21. The Appeals Chamber finds more merit in the Appellant’s contention that the Referral Bench erred in its factual assessment of whether he amounted to a “most senior leader”.  The Referral Bench set out the following standard for considering his level of responsibility. […] Yet the Referral Bench’s application of this standard was sparse.  The Referral Bench simply stated that “[i]rrespective of the alleged local notoriety of Milan Lukić and his paramilitary group, neither of the Accused can sensibly be characterised as one of the ‘most senior leaders’, as envisioned by the Security Council in Resolution 1534.”[1]  This conclusory statement appears to presume that a “local” paramilitary leader can never constitute a “most senior leader”.  In doing so, it fails to take into account the “alleged level of participation in the commission of the crimes charged in the indictment.”[2]  The Second Amended Indictment not only alleges that the Appellant directly “committed” the crimes charged, but also suggests that he was a leader and orchestrator of these crimes[3] – which were part of “one of the most notorious campaigns of ethnic cleansing in the conflict”.[4]  There is no suggestion in the Second Amended Indictment that the Appellant was acting under the orders of others, although he may have coordinated with others in carrying out a “reign of terror upon the local Muslim population.”[5]  Rather, it seems that within his own sphere, he was a dominant presence.

22. […] In light of the number and nature of his alleged criminal acts, and given the absence of any suggestion in the Indictment that the Appellant answered to a higher authority, the Appeals Chamber considers the Appellant’s case falls into this category of most significant paramilitary leaders. The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[6]  In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant.

26. […] In light of the notorious role played by paramilitary organizations and their leaders during the conflict in the former Yugoslavia, and in light of the Security Council’s recognition that the Tribunal should try at least some of these leaders, the Appeals Chamber considers that the Appellant’s case should be retained by the Tribunal. Based on the allegations set forth in the Second Amended Indictment, the Appellant will be perhaps the most significant paramilitary leader tried by the Tribunal to date.