Case No.
IT-98-29-A
Ms. Mara Pilipovic
Mr. Stephane Piletta-Zanin
I. INTRODUCTION
- The Appeals Chamber of the International Criminal Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International Humanitarian Law
Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seised
of two motions for the admission of additional evidence pursuant to Rule 115 of
the Rules of Procedure and Evidence of the Tribunal (“Rules”) filed by Stanislav
Galic (“Appellant”) on 11 February 2005 (“First Rule 115 Motion”)1
and on 20 January 2005 (“Third Rule 115 Motion”) respectively.2
- On 5 December 2003, Trial Chamber I, by a majority,3
convicted the Appellant of crimes against humanity and of violations of the laws
or customs of war pursuant to Articles 5 and 3 of the Statute, respectively.4
He was sentenced to a single sentence of twenty years’ imprisonment.5
Both the Appellant and the Prosecution subsequently filed an appeal against the
Trial Judgement6 and, for this purpose, the Appellant seeks the admission of additional evidence.
- The Appeals Chamber is currently seised of the First Rule 115 Motion and the
Third Rule 115 Motion, the Second Rule 115 Motion having been disposed of in a decision
filed on 22 March 2005,7 in which the
Appellant’s request for admission of additional evidence was denied.
FIRST RULE 115 MOTION
- On 18 June 2004, the Appellant filed confidentially a motion pursuant to Rule
115.8 Finding that the motion constituted
an incomplete and deficient filing in that it did not comply with the provisions
of Practice Direction IT/201 on Formal Requirements for Appeals from Judgement,9
the Pre-Appeal Judge10 invited the
Appellant to re-file the motion in accordance with these provisions and to include
the full official translations from the Registry of the documents attached to the
motion.11 On 11 February 2005, the
Appellant re-filed this motion, which thus became the First Rule 115 Motion, together
with the complete official translations from the Registry of the said documents.
Pursuant to a decision granting the Prosecution’s request for an extension of time
and page limits,12 the Prosecution
filed its response on 28 February 2005,13
and the Appellant filed his reply on 4 March 2005.14
- In the First Rule 115 Motion, the Appellant requests the admission as additional
evidence on appeal of 14 documents, accounts of 3 proposed additional witnesses
and parts of the English transcripts of 4 witnesses who testified in the case of
Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T (“Milosevic
Trial”). The Prosecution opposes this request and argues that the First Rule 115
Motion should be dismissed.
- With regards to the question of whether the First Rule 115 Motion was validly
filed, Rule 115 establishes that an application for the admission of additional
evidence on appeal shall be “filed with the Registrar not later than seventy-five
days from the date of the StrialC judgement unless good cause is shown for further
delay”. The practice in this case is that those seventy-five days are calculated
from 7 April 2004 as the date that the French translation of the Trial Judgement
was filed.15 The First Rule 115 Motion
is accordingly validly filed being the re-filed version of that of 18 June 2004,
which was filed on time.
(ii) THIRD RULE 115 MOTION
- On 20 January 2005, the Appellant filed the Third Rule 115 Motion. Following
a request by the Prosecution,16 on
7 February 2005, the Pre-Appeal Judge ordered the Appellant to request from the
Registry of the Tribunal official translations, into English, of all the documents
in Bosnian/Croatian/Serbian (“BCS”) attached to the Third Rule 115 Motion and to
file these official translations with the Registry.17
The Appellant did so on 10 March 2005.18
- On 14 March 2005, the Prosecution filed a request for an extension of page
limit to respond to the Third Rule 115 Motion.19
The Pre-Appeal Judge, in a decision rendered on 16 March 2005, denied the request.20 The Prosecution filed its response
to the Third Rule 115 Motion on 21 March 200521
and the Appellant filed his reply on 29 March 2005.22
Considering that 25 and 28 March were holidays, the Reply Supporting Third Rule
115 Motion was validly filed within the four day time limit for filing a reply.23
- On 26 April 2005 the Prosecution filed, partly confidentially, a request seeking
leave to file a further response to the replies filed by the Appellant supporting
the Third Rule 115 Motion and a subsequent motion.24
In a consolidated response,25 attached
to the Request for Leave,26 the Prosecution
argues that the Appellant raises new arguments in his replies to its responses supporting
the Third Rule 115 Motion and the Fourth Rule 115 Motion.27
On 28 April 2005 the Appellant filed a response28
opposing the Prosecution’s Request for Leave. Given the Appeals Chamber’s decision
on the merits contained hereunder, the Appeals Chamber does not find it necessary
to address the matters raised in the Request for Leave and Consolidated Response
insofar as they relate to the Third Rule 115 Motion. This is without prejudice to
the issues raised therein relating to the Fourth Rule 115 Motion, which will be
considered in the decision relating to that motion.
- In the Third Rule 115 Motion, the Appellant seeks the admission of 14 documents
from the Ministry of Interior of Republika Srpska, and parts of the English transcripts
of 2 witnesses who testified in the Milosevic Trial.29
The Prosecution opposes the Third Rule 115 Motion and submits that it should be
dismissed.
II. APPLICABLE LAW
- The admission of additional evidence is regulated under Rule 115 of the Rules, which provides as follows:
Rule 115
Additional Evidence
(A) A party may apply by motion to present additional
evidence before the Appeals Chamber. Such motion
shall clearly identify with precision the specific
finding of fact made by the Trial Chamber
to which the additional evidence is directed,
and must be served on the other party and
filed with the Registrar not later than seventy
-five days from the date of the judgement, unless
good cause is shown for further delay. Rebuttal
material may be presented by any party affected
by the motion.
(B) 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 judgement in accordance with Rule
117.
(C) The Appeals Chamber may decide the motion prior
to the appeal, or at the time of the hearing
on appeal. It may decide the motion with or
without an oral hearing.
(D) If several defendants are parties to the appeal,
the additional evidence admitted on behalf
of any one of them will be considered with
respect to all of them, where relevant.
- Rule 115 concerns the admission of evidence on appeal in addition to evidence
already admitted in respect of a particular fact or issue during trial proceedings.30 In order to be admissible pursuant
to Rule 115, the evidence put forward must satisfy a number of requirements. These
requirements vary depending on the availability of the evidence at trial.
- First, the applicant must demonstrate that the proffered evidence was neither
available to him at trial in any form31
nor discoverable through the exercise of due diligence.32
The applicant’s duty to act with reasonable diligence includes making “appropriate
use of all mechanisms of protection and compulsion available under the Statute and
the Rules of the International Tribunal to bring evidence on behalf of an accused
before the Trial Chamber.”33 Counsel
must therefore bring any difficulties in relation to obtaining evidence, including
those arising from intimidation or inability to locate witnesses, to the attention
of the Trial Chamber.34 The party
must also seek relief from the Trial Chamber to compel an uncooperative prospective
witness to cooperate.35 This obligation
to report to the Trial Chamber is intended not only as a step in exercising due
diligence, but as a means of self-protection, in that a contemporaneous record then
exists that the cooperation of the prospective witness had not been obtained.36
Admissibility if the evidence was not available at trial
- Where evidence was not available at trial, the proponent of the evidence must
show that the evidence is both relevant to a material issue and credible, that is, reasonably capable of belief or reliance,37
and that it could have had an impact on the verdict. In other words, the
evidence must be such that, in the case of a request by a defendant, when considered
in the context of the evidence given at trial, it could show that the conviction
was unsafe.38 The party seeking to
have additional evidence admitted bears the burden of specifying, with clarity,
the impact the proposed evidence could have had upon the Trial Chamber’s judgement.39
Admissibility if the evidence was available at trial
- If the evidence was available at trial, it may still be admissible on appeal
if the applicant can meet the burden of establishing that exclusion of the evidence
would lead to a miscarriage of justice, in that if it had been available at the
trial, it would have affected the verdict.40
In the Krstic case, the Appeals Chamber emphasised that “this heightened
standard seeks to ensure the finality of judgements and the application of maximum
effort by counsel at trial to obtain and present the relevant evidence,” while at
the same time, it does not “permit a factually erroneous conviction to stand, thereby
safeguarding an equally important interest of accuracy in judgements.”41
- Whether the evidence was available at trial or not, the Appeals Chamber has
repeatedly recognised that the evidence shall not be assessed in isolation, but
also in the context of the evidence given at the trial42
and of that which was admitted on appeal.43
III. SUBMISSIONS OF THE PARTIES AND DISCUSSION
FIRST RULE 115 MOTION
DOCUMENTS
- In Annex II to the First Rule 115 Motion, the Appellant presents 14 documents. Concerning the availability of these documents, he argues that the investigators
for Counsel for Stanislav Galic (“Defence”) put tremendous efforts into discovering
and collecting documents from the Sarajevo Romanija Corps (“SRK”) archives during
the pre-trial phase, but that many of the documents from the archives were lost
after they were disbanded because the archives of the SRK Corps Command were moved
many times.44 He maintains that his
Defence was aware that the documents corresponding to the Brigade and Battalion
Commands were missing.45 The Appellant
refers to the evidence of Witness DP 35,46
together with a letter from General Manojlo Milovanovic, VRS Minister of Defence, to the Prosecutor, in which he confirms that the SRK archives were lost.47
The Appellant states that, on 30 April 2004, days after the receipt of the French
version of the Trial Judgement, the Defence received several documents from the
