(a) Reliance on Adjudicated Facts to Establish the Underlying Crimes of the Overarching JCE

125. Mladić submits that, in finding that the Overarching JCE existed, the Trial Chamber erred in its method of using adjudicated facts by: (i) relying solely on adjudicated facts that went to the acts and conduct of his proximate subordinates; and (ii) relying on adjudicated facts that were only corroborated by evidence admitted pursuant to Rule 92 bis of the ICTY Rules (“Rule 92 bis evidence”).Footnote ³⁸⁹ He argues that these errors led to a “defective evidentiary approach” in making findings on the crime base for the Overarching JCE.Footnote ³⁹⁰ To illustrate the Trial Chamber's erroneous approach, Mladić refers specifically to Scheduled Incidents B.10.2 and B.16.2,Footnote ³⁹¹ and generally to 13 other scheduled incidents of the Indictment and five chapters of the Trial Judgement.Footnote ³⁹² Mladić submits that, as a result of the Trial Chamber's errors, findings in the Trial Judgement with respect to the existence of the Overarching JCE are invalidated.Footnote ³⁹³

126. The Appeals Chamber will address Mladić's contentions of error in turn. Before doing so, the Appeals Chamber recalls that adjudicated facts, within the meaning of Rule 94(B) of the ICTY Rules, are presumptions which, as such, do not require corroboration.Footnote ³⁹⁴ Adjudicated facts may relate to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be responsible.Footnote ³⁹⁵ In this context, trial chambers, after having reviewed the record as a whole, may rely on adjudicated facts to establish the underlying crime base when making findings in support of convictions.Footnote ³⁹⁶

(b) Assessment of Exculpatory Evidence of Mladić's Membership in the Overarching JCE

146. Mladić submits that the Trial Chamber erred in finding that he was a member of the Overarching JCE by disregarding or giving insufficient weight to direct and exculpatory evidence that he acted in opposition to the common criminal objective of the joint criminal enterprise.Footnote ⁴⁴⁶ He points to evidence of his “positive attitude and behaviour” towards Bosnian Muslim and Bosnian Croat civilians,Footnote ⁴⁴⁷ including: (i) evidence of his care for non-Serb civilians during the conflict,Footnote ⁴⁴⁸ as well as evidence that they remained in their municipalities during the conflictFootnote ⁴⁴⁹ and were given a choice to leave or remain in their villages;Footnote ⁴⁵⁰ (ii) evidence that he reported concerns to Karadžić and the Minister of the Interior about the commission of crimes by “MUP forces” against non-Serbs, and that he called for affirmative action to be taken;Footnote ⁴⁵¹ and (iii) excerpts from his military notebooks containing direct evidence of constraints he experienced in the Municipalities and the protection he intended to provide to non-Serbs.Footnote ⁴⁵² The Appeals Chamber will consider these arguments in turn.

(c) Alleged Errors Regarding the Scope of and Mladić's Participation in the Overarching JCE

175. Mladić submits that the Trial Chamber expanded the Overarching JCE to include the entirety of 1991 and included the actions and speeches of politicians from a period during which he was absent, undermining the conclusion that he was part of the common plan of the Overarching JCE.Footnote ⁵⁶⁹ He also contends that the Trial Chamber was “inconsistent” in its interpretation of his interactions with other members of the Overarching JCE – finding that he had “influence” over and “was subject” to the political leadership.Footnote ⁵⁷⁰ Mladić finally argues that the Trial Chamber gave undue weight to his role in establishing the VRS and that he directed military operations in furtherance of the war effort and in compliance with duties delegated to him by Karadžić.Footnote ⁵⁷¹

176. The Prosecution responds that Mladić's submissions show no error in the Trial Chamber's analysis of his participation in the Overarching JCE or inconsistency in his influential capacity with respect to the political leadership.Footnote ⁵⁷² According to the Prosecution, the Trial Chamber reasonably found that Mladić contributed to the Overarching JCE through his command and control of the VRS.Footnote ⁵⁷³

177. Turning to Mladić's contention that the Trial Chamber expanded the scope of the Overarching JCE to include 1991, which included actions and speeches from a period during which he was absent, the Appeals Chamber recalls that joint criminal enterprise liability requires: (i) a plurality of persons; (ii) the existence of a common purpose which amounts to, or involves, the commission of a crime; and (iii) the participation of the accused in the common purpose.Footnote ⁵⁷⁴ In this case, prior to its assessment of whether Mladić was part of the Overarching JCE, the Trial Chamber found that the Overarching JCE existed from 1991 until 30 November 1995Footnote ⁵⁷⁵ and that the plurality of persons included members of the Bosnian Serb leadership.Footnote ⁵⁷⁶ The Trial Chamber found that Mladić only contributed and shared the intent to achieve the common objective of the Overarching JCE by 12 May 1992 at the latest.Footnote ⁵⁷⁷ The Trial Chamber's assessment of the existence of the Overarching JCE was therefore independent of its assessment of Mladić's participation. Mladić fails to show that, to determine whether the Overarching JCE existed in 1991, the Trial Chamber erroneously expanded the scope of the joint criminal enterprise or erroneously considered the conduct and speeches of the Bosnian Serb leadership prior to Mladić's participation.Footnote ⁵⁷⁸

178. The Appeals Chamber is also not convinced that the Trial Chamber erred in its interpretation of Mladić's interactions with other members of the Overarching JCE.Footnote ⁵⁷⁹ Having reviewed the impugned paragraphs in the Trial Judgement, the Appeals Chamber observes that they contain a summary of the evidence and findings on, inter alia, Mladić's control and authority over the VRSFootnote ⁵⁸⁰ as well as his participation in Bosnian Serb Assembly meetings and relationship with the Bosnian Serb political leadership.Footnote ⁵⁸¹ In particular, the Trial Chamber recalled evidence and considered arguments that Mladić was not a member of the Supreme Command of the VRS (“Supreme Command”)Footnote ⁵⁸² and did not have voting rights within the Bosnian Serb Assembly, but that he was invited to attend meetings between 1992 and 1995 to brief the Supreme Command on the military situation.Footnote ⁵⁸³ The Trial Chamber also found that he actively participated in policy discussions in the Bosnian Serb Assembly,Footnote ⁵⁸⁴ often suggested to Bosnian Serb politicians what position they should take during peace negotiations,Footnote ⁵⁸⁵ and addressed policy issues in detail “with the purpose of influencing” the Bosnian Serb political leadership in its decision-making.Footnote ⁵⁸⁶ The Appeals Chamber considers that, contrary to Mladić's submissions, the Trial Chamber did not make “inconsistent interpretations” of his interactions with the members of the Overarching JCE, but rather clearly found that Mladić actively participated in high-level political discussions with the purpose of influencing political decisions. His contentions in this regard are therefore without merit and fail to identify any error.

179. As to Mladić's submission that the Trial Chamber gave undue weight to his role as Commander of the VRS and that he directed military operations in furtherance of the war effort and in compliance with duties delegated to him by Karadžić, the Appeals Chamber recalls that in order to hold an accused responsible pursuant to joint criminal enterprise liability, it must be established that he or she performed acts that in some way were directed to the furthering of the common plan or purpose of the joint criminal enterprise.Footnote ⁵⁸⁷ These acts need not be criminal per se but they may take the form of assistance in, or contribution to, the execution of the common objective or purpose.Footnote ⁵⁸⁸ Moreover, the fact that the participation of the accused amounted to no more than his or her “routine duties” will not exculpate the accused.Footnote ⁵⁸⁹

180. The Appeals Chamber notes the Trial Chamber's conclusion that between 12 May 1992 and 30 November 1995, members of the VRS committed crimes in furtherance of the Overarching JCE in the Municipalities.Footnote ⁵⁹⁰ In finding that Mladić participated in the Overarching JCE, the Trial Chamber concluded that he, inter alia: (i) was the Commander of the VRS Main Staff; (ii) issued orders regarding the establishment and operations of the VRS; (iii) had knowledge of crimes being committed against non-Serbs in the Municipalities by his subordinates; (iv) deliberately misled the media and international community about crimes committed on the ground; (v) had the authority but did not take appropriate or further steps to investigate or punish perpetrators of crimes; (vi) placed severe restrictions on the delivery of humanitarian aid; and (vii) repeatedly used derogatory terms to refer to Bosnian Muslims and Bosnian Croats as well as introduced and controlled a centralized system of spreading propaganda related to Bosnian Muslims and Bosnian Croats.Footnote ⁵⁹¹ Given the Trial Chamber's findings on Mladić's acts and conduct furthering the Overarching JCE and in line with the jurisprudence that performing routine duties will not exculpate the accused,Footnote ⁵⁹² the Appeals Chamber considers it inconsequential that Mladić, as Commander of the VRS Main Staff, was acting in accordance with his obligations as delegated to him by Karadžić.Footnote ⁵⁹³ The Appeals Chamber finds, Judge Nyambe dissenting, that Mladić therefore fails to show that the Trial Chamber committed any error in this regard.

(d) Conclusion

181. Based on the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 3.A of Mladić's appeal.

(a) Significant Contribution

184. The Trial Chamber found, in Chapters 9.3.2 through 9.3.12 of the Trial Judgement, that Mladić's acts and omissions during the existence of the Overarching JCE were so instrumental to the commission of the crimes that without them the crimes would not have been committed as they were, and that, therefore, Mladić significantly contributed to achieving the objective of the Overarching JCE.Footnote ⁵⁹⁸ This conclusion rested on findings that Mladić: (i) between May 1992 and at least October 1995, issued orders regarding the establishment and organization of VRS organs and corps, including assignments and promotions;Footnote ⁵⁹⁹ (ii) from May 1992 until 1995, held daily briefings and occasional meetings with VRS Main Staff officers and corps commanders, regularly visited and inspected VRS units, and issued orders and directives to VRS units and other groups;Footnote ⁶⁰⁰ (iii) tasked brigade commanders of the VRS First Krajina Corps to cooperate with the MUP;Footnote ⁶⁰¹ (iv) from May 1992 to October 1995, was in direct contact with members of the leadership in Serbia and members of the Yugoslav Army (“VJ”) General Staff to ensure the military needs of the VRS were met;Footnote ⁶⁰² (v) addressed the Bosnian Serb Assembly during several of its sessions on issues surrounding the development of policies of the Bosnian Serb political leadership, and often suggested to Bosnian Serb politicians what position they should take during peace negotiations in order to achieve the strategic objectives as initially defined;Footnote ⁶⁰³ (vi) between September 1992 and at least March 1995, introduced and maintained a controlled and centralized system of spreading propaganda related to Bosnian Croats and Bosnian Muslims;Footnote ⁶⁰⁴ (vii) made deliberately misleading statements to members of the media and international community in relation to crimes committed on the ground;Footnote ⁶⁰⁵ (viii) did not take appropriate or further steps to investigate or punish perpetrators of crimes;Footnote ⁶⁰⁶ and (ix) placed severe restrictions on the delivery of humanitarian aid from 10 April 1994 onwards.Footnote ⁶⁰⁷

185. Mladić submits that the Trial Chamber erred in finding that he significantly contributed to the Overarching JCE.Footnote ⁶⁰⁸ Specifically, he challenges the Trial Chamber's findings that: (i) he had command and control over members of the MUP;Footnote ⁶⁰⁹ (ii) he had command and control over VRS forces;Footnote ⁶¹⁰ and (iii) he failed to adequately investigate and/or punish crimes.Footnote ⁶¹¹ Mladić submits that, as a consequence of errors in the Trial Judgement, the Trial Chamber's findings on his guilt under the first form of joint criminal enterprise are invalidated as, inter alia, the element of actus reus cannot be considered to have been proven beyond a reasonable doubt.Footnote ⁶¹²

186. The Appeals Chamber recalls that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, a trial chamber must be satisfied that the accused acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.Footnote ⁶¹³ An accused's contribution need not be necessary or substantial,Footnote ⁶¹⁴ it need not involve the commission of a crime,Footnote ⁶¹⁵ and the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.Footnote ⁶¹⁶

(b) Mens Rea

238. In assessing Mladić's mens rea with respect to the Overarching JCE, the Trial Chamber found that he knew that the crimes of persecution, murder, extermination, deportation, and inhumane acts (forcible transfer) were committed against Bosnian Muslims and Bosnian Croats in the Municipalities, including in detention facilities.Footnote ⁸²⁶ It also found that Mladić's statements and conduct demonstrated his intent for the crimes to be committed on discriminatory grounds.Footnote ⁸²⁷ In reaching this finding, the Trial Chamber considered Mladić's: (i) repeated use of derogatory terms to refer to Bosnian Muslims and Bosnian Croats;Footnote ⁸²⁸ (ii) recalling of historical crimes that were allegedly committed against Bosnian Serbs and his references to the threat of “genocide” against the Bosnian Serbs;Footnote ⁸²⁹ (iii) statements indicating an intention not to respect the laws of war in Croatia in 1991 and later references to repeating the destruction inflicted during that conflict;Footnote ⁸³⁰ and expressions of commitment to an ethnically homogeneous Republika Srpska, even in territories that previously had a large percentage of non-Serb inhabitants.Footnote ⁸³¹ The Trial Chamber further considered that Mladić's orders to respect the Geneva Conventions, his statements to personnel of the UN Protection Force (“UNPROFOR”), and his involvement in peace negotiations were not indicative of his true state of mind.Footnote ⁸³² The Trial Chamber concluded that Mladić shared the intent to achieve the common objective of the Overarching JCE through the commission of crimes and that he held this intent by 12 May 1992 at the latest.Footnote ⁸³³

239. Mladić submits that the Trial Chamber erred in determining that he possessed and shared the intent to achieve the common objective of the Overarching JCE.Footnote ⁸³⁴ Specifically, he argues that the Trial Chamber erred by: (i) applying a “defective method” in determining his mens rea;Footnote ⁸³⁵ (ii) preferring circumstantial evidence and disregarding or failing to give sufficient weight to clearly relevant direct evidence that contradicts findings in the Trial Judgement of his mens rea;Footnote ⁸³⁶ and (iii) relying on isolated parts of his speeches at two Bosnian Serb Assembly sessions.Footnote ⁸³⁷ Mladić argues that as a consequence of these errors, the Trial Chamber's findings on his mens rea are invalid and do not support his liability, and requests that the Appeals Chamber reverse his convictions in relation to the Overarching JCE, or, in the alternative, reverse the Trial Chamber's findings to the extent of any errors.Footnote ⁸³⁸ The Appeals Chamber will address these submissions in turn.

(c) Conclusion

275. Consequently, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 3.B of Mladić's appeal.

(a) Alleged Errors in the Exercise of Jurisdiction over the Crime of Terror

279. The Trial Chamber determined that it had jurisdiction over acts of violence the primary purpose of which was to spread terror among the civilian population as a violation of the laws or customs of war punishable under Article 3 of the ICTY Statute (“crime of terror”), as charged under Count 9 of the Indictment.Footnote ⁹⁹⁵ In making this determination, the Trial Chamber recalled that the ICTY Appeals Chamber in the Galić and D. Milošević cases had confirmed that the ICTY had jurisdiction over the crime of terror and found nothing in Mladić's submissions that would lead it to deviate from the established jurisprudence.Footnote ⁹⁹⁶

280. Mladić submits that the Trial Chamber erred in exercising jurisdiction over the crime of terror and convicting him of this crime, and requests that the Appeals Chamber reverse his conviction under Count 9 of the Indictment.Footnote ⁹⁹⁷ In particular, he argues that the Trial Chamber failed to give sufficient weight to his submissions that there exist cogent reasons to depart from the jurisprudence which holds that the ICTY had jurisdiction over the crime of terror, asserting that the prohibition of spreading terror among the civilian population did not extend to its penalization under customary international law during the period of his Indictment due to insufficient evidence of settled, extensive, or uniform state practice.Footnote ⁹⁹⁸ Mladić further argues that the Trial Chamber was prohibited from exercising jurisdiction over the crime of terror because it was not defined with sufficient specificity to be foreseeable at the time of the Indictment, therefore infringing the principle of nullum crimen sine lege.Footnote ⁹⁹⁹

281. The Prosecution responds that the ICTY had jurisdiction over the crime of terror because it formed part of customary international law at the relevant time and that Mladić fails to show any cogent reasons to depart from established ICTY jurisprudence in this respect.Footnote ¹⁰⁰⁰ The Prosecution further asserts that: (i) at the time of Mladić's crimes, several states on four continents had criminalized terror, and the widespread ratification by 1992 of Additional Protocols I and II to the Geneva Conventions of 1949 (“Additional Protocols”) further demonstrates the customary international law status of the crime of terror;Footnote ¹⁰⁰¹ (ii) the principle of nullum crimen sine lege does not demand that crimes under customary international law be measured by the standards of specificity required for statutory provisions;Footnote ¹⁰⁰² and (iii) the crime of terror was defined with sufficient specificity and was foreseeable to Mladić, particularly since laws of the former Yugoslavia had criminalized terror.Footnote ¹⁰⁰³

282. Mladić replies that the ICTY Appeals Chamber in the Galić and D. Milošević cases did not consider the absence of a widespread or representative criminalization of terror, and that, in penalizing terror, the former Yugoslavia did not adopt the language of the Additional Protocols or attempt to define the concept of terror after ratifying the Additional Protocols.Footnote ¹⁰⁰⁴

283. The Appeals Chamber recalls that the ICTY Trial Chamber in the Galić case determined, by majority, that the ICTY had subject-matter jurisdiction over the crime of terror under Article 3 of the ICTY Statute.Footnote ¹⁰⁰⁵ The ICTY Appeals Chamber in the same case confirmed, by majority, the ICTY's jurisdiction over the crime of terror, clarifying that customary international law imposed individual criminal responsibility for violations of the prohibition of terror against the civilian population at the time of the commission of the crimes for which Galić was convicted.Footnote ¹⁰⁰⁶ The ICTY Appeals Chamber in the D. Milošević case, by majority, subsequently reaffirmed the ICTY's jurisdiction over the crime of terror.Footnote ¹⁰⁰⁷ In light of this jurisprudence, the Appeals Chamber considers that the matter of the ICTY's jurisdiction over the crime of terror was settled by the ICTY Appeals Chamber and was therefore binding on the Trial Chamber in the present case.Footnote ¹⁰⁰⁸ As it was not open to the Trial Chamber to depart from the existing jurisprudence in this respect, the Appeals Chamber rejects Mladić's contention that the Trial Chamber erred in failing to give sufficient weight to his submissions that there exist cogent reasons to do so.

