Laurie Mayer: Presiding Judge at Mladic Appeal says he deserves a retrial

We recomment to our readers this remarkable analytical synthesis of Judge Prisca Nyambe’s separate and dissenting opinion in the trial of General Ratko Mladić, the commander of Serbian forces in Bosnia during the conflict from 1992 – 1995. Mladić was accused before the Hague Tribunal of committing a number of heinous crimes, including genocide. In the forefront of Mladić’s indictment, of course, were the events in Srebrenica in July 1995, which provided the basis for the charge of “genocide.”

Realistically, it is the view of the majority which will count in official and media circles, at least for the time being until all verdicts and procedures of the flawed Hague Tribunal are subjected to thorough scrutiny. Pending that inevitable review of the devastated legal landscape that is the Hague Tribunal’s legacy, the opinion of Judge Nyambe in the trial of General Ratko Mladić will shine as an example of legal acuity and professional integrity. We express our deep gratitude to Mr. Laurie Mayer for this superb presentation of the principal points made by Judge Nyambe in her analysis.

The trial of Serb commander General Ratko Mladic which led to his life sentence for genocide and crimes against humanity was ‘fatally flawed’. The ‘systematic errors’ were such that, according to the judge presiding at his appeal in 2021, Mladic deserves a retrial.

 

Judge Prisca Matimba Nyambe stunned her four fellow judges with her lone dissenting opinion, disagreeing with almost every one of their rulings which dismissed the appeal and upheld his convictions. She accepted Mladić’s claim that the removal of up to 30,000 Bosnian Muslims from Srebrenica, after the enclave’s fall to his forces, was done for ‘humanitarian reasons’ and concluded that ‘lack of analysis by the Trial Chamber failed to establish the number of victims and their relation to any crime, let alone genocide.’

 

It was not the first time Judge Nyambe had rejected the findings of the ICTY.  In 2012 she dissented from the conviction of one of Mladić’s generals, Zdravko Tolimir, saying that the massacre of men and teenage boys from Srebrenica was the work of ‘a small group of individuals operating in an unauthorised and secreted manner’ and that the separation of Muslim men and boys from their families was ‘to legitimately screen for war criminals.’

 

Nyambe, a 69 year old Zambian jurist, has been described by the Institute for African Women in Law as ‘a bold, remarkable and inspiring example of legal brilliance.’  She was part of the International Criminal Tribunal for Rwanda, the sister court to The Hague tribunal for former Yugoslavia, rising to become its chief counsel.

 

Her dissenting opinion in the Mladic appeal is a meticulous and forensic analysis of the failings of the ICTY to deliver impartial justice.

 

Case Background.

 

Ratko Mladić was originally charged before the ICTY with two counts of genocide, five counts of crimes against humanity, and four counts of violations of the laws or customs of war committed by Serb forces during the armed conflict in BiH from 1992 until 1995.

 

He was alleged to be individually criminally responsible for those crimes through his participation in several related joint criminal enterprises. The alleged objective of the first, Overarching JCE was the permanent removal of Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territories in BiH through the crimes charged in the indictment.

 

Mladić was also charged as a superior for knowing, or having reason to know, that crimes were about to be committed or had been committed by forces under his effective control and failing to prevent the crimes or punish the perpetrators.

 

The charges were:

 

Two counts of genocide (Counts 1 and 2) Five counts of crimes against humanity

 

• Persecutions (Count 3)
• Extermination (Count 4)
• Murder (Count 5)
• Deportation (Count 7)
• Inhumane acts (forcible transfer) (Count 8)

 

Four counts of violations of the laws or customs of war

 

• Murder (Count 6)
• Terror (Count 9)
• Unlawful attacks on civilians (Count 10)
• Taking of hostages (Count 11)

 

ICTY Trial Chamber Judgement

 

On 22 November 2017, Mladić was convicted of genocide in the area of Srebrenica in 1995 and of persecution, extermination, murder, deportation, inhumane acts (forcible transfer), terror, unlawful attacks on civilians and the taking of hostages. He was acquitted of the charge of genocide in six of the municipalities in BiH in 1992.

 

It was found that Mladić committed these crimes through his participation in four joint criminal enterprises, JCEs: (i) the Overarching JCE had the objective of permanently removing Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory in BiH;(ii) the Sarajevo JCE had the objective of spreading terror among the civilian population of Sarajevo through a campaign of sniping and shelling; (iii) the Srebrenica JCE had as its objective the elimination of Bosnian Muslims in Srebrenica; (iv) the Hostage-Taking  JCE had as its objective the taking of UN hostages to prevent NATO from conducting air strikes against Bosnian Serb military targets.  His sentence was life imprisonment.

 

The Mladic Appeal

 

At his Appeal hearing in June, 2021, Mladic argued that the Trial Chamber had:

 

(i) failed to apply the proper legal standard in Grounds 3 to 7 of his appeal, whereby the Prosecution’s burden of proof was lowered.

 

(ii) failed to give a reasoned opinion in relation to all four joint criminal enterprises

 

(iii) erred in relation to the Overarching JCE as well as the Sarajevo JCE in assessing his mens rea (criminal intent) and actus reus (guilty act)

 

(iv) erred in relation to the use of adjudicated facts regarding his “proximate subordinates”, the heightened standard on rebuttal evidence, and crime-base findings.

 

(v) in its conduct of proceedings, violated his fair trial rights regarding his effective participation, the Prosecution’s conduct, and equality of arms.

 

An accused in an international criminal trial has a right to a trial that is both ‘fair and expeditious.’ The principles of fairness and expediency aim to provide appropriate justice to other stakeholders in the trial, such as victims; and to enhance judicial economy. The rules of international criminal procedure are supposed to regulate a trial to meet these overarching principles.

 

The appeal hearing took place on 25/26 August 2020 in the Hague, after earlier postponements due to Mladić’s health and coronavirus-related restrictions. Given the complexity and size of the case file Judge Nyambe said she only addressed the errors she deemed ‘most egregious.’

 

In the following extracts from her Dissenting Opinion text in blue indicates direct quotations referenced with the relevant paragraph numbers in the Appeal Judgement (AJ)  (TJ) refers to paragraphs in the 2017 Trial Judgment.

 

Judge Nyambe begins by arguing that the Trial Chamber erred by holding Mr. Mladic criminally liable and responsible for crimes that were not even mentioned in his indictment. To be unexpectedly confronted with these so called  ‘unnamed unscheduled incidents’ meant he was clearly unable to prepare or offer any defence.

 

Ground 1- Indictment and Notice

 

By definition, scheduled incidents are incidents that are identified in a schedule attached to the Indictment. They are numbered, named, and listed. Notice is given that they form part of the allegations against the accused by the very fact that they are annexed to the Indictment. Unscheduled incidents are incidents that can be relied on by the Prosecution to prove material elements of the crime, for example, a course of conduct. Notice of these is given in, for example, the Rule 65 ter witness list in which the Prosecution explicitly states that a witness will be called to give evidence on an “unscheduled incident.” (594 AJ)

 

Unnamed unscheduled incidents are incidents that witnesses made accusations about at trial in the course of their evidence on scheduled incidents or other defined subjects but about which no notice was provided to the Defence that they are in fact incidents for which Mr. Mladić could be held responsible…..These are not charged. A trier of fact cannot enter a conviction on these other accusations which are not charged. The Prosecution would have to put the Defence on notice that it sought to add them to the Indictment before any convictions could be entered…. Mr Mladic only became aware of these incidents when the Trial Judgment was rendered… (595AJ)

 

In failing to give notice the Trial Chamber erred. Without knowing the specific crimes alleged, the Defence could only put forward a general defence.  These included Srebrenica, incidents of sniping and shelling, cruel and inhumane treatment, unlawful treatment and detention. The trial court’s failure to notify him had

 

….materially affected his ability to prepare his defence… It convicted Mr Mladic of such accusations that were never identified as scheduled or unscheduled incidents (596A)

 

A general defence cannot counter a specific accusation or incident.(599 AJ ) ….A trial chamber can only convict an accused of crimes that are charged in the indictment. The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused and enable him or her to prepare a meaningful defence.’ ( Karadzic Appeal Judgment cited at 600AJ, 2029TJ)

 

As a result of the Trial Chamber’s error, Mr. Mladić was held criminally responsible for unnamed unscheduled incidents which constituted crimes against humanity, terror, unlawful acts, and persecution. The Trial Chamber then took these into account when determining the…extent of Mr. Mladic’s criminal responsibility.  (603 AJ).

 

Upholding any findings in this regard would be unfair, and prejudicial to Mr. Mladić’s fair trial rights as enshrined in the Statute and Rules of Procedure and Evidence.(604AJ)

 

 

 

Ground 2 – Adjudicated Facts

 

The Mladic appeal came at a unique moment in the history of  International Criminal Tribunal for the Former Yugoslavia. The ICTY was nearing the end of its mandate which gave it two distinctive features: an established trial record, and a pressing need to conclude its ongoing proceedings.  Rather than be overwhelmed and encumbered by past jurisprudence,  the ICTY decided to try to turn this established trial record to advantage to speed up remaining cases. One procedural tool to achieve this was to take what is known as ‘judicial notice’ of facts previously adjudicated, as provided for in Rule 94(B) of the Rules of Procedure and Evidence of the ICTY.

 

The process of taking judicial notice allows the court to enter facts into the evidentiary record, without actual evidence being brought on that contested fact. This effectively reverses the burden of proof, shifting it from the prosecution to the defence which then has to bring evidence to rebut the adjudicated facts. It is a rule that is increasingly being used and one that can seriously disadvantage a defendant.