Army of Republika Srspka (“VRS”) Headquarters that were not available during trial.48 In support of this contention,
the Appellant has filed with the First Rule 115 Motion a letter from the VRS Headquarters
to his Defence team.49
- In response, the Prosecution submits that the Appellant has failed to comply
with the requirements of Rule 115 and Practice Direction IT/201.50
The Prosecution submits that the Appellant’s submissions in relation to the documents
that he seeks to have admitted as evidence on appeal are generalised and often confusing, and therefore not sufficient to show why this evidence was not available to him
at trial.51 It also argues that the
Appellant does not demonstrate why, if the evidence is found to be have been available
at trial, its exclusion would result in a miscarriage of justice.52
- The Prosecution argues that Witness DP 35’s evidence does not support the Appellant’s
assertion that the Brigade and Battalion documentation of the SRK did not reach
the SRK archives and that the archives of the Brigade and Battalion Commands were
moved more times, so that many documents of these archives were apparently lost.53
According to the Prosecution, Witness DP 35 attests that he personally did not know
where the archives had gone after he last saw them during the war.54
The Prosecution also argues that the letter referred to by the Appellant, allegedly
from General Milovanovic, is not in its correspondence files from trial, and if
the Appellant wishes to rely on such a letter, he should file it before the Appeals
Chamber.55
- The Prosecution also argues that the Appellant should have presented evidence
in support of his claim of unavailability,56
together with indications of what steps were taken by the Appellant to gain access
to these or similar documents.57 It
further points out that this evidence, generally speaking, should be first hand
knowledge, the source must be identified and the contents of the explanation must
be such that they may be verified by the opposing party if necessary.58
Otherwise, the Appeals Chamber would be unable to make an assessment of whether
due diligence was exercised by counsel and with what result.59
The Prosecution submits that the Appellant has also not stated what arrangements
were in place at trial to obtain such material or how the documents came to surface
only now.60 Lastly, the Prosecution
argues that Document 14 was in the possession of the Defence during trial and therefore
the claim that it was unavailable must fail.61
- In reply, 62 the Appellant argues
that he did not find it necessary to attach the letter from General Milovanovic,
indicating that the SRK archives were lost, because it was addressed to the Prosecution
and that is sufficient basis for the Prosecution itself to be ordered by the Appeals
Chamber to present it.63 He continues
that the Defence was informed that these 14 documents were unattainable because
when they asked to be allowed to inspect the SRK archives, of which the 14 documents
at issue were a part, they were orally informed that the archives were lost.64
The Appellant contends that the Trial Chamber and Prosecution were also informed
of this on several occasions.65 The
Appellant also points out that at trial, photocopies of all documents from the SRK
archives that were subsequently recovered by the Defence in various locations were
submitted to the Prosecution.66 As
such, the Appellant argues that the only reason the Defence did not submit the 14
documents attached to his First Rule 115 Motion at trial is because they were only
made available to him after trial.67
Finally, the Appellant notes that the Defence team at trial “showed considerable
efforts to obtain documentation which was in great amount presented and submitted
to the Prosecution” and a large amount of that documentation was admitted into evidence.68 The Appellant claims that the
Prosecution even admitted to the Defence’s significant effort in this regard.69
Consequently, the Appellant argues that the Prosecution’s argument that he failed
to exercise due diligence or explain what steps he took to obtain the 14 documents
at trial, is unfounded.70
- The Appeals Chamber agrees with the Prosecution’s submission that the Appellant
has failed to indicate with sufficient detail and clarity that any of the 14 documents, or the information contained therein, was unavailable in spite of the exercise
of due diligence. The Appeals Chamber notes that the Appellant has attached the
letter from the VRS Headquarters indicating the date of receipt of the documents. Concerning Witness DP 35’s testimony, the relevant portion indicates that the
SRK archival material was moved, but that the witness does not know what happened
to it thereafter.71 The Appeals Chamber
notes that despite the Appellant’s assertion that the Defence was aware that the
Brigade and Battalion Commands’ documents were missing, the Appellant has not adduced
evidence detailing what efforts were made to obtain and present these documents
or the information therein during trial to establish the exercise of due diligence. The Appeals Chamber further notes that no evidence was brought to the attention
of the Appeals Chamber indicating that the Defence experienced difficulty during
trial in obtaining these 14 documents, or the information therein, nor was there
any indication that the Defence brought these difficulties to the attention of the
Trial Chamber. The Appellant has not filed the letter from General Manojlo Milovanovic, therefore the Appeals Chamber is not in a position to consider it, and finds that
the Appellant has failed to demonstrate that Documents 1 to 14 were unavailable
at trial.
- Having determined that the Appellant has failed to so demonstrate, the question
now is whether this proposed evidence is such that, had it been presented at trial, it would have affected the Trial Chamber’s verdict. The Appeals Chamber will now
proceed to consider each of the documents in turn under this heightened standard.
DOCUMENT 1
- Document 1 is a letter from Captain Patrick Henneberry, an officer with the
United Nations Protection Force (“UNPROFOR”) from July 1992 to February 1993,72
addressed to the Headquarter Chief of the SRK in Lukavica and dated 8 February 1993. In this letter, Captain Henneberry raises issues of concern to both the Appellant
and UNPROFOR, which had previously been discussed with the Appellant. These include
a reminder to investigate a shelling incident and the theft of bullet-proof vests, and requests that the information be given to Captain Henneberry’s successor.
He also raises concerns about UNPROFOR allegedly providing coordinates of Serb positions
to Muslims, and discusses the issue of a liaison officer being on duty at the airport
during the night.
- The Appellant states that Document 1 relates to his 15th and 18th Grounds of
Appeal,73 which concern alleged errors
in the evaluation of evidence and factual findings and in determining the criminal
responsibility of the Appellant. He argues that Document 1 demonstrates that there
was a good relationship between the Appellant and UNPROFOR;74
that this positive relationship discredits the testimony of Witness Henneberry who
stated that the Appellant’s goal was to destroy the city of Sarajevo or expel the
Muslims from it;75 and that the Appellant
always undertook the necessary actions to investigate incidents he was informed
of by UNPROFOR.76
- The Prosecution responds that although the Appellant infers that Witness Henneberry’s
credibility is thereby damaged, the Appellant does not make any submissions as to
why the character of the Appellant’s relationship with the witness could not have
been put to the witness during cross-examination. The Prosecution also states that
the letter was not addressed to the Appellant personally but to the Corps Command, and that it does not follow, as a matter of logic, that the witness could not
have maintained a cordial relationship with the Appellant in these circumstances, at least for the sake of himself and his fellow United Nations Military Observers
(“UNMOs”).77
- The Prosecution further argues that the letter only suggests that the Appellant
was prepared to investigate one incident in which a United Nations (“UN”) facility, being an observation post operated by UNMOs, had been shelled by Serb forces,
not that he was prepared to investigate instances of civilians being targeted.78
In addition, the Prosecution argues that there was evidence at trial of the Appellant’s
preparedness to investigate instances of UNPROFOR being targeted,79
and there is other evidence that established that the Appellant did not investigate
this particular incident.80 The Prosecution
concludes that, should the Appeals Chamber disagree and decide to admit the letter, since this is a matter that goes to the witness’s credibility, the witness should
be permitted to respond to the Appellant’s allegation.81
- The Appellant replies that the Prosecution’s argument that the letter was not
addressed directly to the Appellant but to the Chief of Staff of the SRK is unfounded, because a letter directed to the Chief of Staff, who was the Appellant’s deputy, could also be regarded as an appeal to the Appellant.82
He also argues that the Prosecution is wrong and did not submit any evidence showing
demands for investigations of attacks on civilians or evidence that such investigations
were not conducted. On the contrary, the Appellant submits that he offered evidence
at trial of investigations being conducted.83
- The Appeals Chamber notes that, at trial, the Defence did not deny that the
Appellant had the ability to prevent or punish the commission of the crimes, but
argued that he did not have the need to do so because “SRK units did not take part
in any illegal actions”.84 The Appeals
Chamber considers that the Appellant’s claim that he always investigated incidents
of which he was informed by UNPROFOR is not supported by Document 1, as it suggests
that the Appellant considered investigating one incident where a UN facility
was shelled by Bosnian Serb forces. Furthermore, the Appeals Chamber also finds
that evidence was adduced at trial indicating that the SRK did investigate and punish
an incident involving an attack against UNPROFOR.85
While Document 1 provides evidence of an additional incident that was investigated, similar evidence was already on record, and it in no way provides support for
the Appellant’s claim that all such incidents were investigated. Considering
further that the Appellant was not convicted of crimes involving an attack on UNPROFOR
members but on civilians,86 the Appellant
has not shown that Document 1 would have affected the verdict at trial.