284. As to whether there exist cogent reasons for the Appeals Chamber to depart from the jurisprudence in this regard, the standards of appellate review require Mladić to demonstrate that the decision to exercise jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was “wrongly decided, usually because the judge or judges were ill-informed about the applicable law”.Footnote ¹⁰⁰⁹ In this respect, Mladić relies chiefly on the dissenting views of Judges Schomburg and Liu in the Galić and D. Milošević Appeal Judgements, respectively, to argue that the state practice referred to by the majority in the Galić Appeal Judgement was not sufficiently extensive, uniform, or representative to give rise to individual criminal responsibility for spreading terror among the civilian population under customary international law at the relevant time.Footnote ¹⁰¹⁰

285. A review of the Galić Appeal Judgement reveals that the judges of the majority applied the same legal principles as Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case in reaching their conclusions, namely that: (i) the ICTY has jurisdiction to prosecute a violation of a rule of international humanitarian law under Article 3 of the ICTY Statute when four conditions are fulfilled, including when “the violation of the rule must entail, under customary international law, the individual criminal responsibility of the person breaching the rule” (“Fourth Condition”);Footnote ¹⁰¹¹ and (ii) the fulfilment of the Fourth Condition may be inferred from, inter alia, state practice indicating an intention to criminalize the violation.Footnote ¹⁰¹²

286. In concluding that the Fourth Condition was fulfilled, the judges of the majority in the Galić case considered, inter alia, that: (i) references to terror as a war crime could be found in national and multinational documents as early as 1919 and 1945;Footnote ¹⁰¹³ (ii) numerous states, including the former Yugoslavia, had criminalized terrorizing civilians as a method of warfare or in a time of war;Footnote ¹⁰¹⁴ and (iii) a court in Croatia had entered a conviction under, inter alia, Article 51 of Additional Protocol I and Article 13 of Additional Protocol II for acts of terror against civilians which occurred between March 1991 and January 1993.Footnote ¹⁰¹⁵ Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case, by contrast, expressed doubt as to whether the evidence referred to by the majority in the Galić case was sufficiently extensive and uniform to establish customary international law.Footnote ¹⁰¹⁶

287. In the Appeals Chamber's view, Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case applied the same legal principles as the majority in the Galić case in determining the sufficiency of the evidence of state practice before them and merely disagreed on the result.Footnote ¹⁰¹⁷ Bearing in mind that “two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence, both of which are reasonable”,Footnote ¹⁰¹⁸ the Appeals Chamber finds that Mladić fails to demonstrate that the finding by the ICTY Appeals Chamber that the ICTY had jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was wrongly decided. In the absence of cogent reasons to depart from the controlling jurisprudence, the Appeals Chamber finds no error in the Trial Chamber's determination that the ICTY had jurisdiction over the crime of terror in the present case.

288. As to Mladić's contention that the definition of the crime of terror nonetheless violated the principle of nullum crimen sine lege for lack of specificity and foreseeability,Footnote ¹⁰¹⁹ the Appeals Chamber notes that the Trial Chamber set out the elements of the crime in accordance with the ICTY Appeals Chamber's definition in the Galić Appeal Judgement, as clarified in the D. Milošević Appeal Judgement.Footnote ¹⁰²⁰ In particular, the Trial Chamber stated that the crime of terror requires proof of, inter alia, acts or threats of violence committed with the primary purpose of spreading terror among the civilian population and directed against the civilian population or individual civilians not taking direct part in hostilities causing the victims to suffer grave consequences.Footnote ¹⁰²¹

289. Relying on Judge Shahabuddeen's separate opinion in the Galić Appeal Judgement stating that “there is neither the required opinio juris nor state practice to support the view that customary international law knows of a comprehensive definition [of terror]”,Footnote ¹⁰²² Mladić argues that the ICTY was not in a position to define the elements of the crime.Footnote ¹⁰²³ He further contends that the definition adopted by the ICTY, particularly the requirement that victims suffer “grave consequences” from the acts or threats of violence, did not provide a clear gravity threshold and was improperly determined through a jurisdictional analysis which was developed after the Indictment period.Footnote ¹⁰²⁴

290. The Appeals Chamber recalls that the principle of nullum crimen sine lege requires that a person may only be found guilty of a crime in respect of acts which constituted a violation of a norm which existed at the time of their commission.Footnote ¹⁰²⁵ Moreover, the criminal liability in question must have been sufficiently foreseeable and the law providing for such liability must have been sufficiently accessible at the relevant time.Footnote ¹⁰²⁶ This principle does not, however, prevent a court from interpreting and clarifying the elements of a particular crime, nor does it preclude the progressive development of the law by the court.Footnote ¹⁰²⁷

291. The Appeals Chamber notes that Judge Shahabuddeen specified in his separate opinion in the Galić Appeal Judgement that: (i) he agreed with the view that terror as charged is a crime known to customary international law;Footnote ¹⁰²⁸ (ii) the ICTY could recognize that customary international law does know of a core or predominant meaning of “terror” for which there was individual criminal responsibility at the material times;Footnote ¹⁰²⁹ and (iii) he was satisfied that a serious violation of the laws or customs of war within the meaning of Article 3 of the ICTY Statute, namely, by resorting to the core of terror, gives rise to such responsibility, which existed at the time of the alleged acts of the appellant.Footnote ¹⁰³⁰ In the view of the Appeals Chamber, the ICTY Appeals Chamber in the Galić and D. Milošević cases merely clarified the elements of the crime of terror, which existed in customary international law, for the purposes of Article 3 of the ICTY Statute.Footnote ¹⁰³¹ The Appeals Chamber considers that this is consistent with the principle of nullum crimen sine lege, as recalled above. Consequently, Mladić fails to show any error in the Trial Chamber's application of the elements of the crime of terror as clarified by the ICTY Appeals Chamber.Footnote ¹⁰³²

292. As to foreseeability, the Appeals Chamber recalls that the accused must be able to appreciate that his conduct was criminal in the sense generally understood, without reference to any specific provision.Footnote ¹⁰³³ Although the ICTY did not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction, it had recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the Indictment was prohibited and punishable.Footnote ¹⁰³⁴

293. To this end, it is worth noting that the Criminal Code of the Socialist Federal Republic of Yugoslavia (“SFRY” and “Criminal Code of the SFRY”, respectively) in force at the time of the Indictment period provided that “[w]hoever, in violation of the rules of international law effective at the time of war, armed conflict, or occupation, orders that the civilian population be subject to […] application of measures of intimidation and terror […] shall be punished by imprisonment for not less than five years or by the death penalty”.Footnote ¹⁰³⁵ In addition, the military manual of the SFRY applicable at the time provided, inter alia, that: (i) “serious violations of the laws of war [are considered] as criminal offences”;Footnote ¹⁰³⁶ (ii) “[w]ar crimes and other serious violations of the laws of war include […] the application of measures of intimidation and terror [against a civilian population]”;Footnote ¹⁰³⁷ (iii) “[a]ttacking civilians for the purpose of terrorising them is especially prohibited”;Footnote ¹⁰³⁸ and (iv) “[p]ersons who commit a war crime, or any other grave violation of the laws of war, […] may also answer before an international court, if such a court has been established”.Footnote ¹⁰³⁹ Against this background, the Appeals Chamber considers that Mladić does not demonstrate that the crime of terror was not reasonably foreseeable to him at the time of the events charged in the Indictment.

294. Furthermore, in the Appeals Chamber's view, the specification that, for the purposes of Article 3 of the ICTY Statute, the crime of terror also requires that victims suffered “grave consequences”,Footnote ¹⁰⁴⁰ in no way detracts from the conclusion that Mladić could reasonably have known that the commission of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was prohibited and punishable.Footnote ¹⁰⁴¹ The Appeals Chamber finds, Judge Nyambe dissenting, that Mladić consequently fails to demonstrate that the Trial Chamber erred in exercising jurisdiction over the crime of terror due to lack of specificity and foreseeability in its definition.

(b) Alleged Error in Failing to Find that Sarajevo was a “Defended City”

295. In finding the existence of the Sarajevo JCE, the Trial Chamber considered, inter alia, that, about two days after the policy regarding Sarajevo was outlined at the 16^th Assembly Session, the SRK commenced its heavy shelling of Sarajevo, which, together with regular and frequent sniping, continued throughout the Indictment period.Footnote ¹⁰⁴² The Trial Chamber found that the objective of the joint criminal enterprise involved the commission of, inter alia, the crime of terror, and that “the infliction of terror among the civilian population was used to gain strategic military advantages and done out of ethnical vengeance”.Footnote ¹⁰⁴³ In making these determinations, the Trial Chamber rejected Mladić's arguments that Sarajevo was a valid military target that could not be seen as an “undefended city” pursuant to Article 3(c) of the ICTY Statute.Footnote ¹⁰⁴⁴

296. Mladić submits that, in convicting him of the crime of terror, the Trial Chamber erred by misconstruing and failing to give sufficient weight to his submissions regarding Sarajevo as a “defended city” pursuant to Article 3(c) of the ICTY Statute.Footnote ¹⁰⁴⁵ In particular, he argues that the Trial Chamber “erred by failing to consider Sarajevo as a defended city which constituted a legitimate military objective”.Footnote ¹⁰⁴⁶ Mladić contends that, had the Trial Chamber understood and considered his submissions in this respect, it could not have concluded that terror was the primary purpose of the campaign in Sarajevo and that he possessed the requisite mens rea for this crime.Footnote ¹⁰⁴⁷ Accordingly, Mladić requests that the Appeals Chamber reverse his conviction under Count 9 of the Indictment.Footnote ¹⁰⁴⁸

297. The Prosecution responds that Sarajevo as a whole was not a legitimate military target and that the Trial Chamber rightly rejected Mladić's argument about Sarajevo as a “defended city”.Footnote ¹⁰⁴⁹ It contends that, regardless of the presence of legitimate military targets within Sarajevo, or of the military advantage offered by holding the city, a distinction must be made between civilian and military objectives.Footnote ¹⁰⁵⁰ The Prosecution also contends that Mladić was not charged with attacking undefended locales, but with terrorizing, unlawfully attacking, and murdering civilians as violations of the laws or customs of war pursuant to Article 3 of the ICTY Statute.Footnote ¹⁰⁵¹

298. Mladić replies that he does not contend that Sarajevo in its entirety constituted a valid military target but rather, that Sarajevo, as a defended city, constituted a valid military objective.Footnote ¹⁰⁵² Mladić further asserts that he does not contend that categorizing a city as “defended” allows a party to avoid their obligations of distinction, but maintains that the Trial Chamber's conclusion that his primary objective in Sarajevo was to spread terror among the civilian population was not the only reasonable inference available on the evidence.Footnote ¹⁰⁵³

299. The Appeals Chamber recalls that Article 3 of the ICTY Statute sets out a non-exhaustive list of punishable violations of the laws or customs of war, including, inter alia, under Article 3(c), the “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings” (“crime of attacking undefended locales”).Footnote ¹⁰⁵⁴ The crime of attacking undefended locales is thus one of the violations of the laws or customs of war within the jurisdiction of the ICTY pursuant to Article 3 of the ICTY Statute, which include, for instance, the crimes of murder, terror, unlawfully attacking civilians, or hostage-taking.Footnote ¹⁰⁵⁵ Mladić asserts that “the reference to Article 3 in the [I]ndictment should be understood to include a reference to Art[icle] 3(c)”.Footnote ¹⁰⁵⁶ However, nothing in the Indictment, Prosecution Pre-Trial Brief,Footnote ¹⁰⁵⁷ or trial record suggests that Mladić was charged with the crime of attacking undefended locales. Mladić therefore does not demonstrate that the Trial Chamber erred by failing to give sufficient weight to his submissions and consider Sarajevo as a “defended city” pursuant to Article 3(c) of the ICTY Statute.

300. Moreover, Mladić conflates the question of whether Sarajevo was a “defended city” with whether it contained legitimate military objectives.Footnote ¹⁰⁵⁸ In this respect, the Appeals Chamber recalls that the principle of distinction requires parties to a conflict to distinguish at all times between the civilian population and combatants, or civilian and military objectives, such that only military objectives may be lawfully attacked and the prohibition on targeting civilians is absolute.Footnote ¹⁰⁵⁹ As such, Mladić's general assertion that the strategic military importance, nature, and location of Sarajevo rendered the city and its contents broadly subject to legitimate attack falls to be rejected.Footnote ¹⁰⁶⁰

301. The Appeals Chamber is also not persuaded by Mladić's suggestion that, if the Trial Chamber had recognized Sarajevo's strategic military importance, it could not have concluded that the campaign in Sarajevo was primarily aimed at spreading terror as opposed to gaining military advantage.Footnote ¹⁰⁶¹ The Appeals Chamber observes that the Trial Chamber explicitly recognized that the infliction of terror among the civilian population, as the primary purpose of the sniping and shelling incidents in Sarajevo, was used to gain a strategic military advantage.Footnote ¹⁰⁶² In this respect, the Trial Chamber considered evidence showing, inter alia, that: (i) many civilians were targeted while carrying out daily activities of a civilian nature or when present at sites that were known as locations where civilians gathered;Footnote ¹⁰⁶³ (ii) several of the sniping and shelling attacks were carried out during cease-fires or quiet periods, and civilians were more prone to being targeted when circumstances suggested that the shooting or shelling had stopped and it was safe for civilians to continue their daily activities;Footnote ¹⁰⁶⁴ (iii) numerous civilians were targeted while they were at home or in neighbourhoods where there was no military activity or military personnel and equipment present in the immediate vicinity;Footnote ¹⁰⁶⁵ (iv) the period of sniping and shelling continued, largely unabated, over almost four years;Footnote ¹⁰⁶⁶ and (v) civilians in Sarajevo lived in extreme and constant fear of being hit by sniper or artillery fire.Footnote ¹⁰⁶⁷

302. In view of the above, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić fails to demonstrate that no reasonable trier of fact could, in principle, have concluded that terror was the primary purpose of the shelling and sniping campaign in Sarajevo. To the extent that Mladić alleges specific errors in the Trial Chamber's assessment of evidence in this respect, the Appeals Chamber will evaluate such allegations in connection with the supporting submissions.

(c) Alleged Errors Relating to the Existence of a Sarajevo JCE and Mladić's Intent

303. In finding the existence of the Sarajevo JCE and that Mladić shared the common criminal purpose and intended to establish and carry out a campaign of sniping and shelling against the civilian population of Sarajevo, the Trial Chamber considered, inter alia, that the policy of the Bosnian Serb leadership with regard to Sarajevo was outlined at the 16^th Assembly Session, and that Mladić personally directed the SRK to shell Sarajevo and cut its utilities to force inhabitants outside.Footnote ¹⁰⁶⁸ The Trial Chamber also noted that some of the evidence received may indicate that the Bosnian Serb leadership was genuinely concerned with the well-being of civilians.Footnote ¹⁰⁶⁹ In this respect, the Trial Chamber pointed to statements of assurance by Bosnian Serb officials to international organizations,Footnote ¹⁰⁷⁰ including Mladić's assurances that Sarajevo was “under no threat from the VRS”,Footnote ¹⁰⁷¹ as well as certain orders prohibiting firing at civilians without approval.Footnote ¹⁰⁷² The Trial Chamber concluded, however, that these could not serve as a reliable basis for determining the Bosnian Serb leadership's true state of mind in light of the totality of the evidence.Footnote ¹⁰⁷³ The Trial Chamber considered, inter alia, that Mladić's statements at the 16^th Assembly Session, as well as the language of the orders, evinced a lack of genuine concern for the well-being of civilians and the rule of law.Footnote ¹⁰⁷⁴

304. Mladić submits that the Trial Chamber erred in interpreting his statements at the 16^th Assembly Session predominantly through the lens of its findings on the Sarajevo crime baseFootnote ¹⁰⁷⁵ and in disregarding evidence of orders prohibiting the targeting of civilians.Footnote ¹⁰⁷⁶ He argues that, as a consequence of these errors, alone or in combination, the Trial Chamber erred in concluding that there was no other inference available on the evidence consistent with his innocence, and thereby erroneously inferred the existence of the Sarajevo JCE and his intention to act in furtherance thereof.Footnote ¹⁰⁷⁷ Mladić accordingly requests the Appeals Chamber to reverse his convictions for the crimes of murder, terror, and unlawful attacks on civilians under Counts 5, 9, and 10 of the Indictment, respectively, or, in the alternative, reverse the Trial Chamber's findings to the extent of the errors identified.Footnote ¹⁰⁷⁸

305. The Prosecution responds that the Trial Chamber reasonably interpreted Mladić's statements at the 16^th Assembly SessionFootnote ¹⁰⁷⁹ and appropriately discounted Mladić's orders not to fire at civilians.Footnote ¹⁰⁸⁰ The Prosecution further submits that the Trial Chamber's findings on the existence and Mladić's shared intent of the common criminal purpose do not hinge on his statements at the 16^th Assembly Session as the Trial Chamber relied on a wide range of evidence in reaching its conclusions.Footnote ¹⁰⁸¹

306. The Appeals Chamber recalls that explicit manifestations of criminal intent are often rare and that the requisite intent may therefore be inferred from relevant facts and circumstances,Footnote ¹⁰⁸² such as, inter alia, the accused's words and/or actions, as well as the general context in which they occurred.Footnote ¹⁰⁸³ Mladić, by contrast, argues that the Trial Chamber should have viewed the statements made at the 16^th Assembly Session “independent of the crime base”, and refers to an analysis by the ICTY Appeals Chamber in the Gotovina and Markač case to support his argument.Footnote ¹⁰⁸⁴ In the Appeals Chamber's view, however, Mladić misconstrues the ruling of the ICTY Appeals Chamber in the Gotovina and Markač case. In that case, after having overturned the Trial Chamber's findings as to the criminal nature of the context in which certain statements were made, the ICTY Appeals Chamber found that the existence of a joint criminal enterprise could no longer be inferred from those statements.Footnote ¹⁰⁸⁵ This does not stand for the proposition that a trial chamber should examine evidence related to intent “independent of the crime base”. As recalled above, intent is generally inferred from relevant facts and circumstances which include the accused's conduct and the context in which it took place.

307. Moreover, having carefully reviewed the Trial Judgement, as well as the minutes of the 16^th Assembly Session, the Appeals Chamber finds nothing to suggest that the Trial Chamber erred in its assessment of Mladić's specific statements.Footnote ¹⁰⁸⁶ The Trial Chamber determined that his statements at the 16^th Assembly Session evinced a desire to mislead the public about the truth of the Bosnian Serb leadership's actions in Sarajevo.Footnote ¹⁰⁸⁷ Mladić, however, submits that “the warnings that ‘[t]he thing we are doing needs to be guarded as our deepest secret’ and ‘[o]ur people must know how to read between the lines’ could be understood as a warning not to divulge legitimate military strategies needlessly”.Footnote ¹⁰⁸⁸ The Appeals Chamber considers that Mladić merely proposes alternative interpretations without demonstrating the unreasonableness of the Trial Chamber's interpretation of his statements at the 16^th Assembly Session.Footnote ¹⁰⁸⁹

308. With respect to Mladić's contention that the Trial Chamber erred by failing to give weight to orders prohibiting the targeting of civilians,Footnote ¹⁰⁹⁰ the Appeals Chamber notes that the Trial Chamber explicitly considered and discussed such orders,Footnote ¹⁰⁹¹ but concluded that they evinced a concern with insubordination or wasting of ammunition,Footnote ¹⁰⁹² and provided “mere lip-service” to support assurances to the international community and/or give the appearance of a leadership obeying the law.Footnote ¹⁰⁹³ Mladić takes issue with this assessment, contending that such orders constituted direct evidence of his intent and therefore should have weighed against a finding that he intended to further the Sarajevo JCE.Footnote ¹⁰⁹⁴ The Appeals Chamber notes, however, that, in assessing the probative value of orders prohibiting the targeting of civilians, the Trial Chamber did not only consider the language of such orders, but also, inter alia, that: (i) such orders were not adhered to and the leadership did not take measures to enforce them;Footnote ¹⁰⁹⁵ (ii) the testimonial evidence concerning the existence of standing orders not to target civilians in Sarajevo was given by former members of the SRK who may have had an interest in protecting themselves;Footnote ¹⁰⁹⁶ and (iii) Mladić stated at the 16^th Assembly Session that Serbian people would need to know how to “read between the lines”.Footnote ¹⁰⁹⁷ Mladić shows no error in the Trial Chamber's approach.

