol I adds further that “the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments.” The purpose of superior responsibility, as evidenced in Articles 86(1) and 87 of Protocol I, is to ensure compliance with international humanitarian law. Furthermore, one of the purposes of establishing the International Tribunal, as reflected in Security Council Resolution 808, is to “put an end to [widespread violations of international humanitarian law] and to take effective measures to bring to justice the persons who are responsible for them”. And, more particularly, the purpose of superior responsibility in Article 7(3) is to hold superiors “responsible for failure to prevent a crime or to deter the unlawful behaviour of [their] subordinates.”

282. In this context, the Appeals Chamber cannot accept that the drafters of Protocol I and the Statute intended to limit a superior’s obligation to prevent or punish violations of international humanitarian law to only those individuals physically committing the material elements of a crime and to somehow exclude subordinates who as accomplices substantially contributed to the completion of the crime. Accordingly, “commit” as used in Article 7(3) of the Statute must be understood as it is in Protocol I, in its ordinary and broad sense.