- The Appeals Chamber is not persuaded by the Appellant’s argument that the cordial
nature of Captain Henneberry’s letter provides proof that the witness was not being
truthful when he gave evidence of the Appellant’s statement that his goal was to
either destroy the city or expel the Muslims in Sarajevo. The Appeals Chamber fails
to see how evidence that Captain Henneberry maintained a cordial relationship with
the Appellant can be taken as directly inconsistent Witness Henneberry’s evidence
at trial. This is even more so since Witness Henneberry was not the only witness
that gave evidence of the Appellant’s statement of his goal. The Trial Chamber also
took into account the evidence of Witness Donough O’Keeffe that he protested to
the Appellant against the indiscriminate targeting of civilians.87
Consequently, the Appeals Chamber finds that the Trial Chamber’s findings on Witness
Henneberry’s credibility could not have been affected if presented with Document
1 at trial. For these reasons, the Appeals Chamber finds that the exclusion of Document
1 would not lead to a miscarriage of justice.
DOCUMENT 2
- Document 2 is a confidential report of the Igman Brigade Command to, inter
alia, the SRK Command, dated 7 February 1993 and signed by Lieutenant Colonel
Spasoje Cojic. The report outlines the actions of a group of Serbian women and their
attempts to put pressure on UNPROFOR to apply the necessary measures to dissolve
Muslim prisons and camps in the territory of the former BiH.
- The Appellant submits that Document 2 relates to his 19th Ground of Appeal,
paragraph (f), which alleges the conditions of commanding troops as a mitigating
circumstance.88 The Appellant argues
that it shows the complex nature of his command responsibilities at the time as
well as the difficulties he faced in maintaining a good relationship with UNPROFOR.89 Therefore the Appellant submits
that the Trial Chamber did not take into account all mitigating factors when deciding
on the Appellant’s sentence.90
- The Prosecution submits that Document 2 is irrelevant to the issues at trial, on the grounds that it does not relate at all to the conduct of any SRK forces
towards civilians on the Muslim side of the Sarajevo theatre of conflict.91
With regard to mitigation, the Prosecution argues that it fails to see how the admission
of this document and the circumstances referred to therein could be relevant to
or have an impact on his sentence.92
- The Appeals Chamber is not persuaded by the Appellant’s submission that the
exclusion of Document 2 would lead to a miscarriage of justice. As indicated by
the Appellant, it is intended to show the complexity of the circumstances faced
by the Appellant while commanding during the period relevant to the indictment.
The Appeals Chamber notes the Appellant’s submission that there is already evidence
on record from General Radinovic, the Defence military expert, on this point.93
General Radinovic gave evidence that “(a( complex and vast zone of responsibility
of the SRK in itself was a limiting factor in the chain of command.”94
Since the proposed evidence in Document 2 merely proffers information already considered
by the Trial Chamber, the Appeals Chamber finds that it would not have resulted
in a different verdict if it had been admitted at trial. Document 2 is therefore
rejected.
DOCUMENTS 3, 4, 5 6, 7 AND 8
- Document 3 is an Order from Lieutenant Colonel Spasoje Cojic from the Igman
Brigade Command addressed to the “Command”, dated 23 May 1993. It highlights criticisms
voiced against the army of Republika Srpska by the Government of Republika Srpska
relating to looting, smuggling, profiteering and other criminal activities, and
forbids such activities. It also orders the discipline and punishment of those who
participate in “Paramilitary”, “Parapolice” and “Parapolitics”. Document 4 is an
Order from the Appellant to the SRK Brigade and Regiment Commands, dated 22 May
1993, requiring the reporting of enemy violations of a cease-fire previously ordered. Document 5 is an Order dated 17 February 1994, signed by Lieutenant Colonel Spasoje
Cojic for the Commander, addressed to all Brigade Units. Document 5 is dated 17
February 1994 and addressed to all Brigade Units. It contains directions for the
putting in place of measures to ensure combat readiness together with those that
will ensure respect of the cease-fire and also deals with the treatment of violations
of the cease-fire. It orders the non-opening of fire at the urban parts of Sarajevo.
- Documents 6 and 7 are both addressed to the Commanders of the 1st to 4th Artillery
Battalioons, the 1st and 2nd Battalions, the Armoured Mechanised Company, the Intervention
Company, and the Reconnaissance Platoon, and are both signed by Lieutenant Colonel
Spasoje Cojic. Document 6, dated 15 May 1993, provides for the undisturbed passage
of humanitarian aid and calls for the application of the Geneva Conventions and
other regulations of international law in doing so. Document 7 is an Order dated
21 March 1993, and provides measures intended to curb the abusive consumption of
ammunition. Document 8 is an Order dated 13 February 1994, signed by Lieutenant
Colonel Spasoje Cojic and addressed to all Brigade Units. It directs that prisoners
and civilians be respected and treated humanely and in accordance with the laws
of war and the Geneva Conventions.
- The Appellant submits that Documents 3, 4, 5, 6, 7 and 8 relate to his 18th
Ground of Appeal,95 regarding his
criminal responsibility. The Appellant argues that from these documents, it can
be seen that the Igman Brigade Command strictly abided by the Orders of the SRK
Command “that fire should be opened only against select targets, targets should
be selectively chosen, that weapons should be refit from automatic to semiautomatic
fire, that only targets on a reasonable distance should be targeted, that passage
should be provided as well as protection of sent equipment and personnel that provides
help to the civilian population”.96
He also argues that these documents contain orders providing that the Geneva Conventions
had to be applied and that any paramilitary, para-police, para-political activities
were prohibited, as well as that offenders against such orders would be severely
punished.97 According to him, they
also show, a strict division of military and local government obligations.98
- In addition, the Appellant argues that these documents show that he gave orders
going down the SRK chain of command, which Orders entailed a prohibition of the
intentional targeting of civilians and show that the Trial Chamber was wrong in
finding that the Appellant undertook a campaign of sniper activities and shelling
against the civilian population in Sarajevo with the intention of terrorising the
population.99 The Appellant further
argues that it was on the basis of this error that the Trial Chamber wrongly concluded
that the Appellant was guilty pursuant to Article 7(1) of the Statute.100
- The Prosecution argues that Document 3 was prompted by criticisms made at a
session of the Assembly of Republika Srpska (“RS”) four days earlier.101
It argues that, according to the document, deputies complained that VRS forces were
perpetrating crimes such as theft, black marketeering, profiteering and drunkenness
on their side of the front line, thereby instilling fear in their own residents,
and says that these criminal activities were of no relevance to the criminal behavior
which was alleged in the indictment.102
As to the Order that paramilitary forces be eliminated, the Prosecution argues that
it was both the Prosecution and Defence cases that the Appellant took steps to eliminate
or subsume under his command such forces by mid-1993, which was accepted by the
Trial Chamber.103 The Prosecution
submits that, therefore, this document neither satisfies the test of relevance under
Rule 115 nor could it have had a decisive impact on the decision at trial.104
- With regards to Documents 4, 5 and 6, the Prosecution contends that there was
voluminous evidence at trial of cease-fires being ordered and broken by both sides.105 It further argues that the Trial
Chamber concluded that the ordering of cease-fires from time to time and the relative
diligence with which they were quickly obeyed by the Appellant’s forces demonstrated
the degree of command and control which the Appellant exerted over his forces, and
therefore, these Orders would not add to the evidence which was before the Trial
Chamber.106 The Prosecution argues
that Document 5 is consistent with evidence already adduced at trial that a cease
-fire was scrupulously observed after the Markale shelling incident in the immediate
post-shelling period, but that, gradually, sniper fire increased and later, shelling
resumed.107 With regards to Document
6, it argues additionally that to the extent that Document 6 and other documents
expressly or impliedly required SRK forces to comply with the laws of war, the Trial
Chamber noted that many Defence witnesses, who were front-line infantry soldiers, frequently gave evidence that they received orders not to fire at civilians.108
It also states that the Defence tendered into evidence documents purporting to be
Orders by the Appellant himself not to target civilians and reminding his troops
to comply with the Geneva Conventions,109
therefore it is neither additional to evidence available to the Appellant at trial
nor to evidence adduced at trial.110
The Prosecution concludes that the cumulative effect of additional evidence of this
character could not be capable of impacting on the verdict, as the Trial Chamber
concluded that, despite the presence of such Orders, the targeting of civilians
remained unabated.111
- With regards to Document 7, the Prosecution argues that, to the extent that
it forbade excessive and wasteful expenditure of ammunition, it is not relevant
to the facts in issue at the trial. As far as the Appellant relies on it to suggest
that fire be brought to bear only upon military objectives, the Prosecution reiterates
that ample evidence of this type and nature was adduced at trial and fully evaluated
by the Trial Chamber and so Document 7 is of no genuine novelty.112
- With regards to Document 8, the Prosecution argues that since it primarily
relates to the treatment of prisoners of war and civilians of Serbian ethnicity
who came into the control of the Igman Brigade’s soldiers,113
the Order is of no assistance to the Appellant because the fundamental issue of
fact which was in dispute at trial was whether the Appellant, through his subordinates, had deliberately targeted civilians of all ethnicities on the enemy’s side of
the confrontation lines.114 It further
argues that, to the extent that it is proffered to show that the SRK gave Orders
to treat civilians humanely and to comply with the Geneva Conventions, it is neither
additional to that which was available to the Defence at trial nor to the evidence
adduced at trial.115
- The Appeals Chamber notes that the Trial Chamber recognised that there was
evidence to the effect that the Appellant issued Orders to respect the Geneva Conventions
of 1949,116 that he underscored the
importance of respecting them,117
and, in addition, that he prohibited paramilitary groups.118
However, the Trial Chamber also found that it had been demonstrated that lack of
proper instruction was clear119 since
there were several witnesses who did not receive precise Orders to this effect.120
The Appeals Chamber also notes that, during trial, a number of Defence witnesses
gave evidence that no measures were taken to punish perpetrators of unlawful attacks
against civilians.121 These included
Witness DP 35, who testified that he was not aware of anyone at all being charged
as a result of an investigation carried out within the SRK in the relevant period
for unlawful behaviour resulting in the injury or death of civilians on the other
side of the confrontation line.122
Considering that Documents 3, 4, 5, 6, 7 and 8 do not therefore add anything to
evidence already before the Trial Chamber, the Appeals Chamber finds that the Appellant
has failed to show that this proposed evidence would have had an impact on the verdict
and that therefore its exclusion of this evidence would lead to a miscarriage of
justice. The evidence proffered is therefore rejected.
