Murder and forced removal at Srebrenica: the joint trial of seven senior Bosnian Serb military officers at the ICTY

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1 Murder and forced removal at Srebrenica: the joint trial of seven senior Bosnian Serb military officers at the ICTY Research paper prepared by: Katrina Geddes Kevin Chau Chynna Campbell Stephen Masterman Nicola Gillies Amanda Beattie James Ellsmore

2 Please note that material in these research papers ( Material ) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. About the Humanitarian Law Perspectives Project The Red Cross and Mallesons Stephen Jaques Humanitarian Law Perspectives project helps raise awareness of the importance of International Humanitarian Law ( IHL ) and its enforcement in post conflict societies Australian Red Cross is mandated to educate the Australian community about the rules that apply in times of armed conflict, and to promote an awareness and understanding of IHL. In 2007, Red Cross and Mallesons Stephen Jaques developed the Humanitarian Law Perspectives project. This project aims to disseminate to the legal profession critical current information on topics and issues that have been considered by international courts and tribunals. The project involves two key components: substantial research papers and a signature seminar series. The Humanitarian Law Perspectives research papers are written annually by Mallesons staff. The papers address current issues that have been considered by international courts and tribunals, and developments in IHL. The research papers are available on the Red Cross website, at The annual Humanitarian Law Perspectives seminar series is a series of signature seminars held across Australia. The Humanitarian Law Perspectives seminars examine one key area of jurisprudence, or a current issue or development, in order to provide the legal profession with a better understanding of emerging key themes in IHL around the globe. The seminars feature prominent speakers in the field, including practitioners, judges and academics. 1

3 Murder and forced removal at Srebrenica: the joint trial of seven senior Bosnian Serb military officers at the ICTY 1 Summary On 10 June 2010, the International Criminal Tribunal for the Former Yugoslavia (the Tribunal ) delivered its 867-page judgment in Prosecutor v Popović (the Judgment ). 1 The Judgment concerns the actions of seven Bosnian Serb military and police officers, and their roles during the massacre and forced transfer of thousands of Bosnian Muslims from Eastern Bosnia in This paper principally examines the proceedings taken against Popović and his fellow perpetrators, including the decision to try the accused men jointly. This paper considers the factual background leading to the events at Srebrenica and Žepa in July 1995 and the charges brought against each of the accused Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero and Vinko Pandurević. Each of the accused was found guilty of several crimes, and sentenced to terms of imprisonment ranging from five years to life. Interestingly, this trial was the first time that the Tribunal was called on to address the crime of conspiracy to commit genocide. The decision of the Office of the Prosecutor (the Prosecutor ) to try each of the seven perpetrators jointly meant that this trial has been the longest and most complex trial to be heard by the Tribunal to date. Nonetheless, it appears that the Tribunal s decision to grant a joint trial has delivered on its promises to promote judicial economy and provide consistent findings while maintaining the rights of the accused persons and minimising hardship to witnesses. This aspect of the decision is discussed in this paper. The successful prosecution of Popović and his fellow perpetrators, and the integrity of the Trial Chamber s judgment, will be tested when the Appeals Chamber is required to review the Trial Chamber s decision and issues its own judgment. This paper provides an account of the notices of appeal lodged by the parties and the current status of the appeals. 2 1 Prosecutor v Popović (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT T, 10 June 2010). An official summary of the Judgment has been published by the Tribunal and is available at < 2 At the time of writing, the publicly available notices of appeal (and appeal briefs) filed by a number of the accused were not available, and are not discussed in this paper. 2

4 Table of contents 1 Summary 2 2 Introduction 4 3 The events at Srebrenica and Žepa in Prelude to the attack on Srebrenica Attack on Srebrenica Separation and removal from Potočari Execution and burial Removal from Žepa 7 4 Summary of the indictments against each of the accused Indictments brought against each of the accused The individual criminal responsibility of each of the accused Crimes alleged by the Indictment 9 5 Summary of the progression of the trials Pre-trial proceedings The trial proceedings 11 6 The decision of the Trial Chamber Findings as to criminal responsibility General legal findings Joint criminal enterprises Vujadin Popović Ljubiša Beara Drago Nikolić Ljubomir Borovčanin Radivoje Miletić Milan Gvero Vinko Pandurević 18 7 The Appeals Ljubiša Beara s notice of appeal Radivoje Miletić s notice of appeal Status of the appeals 21 8 Analysis of the Trial Chamber s decision to allow a joint trial Avoiding duplication and minimising hardship Promoting judicial economy Ensuring consistency of verdicts Potential for prejudice against the accused 23 9 Conclusion Reference materials Statutes Case law Court documents and transcripts Secondary materials 27 3

