IN THE APPEALS CHAMBER Before: Judge Theodor Meron ...

1 Case No.: IT-98-33-A1199 AApprriill 22000044 UNITEDNATIONSCase No:IT-98-33-ADate:19 April 2004 International Tribunal for theProsecution of PersonsResponsible for Serious Violations ofInternational Humanitarian LawCommitted in the Territory of theFormer Yugoslavia Since 1991 Original:EnglishIN THE APPEALS CHAMBERB efore: Judge Theodor Meron , PresidingJudge Fausto PocarJudge Mohamed ShahabuddeenJudge Mehmet G neyJudge Wolfgang SchomburgRegistrar:Mr. Hans HolthuisJudgement:19 April KRSTI]JUDGEMENTC ounsel for the prosecution :Mr.

2 Norman FarrellMr. Mathias MarcussenMs. Magda KaragiannakisMr. Xavier TracolMr. Dan MoylanCounsel for the Defendant:Mr. Nenad Petru i Mr. Norman SepenukCase No.: IT-98-33-A19 April 2004iCONTENTSI. INTRODUCTION .. 1II. THE TRIAL CHAMBER S FINDING THAT GENOCIDE OCCURRED 2A. THE DEFINITION OF THE PART OF THE 2B. THE DETERMINATION OF THE INTENT TO 8 III. ALLEGED FACTUAL ERRORS RELATING TO JOINT CRIMINAL ENTERPRISETO COMMIT 14A. THE TRIAL CHAMBER S FINDING AS TO THE DATE ON WHICH RADISLAV KRSTI ASSUMEDCOMMAND OF THE DRINA 15B.

3 THE TRIAL CHAMBER S REJECTION OF THE DEFENCE OF PARALLEL CHAIN OF 161. The Trial CHAMBER s finding that the Main Staff of the VRS and the MUP forcessubordinate to it received co-operation from Radislav Krsti and the Drina Corps .. 17(a) The treatment of 17(b) The selection of 19(c) Use of Drina Corps resources without the knowledge of Drina Corps Command .. 19C. THE TRIAL CHAMBER S FINDING THAT RADISLAV KRSTI DIRECTLY PARTICIPATED IN 221. The Trial CHAMBER s conclusions regarding the Bratunac Brigade s participation in 22(a) The evidence of Drazen Erdemovi.

4 22(b) The Zvornik Brigade Report ..24(c) The Trial CHAMBER s findings with respect to certain intercepts .. 24(i) The intercept of 16 July 1995 .. 24(ii) The Trial CHAMBER s reliance on two further intercepted conversations dated 15 July1995 .. 25(d) The considerations of the APPEALS CHAMBER .. 26D. THE APPEALS CHAMBER S ANALYSIS OF RADISLAV KRSTI S CRIMINAL 261. The Trial CHAMBER s finding that Radislav Krsti shared the intent of a joint criminalenterprise to commit genocide .. 272. Contacts between Radislav Krsti and other participants in the joint criminal enterprise.

5 28(a) Radislav Krsti s presence at the meetings in the Hotel Fontana .. 28(b) The evidence of Momir Nikoli and Miroslav Deronji}.. 30(c) The Trial CHAMBER s findings regarding Radislav Krsti s presence around Poto ari andthe removal of the men from the buses at Ti a .. 31(d) The Trial CHAMBER s reliance on various other facts .. 33(i) The Trial CHAMBER s reliance upon contacts with Colonel Beara .. 34(ii) The Trial CHAMBER s reliance upon contacts with Colonel Pandurevi .. 36(iii) The Trial CHAMBER s reliance upon contacts with Colonel Popovi.

6 38(iv) The Trial CHAMBER s reliance upon contacts with Colonel Borov~ 40(v) Additional Evidence from Captain Nikoli .. 41(vi) The Trial CHAMBER s reliance upon evidence of the use of Drina Corps resources .. 41(e) The Trial CHAMBER s other findings militating against a finding of genocidal intent .. 44(f) The APPEALS CHAMBER s preliminary conclusion regarding the Trial CHAMBER s finding ofRadislav Krsti s genocidal intent .. 46E. THE CRIMINAL RESPONSIBILITY OF RADISLAV KRSTI : AIDING AND ABETTING 46F. RADISLAV KRSTI S CRIMINAL RESPONSIBILITY FOR THE OPPORTUNISTIC CRIMESCOMMITTED AT POTO 51 Case No.

7 : IT-98-33-A19 April 2004iiIV. THE DISCLOSURE PRACTICES OF THE prosecution AND RADISLAVKRSTI S RIGHT TO A FAIR 55A. WITHHOLDING COPIES OF EXHIBITS FOR TACTICAL 55 Was the prosecution obliged to disclose copies of exhibits under Rule 65ter (as it was) at thetime of trial? .. 56B. CONCEALING A TAPE AND ITS LATER SUBMISSION AS EVIDENCE IN 581. The alleged impossibility of the Trial CHAMBER ignoring the contents of the 582. Sharp Trial Tactics .. 59C. THE VARIOUS VIOLATIONS OF RULE 68 .. 601. Alleged Breach of Rule 68 for failure to disclose witness statements containingexculpatory material.

8 60(a) Standard for characterisation of evidence as Rule 68 61(b) Did the four witness statements constitute exculpatory evidence? .. 62(c) 632. Alleged Breach of Rule 68 for the prosecution s failure to identify evidence disclosedunder Rule 68 as being exculpatory .. 643. Whether Rule 68 requires the prosecution to allow the Defence to take copies ofexculpatory material ..654. Whether two disclosures were made as soon as practicable .. 65D. THE QUESTIONABLE CREDIBILITY OF THE WITNESSES: SEFER HALILOVI AND ENVERHAD IHASANOVI.

9 66E. ADDRESSING THE CONDUCT OF THE 68V. THE TRIAL CHAMBER S ANALYSIS OF CUMULATIVE CONVICTIONS .. 70A. APPLICABLE 70B. CONVICTION FOR EXTERMINATION AS A CRIME AGAINST 71C. CONVICTION FOR PERSECUTION AS A CRIME AGAINST 74D. CONVICTIONS FOR MURDER AND INHUMANE ACTS AS CRIMES AGAINST 74VI. 76A. 76B. The arguments concerning the gravity of the crimes Radislav Krsti has committed andhis participation therein ..782. The arguments for consistent sentencing practice .. 793. The argument relating to palpably lesser guilt.

10 804. The prosecution s argument concerning premeditation as an aggravating factor .. 815. The Defence s argument regarding the sentencing practice of the Former 826. The Defence s argument as to inadequate weight accorded to mitigating 83C. THE APPEALS CHAMBER S 83 VII. DISPOSITION .. 87 VIII. PARTIAL DISSENTING OPINION OF Judge SHAHABUDDEEN .. 89A. 89B. THE 89C. THE CENTRAL POLICY TO COMMIT 92D. WHETHER THE APPELLANT KNEW OF THE INTENT TO COMMIT 93E. WHETHER THE APPELLANT SHARED THE INTENT TO COMMIT 941.