309. In light of the above, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić fails to demonstrate error in the Trial Chamber's overall assessment of his intent to commit murder, terror, and unlawful attacks on civilians in relation to the Sarajevo JCE, especially given the totality of the factors relied upon by the Trial Chamber in this respect.Footnote ¹⁰⁹⁸

(d) Alleged Errors in the Assessment of Specific Intent for the Crime of Terror

310. In finding that the sniping and shelling incidents in Sarajevo constituted the crime of terror,Footnote ¹⁰⁹⁹ the Trial Chamber determined, inter alia, that: (i) the perpetrators wilfully made civilians not taking direct part in hostilities the object of their sniping and shelling; (ii) the perpetrators intended to spread terror among the civilian population of Sarajevo; and (iii) the infliction of terror was the primary purpose of the sniping and shelling incidents.Footnote ¹¹⁰⁰

311. Mladić submits that the Trial Chamber erred in applying the same “standard of proof”, and relying on the same set of circumstantial factors, to determine the perpetrators’ wilful intent to target civilians as it did to determine their specific intent to spread terror, which requires a “higher standard of proof”.Footnote ¹¹⁰¹ He contends that, in the absence of “more precise indicia”, no reasonable trier of fact could have concluded “with any certainty” that terror was the primary purpose of the perpetrators of the alleged crimes.Footnote ¹¹⁰² Mladić submits that, as a result of the Trial Chamber's error, he was wrongly held liable for the crime of terror pursuant to a joint criminal enterprise, and accordingly requests the Appeals Chamber to reverse his conviction under Count 9 of the Indictment.Footnote ¹¹⁰³

312. The Prosecution responds that, for Mladić to be held liable as a member of the Sarajevo JCE, the physical perpetrators used as tools by the joint criminal enterprise members need not possess the intent for the crimes,Footnote ¹¹⁰⁴ and that, in any event, the Trial Chamber reasonably concluded that the SRK perpetrators of the sniping and shelling campaign specifically intended to spread terror among Sarajevo's civilian population.Footnote ¹¹⁰⁵

313. The Appeals Chamber recalls that the mens rea of the crime of terror consists of the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population.Footnote ¹¹⁰⁶ Such intent may be inferred from the circumstances of the acts or threats of violence, such as, inter alia, their nature, manner, timing, and duration.Footnote ¹¹⁰⁷ Nothing precludes a reasonable trier of fact from relying on the same set of circumstances to infer that perpetrators willfully made civilians the object of acts or threats of violence, and, at the same time, that such acts or threats of violence were committed with the primary purpose of spreading terror among the civilian population. Mladić's argument that the Trial Chamber erred in so doing because a finding of specific intent requires a “higher standard of proof”Footnote ¹¹⁰⁸ is accordingly ill-founded.

314. Moreover, in determining that spreading terror was the primary purpose of the sniping and shelling attacks in Sarajevo, the Trial Chamber considered the nature, manner, timing, location, and duration of the attacks, as well as: (i) that many civilians were targeted when carrying out daily activities such as while at the market, standing in line for food, or collecting water or firewood, and while in or around their homes or in parks and hospitals, or when travelling by tram; (ii) that children were also targeted while in school or playing or walking outside their house or on the street; (iii) that civilians were more prone to being targeted when circumstances suggested that the shooting or shelling had stopped and it was safe for them to continue their daily activities; (iv) the challenging living conditions they were subjected to; and (v) the constant and extreme fear they experienced of being hit by sniper or artillery fire.Footnote ¹¹⁰⁹ In this respect, Mladić recalls his submissions that Sarajevo was a legitimate military target,Footnote ¹¹¹⁰ which the Appeals Chamber has dismissed above.Footnote ¹¹¹¹ He further argues that the existence of fear is not an element of the crime of terror, nor does its existence alone substantiate the conclusion that terror was intended,Footnote ¹¹¹² and that the origin of such fear cannot conclusively be attributed to the SRK in light of evidence of the ABiH sniping and attacking civilians in Sarajevo.Footnote ¹¹¹³

315. The Appeals Chamber recalls that terror could be defined as “extreme fear”,Footnote ¹¹¹⁴ and that such fear was merely one of several factors from which the Trial Chamber inferred specific intent in this case.Footnote ¹¹¹⁵ The Appeals Chamber further observes that the Trial Chamber duly considered evidence of the ABiH's involvement in the events in SarajevoFootnote ¹¹¹⁶ and considers that such evidence does not detract from the Trial Chamber's findings regarding the SRK's perpetration of sniping and shelling attacks against civilians in Sarajevo and the relevant intent pertinent to such conduct.Footnote ¹¹¹⁷ Consequently, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić fails to show any error in the Trial Chamber's assessment of the SRK perpetrators’ specific intent to spread terror among the civilian population in Sarajevo.

(e) Conclusion

316. Based on the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 4.A of Mladić's appeal.

(a) Alleged Errors in Failing to Consider Evidence of Legitimate Military Activity

319. The Trial Chamber found that, in relation to Scheduled Incident G.1, following an order from Mladić, from 5 p.m. on 28 May 1992 until early the next morning, members of the SRK fired artillery, rockets, and mortars against Sarajevo, injuring Witnesses RM-115 and Fadila Tarčin and causing extensive damage to buildings.Footnote ¹¹²⁷ The Trial Chamber determined that Mladić personally directed the attack on Sarajevo, including selecting targets such as the Presidency, the town hall, police headquarters, and the children's embassy and directing the fire away from Serb-populated areas.Footnote ¹¹²⁸

320. Mladić submits that the Trial Chamber erred in finding that Scheduled Incident G.1 satisfied the elements of the crimes of terror and unlawful attacks on civilians.Footnote ¹¹²⁹ In particular, he argues that no reasonable trier of fact could have concluded beyond reasonable doubt, on the basis of the hearsay and circumstantial evidence of Witnesses Tarčin and John Wilson, that the SRK was responsible for the shelling attacks which injured Witnesses Tarčin and RM-115 and/or caused other grave consequences.Footnote ¹¹³⁰ He further argues that the Trial Chamber misconstrued the evidence of Witness RM-511 and relied on the hearsay evidence of Witness Wilson to erroneously conclude that the attacks were wilfully directed at civilians or civilian targets, in contrast with an assessment of the ICTY Appeals Chamber in the Gotovina and Markač case under similar circumstances.Footnote ¹¹³¹

321. The Prosecution responds that the Trial Chamber reasonably found that Scheduled Incident G.1 formed part of the crimes of terror and unlawful attacks on civilians, and that Mladić fails to show any error in the Trial Chamber's conclusions.Footnote ¹¹³² It contends that the Trial Chamber did not base its conclusion regarding the SRK's responsibility solely on the evidence of Witnesses Tarčin and Wilson, but also on a wealth of other circumstantial evidence.Footnote ¹¹³³ The Prosecution further contends that the Trial Chamber correctly interpreted Witness RM-511's evidence, which was among several other factors leading the Trial Chamber to reasonably conclude that Mladić and SRK members wilfully directed Scheduled Incident G.1 against civilians, and asserts that Mladić's comparison of his case with the Gotovina and Markač case is inapposite.Footnote ¹¹³⁴

322. The Appeals Chamber notes that, in reversing the conclusion of the ICTY Trial Chamber that certain artillery attacks were unlawful, the ICTY Appeals Chamber in the Gotovina and Markač case considered, inter alia, that there was no evidence that an explicit order was given to commence the unlawful attacks.Footnote ¹¹³⁵ By contrast, the Trial Chamber in the present case received evidence of Mladić explicitly ordering the attack on Sarajevo and selecting civilian targets.Footnote ¹¹³⁶ The Appeals Chamber therefore considers the Gotovina and Markač case to be distinguishable from the circumstances of the present case.

323. The Appeals Chamber recalls that trial chambers have the discretion to rely on hearsay evidenceFootnote ¹¹³⁷ and may infer the existence of a particular fact upon which the guilt of the accused depends from circumstantial evidence if it is the only reasonable conclusion that could be drawn from the evidence presented.Footnote ¹¹³⁸ Mladić's implication that the Trial Chamber could not reasonably rely on hearsay and/or circumstantial evidence to reach its conclusions is accordingly ill-founded. Moreover, the Appeals Chamber notes that the Trial Chamber's findings in relation to Scheduled Incident G.1 were not only based on the evidence of Witnesses Tarčin, Wilson, and RM-511, but also on the testimonies of Witnesses RM-115, Milan Mandivolić, Bakir Nakaš, Nedžib Ɖozo, as well as documentary evidence.Footnote ¹¹³⁹

324. In particular, in concluding that during Scheduled Incident G.1 shells were fired by the SRK and aimed at civilian targets, the Trial Chamber considered evidence, inter alia, that: (i) Witness RM-115 was seriously injured in the night of 28 May 1992 by shrapnel while at a civilian hospital;Footnote ¹¹⁴⁰ (ii) Witness Tarčin was injured in the night of 28 May 1992 by shrapnel while hiding in the cellar of her house in the neighbourhood of Širokača, and learned of the model and calibre of the shell which caused her injuries and the origin of its fire from men in Širokača who had previously served with the JNA;Footnote ¹¹⁴¹ (iii) the Stari Grad police station logbook recorded that, on 27 and 28 May 1992, VRS artillery shelled neighbourhoods within the vicinity of Širokača;Footnote ¹¹⁴² (iv) Mladić was the Commander of the VRS Main Staff,Footnote ¹¹⁴³ which comprised the SRK and other corps;Footnote ¹¹⁴⁴ (v) on 29 May 1992, Witness Wilson heard an audiotape of Mladić ordering the attack on Sarajevo, selecting civilian targets while directing fire away from Serb-populated areas and determining the calibre of fire to be used at his direct command only;Footnote ¹¹⁴⁵ and (vi) on 30 May 1992, Mladić admitted his responsibility for the attack on Sarajevo to Witness Wilson.Footnote ¹¹⁴⁶

325. The Trial Chamber also recalled the evidence of Witness RM-511,Footnote ¹¹⁴⁷ who, according to the Trial Chamber, “testified that Mladić ordered the shelling of Velešići and Pofalići, two neighbourhoods in Sarajevo, and that the civilians in these neighbourhoods be harassed throughout the night so that they could not rest”.Footnote ¹¹⁴⁸ In this regard, Mladić submits that “[W]itness RM-511 did not state that the Appellant had directed the bombardment of Sarajevo to harass civilians throughout the night”.Footnote ¹¹⁴⁹ A review of the transcript of Witness RM-511's testimony shows that the witness was made to listen to an audiotape of Mladić ordering his subordinates to “[s]hoot at Velešići, and also at Pofalići, there is not much Serb population there […] [a]nd apply artillery reconnaissance, so that they cannot sleep that we roll out their minds”.Footnote ¹¹⁵⁰ The witness explained that the expression “roll out their minds” meant “[t]o harass them throughout the night, so that they cannot rest”Footnote ¹¹⁵¹ and confirmed that Mladić, [REDACTED].Footnote ¹¹⁵² In the Appeals Chamber's view, the Trial Chamber could reasonably have concluded on the basis of such evidence that the shelling of Velešići and Pofalići was wilfully directed at harassing civilians. Mladić therefore fails to demonstrate an error in the Trial Chamber's assessment of Witness RM-511's evidence.

326. Having reviewed the evidence underlying the Trial Chamber's conclusions regarding Scheduled Incident G.1, the Appeals Chamber considers that Mladić shows no error in the Trial Chamber's approach or findings. The Appeals Chamber therefore finds, Judge Nyambe dissenting, that Mladić fails to show that the Trial Chamber erred in considering Scheduled Incident G.1 as part of the crimes of terror and unlawful attacks on civilians as well as in its determination of the existence of the Sarajevo JCE and his alleged intent to further its common purpose.

(b) Alleged Errors in Relying on Adjudicated Facts

327. The Trial Chamber found that, in relation to Scheduled Incident F.11, on 8 October 1994 during a series of shootings, an SRK member killed one person, hit two trams and seriously wounded 11 other people.Footnote ¹¹⁵³ It further found that, in relation to Scheduled Incident G.8, on 5 February 1994, members of the SRK fired a mortar shell from Mrkovići which hit Markale Market, killing 68 people and injuring over 140 others.Footnote ¹¹⁵⁴

328. Mladić submits that the Trial Chamber erred by relying on adjudicated facts to reach essential findings, particularly with respect to the SRK's responsibility, in relation to several alleged sniping and shelling incidents underpinning his convictions for the crimes of murder, terror, and/or unlawful attacks on civilians in Sarajevo.Footnote ¹¹⁵⁵ In particular, he contends that the Trial Chamber erred in: (i) failing to find that Adjudicated Fact 2303 was rebutted and then relying on it to conclude that the shots in Scheduled Incident F.11 were fired by a member of the SRK;Footnote ¹¹⁵⁶ and (ii) relying on adjudicated facts to conclude that the shell in Scheduled Incident G.8 originated from SRK territory after acknowledging that the Prosecution's own evidence could not support such a finding.Footnote ¹¹⁵⁷

329. The Prosecution responds that the Trial Chamber properly relied on adjudicated facts in relation to the events in Sarajevo and that Mladić fails to show any error in the Trial Chamber's approach.Footnote ¹¹⁵⁸

330. The Appeals Chamber recalls that “adjudicated facts that are judicially noticed […] remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial”.Footnote ¹¹⁵⁹ As such, the final evaluation of the probative value of rebuttal evidence, which includes a final assessment of its reliability and credibility, as well as the extent to which it is consistent with or contradicts adjudicated facts, “will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it”.Footnote ¹¹⁶⁰ The Appeals Chamber also recalls that, in order for it to assess arguments on appeal, the appealing party must provide precise references to relevant transcript pages or paragraphs in the decision or judgement to which the challenge is made.Footnote ¹¹⁶¹ The Appeals Chamber notes, however, that Mladić only develops and supports his arguments with precise references to relevant adjudicated facts and/or paragraphs in the Trial Judgement in relation to Scheduled Incidents F.11 and G.8.Footnote ¹¹⁶² The Appeals Chamber will therefore only consider Mladić's arguments in relation to Scheduled Incidents F.11 and G.8, and summarily dismisses his submissions under this sub-ground of appeal in relation to Scheduled Incidents F.5, F.12, F.13, F.15, F.16, G.4, G.7, and G.18 as well as Unscheduled Sniping Incidents of 24 October 1994, 22 November 1994, and 10 December 1994.

331. The Appeals Chamber notes that, in reaching its conclusions in relation to Scheduled Incident F.11, the Trial Chamber considered a number of adjudicated facts, including Adjudicated Fact 2303 according to which the shots in question were fired by an SRK member.Footnote ¹¹⁶³ With respect to the origin of the fire, Mladić contends that he presented rebuttal evidence offering a reasonable alternative, which should thus have been considered sufficient to rebut the adjudicated facts and re- open the evidentiary debate.Footnote ¹¹⁶⁴ A review of the Trial Judgement shows, however, that the Trial Chamber duly noted that, “[i]n relation to the origin of the fire, […] the Adjudicated Facts and some of the evidence differ”.Footnote ¹¹⁶⁵ The Trial Chamber also thoroughly examined whether such evidence was sufficiently reliable to rebut the presumption of the accuracy of the adjudicated facts before determining that it could safely rely on them in its findings.Footnote ¹¹⁶⁶ In this instance, Mladić does not demonstrate that it was inappropriate for the Trial Chamber to rely on adjudicated facts notwithstanding his presentation of evidence that he argued was inconsistent with them.Footnote ¹¹⁶⁷ He also does not show that the Trial Chamber misapplied the burden of proof when evaluating his evidence presented to rebut the adjudicated facts.

332. As to its findings in relation to Scheduled Incident G.8, the Trial Chamber similarly considered a number of adjudicated facts – including Adjudicated Facts 2519 and 2525 according to which the mortar shell was fired from SRK-controlled territory.Footnote ¹¹⁶⁸ Mladić points to the Trial Chamber's finding that evidence of investigations that were inconclusive as to the origin of fire did not contradict the adjudicated facts establishing the matter,Footnote ¹¹⁶⁹ and contends that the Trial Chamber impermissibly entered “into the arena of the parties” and “saved the Prosecution case” by relying on adjudicated facts instead of the Prosecution evidence.Footnote ¹¹⁷⁰ He argues that the fact that the Prosecution evidence was inconclusive as to the origin of fire should have been considered sufficient to rebut the adjudicated facts on this point.Footnote ¹¹⁷¹

333. The Appeals Chamber recalls that judicially noticed facts are presumed to be accurate, and therefore do not have to be proven again at trial, but may be challenged subject to that presumption.Footnote ¹¹⁷² As such, the Prosecution was not required to adduce evidence supporting the origin of fire as stated in the adjudicated facts,Footnote ¹¹⁷³ even if, according to Mladić, the Prosecution intended to do so.Footnote ¹¹⁷⁴ Moreover, the Appeals Chamber notes that the Trial Chamber duly considered evidence disputing that the SRK fired the shell in Scheduled Incident G.8.Footnote ¹¹⁷⁵ The Trial Chamber also thoroughly examined whether such evidence was sufficiently reliable to rebut the presumption of the accuracy of the adjudicated facts before determining that it could safely rely on them in its findings.Footnote ¹¹⁷⁶ Mladić does not demonstrate that it was inappropriate for the Trial Chamber to rely on adjudicated facts notwithstanding that the record included relevant Prosecution evidence that the Trial Chamber did not rely upon.

334. The Appeals Chamber therefore finds, Judge Nyambe dissenting, that Mladić fails to demonstrate any error in the Trial Chamber's reliance on adjudicated facts in its assessment of Scheduled Incidents F.11 and G.8.

(c) Alleged Error in Failing to Provide a Reasoned Opinion

335. The Trial Chamber found that, in relation to Scheduled Incident G.6, on 22 January 1994, three mortars were fired by a member or members of the SRK hitting a neighbourhood area where children were playing, killing six children and severely wounding six other civilians, five of whom were children.Footnote ¹¹⁷⁷ It further found that, in relation to Scheduled Incident G.7, on 4 February 1994, three mortar shells were fired by an SRK member on a residential neighbourhood of Dobrinja, killing at least eight civilians and wounding at least eighteen persons who were queuing for humanitarian aid.Footnote ¹¹⁷⁸

336. Mladić submits that the Trial Chamber erred by failing to provide a reasoned opinion in finding that the perpetrators of the attacks in Scheduled Incidents G.6 and G.7 wilfully intended to target civilians.Footnote ¹¹⁷⁹ In particular, he contends that the Trial Chamber elaborated on a number of specific incidents in reaching its conclusion that the perpetrators wilfully targeted civilians, but that Scheduled Incidents G.6 and G.7 were not included in this analysis.Footnote ¹¹⁸⁰ Mladić further argues that circumstantial evidence such as Adjudicated Fact 2434, on which the Trial Chamber relied to conclude that the attack in Scheduled Incident G.6 was not directed at a legitimate military objective, cannot, by itself, demonstrate the wilful intent of the perpetrator to attack a civilian target.Footnote ¹¹⁸¹

337. The Prosecution recalls its submissions that the SRK perpetrators’ intent is not required to be proven in order to hold Mladić liable as a member of the Sarajevo JCE, and responds that, in any event, the Trial Chamber's conclusion on the SRK perpetrators’ wilful intent for Scheduled Incidents G.6 and G.7 with regard to murder, terror, and unlawful attacks on civilians was reasoned and reasonable.Footnote ¹¹⁸²

338. The Appeals Chamber recalls that the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of acts of violence or threats may be inferred from the circumstances of the acts or threats of violence, such as, inter alia, their nature, manner, timing, and duration.Footnote ¹¹⁸³ Mladić's submission that the Trial Chamber erred in relying exclusively on circumstantial evidence such as Adjudicated Fact 2434, according to which an ABiH military unit was not the intended target of the attack in Scheduled Incident G.6,Footnote ¹¹⁸⁴ to infer the wilful intent to attack civilians is accordingly ill-founded.