5 2 Introduction This paper provides a synopsis of the Tribunal s recent decision of Prosecutor v Popović, the longest and arguably most complex case to be heard by the Tribunal since its establishment in Popović ultimately concerns the accountability of seven Bosnian Serb military and police officers Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero, Vinko Pandurević for their roles in the notorious massacre of thousands of Bosnian men in Srebrenica in July 1995 and the forced removal of their families and communities from Eastern Bosnia. This paper outlines the facts leading up to, and including, the massacres and forced removals in Srebrenica and Žepa (section 3). It outlines the charges brought against each of the perpetrators (section 4) and the important pre-trial decisions and rulings made by the Tribunal (section 5). This paper also examines the Trial Chamber s Judgment focusing on the Chamber s general findings as well as the individual responsibility of each of the perpetrators and includes a discussion of the Tribunal s findings in relation to significant issues such as the existence of joint criminal enterprises, the crime of conspiracy to commit genocide and the differences between deportation and forcible transfer (section 6). This paper also examines the notices of appeal lodged with the Tribunal (section 7) and concludes with a discussion of the benefits and drawbacks in conducting a joint trial of this scale and complexity (section 8). The trial and conviction of all seven men for their roles appears to have been conducted efficiently, impartially and with an awareness of the perpetrator s rights at all stages. At the time of writing, the Trial Chamber s decision has been appealed and ultimately, the correctness of the decision will rest with the Tribunal s Appeal Chamber. 3 The events at Srebrenica and Žepa in 1995 This section provides a summary of the events leading up to, and forming the basis of, the Indictment 3 against each of the perpetrators Prelude to the attack on Srebrenica The Republic of Bosnia and Herzegovina ( BiH ) declared its independence from the former Yugoslavia on 3 March Despite international recognition, the country remained torn by internal conflict between Bosnian Muslims seeking independence, and Bosnian Serbs who had declared BiH as the Serbian Republic of BiH ( Republika Srpska ). In the struggle for territory, the Srebrenica region was subjected to fighting between the Army of Republika Srpska ( VRS ) and the Ministry of the Interior (together, the Bosnian Serb Forces ), and the Bosnian Muslim Army of the BiH ( ABiH ). 3 Revised Second Consolidated Amended Indictment (Prosecutor v Popović) (International Criminal Tribunal for the Former Yugoslavia, Case No IT T, 4 August 2006) (the Indictment ). Also refer to section 4 below. 4 For a detailed overview of these events, see Judgment [86]-[738]. 5 Judgment [88]. 4

6 In 1993, as the fighting intensified, the towns of Srebrenica and Žepa, and their surrounding areas, were declared safe areas by the UN and an agreement on the demilitarisation of these enclaves was reached. 6 While neither enclave was ever fully demilitarised, and both the VRS and the ABiH violated this agreement, a ceasefire lasted for a period of time Attack on Srebrenica On 8 March 1995, the President of Republika Srpska, Radovan Karadžić, issued Supreme Command Directive 7 ordering the removal of the Bosnian Muslim population from the Srebrenica and Žepa enclaves. 8 One aspect of the plan was to compel departure by creating an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica and Žepa. 9 In accordance with Directive 7, the VRS restricted the supply of humanitarian aid and relief supplies to the enclaves, creating an extremely dire humanitarian situation. 10 General Radivoje Miletić was involved in these restrictions, as well as in drafting Directive The VRS commenced its military attack on the Srebrenica enclave on 6 July and it fell five days later. 12 The true nature of the attack was concealed from the international community by General Milan Gvero in order to prevent any international action that might frustrate the VRS plans. 13 As Srebrenica fell, thousands of Bosnian Muslims fled to the UN compound in Potočari seeking protection. 14 Another approximately ten to fifteen thousand Bosnian Muslims most of them soldiers and male civilians gathered in surrounding villages and, intending to break through the VRS lines, formed a column which set off for ABiH-held Tuzla Separation and removal from Potočari As the humanitarian situation deteriorated in Potočari, three meetings were held over July to discuss the evacuation of Bosnian Muslim civilians who had fled from Srebrenica. 16 The VRS informed representatives of the Bosnian Muslim population and the UN Protection Force ( UNPROFOR ) that the Bosnian Muslim civilians would survive if they surrendered unarmed. 17 An agreement was signed to this effect. 18 In private, however, the VRS had decided that all the balija had to be killed Ibid [93]-[96]. 7 Ibid [98]. 8 Ibid [199]. 9 Ibid. 10 Ibid [227]-[229]. In addition to these restrictions there was shelling and sniping into the town: Ibid [210]-[212]. 11 Ibid [199]. 12 Ibid [260]. 13 Ibid [108], [1737]. 14 Ibid [264]. 15 Ibid [267]-[269]. 16 Ibid [274]-[289]. 17 Ibid [278]-[279]. 18 Ibid [292]. 19 Ibid [280]. 5

7 The VRS had developed a plan to isolate all Bosnian Muslim males from their families under the pretence of screening them for war crimes before detaining and executing them. 20 It was alleged that Colonel Ljubiša Beara was given authority for organising, coordinating and facilitating the detention, transportation, execution and burial of the victims. 21 It was also alleged that Beara was supervised by General Zdravko Tolimir and assisted by Lieutenant Colonel Vujadin Popović, Second Lieutenant Drago Nikolić and Captain Milorad Trbić, who with Lieutenant Colonel Vinko Pandurević and Deputy Commander Ljubomir Borovčanin were responsible for the men, materials, and orders necessary to carry out the operations. 22 From July, over one thousand able-bodied Bosnian Muslim males were separated from their families in Potočari, transported to Bratunac and temporarily detained. 23 The remaining Bosnian Muslim women, children and the elderly were transported to ABiH-held territory. 24 During the separations, UNPROFOR were disarmed and prevented from intervening. 25 By nightfall on 13 July, between twenty to thirty thousand Bosnian Muslims women, children and elderly had been transported by the VRS out of Potočari. These events formed one aspect of the joint criminal enterprise to forcibly remove ( JCE to Forcibly Remove ) Execution and burial The males detained in Bratunac were soon joined by over six thousand ablebodied Bosnian Muslim males who had been captured or who had surrendered from the column headed to Tuzla. 27 They now formed part of the VRS plans. These men and boys were forced to surrender their property and were detained in deplorable conditions. 28 The planned executions began on 13 July with the massacre of prisoners in large groups in fields, meadows, military bases, warehouses and schools around Bratunac and Zvornik. 29 These executions continued throughout the rest of July. During this time it was alleged that Beara, Popović, Nikolić, Pandurević and Borovčanin were integral in planning and coordinating the killings and subsequent burials. 30 In the autumn of 1995, the VRS attempted to conceal the killings by re-interring the bodies in remote secondary gravesites. 31 These events formed the basis of the joint criminal enterprise to murder ( JCE to Murder ) Ibid [290], [320]. 21 Indictment [27]. 22 Ibid. 23 Judgment [338]. 24 Ibid [316], [332]. 25 Ibid [306]-[308], [323]-[333]. 26 For an explanation of the JCE to Forcibly Remove, refer to section 4.2 below. 27 Judgment [383]-[385], [389]-[392]. 28 Ibid. 29 Ibid [794]. Executions occurred at the following locations: Bratunac Bridge Headquarters (5 deaths), Jadar River (15 deaths), Cerska Valley (150 deaths), Kravica Warehouse and Sandići Meadow (together, over 1,000 deaths), a field in Orahovac (between 850-2,500 deaths), a dam near Petkovci (over 800 deaths), Kula School near Pilica (10 deaths), Kozluk (over 1,000 deaths), Branjevo Military Farm and Pilica Cultural Centre (together, between 1,000-2,000 deaths) (among others). 30 Indictment [27]-[33]. 31 Judgment [600]. 32 For an explanation of the JCE to Murder, refer to section 4.2 below. 6

