27 February 2004
ICTY Sentences Mitar Vasiljevic to 15 Years' Imprisonment
Vasiljevic found guilty of aiding and abetting murder of Muslim civilians
The International Criminal Tribunal for the Former Yugoslavia (ICTY) February
25 sentenced Mitar Vasiljevic, a Bosnian Serb former paramilitary fighter,
to 15 years' imprisonment for aiding and abetting persecution and murder
of Muslim civilians during the 1992-95 Bosnian war. These are considered
crimes against humanity and violations of the laws or customs of war.
The court said that in 1992 Vasiljevic was among those who took seven Muslim
men to the banks of the Drina River and shot them, ignoring their pleas for
mercy (two of the seven survived).
Following is a summary of the judgment:
(begin text)
International Criminal Tribunal for the former Yugoslavia
The Hague
25 February 2004
Appeals Chamber Judgement in the Case The Prosecutor v. Mitar Vasiljevic
MITAR VASILJEVIC SENTENCED TO 15 YEARS' IMPRISONMENT
Please find below the summary of the Judgement delivered by the Appeals
Chamber, composed of Judges Theodor Meron(Presiding), Wolfgang Schomburg,
Mohamed Shahabuddeen, Mehmet Güney and Inés Mónica Weinberg de Roca, as read
out by the Presiding Judge.
Summary of the Judgement
The Appeals Chamber today will deliver its judgement on appeal in the case
of the Prosecutor against Mr. Mitar Vasiljevic. Mr. Vasiljevic has appealed
against the judgement issued by Trial Chamber II of this Tribunal on the
29th of November, 2002. This case relates to events which took place in June
1992 in the region of Visegrad. After the Yugoslav National Army withdrew
from the region, various Serb para-military units took control. One such
group, with a reputation for being particularly violent, was led by a certain
Milan Lukic.
The Trial Chamber found that sometime in May 1992 Mitar Vasiljevic was present
when Milan Lukic and his men searched the village of Musici. It also found
that on 7 June 1992, he was present at the Vilina Vlas Hotel, Lukic's headquarters,
when Lukic and two unidentified men brought in seven forcibly detained Muslim
men. When the Appellant left the Hotel with Lukic and two unidentified men,
he was armed with an automatic weapon. The seven Muslim men were forcibly
transported to the eastern bank of the Drina River, where they were shot.
Five of the men died as a result of the shooting and two survived by falling
into the river and pretending to be dead.
The Trial Chamber convicted Mr. Vasiljevic on two of the ten counts charged
by the Prosecution: First, on Count 3 of the indictment, for persecution
as a crime against humanity based on the underlying murder of five Muslim
men and inhumane acts inflicted on the two other Muslim men. This conviction
was entered under Article 5 of the Tribunal's Statute. Second, the Trial
Chamber convicted Mr. Vasiljevic on Count 5, for murder as a violation of
the laws or customs of war for the murder of five Muslim men during the Drina
River incident. This conviction is pursuant to Article 3 of the Statute.
The Trial Chamber acquitted Mitar Vasiljevic of the remaining charges. Mr.
Vasiljevic was sentenced to a single 20-year term of imprisonment. On 30
December 2002, Mr. Vasiljevic appealed both the conviction and the sentence,
raising eight grounds of appeal. The Prosecution did not appeal.
The appeals procedure provided for under Article 25 of the Statute is corrective
and does not give rise to a de novo review of the case on appeal. The review
is limited to legal errors invalidating the decision and factual errors which
would result in a miscarriage of justice. The Appeals Chamber may affirm,
reverse, or revise the decisions taken by the Trial Chamber. The Appeals
Chamber may correct errors of law which invalidate the Trial Chamber's Judgement
for reasons advanced by the Appellant or for other reasons. As regards errors
of fact, the Appeals Chamber will reject the Trial Chamber's finding only
when the evidence on which the Trial Chamber relied could not have been accepted
by any reasonable tribunal and the resulting error led to a miscarriage of
justice, that is to say to a grossly unfair outcome in judicial proceedings,
as when a defendant is convicted despite a lack of evidence on an essential
element of a crime. Where an appellant challenges only the Trial Chamber's
factual findings and suggests an alternative assessment of the evidence,
without demonstrating why the Trial Chamber's assessment was unreasonable,
the appellant will have failed to discharge the burden incumbent upon him.