339. The Appeals Chamber further recalls that a trial chamber is not required to articulate every step of its reasoning and that a trial judgement must be read as a whole.Footnote ¹¹⁸⁵ In the present case, a reading of the Trial Judgement shows that the Trial Chamber clearly considered Scheduled Incidents G.6 and G.7 among those incidents for which it inferred the intent to target civilians beyond reasonable doubt,Footnote ¹¹⁸⁶ and in respect of which it explicitly “considered a number of factors in determining whether civilians or the civilian population were targeted.”Footnote ¹¹⁸⁷ Such factors included, inter alia, that the victims were civilians, that they were in residential areas when targeted, and that there were no military targets in their vicinity.Footnote ¹¹⁸⁸

340. In light of the above, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić does not demonstrate that the Trial Chamber failed to provide a reasoned opinion in finding that perpetrators of the attacks in Scheduled Incidents G.6 and G.7 wilfully intended to target civilians.

(d) Alleged Errors in Inferring SRK Responsibility from Circumstantial Evidence

341. The Trial Chamber found that, in relation to Scheduled Incident F.5, on 2 November 1993, a member of the SRK targeted, shot, and injured a Bosnian Muslim civilian in her leg.Footnote ¹¹⁸⁹ It determined that the shot was fired by a member of the SRK on the basis that it originated from SRK-held territory.Footnote ¹¹⁹⁰ The Trial Chamber similarly determined that the SRK was responsible for a number of other incidents on the basis that the fire in those incidents originated from SRK-held territory.Footnote ¹¹⁹¹

342. Mladić submits that the Trial Chamber erred in inferring the SRK's responsibility for alleged incidents such as Scheduled Incident F.5 on the sole basis that the fire originated from SRK-held territory.Footnote ¹¹⁹² He contends that the Trial Chamber failed to consider exculpatory evidence such as that the ABiH were, at times, tasked to snipe civilians in Sarajevo to make it appear as though the SRK were responsible,Footnote ¹¹⁹³ and argues that the Trial Chamber's errors in this regard affected a number of other incidents.Footnote ¹¹⁹⁴

343. The Prosecution responds that the Trial Chamber reasonably found the SRK to be responsible when fire originated from SRK-held territory since this was the only inference available on the evidence.Footnote ¹¹⁹⁵ It also contends that the Trial Chamber did address the possibility that the ABiH fired from SRK-held territory.Footnote ¹¹⁹⁶

344. The Appeals Chamber recalls that a trial chamber may infer the existence of a particular fact upon which the guilt of the accused depends from circumstantial evidence if it is the only reasonable conclusion that would be drawn from the evidence presented.Footnote ¹¹⁹⁷ As such, the Trial Chamber's inference that the SRK must have been responsible for fire that originated from SRK- held territory is not per se unreasonable, unless the relevant evidence would suggest otherwise. In this respect, the Appeals Chamber notes that Mladić does not support his argument that the ABiH could also have been responsible for firing at civilians from SRK-held territory with references to any evidence underlying any of the specific incidents he contends were affected by the Trial Chamber's alleged error.Footnote ¹¹⁹⁸

345. Moreover, a review of the Trial Judgement shows that the Trial Chamber explicitly considered and analyzed exculpatory evidence disputing the origin of fire, including evidence of possible ABiH involvement, in respect of certain incidents.Footnote ¹¹⁹⁹ With respect to Scheduled Incident F.5, for example, the Trial Chamber considered the evidence of Witness Mile Poparić, who testified that there was a line of sight from ABiH-held territory to the impact site and that the shot could not have come from Serb-held positions.Footnote ¹²⁰⁰ The Trial Chamber concluded that such evidence was not sufficiently reliable to rebut Adjudicated Facts 2263 and 2266 establishing that the shot was fired from SRK-held territory, and that any remaining contradictory evidence related to marginal aspects of the incident and did not affect the outcome of its finding.Footnote ¹²⁰¹ The Trial Chamber further noted that the only evidence to support the Defence's argument that “ABiH units sn[uck] into SRK-held territory and fired from there into the city” was hearsay evidence, which the Trial Chamber determined to be “very vague and insufficiently probative to affect the Trial Chamber's finding in this regard”.Footnote ¹²⁰² In determining SRK responsibility with respect to several other incidents, the Trial Chamber “refer[red] to its considerations […] as set out in its factual finding on Scheduled Incident F.5”.Footnote ¹²⁰³ Mladić demonstrates no error in the Trial Chamber's approach. The Appeals Chamber, Judge Nyambe dissenting, accordingly dismisses Mladić's arguments in this respect.

(e) Conclusion

346. Based on the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 4.B of Mladić's appeal.Footnote ¹²⁰⁴

(a) Alleged Errors Concerning the Common Plan for Forcible Removal

351. The Trial Chamber found that the VRS began attacking the Srebrenica enclave on 6 July 1995,Footnote ¹²¹⁴ and, as a result, thousands of Bosnian Muslims fled to Potočari seeking protection within the UNPROFOR compound.Footnote ¹²¹⁵ The Trial Chamber held that the displacement of the Bosnian Muslim civilians gathered in Potočari was organized by the VRS and the MUP and took place, for the first convoy only, under the supervision and escort of UNPROFOR.Footnote ¹²¹⁶ In considering the displacements, the Trial Chamber recalled: (i) the circumstances surrounding the movement of population from Srebrenica to Potočari, including the orders by the VRS 10^th Sabotage Detachment to Srebrenica Town inhabitants to leave, the shells fired by the VRS at the UNPROFOR Bravo compound in Srebrenica, and the mortars fired along the road taken by the Bosnian Muslims fleeing towards Potočari; (ii) the situation in the UNPROFOR compound in Potočari and its surroundings, where the population sought refuge, namely the shots and shells fired around the compound, the dire living conditions, and the fear and exhaustion of the Bosnian Muslims who had sought refuge there; and (iii) that the VRS, assisted by MUP units, coordinated the boarding of buses, ultimately forcing women, children, and the elderly onto the buses while some were hit by members of the MUP, and that the VRS escorted the buses towards Bosnian Muslim controlled territory.Footnote ¹²¹⁷ Based on the above, the Trial Chamber concluded that the approximately 25,000 Bosnian Muslims, mostly women, children, and the elderly who left Potočari to go to Bosnian Muslim controlled territory, did not have a genuine choice but to leave.Footnote ¹²¹⁸

352. With respect to Mladić's role in the transfers, the Trial Chamber found that Mladić gave several orders in relation to the displacement of the Bosnian Muslim civilians from Srebrenica, including the transportation of Bosnian Muslim civilians out of Potočari.Footnote ¹²¹⁹ In particular, the Trial Chamber found that Mladić and other VRS officers, a representative of the Serb civilian leadership in Srebrenica, UNPROFOR members, and “representatives” of the Bosnian Muslim population “agreed” on 12 July 1995 that the evacuation of the Bosnian Muslim civilians would be organized by the VRS and Bosnian Serb police forces, and would take place under the supervision and escort of UNPROFOR.Footnote ¹²²⁰

353. Mladić submits that the Trial Chamber erred in inferring that he was part of a joint criminal enterprise to eliminate the Bosnian Muslims of Srebrenica through their forcible transfer given that the totality of the evidence allowed for another reasonable inference – namely that he was acting in coordination with high-level Dutch Battalion (“DutchBat”)/UNPROFOR officials to evacuate civilians for humanitarian reasons.Footnote ¹²²¹ He asserts that there was ample evidence that the evacuations were necessary and observes that the Trial Chamber credited evidence that he had given civilians a choice to leave.Footnote ¹²²² In this context, he argues that the Trial Chamber gave no or insufficient weight to evidence that he evacuated civilians pursuant to UN requests to coordinate humanitarian evacuations.Footnote ¹²²³ Mladić requests that the Appeals Chamber reverse the Trial Chamber's findings of forcible transfer under the first form of joint criminal enterprise or, alternatively, reverse the findings to the extent of the errors identified.Footnote ¹²²⁴

354. The Prosecution responds that Mladić disagrees with the Trial Chamber's evidentiary assessment without demonstrating error.Footnote ¹²²⁵ It argues that the Trial Chamber considered and rejected Mladić's argument that the evidence suggested that the civilian population was evacuated for humanitarian reasons.Footnote ¹²²⁶

355. Mladić replies that the Prosecution has taken the Trial Chamber's findings out of context and did not respond to the errors he identified.Footnote ¹²²⁷

356. The Appeals Chamber observes that Mladić seeks to demonstrate under this ground of appeal that the evacuations were not unlawful. The Appeals Chamber recalls that forcible transfer entails the displacement of persons from the area in which they are lawfully present, without grounds permitted under international law.Footnote ¹²²⁸ The requirement that the displacement be forced is not limited to physical force but can be met through the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, or taking advantage of a coercive environment. It is the absence of genuine choice that makes the displacement unlawful. While fear of violence, use of force, or other such circumstances may create an environment where there is no choice but to leave, the determination as to whether a transferred person had a genuine choice is one to be made in the context of a particular case being considered.Footnote ¹²²⁹ Displacement may be permitted by international law in certain limited circumstances,Footnote ¹²³⁰ provided it is temporary in natureFootnote ¹²³¹ and conducted humanely.Footnote ¹²³² Notably, however, displacement is not permissible where the humanitarian crisis that caused the displacement is the result of the accused's own unlawful activity.Footnote ¹²³³ In addition, the participation of a non-governmental organization in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful.Footnote ¹²³⁴

357. The Appeals Chamber observes that the Trial Chamber considered whether the displacement of the Bosnian Muslim civilians gathered in Potočari on 12 and 13 July 1995 was undertaken pursuant to an evacuation permitted by international law and found that this was not the case.Footnote ¹²³⁵ Mladić contends that the Trial Chamber failed to give sufficient weight to evidence that the transfers were necessary for humanitarian reasons and that he “worked in coordination with” UNPROFOR to evacuate the civilians.Footnote ¹²³⁶ The Appeals Chamber observes that, when addressing the attacks on Srebrenica, the displacement of the Bosnian Muslim civilians, and Mladić's role in the Srebrenica JCE, the Trial Chamber considered the evidence to which Mladić points on appeal.Footnote ¹²³⁷ The Appeals Chamber also observes that the Trial Chamber correctly recalled that “the displacement of persons carried out pursuant to an agreement among political or military leaders or under the auspices of an organization does not necessarily make it voluntary”.Footnote ¹²³⁸ While Mladić seeks to emphasize cooperation with international organizations with respect to the relocations of civilians from Srebrenica, he ignores the Trial Chamber's finding that DutchBat soldiers accompanied only the first convoys on 12 July 1995 but were then stopped by the VRS and that VRS soldiers stole DutchBat jeeps as well as weapons and equipment, rendering further DutchBat escorts impossible.Footnote ¹²³⁹ Mladić does not contest these conclusions.

358. Moreover, Mladić fails to undermine the core findings relied upon by the Trial Chamber to determine that the displacements from Srebrenica were not lawful. Significantly, the Trial Chamber recalled that it was the conduct of the VRS that precipitated the humanitarian crises that preceded the displacements as well as the violent nature in which the VRS effected the displacements.Footnote ¹²⁴⁰ The Trial Chamber concluded that, in such circumstances, the civilians who left Srebrenica in July 1995 “did not have a genuine choice but to leave”.Footnote ¹²⁴¹ Furthermore, in assessing displacements cumulatively, which included those related to Srebrenica in July 1995, the Trial Chamber found that the transfers were “not carried out for the security of the persons involved, but rather to transfer them out of certain municipalities” and that no steps were taken to secure the return of those displaced.Footnote ¹²⁴² On this basis, the Trial Chamber concluded that there “were no circumstances that justified the displacement […] as recognized by international law”.Footnote ¹²⁴³

359. In view of the foregoing, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić fails to demonstrate that the Trial Chamber erred with respect to the Srebrenica JCE in finding that the removal of Bosnian Muslim women, young children, and some elderly men from Srebrenica was forcible.

(b) Alleged Errors Concerning the Common Plan to Commit Genocide, Extermination, and Murder

360. The Trial Chamber found that, by the morning of 12 July 1995, the objective of the Srebrenica JCE developed to involve the commission of the crimes of genocide, extermination, and murder.Footnote ¹²⁴⁴ In reaching this finding, the Trial Chamber specifically considered its findings that Momir Nikolić, Kosorić, and Popović discussed the “killings on the morning of 12 July 1995” as well as findings that Tolimir first ordered that Batković camp be prepared for a large number of detainees and thereafter conveyed that this plan had been given up.Footnote ¹²⁴⁵

361. As it concerns Mladić's involvement in the Srebrenica JCE, the Trial Chamber found, inter alia, that between at least 11 July and 11 October 1995, Mladić issued several orders to VRS forces, including the Drina Corps, concerning the operation in and around Srebrenica, provided misleading information about the crimes, and failed to take adequate steps to investigate and/or punish the perpetrators.Footnote ¹²⁴⁶ The Trial Chamber held that Mladić significantly contributed to achieving the objective of the Srebrenica JCE.Footnote ¹²⁴⁷

362. The Trial Chamber further determined that Mladić shared the intent to achieve the common objective of the Srebrenica JCE, including genocidal intent, based on his statements and conduct throughout the take-over of the Srebrenica enclave, including: (i) his command and control over VRS and MUP units operating in and around Srebrenica in July 1995; (ii) his role in the Hotel Fontana meetings on 11 and 12 July 1995, including statements that the Bosnian Muslims could either “live or vanish”, “survive or disappear”, and that only the people who could secure the surrender of weapons would save the Bosnian Muslims from “destruction”; (iii) his presence in a meeting at the Bratunac Command Centre on 13 July 1995 with VRS and MUP officers during which the task of killing 8,000 Muslim males near Konjević Polje was discussed; (iv) his presence during the gathering and separation of Bosnian Muslims in Potočari on 12 and 13 July 1995; (v) his denial of the crimes committed in Srebrenica; and (vi) the measures he took to provide misleading information and prevent the media from knowing what was happening in Srebrenica.Footnote ¹²⁴⁸

363. Mladić contends that the Trial Chamber gave insufficient weight to the lack of direct, indirect, or corroborative evidence that a meeting occurred between 11 and 12 July 1995 wherein the criminal objective to commit genocide, extermination, and murder was discussed or agreed upon.Footnote ¹²⁴⁹ He submits that the Trial Chamber: (i) erroneously relied on hearsay evidence from Witness Momir Nikolić to indirectly conclude that such a meeting occurred;Footnote ¹²⁵⁰ (ii) failed to take into account that the evidence demonstrated that Mladić would not have had the opportunity to attend such a meeting;Footnote ¹²⁵¹ and (iii) failed to sufficiently account for Prosecution and Defence evidence that the only known meeting including Mladić and his subordinates that occurred at that time involved no discussion of killings or any criminal objective.Footnote ¹²⁵²

364. Mladić further submits that the Trial Chamber inferred his participation in the common criminal enterprise based on his statements at the Hotel Fontana meetings and command and control over the VRS and the MUP but erred by: (i) giving insufficient weight to the military context in which the statements at the Hotel Fontana meetings were made;Footnote ¹²⁵³ and (ii) placing undue weight on his position and role in the military without sufficiently accounting for the absence of evidence “showing direct orders”.Footnote ¹²⁵⁴

365. Mladić argues that, in light of the above, another reasonable inference was available and, therefore, the actus reus for the Srebrenica JCE supporting his convictions for genocide, extermination, and murder is not established beyond reasonable doubt.Footnote ¹²⁵⁵ He requests that the Appeals Chamber reverse these convictions or, alternatively, reverse the findings to the extent of the errors identified.Footnote ¹²⁵⁶

366. The Prosecution responds that it was not its case at trial, and that the Trial Chamber never found, that there was a specific meeting on the night of 11 to 12 July 1995,Footnote ¹²⁵⁷ but rather that the plan “must have been discussed and decided upon sometime between the evening of 11 July […] and 10:00 hours on 12 July”.Footnote ¹²⁵⁸ Accordingly, the Prosecution argues that Mladić's challenge to such a non-existent finding should be summarily dismissed.Footnote ¹²⁵⁹ It further submits that the Trial Chamber specifically considered the argument that there was no evidence of a meeting where crimes were discussed and that Mladić fails to demonstrate how the Trial Chamber gave insufficient weight to that argument.Footnote ¹²⁶⁰ The Prosecution argues that the Trial Chamber was entitled to rely upon the evidence as it did and that Mladić identifies no error.Footnote ¹²⁶¹ The Prosecution further contends that Mladić's submissions that the Trial Chamber placed undue weight on his position and role in the military and gave insufficient weight to a lack of direct orders are unsupported.Footnote ¹²⁶²

367. Mladić replies that the Prosecution fails to engage with or undermine the legal or factual bases of his submissions.Footnote ¹²⁶³ He contends that the Prosecution submissions misrepresent his arguments and that the Prosecution incorrectly relies on inapplicable evidence.Footnote ¹²⁶⁴

368. The Appeals Chamber observes that, contrary to Mladić's submissions, the Trial Chamber made no finding that a meeting attended by Mladić and his subordinates occurred between 11 and 12 July 1995 wherein the common criminal plan to commit genocide, extermination, and murder was discussed or formulated. In this respect, Mladić simply points to evidence summarized by the Trial Chamber or arguments made by the Prosecution rather than any finding made by the Trial Chamber.Footnote ¹²⁶⁵ Consequently, Mladić's arguments that the Trial Chamber erroneously relied on Witness Momir Nikolić's hearsay evidence to reach such a conclusion as well as his contentions that the evidence on the record would not have permitted Mladić to attend such a meeting are without merit and are dismissed. In light of this conclusion, the Appeals Chamber further dismisses as moot Mladić's arguments that the Trial Chamber erred by relying on Witness Momir Nikolić's evidence because: (i) his evidence of a meeting occurring between 11 and 12 July 1995 did not establish a link with Mladić; (ii) it failed to account for Witness Bursik's evidence and its own determination that Witness Momir Nikolić lacked credibility; and (iii) it relied upon Exhibit D1228 for the truth of its contents to establish the occurrence of this meeting contrary to Rules 43, 92 bis or 92 quater of the ICTY Rules and because the Prosecution did not rely on it in its closing submissions for this purpose.Footnote ¹²⁶⁶

369. Furthermore, Mladić does not show that the Trial Chamber failed to sufficiently account for evidence of his participation in a meeting in which no discussion of killings or any criminal act took place. Mladić's arguments are premised on the Trial Chamber's summaries of evidence of a meeting at the Bratunac Brigade headquarters on 11 or 12 July 1995,Footnote ¹²⁶⁷ which the Trial Chamber clearly considered and made findings on.Footnote ¹²⁶⁸ Mladić has not shown that the Trial Chamber disregarded this evidence or that it is inconsistent with its conclusion that the crimes of genocide, extermination, and murder became part of the means to achieve the elimination of Bosnian Muslims in Srebrenica by the early morning of 12 July 1995, prior to the first crime being committed.Footnote ¹²⁶⁹ Notably, in reaching this conclusion, the Trial Chamber specifically considered its findings that: (i) the VRS intended to empty the enclave; (ii) the crimes of persecution and inhumane acts (forcible transfer) were committed following the attack, noting that the crimes of genocide, extermination, and murder became part of the means to achieve the objective by early 12 July 1995; (iii) Momir Nikolić, Kosorić, and Popović discussed the killings on the morning of 12 July 1995; and (iv) Tolimir first ordered that Batković camp be prepared for a large number of detainees and thereafter conveyed that this plan had been given up.Footnote ¹²⁷⁰

370. Turning to Mladić's argument that the Trial Chamber failed to give sufficient weight to the military context in which his statements at the second Hotel Fontana meeting were made, the Appeals Chamber finds that the evidence cited by him does not support this argument.Footnote ¹²⁷¹ The Trial Chamber found that Mladić intended to commit genocide based in part on statements made at the second Hotel Fontana meeting wherein he stated that the Bosnian Muslims could either “live or vanish” and “survive or disappear”.Footnote ¹²⁷² Mladić points to the evidence of Witnesses Richard Butler and Kovač in support of his argument.Footnote ¹²⁷³ However, Witness Butler expressly declined to interpret Mladić's statements quoted above,Footnote ¹²⁷⁴ while Witness Kovač's evidence cited by Mladić relates only to the question of the surrender of the 28^th Division of the ABiH, not the statements in question.Footnote ¹²⁷⁵ The Appeals Chamber finds that this evidence does not substantiate Mladić's submission that the Trial Chamber failed to sufficiently consider the military context in which his statements were made and he has identified no error in this respect.