8 Meanwhile, the members of the column who had not surrendered or been captured, had continued, with difficulty, to move towards Tuzla. From July, a corridor opened in the VRS defence lines allowing a significant part of the column to escape to ABiH-held territory. 33 Pandurević s and Borovčanin s involvement in opening this corridor ultimately led to a reduction in their sentences of imprisonment Removal from Žepa After the fall of Srebrenica, the VRS attention turned to Žepa. During negotiations between the VRS and Bosnian Muslim representatives in July, Tolimir had offered two alternatives: evacuate Žepa in the same manner as Srebrenica, or suffer military attack. 35 As the military attacks intensified, the population of Žepa was left with no choice but to leave. An agreement was signed by the Bosnian Muslim representatives on 24 July purporting to allow the VRS to remove the Bosnian Muslims from within Žepa. The agreement gave a false sense of legitimacy to the forcible movement from Žepa. 36 The transportation of women and children began on 26 July. 37 In all, between four to five thousand people were removed from Žepa. 38 Meanwhile, hundreds of ablebodied males who had escaped into the mountains around Žepa fled across the Drina River to Serbia, fearing death if they surrendered to the VRS. 39 These events formed another aspect of the JCE to Forcibly Remove. By 1 November 1995, there was no longer any trace of the Bosnian Muslim population in Srebrenica or Žepa, and over five thousand Bosnian Muslim males lay buried in mass graves, murdered by the VRS Summary of the indictments against each of the accused 4.1 Indictments brought against each of the accused The nine accused were initially indicted in six separate cases between 2002 and On 21 September 2005, the Trial Chamber granted a motion for joinder to consolidate these cases into one indictment. 42 Appeals lodged by two of the 33 Judgment [551]-[558]. 34 Ibid [2219]-[2222] and [2194]. 35 Ibid [679]. 36 Ibid [703]-[704]. 37 Ibid [711]-[714]. 38 Ibid [719]. 39 Ibid [733]-[735]. 40 Ibid [664]. On the evidence before it, the Trial Chamber found that there were at least 5,336 individuals executed following the fall of Srebrenica, but that this number would rise as new evidence comes to light, and could be as high as 7,826 victims. 41 Prosecutor v Popović (Case No IT I); Prosecutor v Beara (Case No IT I); Prosecutor v Nikolić (Case No IT I); Prosecutor v Borovčanin (Case No IT I); Prosecutor v Tolimir, Miletić and Gvero (Case No IT I); Prosecutor v Pandurević and Trbić (Case No IT I). 42 Prosecutor v Popović; Prosecutor v Beara; Prosecutor v Nikolić; Prosecutor v Borovčanin; Prosecutor v Tolimir; Prosecutor v Pandurević (Decision on Motion for Joinder) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case Nos IT PT, IT PT, IT PT, IT PT, IT PT and IT PT, 21 September 2005) (the Joinder Decision ). 7

9 accused (Miletić and Pandurević) against this decision were dismissed by the Appeals Chamber. 43 Between October 2004 and July 2006, each of the accused surrendered and was transferred to the Tribunal where they made their initial appearances and pleaded not guilty to all charges. 44 A consolidated amended indictment was filed by the Prosecutor on 11 November The consolidated amended indictment was challenged a number of times and the Prosecutor sought to amend the indictment on two occasions. 46 On 14 June 2006, a second consolidated indictment was filed by the Prosecutor. 47 Three of the accused (Popović, Borovčanin and Pandurević) filed motions alleging defects in the form of the second consolidated indictment. 48 The Trial Chamber granted the motions in part and the Prosecutor submitted a revised second consolidated indictment on 4 August 2006 (the Indictment ) The individual criminal responsibility of each of the accused Each of the accused was indicted on the basis of his responsibility under article 7(1) of the Statute of the International Criminal Tribunal for the Former Yugoslavia 50 for planning, instigating, ordering, committing or otherwise aiding and abetting crimes, including participation in a joint criminal enterprise ( JCE ). 51 The accused were alleged to have had knowledge of, and participated in, the murder of able-bodied Bosnian Muslim men from Srebrenica (the JCE to Murder ) and the forced removal of the Bosnian Muslim populations from Srebrenica and Žepa (the JCE to Forcibly Remove ). Pandurević and Borovčanin were also indicted through the doctrine of superior responsibility under article 7(3) of the Statute Prosecutor v Pandurević (Decision on Vinko Pandurević s Interlocutory Appeal Against Trial Chamber s Decision on Joinder of Accused) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-05-86, 24 January 2006); Prosecutor v Tolimir (Decision on Radivoje Miletić s Interlocutory Appeal Against the Trial Chamber s Decision on Joinder of Accused) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-04-80, 27 January 2006); Judgment [Annex 2] [2]. 44 Judgment [Annex 2] [6]-[7]. 45 Ibid [Annex 2] [3]. 46 Ibid. 47 Ibid. 48 Ibid [Annex 2] [4]. 49 Ibid. 50 International Criminal Tribunal for the Former Yugoslavia, Statute of the International Criminal Tribunal for the Former Yugoslavia annexed to Resolution 827, SC Res 827, UN SCOR, 48th sess, 3217th mtg, UN Doc S/RES/927 (1993) (the Statute ). 51 Article 7(1) of the Statute states A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. The doctrine of JCE permits individual criminal responsibility to be attributed to individuals who have not necessarily physically committed the relevant crime, but who formed part of a group, who have, in some way, planned, instigated, ordered or otherwise aided and abetted the commission of those crimes. 52 Article 7(3) of the Statute allows a superior to be held responsible for failing to prevent or punish the actions of their subordinates which are in violation of the Statute, where the superior knew or had reason to know that the crimes were about to be or had been committed. 8