As to the appeal from the sentencing decision, the sentence will be revised
only if the Trial Chamber committed a discernible error in the exercise of
its discretion. An appellant is also required to provide the Appeals Chamber
with exact references to the parts of the record, transcript, judgement and
exhibits supporting his arguments. The Appeals Chamber will not consider
a party's submissions in detail if they are obscure, contradictory or vague.
In such circumstances, the Appeals Chamber may dismiss the arguments without
a reasoned discussion. The Appellant was reminded of these requirements during
the appeal hearing.
Before considering the arguments of the Appellant on the merits, the Appeals
Chamber determines whether the Appellant's submissions met these requirements.
There are three categories of formal or procedural deficiencies in the Appellant's
submission relating to alleged errors of fact: The first category concerns
arguments in relation to which the Appellant did not identify a particular
error by the Trial Chamber and merely offered an alternative reading of the
evidence. The second category concerns arguments where the Appellant failed
to submit that the Trial Chamber's findings could not have been made by any
reasonable trier of fact. The third category concerns arguments in relation
to which the Appellant failed to state how the alleged error led to a miscarriage
of justice. The Appeals Chamber dismisses these arguments without considering
their merits. I will not list all the arguments falling within the above-mentioned
categories, as they can be easily found in the written version of the Judgement
distributed today.
Furthermore, the Appeals Chamber dismissed without considering on the merits
several of the Appellant's arguments with respect to sentencing, in which
he failed to identify any alleged error or raised these arguments for the
first time only in the Reply Brief.
I will now turn to the Appellant's arguments which have been found to meet
the formal requirements.
The Appeals Chamber restructured these arguments into four groups. The first
group consists of the alleged factual errors relating to the general requirements
of Articles 3 and 5 of the Statute. The second—of alleged factual errors
relating to the Drina River incident and the Appellant's relationship with
the Lukic paramilitary group. The third group relates to the Appellant's
participation in a joint criminal enterprise and his related criminal responsibility,
and the fourth to sentencing. These issues form Parts Three through Six of
the Appeals Judgement.
In Part III of the Judgement, the Appeals Chamber considers the merits of
two of the Appellant's arguments related to the chapeau requirements of Articles
3 and 5 of the Statute, which are set out in the Appellant's third ground
of appeal. The Chamber concludes that the Appellant has not demonstrated
that no reasonable trier of fact could find that his acts were closely related
to the armed conflict. The Appeals Chamber also dismisses the Appellant's
allegation that the Trial Chamber erred in finding that his acts were part
of a widespread or systematic attack of which he had knowledge, and concludes
instead that a reasonable Trial Chamber could have found that the Appellant
knew about the on-going attack against the Muslim civilian population in
Visegrad.
In Part IV of the Judgement, the Appeals Chamber considers seven alleged
errors of fact relating to the Drina River incident and the Appellant's relationship
with the Lukic paramilitary group, which are mainly set out in the Appellant's
first and second grounds of appeal.
The Appeals Chamber dismisses four of these alleged errors of fact:
The Appeals Chamber first dismisses the Appellant's allegation that the
Trial Chamber erred in finding that he was armed on 7 June 1992. The arguments
of the Appellant do not establish that no reasonable Trial Chamber could
have found, based on the testimony of two witnesses that the Appellant was
armed at the Vilina Vlas Hotel, and that at the Drina River he pointed his
gun at the seven Muslim men and prevented them from fleeing.
The Appeals Chamber also dismisses the argument that the Trial Chamber erred
in rejecting the Appellant's assertion that he had attempted to dissuade
Milan Lukic from carrying out the killings. The Appellant has failed to demonstrate
how the fact that none of the other persons present during the incident could
have influenced Milan Lukic, would be relevant to the assessment as to whether
or not he attempted to dissuade Lukic. The Appellant has failed to show that
no reasonable tribunal could have reached the Trial Chamber's conclusion.
