JUDGEMENT SUMMARY APPEALS CHAMBER United Nations (Exclusively for the use of the media. Not an official document) Nations Unies The Hague, 8 April 2015 Appeal Judgement Summary for Zdravko Tolimir International Please find below the summary of the Judgement read out today by Judge Theodor Criminal Tribunal for the former Meron. Yugoslavia Tribunal Pénal This appeal concerns the responsibility of Mr. Tolimir for crimes committed in the International pour Srebrenica and Žepa enclaves, in Eastern Bosnia, in 1995. At the time Mr. Tolimir was an l’ex-Yougoslavie Assistant Commander and the Chief of the Sector for Intelligence and Security Affairs of the Main Staff of the Army of the Republika Srpska (“VRS”). The Trial Chamber, Judge Nyambe dissenting, found that Tolimir participated in two joint criminal enterprises alleged in the Indictment--a joint criminal enterprise to murder the able-bodied men of Srebrenica and a joint criminal enterprise to forcibly remove the Bosnian Muslim population from the Srebrenica and Žepa enclaves. The Trial Chamber, Judge Nyambe dissenting, found Tolimir guilty pursuant to Article 7(1) of the Statute of the Tribunal of genocide, conspiracy to commit genocide, extermination, murder, persecutions, and inhumane acts through forcible transfer. The Trial Chamber, Judge Nyambe dissenting, sentenced Mr. Tolimir to life imprisonment. Grounds of Appeal Mr. Tolimir submitts 25 grounds of appeal challenging his convictions and his sentence. He requests that the Appeals Chamber reverse all of his convictions, or, in the alternative, significantly reduce his sentence. The Appeals Chamber will now address each of Mr. Tolimir’s contentions. A. Preliminary matters In Grounds of Appeal One through Four, Mr. Tolimir challenges the Trial Chamber’s decision to take judicial notice of adjudicated facts and its evaluation of certain evidence. For reasons given in its Judgement, the Appeals Chamber, Judge Antonetti dissenting, finds that the Trial Chamber did not err in taking judicial notice of 523 adjudicated facts from other ICTY trial and appeal judgements and it did not err in its assessment of these facts. The Appeals Chamber, Judge Antonetti dissenting, dismisses Tolimir’s Ground of Appeal One. Mr. Tolimir also challenges the Trial Chamber’s reliance on intercepted communications produced by the Bosnian Muslim side to the conflict. He submits that in reaching its conclusions on the intercepted communications the Trial Chamber made a number of errors which invalidate the Trial Judgement. For reasons set out in the Judgement, the Appeals Chamber finds that the Trial Chamber did not err in its assessment of the intercepted communications. The Appeals Chamber, therefore, dismisses Tolimir’s Ground of Appeal Two. Under his Ground of Appeal Three Mr. Tolimir submits that the Trial Chamber erred in law by accepting Richard Buttler as an expert witness. He argues that the Prosecution failed to disclose his expert report as required by Rule 94bis of the Rules of Procedure and _________________________________ www.icty.org Follow the ICTY on Facebook , Twitter and YouTube Media Office/Communications Service Churchillplein 1, 2517 JW The Hague. P.O. Box 13888, 2501 EW The Hague. Netherlands Tel .: +31-70-512-8752; 512-5343; 512-5356 Evidence and that Butler’s long-standing association with the Office of the Prosecutor should have led the Trial Chamber to characterise Butler as an OTP investigator giving evidence of his personal opinion. For reasons given in the written Judgement the Appeals Chamber finds that the Trial Chamber erred in considering that the Prosecution’s notice of its intention to call Butler as an expert witness sufficed to meet the requirements of Rule 94bis. The Appeals Chamber also finds that the Trial Chamber erred in finding that Mr. Tolimir implicitly accepted Butler’s expert status during the trial. The Appeals Chamber concludes, however, that these Trial Chamber’s errors caused no prejudice to Mr. Tolimir or had any impact on his conviction. The Appeals Chamber, Judge Antonetti dissenting, further finds that for reasons given in the Judgement the Trial Chamber did not err in regarding Butler as an expert witness or in the manner in which it evaluated his evidence. The Appeals Chamber, Judge Antonetti dissenting, therefore dismisses Tolimir’s Ground of Appeal Three. Tolimir further challenges, under his Ground of Appeal Four, the Trial Chamber’s assessment of the evidence of six Prosecution witnesses who are current or former Prosecution investigators. For reasons given in the Judgement the Appeals Chamber finds that the Trial Chamber applied the correct legal standard when assessing the evidence of these witnesses and that it acted within its discretion in determining the weight to be given to their evidence. Accordingly, the Appeals Chamber dismisses Tolimir’s Ground of Appeal Four. B. Crimes In Grounds of Appeal Six through Thirteen Mr. Tolimir challenges some of the Trial