 

The International Criminal Court for Rwanda Appeals Chamber held that: ‘facts relating to the conduct of the physical perpetrators of crimes for which an accused is alleged to be criminally responsible may be subject to judicial notice.’  (Karemera et al. Decision of 16 June 2006 para. 50)

 

But a decision by the ICTY Appeals Chamber held that:

 

‘where the evidence is pivotal to the Prosecution case and where the person whose acts and conduct the written statement describes is….proximate  to the accused, the trial chamber may decide that it would not be fair to the accused to permit the evidence to be given in written form.’ (Galic Decision, 16 June 2002 cited 607AJ)

 

Judge Nyambe wanted the Appeals Chamber ‘ to determine whether the Trial Chamber erred by taking judicial notice of facts relating to Mr. Mladić’s proximate subordinates under Rule 94(B) of the ICTY Rules; and the Trial Chamber erred by applying a heightened standard to

rebuttal evidence. (605AJ)

 

Use of Adjudicated Facts Relating to the Conduct of Subordinates

 

…specifically in the context of adjudicated facts the ICTY Appeals Chamber held that ‘while it is possible to take judicial notice of adjudicated facts regarding the existence of such crimes, the actus reus (criminal act)  and mens rea (guilty mind) supporting the responsibility of the accused for the crimes in question must be proven by other means than judicial notice.’ (610 AJ, D. Milošević Decision of 26 June)…. ‘it is prohibited to take judicial notice of adjudicated facts relating to the acts, conduct, and mental state of the accused.’ (607AJ,2036/7 Karemera et al. Decision of 16 June 2006,  D. Milosevic Decision 26 June 2007 )

 

The (Galic) decision considered that admitting evidence that went to the conduct of the immediately proximate subordinates was inherently unfair …. on the basis of what it considered to be a short step from a finding that crimes charged were committed by such subordinates to a finding that the accused knew or had reason to know that these crimes were about to be or had been committed (608AJ)

 

The Appeals Chamber did not define ‘immediate  proximate subordinates’ with reference to  the rank of an accused, but rather whether their conduct was so widespread that the inference would be drawn that “there is no way that the accused could not have known about it” or “the accused had to be aware” of the objectives of his subordinates. It considered that where this link became sufficiently pivotal to the Prosecution’s case on responsibility “it may not be fair to the accused” to permit this evidence in written form as it could not be challenged by the Defence. (609AJ, 2041/2TJ)

 

By way of example, I refer to the incident of 23 July 1995…The Trial Chamber took judicial notice of a number of adjudicated facts in relation to the SRK’s possession of modified air bombs between August 1994 and November 1995 and relating to a shelling incident on this day. It specifically took judicial notice of the fact that the ‘modified air bomb was fired from a north-westerly  direction from SRK-held territory.’ On the basis of a judicial fact alone, no Prosecution evidence, the Trial Chamber concluded that a member or members of the SRK launched a modified air bomb on that day and killed two civilians, seriously injuring others. (612AJ).

 

The Prosecution’s case was that Mr. Mladić was the most senior officer in the VRS and significantly contributed to achieving the objectives of the joint criminal enterprises primarily through the use of VRS forces. These specifically included the SRK, which the Prosecution said

‘implemented’  Mr. Mladić’s orders, ethnically cleansing municipalities  and terrorising Sarajevo’s civilians through a campaign of shelling and sniping. In light of this, the adjudicated fact established that the crimes charged were committed by Mr. Mladic’s alleged subordinates. Given that the Prosecution’s case was that the SRK was implementing  Mr. Mladić’s orders and they were used as tools to achieve the objectives of the joint criminal enterprise, the adjudicated fact on the identity of the perpetrators went to the core of its case on his responsibility.  Despite this, the Trial Chamber took judicial notice of this fact in the absence of Prosecution evidence that could establish the SRK’s responsibility for this incident.(613AJ)

 

This example demonstrates the error with the Trial  Chamber’s reliance on the approach in the Karemera et al Decision of 16 June 2006. The Trial Chamber considered that there were no limitations on which adjudicated facts judicial notice could be taken of in the context of the conduct of other members of the joint criminal enterprise or the physical perpetrators. (Karemera et al. Decision of 29 May 2009 cited 614AJ) … it is not sufficient to state that the Trial Chamber only considered the adjudicated facts in connection with ‘other evidence during its deliberations’ without specifically pointing to the actual evidence.’ (620AJ)

 

Furthermore, the Trial Chamber erroneously failed to provide reasons for rejecting evidence in rebuttal of adjudicated facts and repeatedly failed to state in the Trial Judgment which adjudicated facts it was taking judicial notice of and/or which it relied on in making findings of fact, and also relied on adjudicated facts from cases which the judges of the Trial Chamber had previously presided over in which there were references to Mr. Mladic’s role and guilt, thereby resulting in a perception of bias. (621AJ,2069TJ)

 

… the Defence bears the burden to produce credible and reliable evidence sufficient to bring the accuracy of the adjudicated fact into dispute. The threshold of credible and reliable rebuttal evidence, is ‘relatively low: what is required is not the definitive proof of reliability or credibility of the evidence, but the showing of prima facie reliability and credibility on the basis of sufficient indicia.’  The Trial Chamber itself recognised…  that the accuracy of facts could, for example, be challenged through the cross-examination of Prosecution witnesses or the presentation of Defence evidence to meet this threshold. (625AJ)….

 

… The Defence was not required necessarily to present rebuttal evidence as part of its case to bring the accuracy of the adjudicated fact into dispute. The Trial Chamber acknowledged  it was able to do so by confronting the Prosecution evidence and eliciting inconsistencies  and weaknesses therein… the Trial Chamber imposed an erroneous additional requirement for defence evidence to be “unambiguous” (626AJ)

 

The Trial Chamber explained that this could be done by :

 

.. either presenting  evidence on a specific alternative scenario, as opposed to a mere suggestion of one or more possible alternative scenarios, or in the unambiguous demonstration that a scenario has one or more possible alternative scenarios, or in the unambiguous demonstration that a scenario as found in an adjudicated fact must reasonably be excluded as true. (627AJ AJ citing 5273TJ)

 

To further explain what it meant by a ‘specific alternative scenario’, the Trial Chamber gave an example: “if an adjudicated fact stated that ‘B killed C’, and the Trial Chamber received evidence that ‘C was possibly/likely  killed by A’”, this would be deemed insufficient to reach the threshold of “unambiguous” evidence.(628AJ)

 

If something is possible or likely, then there is doubt. Where there is doubt, in criminal law that doubt must be resolved in favour of the accused. To expect the Defence to present evidence that is without doubt is to reverse the burden of proof and impose a heightened standard – that of beyond reasonable doubt. It follows that eliciting doubt through cross- examination of Prosecution witnesses, such that inconsistencies  or weaknesses could be pointed out, would not be sufficient.(629AJ)

 

The Defence would have had  to  prove beyond reasonable doubt that C was killed by A.  There is no legal basis for this standard. The fact that the Trial Chamber does not cite a single authority for it in the Trial Judgement is perhaps indicative of this. (630AJ,2084TJ)

 

… the Trial Chamber stated that it is ‘mindful that evidence contradicting adjudicated facts does not automatically rebut the adjudicated fact.’ The defence also had to show that the evidence that was brought was reliable and credible. The reliability and credibility test was a secondary consideration.  As such the Trial Chamber imposed an additional hurdle that the Defence had to overcome before it could reach the accepted standard required….(631AJ,5274TJ)

 

…I am satisfied that the Trial chamber applied a heightened standard….its  evaluation of the evidence was erroneous, as the Trial Chamber relied on the unrebutted adjudicated facts to substantiate the evidentiary basis for Mr. Mladic’s responsibility under the Overarching JCE. For example the Trial Chamber relied on Adjudicated Fact 1476 to establish Mr. Mladic’s criminal responsibility for the killing of all the 7,000-8,000 victims who were not actively taking part in hostilities in Srebrenica. Even when the accuracy of the adjudicated facts was challenged through evidence presented by the Prosecution, the Trial Chamber’s approach prevented Mr Mladic from enlivening the evidentiary debate through cross examination.

 

In light of the heightened standard applied, the only way Mr Mladic could rebut the adjudicated fact was to disprove it beyond reasonable doubt. No reasonable trier of fact would have applied the heightened standard used by the Trial Chamber. Had the proper legal standard been applied, the rebuttal evidence from cross examination or presented by the Defence would have enlivened the debate and and the adjudicated facts would have been rebutted. As the Prosecution’s evidence was insufficiently  reliable to establish criminal responsibility, the Trial Chamber would have reached a different conclusion had the correct standard been applied to the adjudicated facts. Therefore, the Trial Chamber’s reliance on the judicially noticed facts to find Mr Mladic responsible for the crimes constituted an error that occasioned a miscarriage of justice. (632AJ)

 

…the standard applied by the Trial Chamber to rebuttal evidence was erroneous…This infected the Trial Chamber’s approach to adjudicated facts throughout the judgment.…systematic error such that the Trial Chamber’s approach to to every single adjudicated fact is called into question..I am satisfied that the Trial  Chamber fell into discernible error and applied a standard that no reasonable Trial Chamber would and, in fact, ever has applied. (635AJ)

 

Alleged Errors in Applying an Incorrect Standard of Proof, Failing to Provide a Reasoned Opinion, and Relying on Untested Evidence. (Grounds 2B, 2C and 2D)

 

Mr Mladic submits that the Trial Chamber systematically erred in law and in fact throughout the Trial Judgment by:

 

1. Applying an incorrect standard of proof , thereby alleviating the Prosecution’s burden to prove his guilt beyond reasonable doubt;
2. Failing to address clearly relevant exculpatory evidence in its reasoning, thereby indicating that it either failed to consider such evidence or gave insufficient weight thereto; and

iii.          Relying on untested evidence in a sole or decisive manner. (637AJ)

 

The Prosecution did not undermine these submissions….The Trial Chamber’s errors and their impact….individually or cumulatively, invalidate the findings on which his convictions rest. I would therefore grant Grounds 2B,2C and 2D of Mr Mladic’s Appeal.(638AJ)

 

Ground 3 – Overarching Joint Criminal Enterprise(JCE)

 

The concept of Joint Criminal Enterprise was one of the most controversial aspects of ICTY Jurisprudence.  JCE is a legal doctrine used to allow the prosecution of individual members of a group for the actions of the group. The most notorious innovation was so called third category JCE in which a defendant could be held responsible for a crime he did not intend or indeed had actively opposed. By virtue of its elastic nature it was a catch all. Many lawyers said JCE really stood for ‘just convict everyone.’

