Element:
A. Evidentiary comment
This requirement also differs slightly from its equivalent in the jurisprudence of the ICTY. This is so in two key respects:
(1) The ICTY has required that the person accused must have participated in the common design involving the perpetration of the crime. Article 25(3)(d) requires rather that the person have contributed to the commission of the crime. There may be some distinction between participation and contribution. In Tadić, the Appeals Chamber appeared to suggest that participation was wider than contribution when it said that the participation "may take the form of assistance in, or contribution to, the execution of the common plan or purpose." On the other hand, in at least one case the ICTY has phrased the requirement as one that the accused must "take action in contribution of the implementation of the common plan" (Brđanin Trial Judgment, para. 263), suggesting perhaps that it would not consider there to be a material distinction between contributing and participating.
(2) Whereas article 25(3)(d) appears to cover any contribution to the commission of a crime ("in any other way contributes…."), the ICTY appears to have taken a narrower view, requiring that the accused’s participation must have been of some significance to the criminal enterprise as a whole. Although the Appeals Chamber has said that there is no specific legal requirement that the accused’s contribution to the criminal enterprise be substantial (Kvočka Appeals Judgment, para. 97), it has suggested that the relative significance of the accused’s involvement may have a bearing on demonstrating his or her intent (Kvočka Appeals Judgment, para. 97). It has also at times been said that accused’s participation must "form a link in the chain of causation", meaning that it furthered the criminal plan (Brđanin Trial Judgment, para. 263, Blagojevic Trial Judgment, para. 702) (Although this does not mean that the participation of the accused must be a condition ine qua non for the commission of the offence: Brđanin Trial Judgment, para. 263, Blagojevic Trial Judgment, para. 702). Thus, while it is not entirely clear what the requirements are in the ICTY jurisprudence for the level of participation by the accused, it seems that article 25(3)(d) takes a wider view and would encompass any form of contribution. This would mean that examples of contributions deemed sufficient by the ICTY are likely to be sufficient to meet article 25(3)(d)’s requirements, and so too might lesser levels of contribution.
Article 25(3)(d) requires that the contribution be made not merely in respect of the common plan, but in relation to the commission or attempted commission of the crime itself. In this respect it at least superficially appears to differ from the ICTY requirement that the person must have participated in the common plan. However, since the ICTY jurisprudence requires that the plan itself involve or amount to the commission of a crime, this would seem to be equivalent to a requirement for participation in the crime itself.
Article 25(3)(d) makes no reference to the time at which a contribution must occur, and it therefore seems reasonable to assume that the contribution may occur before, during or after the commission or attempted commission of the crime. An example of a case where contribution after the crime led to liability is the US v Pohl (US Military Tribunal II, 1947), where the accused’s position of authority in the process of disposing of the belongings taken from murdered Jews gave rise to his liability. However it is uncertain what the position would be in a case where the crime in question involves a single event rather than a systematic, ongoing program, and which could therefore present a clearer case of contribution which occurred only after the fact.
Prosecutor v. Vlastimir Dorđević, Case No. IT-05-87/1-A, Judgement (AC), 27 January 2014, paras. 406, 454:
"406. The Appeals Chamber observes that Dorđević is correct in asserting that no direct evidence was considered by the Trial Chamber which established that he knew the bodies would be taken to the Batajnica SAJ Centre.1381 The Trial Chamber, however, provided a detailed explanation of the circumstantial evidence demonstrating Dorđević’s role in coordinating the delivery of trucks carrying bodies and mass burial operations at the Batajnica SAJ Centre,1382 which included evidence that: (i) on 6 April 1999, SUP Chief Golubović contacted Dorđević and informed him of the bodies discovered in the refrigerated truck in the Danube;1383 (ii) Golubović, as instructed by Dorđević, assisted in organising the loading and transfer of most of the bodies in a truck to Belgrade;1384 (iii)Dorđević