IT-04-74-A 23950 A23950 - A22373 29 November 2017 SF UNITED NATIONS International Tribunal for the Case No.: IT-04-74-A Prosecution of Persons Responsible for Serious Violations of Date: 29 November 2017 International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Original: English IN THE APPEALS CHAMBER Before: Judge Carmel Agius, Presiding Judge Liu Daqun Judge Fausto Pocar Judge Theodor Meron Judge Bakone Justice Moloto Registrar: Mr. John Hocking Judgement of: 29 November 2017 PROSECUTOR v. JADRANKO PRLIC BRUNO STOJIC SLOBODAN PRALJAK MILIVOJ PETKOVIC VALENTIN CORIC BERISLAV PUSIC PUBLIC WITH CONFIDENTIAL ANNEXC JUDGEMENT Volume I The Office of the Prosecutor: Mr. Douglas Stringer Ms. Laurel Baig Ms. Barbara Goy Ms. Katrina Gustafson Counsel for the Accused: Mr. Michael G. Karnavas and Ms. Suzana Tomanovic for Mr. Jadranko Prlic Ms. Senka Nozica and Mr. Karim A. A. Khan for Mr. Bruno Stojic Ms. Nika Pinter and Ms. Natacha Fauveau-Ivanovic for Mr. Slobodan Praljak Ms. Vesna Alaburic and Mr. Davor Lazic for Mr. Milivoj Petko vie Ms. Dijana Tomasegovic-Tomic and Mr. Drazen PIavec for Mr. Valentin Corie Mr. Fahrudin Ibrisimovic and Mr. Roger Sahota for Mr. Beris1av Pusic 23949 TABLE OF CONTENTS VOLUME I I. INTRODUCTION 1 A. BACKGROUND 1 B. THE ApPEALS 5 1. Prlic's appeaL 5 2. Stojic's appeal 6 3. Praljak's appeal 6 4. Petkovic's appeal 6 5. Corie's appeal 7 v." 1 . 7 6. P USIC S appea ,' .. 7. Prosecution's appeal 7 C. ApPEAL HEARING 8 II. STANDARD OF APPELLATE REVIEW.............................................................•...................9 III. CHALLENGES CONCERNING FAIR TRIAL AND THE INDICTMENT 13 A. ApPLICABLE LAW 13 1. Applicable law on the Right to a Fair Trial 13 2. Applicable law on the Indictment.. 13 B. ALLEGED ERRORS CONCERNING RELIANCE ON EVIDENCE RELATED TO FRANJO TUBMAN (STonc's GROUND 17) 15 C. ALLEGED ERRORS CONCERNING PRLIC'S RIGHT TO HAVE ADEQUATE TIME AND FACILITIES FOR THE DEFENCE (PRLIC'S GROUND 7) 17 D. ALLEGED ERRORS CONCERNINGTHEJCE THEORY (Srnnc's GROUND 13, PETKOVIC'S SUB-GROUND 3.1) 20 1. Arguments of the Parties 22 2. Analysis 24 E. ALLEGED ERROR CONCERNING THE ATTACK ON THE VILLAGE OF SKROBUCANI (PETKOVIC'S SUB-GROUND 5.2.2.1 IN PART) 29 F. ALLEGED ERRORS IN CONCLUDING THAT THE EXISTENCE OF A STATE OF OCCUPATION WAS PLEADED (CORIC'S SUB-GROUND 3.2.1) 30 G. ALLEGED ERRORS REGARDING NOTICE OF THE PROTECTED STATUS OF MUSLIM HVO MEMBERS (CORIC'S GROUND 4 IN PART) 32 H. ALLEGED ERRORS CONCERNING CORIC'S NOTICE OF ALLEGATIONS REGARDING HIs RESPONSIBILITY AS MINISTER OF THE INTERIOR (CORIC'S GROUND 11IN PART) 34 1. Arguments of the Parties : 34 2. Analysis 36 (a) Whether the Indictment was defective 36 (b) Whether the defect in the Indictment was cured 39 (c) Whether Coric suffered any prejudice 40 I. CONCLUSION 43 IV. ADMISSIBILITY AND WEIGHT OF THE EVIDENCE 44 A. INTRODUCTION 44 B. THE MLADIC DIARIES (PRLIC'S