Chamber’s legal and factual findings regarding extermination as a crime against humanity, genocide, and forcible transfer. Alleged errors in the calculation of the number of persons unlawfully killed by Bosnian Serb Forces Under his Ground of Appeal Nine Tolimir makes a number of challenges to the Trial Chamber’s calculation of the number of persons unlawfully killed by Bosnian Serb Forces after the fall of Srebrenica. First, he asserts that the Trial Chamber erred in law in calculating the number of persons killed in circumstances other than the incidents specified in the Indictment. Second, he asserts that the Trial Chamber committed methodological errors in calculating the total number of those killed. Third, he challenges the Trial Chamber’s findings in calculating the number of victims unlawfully killed in four specific incidents. The Trial Chamber found that at least 5,749 Bosnian Muslims were unlawfully killed by the Bosnian Serb Forces following the fall of Srebrenica. This number included those killed at the specific crime sites listed in paragraphs 21.1-22.4 of the Indictment and 779 individuals killed in circumstances not specified in the Indictment. The Appeals Chamber emphasizes that in reaching its judgement, a trial chamber can only convict an accused of crimes which are charged in the Indictment. Material facts not pleaded in the indictment cannot serve as a legitimate foundation for a conviction against the accused. In the present case the incidents charged in the Indictment are not mere examples of criminal conduct for which Tolimir is alleged to be responsible but an exhaustive list of specific allegations charged against him. The Appeals Chamber, therefore, finds that the Trial Chamber erred by finding that 779 persons were unlawfully killed by Bosnian Serb Forces in circumstances not specified in the Indictment and by relying on this higher number in support of its conclusions on Mr. Tolimir’s convictions. The Appeals Chamber is not satisfied, however, that this error of law invalidates the Trial Judgement as Mr. Tolimir fails to show why his convictions should not stand on the basis of the number of individuals the Trial Chamber found were unlawfully killed in the specific circumstances in the Indictment. With respect to Mr. Tolimir’s contention that the Trial Chamber committed methodological errors in calculating the total number of those killed, the Appeals Chamber observes that the Trial Chamber reached its findings on the number of individuals killed in the incidents specified in the Indictment by analysing a combination of evidence comprising witness testimony as to the circumstances of the killings, forensic evidence, and demographic data. For reasons detailed in the Judgement the Appeals Chamber rejects Mr. Tolimir’s challenges to the Trial Chamber’s findings that persons identified from Srebrenica- related mass graves were killed unlawfully. Similarly, for reasons given in the Judgement, the Appeals Chamber dismisses Mr. Tolimir’s arguments challenging the reliability of the demographic and DNA-based evidence relied upon by the Trial Chamber. The Appeals Chamber also finds that the Trial Chamber did not err in calculating the number of Bosnian Muslims killed at four incidents specified in the Indictment, as alleged by Mr. Tolimir. Accordingly, the Appeals Chamber dismisses Tolimir’s Ground of Appeal Nine. Extermination Under Ground of Appeal Six Mr. Tolimir challenges his conviction for extermination. His principal argument is that the Trial Chamber erred in law by applying an incorrect legal standard concerning the mens rea for extermination as a crime against humanity arguing that the victims of this crime must have been targeted on the basis of their civilian status. Tolimir further submits that the Trial Chamber erred in finding that the killings of Mr. Mehmed Hajrić, Žepa’s mayor and president of the War Presidency, Colonel Avdo Palić, commander of the ABiH Žepa Brigade based in Žepa, and Mr. Amir Imamović, the head of the Civil Protection Unit (“three Žepa leaders”) were part of “a single murder operation” since they were killed in a period after the murder operation in Srebrenica. The Appeals Chamber recalls that while the establishment of the actus reus of a crime against humanity requires that the crime occur as part of a widespread or systematic attack directed against a civilian population, the victims of the underlying crime do not have to be civilians. The Appeals Chamber thus rejects Mr. Tolimir’s argument that the Trial Chamber applied an incorrect mens rea standard. With regard to Tolimir’s argument that the killings of the three Žepa leaders was not part of the one murder operation involving the mass killings of the men of Srebrenica, the Appeals Chamber recalls that the actus reus of the crime of extermination is “the act of killing on a large scale” and the mens rea is the intention to kill on a large-scale. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.