Table of contents:
Element:
A. Evidentiary comment:
In some of the ICTR jusisprudence the view was taken that "recklessness, or gross negligence" would suffice in the place of actual intent (Kayishema Trial Judgment, para. 146; Bagilishema Trial Judgment, para. 89. That approach was rejected by in Semanza (Trial Judgment, para. 341). Subsequent Trial Chamber decisions failed to satisfactorily resolve this conflict, but seem to accept that recklessness or gross negligence may suffice (Kajelijeli Trial Judgment, paras 894 – 895; Kamuhanda Trial Judgment, paras. 695 – 696). The ICTY Trial Chamber has adopted a similar but slightly stricter standard, requiring actual intent or recklessness (dolus eventualis) but treating gross negligence as insufficient (see, most recently, Brđanin Trial Judgment, paras. 392 – 395 for a summary). (The Appeals Chamber is yet to consider the question, but is expected to do so in Stakić).
In any event article 30 of the Rome Statute sets out the mental elements for crimes under the Rome Statute, and these do not include gross negligence or recklessness. However, if "killing" or "causing death" can be seen as an act including two elements, namely (1) conduct and (2) the consequential death of the victim, then the mental element for the second of these could be established at least by demonstrating that "the perpetrator was aware that death would occur in the ordinary course of events" under article 30(2)(b). It may be that this requirement will be met in similar circumstances to those in which the standard of dolus eventualis would be satisfied. For this reason, ICTY decisions showing examples of evidence sufficient to prove recklessness are given below.
Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 447-448:
''447. In order to satisfy the mens rea of murder, the Prosecution must prove that the act was committed, or the omission was made, with an intention to kill (animus necandi) or to wilfully cause serious injury or grievous bodily harm which the perpetrator should reasonably have known might lead to death.''
''448. Thus, the mens rea of murder includes both direct intent (dolus directus), which is a state of mind in which the perpetrator desired the death of the individual to be the result of his act or omission, and indirect intent (dolus eventualis), which is knowledge on the part of the perpetrator that the death of a victim was a probable consequence of his act or omission.''
P.15. Inference of recklessness drawn from nature of violence committed against victim.
P.15.1. Evidence of the severity of the beating inflicted.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para 851- 855, 877, 890, 894:
"851. It is not disputed by the Defence for Mr. Landzo that Bosko Samoukovic was beaten inside Hangar 6. In addition, with the exception of Witness P and Dr. Petko Grubac, all of the other witnesses mentioned above were confined in the same Hangar and were in a position to see the beating inflicted upon Mr. Samoukovic. These witnesses have stated, with minor variations, that Esad Landzo walked up to the deceased, asked him his name and ordered him to stand up. Mr. Landzo then began beating him with a wooden plank, which was around one metre long and five or six centimetres thick, and which was ordinarily used to secure the door of the Hangar. This beating lasted for some time, until, ultimately, Bosko Samoukovic fell down. He was then carried to the makeshift infirmary in Building 22, where he succumbed to his injuries.
852. At the so-called infirmary the two doctors who were housed there examined Mr. Samoukovic. They observed that he was finding it difficult to breathe and had some broken ribs. Witness P testified that, on his inquiry, Mr. Samoukovic told him that he had been beaten by Esad Landzo. He further deposed that, before the arrival of the deceased in the infirmary, he had been hearing cries and the sound of blows from elsewhere in the prison-camp for about 20 minutes. Both Witness P and Dr. Grubac stated that Bosko Samoukovic died within 20 minutes of his arrival in the infirmary.
853. From the testimony of Witness P it would seem that the arrival of Esad Landzo at the infirmary was not out of any concern for the health of Bosko Samoukovic. This witness stated that Mr. Landzo in fact issued him with a threat, saying that Mr. Samoukovic should be "ready" by 6 o’clock or he (that is, the witness) should be "ready". Witness P understood this threat as implying that Bosko Samoukovic should be made ready for a another beating by the evening or he himself should get ready to receive a beating instead.
854. According to Dr. Grubac, Hazim Delic also came to the infirmary and, when he saw the condition of Bosko Samoukovic, he sent for Esad Landzo and inquired from him what he had done. Thereupon Esad Landzo asked the doctor to see that Mr. Samoukovic was treated and, indeed, to "cure" him.