10 4.3 Crimes alleged by the Indictment The Indictment charged each of the accused with numerous crimes under the Statute. Table one summarises these charges. Table one - charges brought against the accused Count Crime Who was charged? Liability Allegations 1 Genocide, a crime under article 4(3)(a) 2 Conspiracy to commit genocide, a crime under article 4(3)(b) 3 Extermination, a crime under article 5(b) 4 Murder, as a crime against humanity, under article 5(a) 5 Murder, as a violation of the laws or customs of war, a crime under article 3 6 Persecution on political, racial and religious grounds, a crime under article 5(h) 7 Forcible transfer, a crime against humanity under article 5(i) Pandurević, Beara, Popović, Nikolić, Borovčanin Pandurević, Borovčanin Pandurević, Beara, Popović, Nikolić, Borovčanin Pandurević, Borovčanin Pandurević, Beara, Popović, Nikolić, Borovčanin Pandurević, Borovčanin Article 7(1) Article 7(3) Article 7(1) Article 7(3) Article 7(1) Article 7(3) All 7 accused Article 7(1) Pandurević, Borovčanin Article 7(3) All 7 accused Article 7(1) Pandurević, Borovčanin Article 7(3) All 7 accused Article 7(1) Pandurević, Borovčanin Article 7(3) All 7 accused Article 7(1) Pandurević, Borovčanin Article 7(3) The accused, acting with genocidal intent to destroy, in whole or in part, the Muslim population of Eastern Bosnia, executed members of this group and caused serious bodily or mental harm through separation and forced movement of members of this group 53 The accused entered into an agreement with several others, with the common purpose of executing Bosnian Muslim males from Srebrenica and removing the remaining Muslim population, with the intent to destroy the Muslim population of Eastern Bosnia 54 The accused participated in the large-scale murder of thousands of Bosnian Muslim males from Srebrenica 55 The accused participated in the large-scale executions (excluding Miletić and Gvero) and opportunistic killings (Miletić and Gvero alone) of Bosnian Muslim males 56 As above 57 The accused acted with discriminatory intent while participating in the persecutory acts of murder, cruel and inhumane treatment, terrorisation, the destruction of personal property and effects and forced separation 58 The accused participated in the permanent and forcible removal of the Bosnian Muslim population by making life unbearable for those seeking refuge in the enclaves Indictment [26]-[33]. 54 Ibid [34]-[44]. 55 Ibid [45]. 56 Ibid [46]-[47]. 57 Ibid. 58 Ibid [48]. 9

11 Count Crime Who was charged? Liability Allegations 8 Deportation, a crime against humanity under article 5(d) All 7 accused Article 7(1) Pandurević, Borovčanin Article 7(3) The accused participated in the deportation of the Bosnian Muslim population by making life unbearable for those seeking refuge in the enclaves 60 5 Summary of the progression of the trials This section summarises some of the key procedural aspects from the trial Pre-trial proceedings The pre-trial proceedings lasted 11 months. During this time, six of the accused (Popović, Nikolić, Borovčanin, Pandurević, Miletić and Gvero) separately filed motions for provisional release. 62 Of the six, only two (Miletić and Gvero) were granted provisional release. 63 The Trial Chamber also granted motions seeking access to confidential information relating to cases previously before the Tribunal. 64 Additionally, the cases against Trbić and Tolimir were severed from this case during the pre-trial proceedings. The severance of these cases is discussed below. Severance of the case against Milorad Trbić On 26 June 2006, the case against Trbić was severed pursuant to rule 82(B) of the Tribunal s Rules of Procedure and Evidence. 65 Trbić had originally been indicted with Pandurević and, later, each of the other accused. Under rule 82(B), the Trial Chamber may order that persons accused jointly be tried separately if it considers that such an order is necessary to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice. As the time needed to resolve outstanding issues relating to the case against Trbić would delay the trials of the other accused and thereby impinge on their rights to an expeditious trial, the Trial Chamber considered that the interests of justice would be best served by severing the case against Trbić. 66 Trbić s case 67 was later referred to the Court of BiH pursuant to rule 11 bis of the Rules Ibid [49]-[83]. 60 Ibid [84]. 61 The procedural history regarding the indictments is discussed in section 4.1 above. 62 Judgment [Annex 2] [11]-[13]. 63 Ibid. 64 See, for example, Prosecutor v Popović (Decision on Miletić s Request to Have Access to Confidential Information in the Krstic Case) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT PT, 18 October 2005) and Prosecutor v Popović (Decision on Defence Motion on Behalf of Drago Nikolić Seeking Access to All Confidential Information in the Krstic Case) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT PT, 8 November 2005). 65 International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, Doc No IT/32/Rev 44, adopted 10 December 2009 (entered into force 14 March 1994) (the Rules ); see Prosecutor v Popović (Decision on Severance of Case Against Milorad Trbić with Confidential and Ex Parte Annex) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT PT, 26 June 2006) (the Trbić Decision ). 66 Trbić decision. On 14 July 2006, the Trial Chamber granted Trbić s motion for certification to appeal this decision. The deadline for Trbić to lodge his appeal was suspended on 20 July The suspension was lifted on 22 March 2007 and Trbić was instructed to lodge his appeal by 29 March An appeal does not appear to have been lodged within this time. 10