371. As to Mladić's contention that the Trial Chamber placed undue weight on his position and role in the military without sufficiently accounting for the absence of evidence showing his direct orders, the Appeals Chamber observes that Mladić refers to paragraphs of the Trial Judgement assessing his contributions and his mens rea with respect to the Srebrenica JCE in isolation.Footnote ¹²⁷⁶ His undeveloped arguments do not demonstrate any errors in the conclusions reached in those paragraphs and, notably, ignore several findings of the Trial Chamber that he issued orders in relation to the Srebrenica operations.Footnote ¹²⁷⁷ Consequently, the Appeals Chamber dismisses these contentions.

372. Based on the foregoing, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić does not show that the Trial Chamber erred in relation to his participation in the Srebrenica JCE as it pertains to his convictions for genocide, extermination, and murder.

(c) Conclusion

373. In light of the above, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 5.A of Mladić's appeal.

(a) Evidence of Mladić's Absence from Srebrenica

376. Mladić submits that, had sufficient weight been given to the evidence of his absence from Srebrenica at the time the crimes were committed, a reasonable trier of fact would not have concluded that he exercised command and control over VRS and MUP forces during that time period.Footnote ¹²⁹⁰ In this respect, Mladić argues that in relying on four orders issued between 14 and 16 July 1995 to illustrate his command and control while he was away in Belgrade,Footnote ¹²⁹¹ the Trial Chamber failed to provide a reasoned opinion on how the Four Orders could be attributed to him.Footnote ¹²⁹² In particular, he submits that the Trial Chamber failed to give sufficient weight to the content of the Four Orders, specifically that they: (i) relate to the day-to-day running of the army, and not to, inter alia, military operations and Srebrenica;Footnote ¹²⁹³ (ii) were not sent to units in Srebrenica or to any MUP forces;Footnote ¹²⁹⁴ and (iii) had unique identification numbers, which indicates that the Four Orders emanated from the General Staff of the VRS.Footnote ¹²⁹⁵ He also contends that while the Trial Chamber accepted Witness Stevanović's evidence that “s.r./signed” on a document did not always mean that the individual whose signature appeared on the document was aware of it or had actually signed it, the Trial Chamber did not consider this in respect of the Four Orders.Footnote ¹²⁹⁶

377. Mladić further submits that the Trial Chamber failed to give sufficient weight to evidence of the change in the command structure while he was in Belgrade in July 1995, in particular that the then VRS Chief of Staff, Manojlo Milovanović, replaced him as de jure and de facto Commander of the VRS.Footnote ¹²⁹⁷ He contends that the Trial Chamber placed undue weight on four intercept communications between 14 and 16 July 1995,Footnote ¹²⁹⁸ and that, even if authentic,Footnote ¹²⁹⁹ they provided insufficient evidence for a reasonable trier of fact to conclude that Mladić continued to exercise command and control of the VRS while he was away.Footnote ¹³⁰⁰

378. The Prosecution responds that the Trial Chamber reasonably found that Mladić exercised command and control during the entire Srebrenica operation, including between 14 and 16 July 1995 when he was in Belgrade.Footnote ¹³⁰¹ Specifically, it argues that the Trial Chamber considered the Four Orders in their context to find that Mladić issued them, and that they, along with other mutually corroborating evidence, demonstrate his exercise of command and control from Belgrade.Footnote ¹³⁰² The Prosecution further contends that Mladić's undeveloped argument that Milovanović replaced him as Commander of the VRS while he was in Belgrade should be summarily dismissed,Footnote ¹³⁰³ and that the Trial Chamber reasonably concluded that intercepted communications between 14 and 16 July 1995 demonstrate Mladić's continued command and control over the VRS from Belgrade.Footnote ¹³⁰⁴

379. The Appeals Chamber notes that the Trial Chamber found that irrespective of whether Mladić was in Srebrenica or in Belgrade in July 1995, he remained the Commander of the VRS Main Staff.Footnote ¹³⁰⁵ In reaching this finding, the Trial Chamber considered that, throughout July 1995, including during his travel to Belgrade, Mladić: (i) was in contact with the VRS Main Staff and maintained command and control; (ii) gave orders to VRS units which were implemented; (iii) took measures to ensure the implementation of his orders, including when he was not present on the ground; and (iv) communicated over the phone with Milovanović on a regular basis.Footnote ¹³⁰⁶ In particular, the Trial Chamber addressed in detail communications and orders by Mladić, as well as conversations between Mladić and other members of the Bosnian Serb leadership, including Milovanović, during his absence from Srebrenica.Footnote ¹³⁰⁷ In light of the above, the Appeals Chamber finds that Mladić's submission in relation to the Trial Chamber's weighing of evidence relating to his absence from Srebrenica reflects mere disagreement with the Trial Chamber's assessment of evidence without demonstrating any error. The Appeals Chamber recalls that the mere assertion that a trial chamber failed to give proper weight to evidence is liable to be summarily dismissed.Footnote ¹³⁰⁸

380. With respect to the alleged failure to provide a reasoned opinion on how the Four Orders could be attributed to Mladić, the Appeals Chamber recalls that, in claiming an error of law on the basis of the lack of a reasoned opinion, a party is required to identify the specific issues, factual findings, or arguments that the trial chamber omitted to address and explain why this omission invalidates the decision.Footnote ¹³⁰⁹ In this regard, the Appeals Chamber considers that Mladić does not demonstrate that the Trial Chamber failed to provide a reasoned opinion with respect to the Four Orders,Footnote ¹³¹⁰ given that it specifically described the content of each individual order in the Trial Judgement, considered the addressees, and noted that the Four Orders were either signed by or came from Mladić.Footnote ¹³¹¹ Further, and contrary to the arguments raised by Mladić, the Four Orders do relate to the Srebrenica operations and/or Mladić's continued command over the VRS and the MUP during his time in Belgrade, and they are addressed to the Drina Crops or other units in Srebrenica.Footnote ¹³¹² Mladić also fails to demonstrate how the unique identification numbers associated with the Four Orders would undermine the Trial Chamber's finding that he issued the Four Orders.Footnote ¹³¹³ Similarly, while the Trial Chamber did not expressly address, when assessing Mladić's role in issuing the Four Orders, Witness Stevanović's evidence that “s.r./signed” did not always mean that the individual whose signature appeared on the document was aware of it or had signed it, the Trial Chamber recalled this evidence when examining his role in issuing another order signed in this manner in respect of which it concluded that the order was issued by Mladić.Footnote ¹³¹⁴ Recalling that a trial judgement is to be considered as a whole,Footnote ¹³¹⁵ the Appeals Chamber finds that Mladić fails to demonstrate that the Trial Chamber gave insufficient weight to this evidence or that it undermines the reasonableness of its findings relating to the Four Orders.

381. In relation to Mladić's contention regarding the change in the command structure, the Appeals Chamber observes that he merely repeats his submissions at trial that Milovanović replaced him as de jure and de facto Commander of the VRS while he was away in Belgrade.Footnote ¹³¹⁶ The Appeals Chamber recalls that on appeal a party cannot merely repeat arguments that did not succeed at trial, unless it can demonstrate that the trial chamber's rejection of those arguments constituted an error warranting the intervention of the Appeals Chamber.Footnote ¹³¹⁷ While Mladić refers to the evidence of Witnesses Milovanović and Stevanović to support his argument,Footnote ¹³¹⁸ the Appeals Chamber observes that Witness Milovanović's evidence that, when the command and control structure did not function as intended, he always sought Mladić's approval before he proceeded, supports rather than undermines the Trial Chamber's finding in question.Footnote ¹³¹⁹ Furthermore, Witness Stevanović's testimony only shows that VRS Chief of Staff, Milovanović, might replace Mladić as de jure Commander of the VRS during his absence.Footnote ¹³²⁰ Mladić does not demonstrate how this evidence could undermine the Trial Chamber's finding, based on the totality of the evidence, that he remained the Commander of the VRS Main Staff during his absence from Srebrenica.Footnote ¹³²¹ The Appeals Chamber therefore finds that, apart from repeating his submissions at trial, Mladić fails to demonstrate that the Trial Chamber's rejection of those arguments constituted an error, thereby failing to satisfy his burden on appeal.

382. The Appeals Chamber will now turn to Mladić's submission that the Trial Chamber placed undue weight on four intercept communications as evidence of his command and control over the VRS during his absence from Srebrenica. The Appeals Chamber observes that, when considering communications and orders issued by Mladić between 14 and 16 July 1995,Footnote ¹³²² the Trial Chamber examined the content of the four intercept communications, which showed, inter alia, the briefings he received and instructions he issued regarding the operations in the Zvornik area.Footnote ¹³²³ Mladić's alternative interpretation that the four intercept communications do not contain any orders fails to show that the Trial Chamber's conclusion was unreasonable.Footnote ¹³²⁴ In this respect, the Trial Chamber noted that certain of the intercepts do contain orders or instructions,Footnote ¹³²⁵ and in any event, the Appeals Chamber considers that the absence of orders from the four intercept communications would not, in itself, undermine the Trial Chamber's finding that Mladić remained the Commander of the VRS Main Staff during his absence from Srebrenica.Footnote ¹³²⁶ The Appeals Chamber therefore finds that Mladić's arguments in this respect reflect mere disagreement with the Trial Chamber's assessment of the evidence without demonstrating an error. The Appeals Chamber reiterates that the mere assertion that the Trial Chamber failed to give proper weight to evidence or that it should have interpreted evidence in a particular manner is liable to be summarily dismissed.Footnote ¹³²⁷

383. In light of the foregoing, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić does not show an error in the Trial Chamber's conclusion that he exercised command and control over VRS and MUP forces during his absence from Srebrenica.

(b) Command and Control over Members of the MUP

384. Mladić submits that, with a proper weighing of evidence, no reasonable trier of fact could have concluded that he exercised command and control over MUP forces.Footnote ¹³²⁸ In this respect, he argues that the Trial Chamber gave undue weight to the joint elements of the MUP's cooperation with the VRS and insufficient weight to evidence that the MUP was acting as a separate entity.Footnote ¹³²⁹ Mladić therefore contends that the Trial Chamber conflated “cooperation and coordinated action” with “re-subordination”Footnote ¹³³⁰ and failed to consider the totality of the evidence demonstrating the MUP's coordination with the VRS, as opposed to re-subordination.Footnote ¹³³¹

385. The Prosecution responds that Mladić fails to show any error in the Trial Chamber's conclusion that, from 11 until at least 17 July 1995, MUP units under Borovčanin's command deployed in the area of Srebrenica were under VRS command and that the Trial Chamber properly distinguished cooperation and coordination from re-subordination.Footnote ¹³³² The Prosecution further contends that the evidence referenced by Mladić either supports the conclusions of the Trial Chamber or is irrelevant.Footnote ¹³³³

386. The Appeals Chamber observes that the Trial Chamber found that from 11 until at least 17 July 1995 the MUP forces deployed in the sector of Srebrenica under Borovčanin were under the command of the VRS.Footnote ¹³³⁴ In reaching this finding, the Trial Chamber specifically addressed Mladić's submission and related evidence that MUP forces were operating under their own command under Borovčanin as of 12 or 13 July 1995.Footnote ¹³³⁵ The Trial Chamber further addressed in detail other evidence demonstrating: (i) the involvement of MUP forces in the Srebrenica operation and in Potočari pursuant to an order from the VRS Supreme Commander;Footnote ¹³³⁶ (ii) the direct orders Borovčanin and his forces received from Mladić and other VRS officers about their deployment and military actions;Footnote ¹³³⁷ and (iii) the reporting of MUP activities to the VRS Bratunac Brigade.Footnote ¹³³⁸

387. Against this background, and recalling that trial chambers have broad discretion in weighing evidence,Footnote ¹³³⁹ the Appeals Chamber finds Mladić's contention – that the Trial Chamber gave undue weight to the joint elements of the MUP's cooperation with the VRS and insufficient weight to evidence that the MUP was acting as a separate entityFootnote ¹³⁴⁰ – to reflect mere disagreement with the Trial Chamber's assessment of the evidence without showing any error.

388. Moreover, contrary to Mladić's assertion,Footnote ¹³⁴¹ the Trial Chamber clearly distinguished coordination and re-subordination of military units.Footnote ¹³⁴² In particular, the Trial Chamber pointed out that “[w]hen re-subordinated, the MUP forces followed orders issued by the VRS. The Commander of the VRS unit to which the MUP unit was re-subordinated and the Commander of the MUP unit coordinated their work in carrying out the tasks assigned by the VRS”.Footnote ¹³⁴³ On the basis of this and other supporting evidence, the Trial Chamber explicitly found that when MUP units were participating in combat operations from at least 12 May 1992 until at least 26 September 1995, they were re-subordinated to the command of the VRS, meaning that they were tasked by the VRS and followed orders issued by the VRS.Footnote ¹³⁴⁴ The Appeals Chamber further considers that evidence of joint operations of the MUP and the VRS does not, on its own, negate evidence of the MUP's subordination to the VRS at the time in question, and that evidence that distinguishes between coordination and re-subordination is consistent with the Trial Chamber's findings.Footnote ¹³⁴⁵ Considering the Trial Chamber's detailed analysis of evidence demonstrating the re-subordination of the MUP to the VRS, as well as the MUP's coordination with the VRS,Footnote ¹³⁴⁶ the Appeals Chamber finds that Mladić fails to demonstrate that the Trial Chamber systematically adopted a selective approach to the evidence in its analysis in this respect. The Appeals Chamber also notes that Mladić selectively relies on certain portions of Witness Momir Nikolić's testimony to prove this alleged cooperation and coordinated action, disregards Witness Momir Nikolić's testimony that Borovčanin received orders from Mladić, and ignores other evidence establishing that MUP units were re-subordinated to the VRS and to Mladić.Footnote ¹³⁴⁷ Furthermore, Mladić's claim that the fact that the VRS order of 13 July 1995, namely that “forces of the [VRS] mostly regrouped in order to go to Žepa”, did not mention the MUP does not undermine the Trial Chamber's finding that MUP units were re- subordinated to the VRS.Footnote ¹³⁴⁸ In fact, the Trial Chamber found that on 13 July 1995, Mladić tasked the MUP units with “organizing the evacuation of approximately 15,000 civilians from Srebrenica to Kladanj” and “[k]illing of about 8,000 Muslim soldiers”.Footnote ¹³⁴⁹

389. In light of the above, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić fails to demonstrate any error in the Trial Chamber's finding that, from 11 until at least 17 July 1995, the MUP forces deployed in the sector of Srebrenica under Borovčanin were under VRS command and its dismissal of the argument that the MUP forces were operating under their own command in Srebrenica as of 12 or 13 July 1995.

(c) Orders Given by Mladić

390. Mladić submits that, in its analysis of his significant contribution to the Srebrenica JCE, the Trial Chamber failed to give sufficient weight to the military context and contents of legitimate military orders he issued in Srebrenica, and erroneously concluded that the only reasonable inference to be drawn from the orders was that he significantly contributed to the common criminal objective.Footnote ¹³⁵⁰ Mladić contends that, in finding that Directive 7/1 did not rescind Directive 7, the Trial Chamber placed undue weight on the language of Directive 7,Footnote ¹³⁵¹ and, without providing a reasoned opinion, insufficient weight on the evidence of Witness Butler that operation Krivaja-95 (“Krivaja-95”) was a legitimate military operation.Footnote ¹³⁵² Mladić further submits that, in finding that his order of 13 July 1995 was intended to mislead the media and the international community about the events in Srebrenica, the Trial Chamber did not properly consider the language of the order and the context in which it was given, while placing insufficient weight on similar orders aimed at preventing classified military information from being leaked.Footnote ¹³⁵³

391. The Prosecution responds that Mladić fails to show error in the Trial Chamber's conclusion that he significantly contributed to the common purpose by issuing orders concerning the Srebrenica operation to VRS and MUP forces.Footnote ¹³⁵⁴ In this respect, the Prosecution argues that Mladić: (i) ignores that his contribution to the common purpose need not be per se criminal;Footnote ¹³⁵⁵ (ii) merely seeks to substitute his interpretation of orders regarding Directive 4,Footnote ¹³⁵⁶ Krivaja-95,Footnote ¹³⁵⁷ and Directive 7;Footnote ¹³⁵⁸ and (iii) fails to demonstrate that the Trial Chamber acted unreasonably in considering his orders concerning the Srebrenica operation.Footnote ¹³⁵⁹ The Prosecution further responds that, given that none of the allegedly “similar orders” Mladić cites is comparable, the Trial Chamber reasonably concluded that the 13 July 1995 order limiting access for local and foreign journalists to the Srebrenica area and banning the provision of information on prisoners of war, evacuated civilians, and escapees was intended to keep the international community from learning what was happening in Srebrenica.Footnote ¹³⁶⁰

392. The Appeals Chamber notes that the Trial Chamber found that Mladić significantly contributed to achieving the common objective by, inter alia: (i) issuing several orders to VRS forces, including the Drina Corps, concerning the operation in and around Srebrenica between at least 11 July and 11 October 1995; and (ii) giving orders to MUP Commander Borovčanin and his units on 11 and 12 July 1995.Footnote ¹³⁶¹ In reaching these findings, the Trial Chamber conducted a comprehensive assessment of orders issued by Mladić concerning the Srebrenica operation,Footnote ¹³⁶² and considered that these orders were so instrumental to the commission of the crimes that without them the crimes would not have been committed as they were.Footnote ¹³⁶³ The Appeals Chamber thus considers that the Trial Chamber reasonably concluded that Mladić significantly contributed to achieving the common objective by issuing orders concerning the Srebrenica operation to VRS and MUP forces.