 

The Overarching JCE is defined as lasting from 1991 to 30 November 1995, and is limited to the geographic scope of Bosnia and Herzegovina. It is a fundamental principle of criminal law that there be a temporal co-existence of the criminal intent (mens rea) and criminal act (actus reus) of the prescribed conduct….

 

‘The Tribunal should have jurisdiction to convict an accused only where all of the elements required to be shown in order to establish his guilt were present.…and  at the time of such acts and omissions the accused had the requisite intent (mens rea) in order to be convicted… (639 AJ citing  Nahimana et al. Appeal Judgement 2107 TJ).

 

According to the Simba Appeal Judgment…’the inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission, the perpetrators possessed the necessary intent.’ (640AJ)

 

The ICTY Appeals Chamber in the Naletelic and Martinovic Appeal Judgement followed the

same approach:

 

‘The  principle of individual guilt requires that an accused can only be convicted for a crime if his criminal intent (mens rea) comprises the criminal act (actus reus) of the crime. To convict him without proving that he knew of the facts that were necessary to make his conduct a crime is to deny him his entitlement to the presumption of innocence. The specific required mental state will vary, of course, depending on the crime and the mode of liability. But the core principle is the same: for a conduct to entail criminal liability, it must be possible for an individual to determine ex ante on the facts available to him, that the conduct is criminal. At a minimum, then, to convict an accused of a crime, he must have had knowledge of the facts that made his or her conduct criminal.’ (641AJ)

 

The Indictment alleged that Mr. Mladić was not considered part of the Overarching JCE until 12 May 1992 when he was appointed Chief of the VRS Main Staff. Prior to that month, he neither was on the territory of Bosnia and Herzegovina nor within the command structure of the VRS since he was in Croatia and in the JNA at that time…the first error of the Trial Chamber was in trying to attribute Mr. Mladić’s speeches to Bosnia and Herzegovina in 1991 … he was  neither temporally nor geographically linked to those events. Mr. Mladić was not in

the chain of command for receiving reports about events, and certainly could not send commands to persons outside of his chain of command either to commit these crimes or to punish perpetrators. (644AJ)

 

The second error was that the Trial Judgment performs an analysis of what others, such as politicians, the police, or other armed groups said or did in the same time period prior to Mr. Mladić coming to Bosnia and Herzegovina. Many of the crimes underpinning the Overarching JCE come in this time period before Mr. Mladić was in Bosnia and Herzegovina and before the VRS. (645AJ)

 

In my view this violates the above jurisprudence as the Trial Chamber utilised events that pre- date Mr. Mladić’s appointment and geographic position to establish his mens rea (guilty mind) and contribution to a joint criminal enterprise where the guilty act was before his physical and temporal presence. The Trial Judgement’s analysis as to the Overarching JCE also relied heavily on adjudicated facts. Crimes that took place before Mr. Mladić and his VRS had hierarchy and military command and control in all regions of Bosnia and Herzegovina cannot be used to establish his guilty mind  (mens rea) , even if the guilty act, (actus reus) is shown to be perpetrated by others. (645AJ)

The Trial Chamber erred in almost  exclusively basing its analysis of Mr. Mladić’s purported contribution to the Overarching JCE on circumstantial  evidence. In using this modus, these conclusions had to be the only reasonable inferences available. According to the Lukic and Lukic Appeal Judgment……’in  order to successfully challenge the trial chamber’s assessment of circumstantial  evidence on appeal, an appellant must show that no reasonable trier of fact could have found that the conclusion reached by the trial chamber was the only reasonable inference. (646AJ, 2122TJ)

 

The ICTY Appeals Chamber….similarly noted that “in order to successfully challenge the trial chamber’s  assessment of circumstantial  evidence an appellant must show that no reasonable trier of fact could have come to any other conclusion – the conclusion arrived at must be the “only reasonable conclusion.” (647  Lukić and Lukić Appeal Judgment and  Boškoski and Tarčulovski Appeal)

 

There was direct evidence that Mr. Mladić did not share a criminal intent in accordance with the Overarching JCE, namely his orders to the VRS to respect the Geneva Conventions and ceasefire agreements, as well as his notebooks, the contents of which will be elaborated where relevant in the analysis below. This was not accepted by the Trial Chamber because it felt it had more circumstantial  evidence to the contrary. This disregard of direct evidence in favour of circumstantial evidence is a discernible error. (648AJ)

 

Having conceded that direct evidence exists showing a lack of criminal intent or mens rea as to Mr. Mladić, and if indeed this direct evidence is corroborated by other circumstantial  evidence, as set out in the Mladić Appeal Brief,  then no reasonable trier of fact can choose to ignore this direct evidence and go with “more” circumstantial  evidence to say that the “only”available inference is one indicative of guilt. Circumstantial  evidence cannot outweigh direct evidence….

 

… much of the direct evidence that was available to the Trial Chamber and disregarded included notebooks that the Trial Chamber asserted as being authored by Mr Mladic himself… Mr Mladic’s notebooks contained direct evidence of the constraints he experienced when operating in the municipalities  as well as of how he intended to protect Bosnian Muslims and Bosnian Croats; of declining discipline within the VRS and the dismantling of the MUP; and of his efforts to stop crimes from being committed by rebel military formations.

 

For example, Mr. Mladić:

 

• wrote about problems with paramilitaries and crimes that were being committed;
• issued an order to protect the Muslim population in certain villages from possible violence from individuals, because they expressed loyalty to Republika Srpska; and
• issued an order, inter alia, forbidding the cruel treatment and abuse of civilians, prisoners of war and members of international organisations, and mandating that all prisoners of war should be treated in accordance with the international law of war…(649AJ)

… the Trial Chamber erred in law by employing this defective method that resulted in a finding of Mr. Mladić’s mens rea (guilty intention) being satisfied beyond reasonable doubt on the basis of circumstantial evidence and disregarding direct evidence, and I find that he has

satisfied his burden on appeal in this regard. (650AJ)

 

The first error was that the Trial Chamber made findings of Mr. Mladić’s mens rea (guilty intention) before the actus reus (criminal act) was established. To establish the actus reus element of a joint criminal enterprise, the Trial Chamber must determine the existence and scope of a common criminal purpose shared by a plurality of persons. This is a necessary prerequisite in determining whether the acts performed by the Appellant were related and contributed to the participation in the common criminal objective. (651AJ)

 

The doctrine of joint criminal enterprise demands that Mr. Mladić made a significant contribution to the crimes for which he was convicted. This requires the trier of fact to characterise Mr. Mladić’s contribution to the common criminal purpose. (652AJ)

 

The Trial Chamber made assumptions and drew inferences to circumstantially  link Mr. Mladić to crimes based on his position in the VRS and the evidence of the behaviour of alleged subordinates to satisfy the guilt of Mr. Mladić by this mode of liability. The Trial Chamber also relied on circumstantial  ‘links’ rather than finding actual understanding  or agreement by Mr. Mladić to support any aspect of the Overarching JCE.(653AJ)

 

…’no one incurs criminal liability merely by virtue of being a person of authority or capable of issuing instructions. Responsibility  justifying a criminal conviction may attach only to individuals who actually put their powers into use for the commission of crimes or culpably fail to exert their influence over perpetrators. This is what the Prosecution should prove beyond reasonable doubt and thee trier of fact should find, based on a reasoned opinion in the judgement .(654J citing Judge Tuzmukhamedov’s dissent in Sainovic et al. Appeal Judgment)

 

Once the actus reus is established, the Trial Chamber is then required to examine whether Mr. Mladić’s shared intent to further the common criminal objective could be inferred from his knowledge, acts, words, and interactions with others. The Trial Chamber is required to determine the objective actus reus elements of the joint criminal enterprise first before the subjective mens rea  element of criminal intent can be  considered.(655AJ)

 

The second error in the Trial Chamber’s analysis was when it made mens rea (guilty intention) findings while doing the actus reus (criminal act) consideration. (656AJ, 2147TJ)

 

In other words the trial court was wrong to come to conclusions about Mladic’s state of mind and criminal intent before establishing the actual facts of the alleged crime.

 

How can the Trial Chamber…. remain objective when they have already made findings about and against Mr. Mladić’s mental state? (2148 TJ) Reliance on conclusions already drawn about Mr. Mladić’s guilt does not provide an objective or balanced analysis of his mens rea. Instead, the Trial Chamber automatically  applied these findings to conclude Mr. Mladić’s guilt, thereby indelibly tainting its findings.(657 AJ)

 

I consider that the method used by the Trial Chamber to establish the different elements of the Overarching JCE is flawed, which invalidates the findings for this joint criminal enterprise. Such a piecemeal approach deprived Mr. Mladić of his rights under the principle…. which states that, where any doubt exists, it should be resolved in favour of the defendant, and trial fairness. I am further of the view that the Trial Chamber has not been able to articulate by what measure Mr. Mladić was involved in crimes or furthered the common criminal purpose. (2154 Trial judgement)

 

The Trial Judgement failed to properly characterise through which specific conduct Mr. Mladić contributed to the Overarching JCE during the relevant time period he was in Bosnia and Herzegovina and in the VRS. By using such a nebulous and blurred analysis, muddling the

actus reus analysis and the mens rea analysis, the Trial Chamber ultimately left open whether it held Mr. Mladić responsible for active conduct, omission, or both.(658AJ)

 

3. Control Over Paramilitaries and the MUP (a) Paramilitaries

The Trial Chamber identified approximately 60 paramilitary groups on the territory of the Bosnian Serb Republic, totalling between four and five thousand men as of July 1992.