12 Severing the case against Zdrakvo Tolimir On 13 July 2006, the Trial Chamber ordered that the charges against Tolimir be removed from the indictment. 69 The Trial Chamber stated that it did not want to give the impression that Tolimir was being tried when he was yet to be arrested. 70 On 15 August 2006, when the Indictment became effective, Tolimir remained at large and, noting the oral order of 13 July 2006, the Trial Chamber ordered that the case against him be severed pursuant to rule 82 of the Rules The trial proceedings Judge Carmel Agius (Presiding Judge), Judge O-Gon Kwon and Judge Kimberley Prost were appointed to preside over the trial. The trial commenced on 14 July 2006 and lasted 425 days. The Prosecution presented their case from 21 August 2006 to 7 February A total of 182 witnesses were called and 2906 exhibits were submitted by the Prosecutor. 73 Following the Prosecutor s case, all of the accused (other than Popović) made submissions for acquittal between 14 to 15 February 2008 pursuant to rule 98 bis of the Rules. 74 The Trial Chamber dismissed the submissions on 2 March 2008 finding that there was sufficient evidence for the possible conviction of each of the accused on all counts. 75 The cases for each of the accused were presented over the period 2 June 2008 to 12 March Together, the accused adduced evidence from 132 witnesses and submitted 2474 exhibits. 77 The Trial Chamber called one witness, Momir Nikolić, to testify as a Chamber witness. Nikolić gave evidence from 21 to 28 April During the course of the trial, the Trial Chamber granted motions to take judicial notice of a total of 338 facts adjudicated in cases previously before the Tribunal. 79 The Trial Chamber also granted motions to reopen the Prosecutor s case and each of the accused s cases a number of times to admit and rebut 67 In accordance with the Trial Chamber s decision on 26 June 2006, the Prosecutor filed a new indictment against Trbić on 18 August 2006 (see Case No IT-05-88/1). 68 Prosecutor v Trbić (Decision on Referral of Case under Rule 11 bis with Confidential Annex) (International Criminal Tribunal for the Former Yugoslavia, Referral Bench, Case No IT-05-88/1-PT, 27 April 2007). The Court of BiH found Trbić guilty of genocide and sentenced him to 30 years imprisonment on 16 October Transcript (Prosecutor v Popović) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No. IT PT, Oral Order, T , 13 July 2006). 70 Transcript (Prosecutor v Popović) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT PT, T , 6 July 2006). 71 Prosecutor v Popović (Order on Operative Indictment and Severance of Case Against Zdravko Tolimir) (International Criminal Tribunal for the Former Yugoslavia, Referral Bench, Case No IT T, 15 August 2006). Tolimir was later arrested on 31 May Proceedings against him commenced on 26 February 2010 & were ongoing at the time of writing (see Case No IT-05-88/2). 72 Judgment [Annex 2] [15]. 73 Ibid. 74 Ibid [Annex 2] [17]. 75 Ibid. 76 Ibid [Annex 2] [19]-[26]. 77 Ibid. 78 Ibid [Annex 2] [27]. 79 Ibid [Annex 2] [37]-[38]. 11

13 evidence. 80 The Trial Chamber also made a number of rulings on evidentiary matters, including expert witnesses, identification evidence and intercept evidence. Final briefs were submitted by the Prosecutor and all seven accused on 30 July 2009 and closing arguments were received from 2 15 September The Trial Chamber delivered its decision on 10 June The decision of the Trial Chamber In most respects, the findings of the Trial Chamber were unanimous and delivered in a joint judgment. However, Judge Kwon dissented on a number of issues, and both Judge Kwon and Judge Prost gave separate opinions on certain issues. Given the length and number of issues dealt with, it is not possible to provide a comprehensive summary of the Judgment here. Instead, this section sets out a brief overview of the Trial Chamber s general findings and a small number of key issues in relation to each of the accused. 6.1 Findings as to criminal responsibility The Trial Chamber found that numerous crimes were committed by members of the Bosnian Serb Forces in various locations as alleged in the Indictment. However, the Trial Chamber was not satisfied that the elements of the crime of deportation had been established. Table two summaries the Trial Chamber s decisions on each count of the Indictment brought against each of the accused, and the sentences imposed. Table two - findings made against each of the accused Accused Count Popović G NC G NC G G NG NG Life Beara G NC G NC G G NG NG Life Sentence Nikolić G(a) NG G NC G G NG NG 35 years Borovčanin NG NG G(a) NC G(s) G(a) G(s) G(a) G(a)* NG 17 years Miletić G* NG G G NG 19 years Gvero NG NG G G NG 5 years Pandurević NG NG NG G(a)* G(s) G(a)* G(s) G(a) G(a) NG 13 years Key: Counts 1-8 are as described in section 4.3 above G: guilty pursuant to article 7(1) of the Statute G(a): guilty pursuant to article 7(1) of the Statute, through aiding and abetting G(s): guilty pursuant to article 7(3) of the Statute, on the basis of superior responsibility NG: not guilty NC: no conviction recorded, on the basis that the convictions would be cumulative * By majority, Judge Kwon dissenting All sentences are terms of imprisonment 80 Ibid [Annex 2] [28]-[35]. 81 Ibid [Annex 2] [36]. 12

