424. The Appeals Chamber has previously considered within the discussion of the actus reus of aiding and abetting the finding that an act or omission of an aider or abettor be “specifically directed” toward the furtherance of the crimes of the principal perpetrators.[1] The Appeals Chamber recalls, however, that “specific direction has not always been included as an element of the actus reus of aiding and abetting.”[2] It further recalls its conclusion that such a finding of specific direction “will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime”.[3] In Mrkšić and Šljivančanin, the Appeals Chamber has clarified “that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”[4] and finds that there is no “cogent reason”[5] to depart from this jurisprudence.

437. The Trial Chamber found that Sredoje Lukić, through his armed presence at and/or around the Memić House, provided practical assistance to the commission of the crimes committed at the Memić House and therefore found him guilty of aiding and abetting the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[1] The Trial Chamber correctly observed that the practical assistance of an aider and abetter must have a “substantial effect” upon the commission of the crimes in order for the actus reus to be established.[2] However, in finding that the actus reus of aiding and abetting was established, the Trial Chamber did not explicitly find that Sredoje Lukić’s practical assistance had a “substantial effect” on the commission of the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[3] The Appeals Chamber considers that an explicit finding of “substantial effect” should have been made and that the Trial Chamber’s failure to do so constitutes an error. Nonetheless, the Appeals Chamber is not convinced that this error invalidates the Trial Judgement.

438. […] the Appeals Chamber recalls that the question whether an act has a substantial effect on the commission of a crime necessitates a fact-based inquiry.[4] […]

157. In convicting Milan Lukić of committing murder, the Trial Chamber relied on the proposition contained in the Seromba and Gacumbitsi Appeal Judgements[1] that: “a person who did not personally physically commit a crime – in the present case, personally shooting each victim – can nonetheless be liable for committing the crime of murder if there is evidence that the perpetrator’s acts were as much an integral part of the murder as the killings which the crime enabled.”[2] The Trial Chamber acknowledged that the crime charged in the present case was murder, and not genocide or extermination, which were the crimes under consideration in Seromba and Gacumbitsi.[3] However, in its view, the reasoning was also applicable to the crime of murder.[4]

162. The Appeals Chamber does not find it necessary to consider whether the Seromba/Gacumbitsi line of reasoning should be followed with regard to the crime of murder. Contrary to Milan Lukić’s assertion, the Appeals Chamber is of the view that the Limaj et al. Appeal Judgement is relevant to the issue at hand. In that case, the Appeals Chamber upheld Haradin Bala’s conviction as a direct perpetrator, in the absence of a JCE, for committing murder by executing nine prisoners, on the basis that he “participated physically in the material elements of the crime of murder, jointly with Murrizi, and perhaps with a third KLA soldier” and without a need to show whose bullet killed each victim.[5] Similarly, the Appeals Chamber is satisfied that the Trial Chamber did not err when finding that Milan Lukić, jointly with others, participated in the material elements of the crime of murder, and is therefore responsible for the death of all five victims, regardless of whether or not he personally fired the fatal bullet in each case. Milan Lukić’s arguments to the contrary are dismissed, and his sub-ground 1(B) is thus rejected.

536. The Appeals Chamber recalls that the actus reus of extermination is “the act of killing on a large scale”.[1] This element of “massiveness” is what distinguishes the crime of extermination from the crime of murder.[2] The mens rea of extermination requires the intention of the perpetrator “to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths.”[3]

537. The Appeals Chamber further recalls that “large scale” does not suggest a strict numerical approach with a minimum number of victims.[4] While extermination as a crime against humanity has been found in relation to the killing of thousands,[5] it has also been found in relation to fewer killings. The Appeals Chamber recalls that in Brđanin, the killing of between 68 to 300 individuals “in light of the circumstances in which they occurred, [met] the required threshold of massiveness for the purposes of extermination.”[6] In Stakić, the trial chamber found that the killing of less than 80 individuals “independently would reach the requisite level of massiveness for the purposes of an evaluation under Article 5(b) of the Statute”.[7] In Krajišnik, while the conviction for extermination as a crime against humanity was based on the killing of at least 1,916 individuals, the trial chamber found that the killing of approximately 66 individuals during the Pionirska Street Incident satisfied the element of massiveness.[8] The ICTR and the Special Court for Sierra Leone (“SCSL”) have also found the killing of about 60 individuals and less to be sufficiently large-scale to amount to extermination.[9]

538. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.[10] Relevant factors include, inter alia: the time and place of the killings;[11] the selection of the victims and the manner in which they were targeted;[12] and whether the killings were aimed at the collective group rather than victims in their individual capacity.[13] In Krstić, the trial chamber qualified the victimised population and held that:

