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Draft Confidential RUF Apppeal Judgment

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Draft Confidential RUF Apppeal Judgment Bosna and Hercegovina Босна и Херцеговина Court of Bosnia and Herzegovina Case Number: S1 1 K 003472 12 Kžk Date: 15 February 2013 Before the Appellate Panel composed of: Judge Mirko Božović, Presiding Judge Tihomir Lukes, Panel member Judge Redžib Begić, Panel member BiH PROSECUTOR'S OFFICE v. the accused ZORAN BABIĆ, MILORAD ŠKRBIĆ, DUŠAN JANKOVIĆ AND ŽELJKO STOJNIĆ SECOND-INSTANCE VERDICT Prosecutor of the BiH Prosecutor's Office: Slavica Terzić Defense Counsel for the accused persons: Defense Counsel for Zoran Babić, Attorney Slavica Bajić Defense Counsel for Milorad Škrbić, Attorney Slobodan Perić Defense Counsel for Dušan Janković, Attorney Ranko Dakić Defense Counsel for Željko Stojnić, Attorney Senad Kreho the Court of Bosnia and Herzegovina, Sarajevo, ul. Kraljice Jelene br. 88 Telefon: 033 707 100, 707 596; Fax: 033 707 225 TABLE OF CONTENTS 1 V E R D I C T ....................................................................................................................... 7 R E A S O N I N G ............................................................................................................. 14 I. EVIDENTIARY PROCEEDINGS .................................................................................... 14 II. PROCEDURAL DECISIONS ......................................................................................... 15 A. EXCLUSION OF THE PUBLIC ............................................................................................ 15 B. WITNESS PROTECTION MEASURES .................................................................................. 15 C. ADJOURNMENT OF HEARING LONGER THAN 30 DAYS ........................................................ 16 D. HEARING WITNESSES IN THE PRESENCE OF LAWYERS AS ADVISORS ................................... 17 E. DECIDING ON MOTIONS TO ADDUCE EVIDENCE ................................................................. 18 1. Deciding on evidence adduced during the first-instance proceedings .................... 18 2. Deciding on the Prosecutor’s motions to adduce new evidence ............................. 18 3. Deciding on the Motion to adduce new evidence as proposed by the Defense for the Accused Zoran Babić ...................................................................................... 19 4. Deciding on the Motion to adduce new evidence as proposed by the Defense for Milorad Škrbić ....................................................................................................... 20 5. Deciding on the Motion filed by the Defense for the Accused Dušan Janković to adduce new evidence ........................................................................................... 22 6. Deciding on the Motion filed by the Defense for the Accused Željko Stojnić to adduce new evidence ........................................................................................... 25 7. Court evidence ....................................................................................................... 25 8. Established facts .................................................................................................... 25 III. CLOSING ARGUMENTS ............................................................................................. 26 A. PROSECUTOR’S CLOSING ARGUMENT .............................................................................. 26 B. DEFENSE’S CLOSING ARGUMENTS .................................................................................. 28 (a) Closing argument by Defense Counsel for the Accused Zoran Babić ..................... 28 (b) Closing argument by Defense Counsel for the Accused Milorad Škrbić ................. 29 (c) Closing argument by Defense Counsel for the Accused Dušan Janković ............... 30 (d) Closing argument by Defense Counsel for the Accused Željko Stojnić ................... 32 S1 1 K 003472 12 Kžk 2 15.02.2013. IV. APPLICABLE LAW ..................................................................................................... 33 V. STANDARDS OF PROOF ............................................................................................ 37 A. GENERAL CONSIDERATIONS ........................................................................................... 37 B. WITNESS CREDIBILITY .................................................................................................... 40 (a) Witness statements by Luka Gnjatović and Vitomir Lakić as Defense witnesses (given before the Appellate Panel) ......................................................................... 42 VI. COURT FINDINGS – CONVICTION ............................................................................ 44 A. CRIMES AGAINST HUMANITY – GENERAL ELEMENTS OF THE CRIMINAL OFFENSE ................. 44 (a) that they were part of a widespread or systematic attack ........................................ 44 (b) that the attack was aimed against a civilian population, .......................................... 44 (c) that the accused knew of the attack and that their actions were part of the attack (nexus) ................................................................................................................... 44 1. Existence of a widespread and/or systematic attack .............................................. 44 (a) Widespread nature of the attack ............................................................................. 46 (b) Systematic nature of the attack ............................................................................... 48 2. Attack was aimed at the civilian population ............................................................ 52 3. Actions taken by the accused were part of the attack and they knew of the attack (nexus) .................................................................................................................. 52 VII. UNDERLYING CRIME - PERSECUTION ................................................................... 57 a. Use of the term Bosniak .................................................................................... 61 VIII. ISSUES RELATIVE TO THE FORMING OF THE INTERVENTION PLATOON, ITS TASKS, THE ACCUSED AS ITS MEMBERS AND THE PARTICIPATION OF THE INTERVENTION PLATOON MEMBERS IN THE ESCORT OF CONVOY ON 21 AUGUST 1992 ............................................................................................................. 61 (a) Forming of the Intervention Platoon, tasks and role of the Intervention Platoon members ................................................................................................. 61 (b) Convoy of 21 August 1992 ................................................................................... 64 (c) Participation of the Accused in the escort of the convoy of 21 August 2013 .. 67 IX. ACTUS REUS OF PERSECUTION AS AN UNDERLYING OFFENSE OF CRIMES AGAINST HUMANITY ................................................................................................. 77 A. LOOTING IN THE CONVOY OF 21 AUGUST 1992 AS ACTUS REUS OF THE CRIME OF PERSECUTION ..................................................................................... 77 S1 1 K 003472 12 Kžk 3 15.02.2013. 1. The method of looting ............................................................................................. 78 2. Participation of the Accused in the looting of civilians; the knowledge and intent on the part of the Accused .................................................................................... 83 B. MURDER AS ACTUS REUS OF PERSECUTION ...................................................... 86 1. The convoy’s stopover by the Ilomska River .......................................................... 87 2. Separation of the men ............................................................................................ 88 3. Escorting the Men to the Execution Site ................................................................. 96 4. The execution of men at Korićanske Stijene ......................................................... 100 (a) Execution of the men from the second bus ........................................................... 100 (b) Execution of the men from the first bus ................................................................. 103 (c) “Checking” the men who survived the execution by firing squad ........................... 106 5. Return to Prijedor ................................................................................................. 109 (a) Return and stopover in Kneževo ........................................................................... 109 (b) Fleeing to Kozara.................................................................................................. 112 6. Clearing up the terrain .......................................................................................... 113 7. The number of victims .......................................................................................... 115 X. MODE OF COMMISSION AND GUILT OF THE ACCUSED ...................................... 121 A. KNOWLEDGE AND INTENT OF THE ACCUSED ................................................................... 121 1. The Appellate Panel finds that the joint criminal enterprise charged in the Indictment has not been proved ......................................................................... 121 2. Co-perpetration ..................................................................................................... 125 (a) On co-perpetration as a mode of accomplice liability ...........................................
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