Third, the Appeals Chamber dismisses the Appellant's allegation that the
Trial Chamber erred in rejecting his argument that he remained at a distance
from the scene of the crime. Even if the testimony of a witness confirms
the Appellant's version that he was several metres away from Milan Lukic
and the two other armed men during the shooting, the Appellant has not established
that the Trial Chamber erred in finding that he stood behind the seven Muslim
men with his weapon, together with the three other men, shortly before the
shooting. The Appeals Chamber cannot find any error committed by the Trial
Chamber in its treatment of the testimony of the witness or its assessment
of the evidence presented at trial. In any event, the Appellant has not established
that the alleged error would lead to a miscarriage of justice.
Fourth, the Appeals Chamber dismisses the Appellant's allegation that the
Trial Chamber's findings based on the testimony of two witnesses, related
to his role during the search in Musici, are erroneous. The contradictions
alleged by the Appellant are non-existent, minor or immaterial, and the Appellant
has failed to show that no reasonable trier of fact could have found, on
the basis of this evidence, that the Appellant stood guard at the entrance
to the house of the witness's father, thereby participating in the search
of the house.
I turn now to the three remaining alleged factual errors made by the Trial
Chamber on which the Appeals Chamber agrees with the Appellant:
The first error relates to the Trial Chamber's finding that the Appellant
was an informant to the Milan Lukic group. The Appeals Chamber notes that
the only evidence cited by the Trial Chamber to suggest this conclusion is
the testimony of witness VG-14 that, while he was in the hands of the Appellant
and Milan Lukic in the red VW Passat, the Appellant pointed out a nearby
house and told Milan Lukic that it belonged to a Muslim family. The Trial
Chamber expressly rejected as not sufficiently reliable or credible the evidence
of two other witnesses, relied upon by the Prosecution to show that the Appellant
acted as an informant to the group. Moreover, the Trial Chamber's findings
with respect to the Musici search do not support the inference that the Appellant
had pointed out the house in question to Milan Lukic and his men. No reasonable
tribunal therefore could have found, based solely on the testimony of witness
VG-14, that the Appellant was an informant to the Lukic group and that he
knew that the information would be used to persecute Muslims.
The Appellant argues that the Trial Chamber's erroneous finding that he
was an informant to the Lukic group formed the basis for the Trial Chamber's
conclusion that he possessed a discriminatory intent. The Trial Chamber found,
however, that the Appellant was associated with the Milan Lukic group and
that the acts of the Appellant were closely related to the armed conflict
and formed part of the widespread and systematic attack against the non-Serb
population of Visegrad. The Trial Chamber did not deduce the Appellant's
discriminatory intent from the fact that he was an informant of the group.
The Appellant, therefore, fails to establish that the Trial Chamber's erroneous
finding that he was an informant led to a miscarriage of justice.
The second error relates to the Trial Chamber's findings that at the time
the Appellant was at the Vilina Vlas Hotel he knew that the seven Muslim
men were going to be killed and that Milan Lukic had committed serious crimes,
including killings, in the area of Visegrad shortly prior to the Drina River
incident. The Trial Chamber relied upon the evidence given by the Appellant
himself that, during the drive from Visegrad to the Vilina Vlas Hotel on
the afternoon of 7 June 1992, the Appellant had been told by the man driving
the car—Stanko Pecikoza—that Milan Lukic had, on several occasions, taken
out Muslim employees from the Varda Factory to mistreat or kill them. Accordingly,
the Trial Chamber rejected the Appellant's evidence that it was only when
Milan Lukic stopped the cars near Sase and ordered the seven men to walk
towards the bank of the Drina River that he understood these men were not
to be exchanged
Having reviewed the relevant excerpts of the Appellant's evidence, the Appeals
Chamber concludes that his testimony is unclear and contradictory as to what
he was told by Stanko Pecikoza on 7 June 1992 on their way to the Vilina
Vlas Hotel. While the testimony supports the Trial Chamber's finding as to
mistreatment, it is ambiguous as to killings. The evidence leaves it unclear
whether Stanko Pecikoza told the Appellant about the discovery of the body
of a young man named Velagic in the car on the way to the hotel, or whether
Pecikoza only expressed his suspicion that Milan Lukic had killed Velagic.
Furthermore, it must be noted that a certain Velagic was, according to paragraph
15 of the Indictment, killed on 10 June by Milan Lukic at the Varda factory.