 

I agree with the Defence that the Trial Chamber failed to give sufficient weight to Mr. Mladić’s many orders to subordinates to break up, disarm, and liquidate Serbian paramilitary groups and arrest them if they had committed crimes. For example. It conceded Mr. Mladic’s efforts to disarm and disband those units and groups, stating that: [o]n 28 July 1992, Mladić ordered the disarmament of all paramilitary formations, groups in the territory of the Bosnian-Serb Republic by 15 August 1992 in order to put all armed formations and individuals under the unified command of the VRS.  (659AJ)

 

No reasonable trier of fact would ignore the constant attempts of Mr. Mladić and his VRS to eradicate paramilitaries,  while including acts that were alleged to be committed by these same paramilitaries,  naming them as participants in the Overarching JCE.(2159TJ) Mr. Mladić cannot have been fighting to eradicate Serbian paramilitaries  while at the same time contributing to their actions and thus significantly contributing to the alleged common objective through these paramilitaries.  I agree with Defence that the Trial Chamber failed to give sufficient weight to Mr Mladic’s many orders to break up, disarm and liquidate Serbian paramilitary groups and arrest them if they had committed crimes. For example:

 

1. In his order of 30 July 1992, Mr. Mladić ordered that all paramilitaries with honourable intentions should be offered to join the VRS, and those who refused or “carried out misdeeds, robberies or other crimes”, should be “disarmed, arrested and prosecuted”; (2162TJ)

 

1. In his order of 17 August 1992, Mr. Mladić ordered various VRS corps that reports should be submitted on the disarmament of paramilitary formations in their zones of responsibility; (2163TJ)

 

iii. In his order of 22 May 1993, Mr. Mladić ordered disciplinary measures for misconduct and that paramilitary groups “shall be arrested and eliminated, and in the case of resistance, physically liquidated”.(660AJ)

 

Mr. Mladić’s approach to not tolerate any actions or existence of paramilitary groups is supported by various meetings evidenced in the notebooks attributed to him. Mr. Mladić’s opposition to the existence and activities of paramilitary groups is evidenced and documented from the entire period from when he came to Bosnia and Herzegovina in 1992 through the end of the alleged Overarching JCE in 1995. (661AJ)

 

Instead of reaching conclusions in favour of Mr. Mladić under the direct evidence of his opposition to paramilitaries,  the Trial Chamber attempted to somehow portray non-existing connections and the impression of joint furtherance of common objectives with the VRS through ambiguous terminology based on circumstantial  evidence and unacceptable for proper analysis under Article 7(3) of the ICTY Statute, using words like “operated in cooperation”, “worked in coordination”, and “worked in cooperation” with VRS units.  (662AJ)

 

However, direct evidence shows otherwise. For example, an elite VRS unit directly subordinated under Mr. Mladic, the 65th Protection Regiment, was personally sent… and engaged to deal with a paramilitary group…Many orders were issued to disarm and arrest them…Only those who had not committed crimes were allowed to submit to the rules of war and submit to army induction, and they were separated, assigned to different units so as not to work together. The VRS’s and Mr. Mladic’s position as to paramilitaries  is “that the patriotic motives of the above mentioned individuals are secondary, and unlawful enrichment and looting is the only reason for their presence in this area.”(664AJ, 2171TJ)

 

 

 

 

(b) MUP

 

The Trial Chamber’s flawed approach is most evident in its use of adjudicated facts and flawed logic to establish that Mr. Mladić had command and control over the MUP.(2172TJ)  This error is best illustrated in the Trial Judgement where the Trial Chamber concedes it cannot distinguish between actions and crimes committed by the VRS or members of the MUP and others but rather blends them together for purposes of the Overarching JCE….

 

…the Trial Chamber stated that:

 

(m) any of the charged crimes were committed by members of the VRS, who were under the operational command of one of the corps, and ultimately of the VRS Main Staff. Many other crimes were committed by MUP members, either under the operational supervision of the VRS or under the supervision of the MUP.  Some crimes were committed by (Territorial Defence) members, under the supervision of the Bosnian Serb (Ministry of Defence). Crimes were also committed by paramilitary groups subordinated to the VRS or MUP.(665AJ, 2174TJ)

 

The Trial Chamber invented a brand new mode of liability in command and control jurisprudence – “operational supervision”. Upon what basis in the law and jurisprudence does it arise? The Trial Chamber is silent on this point. Evidence to the contrary is not silent. (666AJ)

 

First of all, I note that evidence was submitted to rebut the adjudicated facts as to command and control. Secondly, the record is replete with reliable and credible evidence that coordinated action of the MUP with the VRS did not lead to re-subordination  under the army’s command. (2179TJ) This includes testimonial evidence from the Prosecution’s own expert…

 

Witness Theunens testified that: ‘when unit A and unit B have to co-ordinate their operations, there is no subordination  relation between unit A and unit B. However, above these two units there is, of course, a commander who orders and instructs how these two units are to coordinate their operations. (667AJ) The evidence showed that all times the effective control reporting and discipline of MUP units remained with the MUP commander and MUP Ministry. (668AJ)

 

Based on the evidence as to the MUP and in accordance with the requirements  of the principle of  in dubio pro reo, (when in doubt, favour the defendant) it was unreasonable and therefore an error for the Trial Chamber to find that Mr. Mladic shared the intent of the MUP or that he contributed towards the common criminal purpose of the Overarching JCE via the actions of the MUP. (669AJ)

 

The Trial Chamber erred in its conclusions linking Mr. Mladic’s legitimate activities to political goals of politicians. The Trial Chamber found that Mr. Mladic could influence the political leadership. Nevertheless, at the same time, it referred to evidence that Mr Mladic was continually subject to the political leadership. The Trial Chamber chose selectively the statements of UN outsiders interpreting the behaviour of Mr. Mladic that were often contradictory to one another. (670AJ)

 

For example, contrary to the Trial Chamber’s reliance on Witness Wilson, and its use and oversimplification elsewhere in the Trial Judgement as to the existence of the Supreme Command for all tasks and objectives of the armed struggle, the same document used throughout the Trial Judgement, Exhibit P338, plainly set forth that Mr. Mladić’s VRS Main Staff was formulating its own military tasks, i.e., seven overall military goals, instead of six strategic objectives as formulated by politicians. The seven overall military goals were:

 

1. the “defence of the Serbian people against genocide at the hands of the Muslim-Croat forces”;

 

1. the “protection of the property and cultural heritage of the Serbian people”

 

iii. the “liberation of territories which are ours and belong to [the Serbian people] by historical birth right”;

 

1. the “infliction of the greatest possible losses on the Muslim-Croat forces”, by “neutralising and destroying their personnel and combat ordnance”;

 

1. the “neutralising of facilities in enemy territory, or their destruction”;

 

1. the “spreading of the enemy forces over a broad area on all the battlefields of former Bosnia and Herzegovina”; and

 

vii. the “gradual erosion of the enemy’s offensive power, i.e. the shattering of his forces, and the seizing of the initiative and creating conditions for resolute offensive operations in order to defeat his forces and expel them from areas that have always belonged to [the Serbian people), while at the same time preventing extensive losses in (Serb) ranks.” (671AJ)

 

There was no malicious meaning attached to them. They simply provided for formulating legitimate military tasks. (672AJ)

 

The Trial Judgment, besides speculative narratives, does not contain conclusions nor important analysis as to whether even the political strategic objectives, nor the A/B variant document, were criminal per se. The Perisic Appeal Judgment guides us that the implementation  of the Republika Srpska strategic objectives did not entail the systematic commission of crimes. (673AJ)

 

Merely citing and speculating on objectives of a political nature do not satisfy the standard of evidence sufficient to establish the existence of a common criminal plan. According to the Martic Appeal Judgment, political intentions are not sufficient to establish a joint criminal enterprise. (674AJ)

 

The absence of any correlation or identical agenda between Mr. Mladić and the VRS on the one side and political authorities on the other, let alone a common criminal objective, is seen in paragraph 3707 of the Trial Judgement. The Trial Chamber stated:

 

In a 8 November 1992 meeting with inter alios Karadžić, Krajišnik, and corps commanders, Mladić noted Krajišnik as having stated that ‘[w]e have a disproportionate  engagement of the army in relation to the strategic objectives. We have not achieved: The Neretva, the sea, and the Podrinje area. We have achieved: The corridor and separation with the Muslims’. (675AJ,2198TJ)

 

Instead of analysing the clear divergence between political and military goals, the Trial Judgement lacks proper analysis and application of the principle of in dubio pro reo.(676AJ,

2199TJ)

 

Performing routine duties in isolation is insufficient to establish indication of guilt and cannot substitute the requisite actus reus or mens rea as to the Overarching JCE. The Trial Chamber failed to explain how the performance of routine military duties of Mr. Mladić had an actual effect on and substantially contributed to the activities of perpetrators in the course of crimes in furtherance of the common objective. Without such analysis, the Trial Chamber has not been able to articulate by what measure Mr. Mladić was involved in crimes committed in furtherance of the alleged common objective.