GROUND 5, stone's GROUND 16, PRALJAK'S GROUND 50) .44 1. Introduction 44 2. Arguments of the Parties 44 (a) Prlic's, Stojic's, and Praljak's submissions 44 (b) The Prosecution's response 47 3. Analysis : 49 (a) Admission into evidence ofextracts from the Mladic Diaries in the reopening of the Prosecution's case 49 i Case No. IT-04-74-A 29 November 2017 23948 (b) Denial of Defence requests to reopen their cases and present evidence in rebuttal.. 50 (c) The Trial Chamber's assessment of the Mladic Diaries in the Trial Judgement.. 55 4. Conclusion 58 C. ADMISSION OF EVIDENCE 58 1. Denial of admission of Stojic's evidence (Stojic's Ground 5) 58 2. Denial of admission ofPraljak's evidence (Praljak's Ground 51) 61 3. Erroneous decisions relating to evidence (Coric's Ground 12) 64 (a) Arguments of the Parties : 64 (b) Analysis 66 (i) Admission of Prlic's Statements 66 (ii) Exhibit P03216IP03220 68 (iii) Exhibit P03666 70 D. ASSESSMENT OF EVIDENCE ~ 71 1. Erroneous approach to the evaluation of evidence (Prlic's Ground 1) 71 (a) Arguments of the Parties , 71 (b) Analysis 72 2. Failure to explain assessment of documentary evidence (Prlic's Ground 3) 75 (a) Arguments of the Parties 75 (b) Analysis 76 E. DISREGARD OF EVIDENCE 78 1. Prlic's witnesses (Prlic's Ground 2) 78 (a) Arguments of the Parties 78 (b) Analysis 79 2. Defence expert Witness Vlado Sakic's evidence (Praljak's Ground 53) 81 F. CONCLUSION 84 V. WITNESS CREDIBILITy 85 A. INTRoDUCTION 85 B. EXPERT WITNESSES DONIA, TOMLJANOVICH, AND RIBICIC (PRLIC'S GROUND 4) 86 C. WITNESSES BA, BB, BC, BD, BEESE, BH, DZ, GALBRAITH, LANE, AND MANOUC (PRLIC'S GROUND 6) 89 1. Arguments of the Parties 89 2. Analysis 90 D. PRALJAK'S TESTIMONY (PRALJAK'S GROUND 55) 92 1. Alleged denial of a reasoned opinion (Sub-ground 55.1) 92 2. Alleged failure to properly assess Praljak's testimony (Sub-ground 55.2) 93 E. CONCLUSION 94 VI. CHALLENGES TO CHAPEAU REQUIREMENTS OF ARTICLE 2 OF THE STATUTE 95 A. EXISTENCE OF AN INTERNATIONAL ARMED CONFLICT 96 1. Scope of the international armed conflict 96 2. Alleged error of law with regard to the application of the overall control test (Praljak's Sub-ground 1.4 and Corio's Sub-ground 3.1 in part) 98 (a) Arguments of the Parties 98 (b) Analysis 99 3. Alleged errors of fact with regard to classifying the conflict as international (Prlic's Sub­ ground 19.1, Praljak's Sub-grounds 1.1 and 1.2, Petkovic's Sub-grounds 7.1.1 in part, 7.1.2, and 7.1.4) 100 (a) Arguments of the Parties 100 (b) Analysis 101 4. Challenges to Croatian intervention in the HVO-ABiH conflict.. 