This fact renders the testimony of the Appellant even more unclear as to
which killings he was referring to. There is also a contradiction between
the Trial Chamber's Judgement and the Indictment as to the date of the Varda
factory incident.
Consequently, the evidence in question does not support the Trial Chamber's
finding that Stanko Pecikoza told the Appellant about any killings of workers
from the Varda factory that would have taken place before 7 June 1992. Even
if Pecikoza told the Appellant that Velagic had been killed by Milan Lukic,
this would be insufficient to infer that the Appellant knew, at the time
he left the hotel, that the seven Muslim men were going to be killed and
not exchanged. For this reason, and in light of additional factors which
are explained in the Appeals Judgement, the Appeals Chamber finds that no
reasonable trier of fact could have made this finding, merely on the basis
of the evidence.
I turn now to the third factual error, which relates to the finding that
the Appellant pointed a gun at the seven Muslim men while at the Vilina Vlas
Hotel. As already explained, the Appeals Chamber concluded that it was reasonable
for the Trial Chamber to find that the Appellant was armed at the Vilina
Vlas Hotel. The Trial Chamber's conclusion that the Appellant pointed his
gun at the seven Muslim men at the hotel is, however, not supported by the
Trial Chamber's own finding that one of the unidentified armed men guarded
the seven Muslim men, pointing his automatic rifle at them and preventing
them from leaving the lobby of the hotel. The Prosecution conceded this point.
In conclusion, no reasonable trier of fact could have found that the Appellant
pointed a gun at the seven Muslim men at the Vilina Vlas Hotel.
The question of whether the two last above-mentioned errors led to a miscarriage
of justice will be discussed later, in the context of the alleged error relating
to the Appellant's intent to kill the seven Muslim men.
Part V of the Judgement deals with the Appelant's participation in a joint
criminal enterprise and the related issue of his individual criminal responsibility.
The Appellant's fourth, fifth, sixth and seventh grounds of appeal relate,
respectively, to murder, inhumane acts, persecution and joint criminal enterprise.
They share, as a central issue, the question of whether the Appellant intended
to kill the seven Muslim men during the Drina River incident. The Appeals
Chamber finds that only the first category of joint criminal enterprise described
by the Tadic Appeals Judgement—that is, the basic form of joint criminal
enterprise—is relevant in the present case. The Appeals Chamber dismisses
the Appellant's three sub-grounds of appeal which allege that the Trial Chamber
erred in law in relation to the concept of joint criminal enterprise, by
failing to explicitly indicate which exact criteria it applied to assess
the existence of this enterprise, by finding that the existence of an arrangement
or understanding amounting to an agreement between two or more persons need
not be express but can also be inferred, and by finding that all of the participants
in the joint criminal enterprise were equally guilty of the crime regardless
of the part played by each in its commission. The Appeals Chamber also dismisses
the Appellant's allegation that the Trial Chamber erred in finding him guilty
of persecution solely on the basis of one incident.
I turn now to the Appellant's arguments that the Trial Chamber erred in
finding that he shared the intent to kill the seven Muslim men. The Trial
Chamber inferred the Appellant's intent from his actions of preventing the
seven Muslim men from fleeing by pointing a gun at them while they were detained
at the Vilina Vlas Hotel; escorting them to the bank of the Drina River and
pointing a gun at them to prevent their escape; and standing behind the Muslim
men with his gun alongside the other three offenders shortly before the shooting
started. To find the individual criminally responsible as a co-perpetrator,
it must be established that an accused voluntarily participated in one aspect
of the common purpose even if he did not physically commit the crime; and
that an accused, even if not personally carrying out the crime, nevertheless
intended its result. The Appeals Chamber agrees with the test adopted by
the Trial Chamber, according to which when the Prosecution relies upon proof
of the state of mind of an accused by inference, that inference must be the
only reasonable inference available on the evidence. The question here is
whether no reasonable tribunal could have found that the only reasonable
inference from the evidence was that the Appellant by his actions intended
to kill the seven Muslim men.