855. Even should it be conceded that Mr. Landzo’s request to Dr. Grubac is evidence of some remorse for his actions, rather than a mere expression of his fear of recriminations from Mr. Delic, this can hardly detract from the gross nature of his conduct in mercilessly beating an elderly person with a heavy implement. It appears that the only reason for his assault on Mr. Samoukovic was that the latter was a Serb from Bradina and thus somehow deserving of punishment for the acts of other Serbs from Bradina in killing several Bosnian police officers. The ferocity of the attack can further be gauged from the fact that the victim did not survive for more than half an hour afterwards. Such a brutal beating, inflicted on an old man and resulting in his death, clearly exhibits the kind of reckless behaviour illustrative of a complete disregard for the consequences which this Trial Chamber considers to amount to wilful killing and murder. In these circumstances, any subsequent pleas to the doctor cannot detract from the gravity of Mr. Landzo’s inhuman conduct."
"877. In relation to the present charge and on the basis of the foregoing facts, the Trial Chamber finds that the act of severely beating Zeljko Cecez over a prolonged period of time evidences an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, and as we have been left in no doubt that the injuries inflicted upon Zeljko Cecez in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Zeljko Cecez, as described above, constitutes the offence of wilful killing under Article 2 and murder under Article 3 of the Statute."
"890. Considering the severity of the beatings to which Petko Gligorevic was subjected and the fact that the perpetrators used metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we have been left in no doubt that the injuries inflicted upon Petko Gligorevic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Petko Gligorevic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute."
"894. Considering the severity of the beatings to which Gojko Miljanic was subjected and the fact that the perpetrators used rifle butts and other metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we are convinced that the injuries inflicted upon Gojko Miljanic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Gojko Miljanic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute."
P.15.2. Evidence of the use of a firearm against unarmed person.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 903:
"903. In the instant case it is established that Miroslav Vujicic was shot and killed by one of the individuals participating in the collective beating, as described above, in the Celebici prison-camp. The Trial Chamber finds that, under these circumstances, the use of a firearm against an unarmed individual demonstrates an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, the Trial Chamber finds that the killing of Miroslav Vujicic constitutes the offences of wilful killing under Article 2 and murder under Article 3 of the Statute."
P.15.3. Evidence of violence against a particularly vulnerable person.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalić, Zdravko Mucić, Hazim Delić and Esad Landžo, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 907 – 908:
"907. Based upon this evidence, the Trial Chamber finds that Pero Mrkajic was already seriously injured when he arrived at the Celebici prison-camp. Despite the serious nature of his medical condition, Mr. Mrkajic was subjected to further beatings during his period of detention within the prison-camp. He was subsequently transferred to the so-called infirmary, where he remained until his death a few days later.
908. In relation to the present charge and based upon the foregoing facts, the Trial Chamber finds that the act of beating Pero Mrkajic, given the serious nature of his medical condition, demonstrates an intent on the part of the perpetrators to kill or to inflict serious injury in reckless disregard of human life."
P.15.4. Evidence of the number of victims killed
Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 86-91, 97-104, 111-115, 120-123, 126-128, and 131-133:
''86. The Appeals Chamber will first consider whether Tolimir’s submission that the Trial Chamber erred in law by calculating the number of persons unlawfully killed in circumstances not specified in paragraphs 21.1 to 22.4 of the Indictment should be summarily dismissed, as requested by the Prosecution. The Appeals Chamber notes that the Trial Chamber referred to the 5,749 victims in relation to the charge of genocide in finding that: (i) members of the protected group were killed;236 (ii) the Bosnian Serb Forces deliberately inflicted conditions of life that were calculated to bring about the protected group’s destruction; 237 and (iii) there was an intent to destroy the protected group.238 The Trial Chamber also referred to the 5,749 victims when assessing the gravity of the offence in sentencing Tolimir.239 As an alleged error in the Trial Chamber’s calculation of persons unlawfully killed could have impacted the Trial Chamber’s findings on genocide and sentencing, the Appeals Chamber will consider Tolimir’s submission on the merits.''
236 Trial Judgement, paras 751-752.
237 Trial Judgement, para. 766.
238 Trial Judgement, paras 770, 773.
239 Trial Judgement, para. 1217.
''87. The Appeals Chamber recalls that in reaching its judgement, a trial chamber can only convict an accused of crimes which are charged in the indictment.240 The Appeals Chamber has consistently held that, in accordance with the Statute of the Tribunal and the ICTR Statute, the charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in the indictment.241 Material facts not pleaded in the indictment cannot serve as a legitimate foundation for a conviction against the accused.242''
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240 Naletilić and Martinović Appeal Judgement, para. 26; Kvočka et al. Appeal Judgement, para. 33.