made plans for a second truck to transport the remainder of the bodies to Belgrade;1385 (iv) Dorđević met with Witness K87 at some point around 6 April 1999, but before 9 April 1999, and informed Witness K87 that there were two trucks at the Batajnica SAJ Centre containing bodies and that these bodies should be buried at the Batajnica SAJ Centre;1386 and (v) additional trucks containing bodies arrived shortly after the first bodies were buried and that Dorđević arranged for the burial of these bodies as well.1387 The Appeals Chamber recalls that a trial chamber may draw inferences to establish a fact on which a conviction relies based on circumstantial evidence as long as it was satisfied that the inference was the only reasonable one available.1388 In light of the evidence presented, demonstrating Dorđević’s significant role in arranging the transport and burial of the bodies found in the Danube River, the Appeals Chamber finds that the Trial Chamber reasonably concluded that the only available inference was that Dorđević knew that these bodies were to be brought to the Batajnica SAJ Centre." […]
"454. Finally, the Appeals Chamber finds unpersuasive Dorđević’s suggestion that the Trial Chamber made no findings in relation to how any lack of investigations could be linked to the JCE and "much less construed as a ‘significant contribution’" to the JCE.1530 The Appeals Chamber observes that the Trial Chamber clearly and explicitly found that Dorđević’s conduct in concealing the crimes of Serbian forces in Kosovo and failure to ensure the investigation and punishment of MUP personnel for crimes committed in Kosovo, contributed significantly to the JCE.1531 The Trial Chamber also considered the non-reporting, lack of investigations, and concealment operations to be part of the overall effort to remove evidence of crimes committed by Serbian forces against Kosovo Albanian civilians during the Indictment period.1532 It specifically found that Dorđević’s role in the concealment of the bodies of the Kosovo Albanian civilians killed in Kosovo by Serbian forces ensured that the bodies were not the subject of investigations at the time, and that the perpetrators were not punished despite his duty under the law to properly investigate the discovery of the bodies."1533
1381 See Dorđević Appeal Brief, para. 256.
1382 See Trial Judgement, paras 1325-1347.
1383 Trial Judgement, paras 1301, referring to Exhibits P352, p. 3, P353, pp 7405-7406, 7408, Časlav Golubović, 3 Mar 2009, T. 1741. See also Trial Judgement, para. 1347.
1384 Trial Judgement, paras 1307-1308, referring to, inter alia, Exhibits P352, p. 4, P353, p. 7449. See also Prosecution Response Brief, para. 220.
1385 Trial Judgement, paras 1307 (referring to Exhibits P352, p. 4), 1312 (referring to, inter alia, Exhibit P359, pp 7452-7454, Bosko Radojković, 4 Mar 2009, T. 1846, Confidential Annex). See also Prosecution Response Brief, para. 220.
1386 Trial Judgement, para. 1329, referring to Exhibit P1414 (confidential), paras 12-13, 24, K87, 17 May 2010, T. 14158-14161, 14164. See also Prosecution Response Brief, para. 221.
1387 Trial Judgement, para. 1337, referring to Confidential Annex, Exhibits P1415, para. 21, P370A, para. 31, K87, 17 May 2010, T. 14174-14175. See also Trial Judgement, paras 1338-1342; Prosecution Response Brief, para. 221.
1388 Galić Appeal Judgement, para. 218; Stakić Appeal Judgement, para. 219; Celebići Appeal Judgement, para. 458; Kupreškić et al. Appeal Judgement, para. 303.
1530 See Dorđević Appeal Brief, paras 268, 275.
1531 Trial Judgement, para. 2158.
1532 Trial Judgement, paras 2111, 2156-2158. See also Trial Judgement, paras 2083-2105.
1533 Trial Judgement, para. 2156-2157.
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1168, 1298-1300, 1390-1392::
"1168. Based on the abundant evidence before it, the Trial Chamber is satisfied beyond reasonable doubt that Popovic made a significant contribution to the JCE to Murder and that he shared the intent to carry out the common purpose. This is evident in the pivotal role that he played in the organization, coordination and implementation of the killing operation. The Trial Chamber therefore finds that Popovic was a participant in the JCE to Murder."
"1298. The Trial Chamber recalls that in order for Beara to incur liability pursuant to the first category of joint criminal enterprise, he must have participated in the common purpose of the JCE, i.e., to murder the able-bodied Bosnian Muslim males from Srebrenica. In order to satisfy this element, Beara must have significantly contributed to the common purpose and have shared with other members of the JCE to Murder the intent to carry out the common purpose.