As already stated, the Appeals Chamber concluded that the Trial Chamber
erred in finding that the Appellant pointed his gun at the seven men while
at the Vilina Vlas Hotel. Moreover, the Appeals Chamber concluded that the
Trial Chamber erred in finding that the Appellant at that time had knowledge
that the seven Muslim men were to be killed and not exchanged. Since the
Appellant lacked, at that time, the knowledge that the seven Muslim men were
to be killed, the fact that he prevented the Muslim men from fleeing at the
hotel is not decisive as to whether or not he shared the intent to kill them.
The Trial Chamber also relied on the Appellant's actions from the moment
the Lukic group stopped the cars in Sase to infer that he intended that the
seven Muslim men be killed. When Milan Lukic, the two unidentified men and
the Appellant escorted the seven Muslim men to the bank of the Drina River,
he pointed a gun at them to prevent their escape. Then, the Appellant stood
behind the Muslim men with his gun shortly before the shooting occurred.
The Trial Chamber did not find, however, that the Appellant acted at the
same level of authority or with the same degree of control over the killings
as the other three actors. To the contrary, the Trial Chamber stated that
it is "is not satisfied that the Prosecution has established beyond
reasonable doubt that the Accused fired his weapon at the same time as the
other three, or that he personally killed anyone or more of the victims." The
Trial Chamber did not even make an explicit finding that the Appellant pointed
his gun at the seven Muslim men while they were lined up facing the Drina
River.
In addition to these findings, the Appeals Chamber takes into consideration
the following: the overall context of the Drina River incident; the previous
association of the Appellant with the Milan Lukic group at Musici and at
the Vilina Vlas Hotel, as well as his actions at both locations; the fact
that the Appellant did not know until the car stopped in Sase that the seven
Muslim men were to be killed; that the behaviour of the Serb soldiers changed
drastically from the moment Milan Lukic ordered them to leave the car; that
throughout the entire Drina River incident the impression of the two survivors
was that no one around Lukic could have influenced him or his decisions;
and, finally, that the Appellant willingly accompanied Lukic and his group
with the seven Muslim men to the Drina River.
When a Chamber is confronted with the task of determining whether it can
infer from the acts of an accused that he shared the intent to commit a crime,
special attention must be paid to whether these acts are ambiguous and therefore
allow for several reasonable inferences. The Appeals Chamber concludes that
no reasonable tribunal could have found that the only reasonable inference
available on the evidence, as cited above, is that the Appellant had the
intent to kill the seven Muslim men. The Trial Chamber found that the Appellant
assisted Milan Lukic and his men by preventing the seven Muslim men from
fleeing. It did not find, however, that the Appellant shot at the Muslim
men himself, nor did it find that he exercised control over the firing. Compared
to the involvement of Milan Lukic and, potentially, one or both of the other
men, the participation of the Appellant in the overall course of the killings
did not reach the same level. The above-mentioned acts of the Appellant were
ambiguous as to whether or not the Appellant intended the seven Muslim men
be killed. This conclusion is further supported, among other factors, by
the relatively short period of time between the change of attitude of Milan
Lukic and the shooting and the strong personality of Milan Lukic compared
to that of the Appellant. The Trial Chamber erred by finding that the only
reasonable inference from the evidence was that the Appellant shared the
intent to kill the seven Muslim men. This error led to a miscarriage of justice
because without the proof of the Appellant's intent to kill, he could not
be found responsible as a co-perpetrator.
The Appeals Chamber now considers whether the Appellant is responsible as
an aider and abettor.
The Appellant argued under his fourth ground of appeal that his actions
do not amount to aiding and abetting, as he did not facilitate the commission
of the crime. The Appeals Chamber has already concluded that the Appellant
knew that the seven Muslim men were to be killed; that he walked armed with
the Lukic group from the place where they had parked the cars to the Drina
River; that he pointed his gun at the seven Muslim men; and that he stood
behind the Muslim men with his gun together with the other three offenders
shortly before the shooting started. The only reasonable inference available
on the totality of evidence is that the Appellant knew that his acts would
assist the commission of the murders. In preventing the men from escaping
on the way to the river bank and during the shooting, the Appellant's actions
were specifically directed to assist the perpetration of the murders and
the inhumane acts and his support had a substantial effect upon the perpetration
of the crimes. The Appeals Chamber therefore finds the Appellant guilty for
aiding and abetting murder pursuant to Article 3 of the Statute (Count 5).
