5152 Case No. IT-05-87-A General Ojdanic’s Motion Submitting Amended Appeal brief 11 December 2009 TR IT-05-87-A A5152 - A4844 THE INTERNATIONAL CRIMINAL TRIBUNAL 11 December 2009 FOR THE FORMER YUGOSLAVIA CASE No. IT-05-87-A IN THE APPEALS CHAMBER Before: Judge Liu Daqun, Presiding Judge Mehmet Güney Judge Fausto Pocar Judge Andrésia Vaz Judge Theodor Meron Registrar: Mr. John Hocking Date Filed: 11 December 2009 THE PROSECUTOR v. NIKOLA SAINOVIC DRAGOLJUB OJDANIC NEBOJSA PAVKOVIC VLADIMIR LAZAREVIC SRETEN LUKIC Public with Confidential Annex GENERAL OJDANIC’S MOTION SUBMITTING AMENDED APPEAL BRIEF The Office of the Prosecutor: Mr. Peter Kremer QC Counsel for General Ojdanic: Mr. Tomislav Visnjic Mr. Peter Robinson Mr. Russell Hopkins Mr. Toma Fila and Mr. Vladimir Petrovic for Nikola Sainovic Mr. John Ackerman and Mr. Aleksander Aleksic for Nebojsa Pavkovic Mr. Mihaljo Bakrac and Mr. Duro Cepic for Vladimir Lazarevic Mr. Branko Lukic and Mr. Dragan Ivetic for Mr. Sreten Lukic 1 The Prosecutor v Sainovic et al. Case No. IT-05-87-A 5151 Case No. IT-05-87-A General Ojdanic’s Motion Submitting Amended Appeal brief 11 December 2009 1. On 4 December 2009, the Appeals Chamber granted in part General Ojdanic’s Motion to Amend his Amended Notice of Appeal of 29 July 2009.1 The Appeals Chamber ordered General Ojdanic to file an amended appellant’s brief consisting of no more than 48,000 words no later than 11 December 2009.2 2. Pursuant to the Appeals Chamber’s Decision, General Ojdanic hereby submits his Amended Appeal Brief and a Supplemental Book of Authorities. 3. The Appeals Chamber emphasized that the amendments must be clearly identified and strictly limited to the incorporation of the newly advanced ground of appeal.3 4. Annex A to this Motion is a document comparison clearly identifying the amendments made to General Ojdanic’s original Appeal Brief as filed on 23 September 2009. 5. The amendments are strictly limited to the incorporation of the newly advanced ground of appeal authorized by the Appeals Chamber in its Decision. In summary, the amendments made are: a. The inclusion of the new Sub-ground 3(D) titled: “the Trial Chamber failed to apply the purpose standard for the mens rea of aiding and abetting established by international law”. This new Sub-ground appears at paragraphs [280 a-cc] of the Amended Appeal Brief. Whilst inserting this new Sub-ground in what is considered to be the appropriate place, General Ojdanic has retained the paragraph numbering of his original Appeal Brief in order to facilitate the prosecution’s response and the Appeals Chamber’s determination of all subsequent grounds of appeal. Footnotes to Ground 4(A) onwards have been renumbered in light of the insertion of the new Sub-ground 3(D). 1 Prosecutor v Sainovic et al, Case No. IT-07-87-A, Decision on Dragoljub Ojdanic’s Second Motion to Amend his Notice of Appeal (4 December 2009) (“Appeals Chamber Decision”). 2 Appeals Chamber Decision, para. 22. 3 Appelas Chamber Decision, para. 21. 2 The Prosecutor v Sainovic et al. Case No. IT-05-87-A 5150 Case No. IT-05-87-A General Ojdanic’s Motion Submitting Amended Appeal brief 11 December 2009 b. The amendment of the contents pages to reflect the insertion of Sub-Ground 3(D) and consequential amendments to page numbers. c. The amendment of the date and word count, to reflect the new word count of 47,927. 6. Annex B to this Motion is a clean version of General Ojdanic’s Amended Appeal Brief. .. Relief sought 7. Having complied with the Appeals Chamber’s Decision, General Ojdanic respectfully requests that the Appeals Chamber accept as validly filed the Amended Appeal Brief which appears as Annex B to this Motion. Dated: 11 December 2009 Word Count: 519 Respectfully submitted, TOMISLAV VISNJIC Lead counsel for General Ojdanic PETER ROBINSON Co-counsel for General Ojdanic 3 The Prosecutor v Sainovic et al. Case No. IT-05-87-A 5149 Case No. IT-05-87-A General Ojdanic’s Motion Submitting Amended Appeal brief 11 December 2009 Annex A 4 The Prosecutor v Sainovic et al. Case No. IT-05-87-A 5148 Case No. IT-05-87-A General Ojdanic’s Motion Submitting Amended Appeal brief 11 December 2009 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA CASE No. IT-05-87-A IN THE APPEALS CHAMBER Before: Judge Liu Daqun, Presiding Judge Mehmet Güney Judge Fausto Pocar Judge Andrésia Vaz Judge Theodor Meron Registrar: Mr. John Hocking Date Filed: 23 September11 December 2009 THE PROSECUTOR v. NIKOLA ŠAINOVIĆ DRAGOLJUB OJDANIĆ NEBOJŠA PAVKOVIĆ VLADIMIR LAZAREVIĆ SRETEN LUKIĆ Public with Confidential Annex GENERAL OJDANIĆ’S AMENDED APPEAL BRIEF The Office of the Prosecutor: Mr. Paul Rogers Counsel for General Ojdanić: Mr. Tomislav Višnjić Mr. Peter Robinson Mr. Russell Hopkins Mr. Toma Fila and Mr. Vladimir Petrović for Nikola Šainović