103 (a) Direct involvement of HV soldiers and units in the conflict (Prlic's Sub-grounds 19.1 in part and 19.2, Stojic's Sub-ground 54.1, Praljak's Sub-grounds 1.1 in part, 1.2 in part, 1.3 ii Case No. IT-04-74-A 29 November 2017 23947 in part, and 1.4 in part, Petkovic's Sub-grounds 7.1.1 in part, 7.1.3 and 7.1.4 in part, CoriC's Sub-ground 3.1 in part, and Pusic's Ground 7 in part) 103 (i) Arguments of the Parties 103 (ii) Analysis 108 (b) Croatia's organisation, co-ordination, and planning of the HVO' s military operations (Prlic's Sub-ground 19.3, Stojic's Sub-ground 54.2 in part, Praljak's Sub-grounds 1.3 in part and 1.4 in part, Petkovic's Sub-grounds 7.1.1 in part and 7.1.5 in part, Corle's Sub- ground 3.1 in part, and Pusic's Ground 7 in part) 113 (i) Arguments of the Parties 113 (ii) Analysis 117 (c) Other challenges - shared military reports (Stojic's Sub-ground 54.2, Praljak's Sub- ground 1.3, and Petkovic's Sub-ground 7.1.5, all in part) 120 (i) Arguments of the Parties 120 (ii) Analysis 122 5. Conclusion 123 B. THE STATE OF OCCUPATION 123 1. Whether the inquiry into a state of occupation was necessary (Prlic's Ground 20, Stojic's Ground 55, Praljak's Ground 2, Petkovic's Sub-ground 7.2, and Corio's Sub-ground 3.2) ; 123 2. The legal requirements of occupation (Prlic's Ground 20, Stojic's Ground 55, Praljak's Ground 2, Petkovic's Sub-ground 7.2 and Corle's Sub-ground 3.2) 125 (a) Arguments of the Parties 125 (b) Analysis 130 (c) Conclusion 143 C. THE PROTECTED PERSONS REQUIREMENT 143 1. Muslim members of the HVO (Stojic's Ground 42, Praljak's Ground 3, Petkovic's Sub-grounds 5.2.1.1 in part and 5.2.1.3 in part, and CoriC's Ground 4) 144 (a) Arguments of the Parties 144 (b) Analysis 147 (c) Conclusion 150 2. Muslim men of military age (Praljak's Ground 4, Petkovic's Sub-grounds 5.2.1.1 in part, 5.2.1.2, and 5.2.1.4, Corio's Ground 5, and Pusic's Sub-ground 7.1) 150 (a) Arguments of the Parties 151 (b) Analysis 152 (c) Conclusion 155 3. Defences to detention (Petkovic Sub-grounds 5.2.1.1, 5.2.1.3, 5.2.1.4, all in part) 155 (a) Arguments of the Parties 155 (b) Analysis 156 (c) Conclusion : 158 D. CONCLUSION 158 VII. CHALLENGES TO THE UNDERLYING CRIMES 160 A. INTRODUCTION 160 B. MENS REA FOR CRIMES AGAINST HUMANITY (srorrc's GROUND 26, PRALJAK'S GROUND 48, AND PETKOVIC'S SUB-GROUNDS 4.1 AND 4.4 BOTH IN PART) 160 1. Arguments of the Parties 161 2. Analysis 162 C. ALLEGED ERRORS RELATING TO WANTON DESTRUCTION OF CITIES, TOWNS OR VILLAGES, OR DEVASTATION NOT JUSTIFED BY MILITARY NECESSITY (PROSECUTION'S GROUND 3 IN PART, PRALJAK'S GROUND 23, AND PETKOVIC'S SUB-GROUND 5.2.2.4 IN PART) 164 1. Failure to enter convictions · 164 (a) Arguments of the Parties 165 (b) Analysis 166 2. Challenges to the legal and factual findings upon which the wanton destruction findings were based 168 iii Case No. IT-04-74-A 29 November 2017 23946 (a) General submissions concerning the Four Groups ofIncidents and submissions related to Muslim property in ProzorMunicipality and the ten mosques in Mostar Municipality 168 (b) The Old Bridge of Mostar 169 (i) Arguments of the Parties 170 (ii) Analysis 172 3. Conclusion on wanton destruction not justified by military necessity 174 4.