393. Turning to the Trial Chamber's alleged failure to give sufficient weight to the context and contents of orders that, according to Mladić, were legitimate military orders issued in Srebrenica, the Appeals Chamber recalls that an accused's contribution to a joint criminal enterprise need not be in and of itself criminal, as long as he or she performs acts that in some way contribute to the furtherance of the common purpose.Footnote ¹³⁶⁴ Thus, in the Appeals Chamber's view, whether Mladić's orders were legitimate in the military context is not relevant to determining his significant contribution to the common purpose. What matters is that the accused significantly contributed to the commission of the crimes involved in the joint criminal enterprise.Footnote ¹³⁶⁵ Considering the above, Mladić's assertion that his orders were consistent with legitimate military operations in light of the military context of SrebrenicaFootnote ¹³⁶⁶ cannot serve to demonstrate an error in the Trial Chamber's conclusion that Mladić significantly contributed to achieving the common objective.Footnote ¹³⁶⁷

394. In any event, the Appeals Chamber finds that Mladić fails to substantiate his claim that the Trial Chamber did not properly weigh the evidence pertaining to his orders in Srebrenica. In relation to Mladić's contention that Directive 4 ordered adherence to the laws of war, including the Geneva Conventions,Footnote ¹³⁶⁸ the Appeals Chamber observes that this directive does not contain any reference to the laws of war, including the Geneva Conventions, and does not explicitly mandate respect for the laws of war.Footnote ¹³⁶⁹ In fact, the Trial Chamber found that Directive 4 ordered the Drina Corps to inflict the heaviest possible losses on the ABiH and to force them to leave the Birač, Žepa, and Goražde areas with the Muslim population.Footnote ¹³⁷⁰ Further, the Trial Chamber considered evidence that Mladić gave orders to respect the Geneva Conventions, but found that these orders were not indicative of his true state of mind.Footnote ¹³⁷¹ The Appeals Chamber thus finds that Mladić fails to demonstrate that the Trial Chamber erred in its assessment of Directive 4.

395. The Appeals Chamber now turns to Mladić's argument that the Trial Chamber placed undue weight on the language of Directive 7,Footnote ¹³⁷² and, without providing a reasoned opinion, insufficient weight on Witness Butler's evidence that Krivaja-95 was a legitimate military operation.Footnote ¹³⁷³ The Appeals Chamber recalls that the mere assertion that the Trial Chamber failed to give sufficient weight to evidence or that it should have interpreted evidence in a particular manner is liable to be summarily dismissed.Footnote ¹³⁷⁴ Furthermore, as explained above, whether a military operation is legitimate is irrelevant to determining Mladić's significant contribution to the common purpose.Footnote ¹³⁷⁵ In any event, the Appeals Chamber observes that the Trial Chamber carefully analyzed the context and content of both Directive 7Footnote ¹³⁷⁶ and Directive 7/1,Footnote ¹³⁷⁷ and considered evidence from Witnesses Ljubomir Obradović and Milovanović, as well as other documentary evidence, in reaching its finding that Directive 7/1 did not rescind or amend the content of Directive 7.Footnote ¹³⁷⁸ Furthermore, while Mladić selectively relies on Witness Butler's evidence that “the VRS had the military legitimate right to attack the 28^th Division” of the ABiH,Footnote ¹³⁷⁹ he disregards this witness's consistent statement that Directive 7/1 did not supersede but rather supplemented Directive 7 with additional technical information.Footnote ¹³⁸⁰ The Appeals Chamber thus finds that Mladić fails to demonstrate that the Trial Chamber erred in its assessment of Directive 7.

396. The Appeals Chamber also finds no merit in Mladić's contention that the Trial Chamber did not properly consider the language and context of his order of 13 July 1995, which prevented the entry of local and foreign journalists into the Srebrenica area and banned the provision of information on prisoners of war, evacuated civilians, and escapees.Footnote ¹³⁸¹ In this regard, the Appeals Chamber notes that the Trial Chamber's finding in question was based on the totality of the evidence, and particularly on the language of the order in its context.Footnote ¹³⁸² Further, the orders referenced by Mladić in support of his argument on appeal were issued to prevent classified military information from being leaked, and are thus different from his 13 July 1995 order, which was issued to restrict the international community's access to information in the midst of a mass murder operation.Footnote ¹³⁸³ Accordingly, the Appeals Chamber finds that Mladić's contention in relation to his 13 July 1995 order reflects mere disagreement with the Trial Chamber's evaluation and interpretation of relevant evidence without demonstrating error. In this respect, the Appeals Chamber again recalls that the mere assertion that the Trial Chamber failed to give proper weight to evidence or that it should have interpreted evidence in a particular manner is liable to be summarily dismissed.Footnote ¹³⁸⁴

397. On the basis of the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Mladić's submission that the Trial Chamber erroneously concluded that he significantly contributed to the common criminal objective by issuing orders concerning the Srebrenica operation to VRS and MUP forces.

(d) Intercepts

398. Mladić submits that, although the Trial Chamber relied on certain intercepts to find that VRS forces committed crimes in Srebrenica and that he was complicit in those crimes, with a proper weighing of evidence, no reasonable trier of fact could have concluded that the intercepts were reliable and authentic.Footnote ¹³⁸⁵ In this respect, he argues that the Trial Chamber erroneously disregarded evidence of Witness RM-316's partisanship and limited training, while relying on this witness to conclude that there was no evidence that the Intercepts were forgeries.Footnote ¹³⁸⁶ Furthermore, according to Mladić, the Trial Chamber failed to give sufficient weight to: (i) the fact that [REDACTED];Footnote ¹³⁸⁷ (ii) the lack of continuity or chain of custody in providing the intercepts to the ICTY;Footnote ¹³⁸⁸ (iii) the incorrect identification of VRS relay routes and frequencies;Footnote ¹³⁸⁹ and (iv) the scepticism Witness Butler expressed regarding the reliability of the Intercepts.Footnote ¹³⁹⁰ In addition, Mladić submits that the Trial Chamber failed to adequately address inconsistencies within the Intercepts.Footnote ¹³⁹¹

399. The Prosecution responds that Mladić fails to show that the Trial Chamber's assessment of the Intercepts was unreasonable in light of the totality of the evidence.Footnote ¹³⁹² It thus submits that Mladić's mere assertion that the Trial Chamber disregarded or failed to give sufficient weight to certain evidence should be summarily dismissed.Footnote ¹³⁹³ The Prosecution further argues that the alleged inconsistencies Mladić raises are not supported by the evidence.Footnote ¹³⁹⁴

400. The Appeals Chamber notes that the Trial Chamber found the Intercepts to be genuine contemporaneous reports of intercepted VRS communications, and did not accept the argument that they were forged or manipulated.Footnote ¹³⁹⁵ In reaching these findings, the Trial Chamber assessed the Intercepts in the context of the entire trial record, treated them with caution, and considered whether there was corroboration or further detail provided by other sources of evidence.Footnote ¹³⁹⁶ In particular, the Trial Chamber considered the evidence of Witness RM-316Footnote ¹³⁹⁷ as well as other evidence on the record, including evidence that the Intercepts were allegedly forgeries.Footnote ¹³⁹⁸ In this context, Mladić's argument that the Trial Chamber failed to give sufficient weight to certain evidence reflects mere disagreement with the Trial Chamber's assessment of evidence without demonstrating any error.

401. Moreover, with respect to his submission regarding the Trial Chamber's assessment of the reliability and authenticity of the Intercepts, the Appeals Chamber considers that Mladić merely repeats his submissions at trial without demonstrating any error.Footnote ¹³⁹⁹ A party cannot merely repeat arguments that did not succeed at trial, unless it can demonstrate that rejecting them caused an error warranting the intervention of the Appeals Chamber.Footnote ¹⁴⁰⁰ Furthermore, although Mladić refers to Witness Butler's initial scepticism about the reliability of the Intercepts, this witness testified that he ultimately was “able to corroborate much of the information that was contained in those [I]ntercepts”.Footnote ¹⁴⁰¹

402. Turning to Mladić's submission that the Trial Chamber did not adequately address inconsistencies in the Intercepts, the Appeals Chamber recalls that it is within a trial chamber's discretion to assess inconsistencies and determine whether the evidence as a whole is reliable and credible.Footnote ¹⁴⁰² In this case, the Appeals Chamber is not convinced that the alleged inconsistencies Mladić refers to are supported by the evidence. For example, although Mladić argues that Exhibits P1320, P1321, and P2126 are inconsistent with Exhibit P1332,Footnote ¹⁴⁰³ the Appeals Chamber observes that Exhibit P1332 is unrelated to the other three Intercepts, which pertain to the same conversation and are, in fact, consistent with each other, as they concern the same operation.Footnote ¹⁴⁰⁴ Furthermore, although Mladić argues that Exhibits P1645 and P1657 are inconsistent with each other, the Appeals Chamber observes that Exhibit P1645 is not an intercept but a handwritten note and that Mladić's claims about the contents of Exhibit P1657 are incorrect because, contrary to his submission, [REDACTED].Footnote ¹⁴⁰⁵

403. In light of the above, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić fails to demonstrate error in the Trial Chamber's assessment of or reliance on the Intercepts.

(e) Knowledge, Investigation, and Punishment of Crimes

(f) Conclusion

417. Based on the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 5.B of Mladić's appeal.

(a) Statements and Affirmative Actions Taken by Mladić to Adhere to International Law

420. Mladić submits that the Trial Chamber erred in relying on statements that he made during the Hotel Fontana meetings on 11 and 12 July 1995 to establish that he shared the criminal intent for both objectives of the Srebrenica JCE.Footnote ¹⁴⁶⁸ In particular, he argues that the Trial Chamber placed insufficient weight on the context in which these statements were made and contends that the language used in these statements was consistent with legitimate military language.Footnote ¹⁴⁶⁹ He further submits that the Trial Chamber failed to give sufficient, if any, weight to his subsequent statements and actions, including: (i) his involvement with the UN in coordinating humanitarian evacuations; (ii) his statements that civilians had a choice to leave for Yugoslavia or the Federation or stay in Republika Srpska; (iii) his assurances to captured prisoners of war that they would be treated in accordance with the law; and (iv) his cooperation during the Belgrade discussions on 14 and 15 July 1995 with the UN, European Union, and UNPROFOR (“Belgrade Discussions”), which culminated in a signed assurance that the ICRC would be granted access to prisoners of war and that the Geneva Conventions would be adhered to.Footnote ¹⁴⁷⁰ Finally, in relation to the Trial Chamber's consideration that he misled the media about the conditions in Srebrenica, Mladić contends that the Trial Chamber failed to give sufficient weight to information that was reported to him, to his reliance on the information available to him at the time, and the fact that he repeated it to the media.Footnote ¹⁴⁷¹

421. The Prosecution responds that the Trial Chamber reasonably found that Mladić shared the intent to further the common purpose of the Srebrenica JCE.Footnote ¹⁴⁷² It contends that Mladić fails to identify any relevant evidence which the Trial Chamber disregarded and that his challenges reflect mere disagreement with the weighing of the evidence, without showing error.Footnote ¹⁴⁷³ The Prosecution argues that Mladić fails to explain how the Trial Chamber gave insufficient weight to the context of his statementsFootnote ¹⁴⁷⁴ and submits that: (i) Mladić improperly extrapolates the testimony of two expert witnesses commenting on a certain order to claim that his statements at the second Hotel Fontana meeting were also legitimate;Footnote ¹⁴⁷⁵ (ii) Mladić fails to explain how some of his statements could have been interpreted positively,Footnote ¹⁴⁷⁶ or as legitimate military language,Footnote ¹⁴⁷⁷ or how they were taken out of context;Footnote ¹⁴⁷⁸ and (iii) Mladić's subsequent conduct does not refute the criminal meaning of his statements and, on the contrary, his preferred alternative inference ignores findings clearly showing otherwise.Footnote ¹⁴⁷⁹ The Prosecution further submits that Mladić's claim that the Trial Chamber failed to consider the totality of the evidence ignores a multitude of statements and acts it relied on to conclude that he shared the intent for the Srebrenica JCE,Footnote ¹⁴⁸⁰ and that his claim that the Trial Chamber gave insufficient weight to his reliance on information available to him when talking to the media reflects mere disagreement with the Trial Chamber's assessment of the evidence.Footnote ¹⁴⁸¹

422. With respect to Mladić's argument that the language used in his statements at the Hotel Fontana meetings was consistent with “legitimate military language”,Footnote ¹⁴⁸² the Appeals Chamber recalls that it has already addressed and dismissed this argument.Footnote ¹⁴⁸³ Furthermore, the Trial Chamber's finding that Mladić shared the intent to achieve the common objective of the Srebrenica JCE is only partly based on his statements calling for revenge on the Bosnian Muslims from Srebrenica,Footnote ¹⁴⁸⁴ and, in any event, Mladić does not show that the Trial Chamber erred in assessing these statements.

423. Turning to Mladić's argument that the Trial Chamber failed to give sufficient weight to his speeches and actions after his statements at the Hotel Fontana meetings, the Appeals Chamber recalls that, as a result of the VRS attack on the Srebrenica enclave in July 1995, thousands of Bosnian Muslims fled to Potočari seeking refuge within the UNPROFOR compound before being transferred to Bosnian controlled territory under the auspices of the VRS and the MUP and, for the first convoy only, under the supervision and escort of UNPROFOR.Footnote ¹⁴⁸⁵ The Appeals Chamber further notes that the Trial Chamber found that the Bosnian Muslims who left Potočari to go to Bosnian Muslim controlled territory “did not have a genuine choice but to leave”.Footnote ¹⁴⁸⁶ Against this background, Mladić submits that the Trial Chamber gave insufficient weight to evidence that he and the UN coordinated humanitarian evacuationsFootnote ¹⁴⁸⁷ and to statements where he made it clear that civilians in Potočari had a choice to stay or leave.Footnote ¹⁴⁸⁸ The Appeals Chamber recalls that it has already considered and rejected Mladić's submissions that he was “acting in coordination with high-level DutchBat/UNPROFOR officials to evacuate civilians” for humanitarian reasons and that the Trial Chamber gave no or insufficient weight to evidence that he evacuated civilians pursuant to UN requests to coordinate humanitarian evacuations.Footnote ¹⁴⁸⁹ The Appeals Chamber has also already determined that Mladić's submission that he gave civilians a choice to stay or leave and that he was acting to evacuate civilians for humanitarian reasons was unconvincing, especially since the Trial Chamber found such statements to be “deliberately misleading”.Footnote ¹⁴⁹⁰ In this respect, the Appeals Chamber notes that the Trial Chamber considered the evidence to which Mladić points on appeal, in particular his statement in Potočari that everyone who wanted to leave had been evacuated safely.Footnote ¹⁴⁹¹ Specifically, the Trial Chamber considered the evidence of Witness Milovan Milutinović that “Mladić gave the Muslim delegation his word that everyone gathered at Potočari who had surrendered their weapons could cho[o]se whether to go to ‘Yugoslavia, the Federation’ or to stay in the Bosnian-Serb Republic, and guaranteed them full rights and freedoms”.Footnote ¹⁴⁹² While the Trial Chamber did not discuss Exhibit P1147 when assessing Mladić's criminal intent, it addressed this evidence elsewhere in the Trial Judgement. In particular, the Trial Chamber considered that while in Potočari, Mladić said that Bosnian Serb authority had been established in Srebrenica and the entire enclave was under the control of the VRS and everyone who wanted to leave had been evacuated safely.Footnote ¹⁴⁹³ In this respect, the Appeals Chamber recalls that a trial chamber is not required to articulate every step of its reasoning, that a trial judgement must be read as a whole, and that there is a presumption that the trial chamber has evaluated all the relevant evidence as long as there is no indication that it completely disregarded any particular piece of evidence.Footnote ¹⁴⁹⁴ Mladić ignores the Trial Chamber's extensive review of the evidence in support of its finding that the Bosnian Muslims who left Potočari to go to Bosnian Muslim controlled territory did not have a genuine choice but to leave.Footnote ¹⁴⁹⁵ Mladić's argument that the Trial Chamber afforded insufficient weight to evidence that he gave civilians a choice to stay or leave is therefore without merit.

424. In relation to Mladić's contention that the Trial Chamber failed to give sufficient, if any, weight to statements he made to prisoners of war, Mladić refers to evidence of Witnesses RM-292, RM-253, and RM-364, that, while they were being held prisoner, Mladić assured them that they would be exchanged and returned to their families.Footnote ¹⁴⁹⁶ While the Trial Chamber did not expressly discuss this particular evidence in the Trial Judgement, it considered and made findings on other evidence that Mladić addressed Bosnian Muslim soldiers and assured them that they would be exchanged.Footnote ¹⁴⁹⁷ The Appeals Chamber notes, however, that the Trial Chamber ultimately found such statements to be “misleading assurances”.Footnote ¹⁴⁹⁸ The Appeals Chamber therefore finds that Mladić's arguments in this respect reflect mere disagreement with the Trial Chamber's assessment of the evidence without demonstrating an error. In this regard, the Appeals Chamber recalls that the mere assertion that the Trial Chamber failed to give proper weight to evidence or that it should have interpreted evidence in a particular manner is liable to be summarily dismissed.Footnote ¹⁴⁹⁹

425. In support of his argument that the Trial Chamber did not give sufficient weight to evidence demonstrating his cooperation during the Belgrade Discussions, Mladić points to one exhibit about an informal agreement to allow the ICRC access to assess the welfare of prisoners of war and register them in accordance with the Geneva Conventions.Footnote ¹⁵⁰⁰ Mladić ignores that the Trial Chamber considered and made findings on similar orders he gave to the VRS and other subordinated forces, in relation to the Overarching JCE, to grant freedom of movement to international humanitarian organizations and to respect the Geneva Conventions.Footnote ¹⁵⁰¹ The Appeals Chamber observes that the Trial Chamber found this evidence inconsistent with Mladić's other conduct and directly contradicted by his other contemporaneous statements.Footnote ¹⁵⁰² In particular, the Trial Chamber found, in its assessment of the Overarching JCE, that Mladić's orders to respect the Geneva Conventions were not indicative of his true state of mind.Footnote ¹⁵⁰³ Recalling that the Trial Judgement must be read as a whole,Footnote ¹⁵⁰⁴ the Appeals Chamber therefore finds that Mladić fails to demonstrate how the exhibit he points to on appeal could undermine the Trial Chamber's finding in this respect.

426. Mladić also submits that, in finding that he misled the media about the conditions in Srebrenica, the Trial Chamber failed to give sufficient weight to information that was reported to him, to his reliance on the information available to him at the time, and to the fact that he repeated this information to the media.Footnote ¹⁵⁰⁵ Mladić, however, provides no support for any of these contentions, and the Appeals Chamber recalls that the mere assertion that the Trial Chamber failed to give sufficient weight to evidence or that it should have interpreted evidence in a particular manner is liable to be summarily dismissed.Footnote ¹⁵⁰⁶ Moreover, the Appeals Chamber notes that the Trial Chamber's findings are based on the totality of the evidence, including on the actions Mladić took to prevent the media and public from knowing what was happening in Srebrenica.Footnote ¹⁵⁰⁷ The Appeals Chamber therefore finds, Judge Nyambe dissenting, that Mladić's unsupported arguments in this respect reflect mere disagreement with the Trial Chamber's assessment of the evidence without demonstrating an error.