Mr. John Ackerman and Mr. Aleksander Aleksić for Nebojša Pavković Mr. Mihaljo Bakrač and Mr. Ðuro Čepic for Vladimir Lazarević Mr. Branko Lukić and Mr. Dragan Ivetić for Mr. Sreten Lukić 5 The Prosecutor v Sainovic et al. Case No. IT-05-87-A 5147 Case No. IT-05-87-A General Ojdanic’s Motion Submitting Amended Appeal brief 11 December 2009 Table of Contents I. INTRODUCTION.........................................................................................................................4 II. GROUND ONE: THE TRIAL CHAMBER ERRED IN LAW AS TO THE ACTUS REUS OF AIDING AND ABETTING ...........................................................................................................6 A. Sub-Ground 1(A): the Trial Chamber failed to require that General Ojdanić’s acts be specifically directed toward the indictment crimes............................................................................7 B. Sub-ground 1(B): the acts which the Trial Chamber held to satisfy the actus reus of aiding and abetting were acts that General Ojdanić had to perform for reasons unrelated to any crimes such that the Trial Chamber imposed a standard of criminal liability that no reasonable Trial Chamber should impose .....................................................................................................................14 C. Sub-ground 1(C): the Trial Chamber reversed the burden of proof and placed an insurmountable burden upon General Ojdanić by requiring his actions to have been “sufficient” to remedy problems in subordinate commands and thereby holding that “insufficiency” resulted in criminal liability ....................................................................................24 D. Sub-ground 1(D): the Trial Chamber failed to apply the correct standard in relation to acts performed after the Indictment crimes.............................................................................................26 E. Sub-ground 1(E): the Trial Chamber applied the wrong standard in holding that omissions can constitute the actus reus of aiding and abetting ........................................................................31 III. GROUND TWO: THE TRIAL CHAMBER ERRED IN FACT AS TO THE ACTUS REUS OF AIDING AND ABETTING .........................................................................................................35 A. Sub-ground 2(A): the Trial Chamber failed to give appropriate weight to evidence which demonstrated that General Ojdanić did not aid and abet forcible displacements........................35 B. Ground 2(B): the Trial Chamber failed to consider that the acts General Ojdanić performed were acts that he had to perform to defend his country..................................................................50 C. Sub-ground 2(C): the Trial Chamber erred in relation to the arming and use of the non- Albanian civilian population and reached unreasonable conclusions............................................50 D. Sub-ground 2(D): the Trial Chamber reached unreasonable conclusions regarding the replacement of high-level VJ personnel ............................................................................................55 E. Sub-ground 2(E): the Trial Chamber erred by holding that General Ojdanić approved breaches of the October Agreements ................................................................................................63 IV. GROUND THREE: THE TRIAL CHAMBER ERRED IN LAW AS TO THE MENS REA OF AIDING AND ABETTING .........................................................................................................64 A. Sub-Ground 3(A): the Trial Chamber failed to require that General Ojdanić had knowledge of the specific crimes for which he was convicted ............................................................................65 6 The Prosecutor v Sainovic et al. Case No. IT-05-87-A 5146 Case No. IT-05-87-A General Ojdanic’s Motion Submitting Amended Appeal brief 11 December 2009 B. Sub-Ground 3(B): the Trial Chamber applied the wrong legal standard by equating knowledge of instances of crimes against the civilian population with knowledge of Indictment crimes ...................................................................................................................................................77 C. Sub-ground 3(C): the Trial Chamber failed to apply any legal standard in finding that excessive force was used by the VJ in 1998 such that General Ojdanić was on notice of likely deportation and forcible transfer should the VJ be used in Kosovo in 1999.................................83 D. Sub-ground 3(D): the Trial Chamber failed to apply the purpose standard for the mens rea of aiding and abetting established by international law............................................................................91