14 6.2 General legal findings The Trial Chamber found that several thousand Bosnian Muslim males were executed by Bosnian Serb Forces and that these killings were intentional and therefore constituted murder, 82 both as a crime against humanity and a violation of the laws or customs of war. 83 Because these killings formed part of a single, large-scale operation, the Trial Chamber also held that the crime of extermination had been committed. 84 The Trial Chamber held that genocide 85 was committed by members of the Bosnian Serb Forces as alleged in the Indictment through both planned and opportunistic killings and the infliction of serious bodily and mental harm on the Muslim population of Eastern Bosnia, these acts having been carried out with genocidal intent. 86 The Trial Chamber also held that there was a conspiracy to commit genocide brought about by the prior agreement by members of the Bosnian Serb Forces to commit genocide. 87 The Trial Chamber found that conspiracy is a continuing crime and, as such, an individual could join the conspiracy after the initial agreement was concluded. 88 This finding is significant since this case was the first time the Tribunal was required to address the crime of conspiracy to commit genocide. During the course of the trial, Nikolić contended that the crime of conspiracy to commit genocide was not a continuing crime. 89 Accordingly, Nikolić submitted that if the Trial Chamber accepted the position that the conspiracy to commit genocide had concluded by the evening of 11 July 1995 or morning of 12 July 1995, he could only be liable for his involvement in the genocide but not for conspiring to commit genocide after this agreement had been reached The elements of the crime of murder are the death of the victim, caused by the accused having the intention to kill or the intention to cause serious bodily harm which the accused should reasonably have known might lead to death: Ibid [787]-[788]. 83 Ibid [796]. 84 Ibid [806]. The Trial Chamber having earlier found that the general requirements of articles 3 and 5 of the Statute had been met: Ibid [748]-[785]. 85 The crime of genocide can consist of one or more specified types of acts carried out with the intention to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The underlying acts are: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group. Ibid [808] 86 Ibid [841], [847], [861] and [863]. However, the Trial Chamber held that there was insufficient evidence to conclude that the forcible transfer created conditions of life calculated to bring about the destruction of the Muslim population of Eastern Bosnia, or the failure of that population to live and reproduce normally: Ibid [855]. 87 The crime of conspiracy to commit genocide is defined as an agreement between two or more persons to commit he crime of genocide. The elements of the offence are the entering into the agreement, and the intention to destroy, in whole or in part, a national ethnical racial or religious group, as such; Ibid [868]. 88 Ibid [876]. 89 Final Brief (Prosecutor v Nikolić) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT T, 30 July 2010) [322]-[325]. 90 Judgment [870]. 13

15 The Trial Chamber sought guidance from the decisions of the International Criminal Tribunal for Rwanda ( ICTR ), which has held that conspiracy to commit genocide constituted an inchoate crime whereby the mere presence of an agreement to commit genocide itself was punishable, regardless of whether genocide had actually been committed as a consequence of the agreement. 91 Nikolić relied on Prosecutor v Nahimana where the ICTR Appeals Chamber had held that the concepts of inchoate and continuing were independent of one another, 92 and that the conspiracy would be completed as soon as the discourse in question was uttered or published, even though the effects of incitement may extend in time. 93 However, the Trial Chamber noted that this position was at odds with the common law, where conspiracy to commit genocide in the United States, the United Kingdom and Canada is a continuing crime. 94 The Trial Chamber found, therefore, that conspiracy under the Statute is a continuing crime and that additional conspirators, such as Nikolić, could join the conspiracy after the initial agreement had been concluded. 95 The Trial Chamber also held that, while not impermissibly cumulative, it would be unfair to record convictions for both genocide and conspiracy to commit genocide. 96 The Trial Chamber further held that: (a) (b) (c) (d) the forced busing of the Bosnian Muslim women, children and the elderly from Potočari; the departure of the civilian component of the column of men toward ABiH-held territory (by majority, Judge Kwon dissenting); the busing of Bosnian Muslims civilians out of Žepa; and the flight of Bosnian Muslim men from Žepa (by majority, Judge Kwon dissenting), constituted forcible transfer. 97 The Trial Chamber reiterated that, for the crime of deportation to be committed, persons must be forcibly displaced across a border, 91 In particular, see Prosecutor v Seromba (Appeal Judgment) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-01-66, 12 March 2008) [207]-[225]; Prosecutor v Nahimana (Appeal Judgment) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-96-11, 28 November 2007) [893]-[912]; Prosecutor v Niyitegeka (Trial Judgment) (International Criminal Tribunal for Rwanda, Trial Chamber, Case No ICTR-96-14, 16 May 2003) [423]; Prosecutor v Musema (Trial Judgment) (International Criminal Tribunal for Rwanda, Trial Chamber, Case No ICTR-96-13, 27 January 2000) [184]-[198]. 92 Prosecutor v Nahimana (Appeal Judgment) (International Criminal Tribunal for Rwanda, Appeals Chamber, Case No ICTR-96-11, 28 November 2007) [720]-[721]. 93 Ibid [723]. 94 Judgment [872]. 95 Ibid [876]. 96 Ibid [2111]-[2127]. Cumulative convictions are convictions for multiple offences relating to the same conduct. Unless each offence has a materially distinct element, a conviction will only be entered for the more specific offence. 97 Ibid [925], [930], [951] and [958], respectively. The elements of the crime of forcible transfer are the forced displacement of persons from an area in which they are lawfully present without grounds permitted under international law, carried out with an intent to forcibly transfer: Ibid [891] and [904]. In this case, the Trial Chamber also held that the forced busing of Bosnian Muslim men separated form their families in Potočari, and the transport of Bosnian Muslim men who surrendered or were captured, to where they were executed did not constitute the crime of forcible transfer since the Bosnian Serb Forces intent was to murder, not forcibly transfer: Ibid [934]. 14