“extermination” could also, theoretically, be applied to the commission of a crime which is not “widespread” but nonetheless consists in eradicating an entire population […] made up of only a relatively small number of people. In other words, while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited.[14] […] [T]here must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.[15]

The Krstić trial chamber also stated that the preparation and organisation of the crime could be considered when determining the actus reus of extermination as a crime against humanity.[16] The International Law Commission articulated that “[e]xtermination is a crime which by its very nature is directed against a group of individuals” and qualified that the individuals do not have to share any common characteristics.[17]

542. The Trial Chamber thus considered the number of victims when assessing whether the element of massiveness was met. It also took into consideration the specific circumstances of the case, such as the type of victims and, with regard to the Pionirska Street Incident, the area of origin of the victims.[18] While these factors may be taken into consideration in the assessment of whether the element of massiveness for extermination is fulfilled, they do not constitute elements of the crime of extermination as a crime against humanity.[19] Therefore, a trial chamber need not address these factors in its assessment. Milan Lukić’s arguments that the Trial Chamber inconsistently considered population density in relation to the Pionirska Street and the Bikavac Incidents therefore fail. Furthermore, as these factors do not constitute elements of the crime of extermination, there is no mens rea requirement in relation to them as suggested by Milan Lukić.

543. When referring to population density regarding the Pionirska Street Incident, the Trial Chamber essentially considered the number of individuals killed in a specific area in relation to the overall population of that area.[20] The Appeals Chamber notes that almost the entire Muslim population of Koritnik perished in the Pionirska Street Incident.[21] In these circumstances, the Trial Chamber reasonably found that the killing of 59 persons amounted to extermination as a crime against humanity. The limited reduction of the number of victims by the Appeals Chamber does not affect this conclusion.[22] Furthermore, the Appeals Chamber finds that using a single village as the reference area was not artificially narrow since Milan Lukić’s conviction rests on one incident which involved victims who were predominately from the same village.[23]

544. The Appeals Chamber further finds that the Trial Chamber did not err in finding that extermination was established in relation to the Bikavac Incident. The Trial Chamber reasonably found that the killing of at least 60 persons was sufficiently large–scale.

545. Moreover, Milan Lukić’s argument that the Tribunal and the ICTR have ensured that the element of massiveness is maintained at a high level[24] is not supported by either the jurisprudence of the Tribunal or that of the ICTR. This argument is therefore dismissed.

662. The Appeals Chamber recalls that expressions of regret may be considered in mitigation, provided they are expressed sincerely.[1] The Trial Chamber did not consider the statements by Sredoje Lukić’s counsel to be expressions of remorse of the kind contemplated by law, but took “these statements into account as expressions of sympathy and compassion for the suffering of the victims of the crimes”.[2] The Trial Chamber found that in light of the gravity of the crimes, “the statements are not substantial enough to warrant great weight being placed upon them as a mitigating factor”.[3] Sredoje Lukić has not shown that the Trial Chamber erred in this respect.

65. The Appeals Chamber finds that Rašić has failed to show that the Trial Chamber erroneously relied on her position as an “officer of justice” as an aggravating circumstance. […]

66. Similarly, the Appeals Chamber finds that Rašić has failed to show that the Trial Chamber’s finding that she was an “officer of justice” is not supported by the evidence. Again, the Appeals Chamber finds that this argument effectively turns on semantics as opposed to substance. The Trial Chamber used this term to describe the obligations of “any professional involved in the proceedings before the Tribunal”, including members of defence teams.[1] It took into account that, as a member of Milan Lukić’s defence team, Rašić held a “position of trust”, and that she was “obligated to act conscientiously with full respect of the law and applicable rules”.[2]

67. The specific obligation to fully respect the applicable law is contained in the disciplinary regime applicable to members of a defence team. Pursuant to Article 35 (i) and (v) of the Code of Professional Conduct for Counsel, members of a defence team display professional misconduct if they: (i) violate the Rules; or (ii) engage in conduct which is prejudicial to the proper administration of justice before the Tribunal.[3]

17. The Appeals Chamber considers that the Trial Chamber’s power to suspend a sentence is inherent to its authority to impose one.[1] Such power is operative at the time of sentencing, and not thereafter, and for this reason is entirely distinct from the power to grant pardon or commutation.[2] The authority to grant pardon or commutation pursuant to Article 28 of the Statute and Rules 123 through 125 of the Rules is vested exclusively in the President and that power relates to a post-conviction change in the sentence, thus overriding the decision of the sentencing chamber in specific circumstances, where the detainee has already served part of a final sentence.[3]

18. […][T]he Appeals Chamber finds that the power to suspend a sentence must be distinguished from the power to issue a pardon, commutation of sentence, or early release. Such suspension of a sentence, either in full or in part, does not infringe the authority of the enforcing State to execute the sentence in accordance with the applicable law of that State. Similarly, it does not “effectively remove the power from the President of the Tribunal to make the final determination regarding the [execution of the] sentence” imposed by the Trial Chamber.[4] Rather, the decision to suspend the last eight months of Rašić’s sentence of 12 months’ imprisonment forms an integral part of the Trial Chamber’s judicial discretion in the determination of the sentence.