 

I consider that there was a clear error in reasoning in the Trial Chamber’s conclusion that Mr. Mladić made a significant contribution to the Overarching JCE.  I further note that, according to the Perišić Appeal Judgement, the VRS was confirmed to be an organisation that was not criminal itself and which undertook lawful combat activities. In this regard, the ICTY Appeals Chamber in the Perišić case “underscore[d] that the VRS was participating in lawful combat activities and was not a purely criminal organisation”. (677AJ)

 

Even the highly controversial doctrine of joint criminal enterprise demands that Mr. Mladić made a significant contribution to the crimes, which requires the accused’s contribution to the common objective. (2206TJ) How the acts and conduct of Mr. Mladić performing his routine duties as a military commander had any tangible effect on crimes which were committed in furtherance of a common objective remains completely unanswered. This is an error. (678AJ)

 

The Trial Chamber ignored the reasonable inference of Mr. Mladić’s comments and speech at the 16 Assembly Session when he first assumed his title in the VRS, wherein he stated: “we do not want a war against the Muslims as a people, or against the Croats as a people”. This was said after Karadžić proclaimed the six strategic objectives, and its plain interpretation is to only engage in war when attacked and against combatants, not civilians, which is a legitimate stance. (679AJ)

 

Orders from the VRS Main Staff in evidence, particularly those from Mr. Mladić, were entirely lawful and legitimate. They were specific to the extent that can be interpreted as of a military nature. Their purpose cannot in any way be connected to any criminal plan or objective. For example:

 

1. In the VRS Main Staff Directive of 6 June 1992, Mr. Mladić provided updates on military and political developments, gave instructions on further military action to be taken, and indicated, inter alia, the goal to ensure the safety of aircrafts bringing in humanitarian aid and the normal supply of food and medications to the civilian population;

 

1. On 23 June 1992, Mr. Mladić issued a VRS Main Staff Directive concerning the expansion of the corridor between Romanija and Semberija and the liberation of roads in the central watercourse of the Drina River;

 

iii. A VRS Main Staff letter of 17 October 1993, signed by Mr. Mladić, concerned the lack of control by Serbian forces in the illegal transfer of persons and goods, including the crossing of the frontline by refugees coming from enemy-controlled territory and enabling them and persons of mixed marriages to travel through Republika Srpska;

 

1. On 16 April 1994, Mr. Mladić, noting global media attention, ordered that civilians and prisoners of war in Goražde be treated better, that “cruel treatments are severely forbidden, as well as abuse and physical destruction of civilian population, prisoners of war and members of the international organizations”, and that “[a]ll prisoners of war are to be treated in compliance with the international law of war”;

 

1. In the VRS Main Staff Order of 14 May 1993, Mr. Mladić ordered, inter alia, the unhindered passage of humanitarian aid, and compliance with international humanitarian law, including the Geneva Conventions;

 

1. In the VRS Main Staff Order of 16 June 1993, Mr. Mladić ordered that Commands at all levels were to ensure the delivery of humanitarian aid, and grant freedom of movement to all international humanitarian organizations; and

 

vii. In the VRS Main Staff Order of 28 November 1992, Mr. Mladić ordered, inter alia, that the Muslim population in specific villages should be protected from violence because they expressed loyalty to Republika Srpska. (680AJ)

 

Starting with a directive issued on 6 June 1992 where, upon assuming command of the VRS, Mr. Mladić consistently urged adherence to the Geneva Conventions and proper treatment of civilians and prisoners of war. These orders indicate that Mr. Mladić ordered his subordinates to abide by international law and did not order them to further the objectives of any common criminal objective. (681AJ)

 

681A)

 

Given the Trial Chamber’s complete disregard of this direct evidence of lawful orders from Mr. Mladić, it is incumbent upon the Appeals Chamber to intervene in the Trial Chamber’s mens rea analysis where this direct evidence of probative value has been given sufficient weight. (682AJ)

 

5. Conclusion

 

For these reasons, I would vacate the Trial Chamber’s convictions based on the Overarching JCE and grant Ground 3 of Mr. Mladić’s appeal.(683AJ

 

1. Ground 4 – Sarajevo JCE

 

Mr. Mladić submits, inter alia, that the Trial Chamber erred in law by finding that the Tribunal has jurisdiction over the crime of terror. (2224TJ) I note that, from the outset, Mr. Mladić’s argument is focused on the fact that the criminalisation  of terror could not be considered to have formed part of customary international law during the indictment period. He does not challenge the finding that there existed a custom on the prohibition against terror. (684AJ,2225TJ)

 

The legal basis upon which the Trial Chamber relied to the effect that it had jurisdiction on the crime of terror is found at paragraph 3185 of the Trial Judgement, where it held that “[t]he[ICTY] Appeals Chamber has confirmed that the Tribunal has jurisdiction over this crime” and cited two cases supporting this conclusion – the Galić Appeal Judgement and the D. Milošević Appeal Judgement. (2226TJ)

 

The Galić Appeals Chamber, in the first instance, acknowledged  the UN Secretary-General’s remarks that “the International Tribunal was expected to apply ‘rules of international humanitarian law which are beyond any doubt part of customary law’.”(686AJ)

 

The ICTY Appeals Chamber then went on to explain the importance of forensically analysing the jurisprudence to avoid confusing a custom prohibiting certain conduct with a custom that criminalises it. This was because “in most cases, treaty provisions will only provide for the prohibition of a certain conduct, not for its criminalisation,  or the treaty provision itself will not sufficiently define the elements of the prohibition they criminalise”.(686AJ,2229TJ)

 

After considering domestic practice to determine whether or not there was sufficient state practice to evidence a norm of customary international law for the criminalisation  of terror… the ICTY Appeals Chamber in the Galić case found that individual criminal responsibility could be inferred from state practice. It pointed to six states to evidence state practice: the Ivory Coast, Czechoslovakia,  Ethiopia, the Netherlands, Norway, and Switzerland. The other states it pointed to – Ireland, Bangladesh, the United States, China, and the Former Yugoslavia – on closer inspection did not, in fact, criminalise terror so cannot be said to constitute evidence of state practice in this regard. Therefore, on the basis of six, or at best 12 states, the ICTY Appeals Chamber in the Galić case concluded beyond any doubt that a breach of the prohibition against terror in a manner corresponding to the additional protocols of the Geneva Conventions gave rise to individual criminal responsibility under customary international law. Judge Schomburg dissented, concluding that, while the prohibition of the crime of terror was indisputably part of international criminal law, its penalisation was not supported by sufficient state practice at the time when Galić committed his crimes, and therefore individual criminal responsibility could not be attached to Galić on this basis. (687AJ,2236TJ)

 

The ICTY Appeals Chamber in the D. Milošević case relied on the Galić Appeal Judgement to conclude that the Tribunal had jurisdiction over the crime of terror because its criminalisation was part of customary international law. Judge Liu dissented in the D. Milošević Appeal Judgement.He  endorsed Judge Schomburg’s dissenting analysis in the Galić Appeal Judgement and concluded that a custom criminalising terror could not be established due to the absence of sufficient state practice. I endorse Judge Liu’s and Judge Schomburg’s analysis and join them in concluding that a custom criminalising terror cannot be established due to the absence of sufficient state practice at the time relevant to the Indictment. (688AJ)

 

….In my view the conclusion in the Galić Appeal Judgement falls demonstrably  short of what was required to show beyond any doubt that the criminalisation  of terror was part of customary international law at the material time.(690AJ,2246TJ)

 

The Fourth Condition, as set out by the ICTY Appeals Chamber in the Tadić Decision of 2 October 1995, reads: “the violation of the rule must entail, under customary international law, the individual criminal responsibility of the person breaching the rule” – a condition which was referenced by Judges Schomburg and Liu in their respective dissents in the Galić Appeal Judgement and the D. Milošević Appeal Judgement.  Mr. Mladić submits that the Galić Appeal Judgement failed to establish such a custom. I agree. This is supported by Judge Schomburg’s dissenting position in the Galić Appeal Judgement, as I have summarised in paragraph 687 above, as well as Judge Liu’s dissent in the D. Milošević Appeal Judgement, where he stated that, in his view, “there is no basis to find that [the] prohibition [on the crime of terror] was criminalised beyond any doubt under customary international law at the time relevant to the Indictment”. As a result, I find cogent reasons to depart from the Galić Appeal Judgement in this regard. (691AJ)

 

I now turn to the impact that the Trial Chamber’s deference to the Galić Appeal Judgement had on Mr. Mladić’s case. As demonstrated  by paragraph 3185 of the Trial Judgement, the Trial Chamber relied on and recycled the erroneous legal basis proffered by the Galić Appeal Judgement for the criminalisation of terror. The error in the Galić Appeal Judgement was pointed out by the Defence at trial, but the Trial Chamber failed to engage with the issue and concluded that there was “nothing in the Defence’s submissions which would lead it to deviate from the established case law”. Had the Trial Chamber conducted any form of legal analysis, it could not have satisfied itself beyond any doubt that the criminalisation  of terror was part of customary international law during Mr. Mladić’s indictment period. (692AJ)

 

The UN Secretary-General made it clear that the principle of nullum crimen sine lege (no crime without a law) required the Tribunal to apply rules that were beyond any doubt part of customary law at the time of the relevant offence. The criminalisation  of terror does not meet this threshold. I am therefore of the view that the Trial Chamber fell into error when it relied on the Galić Appeal Judgement’s findings that it could exercise jurisdiction over the crime of terror under Article 3 of the ICTY Statute.