241 Dordević Appeal Judgement, para. 574; Martic Appeal Judgement, para. 162; Muvunyi Appeal Judgement, para. 18. Naletilić and Martinović Appeal Judgement, para. 23; Kvočka et al. Appeal Judgement, para. 27; Kupreškić et al. Appeal Judgement, para. 88. The Appeals Chamber recalls that the count or charge is the legal characterisation of the material facts which support that count or charge. Muvunyi Appeal Judgement, para. 19.
242 Kupreškić et al. Appeal Judgement, para. 320. See also Kupreškić et al. Appeal Judgement, paras 312-319; Martić Appeal Judgement, paras 162-164.
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''88. In the present case, the charges and the material facts supporting the charges are pleaded in the Indictment with a reasonably high degree of specificity. The Indictment alleged that the plan to murder the able-bodied Bosnian Muslim men from Srebrenica encompassed “over 1,000” men who were separated from their friends and families at Potočari and taken to Bratunac, and “over 6,000” men who surrendered to or were captured by Bosnian Serb Forces stationed along the road between Bratunac, Konjević Polje, and Milići.243 It alleged that the systematic murder of these men from Srebrenica began on 13 July 1995 “as set forth in specific detail” in paragraphs 21.1 to 22.4, i.e. in the circumstances of the specified incidents listed therein.244 Similarly, the Indictment alleged that four specific incidents of opportunistic killings and the killing of three named Bosnian Muslim leaders from Žepa were natural and foreseeable consequences of the JCEs alleged in the Indictment.245 Under Count 2, charging the facts and agreement identified in the JCE to Murder as the underlying acts of conspiracy to commit genocide,246 the Indictment alleged that the implementation of the JCE resulted in the summary execution of “over 7,000” Bosnian Muslim men and boys from the Srebrenica enclave.247''
243 Indictment, paras19-20.
244 Indictment, para.21.
245 Indictment, paras 22, 22.1-22.4, 23.1. The Indictment alleges, in particular, that the opportunistic killings specified in paragraph 22 were the natural and foreseeable consequence of the JCE to Forcibly Remove and the JCE to Murder and that the killings of the three Žepa leaders were the natural and foreseeable consequence of the JCE to Forcibly Remove. Indictment, paras 22, 23.1.
246 Indictment, para. 25. See also Indictment, para. 27.
247 Indictment, para. 28. See also Indictment, para. 9.
''90. The Trial Chamber therefore erred by making findings that 779 persons248 were unlawfully killed by Bosnian Serb Forces in circumstances not specified in the Indictment and by relying on this higher figure in support of its conclusions on Tolimir’s convictions.''
248 The Appeals Chamber recalls that the Trial Chamber found that at least 5,749 Bosnian Muslims were unlawfully killed by the Bosnian Serb Forces following the fall of Srebrenica by calculating the number of Bosnian Muslims killed by the Bosnian Serb Forces at the specific crime sites listed in paragraphs 21.1-22.4 of the Indictment (4,970) and in circumstances not specified in the Indictment (830). The Trial Chamber excluded from the calculation 51 victims to avoid double-counting, thus finding that 779 individuals were killed by Bosnian Serb Forces in circumstances other than specified in the Indictment. See supra, para. 81.
''91. The Appeals Chamber is not, however, convinced that this error of law invalidates the Trial Judgement. Tolimir fails to show why his convictions should not stand on the basis of the Trial Chamber’s finding that at least 4,970 individuals were unlawfully killed in the specific circumstances detailed in the Indictment. The Trial Chamber emphasised that the figure of 4,970 is a conservative calculation of the number of people killed in the circumstances specified in the Indictment, with the actual number of victims likely to be markedly higher.249 With regard to its findings in relation to the charge of genocide, the Trial Chamber also recalled its finding that at least 4,970 Bosnian Muslim men were killed by Bosnian Serb Forces in circumstances specified in the Indictment.250 Tolimir has provided no indication that this figure alone would not have enabled the Trial Chamber to make its findings on the protected group element or that the forcible transfer and killing operations were deliberately inflicted in order to lead to the physical destruction of the Bosnian Muslim population in the area.251 Similarly, with respect to the Trial Chamber’s reference to the 5,749 victims in assessing the gravity of the offence in sentencing Tolimir, the Appeals Chamber considers that the Trial Chamber’s general assessment that those who were killed were victims of a “massive and cruel murder operation” remains fully supported by the conservatively calculated 4,970 minimum figure.252 Moreover, all the Trial Chamber’s specific examples illustrating the horrific nature of the mass executions that informed its assessment of the gravity of the offence derived from incidents specified in the Indictment.253''