Further, the Appeals Chamber finds the Appellant guilty as an aider and abettor
with respect to murder as a crime against humanity pursuant to Article 5(a)
(Count 4) and inhumane acts as a crime against humanity pursuant to Article
5(i) (Count 6). The Appellant, however, is not convicted of murder as a crime
against humanity pursuant to Article 5(a) (Count 4) and inhumane acts as
a crime against humanity pursuant to Article 5(i) (Count 6) in accordance
with the Tribunal's jurisprudence on cumulative convictions.
I now turn to the Appellant's submission that the Trial Chamber erred in
finding that he had the requisite discriminatory intent as he did not take
part in the singling out of the seven Muslim men, did not know why they were
arrested or what Milan Lukic wanted to do with them.
Contrary to what the Appellant argues, the Trial Chamber made it clear that,
regardless of whether or not the Appellant was an informant and whether or
not he shared the intention of the group to persecute the Muslim population,
the Prosecution also had to establish that the Accused participated in the
commission of a persecutory act with a discriminatory intention. Consequently,
the Trial Chamber assessed whether the acts of the Appellant during the Drina
River incident showed that he possessed the requisite mens rea for the crime
of persecution. The Appeals Chamber recently upheld the approach taken by
the Trial Chamber in the Krnojelac Appeals Judgement. Furthermore, and again
contrary to the submission of the Appellant, the Trial Chamber did not deduce
the discriminatory intent of the Appellant from the fact that the seven Muslim
men were singled out by him. The Trial Chamber affirmed that "the acts
of the Accused were in fact discriminatory, in that the men were killed only
because they were Muslims." The Appellant's participation in the joint
criminal enterprise at the Vilina Vlas Hotel, during the transfer of the
victims to the bank of the Drina River, and during the events that took place
there, represents the concrete acts from which the Trial Chamber could infer
that his actions had discriminatory consequences and that he possessed the
requisite discriminatory intent. The Appellant's arguments with respect to
the approach taken by the Trial Chamber in assessing whether he had the discriminatory
intent to persecute are therefore rejected.
The Appeals Chamber also has to determine whether the Trial Chamber erred
in finding the Appellant individually responsible as a co-perpetrator for
the crime of persecution based on the underlying crimes of murder and inhumane
acts. The Appeals Chamber already concluded that the Trial Chamber erred
in finding that the Appellant possessed the intent to kill. The intent to
kill the seven Muslim men, including the two survivors, constituted the basis
for the Trial Chamber's finding that the Appellant was a co-perpetrator to
a joint criminal enterprise. In the absence of this intent, no reasonable
trier of fact could have found the Appellant responsible for committing the
crime of persecution by murders and inhuman acts as a co-perpetrator to the
joint criminal enterprise. This error resulted in a miscarriage of justice.
The Appeals Chamber now considers whether the Appellant incurs individual
criminal responsibility under Article 7(1) of the Statute by aiding and abetting
the persecution of the Muslim men through his participation in the killings
on the bank of the Drina River. The acts committed by Milan Lukic and the
two other men unquestionably amount to the crime of persecution: They killed
the five Muslim men and committed inhumane acts against the two survivors
with the deliberate intent to discriminate on religious or political grounds.
Furthermore, the Appeals Chamber agrees with the Trial Chamber that the Appellant
participated in the Drina River incident with full awareness that the intent
of the Milan Lukic's group was to persecute the local Muslim population of
Visegrad through the commission of the underlying crimes. The only reason
why the seven Muslim men were arrested and killed was because they belonged
to the Muslim population of Visegrad. The Appellant was aware of these facts
and he willingly participated in the Drina River massacre by pointing his
gun at the victims and preventing them from fleeing. His support had a substantial
effect upon the perpetration of the crimes on the bank of the Drina River.
He was at that time fully aware that his participation assisted the commission
of the crime of persecution by the principal perpetrators. The Appellant
is therefore responsible for having aided and abetted the crime of persecution
by way of murder of the five Muslim men and of inhumane acts against the
two other Muslim men.