1299. By the morning of 12 July, the plan to murder had been formulated and the Security Branch of the VRS had been tasked with a central coordinating role in the implementation of that plan.The Trial Chamber notes there is no direct evidence before it of Beara’s participation in the murder operation prior to 13 July. However, there is clear evidence before the Trial Chamber that as of the morning of 12 July, Popović, Beara’s subordinate in the Security Branch, was aware of the plan to murder as were Momir Nikolić and Kosorić. In addition, the Trial Chamber has found that the orders with respect to this operation were given by Mladic. In these circumstances, and given his responsibilities as Chief of Security for the VRS Main Staff, the subordinate relationship of Popović to him and the role played by members of the Security Branch from the beginning, the Trial Chamber is satisfied that by the morning of 12 July, Beara was aware of and implicated in the plan to murder. The evidence is clear that from that point onward, Beara played a key role in orchestrating the murder operation by planning, coordinating and overseeing the detention, transportation, execution and burial of the able-bodied Bosnian Muslim males.
1300. The first evidenced act on the part of Beara illustrates well the pivotal and high level role he played in the murder operation. He arrives on 13 July at the offices of the President of the Bratunac SDS with orders "from the top" to kill all the Bosnian Muslim males housed in and around Bratunac. His appearance there came shortly after Deronjić had been discussing the prisoners with Karadžić and a call was to be made on that very subject between Karadžić and Mladić. From there, Beara makes multiple contributions to the common plan, guiding and directing implementation at all phases. His reach extends across various components of the VRS and to relevant civilian authorities. He is implicated in identifying locations, in securing personnel and equipment and in overseeing the effective execution of the plan at the individual killing sites. As tellingly noted in the Zvornik Brigade Duty Officers notebook: "Beara is coming ₣in the followingğ order to Orovoc [namely, Orahovac] Petkovci Ročević Pilica". He interacts and meets with other participants in the killing operation including Popović and Drago Nikolić, and he is omnipresent in the Zvornik area—the scene of mass killings.
1301. Throughout the critical period of 13–16 July, the evidence demonstrates Beara’s overarching responsibility for and participation in the killing operation carried out in pursuance of the common purpose to murder the able-bodied Bosnian Muslim males. His contribution to the common purpose cannot be classified as anything other than significant and by his actions and words there can be no doubt that he shared the intent to murder on a massive scale."
"1390. During the evening of 13 July 1995, Nikolić made preparations for detaining the prisoners at Orahovac, and was at Orahovac giving directions to the Zvornik Brigade Military Police he had previously ordered to go there. On the morning of 14 July, Beara, Popovic and Nikolic met at the Standard Barracks to organise and coordinate the killing operation. After the meeting, Nikolić travelled to the Vidikovac Hotel at Divic, where he awaited the Bosnian Muslim prisoners arriving on buses from Bratunac. For much of the day on 14 July 1995, Nikolić was present at the Grbavci School in Orahovac and coordinated and directed the subsequent killings at the Orahovac execution site. On 14 July, Nikolić ordered Slavko Perić of the 1st Battalion to secure the prisoners at the Kula School in the awareness that they would be executed. On 15 July 1995 Nikolić, working closely with Beara and Popović, was involved in organising the detention and execution of prisoners at Ročević School
1391. Thus, Nikolic was involved in the operation at many of the sites in the Zvornik area where Bosnian Muslims were detained and executed. He participated in various aspects of the operation – planning, physical preparations, and securing personnel. At Orahovac, he was giving directions at the execution site. Throughout the operation, Nikolic interacted and met with other participants in the murder operation, including Popović and Beara. Nikolic’s participation in the JCE to Murder is also corroborated by his participation, albeit limited, in the reburial operation.
1392. As outlined above, there is substantial evidence before the Trial Chamber that Nikolic was involved in various aspects of the JCE to Murder. He played an important role in the organisation of the operation by which the common purpose was achieved, and he made a number of contributions to that common purpose through his work, behind the scenes of and at, various detention and execution sites in Zvornik. Notably he arranged for personnel to guard and carry out executions and was personally present at Orahovac, in an organizational capacity, at the detention and execution sites, at times while the executions were being carried out. Through these acts he made a significant contribution and from his steadfast and resolute approach to the task given to him in the murder operation, it is clear that he shared the intent of the common purpose. The Trial Chamber therefore finds that Nikolic significantly contributed to the common purpose of the JCE to Murder and that he shared the intent to carry out the common purpose. Thus, the Trial Chamber finds that Nikolić was a participant in the JCE to Murder."
Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-A, Judgement (AC), 17 March 2009, paras. 216-217:
"216. In the case at hand, the Trial Chamber found that Krajišnik had a central position in the JCE as he "not only participated in the implementation of the common objective but was one of the driving forces behind it". The Trial Chamber stated that Krajišnik’s overall contribution to the JCE was to
More specifically, the Trial Chamber found that the following alleged contributions533 of Krajišnik to the JCE had been established:
(a) Formulating, initiating, promoting, participating in, and/or encouraging the development and implementation of SDS and Bosnian-Serb governmental policies intended to advance the objective of the joint criminal enterprise;
(b) Participating in the establishment, support or maintenance of SDS and Bosnian-Serb government bodies at the Republic, regional, municipal, and local levels, including Crisis Staffs, War Presidencies, War Commissions ("Bosnian-Serb Political and Governmental Organs") and the VRS, TO, and the MUP ("Bosnian-Serb Forces") through which [he] could implement the objective of the joint criminal enterprise;534
(c) Supporting, encouraging, facilitating or participating in the dissemination of information to Bosnian Serbs that they were in jeopardy of oppression at the hands of Bosnian Muslims and Bosnian Croats, that territories on which Bosnian Muslims and Bosnian Croats resided were Bosnian-Serb land, or that was otherwise intended to engender in Bosnian Serbs fear and hatred of Bosnian Muslims and Bosnian Croats or to otherwise win support for and participation in achieving the objective of the joint criminal enterprise;
(d) Directing, instigating, encouraging and authorizing the Bosnian-Serb Political and Governmental Organs and the Bosnian-Serb Forces to carry out acts in order to further the objective of the joint criminal enterprise;
(e) Aiding or abetting or instigating the commission of further crimes by failing to investigate, to follow up on investigations, […] crimes committed against Bosnian Muslims, Bosnian Croats or other non-Serbs throughout the period described in this indictment;
(f) Engaging in, supporting or facilitating efforts directed at representatives of the international community, non-governmental organizations and the public denying or providing misleading information about crimes against Bosnian Muslims, Bosnian Croats or other non-Serbs of Bosnia and Herzegovina and about the role that Bosnian-Serb Forces had played in those crimes.535
217. Amicus Curiae submits that the conduct identified by the Trial Chamber does not amount to a significant contribution to the JCE, but he does not develop his argument except to state that the Trial Chamber erred in considering his failure to prevent other members of the Bosnian-Serb Assembly from making inflammatory statements as a contribution to the JCE.536 In this connection, the Appeals Chamber notes that it is not clear whether the Trial Chamber found that this failure constituted a contribution to the JCE537 or simply referred to this as one of the factors demonstrating Krajišnik’s knowledge, support and intent for the crimes,538 as the Prosecution contends.539 In any case, the Trial Chamber found that Krajišnik did not act as a neutral parliamentary speaker, stating that "[w]hen he was not generating or echoing extreme political views himself, his method was to lend support to aggressive elements in the Assembly by giving them a platform for their views"540 and that there was no evidence that Krajišnik ever tried to moderate extreme views.541 This could arguably constitute a significant contribution to the JCE. More importantly, the Trial Chamber clearly did not find that Krajišnik’s contribution to the JCE was limited to his failure to prevent other members of the Bosnian-Serb Assembly from making inflammatory statements. As noted above, the Trial Chamber found that Krajišnik contributed to the realisation of the JCE in various wide-ranging ways. Amicus Curiae does not show that these other contributions of Krajišnik were not significant enough to entail his liability for the crimes committed in furtherance of the JCE."
532 Trial Judgement, paras 1119-1120.
533 Indictment, para. 8.
534 Except in relation to the establishment of the SDS party and the establishment of the TO.
535 Trial Judgement, para. 1121.
536 Amicus Curiae’s Appeal Brief, paras 167-169.
537 Indeed, the failure to prevent other members of the Bosnian-Serb Assembly
from making inflammatory statements could arguably fall under proven
allegation (c) Supporting, encouraging, facilitating or participating in the dissemination of information to Bosnian Serbs that they were in jeopardy of oppression at the hands of Bosnian Muslims and Bosnian Croats, that territories on which Bosnian Muslims and Bosnian Croats resided were Bosnian Serb land, or that was otherwise intended to engender in Bosnian Serbs fear and hatred of Bosnian Muslims and Bosnian Croats or to otherwise win support for and participation in achieving the objective of the joint criminal enterprise.
538 To support his argument that the Trial Chamber found that Kraji{nik contributed to the JCE by failing to prevent other members of the Bosnian-Serb Assembly from making inflammatory statements, Amicus Curiae refers to Trial Judgement, paras 954-955, in a section entitled "Knowledge of and support for crimes related to attacks".