249 Trial Judgement, para.571.
250 Trial Judgement, para.751.
251 Trial Judgement, para.766.
252 Trial Judgement, para. 1217. 253 Trial Judgement, para. 1217.
252 Trial Judgement, para. 1217. 253 Trial Judgement, para. 1217.
''97. The Appeals Chamber recalls that the Trial Chamber erred by making a finding that 779 victims were killed by Bosnian Serb Forces in circumstances not specified in the Indictment.274 In light of this Appeals Chamber’s finding, Tolimir’s arguments as to the methodology used by the Trial Chamber in reaching the higher number of 5,749 are moot. The Appeals Chamber will assess those arguments related to the methodology employed by the Trial Chamber in calculating the 4,970 victims of incidents specified in the Indictment.275''
274 See supra, para.90.
275 See Appeal Brief, para. 104. The Appeals Chamber notes that Tolimir challenges the lower number of 4,970 victims as well as the higher number of 5,749 victims. The Appeals Chamber further notes that in another section of this Judgement it has granted Tolimir’s Ground of Appeal 20, see infra, paras 434-435. Tolimir’s arguments regarding the methodology used by the Trial Chamber in evaluating the total number of those killed, insofar as they relate to the killings of the six Bosnian Muslim men near Trnovo, are therefore moot.
''98. The Trial Chamber reached its finding that 4,970 individuals were unlawfully killed by Bosnian Serb Forces in the incidents specified in the Indictment276 by analysing a combination of evidence comprising witness testimony as to the circumstances of the killings, forensic evidence, and demographic data.277'' With regard to some incidents, the Trial Chamber reached its findings based on eyewitness accounts alone.278 The Appeals Chamber finds no support for Tolimir’s allegation that, in finding that 4,970 Bosnian Muslims were unlawfully killed, the Trial Chamber employed a presumption that all those persons identified in the mass graves were summarily executed.''
276 Trial Judgement, paras 566, 570.
277 Trial Judgement, paras 49-62, 344, 350-351, 367-376, 397-401, 435-439, 454-458, 478-481, 504-508, 525, 532, 537, 541, 545-546, 550, 569.
278 Trial Judgement, paras 309, 313-314, 345-348, 381, 396-397, 487-488.
''99. Insofar as Tolimir suggests that the victims in the mass graves located near the movement of the column were those of ABiH soldiers killed in combat, this argument is rejected. The Appeals Chamber reiterates that in reaching its findings on the incidents in the Indictment, the Trial Chamber did not exclusively rely on the fact that individual victims were recovered from mass graves, but based its findings on a range of evidence.279 The Appeals Chamber furthermore notes that in concluding that only a minority of deaths of the Srebrenica-related missing could be attributed to combat, suicide and other causes, the Trial Chamber explicitly considered the evidence referred to by Tolimir that, in his submission, supported a finding that up to 3,000 Bosnian Muslims died as a result of these causes.280 Contrary to Tolimir’s submission, the Trial Chamber explained its reasons for not relying on this evidence – in its view, the assessments made in the immediate aftermath of the fall of Srebrenica were based on patchy information and rough estimates.281 Tolimir fails to show that no reasonable trial chamber could have relied on the demographic and forensic evidence, together with the large amount of testimony related to specific incidents, in order to make findings on how the victims were killed.282''
279 See supra, para. 98.
280 Trial Judgement, paras 592-594.
281 Trial Judgement, para. 593.
282 Trial Judgement, para. 594.
''100. The Appeals Chamber further dismisses Tolimir’s argument that the Trial Chamber should have estimated the number of people killed as a result of combat, infighting in the column, or suicide. The Trial Chamber was under no obligation to make such a finding in assessing the counts under the Indictment. As previously discussed, the Trial Chamber made detailed findings on the number of people unlawfully killed in each incident charged in the Indictment and then made a calculation of the overall number of victims on the basis of these findings.283 In view of the cautious and conservative approach of the Trial Chamber in making findings on the number of victims for each incident, there was no reason for the Trial Chamber to make additional findings on the number of people who died in other circumstances.''