28. In the Appeals Chamber’s view, the Prosecution’s submission that the Trial Chamber erroneously mitigated Rasic’s sentence by partially suspending it on the basis of her health condition[1] is misguided as it relies again on a conflation of suspension and mitigation. The Trial Chamber considered that the effect that detention could have on Rašić’s psychological well-being did not constitute a mitigating factor.[2] It held, however, that this constituted a relevant consideration, among others, to partially suspend “the execution of the sentence”.[3] Regardless of whether Rašić will serve the remainder of eight months in detention, her sentence of 12 months’ imprisonment remains unaffected. Therefore, the partial suspension of Rašić’s sentence by the Trial Chamber [4] does not equate to a reduction of her sentence, and the Prosecution’s submission in this respect is dismissed.

150. As set out above, the Trial Chamber did not make explicit findings sufficient, on their face, to enter convictions against Markač based on the two alternate modes of liability deemed relevant by the Appeals Chamber.[1] In the absence of such findings, and considering the circumstances of this case, including the full context of the arguments presented by the parties at trial and on appeal, the Appeals Chamber, Judge Agius dissenting, declines to analyse the Trial Chamber’s remaining findings and evidence on the record in order to determine whether Markač’s actions were sufficient to satisfy the elements of alternate modes of liability. To undertake such an investigation in this case would require the Appeals Chamber to engage in excessive fact finding and weighing of evidence and, in so doing, would risk substantially compromising Markač’s fair trial rights.

151. More specifically, the Appeals Chamber recalls that JCE and unlawful artillery attacks have been the central issues in the parties’ arguments since the beginning of this case. The Prosecution’s Pre-Trial[2] and Final Trial[3] Briefs consistently focus on the existence of unlawful attacks and a JCE.[4] On appeal, the Prosecution devoted a single footnote to alternate modes of liability in each of its response briefs[5] and referred to the matter only briefly during oral arguments.[6]

152. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, also notes that JCE and unlawful artillery attacks underpin all of the material findings of the Trial Judgement. Indeed, the Trial Chamber emphasised its focus on JCE by explicitly declining to enter findings on the Appellants’ culpability under alternate modes of liability pled in the Indictment.[7] The Trial Chamber underscored its dependence on unlawful artillery attacks by relying on these attacks as a prism through which to interpret the Appellants’ other relevant actions, explicitly stating that it was considering the Appellants’ actions “[i]n light” of its finding that they had ordered unlawful artillery attacks.[8] More broadly, the Trial Chamber repeatedly recalled the existence of unlawful attacks in framing its discussion of Markač’s liability.[9]

153. In these circumstances, any attempt by the Appeals Chamber to derive inferences required for convictions under alternate modes of liability would require disentangling the Trial Chamber’s findings from its erroneous reliance on unlawful artillery attacks, assessing the persuasiveness of this evidence, and then determining whether Markač’s guilt was proved beyond reasonable doubt in relation to the elements of a different mode of liability. Such a broad-based approach to factual findings on appeal risks transforming the appeals process into a second trial. 

154. The Appeals Chamber observes that in the context of this case, drawing the inferences needed to enter convictions based on alternate modes of liability would also substantially undermine Markač’s fair trial rights, as he would not be afforded the opportunity to challenge evidence relied on by the Appeals Chamber to enter additional convictions. The Appeals Chamber notes that Markač was provided the opportunity to discuss whether the Trial Chamber’s findings implicate alternate forms of liability.[10] However the scope of this additional briefing did not extend to challenging evidence presented to the Trial Chamber.[11] Even if the Appeals Chamber had exceptionally authorised Markač to challenge evidence not related to his convictions, the very large scale of potentially relevant evidence on the record would render any submissions by Markač voluminous and speculative. In addition, Markač would almost certainly have been left uncertain about the scope of the case against him on appeal.[12]

48. The Appeals Chamber is also not persuaded that the Trial Chamber’s assessment of the accuracy of the HV’s weaponry and its application of these findings to each identifiable impact site involved information which should have been pled in the Indictment. The Trial Chamber’s approach to assessing the evidence is not a material fact of the crimes charged.[1] It was also not incumbent on the Trial Chamber to make findings on relevant evidence during the course of the trial or to put any such findings to various witnesses for comment.