(b) Orders Made by Mladić and His Subordinates

427. Mladić submits that the Trial Chamber erred in its assessment of the Krivaja-95 operation and other related orders, and that it gave insufficient weight to the military context of these orders.Footnote ¹⁵⁰⁸ Mladić further submits that the Trial Chamber did not afford sufficient weight to the language of his 13 July 1995 order preventing the media from entering the combat zone in the general sector of Srebrenica and Žepa, which he argues were prohibitions consistent with combat operations, as shown by other orders in other areas.Footnote ¹⁵⁰⁹

428. The Prosecution responds that Mladić repeats arguments made under another subsection regarding the Krivaja-95 operation while showing no error.Footnote ¹⁵¹⁰ The Prosecution further submits that Mladić fails to show any error in the Trial Chamber's finding that his 13 July 1995 order was intended to keep the media and international community from knowing what was happening in Srebrenica.Footnote ¹⁵¹¹ In this regard, the Prosecution submits that Mladić ignores relevant evidence,Footnote ¹⁵¹² and that, contrary to his claim, the language in other orders does not make the Trial Chamber's assessment of the 13 July 1995 order unreasonable.Footnote ¹⁵¹³

429. The Appeals Chamber recalls that it has already rejected Mladić's argument that his orders were consistent with legitimate military operations in light of the military context of Srebrenica and found that they cannot serve to demonstrate any error in the Trial Chamber's conclusion that Mladić significantly contributed to achieving the common objective.Footnote ¹⁵¹⁴ The Appeals Chamber therefore finds no merit in Mladić's contention that the Trial Chamber failed to give sufficient weight to the military context of his orders in Srebrenica when finding his mens rea for the Srebrenica JCE.

430. Turning to the 13 July 1995 order, the Trial Chamber found that Mladić gave this order, which called for the prevention of the entry of local and foreign journalists into the zones of combat operations in Srebrenica and Žepa, as well as a ban on giving any information to the media about operations in Srebrenica, particularly on prisoners of war, evacuated civilians, and escapees.Footnote ¹⁵¹⁵ The Trial Chamber further found that Mladić's aim was to keep the media and international community from knowing what was happening in Srebrenica.Footnote ¹⁵¹⁶ The Appeals Chamber recalls that it previously found no merit in Mladić's argument that the Trial Chamber did not properly consider the language and context of the 13 July 1995 order.Footnote ¹⁵¹⁷ Furthermore, the Appeals Chamber notes that while Mladić attempts to show that this order was aimed at prohibiting access to Srebrenica for the media's own protection and to prevent the spreading of rumours,Footnote ¹⁵¹⁸ he ignores that the Trial Chamber's finding is based on a number of other findings regarding Mladić's position,Footnote ¹⁵¹⁹ his presence on the ground in Potočari and involvement in the Hotel Fontana meetings,Footnote ¹⁵²⁰ his proposal to mislead the international public about the truth at the 16th Assembly Session,Footnote ¹⁵²¹ and the reburials of the Bosnian Muslim men and boys murdered in Srebrenica.Footnote ¹⁵²² The Appeals Chamber finds, Judge Nyambe dissenting, that Mladić therefore fails to demonstrate that the Trial Chamber gave insufficient weight to his arguments regarding the Krivaja-95 operation and other orders as well as to the language of his 13 July 1995 order.

(c) Conclusion

431. Based on the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 5.D of Mladić's appeal.

(a) Alleged Error in Failing to Provide a Reasoned Opinion on the Military Status of the Victims

437. The Appeals Chamber recalls that trial chambers are required to provide a reasoned opinion pursuant to Article 23(2) of the ICTY Statute and Rule 98 ter (C) of the ICTY Rules.Footnote ¹⁵⁴¹ A reasoned opinion in the trial judgement is essential to ensuring that adjudications are fair; it, inter alia, allows for a meaningful exercise of the right of appeal by the parties, and enables the Appeals Chamber to understand and review the findings.Footnote ¹⁵⁴² Accordingly, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused.Footnote ¹⁵⁴³ In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.Footnote ¹⁵⁴⁴

438. The Appeals Chamber further recalls that in claiming an error of law on the basis of the lack of a reasoned opinion, a party is required to identify the specific issues, factual findings, or arguments that the trial chamber omitted to address and explain why this omission invalidates the decision.Footnote ¹⁵⁴⁵ The Appeals Chamber understands that, at the core, Mladić submits that the Trial Chamber failed to provide a reasoned opinion that, based on Adjudicated Fact 1476, all of the 7,000 to 8,000 victims of the killings in Srebrenica were not actively taking part in hostilities.Footnote ¹⁵⁴⁶

439. The Appeals Chamber notes that the Trial Chamber took judicial notice of Adjudicated Fact 1476 stating that “between 7,000 and 8,000 Bosnian-Muslim men were systematically murdered”.Footnote ¹⁵⁴⁷ On the one hand, the Trial Chamber explicitly referenced this adjudicated fact in sections of the Trial Judgement regarding burial operations and the chapeau elements of crimes against humanity, where it considered the number of victims and the overall situation in Srebrenica.Footnote ¹⁵⁴⁸ On the other hand, the Trial Chamber found that “at least 3,720 Bosnian-Muslim males were killed” in relation to incidents in Srebrenica.Footnote ¹⁵⁴⁹ The Appeals Chamber observes that this finding is based on an incident-by-incident analysis in Chapters 7 and 8.3.2 of the Trial Judgement regarding “Schedule E and other incidents”,Footnote ¹⁵⁵⁰ rather than on Adjudicated Fact 1476.

440. Having reviewed the relevant portions of the Trial Judgement, the Appeals Chamber finds Mladić's submission – “that the Trial Chamber failed to give a reasoned opinion that, based on [Adjudicated Fact] 1476, all of the 7,000–8,000 victims of the killings in Srebrenica were not actively taking part in hostilities”Footnote ¹⁵⁵¹ – to be based on a misinterpretation of the Trial Judgement. The Trial Chamber's finding that “all of the victims of the killings in Srebrenica were not actively participating in the hostilities at the time of the killings” is explicitly qualified by its findings in Chapter 8.3.2 of the Trial Judgement.Footnote ¹⁵⁵² Chapter 8.3.2, as elaborated below, sets out an incident-by-incident account of the killings in Srebrenica.Footnote ¹⁵⁵³ Recalling that the Trial Judgement must be read as a whole,Footnote ¹⁵⁵⁴ the Appeals Chamber considers that the Trial Chamber's statement about “all of the victims of the killings in Srebrenica” was a reference to those identified in the specific scheduled and unscheduled incidents.Footnote ¹⁵⁵⁵ Contrary to Mladić's submission, there is no indication that the Trial Chamber made a finding, on the basis of Adjudicated Fact 1476, that all of the 7,000 to 8,000 victims of the killings in Srebrenica were not actively taking part in hostilities. Accordingly, Mladić's submission in this respect is dismissed.

441. The Appeals Chamber also finds no merit in Mladić's contention that the Trial Chamber failed to evaluate the military status of the victims in Srebrenica.Footnote ¹⁵⁵⁶ The Appeals Chamber notes that the Trial Chamber conducted a detailed incident-by-incident analysis in Chapters 7 and 8.3.2 of the Trial Judgement and evaluated the status of the victims for each incident.Footnote ¹⁵⁵⁷ Contrary to Mladić's assertion that the Trial Chamber found that “all of the victims were civilians”,Footnote ¹⁵⁵⁸ the Trial Chamber rather concluded that “a number of the victims were civilians”.Footnote ¹⁵⁵⁹ The Trial Chamber further specified that: “For many incidents, […] it remained unclear whether the victims were civilians or combatants. However, those people were at least detained at the time of killing, thus hors de combat”.Footnote ¹⁵⁶⁰ Based on these considerations, the Trial Chamber found that the victims were not actively participating in the hostilities at the time of the killings.Footnote ¹⁵⁶¹ Such a detailed and comprehensive assessment of the status of the victims in the Srebrenica incidents satisfies, in the Appeals Chamber's view, the Trial Chamber's obligation to provide a reasoned opinion.

442. The Appeals Chamber, Judge Nyambe dissenting, accordingly rejects Mladić's claim that the Trial Chamber failed to provide a reasoned opinion on the military status of the victims or that it erred in this respect in relation to Adjudicated Fact 1476.

(b) Alleged Error in the Use of Adjudicated Fact 1476 and in Articulating Mladić's Liability

443. The Appeals Chamber now turns to Mladić's allegation that the Trial Chamber erroneously relied on “the number of victims contained in [Adjudicated Fact] 1476” to make findings on his mens rea and significant contribution to the Srebrenica JCE as well as to determine his sentence.Footnote ¹⁵⁶² As noted above, the Trial Chamber referred to Adjudicated Fact 1476 only with respect to the burial operations and the chapeau elements of crimes against humanity in Srebrenica.Footnote ¹⁵⁶³ This adjudicated fact is thus pertinent in this case to the overall situation in Srebrenica and not to Mladić's acts, conduct, and mental state. This is further supported by the fact that, as previously elaborated, the Trial Chamber did not rely on Adjudicated Fact 1476 to determine the number of killings for which Mladić was ultimately found responsible in relation to the Srebrenica JCE.Footnote ¹⁵⁶⁴ Rather, that determination was based on a detailed incident-by-incident analysis of Schedule E incidents and unscheduled events in Chapters 7 and 8.3.2 of the Trial Judgement.Footnote ¹⁵⁶⁵

444. Regarding his intent to participate in the Srebrenica JCE and his genocidal intent, Mladić points to the Trial Chamber's consideration of his presence at a meeting on 13 July 1995 with the VRS and the MUP during which the task of killing 8,000 Muslim males was discussed.Footnote ¹⁵⁶⁶ In the Appeals Chamber's view, Mladić has conflated Adjudicated Fact 1476 with Exhibit P2118, which states that he was present at a meeting that discussed the “[k]illing of about 8,000 Muslim soldiers whom [they] blocked in the woods near Konjević Polje […] [t]his job is being done solely by MUP units”.Footnote ¹⁵⁶⁷ There is no indication that Exhibit P2118 or the Trial Chamber's findings regarding his mens rea to participate in the Srebrenica JCE or to commit genocide were in any way based on Adjudicated Fact 1476. Having reviewed the Trial Chamber's analysis on Mladić's significant contribution to the Srebrenica JCE,Footnote ¹⁵⁶⁸ the Appeals Chamber finds that the same holds true – there is no indication that the Trial Chamber relied on Adjudicated Fact 1476 in this respect.

445. In relation to his sentence, Mladić argues that “the Trial Chamber relied on its findings in Chapters 7 and 8 where it established that 7,000–8,000 Bosnian-Muslim men were systematically murdered on the basis of [Adjudicated Fact] 1476”.Footnote ¹⁵⁶⁹ The Appeals Chamber observes that, when assessing the gravity of Mladić's offences, the Trial Chamber referred to its findings on the crimes in Chapters 7 and 8 as well as his significant contribution to the Srebrenica JCE in Chapter 9.7.Footnote ¹⁵⁷⁰ As addressed above, there is no indication in the Trial Judgement that the Trial Chamber relied on Adjudicated Fact 1476 to determine his liability in those sections of the Trial Judgement.Footnote ¹⁵⁷¹ Thus, Mladić does not demonstrate that the Trial Chamber determined his sentence for crimes committed in Srebrenica on the basis of Adjudicated Fact 1476.

446. Based on the foregoing, the Appeals Chamber rejects, Judge Nyambe dissenting, Mladić's submissions that the Trial Chamber erred in using Adjudicated Fact 1476 as a basis for determining his liability or sentence with respect to the Srebrenica JCE.

(c) Alleged Error in Failing to Consider Rebuttal Evidence

447. With respect to Mladić's submissions regarding rebuttal evidence, the Appeals Chamber recalls that it has already rejected his blanket submission that the Trial Chamber erred by applying a heightened standard on the burden to rebut adjudicated facts.Footnote ¹⁵⁷² Mladić's bare statement to this effect in this part of the appealFootnote ¹⁵⁷³ is also rejected.

448. With respect to the alleged error in failing to consider evidence presented by Mladić to rebut Adjudicated Fact 1476, the Appeals Chambers recalls that the Trial Chamber only referenced this fact in sections of the Trial Judgement regarding burial operations and the chapeau elements of crimes against humanity, where it considered the number of victims and the overall situation in Srebrenica.Footnote ¹⁵⁷⁴ Moreover, as already discussed, Mladić's responsibility for crimes committed in Srebrenica was based on a detailed incident-by-incident analysis of killings in Chapter 8.3.2 of the Trial JudgementFootnote ¹⁵⁷⁵ as well as extensive evidence of his participation in the Srebrenica JCE,Footnote ¹⁵⁷⁶ rather than on Adjudicated Fact 1476. Given that the Trial Chamber did not use Adjudicated Fact 1476 to determine Mladić's acts, conduct, and mental state, and thus his liability for the Srebrenica JCE, the Appeals Chamber considers that any error on the Trial Chamber's part regarding the assessment of rebuttal evidence would have little, if any, impact on its findings in the Trial Judgement. The Appeals Chamber recalls that arguments which do not have the potential to cause the impugned decision to be reversed or revised may be immediately dismissed and need not be considered on the merits.Footnote ¹⁵⁷⁷ As such, the Appeals Chamber, Judge Nyambe dissenting, therefore dismisses Mladić's argument that the Trial Chamber failed to address evidence rebutting Adjudicated Fact 1476.

(d) Conclusion

449. Based on the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 5.E of Mladić's appeal.

(a) Alleged Error in Relying on Uncorroborated Hearsay

451. The Trial Chamber admitted into evidence excerpts of Witness Deronjić's testimony in the Blagojević and Jokić case pursuant to Rule 92 quater of the ICTY Rules,Footnote ¹⁵⁸² excerpts of the testimony of Witness Drinić in the Blagojević and Jokić case,Footnote ¹⁵⁸³ as well as excerpts of Witness Mevludin Orić's testimony in the Popović et al. case pursuant to Rule 92 bis of the ICTY Rules.Footnote ¹⁵⁸⁴ Mladić submits that the Trial Chamber erred in law by relying on this untested evidence to make findings related to his significant contribution to and intent for the Srebrenica JCE.Footnote ¹⁵⁸⁵ According to Mladić, without the Trial Chamber's erroneous reliance on this evidence, it would not have established the elements of Scheduled Incident E.15, nor the essential elements of the existence of the Srebrenica JCE and his participation in them.Footnote ¹⁵⁸⁶

452. The Prosecution responds that Mladić fails to show that the Trial Chamber erred by giving “undue weight to” or “relying on” three witnesses whom he did not cross-examine.Footnote ¹⁵⁸⁷ In the Prosecution's view, the Trial Chamber properly relied on the evidence of Witnesses Deronjić, Drinić, and Orić.Footnote ¹⁵⁸⁸ The Prosecution argues that Mladić's convictions under Counts 2 to 8 of the Indictment in relation to the Srebrenica JCE rest on numerous sources of evidence and findings set out over two volumes of the Trial Judgement and that his assertion that any of his convictions are based solely or in a decisive manner on “untested” evidence is incorrect.Footnote ¹⁵⁸⁹

453. The Appeals Chamber recalls that under Article 21(4)(e) of the ICTY Statute an accused has the right to examine, or have examined, the witnesses against him. In relation to the challenges to a trial chamber's reliance on evidence admitted pursuant to Rules 92 bis and 92 quater of the ICTY Rules when the defendant did not have an opportunity to cross-examine the witness, the Appeals Chamber has adopted the following statement of the law:

(b) Alleged Error in Relying on Adjudicated Fact 1612

471. Pursuant to Rule 94 of the ICTY Rules, the Trial Chamber took judicial notice of Adjudicated Fact 1612 which states that “[b]etween 1,000 and 1,200 men were killed in the course of [16 July 1995] at [the Branjevo Military Farm]”.Footnote ¹⁶³⁵ In relation to Scheduled Incident E.9.2, the Trial Chamber relied in part on Adjudicated Fact 1612 to determine that between 1,000 and 1,200 male Bosnian Muslim detainees were killed by VRS soldiers at the Branjevo Military Farm on 16 July 1995.Footnote ¹⁶³⁶ The Trial Chamber also found that the victims of this incident were buried at the Branjevo Military Farm mass grave, and that bodies from this mass grave were subsequently reburied in the Čančari Road 4, 8, 9, 11, and 12 mass graves.Footnote ¹⁶³⁷

472. Mladić submits that the Trial Chamber erred in relying on Adjudicated Fact 1612 to find that the number of victims in relation to Scheduled Incident E.9.2 was between 1,000 and 1,200.Footnote ¹⁶³⁸ Mladić argues that the Trial Chamber preferred Adjudicated Fact 1612 while it was rebutted by the Prosecution's forensic evidence, namely by the evidence of Witness William Haglund and former ICTY Prosecution Investigator Dušan Janc, showing that the number of victims was limited to 132 bodies at the primary burial site and 43 DNA matches to a secondary site.Footnote ¹⁶³⁹

473. The Prosecution responds that the Trial Chamber properly relied on Adjudicated Fact 1612.Footnote ¹⁶⁴⁰ Specifically, it argues that: (i) the Trial Chamber correctly concluded that the forensic evidence did not contradict Adjudicated Fact 1612;Footnote ¹⁶⁴¹ (ii) Mladić fails to identify an error in the Trial Chamber's finding that the evidence of Witnesses Haglund and Janc does not contradict the total number of victims established through Adjudicated Fact 1612;Footnote ¹⁶⁴² and (iii) the Trial Chamber properly exercised its discretion in taking judicial notice of adjudicated facts.Footnote ¹⁶⁴³

474. The Appeals Chamber recalls that by taking judicial notice of an adjudicated fact, a trial chamber recognizes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial.Footnote ¹⁶⁴⁴ It is well-established that facts judicially noticed pursuant to Rule 94(B) of the ICTY Rules are presumptions that may be rebutted with evidence at trial,Footnote ¹⁶⁴⁵ and that their use does not shift the ultimate burden of proof or persuasion, which remains on the Prosecution.Footnote ¹⁶⁴⁶ An accused may rebut the presumption by introducing “reliable and credible” evidence to the contrary.Footnote ¹⁶⁴⁷ The final evaluation of the reliability and credibility, and hence the probative value of the evidence, will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it.Footnote ¹⁶⁴⁸

475. The Appeals Chamber notes that, although Mladić challenged Adjudicated Fact 1612 at trial, he did not present any evidence to explicitly rebut it.Footnote ¹⁶⁴⁹ Moreover, it is for a trial chamber to determine what conclusions, if any, are to be drawn from adjudicated facts when considered together with all of the evidence brought at trial.Footnote ¹⁶⁵⁰ In determining the number of victims in Scheduled Incident E.9.2, the Trial Chamber considered, inter alia: (i) the evidence of Witness Haglund showing that the Pilica grave site, also referred to as the Branjevo Military Farm grave site, contained the remains of at least 132 men;Footnote ¹⁶⁵¹ and (ii) Janc's report on the Srebrenica investigation identifying 43 DNA connections between the remains identified at the Branjevo Military Farm primary mass grave, and the remains identified in the Čančari Road 4, 8, 9, 11, and 12 secondary mass graves.Footnote ¹⁶⁵² The Trial Chamber considered that this evidence did not establish the total number of victims in relation to Scheduled Incident E.9.2 because the Branjevo Military Farm and Čančari Road mass graves contained bodies from multiple incidents.Footnote ¹⁶⁵³ It thus found that this evidence did not contradict Adjudicated Fact 1612 with respect to the total number of victims.Footnote ¹⁶⁵⁴

476. Having reviewed the relevant portions of the Trial Judgement, the Appeals Chamber finds no merit in Mladić's contention that Adjudicated Fact 1612 is contradicted by the Prosecution evidence with respect to the number of victims. In the Appeals Chamber's view, Mladić misinterprets the evidence of Witness Haglund and the report of Janc by asserting that this evidence limits the victims to “132 bodies at the primary burial site and 43 DNA matches to a secondary site”.Footnote ¹⁶⁵⁵ Moreover, in determining whether evidence contradicts an adjudicated fact, the Appeals Chamber recalls that it previously upheld the Trial Chamber's analysis that considered whether the evidence was “unambiguous in its meaning”, namely that it must either point to “a specific alternative scenario” or “unambiguous[ly] demonstrate[e] that the scenario as found in the Adjudicated Fact must reasonably be excluded as true”.Footnote ¹⁶⁵⁶ In respect of Adjudicated Fact 1612, the Prosecution evidence that Mladić refers to on appeal does not point to a specific alternative scenario nor does it unambiguously demonstrate that the scenario as found in Adjudicated Fact 1612, namely that between 1,000 and 1,200 men were killed in the course of 16 July 1995 at the Branjevo Military Farm,Footnote ¹⁶⁵⁷ must be reasonably excluded as true.Footnote ¹⁶⁵⁸ Accordingly, the Appeals Chamber finds that Mladić fails to identify any error in the Trial Chamber's finding that the evidence of Witness Haglund and the report of Janc do not contradict Adjudicated Fact 1612 with respect to the total number of victims in relation to Scheduled Incident E.9.2.