 

For the foregoing reasons, I would grant Ground 4. Considerations on the crime of terror should not have been part of the analysis pertinent to the Sarajevo JCE. (694AJ)

 

1. Ground 5 – Srebrenica JCE

 

1. Forcible Transfer

 

As to forcible transfer, the Defence submits that the Trial Chamber selectively relied upon evidence, including from Witness Franken, a DutchBat officer, only when it supported its erroneous conclusion, but disregarded this witness’s evidence that the forcible transfer was a humanitarian  evacuation ordered, and indeed organised, at the highest levels of the UN, and that the UN asked Mr. Mladić to assist with this humanitarian  evacuation. In these paragraphs alone, Witness Franken is selectively cited out of context no fewer than 61 times, and Witness Momir Nikolić is referred to 35 times in these same paragraphs. Witness Momir Nikolić is identified by the DutchBat and other witnesses as the main instigator of abuses relating to the buses, not Mr. Mladić.  For example, the Defence submitted during trial that while Witness Momir Nikolić downplayed his role in the Hotel Fontana meetings, Witness Pieter Boering’s evidence indicated that Witness Momir Nikolić was “in charge of everything at that point”. The Trial Chamber also relied on other even lower-level DutchBat officers who may not have known of the evacuation agreement that the UN presented to Mr. Mladić at his first meeting with Colonel Thom Karremans.(695TJ)

 

The Prosecution, in its response at paragraph 224, recalls that the Trial Chamber also relied upon the evidence of Witness Eelco Koster, an even lower-level subordinate who had a direct encounter with Mr. Mladić, relying on Witness Koster’s testimony but not on the video of their encounter. The entire exchange is video recorded. Witness Koster has memorised events according to an incorrect contemporaneous interpretation he received on the ground that was not corrected until many years later by the translation services of the ICTY after a review of this video. (696AJ)

 

In the video clip the Serbian words uttered by Mr. Mladić were mistranslated into something much worse to In the video clip:

 

UNPROFOR member: Hmm … Roger, I will inform my commander. Interpreter: He says that all of the people will get the buses –

 

Mladić: Anyone who wishes to be transported will be transported, be the person small, big, old or young. Don’t be afraid. Slowly, slowly, let the women and children go first. 30 buses will arrive and will transport you towards Kladanj. From here, you will pass onto the territory controlled by Alija’s forces. Just don’t panic. Let the children and the women go first. Be careful not to lose a child. Don’t be afraid. Nobody will harm you. Man from the crowd: May you live long. (697AJ)

 

The Serbian words uttered by Mr. Mladić were mistranslated  into something much worse to Witness Koster, who identified himself as the DutchBat soldier in the blue helmet speaking to Mr. Mladić via interpreter when shown this video during his testimony at trial. His commander on the radio is Witness Franken.(698AJ)

 

To demonstrate the veracity of Mr. Mladić’s intent to engage in a humanitarian  and voluntary evacuation, Mr. Mladić is seen in the video repeating to civilians that if they want to go, buses will be made available.  As noted in the video clip referenced above, Mr. Mladić was thanked and praised by the crowd of Bosnian Muslim civilians. Later on in the same video, Mr. Mladić talks to another gathering of civilians explicitly telling them that those who want to stay and return to their homes may do so.  Mr. Mladić’s words and deeds in Potočari, spoken in the same language as that understood by the Bosnian Muslims, do not accord to the DutchBat lower level officer’s understanding of the same. (699AJ)

 

First, what transpired before Mr. Mladić’s appearance in Potočari, predating the arrival of the buses, is that the highest leadership of the UN had determined an evacuation was necessary for humanitarian  reasons from Potočari. The Defence cited ample evidence in this regard at paragraph 578 of the Mladić Appeal Brief, including the evidence of Witnesses Cornelis Nicolai (UNPROFOR Chief of Staff in Bosnia and Herzegovina from 28 February to 2 September 1995), Pieter Boering (DutchBat Major from 3 January to July 1995), and Joseph Kingori (a Kenyan UNMO present in Srebrenica from March 1995 to around 20 July 1995). (700AJ)

 

Second, Witness Nicolai provided evidence that he had obtained the agreement of the Dutch Minister of Defence to issue an order to Colonel Karremans (the DutchBat Commander in Srebrenica) to obtain Mr. Mladić’s help, to ask for it, for an urgent humanitarian  evacuation from Potočari.  This was before any of the meetings at the Hotel Fontana with Mr. Mladić. (701AJ)

 

Third, at the first Hotel Fontana meeting, the video shows that Colonel Karremans expressed that the Bosnian Muslim civilian leadership had asked to leave and conveyed the UN’s request for assistance in a humanitarian  evacuation to Mr. Mladić. This is confirmed by the Prosecution’s military expert Witness Richard Butler, who stated that, based on his research, the “refugees wanted to leave” but that the circumstances  under which they wanted to do so was “a matter of debate”. Furthermore, Colonel Karremans’s own deputy commander, Witness Boering , who was physically present, testified at trial that the UN did not have enough buses to do this evacuation on its own. Indeed, according to the evidence of Witness RM-253, the Muslim civilian leaders had already ordered their own people to leave, women and children and elderly to Potočari and fighters to Šušnjari.(702AJ)

 

These high level UN meetings and discussions involved UNPROFOR Commander General Rupert Smith, Ambassador Yasushi Akashi, and then-Under Secretary-General of the UN Kofi Annan. In my view, the sum total of all these meetings and discussions was that the UN asked for Mr. Mladić to help evacuate civilians out of Potočari. (703AJ)

 

In all three Hotel Fontana meetings, as demonstrated  in video Exhibit P1147, Mr. Mladić is seen welcoming, offering comforts to attendees, including cigarettes, beer, and sandwiches for lunch. This pattern of behaviour is similarly demonstrated  in the third Hotel Fontana meeting with Bosnian Muslim civilian attendees, including Mr. Mladić offering his own vehicle to safely escort a female participant, Ćamila Omanović, her daughter, grandchild, and mother during the evacuation. Prosecution Witness Richard Butler could not identify anything criminal said in these meetings by Mr. Mladić. In this regard, the witness testified that:

 

in the technical sense that Srebrenica has just been captured, General Mladić is seeking the surrender of the 28th Division rather than to continue to engage them in battle, the fact that he would offer a cease-fire and the fact that he would make the necessary provisions to allow for those individuals to travel to, in this case the Hotel Fontana, to negotiate that surrender, I mean, that’s all technically proper. (704AJ)

 

Demonstrative of its error, the Trial Chamber disregarded its own finding which accepted that during the Hotel Fontana meetings, Mr. Mladić offered civilians a choice to leave for Yugoslavia or the Federation or to stay in Republika Srpska. Witness Milovan Milutinović gave evidence that:

 

Mladić gave the Muslim delegation his word that everyone gathered at Potočari who had surrendered their weapons could cho[o]se whether to go to ‘Yugoslavia, the Federation’ or to stay in the Bosnian Serb Republic, and guaranteed them full rights and freedoms. (705AJ)

 

Returning to DutchBat officer Witness Franken, who is among the primary lower-level officers selectively relied upon to convert this humanitarian  evacuation into the crime of forcible transfer, the Trial Chamber focused on Witness Franken’s evidence to find “that the transportation  of Bosnian Muslims out of Potočari to Kladanj was not a decision made by the Muslim delegation but rather ordered by Mladić”.  It is puzzling and a discernible error that the Trial Chamber disregarded this witness’s own testimony to the contrary in violation of the principle of in dubious reo. (where there is doubt it should benefit the defendant) (706AJ)

 

In this regard, Witness Franken acknowledged  that his commander, Colonel Karremans ordered the witness to assist the VRS with the humanitarian  evacuation and that Franken later found that General Rupert Smith and other high-ranking UN officials had asked Mr. Mladić for the evacuation, and that separation of men was proper according to the laws of war to see if they were combatants.

 

Most importantly, the Trial Chamber disregarded that Witness Franken had not viewed the entire Hotel Fontana video before. Against this backdrop, it was an error on the part of the Trial Chamber to rely selectively on the other evidence of Witnesses Franken, Koster, and other lower-level DutchBat officers in light of the overwhelming  evidence, even from Witness Franken, and especially higher-level DutchBat and UN officials that demonstrate the UN, not Mr.Mladić, ordered this evacuation for humanitarian  purposes, and that Mr. Mladić agreed with the UN to help. I support my views with the submissions of the former UNPROFOR Commander,General Sir Michael Rose, before the United Kingdom House of Lords on 6 September 2017, which Mr. Mladić sought to admit as additional evidence on appeal.

 

According to General Sir Michael Rose’s statement, “the UN was succeeding remarkably well in […] delivering humanitarian  aid[and] Bosnia remains one of the few major conflicts of our time where no one died, or very few people died, either of cold or hunger”.  At this juncture, I mention that admission of this statement was rejected by the Majority of this Appeals Chamber. I dissented as I find that General Sir Michael Rose’s statement is relevant, credible, exculpatory, and containing new evidence, which, if admitted, could have been a decisive factor in reaching the decision at trial and ought to have been admitted on appeal as additional new evidence, particularly because of the high position in the UN system that General Sir Rose held. He was involved in the negotiations and was actually on the ground. It should have been admitted pursuant to Rule 142(C) of the Rules, which provides: If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial. If it could have been such a factor, the Appeals Chamber will consider the additional evidence and any rebuttal material along with that already on the record to arrive at a final judgment in accordance with Rule 144. Where the Appeals Chamber finds that evidence was available at trial , it may still allow it to be admitted providing that the moving Party can establish that the exclusion of it would amount to a miscarriage of justice. (707AJ, 2292TJ).