283. See supra, para. 98.
''101. The Appeals Chamber notes that the Trial Chamber explicitly considered and rejected the two court declarations concerning persons killed in combat whose remains were found in mass graves.284 In this context, having evaluated Prosecution Witness demographer Ewa Tabeau’s explanation as to the reliability of the court declarations vis-à-vis the ICMP data, the Trial Chamber reasonably concluded that in cases of inconsistencies between DNA-based identification of Srebrenica-related missing and court declarations regarding the same persons, the DNA-based identification is more reliable.285''
284 Trial Judgement, para. 60 and n. 151.
285 Trial Judgement, para. 60.
''102. Similarly, the Trial Chamber explicitly considered and rejected the ABiH records as conclusive proof that 220 individuals associated with the ABiH had died prior to July 1995, 140 of whom were identified by the ICMP in Srebrenica-related graves.286 It specified that following clarification by the Bosnian authorities and findings by the ICMP “most of the 220 cases were indeed Srebrenica-related” and that the scale of any inconsistency is “small”.287''
286 Trial Judgement, para. 61.
287 Trial Judgement, para. 61.
''103. With regard to Defence Exhibit 320, a report of the Dutch Government on a mass grave found in Srebrenica, the Appeals Chamber notes that the report neither confirms nor denies that the seven Bosnian Muslim victims were summarily executed and hence does not support Tolimir’s argument that not each and every grave connected with Srebrenica contains the remains of those who were summarily executed. In any event, Tolimir fails to demonstrate that the Trial Chamber erred by not explicitly considering this evidence in evaluating the number of individuals killed in the incidents specified in the Indictment.''
''111. The Appeals Chamber notes that the Trial Chamber rejected Tolimir’s argument based on the WHO figures on a number of bases.311 Apart from his argument about how approximate the WHO figures may be, Tolimir fails to address why the Trial Chamber’s other reasons for rejecting this argument – in particular, the limited value of the data due to the absence of data on individuals and the fact that Tolimir’s approach ignores the significant amount of evidence related to the killings and forensic analysis – amount to an error. Tolimir further fails to substantiate his allegations that there is “evidence that until January throughout July, some people left Srebrenica” and that no additional refugees arrived in the enclave.312 The Appeals Chamber observes that Defence Exhibit 117 containing data on a number of municipalities313 is not comparable to the definition of “Srebrenica-related missing” employed by the Trial Chamber.314 Tolimir thus fails to demonstrate how Defence Exhibit 117 could undermine the credibility of the data relied upon by the Trial Chamber. In view of the above, the Appeals Chamber dismisses this argument.''
311 Trial Judgement, para. 574. In particular, the Trial Chamber pointed to the fact that the data concerns a time six months prior to the fall of the enclave; the difficult conditions existing at that time; and the absence of data on specific individuals.
312 Appeal Brief, para. 129.
313 Defence Exhibit 117 (Srebrenica Municipality Civilian Protection Staff figures), Table 1. This data relates to Srebrenica, Bratunac, Vlasenica, Zvornik, Han Pijesak, Viegrad, and Rogatica municipalities.
314 Trial Judgement, para. 51, n. 120, citing Prosecution Exhibit 1776 (2009 Integrated Report), Annex 2. The Trial Chamber considered data related to Srebrenica, Bratunac, Vlasenica, Zvornik, Han Pijesak, Rogatica Bijeljina, Kalesija, Kladanj, Šekovići as well as Bajina Bašta, Ljubovija, and Valjevo.
''112. The Appeals Chamber further observes that the numbers of Srebrenica-related missing identified by DNA analysis were used exclusively by the Trial Chamber to determine the numbers of persons recovered from gravesites, and not to establish the cause of death of these persons.317 The Trial Chamber made specific reference to the definition for place and date of disappearance used by the ICMP.318 Since the date of disappearance and the date of death are separate from the question of whether a person’s remains were located in a specific gravesite, and since the DNA methodology was used by the Trial Chamber exclusively to determine that a person’s remains were found in a specific gravesite, the Appeals Chamber finds that the arguments advanced by Tolimir are irrelevant to the reliability of the DNA identification methodology as such. Tolimir fails to demonstrate an error on the part of the Trial Chamber in rejecting his arguments at trial and these arguments are therefore dismissed.''