DOCUMENT 9
- Document 9 is a letter to the SRK Republic of Serbian Krajina Command, dated
29 August 1993, from Colonel Spasoje Cojic of the Igman Brigade listing weapons
of foreign origin confiscated in combat operations.
- The Appellant argues that Document 9 relates to his 15th Ground of Appeal,
paragraph E,123 which concerns errors
committed by the Trial Chamber in the evaluation of evidence including testimonies, and errors in factual findings.124
The Appellant submits that Document 9 shows weapons confiscated during combat, which
establishes that the ABiH was well-equipped and that during the war it was provided
with weapons from the United States of America, Republic of South Africa, Korea
and Afghanistan.125 The Appellant
adds that this shows that a war was ongoing in Sarajevo between equal arms since
it is clear that the weapons in question were big caliber infantry weapons.126
He submits that this contradicts all statements given by Prosecution witnesses that
the ABiH soldiers were unarmed and that they had only light weaponry.127
- The Prosecution responds that it is not clear from the document whether the
weaponry confiscated was that used by the armed forces opposed to the Appellant’s
forces.128 It argues that the Appellant
has not pointed to any evidence identifying the nature of the weapons mentioned
in the document, so it is unclear whether they are properly described as being anything
other than “light weaponry”.129 In
particular a rifle, machine gun and 40mm weapon would appear to qualify as being
light infantry weapons.130 The Prosecution
contends that it is not apparent what conclusions the Appellant seeks to draw from
this report. If it is that the opposing forces possessed the type of weaponry that
enabled them to perpetrate the offences with which the Appellant was charged, there
was evidence to this effect at trial.131
The Prosecution further argues that, in any event, it was never its contention that
the ABiH was either unarmed or had only light weaponry.132
Rather, it was that the ABiH was overwhelmingly out-gunned by the weaponry of the
SRK, in particular by the SRK’s heavy weapons such as tanks, howitzers, field artillery
and mortars.133
- The Appeals Chamber notes that Document 9 does not state from whom the listed
weapons were confiscated. Moreover, since the Appellant has failed to indicate the
relevance of the proposed evidence for any of the Trial Chamber’s findings, the
Appeals Chamber finds that the evidence would not have had an impact on the verdict, and that the exclusion of Document 9 would not lead to a miscarriage of justice, and therefore it is rejected as additional evidence.
DOCUMENT 10
- Document 10 is signed by Colonel Ljuban Kosovac, is addressed to the SRK Command
and dated 16 November 1993. It is the summary report on the operation of the SRK
Command’s Military Prosecutor’s Office and Military Court for October 1993.
- The Appellant submits that Document 10 relates to his 18th Ground of Appeal,134 which concerns his criminal
responsibility. The Appellant argues that Document 10 shows that it is the Military
Prosecution which initiates criminal proceedings, and that in the period for which
the report is presented, there were no charges of breaches of international law.
He contends that this proves that the Appellant had no authority to prosecute perpetrators
of crimes, as well as that there was no data on the filing of criminal charges and
the initiating of proceedings regarding crimes violating international customs of
war.135 Therefore, he concludes,
this evidence undermines the Trial Chamber’s finding that the Appellant deliberately
took no action against unlawful sniper activities and shelling.136
- The Prosecution responds that Document 10 does not constitute evidence that
the Appellant was powerless to prosecute perpetrators of crimes. Rather, the first
sentence of the report underscores that the Military Prosecution unit was attached
to the SRK Command.137 The Prosecution
argues that the document demonstrates the ability of the SRK and the Appellant to
prosecute SRK troops for criminal offences and notes a number of prosecutions in
the relevant period, but none for war crimes.138
Therefore, the Prosecution submits that this document is consistent with and does
not add anything to evidence which was adduced at trial.139
Furthermore, the Prosecution argues that the Defence position at trial had not been
to argue that the Appellant lacked the ability to prevent or punish the commission
of crimes, but rather that he had no need to do so, and that the Appellant does
not provide any basis in the First Rule 115 Motion for reversing his position.140
It is the Prosecution’s position that this document does not meet the test for relevance
under Rule 115 nor could it have a decisive impact on the decision at trial.141
- The Appeals Chamber recalls that, during trial, the Defence did not dispute
that the Appellant had the ability to prevent or punish commissions of crimes, but
argued that he did not have the need to do so.142
In addition, and converse to the Appellant’s submissions, the Appeals Chamber considers
that Document 10 does not contradict the Trial Chamber’s finding that no action
was taken against unlawful sniper activities and shelling, but rather confirms that
no such action was taken. It has already been established that various witnesses
informed the Appellant of unlawful sniper activity and shelling,143
but despite those reports, no efforts or attempts were made to gather data for the
purposes of filing criminal charges and initiating proceedings. The Appeals Chamber
finds that this proffered evidence would not have affected the verdict at trial,
and therefore its exclusion would not lead to a miscarriage of justice.
DOCUMENTS 11, 12 AND 14
- Document 11 is an Order from Major General Ratko Mladic from the Main Staff
of the Serbian Republic of Bosnia-Herzegovina Army to the Commander of the SRK,
dated 14 July 1992. It forbids troops from firing at UNPROFOR forces or buildings, from opening fire on Sarajevo town except: (1) from infantry weapons in self-defence
; (2) from large caliber weapons exceptionally on clearly visible enemy positions
where the enemy is firing; and (3) from artillery only with the prior approval of
the Main Staff. It further states that any unauthorised fire will be regarded as
criminal and legal measures will be adopted. Document 12 is a cease-fire Order signed
by the Appellant, dated 29 March 1993 and addressed to the Commands of the SRK Brigades
and Regiments, reiterating the observance of a previous cease-fire Order. Document
14 is an Order to the Commands of Brigades, Regiments and Independent Battalions
of the SRK dated 16 June 1993144
directing the observance of a cease-fire.
- The Appellant submits that Documents 11, 12, and 14 represent Orders of the
Main Staff of the VRS and the Command of the SRK, which prohibit the opening of
any kind of fire on Sarajevo, dating back to 13 July 1992, which Orders were implemented
by the Appellant from the moment he took over of the command until the end of his
commanding over SRK forces.145 Since
the Order also states that fire should be opened only in self-defence by the soldiers, the Appellant argues that it shows the prohibition of disproportional response
to provocations of the ABiH.146 Therefore
this proves that the Trial Chamber erred in finding that there existed a plan of
carrying out a campaign of shelling and sniping against civilians in Sarajevo, that
the Appellant carried out the plan, and that the Appellant ordered the crimes as
found in the Trial Judgement.147
- With regards to Document 11, the Prosecution contends that it was not a blanket
ban on firing into the city of Sarajevo, because the Order was qualified to exclude
infantry weapons, fire in “self defence” and exceptional fire from large caliber
weapons.148 In addition, since the
Order pre-dates the indictment period by two months, it is only relevant to the
issue of whether the Appellant inherited a pre-existing campaign of sniping and
shelling of civilians when he assumed command of the SRK in September 1992.149
Since the Trial Chamber did not make any finding as to whether the campaign was
pre-existing, a finding on this issue is thus irrelevant to the Trial Chamber’s
determination of the Appellant’s guilt or otherwise for the offences charged.150
The Prosecution argues that Document 12 would not affect the verdict as the Trial
Chamber already dealt with the issue of cease-fires and found that, in spite of
similar Orders, the cease-fires were ordered and broken by both sides,151
and that the targeting of civilians continued unabated.152
The Prosecution argues that Document 14 was tendered into evidence by the Defence
during trial and is therefore inadmissible as evidence on appeal.153
- The Appeals Chamber finds that Document 14 was indeed tendered and admitted
into evidence at trial, and it is therefore rejected.154
A review of the Trial Judgement reveals that the Trial Chamber was satisfied that
the Appellant called occasionally for the decrease of fire against the civilian
population of Sarajevo, and that when prompted by outside action, he also, at other
times, intended to target, by direct or indiscriminate fire, civilians and the civilian
population in the city of Sarajevo, with the goal of spreading terror within the
civilian population of Sarajevo.155
Therefore, the Appeals Chamber finds that Document 11 is consistent with the Trial
Chamber’s findings and does not add anything to them.
