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]

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.

283.   The Appeals Chamber recalls that the ICTY Trial Chamber in the Galić case determined, by majority, that the ICTY had subject-matter jurisdiction over the crime of terror under Article 3 of the ICTY Statute.[1] The ICTY Appeals Chamber in the same case confirmed, by majority, the ICTY’s jurisdiction over the crime of terror, clarifying that customary international law imposed individual criminal responsibility for violations of the prohibition of terror against the civilian population at the time of the commission of the crimes for which Galić was convicted.[2] The ICTY Appeals Chamber in the D. Milošević case, by majority, subsequently reaffirmed the ICTY’s jurisdiction over the crime of terror.[3] In light of this jurisprudence, the Appeals Chamber considers that the matter of the ICTY’s jurisdiction over the crime of terror was settled by the ICTY Appeals Chamber and was therefore binding on the Trial Chamber in the present case.[4] As it was not open to the Trial Chamber to depart from the existing jurisprudence in this respect, the Appeals Chamber rejects Mladić’s contention that the Trial Chamber erred in failing to give sufficient weight to his submissions that there exist cogent reasons to do so.

284.   As to whether there exist cogent reasons for the Appeals Chamber to depart from the jurisprudence in this regard, the standards of appellate review require Mladić to demonstrate that the decision to exercise jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[5] […] 

285.  A review of the Galić Appeal Judgement reveals that the judges of the majority applied the same legal principles as Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case in reaching their conclusions, namely that: (i) the ICTY has jurisdiction to prosecute a violation of a rule of international humanitarian law under Article 3 of the ICTY Statute when four conditions are fulfilled, including when “the violation of the rule must entail, under customary international law, the individual criminal responsibility of the person breaching the rule” (“Fourth Condition”);[6] and (ii) the fulfilment of the Fourth Condition may be inferred from, inter alia, state practice indicating an intention to criminalize the violation.[7] 

286. In concluding that the Fourth Condition was fulfilled, the judges of the majority in the Galić case considered, inter alia, that: (i) references to terror as a war crime could be found in national and multinational documents as early as 1919 and 1945;[8] (ii) numerous states, including the former Yugoslavia, had criminalized terrorizing civilians as a method of warfare or in a time of war;[9] and (iii) a court in Croatia had entered a conviction under, inter alia, Article 51 of Additional Protocol I and Article 13 of Additional Protocol II for acts of terror against civilians which occurred between March 1991 and January 1993.[10] Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case, by contrast, expressed doubt as to whether the evidence referred to by the majority in the Galić case was sufficiently extensive and uniform to establish customary international law.[11]

287. In the Appeals Chamber’s view, Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case applied the same legal principles as the majority in the Galić case in determining the sufficiency of the evidence of state practice before them and merely disagreed on the result.[12] Bearing in mind that “two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence, both of which are reasonable”,[13] the Appeals Chamber finds that Mladić fails to demonstrate that the finding by the ICTY Appeals Chamber that the ICTY had jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was wrongly decided. In the absence of cogent reasons to depart from the controlling jurisprudence, the Appeals Chamber finds no error in the Trial Chamber’s determination that the ICTY had jurisdiction over the crime of terror in the present case. 

288.   As to Mladić’s contention that the definition of the crime of terror nonetheless violated the principle of nullum crimen sine lege for lack of specificity and foreseeability,[14] the Appeals Chamber notes that the Trial Chamber set out the elements of the crime in accordance with the ICTY Appeals Chamber’s definition in the Galić Appeal Judgement, as clarified in the D. Milošević Appeal Judgement.[15] In particular, the Trial Chamber stated that the crime of terror requires proof of, inter alia, acts or threats of violence committed with the primary purpose of spreading terror among the civilian population and directed against the civilian population or individual civilians not taking direct part in hostilities causing the victims to suffer grave consequences.[16]

289.   Relying on Judge Shahabuddeen’s separate opinion in the Galić Appeal Judgement stating that “there is neither the required opinio juris nor state practice to support the view that customary international law knows of a comprehensive definition [of terror]”,[17] Mladić argues that the ICTY was not in a position to define the elements of the crime.[18] He further contends that the definition adopted by the ICTY, particularly the requirement that victims suffer “grave consequences” from the acts or threats of violence, did not provide a clear gravity threshold and was improperly determined through a jurisdictional analysis which was developed after the Indictment period.[19]   

290.   The Appeals Chamber recalls that the principle of nullum crimen sine lege requires that a person may only be found guilty of a crime in respect of acts which constituted a violation of a norm which existed at the time of their commission.[20] Moreover, the criminal liability in question must have been sufficiently foreseeable and the law providing for such liability must have been sufficiently accessible at the relevant time.[21] This principle does not, however, prevent a court from interpreting and clarifying the elements of a particular crime, nor does it preclude the progressive development of the law by the court.[22]

291.   The Appeals Chamber notes that Judge Shahabuddeen specified in his separate opinion in the Galić Appeal Judgement that: (i) he agreed with the view that terror as charged is a crime known to customary international law;[23] (ii) the ICTY could recognize that customary international law does know of a core or predominant meaning of “terror” for which there was individual criminal responsibility at the material times;[24] and (iii) he was satisfied that a serious violation of the laws or customs of war within the meaning of Article 3 of the ICTY Statute, namely, by resorting to the core of terror, gives rise to such responsibility, which existed at the time of the alleged acts of the appellant.[25] In the view of the Appeals Chamber, the ICTY Appeals Chamber in the Galić and D. Milošević cases merely clarified the elements of the crime of terror, which existed in customary international law, for the purposes of Article 3 of the ICTY Statute.[26] The Appeals Chamber considers that this is consistent with the principle of nullum crimen sine lege, as recalled above. Consequently, Mladić fails to show any error in the Trial Chamber’s application of the elements of the crime of terror as clarified by the ICTY Appeals Chamber.[27]

292.   As to foreseeability, the Appeals Chamber recalls that the accused must be able to appreciate that his conduct was criminal in the sense generally understood, without reference to any specific provision.[28] Although the ICTY did not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction, it had recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the Indictment was prohibited and punishable.[29]

See also para. 293.

294. […] [I]n the Appeals Chamber’s view, the specification that, for the purposes of Article 3 of the ICTY Statute, the crime of terror also requires that victims suffered “grave consequences”,[30] in no way detracts from the conclusion that Mladić could reasonably have known that the commission of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was prohibited and punishable.[31] […]