539 Prosecution’s Response to Amicus Curiae, para. 100.
540 Trial Judgement, para. 954. See also paras 46, 73, 115, 194, 901, 911, 917, 923, 1015, 1092, 1121, where the Trial Chamber discusses inflammatory statements of Kraji{nik.
541 Trial Judgement, para. 955.
Prosecutor v. Milan Milutinovic et.al, Case No. IT-05-87-T, Judgement Vol III (TC), 26 February 2009, paras. 467, 782, 925-926, 1131:
"467. As for the question whether ?ainović contributed to the joint criminal enterprise, the Chamber is of the view that it is plain from the preceding paragraphs that he did contribute and that that contribution was significant. As stated above, he was the person Milošević used to orchestrate the events in Kosovo. His purpose was to co-ordinate the forces in Kosovo, convey Milošević’s instructions for the activities of the various actors there, and provide his own suggestions and instructions to these actors, all in pursuit of the ultimate goal to retain control in Kosovo. As such ?ainović was one of the most crucial members of this joint criminal enterprise. While the Chamber notes that the direct evidence of his activity in influencing and co-ordinating the activities of the forces of the FRY and Serbia in 1999 is not as extensive as that relating to 1998, that evidence nevertheless indicates clearly that his authority and influence were undiminished and his presence at a number of meetings in Kosovo during the NATO campaign is in keeping with his previous involvement with the province."
"782. As for the question whether Pavković contributed to the joint criminal enterprise, the Chamber is of the view that it is plain from the preceding paragraphs that he did contribute and that that contribution was significant. Despite his knowledge of the crimes being committed by the VJ and MUP forces, he ordered and supported the operations of the VJ in Kosovo in 1999, including joint operations with the MUP co-ordinated through the Joint Command, throughout the period during which the crimes were committed.1984 He mobilised the troops for and commanded them during the operations, including through his presence on the ground in Kosovo. Pavković’s introduction of additional VJ forces into Kosovo in early 1999, in breach of the October Agreements, put the VJ in a position to engage in widespread operations throughout Kosovo in March 1999, both on its own and in support of the MUP. He supported the arming of the non- Albanian population and disarming of the Kosovo Albanian population in 1998, which assisted the efforts of the joint criminal enterprise members to pursue their aims. Furthermore, through his minimisation of crimes committed by forces under his control and failure to take effective measures in response to information indicating the widespread perpetration of crimes by these forces in Kosovo, Pavković contributed to the creation and maintenance of an environment of impunity, which encouraged the commission of crimes by forces under the control of members of the joint criminal enterprise."
"925. Lazarević provided practical assistance, encouragement, and moral support to the VJ forces engaging in the forcible displacement of Kosovo Albanians in co-ordinated action with the MUP. Throughout the campaign of forcible displacements, Lazarević was the Commander of the Priština Corps, with de jure and de facto authority over all its members and the power to plan the VJ activities and operations in Kosovo.2326 Lazarević significantly participated in the planning and execution of the joint operations conducted by the VJ, acting solely or in co-ordination with the MUP, on the ground in Kosovo from March to June 1999. His Grom 3 and 4 orders, and the Joint Command orders—which the Priština Corps drafted—sent the VJ into actions in Kosovo and provided the authorisation within the VJ chain of command for the VJ to operate in the crime sites where many of the forcible displacements of Kosovo Albanians were conducted. Lazarević’s presence in the field, inspecting VJ units that were involved in the commission of crimes against Kosovo Albanians, was expressly noted to improve the morale of soldiers. Lazarević knew that the military courts were not effectively prosecuting VJ members for expelling Kosovo Albanians from their homes. Despite his knowledge of the campaign of forcible displacements occurring in Kosovo, he reported on 15 May 1999 that only one officer from the Priština Corps was charged with murder. Furthermore, only one commander of a Priština Corps unit was criminally prosecuted in relation to the events in Kosovo and that was for failing to take measures, resulting in the death of the VJ member. Lazarević knew that his failure to take adequate measures to secure the proper investigation of serious crimes committed by the VJ enabled the forces to continue their campaign of terror, violence, and displacement.