- The Appeals Chamber also finds that these documents entailing Orders to observe
cease-fires are consistent with evidence adduced at trial.156
The Trial Chamber found that the trial record was replete with evidence from a number
of military and international personnel who testified to the reduction of fire after
cease-fire agreements or after complaints were lodged.157
These documents do not contain any novel information that goes beyond that adduced
at trial, therefore, the Appeals Chamber finds that they do not meet the requirements
of Rule 115. Documents 11, 12 and 14 are therefore rejected.
DOCUMENT 13
- Document 13 is a letter from Colonel Dragan Marcetic, Deputy Commander of the
SRK, addressed to the Sarajevo Airport Commander dated 20 March 1993. The letter
concerns the investigation into the use of anti-aircraft weaponry against a UN airplane.
- The Appellant argues that this document shows that the SRK Command always carried
out investigations regarding incidents when it had sufficient information on these
incidents and therefore proves that the Trial Chamber erred in finding that the
Appellant did not take actions to prevent illegal engaging since he always carried
out investigations when he received complete information.158
- The Prosecution contends that both the Defence and the Prosecution adduced
evidence at trial to the effect that the Appellant was willing on occasion to investigate
instances of attacks by his subordinates on UN facilities.159
It further argues that Document 13 does not introduce fresh evidence but concerns
behaviour which was already the subject of evidence in the trial, and which was
not challenged by either party.160
This is because, the Prosecution submits, the Defence position at trial was not
to contest the Prosecution’s position that there were no such investigations, but
to argue that no such incidents were reported to the Appellant and thus had nothing
to investigate.161
- The Appeals Chamber is not satisfied that Document 13 shows that the SRK Command
always carried out investigations after receiving complete information regarding
the incidents. Document 13 neither adds to nor contradicts the evidence at trial
that the SRK Command investigated attacks on the UN.162
This document is therefore inadmissible under the requirements of Rule 115 because
the Appellant has failed to show that it would have affected the verdict at trial.
TRANSCRIPTS OF WITNESS TESTIMONY
- The Appellant also seeks the admission into evidence of the tesimonies of witnesses
who have testified in other cases.163
This proposed evidence is in the form of transcripts of four witnesses who testified
in the Milosevic Trial, namely Berko Zecevic, David Harland, David Owen and
Hrvoje Sarinic.164
- Concerning the unavailability of the above proffered evidence, the Appellant
simply submits that they “were not available at trial, in accordance the time when
they testified in Milosevic case.”165
- The Prosecution submits that the Appellant has made virtually no submissions
on the non-availability of the evidence of Berko Zecevic, Hrvoje Sarinic, David
Owen and David Harland at trial, and that he has wrongly assumed that he is relieved
from doing so simply because they testified in the Milosevic Trial and after
the completion of his trial.166 The
Prosecution submits that Berko Zecevic was available at trial where he gave evidence
as an expert witness and was cross-examined at length by the Defence.167
It submits that the Appellant has made no submissions as to why he did not pursue
the line of questioning he now seeks to adduce from the Milosevic Trial.168
Therefore it is clear that this witness was available at trial and the appeal process
should not be used to remedy shortcomings in the tactics the Defence chose to use
in cross-examination at trial.169
The Prosecution argues that the Defence must have at least known of the existence
of the nature of the evidence of David Harland, since he originally appeared on
the Prosecution’s Rule 65 ter (E) (ii) list at trial.170
- In reply, the Appellant argues that the Defence was not able to call David
Harland as a witness because the Prosecution put his name on the witness list, then
decided not to call him, by which time it was too late for the Defence to call him
as a witness.171 In relation to Hrvoje
Sarinic and David Owen, the Appellant argues that the Defence did not know they
were in possession of the information that they presented in the Milosevic
Trial about Markale Market, especially since they were witnesses from the political
field as opposed to the military field.172
- The Appeals Chamber notes that the Appellant’s submissions with regards to
the unavailability of these proposed witnesses at trial are generalised and fail
to disclose any particular efforts made by the Defence to find these potential witnesses
or the evidence they would adduce at trial. For example, in the case of David Harland, the Defence was free to inform the Trial Chamber of its desire to call him once
the Prosecution decided not to, despite any lateness in the proceedings. This was
not done, nor has there been any explanation by the Appellant indicating why it
was not done. The Appeals Chamber reiterates that the onus is upon the Appellant
to show why the evidence was not available.173
This has not been satisfied despite the Pre-Appeal Judge’s Order which allowed the
Appellant a chance to rectify this aspect of this motion.174
Finding that the Appellant has failed to demonstrate that the evidence of David
Owen, David Harland, Hrvoje Sarinic and Berko Zecevic was unavailable at trial,
the Appeals Chamber will proceed to consider whether the exclusion of their evidence
would lead to a miscarriage of justice.
- The Appellant argues that the trial transcripts of the testimonies of Berko
Zecevic, Hrvoje Sarinic, David Owen and David Harland concern his 17th Ground of
Appeal, paragraph a.5.8.2,175 relating
to the scheduled sniping incident No.16 and, according to him, show that Markale
Market was not shelled by the Serbs.176
- Berko Zecevic is a shelling expert who testified in the present case and in
the Milosevic Trial.177 The
Appellant submits that during trial, this witness did not state, and did not want
to state anything about the possibility that a man who is not an expert could hear
the sound of mortar mine during flight and, on the basis of that, draw conclusions.178 The Appellant says that when
cross-examined by Mr Milosevic on whether it was possible to hear the flight of
a mortar mine, this witness stated that it was not possible.179
The Appellant further argues that if a witness in some other case presents new or
different claims from those he presented earlier, as in the case of Berko Zecevic, it should be treated as new evidence and not be used to find the guilt of an accused.180 The Appellant argues that therefore
this casts doubt on the Trial Chamber’s finding that the mortar mine that fell on
Markale, if it fell at all, was fired from SRK positions.181
- The Prosecution argues that in the Milosevic Trial, Berko Zecevic did
not, as contended by the Appellant, say that it was not possible to hear the sound
of mortar in flight, instead he said that modern systems for determining the origin
of fire on the basis of sound required three localisers.182
The Prosecution goes on to say that even if the Appeals Chamber agrees with the
Appellant as to the meaning of Berko Zecevic’s statement, that would not affect
the Prosecution’s case as both Witnesses AF and AK-1, residents of Sarajevo and
Sredrenik respectively, testified to the sound of the firing of the shell, as opposed to the hearing of the shell in flight,183
and further that, since Berko Zecevic’s evidence would not have affected the decision
at trial, it should not be admitted as additional evidence.184
- The Appellant submits that the testimony of Hrvoje Sarinic will also show that
the Trial Chamber erred in finding that a mortar mine was deliberately fired from
SRK positions on Markale Market.185
Hrvoje Sarinic testified in the Milosevic Trial that he had been told by
Mr Milosevic that the Muslims had shelled the Markale Market, but that Mr Milosevic
had later shifted the blame to Radovan Karad‘ic. He further states that he was told
by former Colonel De Boer that from his analysis, the projectile he had examined
had come from territory under Muslim control.186
- The Prosecution submits that the evidence of Hrvoje Sarinic is unsubstantiated
hearsay and similar to arguments raised by the Appellant at trial, which were considered
by the Trial Chamber.187 It submits
that, in any event, Prosecution witnesses such as Witnesses AD and General Michael
Rose, the Commander of the UNPROFOR in BiH from February 1993 to January 1994, testified
about the possibility of the ABiH itself causing the explosion at Markale Market, by static explosion and/or by being fired by the ABiH from the field.188
Therefore, the Prosecution submits that his evidence should not be admitted on appeal
as it does not contribute to the determination of the issue in dispute.189
- The Appellant submits that David Owen also testified in the Milosevic
Trial and stated that it has never been established who was responsible for the
firing of the shell that fell on Markale even though the investigation as ordered
by the Secretary General of the UN was carried out.190
The Appellant adds that David Harland, an expert in the Milosevic Trial,
stated that there was evidence that the shell was fired from the Muslim side, but
further testified that after detailed investigation, it was established that it
was impossible to determine who fired the shell.191
- The Prosecution responds that David Harland and David Owen were not themselves
parties to an investigation into the Markale Market incident, and that the UN reports
to which they refer were: (1) inconclusive as to the source of fire (in addition
to other reports of local investigations); (2) were tendered into evidence by the
Prosecution; and (3) were rigorously analysed by the Trial Chamber in the Trial
Judgement.192 It concludes that this
material is not novel and could not have affected the Trial Chamber’s decision.193
- The Appeals Chamber notes that it is normal for a witness who testified in
several trials about the same event or occurrence to focus on different aspects
of that event, depending on the identity of the person at trial and the questions
posed to the witness.194 Therefore, not every discrepancy may undermine a witness’s credibility. Considering the evidence
adduced by Berko Zecevic during both the Milosevic Trial and the Appellant’s
trial, the Appeals Chamber finds that his testimony during the Milosevic
Trial to the effect that three localisers of sound are needed in order to determine
the origin of fire is not inconsistent with his evidence in the Appellant’s trial. This is because in the Milosevic Trial his answer referred to the modern
way of determining the origin of fire, which he said involves equipment, in response
to the question whether it is possible to determine the origin of fire from a distance
of 2000 metres,195 whilst in his
expert statement in the Appellant’s trial he said that a mortar round could be heard
in flight.196 The Appeals Chamber
therefore finds that it is not satisfied that Berko Zecevic’s testimony from the
Milosevic Trial affects his credibility nor affects the Trial Chamber’s findings
that the mortar mine that fell on Markale Market was fired from SRK positions.