This evidence impacts the Trial Chamber’s assessment of Mr. Mladić’s responsibility and convictions.  I further note that the Prosecution, in its response to Mr. Mladić’s motion to admit this additional evidence on appeal, submitted, inter alia, that:

 

[s]hould the Appeals Chamber be minded to consider the [proposed additional evidence], [General Sir Michael Rose] should appear for cross-examination to allow the Prosecution to test [his] credibility and the reliability of [his]evidence. (708AJ)

 

In view of the above, I find that there was no forcible transfer of Bosnian Muslims from Srebrenica, nor was there a common objective for the alleged joint criminal enterprise under a correct view of the above evidence and under the appropriate standard. The requisite

elements of establishing the crime of forcible transfer must include expulsion or other forms of coercion as to carrying out forced displacement of persons. The forced character of the displacement is determined by the absence of a genuine choice by the victim in his or her displacement.  In all this, it must be established with proper application of the principle of in dubio pro reo. It is clear that in the Trial Judgement the Trial Chamber did not abide by this jurisprudence,  nor by this standard, and thus committed a discernible error in convicting Mr. Mladić of forcible transfer. (709AJ)

 

2. Genocide, Extermination, and Murders

 

It is not disputed that, in addition to legitimate combat casualties, some individuals, including individuals from the local area, the MUP, and even Momir Nikolić and other rogue members of the VRS security professional line of command, took it upon themselves to conduct acts of revenge and killings of prisoners of war, but did so during the time-period when Mr. Mladić was not in the area and contrary to any orders of Mr. Mladić, or his knowledge at that time. (2300TJ) The VRS security line had its own parallel chain of command, separate and apart from the normal chain of command, such that it could exclude Mr. Mladić. (710AJ)

 

It is noteworthy that the Krivaja-95 Military Operation was conceded to be a legitimate military operation due to the failure to demilitarise the Srebrenica “safe area”. Lead Prosecution Counsel for this part of the case, Peter McCloskey, explicitly stated during trial that Krivaja-95 had the objective to attack the Bosnia and Herzegovina forces, cut them off from the Žepa enclave, separate the two enclaves from supporting each other, which was a “legitimate military objective” to stop ABiH army activity. The Prosecution’s  chief expert on Srebrenica, Witness Richard Butler, confirmed this during his testimony, stating that “the VRS had the military legitimate right to attack the 28th Division” of the ABiH.  Further, Directive 7.1, issued by Mr. Mladić, replaced Directive 7, which was issued by President Karadžić, and both Directive 7.1 and the Krivaja-95 Order of the Drina Corps, by their wording, directed that civilians not be targeted and that the laws of war be followed including the Geneva Conventions. To this effect, the Krivaja-95 Order stated: “In all dealings with prisoners of war and the civilian population abide by the Geneva Conventions”.  Directive 7.1 stated that “[a]ll forms of inappropriate  behaviour […] should be promptly and effectively punished”. The column of men and boys set out from Srebrenica in combat formation and armed, and engaged in ambushes, combat, suicides, infighting,  minefields and deaths in “kamikaze” style attacks. Unfortunately,  we  will never know the true number of actual legitimate casualties and those related to acts of the crime of murder. (711AJ)

 

Recall that at the Hotel Fontana meetings the language used by Mr. Mladić had been declared legitimate military language and non-criminal by Witness Richard Butler during his testimony. While already summarised above, I find it important to reiterate this Witness Butler’s testimony that:

 

General Mladić [wa]s seeking the surrender of the 28th Division [of the ABiH] rather than to continue to engage them in battle, the fact that he would offer a cease-fire and the fact that he would make the necessary provisions to allow for those individuals to travel to, in this case the Hotel Fontana, to negotiate that surrender, I mean, that’s all technically proper. (712AJ)

 

Therefore, the Trial Chamber’s conclusion that Krivaja-95 intended the ethnic cleansing of Bosnian Muslims from Srebrenica is an impermissible  inference, unsupported by the evidence. This error was already addressed above in relation to forcible transfers. (713AJ)

 

In order to establish joint criminal enterprise liability for Mr. Mladić for genocide and killings in Srebrenica, the evidentiary bar was supposed to be set at a high level. As per the jurisprudence,  for example, the Milutinović et al. Trial Judgement, the standard of proof is beyond a reasonable doubt, which presents a high hurdle for the Prosecution to overcome. The ICTY Trial Chamber stated that:

 

[i]n order for an accused to be found guilty of a crime charged in an indictment, the Prosecution. must prove beyond a reasonable doubt (a) each element of the statutory crime (including the mens rea and actus reus of the underlying offence and the general requirements for the statutory crime) and (b) the mental and physical elements of at least one of the forms of responsibility with which the accused is charged. (714AJ)

 

As articulated in the Martić Appeal Judgement, the standard of proof must meet more than “a high degree of probability”. Furthermore, as set forth in the Čelebići Appeal Judgement, a trial chamber’s finding must be the only available conclusion under law and fact, as existence of any alternative conclusion mandates acquittal. The ICTY Appeals Chamber stated, about concluding on the guilt of an accused in a circumstantial case, that:

 

[s]uch a conclusion must be established beyond reasonable doubt. It is not sufficient that it is a reasonable conclusion available from that evidence. It must be the only reasonable conclusion available. If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted. (715AJ)

 

Additionally, since the charge is genocide, the evidence must, in accordance with stated high standards, establish specific intent, dolus specialis, for genocide. Since the mode of liability at issue is joint criminal enterprise, Mr. Mladić must be shown to have agreed to a common criminal purpose and significantly contributed to the same. (716AJ)

 

There are numerous instances where the Trial Chamber erred in respect of applying the jurisprudence to the facts. Per the Prosecution’s submissions and the Trial Judgement, the joint criminal enterprise to kill and commit genocide in Srebrenica did not even exist prior to the night between 11 and 12 July 1995. As discussed above, under the jurisprudence,  conduct and statements before the pertinent joint criminal enterprise and outside its temporal scope cannot be used to prove Mr. Mladić was part of that joint criminal enterprise. However, as to the Srebrenica JCE, the Trial Chamber does precisely erroneously rely on that type of evidence and so does the Prosecution.  As elaborated below regarding the evidence of Witness Momir Nikolić, the Trial Chamber and the Prosecution also relied on circumstantial  evidence and hearsay to establish Mr. Mladić’s agreement to a criminal plan requiring specific intent to commit genocide in addition to murder. It is noteworthy that the Prosecution agrees that Mr. Mladić was not in Srebrenica, but  far away in Belgrade when the killings started. (717AJ)

 

Again, as to the Hotel Fontana meetings that are on video, both Prosecution and Defence military experts say the language used was appropriate as it was aimed in the context of the armed 28th Division of the ABiH still on the loose in the area of Srebrenica. Without any direct orders, without any direct evidence linking Mr. Mladić to any killings, the Trial Chamber committed its gravest error. (718AJ)

 

Given the Trial Chamber’s complete disregard of this direct evidence of lawful orders from Mr. Mladić, it is incumbent upon the Appeals Chamber to intervene… where this direct evidence of probative value has not been given sufficient weight.

 

The key insider witness relied upon by the Chamber is Witness Momir Nikolić. In fact, it was not Witness Momir Nikolić himself but primarily hearsay evidence, including Exhibit D1228, which encompasses hearsay notes of an interview taken by Prosecution investigator Bruce Bursik for the purposes of litigation that is among the main sources cited. It should be noted that Exhibit D1228 was not presented for the truth of the matters asserted in it but was only presented to Witness Momir Nikolić by the Prosecution to confirm an illusionary hand gesture from an unclear location from a purported meeting with Mr. Mladić.  The Trial Chamber rejected that as being unreliable evidence. Exhibit D1228 was only used in cross-examination of Witness Bursik to establish that Witness Momir Nikolić lacked credibility and was evasive. Witness Bursik could not corroborate Witness Momir Nikolić as to any encounter with Mr. Mladić.(719AJ)

 

Witness Momir Nikolić is someone who appears everywhere – everywhere that there are killings, either directing them or as an accomplice. He admitted to hiding crimes from superiors, including the VRS Main Staff. In this regard, I note and accept the Defence submission that Witness Momir Nikolić confirmed that he concealed the killings from his commanders and provided misleading information about “asanacija/sanitisation” to cover up reburials. The Trial Chamber further erred in relying upon Witness Momir Nikolić’s evidence despite another insider, Witness RM-265, who testified as to opportunistic revenge killings that they witnessed in the presence of Witness Momir Nikolić, and that prisoners of war taken to schools in Zvornik were undertaken under the orders of Witness Momir Nikolić and his superior within the security chain of command in the brigade, Lieutenant-Colonel Popović.  Witness RM-265 did not implicate Mr. Mladić in any of Witness Momir Nikolić’s or Popović’s illegal and criminal activities. (720AJ)

 

It is noteworthy that Witness Momir Nikolić’s security chain of command superior, Popovic, was implicated by another Prosecution insider witness from the VRS, a high-ranking officer, Witness RM-376, who also does not implicate Mr. Mladić in any of the events relating revenge killings, but does identify that the very same Popović of the security chain of command asked for volunteers outside the army, i.e., civilians, to execute Bosnian Muslim prisoners, which this VRS officer refused. (721AJ)

 

This begs the question – if Mr. Mladić, Commander of the VRS Main Staff, had hypothetically  or implicitly agreed to significantly contribute to genocide, why would security officers aligned with Witness Momir Nikolić, not even in the direct chain of command to Mr. Mladić, be in charge of the killings, and why would they be asking for non-army volunteers to do the killing while actual VRS officers and subordinates under Mr. Mladić refused such requests and never received them from Mr. Mladić through the normal chain of command? (722AJ)

 

In my view , this demonstrates  an error in the Trial Chamber’s implied reasoning linking Mr. Mladic to these crimes. (723AJ)

 

Witness Momir Nikolić pleaded guilty to try to get a better deal for himself, despite having his arms soaked in blood. Further, this witness confirmed he destroyed documentary evidence which could have compromised him in relation to Srebrenica crimes. Regarding this alleged meeting, at an unclear location, Witness Momir Nikolić could not be relied upon by the Trial Chamber as to this meeting because even he did not have direct evidence about it.(724AJ)

 

No fewer than five insider witnesses, three from the Defence, two from the Prosecution, gave direct evidence that the only meeting during this critical time period was related to Žepa and contained only legitimate military instructions. By disregarding this evidence in favour of the impermissible  hearsay of Witness Momir Nikolić, the Trial Chamber erred. This is particularly true given the jurisprudence that accomplice evidence is to be treated with caution…. accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal or to lie. Momir Nikolić had a HUGE incentive to lie as evidenced by the Plea Agreement between him and the Prosecution whereby genocide was dropped from his indictment in consideration of him testifying against others, including Mr. Mladić.  It paid well as evidenced by the fact that Momir Nikolić was eventually sentenced to 20 years only for an offence carrying a life sentence, if the charge of genocide had not been dropped. According to the Setako Appeal Judgement, “when weighing the probative value of [the evidence of accomplice witnesses], the trial chamber is bound to carefully consider the totality of the circumstances in which it was tendered”. (725AJ)

 