926. These acts and omissions provided a substantial contribution to the commission of the crimes that the Chamber has found to have been committed by VJ members, as specified below, as they provided assistance in terms of soldiers on the ground to carry out the acts, the organisation and equipping of VJ units, and the provision of weaponry, including tanks, to assist these acts. Furthermore, Lazarević’s acts and omissions provided encouragement and moral support by granting authorisation within the VJ chain of command for the VJ to continue to operate in Kosovo, despite the occurrence of these crimes by VJ members. As the Commander of the Priština Corps, Lazarević knew that his conduct would assist the implementation of the campaign to forcibly displace Kosovo Albanians."
"1131. As for the question whether Lukić contributed to the joint criminal enterprise, the Chamber is of the view that it is plain from the preceding paragraphs that he did contribute and that that contribution was significant. Lukić was the de facto commander over MUP forces deployed in Kosovo from mid-1998 to mid-1999, including the regular police in the SUPs, PJP, and SAJ units. Lukić was also the bridge between the policy-planners in Belgrade, such as Milošević, Stojiljković, and Đorđević, and those on the ground in Kosovo. Finally, he was directly involved in the planning process and in ensuring that day-to-day operations were conducted by the various MUP forces in accordance with those plans. As such, Lukić was an important member of this joint criminal enterprise."
Prosecutor v. Aloys Simba, Case No. ICTR-2001-76-T, Judgement (TC), 13 December 2005, paras. 403 -404:
"403. Simba participated in the joint criminal enterprise through his acts of assistance and encouragement to the physical perpetrators of the crimes at Murambi Technical School and Kaduha Parish. In the Chamber’s view, Simba’s actions at those two sites had a substantial effect on the killings which followed.407 Witness KSY noted that the attackers at Murambi continued with renewed enthusiasm after Simba’s departure. Moreover, the use of guns and grenades, which Simba distributed at Kaduha Parish, was a decisive factor in the success of these assaults. The Chamber notes that Simba was a respected national figure in Rwandan society and well-known in his native region. Therefore, the assailants at those places would have viewed his presence during the attacks, however brief, as approval of their conduct, particularly after Simba’s invocation of the government.
404. In addition, given his stature in Rwandan society, his participation in the joint criminal enterprise would have had a similar effect on other prominent participants such as Prefect Bucyibaruta, Captain Sebuhura, Bourgmestre Semakwavu as well as other local authorities. The only reasonable conclusion on the evidence is that Simba coordinated his actions with these individuals before the attacks. In reaching this conclusion, the Chamber recalls that Simba likely arrived in the prefecture only a few days before the assaults, after fleeing Kigali with his family. At the time, he had no formal ties to the government or to the military. However, on 21 April, he was accompanied by gendarmes and Interahamwe. At Kaduha Parish, he invoked the government’s request that he return to service, before urging on the attackers. In addition, Simba had a cache of weapons, including firearms and grenades for distribution, which certainly would have come from civilian or military authorities."
407. The Chamber notes that, in general, there is no specific legal requirement that an accused make a substantial contribution to the joint criminal enterprise. Moreover, the Prosecution need not demonstrate that the accused’s participation is a sine qua non without which the crimes could or would not have been committed. Nonetheless, the significance of an accused’s contribution is relevant to demonstrating that the accused shared the intent to pursue the common purpose. See Kvocka et al., Judgment (AC), 28 February 2005, paras. 97-98.
Prosecutor v Milan Martić, Case No. IT-95-11-T, Judgement (TC), 12 June 2007, para. 450:
"450. [...]Furthermore, Milan Martić contributed to this displacement by fuelling the atmosphere of insecurity and fear through radio speeches wherein he stated he could not guarantee the safety of the non-Serb population."
Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-T, Judgement (TC), 27 September 2006, para. 1121:
1121. […] (d) Directing, instigating, encouraging and authorizing the Bosnian Serb Political and Governmental Organs and the Bosnian Serb Forces to carry out acts in order to further the objective of the joint criminal enterprise;
The above allegation has been proven. In his speech before the Bosnian-Serb Assembly on 18 March 1992 the Accused called for the "ethnic division on the ground", thus instigating, encouraging, and authorizing the implementation of the common objective. Some other examples may be considered. On 24 March 1992, the Accused instructed the new Government to prepare a plan for "assuming power and rendering operational the authorities" in the territory of the Bosnian-Serb Republic. It was under the Accused’s direction that the Assembly, on 27 March 1992, set up the Bosnian-Serb MUP, and then proceeded to approve the proclamations of "Newly Established Serbian Municipalities". On 21 April 1992, the Accused made three telephone calls to Vraca to inquire about a front line situation involving ?ešelj’s men. During one of those conversations he spoke to Milenko Karišik, commander of a MUP special unit, and explained to him that the JNA could not get involved "because then we would have real problems". The Accused then instructed Karišik to make contact with the JNA so that leadership would know "how they’re doing". In his capacity as an SNB member, the Accused supported the conclusions of a joint session of the SNB and the Government on 22 April 1992 that the Bosnian-Serb Republic should "maintain the positions that had been taken, especially in Sarajevo", referring, of course, to military gains achieved by the armed forces in the area. At the 12 May 1992 Assembly session which saw the establishment of the VRS, the Accused openly advocated violence against Muslims and Croats, saying "it will be possible to solve this thing with Muslims and Croats only by war." On 17 May 1992, the Accused, together with Karadžić and Mladić, attended a meeting in Sokolac with representatives of Romanija SAO and the municipalities of Olovo and Rogatica. There the Accused said that the time had come for ethnically separate areas because a common state was no longer possible. At the Assembly session of 25 July 1992, the Accused asserted that the take-over of territories to date had been insufficient and then proceeded to sketch the desired borders, establishing parameters for further military action. Around 10 June 1992, the Accused attended a meeting with the other members of the Presidency in which General Mladić announced his intention to shell Sarajevo. The Accused expressed no opposition to this proposal, which was implemented shortly thereafter."
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1704-1706:
"1704. The Trial Chamber has already found that Miletic drafted Directive 7 and that he relied on his broad knowledge of the larger political and military context of the conflict and the goals and strategies of RS, in the process. The Trial Chamber also found Miletic was well-acquainted with the Directive’s final text, including the incriminatory parts. Miletic not only drafted the Directive, but also kept a copy in his "strong box" at the Main Staff. Miletic furthermore drafted Directive 7/1, a final copy of which was also available at the Main Staff. The Trial Chamber is therefore convinced that from the early stages Miletic had full knowledge of the common plan to forcibly remove the Bosnian Muslim civilian population from the Srebrenica and Zepa enclaves as set out in Directive 7.
1705. In Directive 7, Miletic elaborated the role of the VRS in implementing its strategic objectives. The Directive was addressed, and through the Main Staff sent, to all the Corps. Thus, regardless of whether he physically drafted the Directive or inserted the words in the criminal parts, by his central role in the drafting process, Miletic provided the addressees with an overview of the political leadership’s broader vision, upon the authority of the Supreme Commander. This also included the goals for the Srebrenica and Zepa enclaves and how these were to be achieved. In other words, Miletic informed the addressees of the plan. The Trial Chamber is satisfied that in doing so, Miletic contributed to the JCE to Forcibly Remove.
1706. Main Staff Directive 7/1 was a continuation of the policy and goals set out in Directive 7, regardless of whether it repeated the criminal language of Directive 7. Directive 7/1, referring to Directive 7, elaborated on and specified the operations regarding the Srebrenica and Zepa enclaves, which operations were to include, to Miletic’s knowledge, the unlawful removal of its Bosnian Muslim inhabitants. Therefore, by drafting this Directive, Miletic made a further contribution to the plan to remove the Bosnian Muslims from the enclaves."
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1707-1710:
"1707. As one of the means to achieve the goal to forcibly remove the civilian population, Directive 7 provided that logistical support to UNPROFOR and supply of material resources for the Muslim population in the enclaves be reduced and limited "through the planned and unobtrusively restrictive issuing of permits". The Trial Chamber has already found that the VRS deliberately restricted humanitarian aid to the enclaves and resupply of UNPROFOR in implementation of the plan set out in Directive 7, thereby creating a very dire situation for the Bosnian Muslim population in the enclaves and incapacitating UNPROFOR.
1708. The Trial Chamber recalls that on a few days in April, Miletic initialled UNPROFOR convoy requests, indicating approval or denial. Miletic furthermore signed a significant amount of notifications to UNPROFOR and to subordinate units between January and July 1995, which included instructions on approved convoys as well as, occasionally, items that were denied. The notifications were of a mandatory nature—without prior notification no convoy was allowed passage—which was known to Miletic.