477. On the basis of the foregoing, the Appeals Chamber finds, Judge Nyambe dissenting, that Mladić fails to show that the Trial Chamber erred in relying on Adjudicated Fact 1612 to find that the number of victims in relation to Scheduled Incident E.9.2 was between 1,000 and 1,200.

(c) Conclusion

478. In light of the foregoing, the Appeals Chamber, Judge Nyambe dissenting, dismisses Ground 5.I of Mladić's appeal.

(a) Alleged Failure to Give Sufficient Weight to “Exculpatory Evidence” Concerning Mladić's Significant Contribution to the Hostage-Taking JCE

505. In concluding that Mladić significantly contributed to the Hostage-Taking JCE, the Trial Chamber considered its findings that, inter alia, Mladić ordered VRS units to detain the UN Personnel and to place them at potential NATO air strike targets and, when requested to release them, informed the UNPROFOR Commander that the detainees’ release was contingent on the cessation of air strikes.Footnote ¹⁷²⁹

506. Mladić submits that the Trial Chamber erred in fact in making findings on his significant contribution to the Hostage-Taking JCE, namely by: (i) relying on orders not issued by him; (ii) failing to give sufficient weight to other orders issued by him to treat the UN Personnel as prisoners of war in accordance with the Geneva Conventions; and (iii) failing to correctly assess evidence relating to the filming of the UN Personnel.Footnote ¹⁷³⁰

507. Specifically, Mladić submits that, in finding that he ordered the placement of the UN Personnel at potential NATO air strike targets and that he significantly contributed to the Hostage- Taking JCE, the Trial Chamber failed to give sufficient weight to the fact that two orders on which it relied in making this finding were not issued by him.Footnote ¹⁷³¹ He argues that the order dated 27 May 1995 was not signed by him and originated from the “Supreme Defence Counsel” headed by Karadžić.Footnote ¹⁷³² In addition, he contends that this order and another order, dated 30 May 1995, on which the Trial Chamber relied did not contain his “unique identification number”, and that both were “inconsistent with [his] military notebooks” and orders to his subordinates.Footnote ¹⁷³³

508. Mladić further submits that, in finding that his subordinates made threats against the UN Personnel and that his orders to detain them illustrate his significant contribution to the Hostage- Taking JCE, the Trial Chamber failed to give sufficient weight to orders he gave to subordinates to treat detainees as prisoners of war in accordance with the Geneva Conventions, which were followed.Footnote ¹⁷³⁴ Mladić asserts that his orders to detain and disarm the UN Personnel were lawful under international humanitarian law.Footnote ¹⁷³⁵

509. Mladić also submits that, in finding that he visited the detainees between 2 and 4 June 1995 and ordered their filming, the Trial Chamber relied on Witness Janusz Kalbarczyk whose evidence was inconsistent and differed from testimonies of other detained UN Personnel who did not confirm seeing Mladić.Footnote ¹⁷³⁶ Mladić asserts that the Trial Chamber found that he ordered the filming of the detainees without referring to evidence.Footnote ¹⁷³⁷ He contends that the Trial Chamber relied on the hearsay evidence of Witness Patrick Rechner that Mladić had ordered the transport of the detainees to be filmed on different dates and locations, and that this evidence was not corroborated by “other UN prisoners present there”.Footnote ¹⁷³⁸ He argues that this evidence was inconsistent with: (i) Witness Kalbarczyk's testimony affirming Mladić's absence during the filming on 2 and 3 June 1995 and that the filming was done by a civilian journalist;Footnote ¹⁷³⁹ (ii) the lack of mention of the filming between 2 and 4 June 1995 by Witness Griffiths Evans;Footnote ¹⁷⁴⁰ and (iii) the evidence of Witness Snježan Lalović, the journalist who conducted the filming, that he was not ordered to film by anyone in the military but by his editors and “who denies any mention of [Mladić]” during the transportation of the detainees on 26 May 1995.Footnote ¹⁷⁴¹

510. The Prosecution responds that none of the evidence cited by Mladić undermines the Trial Chamber's findings and that he ignores critical evidence establishing his central involvement in the implementation of the common purpose.Footnote ¹⁷⁴² Specifically, the Prosecution contends that the Trial Chamber did not attribute the order dated 27 May 1995 to Mladić or rely on it in finding that he ordered the placement of the UN Personnel at potential air strike targets.Footnote ¹⁷⁴³ The Prosecution submits that the Trial Chamber did not fail to give sufficient weight to orders to treat detainees as prisoners of war, but points out that those same orders also include instructions to take the UN Personnel as hostages.Footnote ¹⁷⁴⁴ Consequently, in its submission, the Trial Chamber properly relied on such orders in making its finding that Mladić and the other members of the joint criminal enterprise issued them in furtherance of the common objective of the Hostage-Taking JCE.Footnote ¹⁷⁴⁵ The Prosecution further submits that the Trial Chamber reviewed the evidence to which Mladić refers with respect to the filming of the detainees and submits that the Trial Chamber reasonably concluded that he ordered the filming.Footnote ¹⁷⁴⁶ The Prosecution adds that, in any event, the Trial Chamber's finding of Mladić's significant contribution does not depend on any finding concerning the filming of the detainees, in light of Mladić's orders to detain the UN Personnel and place them at potential NATO air strike targets as well as his negotiating about their release.Footnote ¹⁷⁴⁷

511. Mladić replies that he demonstrated that the Trial Chamber erred by relying on inconsistent evidence and failing to give sufficient weight to exculpatory evidence regarding his participation in the Hostage-Taking JCE.Footnote ¹⁷⁴⁸

512. Mladić contends that the Trial Chamber relied on two orders not issued by him, pointing to orders dated 27 May 1995 and 30 May 1995.Footnote ¹⁷⁴⁹ With respect to the order dated 27 May 1995, the Appeals Chamber recalls that the Trial Chamber found that it contained an order to various VRS corps and units to place captured and disarmed UNPROFOR forces at potential NATO air strike targets (“Order of 27 May 1995”).Footnote ¹⁷⁵⁰ With respect to the order dated 30 May 1995, the Trial Chamber found that Mladić informed VRS corps commands and units that NATO was preparing an operation to free the captured UN Personnel and ordered: (i) all units to open fire on the area of airborne assault and of the deployment of UNPROFOR troops in the event NATO launched such an operation; and (ii) the SRK Command to complete the disarming of the detainees and deploy them to potential NATO strike targets (“Order of 30 May 1995”).Footnote ¹⁷⁵¹ The Appeals Chamber observes that the Trial Chamber explicitly noted that the Order of 27 May 1995 was signed by Milovanović who was the Chief of Staff and Deputy Commander of the VRS Main Staff.Footnote ¹⁷⁵² The Trial Chamber therefore did not attribute this order to Mladić personally, but rather to the VRS Main Staff.Footnote ¹⁷⁵³ To the extent that Mladić argues that the Trial Chamber erred in attributing the Order of 30 May 1995 to him, the Appeals Chamber finds this to be without merit as this order bears his signature and Mladić did not claim at trial that the order was not attributable to him.Footnote ¹⁷⁵⁴ In addition, the Appeals Chamber summarily dismisses Mladić's undeveloped submissions that the two orders were inconsistent with his military notebooks and orders to his subordinates. The Appeals Chamber finds that Mladić fails to demonstrate error in the Trial Chamber's assessment related to the Order of 27 May 1995 and the Order of 30 May 1995.

513. The Appeals Chamber turns to Mladić's submission that the Trial Chamber failed to give sufficient weight to his orders to subordinates to treat detainees as prisoners of war in accordance with the Geneva Conventions. The Appeals Chamber observes that in support of this argument Mladić refers to paragraphs of the Trial Judgement without pointing to any specific orders or evidence on the record.Footnote ¹⁷⁵⁵ A review of the Trial Judgement reveals that in some of the paragraphs which Mladić cites, the Trial Chamber discussed evidence concerning orders regarding the treatment of detaineesFootnote ¹⁷⁵⁶ or their actual treatment.Footnote ¹⁷⁵⁷ In reviewing some of the evidence which Mladić claims concerns the treatment of the detainees as prisoners of war in accordance with the Geneva Conventions, the Trial Chamber also considered that: (i) the detainees were beaten, abused, and handcuffed to flagpoles; (ii) Mladić and VRS members issued threats to the UN Personnel or UNPROFOR headquarters on the fate of the detainees with the aim of stopping the air strikes; and (iii) UN Personnel were used as “human shields”.Footnote ¹⁷⁵⁸ In these circumstances, Mladić does not demonstrate an error on the part of the Trial Chamber in assessing or weighing the evidence.

514. The Appeals Chamber also observes that, in discussing Mladić's contribution to the Hostage-Taking JCE, the Trial Chamber specifically recalled some of the evidence concerning the alleged treatment of the detained UN Personnel as prisoners of warFootnote ¹⁷⁵⁹ and found that he: (i) ordered VRS units to detain the UN Personnel and to place them at potential NATO air strike targets; (ii) when requested to release the detained UN Personnel, informed an UNPROFOR representative that such release was contingent on the cessation of air strikes; and (iii) was closely involved throughout every stage of the hostage-taking, including as a negotiator with UNPROFOR representatives.Footnote ¹⁷⁶⁰ In light of such evidence and findings, Mladić does not show how selective orders to treat the detained UN Personnel as prisoners of war or examples of alleged favourable treatment of the detainees who were threatened, abused, and used as “human shields”, could undermine the Trial Chamber's conclusion that he significantly contributed to the Hostage-Taking JCE. Similarly, in light of these considerations, the Appeals Chamber finds that Mladić's arguments that his orders to detain and disarm the UN Personnel, as well as orders forbidding leakage of information regarding the detention and contact with the detainees were lawful, fail to identify any error or undermine the Trial Chamber's finding that he significantly contributed to the Hostage- Taking JCE.

515. With respect to Mladić's contention that the Trial Chamber erred in relying on inconsistent evidence in finding that he visited some of the detainees between 2 and 4 June 1995 and ordered to film them, the Appeals Chamber observes that the Trial Chamber did not rely on this evidence in making a finding on Mladić's significant contribution to the Hostage-Taking JCE.Footnote ¹⁷⁶¹ The Trial Chamber mainly relied on the evidence and findings that Mladić ordered VRS units to detain the UN Personnel and place them at potential NATO air strike targets, informed an UNPROFOR representative that their release was contingent on the cessation of air strikes, ordered such release, and was closely involved throughout every stage of the hostage-taking including as a negotiator with UNPROFOR representatives.Footnote ¹⁷⁶² Therefore, any error on the part of the Trial Chamber relating to Mladić's visit and order to film the detainees between 2 and 4 June 1995 would not disturb the Trial Chamber's conclusion that he significantly contributed to the Hostage-Taking JCE. Consequently, as Mladić's submissions on this point do not have the potential to demonstrate a miscarriage of justice or cause the Trial Judgement to be reversed or revised, the Appeals Chamber dismisses them without further consideration in accordance with the applicable standard of review.Footnote ¹⁷⁶³

516. The Appeals Chamber finds that Mladić therefore fails to demonstrate that the Trial Chamber erred in assessing the evidence concerning his contribution to the Hostage-Taking JCE.

(b) Alleged Failure to Give Sufficient Weight to “Exculpatory Evidence” Concerning Mladić's Mens Rea

517. In concluding that Mladić shared the intent to achieve the common objective of the Hostage- Taking JCE, the Trial Chamber found that he intended to capture the UN Personnel and detain them in strategic military locations in order to prevent NATO from launching further air strikes on Bosnian Serb military targets.Footnote ¹⁷⁶⁴ The Trial Chamber particularly considered Mladić's statements and conduct including: (i) his orders to detain the UN Personnel and place them at potential NATO air strike locations; (ii) his statements on the fate of the UN Personnel; (iii) evidence that he communicated to UNPROFOR that the release of the detainees was contingent on the cessation of air strikes; and (iv) evidence that his subordinates threatened the UN Personnel with the aim of stopping the air strikes.Footnote ¹⁷⁶⁵

518. Mladić submits that in finding that he possessed the mens rea for the Hostage-Taking JCE, the Trial Chamber erred by giving insufficient weight to his “proactive actions and conduct”, which reflected his intent “to bring a peaceful end to the situation”.Footnote ¹⁷⁶⁶ Mladić namely points to his attempt to open “direct and more efficient” channels of communication and prompt action to end the crisis by: (i) negotiating a possible termination of hostilities to end the captivity of the UN Personnel despite the fact that they “can be detained until the definitive termination of hostilities”;Footnote ¹⁷⁶⁷ and (ii) instructing his subordinates to release the UN Personnel immediately after such decision was made by the political leadership.Footnote ¹⁷⁶⁸ Mladić further submits that the Trial Chamber gave insufficient, if any, weight to the evidence of Witness Radoje Vojvodić who, on the orders of the VRS Main Staff, removed the UN Personnel from risk and harm inflicted by others and treated them in accordance with international humanitarian law.Footnote ¹⁷⁶⁹

519. The Prosecution responds that the evidence cited by Mladić incriminates, rather than exculpates him, and does not undermine the fact that the UN Personnel were taken hostage on his orders.Footnote ¹⁷⁷⁰ It contends that Mladić's argument that prisoners of war can be detained until the termination of hostilities is “beside the point” given his role in conditioning their release on the cessation of hostilities which amounts to a gross violation of international humanitarian law.Footnote ¹⁷⁷¹ The Prosecution submits that Mladić played a central role in the implementation of the Hostage-Taking JCE and fails to show error in the Trial Chamber's findings in relation to his mens rea.Footnote ¹⁷⁷²

520. Mladić replies that the Prosecution mischaracterizes and fails to respond to his submissions that he took proactive actions in order to bring an end to the crisis.Footnote ¹⁷⁷³

521. With respect to the alleged failure to give sufficient weight to Mladić's negotiating a possible termination of hostilities,Footnote ¹⁷⁷⁴ the Appeals Chamber notes that the Trial Chamber took express note of and discussed the evidence cited by Mladić of conversations between him and UNPROFOR Commander General Bernard Janvier concerning such negotiations.Footnote ¹⁷⁷⁵ The Trial Chamber found that when requested to release the UN Personnel, Mladić informed Commander Janvier that their release was contingent on a guarantee that the air strikes would cease.Footnote ¹⁷⁷⁶ The Trial Chamber took this evidence into account, among other evidence of Mladić's acts and conduct, in concluding that Mladić shared the intent to achieve the common objective of the Hostage-Taking JCE.Footnote ¹⁷⁷⁷ The Appeals Chamber finds that Mladić does not demonstrate error in the Trial Chamber's assessment of his negotiating efforts.

522. With respect to the alleged failure to give sufficient weight to his instructions to release the UN Personnel immediately upon the decision of the political leadership to do so,Footnote ¹⁷⁷⁸ the Trial Chamber reviewed the evidence to which Mladić refers that, on 2 and 6 June 1995, in compliance with the orders from Karadžić, Mladić ordered various VRS units to release 215 of the detained UN Personnel.Footnote ¹⁷⁷⁹ While the Trial Chamber did not expressly discuss this evidence in assessing Mladić's intent to achieve the common objective of the Hostage-Taking JCE, in light of the evidence and the Trial Chamber's findings that he had ordered their initial detention and placement at potential NATO air strike locations,Footnote ¹⁷⁸⁰ Mladić does not demonstrate how the fact that he implemented orders by his superior to release some of the detained UN Personnel could undermine the Trial Chamber's conclusion that he shared the intent to achieve the common objective of the Hostage-Taking JCE.Footnote ¹⁷⁸¹

523. The Appeals Chamber turns to the alleged failure to give sufficient weight to the evidence of Witness Vojvodić, a VRS officer in charge of the Koran military barracks in Pale,Footnote ¹⁷⁸² who Mladić claims removed the detained UN Personnel from harm and treated them in accordance with international humanitarian law.Footnote ¹⁷⁸³ Although the Trial Chamber did not expressly consider this evidence in the section of the Trial Judgement concerning Mladić's mens rea for the Hostage- Taking JCE, the Trial Chamber discussed Witness Vojvodić's treatment of the detainees in Chapter 6 of the Trial Judgement, which sets out the evidence relating to hostage-taking.Footnote ¹⁷⁸⁴ The Trial Chamber considered, for example, that on one occasion Witness Vojvodić sent back soldiers who had made threats to the life of UN Personnel detained at the Koran military barracks.Footnote ¹⁷⁸⁵ However, the Trial Chamber also reviewed evidence that: (i) on 26 May 1995, Bosnian Serb soldiers drove two of the detained UN Personnel to the Koran headquarters and handcuffed them to flagpoles in front of the building;Footnote ¹⁷⁸⁶ (ii) on the same day, a VRS commander told detained UN Personnel that they would be chained to strategic places if NATO strikes were to continue;Footnote ¹⁷⁸⁷ and (iii) on 27 May 1995, following a visit of Witness Vojvodić, detained UN Personnel were moved to another building so that they could be chained more quickly to NATO's potential targets.Footnote ¹⁷⁸⁸ In light of this evidence considered by the Trial Chamber, Mladić fails to demonstrate that the alleged selective favourable treatment of the detained UN Personnel by one VRS officer could undermine the Trial Chamber's conclusion that Mladić shared the intent to achieve the common objective of the Hostage-Taking JCE.

524. In light of the evidence and the Trial Chamber's findings that Mladić issued orders to detain the UN Personnel and place them at potential NATO air strike locations, made statements on the fate of the detainees, informed UNPROFOR that their release was contingent on the cessation of air strikes, and that his subordinates threatened the UN Personnel with the aim of stopping the air strikes,¹⁷⁸⁹ the Appeals Chamber finds that Mladić fails to demonstrate that the Trial Chamber insufficiently considered his “proactive actions and conduct” or that the Trial Chamber assessed the evidence in an unreasonable manner in finding that he shared the intent to achieve the common purpose of the Hostage-Taking JCE.

(c) Conclusion

525. Based on the foregoing, the Appeals Chamber dismisses Ground 6.C of Mladić's appeal.

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