The Appellant argues that he cannot be convicted cumulatively, with respect
to the same conduct, of both murder under Article 3 of the Statute (Count
5) and persecution by way of murder under Article 5(a) of the Statute (Count
4). The jurisprudence of the Tribunal on cumulative convictions shows that
it is permissible to convict for both of these offenses, as each has an element
materially distinct from the other. This sub-ground of appeal therefore fails.
I will now discuss Part VI of the Judgement, which deals with sentencing.
In his eight ground of appeal, the Appellant alleges seven errors of law
and fact related to sentencing. He first alleges that the sentence imposed
by the Trial Chamber—twenty years of imprisonment for persecution and murder—is
excessively high in comparison with sentences imposed in the Tribunal's case-law.
Secondly, the Appellant alleges that the Trial Chamber erred in taking into
consideration as aggravating factors the method of killing, verbal abuses
of the victims, the trauma suffered by the victims and the discriminatory
state of mind. Third, he argues that the Trial Chamber erred in failing to
consider as a mitigating factor the remorse shown by him after the Drina
river incident and his cooperation with the Prosecution. The Appeals Chamber
rejects all these arguments, and the reasons are fully explained in the Judgement.
The Appeals Chamber, however, is of the view that the sentence needs to
be adjusted due to the fact that the Appellant's conviction as a co-perpetrator
in a joint criminal enterprise, for murder as a violation of the laws or
customs of war under Article 3 of the Statute and persecution by way of murder
and inhumane acts under Article 5(h), is now replaced by a conviction as
an aider and abettor. The Appeals Chamber has the power to revise the sentence
itself without remitting it to the Trial Chamber. Aiding and abetting is
a form of responsibility which generally warrants a lower sentence than is
appropriate to responsibility as a co-perpetrator. At the same time, the
sentence to be imposed must also reflect the inherent gravity of the criminal
conduct of an accused. The Appellant committed serious crimes. Therefore,
taking into account the particular circumstances of this case as well as
the form and degree of the Appellant's participation in the crimes committed,
the Appeals Chamber concludes that a sentence of 15 years is appropriate.
I shall now read the operative paragraph of the Appeals Chamber's Judgement.
Mr. Vasiljevic, please stand.
The disposition at the end of the Judgement is as follows:
For the foregoing reasons, THE APPEALS CHAMBER
PURSUANT to Article 25 of the Statute and Rules 117 and 188 of the Rules
of Procedure and Evidence;
NOTING the respective written submissions of the parties and the arguments
they presented at the hearing of 18 November 2003;
SITTING in open session;
ALLOWS, Judge Shahabuddeen dissenting, Mitar Vasiljevic's appeal in so far
as it relates to his convictions as a co-perpetrator of persecution, a crime
against humanity (murder and inhumane acts) under Count 3 of the Indictment,
and of murder, a violation of the laws or customs of war, under Count 5 of
the Indictment;
SETS ASIDE, Judge Shahabuddeen dissenting, these convictions, and FINDS,
Judge Shahabuddeen dissenting, Mitar Vasiljevic guilty of Counts 3 and 5
of the Indictment as an aider and abettor to persecution, a crime against
humanity (murder and inhumane acts), and as an aider and abettor to murder,
a violation of the laws or customs of war, pursuant to Article 7(1) of the
Statute;
DISMISSES Mitar Vasiljevic's appeal against convictions in all other respects;
DISMISSES Mitar Vasiljevic's appeal against sentence and IMPOSES, Judge
Shahabuddeen dissenting, a new sentence, taking into account his responsibility
established on the basis of the new convictions entered on appeal;
SENTENCES Mitar Vasiljevic to fifteen years' imprisonment to run as of this
day, subject to credit being given under Rule 101(C) of the Rules for the
period Mitar Vasiljevic has already spent in detention, that is from 25 January
2000 to the present day;
ORDERS, in accordance with Rule 103(C) and 107 of the Rules of Procedure
and Evidence, that Mitar Vasiljevic is to remain in the custody of the International
Tribunal pending the finalisation of arrangements for his transfer to the
State where his sentence will be served.
(end text)
(Distributed by the Bureau of International Information Programs, U.S. Department
of State. Web site: http://usinfo.state.gov)
back to top
^ |