317 Trial Judgement, para. 58.
318 Trial Judgement, n. 120
''114. The Appeals Chamber further notes the Trial Chamber’s finding that the demographic profile of the Srebrenica-related missing that resulted from Brunborg and Tabeau’s work corresponded with what is independently known of those people who were separated at Potočari or captured from the column.330 The Trial Chamber found, on the basis of eyewitness accounts, that individuals were killed by Bosnian Serb Forces.331 These accounts include estimates on the number of people killed.332 Bećirović’s statement that “when they started naming the persons who had been seen to be killed, I saw that these persons had been with us in the Drć sector, so I could not accept all this information as accurate” describes the information he was receiving while he was still in the column.333 At most, this evidence indicates that the information Bećirović was receiving at the time was not reliable as to the identity of persons from the column who had been killed. However, it does not undermine the credibility of the OTP lists. The Appeals Chamber therefore finds that it was reasonable for the Trial Chamber to find the lists maintained by the OTP of Srebrenica-related missing with integrated DNA identifications reliable. Consequently, Tolimir’s arguments are dismissed.''
330 Trial Judgement, para. 53.
331 See Trial Judgement, paras 309, 346, 396-397, 449, 474.
332 See Trial Judgement, para. 376, citing eyewitnesses Predrag Čelić’s assessment that the column of prisoners who went by foot from Sandići Meadow to Kravica Warehouse numbered between approximately 600 and 800 (Prosecution Exhibit 1633 (Transcript of testimony of Predrag Čelić in the Prosecutor v. Popović et al. case, dated 28 June 2007), p. 13477) and PW-006’s statement that two busloads also arrived there (Prosecution Exhibit 2797, (Transcript of testimony of PW-006 in the Prosecutor v. Popović et al. case, dated 6 February 2007), pp. 6978- 6981). See also infra, paras 119-122.
333 Defence Exhibit 1 (statement of Ramiz Bećirović dated 11 August 1995), p. 15.
''115. Tolimir submits that the Trial Chamber erred in fact in calculating the number of Bosnian Muslims killed at four incidents specified in the Indictment, namely the killings at the Branjevo Military Farm, the killings at Pilica Cultural Centre, the 10 Bosnian Muslim men taken from the Milići Hospital (“10 Milići Prisoners”), and the four Bosnian Muslim men who survived the events at the Branjevo Military Farm.334''
334 Appeal Brief, paras 93-102.
''120. With respect to Tolimir’s claim that the Trial Chamber should not have relied on PW-073’s estimate that there were between 1,000 and 1,500 victims given that he was trapped, the Appeals Chamber notes PW-073’s evidence that: (i) prior to reaching his group’s designated execution spot, they “passed through the ranks of the dead, through the lines of dead”;345 (ii) seven columns of people were subsequently executed;346 and (iii) while concealed in the shrubbery for several hours, he could see the soldiers walking around the dead.347 Tolimir fails to show that no reasonable trial chamber could have relied upon PW-073’s estimate.
345 Prosecution Exhibit 48 (under seal version of transcript of testimony of PW-073 in the Prosecutor v. Popović et al. case, dated 6 and 7 September 2006), p. 1202.
346 Prosecution Exhibit 48 (under seal version of transcript of testimony of PW-073 in the Prosecutor v. Popović et al. case, dated 6 and 7 September 2006), p. 1203.
347 Prosecution Exhibit 48 (under seal version of transcript of testimony of PW-073 in the Prosecutor v. Popović et al case, dated 6 and 7 September 2006), p. 1205.
''121. In regard to the contention that it was not possible for even 1,000 men to be killed in the circumstances described by the Trial Chamber, the Appeals Chamber notes the Trial Chamber’s findings that additional soldiers arrived to assist with executions (amounting to 18 in total)348 that the soldiers used machine guns followed by single gun shots,349 and that the executions continued for five to six hours.350 It is also noted that the timings given by the Trial Chamber were only approximations.351 Moreover, while the figures provided by Erdemovic and PW-073 were estimates, they corroborate each other. In the view of the Appeals Chamber, it was reasonable for the Trial Chamber to conclude, on the basis of the eyewitness testimony, that between 1,000 and 1,500 persons were executed within a time frame of five to six hours.''