- With regards to the evidence of Hrvoje Sarinic, David Harland, David Owen and
Berko Zecevic which relates to the direction from which the mortar mine that landed
on Markale Market was fired, the Trial Chamber found that the 120mm mortar shell
that exploded in Markale Market on 5 February 1994 was fired from the direction
north-northeast of the market, at a bearing of approximately 18.5 to 23.6 degrees.197 There were several witnesses
who gave technical and non-technical evidence to this effect.198
The Appeals Chamber agrees with the Prosecution’s submission that similar arguments
as to inconclusiveness of the evidence were raised and considered by the Trial Chamber
at trial.199 In addition, the Appellant
fails to provide any particulars relating to any expertise possessed by Hrvoje Sarinic
or David Owen, nor to indicate why any particular weight should be given to their
testimonies. None of the proposed additional evidence is such that if introduced
at trial it would have affected the verdict. Accordingly, the Appeals Chamber is
not satisfied that the exclusion of the testimony of these proposed witnesses would
lead to a miscarriage of justice and as a result their statements and transcripts
are rejected as additional evidence.
PROPOSED ADDITIONAL WITNESSES
- The Appellant seeks the admission of the evidence of Bernhard Volker, Blagoje
Kovacevic and Milorad Krajsumovic, who are three witnesses who have not yet testified
before this Tribunal.200 The Appellant
submits that the proposed evidence of Blagoje Kovacevic and Milorad Krajsumovic
relates to his 17th (a.3) and 18th (k) Grounds of Appeal201
concerning erroneous factual findings relating to the existence of a campaign of
sniping and shelling by SRK forces against civilians and the criminal responsibility
of the Appellant under Article 7(1) of the Statute respectively. The proposed evidence
of Bernhard Volker relates to his 17th Ground of Appeal, paragraph a.5.8.2,202
relating to the scheduled sniping incident No.16 and, according to him, shows that
Markale Market was not shelled by the Serbs.203
- With regards to the availability of the evidence of these proposed witnesses, the Appellant argues that the Defence spoke with many people and faced many difficulties, including situations when certain witnesses refused to appear before the Tribunal,204 and refused to talk to Defence
representatives due to fear for their personal safety.205
In relation to Blagoje Kovacevic and Milorad Krajsumovic, the Appellant submits
that despite attempts during trial, the Defence did not manage to obtain their addresses
and convince them that there would be no danger to themselves or their family members
in the event that they appeared before the Tribunal.206
He also argues that after the completion of the trial, the Defence received information
that a French journalist, Bernhard Volker, was charged before a court in Paris for
publishing information about the shelling of Markale.207
He states that the Defence has contacted this potential witness who is prepared
to testify before the Tribunal.208
- The Prosecution argues that the evidence of the proposed witnesses was clearly
available at trial and that the Appellant makes unsubstantiated claims of a very
general nature209 and gives a very
cursory description, which is insufficient to show that these three witnesses were
not available to him during trial notwithstanding the application of due diligence.210 It contends that the Appellant
has not specified whether any of these three proposed witnesses in fact expressed
any reluctance to speak with Defence representatives or to give evidence at trial, and it is entirely unclear why these witnesses were not contacted earlier.211
It also argues that the Appellant has failed to append any documentation or other
forms of evidence attesting to concrete steps taken by the Defence to secure the
presence of these witnesses at trial.212
The Prosecution refers to Krajsumovic and Kovacevic, and submits that their names
could have easily been found out by the Appellant,213
especially in the case of Kovacevic, since at trial, a Prosecution witness mentioned
that he was his Battalion Commander.214
It adds that no details are provided as to the date of the information itself or
the date on which the Appellant became aware of Bernard Volker’s information,215
especially since the newspaper report and his acquittal before a French court happened
more than 7 years ago, prior to the commencement of the Appellant’s trial.216
- The Appeals Chamber considers that the Appellant has failed once again to demonstrate
that the proffered evidence of Blagoje Kovacevic, Milorad Krajsumovic and Bernhard
Volker was unavailable at trial. For instance, Bernhard Volker published the information
sought by the Appellant prior to the Appellant’s trial. Additionally, the Appellant
has not provided details of his attempts during trial to locate Blagoje Kovacevic
and Milorad Krajsumovic and convince them to testify, nor has he shown that this
was ever brought to the attention of the Trial Chamber. For these reasons, the Appeals
Chamber finds that their proposed evidence was available at trial. Accordingly,
the Appeals Chamber will proceed to consider whether the exclusion of this evidence
would result in a miscarriage of justice.
- Blagoje Kovacevic, who was Battalion Commander, provides in his statement,
inter alia, that Orders were received from the higher Command to save ammunition, to open fire only at “fire targets” and to strictly take care not to target civilians.217 He also states that he never
received any request to carry out an investigation into any criminal incident and
was never told that his soldiers were responsible for the deliberate targeting of
civilians. He continues that there were cases of lack of discipline on the part
of soldiers, in which cases, disciplinary measures were taken against them.218
- The Appellant contends that, on the basis of this statement, it is apparent
that Orders from the Brigade Command were that they were to strictly take care of
the protection of civilians.219 These
Orders, the Appellant submits, were forwarded to the Company Commanders who were
obliged to familiarise all combatants with the Orders.220
He submits that this shows that the Trial Chamber erred in finding that the Appellant
ordered the intentional targeting of civilians, which was the basis on which it
concluded that the Appellant was guilty pursuant to Article 7(1) of the Statute.221
- Milorad Krajsumovic was a Commander of the tank platoon within the 1st Infantry
Brigade,222 and states in his statement
that their orders were only to act in self defence and that he never targeted civilians
or civilian objects, nor was he ever asked to investigate such incidents as there
were not any.223 The Appellant submits
that the witness is ready to testify that all soldiers were familiar with orders
not to target civilians, to save ammunition and to open fire only when necessary
to respond to ABiH attacks, which contradicts the Trial Chamber’s position that
the Appellant had ordered attacks against civilians.224
- The Appellant submits that both these witnesses would confirm that they didn’t
send any information to their respective commands stating that there were omissions
in the behaviour of members of units under their respective commands, because they
themselves did not know of such incidents.225
The Appellant argues that this is proof that he who held the highest position was
not informed of any incident and therefore could not have intentionally omitted
to take steps to prevent unlawful sniper activity and shelling as concluded by the
Trial Chamber.226
- The Prosecution submits that the evidence of Blagoje Kovacevic does not contain
any genuinely novel evidence and is similar to other evidence already given at trial.227 Regarding Milorad Krajsumovic, it argues that similar evidence was given at trial,228
since many front-line infantry soldiers who were Defence witnesses frequently gave
evidence that they received Orders not to fire at civilians.229
It also argues that the Defence tendered into evidence documents purporting to be
Orders by the Appellant himself not to target civilians230
and reminding his troops to comply with the Geneva Conventions.231
Since the proposed evidence is duplicative of that already given,232
the Prosecution concludes, it should not be admitted in these appeal proceedings.233
- The Appeals Chamber notes that, during trial, similar evidence was admitted
of witnesses confirming that their orders were not to target civilians.234
Thus, the proposed evidence of Blagoje Kovacevic and Milorad Krajsumovic is not
inconsistent with material already before the Trial Chamber or with its subsequent
findings. The Appeals Chamber is not satisfied that had they appeared as witnesses
before the Trial Chamber they would have affected the Trial Chamber’s decision,
and thus rejects the request that they be called as witnesses.
- The Appellant also submits that Bernhard Volker, journalist for TVF1, is prepared
to testify.235 He submits that he
was charged before a court in Paris on allegations of publishing information that
the shelling of Markale was not carried out by the Serbian side, but by the Muslim
side, and that he received this information from a French high-ranking military
official who was on duty in Sarajevo at the time.236
Bernhard Volker was acquitted and is, the Appellant asserts, prepared to testify
that this French high ranking military official told him that the Serbs did not
shell Markale.237
- The Prosecution objects to the admission of the evidence of Bernard Volker
because no statement of his proposed evidence has been presented, but merely a summary
by the Appellant of what apparently this witness will testify about.238
The Prosecution submits that, because the Appellant has not complied with the minimum
requirement of filing the proposed additional evidence, there is no relevant information
to form the basis for the conclusions the witness purportedly reaches,239
which details are from an unnamed source.240
Therefore, it provides no basis on which the Appeals Chamber could impugn the findings
of the Trial Chamber and accordingly fails to meet the criteria of admissibility
under Rule 115.241 The Prosecution
argues that, in any event, this information would not have affected the verdict.242
- The Appeals Chamber notes that the Appellant has failed to file a statement
or other documentation of the proposed evidence of Bernhard Volker. In failing to
do so, the Appellant has failed to provide any basis on which the Appeals Chamber
could evaluate his request and has consequently failed to facilitate the Appeals
Chamber’s consideration of the proposed evidence of this potential witness. On this
basis alone, this part of the motion is dismissed.243
THIRD RULE 115 MOTION
- Since the Third Rule 115 Motion was filed over 75 days from the date of the
Trial Judgement, the first issue for determination by the Appeals Chamber is whether
good cause has been shown for the Appellant’s delay in filing it.244
The Appellant argues that good cause is shown by the fact that, on 18 November 2004, the Defence was informed by the Prosecution that they had found some documents
that could fall under Rule 68(i) of the Rules, which documents were subsequently
delivered to the Defence. Of these, the Appellant submits that the Defence identified
14 documents which were not available during the trial, which are now the subject
of the Third Rule 115 Motion.245
The Prosecution makes no submissions as to whether the good cause requirement has
been met.