16 usually a de jure border or in some circumstances, a de facto border, 98 and that there must also be a requisite link between the force exercised by the perpetrators to coerce their victims to move and the ultimate relocation of the victims across the border. 99 Physical force would not be required, but may include the threat of force or coercion, psychological oppression or other means of rendering displacement involuntary. 100 Accordingly, the Trial Chamber did not find that the flight of Bosnian Muslim men from Žepa toward Serbia constituted deportation. 101 The Prosecutor alleged that the crime of deportation had been committed through the forced movement of Bosnian Muslim men across the Drina River to Serbia. However, the Indictment pleaded that the Muslim men from the Žepa enclave fled toward Serbia because they feared they would be harmed or killed if they surrendered to the [VRS]. The Trial Chamber also concluded that there was insufficient evidence to indicate that the VRS had intended to deport the group across the border, and that other groups had fled to different areas within Eastern Bosnia. 102 Lastly, the Trial Chamber found that the Muslims of Eastern Bosnia had been subjected to persecution through the commission of the underlying acts of murder, cruel and inhumane treatment, terrorisation of the civilian population and forcible transfer with intent to discriminate on political, racial or religious grounds Joint criminal enterprises The Trial Chamber found that there was a JCE to Murder and a JCE to Forcibly Remove. 104 The Trial Chamber also found that opportunistic killings occurred during the course of the JCE to Murder and, by majority, Judge Kwon dissenting, the JCE to Forcibly Remove. 105 The liability of each of the accused depended on their making a significant contribution to the JCE to Murder and/or the JCE to Forcibly Remove, and whether they shared the common purpose. 6.4 Vujadin Popović The Trial Chamber found that Popović was a core participant in the JCE to Murder, as he knew of the plan to murder the Bosnian Muslim men from the time of its inception, and was privy to each relevant development of the plan. 106 Popović was prominent in the implementation of the plan, and coordinated logistics for a number of the mass executions. He had attended all but one of the execution sites, and was present at one site when executions were carried out Judgment [893] and [895]. It is this element of the crime of deportation that distinguishes it from forcible transfer: Ibid [892]. 99 Ibid [896]. 100 Ibid. 101 Ibid [959]. 102 Ibid [958]-[961]. 103 Ibid [1004]. 104 Ibid [1072] and [1087], respectively. 105 Ibid [1082] and [1088], respectively. 106 Ibid [1164]-[1168]. 107 Ibid [1166]. 15

17 The Trial Chamber found he participated in the JCE to Murder with genocidal intent, and that he knew of (and shared) the aim to destroy the group. 108 However, the Trial Chamber found that Popović was not a participant of the JCE to Forcibly Remove. While he was aware of the operation, there was insufficient evidence that he took action in support of the operation or that he made a significant contribution to it. 109 Popović s manifest enthusiasm was an aggravating factor, leading to his sentence of life imprisonment Ljubiša Beara The Trial Chamber found that Beara played a pivotal and high-level role in the JCE to Murder by identifying locations, securing personnel and equipment, and overseeing the effective execution of the plan. 111 Due to his overarching responsibility for and participation in the killings, it was found that Beara shared the intent to murder Bosnian Muslim men on a massive scale. 112 Beara s knowledge, actions and words also demonstrated his genocidal intent. 113 It was also found that Beara was responsible for opportunistic killings of Bosnian Muslim men would be carried out as a consequence of the JCE to Murder, as these were foreseeable to him. 114 Due to insufficient evidence that Beara made a significant contribution, the Trial Chamber did not find that Beara participated in the JCE to Forcibly Remove. 115 Beara s cold and calculated actions led to a sentence of life imprisonment Drago Nikolić Nikolić was found to have participated in the JCE to Murder by virtue of his steadfast and resolute approach to his role in planning, making physical preparations and securing personnel for the operation. 117 The Trial Chamber found that Nikolić participated with a persecutory intent (sufficient to justify a finding that he aided and abetted genocide) but that, unlike Popović and Beara, he did not have a genocidal intent. 118 The Trial Chamber said that there was no evidence that Nikolić participated in the JCE to Forcibly Remove Ibid [1175]-[1181]. 109 Ibid [1173]-[1174]. 110 Ibid [2159]. 111 Ibid [1300]-[1302]. 112 Ibid [1301]. 113 Ibid [1317]. 114 Ibid [1303]-[1304]. 115 Ibid [1305]-[1309]. 116 Ibid [2166]. 117 Ibid [1391]-[1392]. 118 Ibid [1414]-[1415]. 119 Ibid [1394]-[1396]. 16

18 6.7 Ljubomir Borovčanin By majority, Judge Kwon dissenting, the Trial Chamber found that, while Borovčanin became aware that forcible removal of Bosnian Muslim women and children was taking place, he did not share the common purpose of the JCE to Forcibly Remove or have the intent to forcibly transfer and so did not participate in it. 120 However, the majority found that he aided and abetted the forcible removal, and found him guilty on that basis. 121 Judge Kwon would have found him not guilty of this charge and of the charge of persecution. 122 The Trial Chamber was unanimous in finding that Borovčanin was not a member of the JCE to Murder, 123 but that as a superior officer to others who had committed murder, he was criminally responsible for the murders because of his failure to punish those subordinate officers. 124 The Trial Chamber also found that Borovčanin s failure to discharge his legal duty to protect the Bosnian Muslim prisoners assisted in the perpetration of murder. He was therefore held to have aided and abetted murder by omission. 125 Borovčanin s substantial cooperation with the Prosecutor, and his other actions (such as agreeing to open the corridor through VRS lines) were mitigating factors in his sentence Radivoje Miletić Miletić was found to have shared the common intent of the JCE to Forcibly Remove, and to have played a pivotal role from its inception through to its implementation. 127 He was central in drafting Directive 7, including the directions for the forcible removal operation, and played a coordinating role throughout the operation. 128 He also used his position to restrict the delivery of supplies and humanitarian aid to the Bosnian Muslim population thereby contributing to the dire situation which forced inhabitants to flee the enclaves. 129 The majority found that Miletić was guilty of murder on the basis that certain opportunistic murders were foreseeable as consequences of the JCE to Forcibly Remove. 130 Justice Kwon dissented on this point, finding that while the killings were a foreseeable consequence of the JCE to Murder, they were not a consequence of the JCE to Forcibly Remove. 131 Miletić s appeals to the attendees of two meetings in Bosnia in 1999 and 2000 that they not provide any information to the Tribunal was considered by the Trial 120 Ibid [1495]. 121 Ibid [1497]-[1501]. 122 Ibid [35] (Judge Kwon). 123 Ibid [1541]. 124 Ibid [1576]. 125 Ibid [1563]. 126 Ibid [2191] and [2194]. 127 Ibid [1716]-[1718]. 128 Ibid [1711]-[1715]. 129 Ibid [1709]. 130 Ibid [1727]. 131 Ibid [22] (Judge Kwon). 17