348 Trial Judgement, para. 494.
349 Trial Judgement, para. 493.
350 Trial Judgement, para. 494.
351 See Trial Judgement, para. 494. In particular, the Appeals Chamber notes that the Trial Chamber found that the killing of Bosnian Muslims lasted from “approximately 10:00 a.m. until 3:00 or 4:00 p.m.”. Trial Judgement, para. 494.
''122. Furthermore, the Trial Chamber found that its calculation of the number of victims of the Branjevo Military Farm incident based on eyewitness testimony was corroborated by forensic evidence, which established that at least 1,656 individuals were killed at the Branjevo Military Farm and Pilica Cultural Centre on 16 July 1995.352 The Trial Chamber relied on the 1,656 figure in all its subsequent factual and legal findings regarding the number of those killed at the Branjevo Military Farm and Pilica Cultural Centre.353 Tolimir fails to show any error on the part of the Trial Chamber. His argument is thus dismissed.''
352 Trial Judgement, para. 508.
353 See Trial Judgement, paras 568, 570 (overall number of those unlawfully killed), 721 (murder), 727, 729 (extermination), 751-752 (killing members of the group as acts of genocide), 862 (killings as acts of persecution), 1217 (sentencing).
''123. The Trial Chamber found that on 16 July 1995, Bosnian Serb Forces killed approximately 500 Bosnian Muslim men at the Pilica Cultural Centre.354 The Appeals Chamber notes that Tolimir offers no support for his allegation that the Trial Chamber erred in making this finding.355 This argument is therefore summarily dismissed.''
354 Trial Judgement, paras 496, 500.
355 Appeal Brief, para. 93.
''126. The Appeals Chamber recalls that a body need not be recovered in order to establish that a person has been killed and that a victim’s death can be inferred circumstantially from all of the evidence presented to the trial chamber.360 In order to challenge a trial chamber’s assessment of circumstantial evidence on appeal, an appellant must show that no reasonable trier of fact could have found that the conclusion reached by the trial chamber was the only reasonable inference.361 The Appeals Chamber further recalls that hearsay evidence is in principle admissible,362 although in assessing its probative value, the surrounding circumstances must be considered.363''
360 Kvočka et al. Appeal Judgement, para. 260.
361 Lukić and Lukić Appeal Judgement, para. 149.
362 Lukić and Lukić Appeal Judgement, para. 303; Blakić Appeal Judgement, para. 656, n. 1374. See Popović et al. Appeal Judgement, paras 1276, 1307.
363 Popović et al. Appeal Judgement, para. 1307; Lukić and Lukić Appeal Judgement, para. 303; Haradinaj et al. Appeal Judgement, paras 85-86. See also Karera Appeal Judgement, para. 39.
''127. The Trial Chamber found that, at some time after 23 July 1995, members of the Bosnian Serb Forces killed 10 Bosnian Muslims who had been medically treated at the Standard Barracks of the Zvornik Brigade following their transfer from the Milići Hospital.364 The Trial Chamber based this finding on: (i) evidence that Vujadin Popović came to the Standard Barracks on 23 July 1995 to deal with the captured prisoners; (ii) testimony from PW-057 that, according to Vinko Pandurević, the men were taken away after Popović arrived with an order from Mladic that they should be liquidated;365 (iii) the evidence of Dr. Zoran Bergović, a doctor working in the Zvornik Brigade Medical Centre, that he was informed that the wounded had been taken away early one morning without their medical records or any of the medical staff to escort them contrary to standard practice;366 and (iv) the fact that the names of all 10 men appear in the most recent list of persons reported as missing or dead after the takeover of Srebrenica.367''
364 Trial Judgement, paras 528-529, 533.
365 Trial Judgement, paras 531, 533.
366 Trial Judgement, para. 531, citing Prosecution Exhibit 1638 (Transcript of Zoran Bergović’s testimony in the Prosecutor v. Popović et al. case, dated 21 March 2007) p. 9135. The Appeals Chamber notes that the transcript was tendered into evidence pursuant to Rule 92bis(A) of the Rules and that, therefore, Dr. Bergović did not appear as a witness in the trial proceedings and was not subject to cross-examination by Tolimir. However, the Appeals Chamber does not find a reason for the Trial Chamber to have doubted the credibility of Dr. Bergović’s evidence regarding the fact that he was informed that the 10 Bosnian Muslim men had been taken away early in the morning. This statement corroborates PW-057’s testimony that a duty officer told him that the wounded had been taken away early in the morning. Trial Judgement, para. 531, n. 2367, citing Prosecution Exhibit 2279 (Transcript of PW-057’s testimony in the Prosecutor v. Popović et al. case, dated 24 September 2007), pp. 15915-15916.