In the instant case as to Witness Momir Nikolić, the Trial Chamber erred, and in doing so, tried to make this witness the illusory link to Mr. Mladić with the joint criminal enterprise that could not be proven in accordance with the prevailing legal jurisprudence and thus resorted to the legal fiction of guilt by implication. (726AJ)

 

Further evidence by several Prosecution and Defence witnesses attests to the fact that Mr. Mladić made similar non-criminal statements to captured or surrendered members of the 28th Division of the ABiH column, where he tells them they will be fed and then transported and exchanged with the other side’s forces. For example:

 

1. Witness Zoran Malinic testified that “prisoners [did] not need to be afraid because they would return to their houses and be exchanged”;

 

1. Witness RM-253 testified that Mr. Mladić said to the prisoners: “You do not have to worry. You will be exchanged and join your families in Tuzla. Now you’ll be transported by trucks to Bratunac or Kravica where you will spend the night and get some food”; and

 

iii. Witness Bojan Subotić testified that Mr. Mladić “went in among [the prisoners and] shook hands with some of them. […] He talked with them […] and they stood up and applauded. And he told them that they would be exchanged, […] and he told us strictly to take care of the prisoners, that some buses would be arriving within an hour, that the men should […] all board the bus and deliver it to the civilian police in Bratunac”.(727AJ)

 

This evidence also shows us that Mr. Mladić’s direct orders to subordinates were consistent with protecting these prisoners during transportation  and medical aid and water were provided to them in accordance with these orders. As set out before in paragraphs 680, 681, and 711, Mr. Mladić issued orders that prisoners of war should be treated well and in accordance with international law. (728AJ)

 

In light of the foregoing, I am not persuaded that such actions could be considered a significant contribution to the implied joint criminal enterprise related to killings in Srebrenica that the Trial Chamber concluded. (729AJ)

 

3. Alibi

 

While Mr. Mladić was far from Srebrenica attending to a secret peace meeting with the international community, in Belgrade at a wedding, and at a hospital, he could not have effective control, nor information from Bosnia and Herzegovina, let alone exercise command. His absence was not contested by the Prosecution at trial. The Trial Chamber’s failure to give a reasoned opinion as to four routine orders issued in this time, between 14 and 16 July 1995, when Mr. Mladić was away, by others under Mr. Mladić’s name, is set forth in paragraphs 610 to 612 of the Mladić Appeal Brief, including errors as to an inference that Mr. Mladić personally signed such orders from another country, and failure to analyse and give weight to their content because none of them related to Srebrenica, and each had log entries showing they did not come from Mr. Mladić’s office.(730AJ)

 

The Trial Chamber’s conclusion that Mr. Mladić issued the orders and was in command and control while he was physically and geographically  absent from Srebrenica in another country is contrary to evidence and is therefore a discernible error. It disregarded and contradicted itself in the Trial Judgement at paragraph 4299 in stating that “[i]n Mladić’s absence, reports were to be submitted to Milovanović”.  Witness Milovanović, VRS Chief of Staff, and other military witnesses confirmed that during this time period when Mr. Mladić was gone in July of 1995 Milovanović was in charge as deputy commander to Mr. Mladić.(731AJ)

 

As set out in paragraph 605 of the Mladić Appeal Brief, Mr. Mladić attended a meeting where a plan was signed to allow the ICRC access to Srebrenica prisoners of war and that they were to be exchanged “all for all” with the other side for Serb detainees. Also a lasting and permanent ceasefire was negotiated to try to end the war. No reasonable trier of fact could conclude that Mr. Mladic could engage in complex peace negotiations with high officials in Dobanovci, Serbia, with UN officials , while exercising effective control in Srebrenica. Such conduct, agreeing to allow the ICRC access to Srebrenica prisoners of war before exchanging them, cannot be used to support knowledge of, nor a purported contribution to, any joint criminal enterprise to exterminate, let alone commit genocide against these same persons. (732AJ)

 

4.         Status of Victims

 

It must be emphasised that any illegal killings in Srebrenica that were outside of combat are reprehensible,  but they are not tied to Mr. Mladic. The Trial Chamber erred in not performing any analysis to determine which were victims of murder and which were deaths that resulted from alternate legitimate reasons. The Trial Chamber relied upon adjudicated facts to establish all were victims of crimes and all were civilians.(2366TJ)  In doing so, the Trial Chamber disregarded its own finding that armed elements of the column of men in Srebrenica had casualties. (733AJ)

 

The Trial Chamber further disregarded the Prosecution’s own demography expert, Witness Ewa Tabeau, whose evidence indicated that 70 per cent of the victims were registered as soldiers of the ABiH. It also disregarded evidence rebutting Adjudicated Fact 1476 and showing that bodies in the mass graves came from different events in different years and included legitimate casualties of combat, such as suicides, minefields, “kamikaze” attacks, etc. Both Defence and Prosecution forensic experts relating to the alleged blindfolds said they could have been bandanas dropped over the eyes as bodies decayed, bandanas as seen in the

footage of the ABiH fighters that arrived in Tuzla from Srebrenica.

 

The lack of analysis by the Trial Chamber therefore failed to establish the number of victims and their relation to any crime, let alone genocide.(735AJ)

 

5. Conclusion

 

In light of the foregoing, I find that the Trial Chamber erred in convicting Mr. Mladić for the crimes related to the Srebrenica JCE, including genocide. I would thus grant Ground 5 of his appeal in its entirety.

 

1. Ground 6 – Hostage taking JCE

 

I agree with the Majority disposition regarding the alleged errors related to the Hostage- Taking JCE.(737AJ)

 

8. Ground 8.A – Failure to Ensure Equality of Arms

 

The principle of equality of arms provides that each party must have a reasonable opportunity

to defend its interests under conditions that do not place it at a substantial disadvantage  vis-

à-vis its opponent.(738AJ)

 

Rule 85 of the ICTY Rules provides that each party is entitled to call witnesses and present evidence and according to Rule 87(A) of the ICTY Rules the hearing shall be closed when “both parties have completed their presentation of the case”.(739AJ)

 

Mr. Mladić contends that REDACTED. Specifically, he contends that REDACTED.By  denying these requests the Trial Chamber failed to consider or gave insufficient weight to the relevance, context and potential impact of the testimonies of REDACTED, as well as the interests of justice. The Trial Chamber’s summary denial of evidence was an unreasonable exercise of its discretion. The “questionable  relevance” and “negligible probative value” could only be determined if the witnesses had been heard, and cross-examined  by the Prosecution.(741AJ)

 

The Trial Chamber noted that REDACTED would provide first-hand experience REDACTED and found it relevant and concluded that the anticipated testimonies of REDACTED were not significant as to weigh in favour of varying the deadline for presentation of the Defence case. This was a discernible error and the Trial Chamber’s error invalidates the findings made on Srebrenica and Sarajevo to the extent of the error identified.(741AJ)The  Trial Chamber noted that REDACTED would provide first-hand experience REDACTED and found it relevant and concluded that the anticipated testimonies of REDACTED were not significant as to weigh in favour of varying the deadline for presentation of the Defence case. This was a discernible error and the Trial Chamber’s error invalidates the findings made on Srebrenica and Sarajevo to the extent of the error identified.(742AJ)

 

By denying these two defence witnesses the Trial Chamber violated the principle of equality of arms, which requires that each party must have a reasonable opportunity to defend its interests and also that each party is entitled to call witnesses and present evidence and that the hearing shall be closed when both parties have completed their presentation of the case. The Trial Chamber committed a discernible error by summarily denying the requests for their testimony to be heard resulting in considerable prejudice to the Defence case. The decision is so unfair and unreasonable as to constitute an abuse of the Trial Chamber’s discretion.(743AJ)

 

….., I note that the Trial Chamber erroneously did not allow the Defence to call one witness who was a member of the Srebrenica column of Bosnian Muslim men. It was submitted that since trial, they have died, thus increasing the gravity of this refusal and this error.(744AJ)

 

8. Ground 8.D – Disclosure Violations

 

….. I agree with Mr. Mladić that, as a consequence of the Prosecution’s late disclosures and failure to provide metadata with disclosure through Electronic Disclosure Suite, he was left at an unfair disadvantage and his ability to prepare his defence was impaired. The Trial Chamber’s failure to remedy this constituted an error, and thus Ground 8.D must be granted.(745AJ)

 

I                 Ground 9 – Sentence

 

Article 15 of the International Covenant on Civil and Political Rights stipulates inter alia that a heavier penalty shall not be imposed than the one that was applicable at the time when the criminal offence was committed. Additionally, at the time of commission of the  crimes charged, the domestic sentencing practice of the former Yugoslavia had a maximum sentence of 20 years. (746AJ)

 

The health of the Appellant is also a factor. He was already of ill health by the time he was incarcerated at the United Nations Detention Unit. Numerous medical reports indicate how his health deteriorated further while in detention awaiting his appeal. He was hospitalised leading to an operation. Taking into account all the above factors and giving them sufficient weight, I would have imposed a sentence of 20 years imprisonment.(747AJ)

 

1. Conclusion

 

As set out above, having considered the Indictment, the Trial Judgement, the jurisprudence and authorities cited herein, as well as the written and oral submissions of the parties, I reiterate my disagreement  with the Majority’s determination  to dismiss all grounds of Mr. Mladić’s appeal. I am of the view that Mr. Mladić has satisfied the high standard set out on appeal and would thus grant Grounds 1 to 5 and 7 to 9 of his appeal in their entirety. (748AJ)

 

The Trial Chamber’s errors and their impact as elaborated elsewhere, but more specifically in Grounds 3 through to 5, and 7 to 9 of Mr. Mladić’s Appellant’s Brief individually or cumulatively invalidate the Trial Chamber’s findings on which his convictions rest. (749AJ)

 

In view of all the above, taking into account the nature and scale of the errors of law identified in this case, pursuant to Rule 144(C) of the Rules, I would order that Mr. Mladić be retried before another trial chamber on all counts excluding Ground 6 concerning the Hostage taking. (750AJ)