- The Appeals Chamber is satisfied that the Appellant has demonstrated good cause
on the basis that these documents were delivered to him by the Prosecution after
the expiry of 75 days from the date of filing of the French translation of the Trial
Judgement and were then filed promptly by the Appellant.
DOCUMENTS
- The Appellant does not make any submissions as to unavailability but simply
submits that, “?sgince it is obvious that documents, attached to the ?Third Rule
115g Motion, were not available during trial, and since the above-mentioned documents
came into Defence possession by the delivering from the Prosecution, the Defence
submits that these are reliable documents whose contents points (sic) that
they are relevant for establishing the facts in this proceeding, and that each document
itself and in their totality could be a decisive factor in reaching the decision
at trial.”246
- The Prosecution argues that the Appellant has not met the requirements of unavailability
under Rule 115. It submits that the fact that the Appellant received the documents
recently does not demonstrate that due diligence on his part has been exercised
at trial, nor that the evidence was unavailable despite the exercise of due diligence
by the Defence.247 It argues that
the Defence was still obliged to provide evidence and explain in sufficient detail
the steps it took to obtain the evidence in any form.248
- Second, the Prosecution argues that the Appellant’s submissions relating to
credibility and reliability fall short of demonstrating that the evidence appears
to be reasonably capable of belief or reliance,249
even if they were disclosed and delivered to the Defence by the Prosecution, since
the Prosecution cannot guarantee their credibility and reliability.250
It argues that several aspects of the documents suggest that they are not even
prima facie credible, such as that four of them have no “signatory” at the end, two of them contain insufficient details such as address and birth-date to verify
the identity of the informant, and two of them contain express words suggesting
that they cannot be treated as reliable.251
- The Appellant replies, with regards to credibility, that lack of signature
does not affect the credibility of the documents, because according to the service
rules, such documents do not have to be signed and each document clearly shows who
has made it.252
- Considering availability, the Appeals Chamber notes that once again the Appellant
has not made any submissions explaining the steps he took to discover the evidence
contained in these documents at trial. An applicant is required to provide particulars
of his efforts to show that the potential evidence was not available to him at trial
in any form,253 and in this particular
case, the Appellant has omitted to demonstrate that he took any steps at trial to
find the information contained in the documents. The Appeals Chamber finds that
the Appellant has not demonstrated that these documents were unavailable.
- The Appeals Chamber recalls, with regards to credibility, that it will refuse
to admit evidence only if it is so lacking in terms of credibility and reliability
that it is devoid of any probative value in relation to a decision pursuant to Rule
115.254 Noting the Prosecution’s
objections that the evidence is not reasonably capable of belief or reliance together
with the Appellant’s submissions on this point, the Appeals Chamber will consider
these arguments, where relevant, below, together with those concerning whether the
exclusion of the documents would lead to a miscarriage of justice.
- Finally, it is necessary to note that, in contravention of Practice Direction
IT/201, the Appellant in the Third Rule 115 Motion does not identify which of his
grounds of appeal each item of proffered evidence relates to.
DOCUMENTS 1, 2, 3, 4, 10, 11, 13 AND 14
- Documents 1, 2, 3, 4, 10, 11, 13, and 14 are official notes and information
gathered by the Ministry of Interior of Republika Srpska–National Security Service
of Sarajevo, Ilid‘a and Ilijaš sectors. Their dates range from 26 August 1992 to
29 January 1993. They provide a wide variety of information received through interviews
with individuals detailing the direction of an expected enemy attack and a description
of enemy positions. The Appellant submits that these documents contain information
received through operative work from an interview with people who escaped from Muslim
-controlled parts of Sarajevo into parts of Sarajevo which were under the control
of the SRK.255 He argues that it
is clear from this information that various civilian buildings, which he lists in
paragraph 6 of the Third Rule 115 Motion, such as Energoinvest, were used for military
purposes by the ABiH army.256 He
continues that it is clear from the information mentioned that the ABiH forces were
equipped with various weapons which were placed in the environs of the said civilian
buildings,257 that the Serb population
was used as live shields for digging trenches, that the alleged massacre in Vise
Miskin street and the shelling of Pivara were organised, that all things were taken
out of the Vijecnica City hall before it was set on fire, and that executions of
Serbs were performed.258
- The Appellant further submits that all this evidence is enough to show that
the Trial Chamber erred in finding that the SRK forces shelled civilians and civilian
areas and that this was done upon the Order of the Appellant.259
The Appellant also argues that this proposed evidence shows that the Trial Chamber’s
finding that there was “unselective shelling or deliberate shelling on civilians
was erroneous, because there were no civilian areas in Sarajevo”, as supported by
the evidence of Defence Expert Witness Prof. Dr. Radovan Radinovic.260
- The Prosecution objects to the admission of these documents and highlights
seven problems inherent in the Appellant’s submissions. They are that the Appellant
:
i. fails to identify which document or documents refer
to the 70 or so locations he lists in paragraph
6 of the Third Rule 115 Motion;261
ii. inaccurately identifies certain locations as alleged
military targets;262
iii. neither places these locations on maps tendered
in trial, nor offers supplementary evidence to show
their precise positions;263
iv. fails to link any of the locations in paragraph
6 in a temporal manner to the indictment and to the
Trial Chamber’s factual findings on specific incidents
forming the basis for his convictions;264
v. fails to show how findings of the Appellant’s knowledge
of criminal activity of the SRK could be affected
by documents which concern locations relating, if at
all, to the underlying criminal incidents and not to
the Appellant’s knowledge thereof
;265
vi. does not explain why some of these locations are
legitimate military targets; and
266
vii. fails to address how the actual information contained
in the documents about those locations could impact
on the findings of the Trial Chamber.267
- The Prosecution refers in its submission, as an example, to Document 1, which
states that an attack can be expected from the direction of Energoinvest, but does
not show it was used for military purposes. The Prosecution argues that, even if
it did, the Appellant has not identified the building referred to in the document
and therefore has not shown how the references in the documents to Energoinvest
add to or affect the evidence about this location at trial.268
Similarly, the Prosecution argues that the Appellant fails to articulate how references
to heavy weaponry in Document 2 add to or affect evidence on these matters at trial
since the presence and sometimes use of heavy weaponry by the ABiH was accepted
by the Prosecution and Trial Chamber.269
The Prosecution points out that it conceded the presence of tanks in the Ciglane
tunnel, and other ABiH tanks at various locations within the confrontation lines.270 It notes that the Trial Chamber
accepted evidence that one instance of fire on Kosevo Hospital was the result of
tank-fire from within the confrontation lines,271
and further noted evidence that UN observers witnessed armoured personnel carriers
and a tank in the vicinity of Kosevo Hospital.272
- The Prosecution also argues that, although the Appellant submits that the documents
corroborate trial testimony that Bosnian authorities used Serbs from Sarajevo to
dig trenches, and the Prosecution conceded at trial that prisoners of Serbian ethnicity
may have been mistreated, no explanation of relevance or impact is presented.273
With regards to the Appellant’s submissions relating to the Vase Miskin massacre, the Prosecution submits that it occurred prior to the indictment period, is not
even mentioned in the Trial Judgement, and is of no consequence to the verdict.274
The Prosecution also argues that the Appellant is unclear as to what the incidents
of the shelling of Pivara and the setting fire of Vijecnica were.275
This is because no references as to the dates of their occurrence were provided,
there is no suggestion that an informant witnessed these events, the Appellant has
not discounted the possibility that the valuables were removed for other reasons, and therefore the document is neither conclusive of motive nor of responsibility.276
- The Appeals Chamber agrees with the Prosecution’s submission that Documents
1 and 2 are dated 26 August 1992 and therefore outside the indictment period.277
- The Appeals Chamber also notes that the Appellant argues that these documents
are intended to confirm the testimony of many witnesses who testified that members
of the ABiH stayed in civilian facilities and acted from them.278
The Appeals Chamber observes, however, that this information is not new: the Prosecution
did not dispute, at trial, that some members of the ABiH operated from civilian
buildings.279 Moreover, the Appellant
has not shown which of the Trial Chamber’s findings on the individual incidents
of shelling or sniping would be affected by the individual documents, which in addition
is not clear from the documents themselves. The Appeals Chamber finds that they
would not have had an impact on the verdict since the Trial Chamber already considered
similar evidence and thus, its exclusion of these documents as evidence on appeal
would not lead to a miscarriage of justice.