367 Trial Judgement, para. 532, citing Prosecution Exhibit 1777 (2009 List of Missing), pp. 29, 33, 66, 68, 92, 113, 115, 177, 182, 202 (page references made to page numbers on eCourt), Prosecution Exhibit 1940.
''128. With respect to the testimony of PW-057, the Appeals Chamber notes that the Trial Chamber specified that it had taken additional care in evaluating PW-057’s evidence on the basis of the circumstances in which it was given and in the case as a whole, and had only given weight to it where it had been corroborated or otherwise deemed reliable. In light of this, the Appeals Chamber is satisfied that the Trial Chamber exercised due caution in accepting PW-057’s evidence in regard to the incident. Moreover, given the corroborative evidence regarding the fate of the 10 Milići Prisoners as outlined above, the Appeals Chamber considers that a reasonable trier of fact could have reached the conclusion that the only reasonable inference from the evidence was that the 10 Milići Prisoners were killed by Bosnian Serb Forces. Tolimir’s argument is dismissed.''
''131. The Trial Chamber found that four Bosnian Muslims who had survived the events at the Branjevo Military Farm were captured and held in the Detention Unit of the Zvornik Brigade.371 The Trial Chamber concluded that “in the context of the events following the fall of Srebrenica and in view of the circumstances of their disappearance”, members of the Bosnian Serb Forces killed them on or shortly after 26 July 1995.372 The Trial Chamber based its finding that they were killed while in the custody of the Zvornik Brigade on: (i) the evidence of Nebojša Jeremić, a member of the Crime Prevention Service of the Zvornik Brigade, who took statements from the four men;373 (ii) documentary evidence of such statements; (iii) documentary evidence of a judgement handed down to two members of the VRS who were found guilty of not reporting the discovery of the men; and (iv) the evidence of PW-057 of a conversation regarding the four men between Drago Nikolić and Vinko Pandurević.374 In coming to its finding that the men had been killed, the Trial Chamber also relied on the fact that the names of the four men are included in the most recent list of persons missing or dead after the take-over of Srebrenica.375''
371 Trial Judgement, paras 539-541.
372 Trial Judgement, para. 541.
373 Trial Judgement, para. 540, citing Prosecution Exhibit 1280 (Transcript of testimony of Nebojša Jeremić in the Prosecutor v. Popović et al. case, dated 24 and 25 April 2007), p. 10430.
374 Trial Judgement, para. 540, and accompanying footnotes.
375 Trial Judgement, para. 541.
''132. As noted above, the Trial Chamber was appropriately cautious in its reliance on PW-057’s testimony.376 Moreover, PW-057’s evidence was corroborated by other relevant evidence as outlined above, which established the circumstances of the men’s disappearance. The Appeals Chamber notes that the Trial Chamber carefully evaluated information about the identities of the four Bosnian Muslim men and matched their details with the testimony provided by PW-073, who gave a description of four Bosnian Muslim men who had survived the killings at the Branjevo Military Farm.377 The fact that the four captives were in fact survivors of the executions at the Branjevo Military Farm is corroborated by PW-057’s testimony that Nikolić told the commander of the Zvornik Brigade, Vinko Pandurević, that he had learned that they had escaped from one of the execution sites in Pilica.378''
376 See supra, para. 128.
377 Trial Judgement, n. 2396.
378 Trial Judgement, n. 2399, citing Prosecution Exhibit 2279 (Transcript of PW-057’s testimony in the Prosecutor v. Popović et al. case, dated 27 September 2007), pp. 15916-15917.
''133. In the view of the Appeals Chamber, Tolimir has not shown that a reasonable trial chamber could not have found that the only reasonable inference from the evidence was that these four men, survivors of a mass execution of Bosnian Muslim men by Bosnian Serbian Forces, who had found themselves again in the hands of such forces shortly after their escape, and who were never seen again, were subsequently killed by those same forces. Accordingly, Tolimir’s challenge is dismissed.''