19 Chamber to amount to an obstruction of the work of the Tribunal, and was taken into account as an aggravating factor in sentencing Milan Gvero Gvero was found to have made a significant contribution to the JCE to Forcibly Remove by his efforts to delay and block international intervention to prevent the forcible removal. 133 The Trial Chamber found that he had issued a misleading press release which stated that military activity was directed towards Muslim terrorists, and not civilians, with the intention of misleading international authorities. 134 He was also found to have made misleading and threatening phone calls to General Nicolai of UNPROFOR, for example, warning that failure to stop the NATO air strikes could result in dire consequences for UNPROFOR. 135 Given that Gvero s involvement in the JCE to Forcibly Remove was limited, he was given a relatively short sentence compared to the other accused. His voluntary surrender to the Tribunal was also taken into account as a mitigating factor. 136 On 28 June 2010, Gvero was granted early release on humanitarian grounds, due to his deteriorating health and age Vinko Pandurević The Trial Chamber held that Pandurević was not a member of either the JCE to Murder 138 or the JCE to Forcibly Remove. 139 However, he was found guilty of counts four to seven as he was found to have aided and abetted the commission of those offences. 140 Judge Kwon dissented on this point in relation to counts four and five, 141 but joined with the majority in finding Pandurević guilty as a superior officer for not preventing his subordinates from committing murder. 142 In determining the appropriate sentence for Pandurević, the Trial Chamber gave significant weight, as mitigating factors, to Pandurević s actions in opening a corridor to allow the safe passage of Bosnian Muslim men (potentially saving thousands of lives) and his bravery in challenging the murder operation in combat reports. 143 Judge Kwon considered that these factors deserved greater weight than they were given, and would have further reduced Pandurević s sentence Ibid [2199]. 133 Ibid [1822]. 134 Ibid [1814]-[1815]. 135 Ibid [1816]-[1818]. 136 Ibid [2203]-[2209]. 137 He was 72 years of age at the time of his release. See Prosecutor v Gvero (Decision of President on Early Release of Milan Gvero) (President of the International Criminal Tribunal for the Former Yugoslavia, Case No IT ES, 28 June 2010). 138 Judgment [1979]. 139 Ibid [2007]. 140 Ibid [1991] and [2012]. 141 Ibid [1991]; ibid [66] (Judge Kwon). 142 Ibid [2066]. 143 Ibid [2219]-[2222]. 144 Ibid [75]-[81] (Judge Kwon). 18

20 7 The Appeals Following a 90 day extension of time, 145 the Prosecutor and five of the seven perpetrators filed notices of appeal against the Trial Chamber s decision. The Prosecutor, Miletić and Beara each filed public individual notices of appeal. 146 Sections 7.1 and 7.2 briefly summarise the types of findings that the appellants are challenging. 7.1 Ljubiša Beara s notice of appeal Beara s notice of appeal contains 41 grounds of appeal and seeks his acquittal on every count, or alternatively, acquittal in respect of any of the individual counts, or a reduction to his life sentence. Grounds 1 5 of Beara s Notice challenge the admissibility of evidence. In particular, Beara challenges the Trial Chamber s admission of evidence claimed to be unfairly prejudicial, grossly unreliable and uncorroborated, and also argues that the Trial Chamber attributed undue weight to this evidence. 147 Grounds 6 14 allege various and numerous errors in the Judgment, including, for example, the inconsistent application of standards when assessing the credibility of, and giving weight to, various witnesses, and incorrect inferences being drawn from circumstantial evidence. 148 In respect of the JCE to Murder, Beara contends that the Trial Chamber erred in the standard it applied in order to satisfy the elements of the JCE. 149 In particular, the findings that Beara significantly contributed to, and shared the intent to carry out, the common purpose to murder, 150 and that certain killings fell within the common criminal purpose of JCE to Murder. 151 In respect of conspiracy to commit genocide, Beara claims that the Trial Chamber incorrectly applied the law in finding that conspiracy was a continuing crime Prosecutor v Popović (Decision on Joint Motion for Extension of Time to File Notice of Appeal) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT A, 25 June 2010). 146 Prosecution s Notice of Appeal (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT A, 8 September 2010); Appellant, Ljubiša Beara s Notice of Appeal (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT A, 8 September 2010) ( Beara s Notice ); Notice of Appeal by the Radivoje Miletić Defence (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT A, 8 September 2010) ( Miletić s Notice ). At the time of writing, the notices of appeal (and appeal briefs) filed by a number of the appellants were confidential. Public redacted versions of these notices of appeal (and appeal briefs) are now available through the ICTY Court Records database ( but are not discussed in this paper. 147 The evidence in question includes intercept transcripts, aerial images, the VRS Zvornik brigade s notebook, the testimony of Pandurević, statements by Borovčanin and rule 92 quarter testimony. 148 Beara s Notice, grounds 7, 8, 10 and 14. Such findings are claimed to be impermissible as a matter of law under article 21(3) of the Statute. 149 Ibid, grounds The Trial Chamber considered whether each killing formed part of the common purpose as it did not have evidence in respect of each killing site to determine whether the physical perpetrators of each mass execution were themselves members of the JCE (Judgment [1074]). 151 Namely, the Trial Chamber s finding that the opportunistic killings were a natural and foreseeable consequence of the JCE to Murder (Judgment [1301] [1302]). 152 Beara s Notice, ground