DOCUMENT 5, 6, 7, 8 AND 12
- Document 5 is a report dated 7 December 1992 and signed by Srdjan Sehovac,
of the Ilidza National Security Service Work Organisation, reporting on information
received that Muslim forces will attack and also that they will try to transfer
ammunition. Document 6 is a letter signed by Predrag Ceranic for the Chief of the
National Security Service of Sarajevo Sector dated 27 January 1993 and addressed
to the Ministry of Interior of Republika Srpska, which details reports that UNPROFOR
forces make it possible for the Muslim side to transfer people and weapons over
the airport. Document 7 is an Official Note signed by Srdjan Sehovac to the Ministry
of the Republika Srpska dated 29 January 1993 identifying the Muslim person engaging
in the procurement of weapons, and reporting on the amounts of ammunition possessed
by the Muslim forces; the Official Note maintains that this evidence shows that
Muslim forces continue to cross over via the airport. Document 8 is a letter signed
by the Chief of National Security Service Sector Sarajevo dated 1 December 1993
and addressed to the RS Ministry of the Interior, National Security Service Bijelina
reporting on the actions of the Muslim side. Document 12 is an Official Note signed
by Srdjan Sehovac dated 3 October 1992 reporting that they had received information
that Muslims get weapons through the airport.
- The Appellant submits that Documents 5, 6, 7, 8 and 12 show that Butmir Airport
was misused for military purposes, i.e.: for weapon, ammunition and equipment
transfer, and also for the transfer of ABiH members, whether it was done with or
without UNPROFOR knowledge.280 He
says that this also shows that the periodic actions of the SRK on ABiH positions
near the airport were not performed to attack UNPROFOR forces or civilians crossing
the runway, but were legitimate acts by the SRK, showing that the Trial Chamber
erred in believing the testimony of Abdel Razek and Witness DP 35.281
- The Prosecution argues that these documents are consistent with evidence at
trial where the Trial Chamber noted the evidence that the fire was indiscriminate
and that the Appellant sought through his Orders to attack anyone crossing the runway, regardless of their civilian or military status, in order to prevent his military
opponents from transferring personnel and equipment.282
- In the Trial Judgement, the Trial Chamber found that civilians who crossed
the airport tarmac were targeted because the Appellant had doubts that those movements
might be for a military purpose and was therefore aware that his Orders in relation
to preventing the crossing of the airport tarmac were followed, meaning that a number
of civilians trying to cross the airport tarmac were targeted in full awareness
of their civilian status or in reckless disregard of the possibility that they were
civilians.283 The Appeals Chamber
finds that Documents 5, 6, 7, 8 and 12 are consistent with these findings and with
the evidence of Abdel Razek and Witness DP 35 on which the Trial Chamber relied.
Since they do not undermine the Trial Chamber’s findings and their exclusion would
not lead to a miscarriage of justice, Documents 5, 6, 7, 8, and 12 are rejected
as additional evidence.
DOCUMENT 9
- Document 9 is a letter signed by Predag Ceranic, addressed to the Under Secretary
of National Security, Dragan Kijac, and dated 10 November 1992. It details the incidents
surrounding the beating up of a member of the White Eagles under the command of
Dragoslav Bokan by a member of the RS Army and how it irritated members of the Serbian
army in Nedzarici. The Appellant argues that Document 9 confirms that the Appellant, as Commander of the SRK, had constant problems with members of paramilitary formations, who could act out of the commanding system at any time.284
Therefore, the Appellant submits, this proposed evidence brings into doubt the Trial
Chamber’s conclusion that there was complete control in the chain of command and
that, in this way, there would be a complete estimation about allegedly illegal
sniper activities and the shelling on civilians.285
- The Prosecution submits that Document 9 is consistent with the Trial Chamber’s
findings regarding paramilitaries and that since the Appellant has not explained
its impact on the Trial Chamber’s findings, its admission should be denied.286
- The Appeals Chamber agrees with the Prosecution’s submission that Document
9 is consistent with the Trial Chamber’s findings regarding paramilitaries. The
Trial Chamber considered the implications of evidence concerning the difficulty
of controlling paramilitary forces on the effectiveness of the Appellant’s command
and control.287 The Appeals Chambers
therefore finds that Document 9 would not have had an impact on the verdict since
the Trial Chamber already considered similar evidence and thus, its exclusion would
not lead to a miscarriage of justice. Its admission is therefore rejected.
TRANSCRIPT OF WITNESS TESTIMONY: EVE CREPIN AND PATRICK BARRIOT
- The Appellant also seeks the admission of sections of the trial transcripts
of Eve Crepin and Patrick Barriot in the Milosevic Trial. In the excerpt
of Eve Crepin’s testimony, she gives evidence of occasional attacks by the Muslims
on UNPROFOR. She also testifies that “at the same time, Markale 1 marketplace was
due to the Muslims calling to all the officers on the ground and all the military
spokesmen on the ground.”288 Patrick
Barriot gave evidence of the alleged terrorist acts conducted by Bosnian Muslims
against the French Blue Helmets. He stated that all French Ballistics experts found
that the 27 May 1992 attack, the Markale attack on 5 February 1994, as well as the
attack against Markale on 2 August 1994 were not due to Serb fighters but to Muslim
snipers.289
- The Appellant submits that these witnesses stated that the massacre on Markale
Market was an action of Muslim forces, which was confirmed by all international
experts.290 The Appellant submits
that this reinforces that only one thing is certain: that there is no evidence that
the shelling of Markale Market was performed by members of the SRK, contrary to
the conclusions of the Trial Chamber.291
- The Prosecution submits that the Appellant has not made any submissions regarding
the unavailability of the evidence of Eve Crepin and Patrick Barriot and has neither
provided supporting evidence nor indicated what steps he took to identify and locate
these potential witnesses during trial.292
The Prosecution continues that the mere fact that they gave evidence in the Milosevic
Trial after completion of the Appellant’s trial does not relieve him of the
obligation of showing why the evidence was not available to him at trial.293
Second, the Prosecution submits that the evidence in these transcripts should not
be admitted since they lack reliability and credibility and could not have had a
decisive impact on the decision at trial because these witnesses were not parties
to any investigation into the Markale Market and their evidence is based on unnamed
experts and unidentified sources.294
It states that the allegation that the round originated in Muslim territory is not
novel and is similar to that considered and heard by the Trial Chamber, and that
therefore the Appellant has failed to show how it could have impacted the Trial
Chamber’s decision differently.295
- In his reply, the Appellant submits that the Defence only found out that Eve
Crepin and Patrick Barriot had knowledge of events in Sarajevo after it had heard
their testimonies.296 He further
submits that the credibility of these witnesses is evident and it is not hearsay
evidence since these witnesses were familiar with the facts.297
He concludes that, at trial, evidence was admitted that mortar mine was not fired
from SRK positions with the evidence of Prof. Vilicic, and that evidence, together
with the arguments of these two witnesses, shows that the Trial Chamber erred when
it concluded that the mortar shell which fell on Markale was fired from SRK positions.298
- Concerning the availability of the evidence of Patrick Barriot and Eve Crepin, the Appeals Chamber reiterates that the mere fact that they gave evidence in another
case and that the Appellant was not aware that they were in possession of this information
until then does not in itself suffice to demonstrate unavailability of the evidence
at trial. In order to establish unavailability, the Appellant must demonstrate that
the proffered evidence was not available to him at trial in any form.299
Since the Defence did not identify any difficulties in obtaining potential evidence
similar to these witnesses’, nor disclose any particular efforts that it made to
that effect, the Appeals Chamber is not satisfied that this evidence was unavailable
and thus, it will apply the heightened standard of whether the exclusion of this
proposed evidence would lead to a miscarriage of justice.
- During trial, there was evidence on the record that mortar mines fired on Markale
Market originated from ABiH territory.300
In addition, the Appellant has failed to provide the Appeals Chamber with any particulars
indicating any expertise that these witnesses may have or details as to why he submits
that they were familiar with the facts. For the foregoing reasons, the Appeals Chamber
finds the Appellant has failed to show that these witnesses would have had an impact
on the verdict and how the exclusion of these transcripts would lead to a miscarriage
of justice. As a result, they are rejected as additional evidence on appeal.
- Lastly, the Appellant had requested the Appeals Chamber to issue a binding
Order to the Republic of Croatia for a file signed by Franjo Turek regarding Markale
Market.301 In support of his request, the Appellant had sought to have admitted a newspaper excerpt dated 14 January
2005 from the newspaper “Globus”.302
Considering that the Appellant no longer wishes to pursue his request,303
it is now moot and will not be addressed by the Appeals Chamber.
CUMULATIVE EFFECT
- In assessing the cumulative effect of all the additional evidence sought to
be admitted in the First Rule 115 Motion and Third Rule 115 Motion, the Appeals
Chamber finds that the proposed evidence cumulatively does not meet the standard
of admissibility under Rule 115. In sum, the Appeals Chamber finds that neither
the individual nor the cumulative effect of the proposed additional evidence would
impugn the Trial Chamber’s findings.
IV. CONCLUSION
For the foregoing reasons, the Appeals Chamber DISMISSES the First Rule 115
Motion and the Third Rule 115 Motion.