1709. The Trial Chamber has found that over the period of March to July 1995, particularly in the latter stages, the instruction in Directive 7 to "reduce and limit the logistics support of UNPROFOR to the enclaves and the supply of material resources to the Muslim population" "through the planned and unobtrusively restricted issuing of permits", was implemented. The Trial Chamber is satisfied that the relevant authorities, including those in the VRS, gradually restricted humanitarian aid to the population and denied UNPROFOR supplies and personnel. As described previously, the processes in place for convoy approvals for humanitarian organisations and UNPROFOR were complex and implicated various civilian and military authorities and personnel. From the evidence before it as described above, the Trial Chamber is satisfied that Miletic was one of the authorities who had a role in the convoy approval and notification procedure. Further, the Trial Chamber finds that Miletic, through his involvement in this process, implemented the instructions of Directive 7 regarding humanitarian aid and UNPROFOR with full knowledge as to the overall aim of these restrictions. By example, the Trial Chamber notes two notifications signed by Miletic and sent just prior to the start of the military attack on which notified the subordinate units that the departure of certain UNPROFOR personnel was approved, whereas their return was not approved.
1710. On this basis the Trial Chamber finds that Miletic’s involvement in, and use of the convoy approval and notification procedure to create the conditions for forcible transfer, constituted an additional contribution to the common purpose of the JCE".
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1711-1715:
1711. As Chief of Operations and Training and, at the time relevant to the Indictment, taking over certain tasks from Milovanovic, Miletic played an essential role at the Main Staff before, during, and after the attack on Srebrenica and Zepa. The Trial Chamber will however not assess Miletic’s criminal liability on the basis of his title, but based on the actions he carried out in this capacity.
1712. The Trial Chamber is convinced that considering the scale and scope of the military attack and the operations to forcibly remove the Bosnian Muslim civilian population from the Srebrenica and Zepa enclaves, coordination from the Main Staff level was essential. Miletic, with his in-depth knowledge of the strategies and goals of the VRS, was at the centre of this coordination.
1713. Miletic received and read all reports from the Corps and the 65th Protection Regiment. He was in direct contact with the forces in the field. He was kept abreast of all developments in the field and the implementation of Mladic’s orders, and more specifically of the progress of the operation. The Trial Chamber is satisfied that Miletic forwarded the knowledge he gained to Mladic, Karad`ic and others, and that this enabled them to take informed decisions.
1714. During the Main Staff morning briefings, Miletic updated Mladic and the present Assistant Commanders. He furthermore kept the President of RS informed through daily Main Staff reports. The updates Miletic provided were comprehensive and included details on the situation at the front, the transportation of the civilian population out of Srebrenica and Zepa, and the taking of POWs. Based on the information provided by Miletic, the Assistant Commanders and Chiefs of Administrations would study the issues pointed out and provide proposals to Mladic in their respective fields of expertise. Because of his comprehensive knowledge, Miletic was a key advisor to Milovanovic, and in the latter’s absence, Miletic advised Mladic directly. At the same time, Miletic was the person responsible for forwarding Mladic’s decision and orders to the relevant units and thereby he ensured the flow of information from the Main Staff to the subordinate units. Miletic was the "soul of the Main Staff of the VRS", and the person "best informed on the situation in various theatres of the war".
1715. Based on the evidence adduced, the Trial Chamber is satisfied that in the exercise of his functions, Miletic had an important impact on the functioning and operation of the Main Staff and the VRS as a whole. The Trial Chamber is convinced that Miletic had full knowledge of the situation in the Srebrenica and Zepa enclaves before, during, and after the attack. The Trial Chamber accepts that Miletic was away from the Main Staff during the heart of the attack on the Srebrenica enclave. However, considering the evidence cumulatively, the Trial Chamber finds that this does not diminish his coordinating role throughout the implementation of the plan—from March through August—to unlawfully remove the Bosnian Muslims from the enclaves. The Trial Chamber is satisfied that through these acts, Miletic contributed again to the forcible transfer of the Bosnian Muslims from the Srebrenica and Zepa enclaves."
Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 1812-1820:
"1812. The Prosecution has made allegations relating to Gvero’s role in disseminating false information to the media and directly to international organisations. In addition, the Prosecution alleges that Gvero threatened and pressured UNPROFOR Commander Nicolai in an effort to stop NATO bombings. While framed as individual contributions, the Trial Chamber will consider these particular allegations together, given their interrelationship.
1813. Whether it was amongst his regular responsibilities or not,5449 the evidence illustrates clearly that during the Krivaja-95 and Zepa operations, Gvero was entrusted with key functions related to external propaganda and interaction with international organisations, aimed at supporting the plan to forcibly transfer the populations of Srebrenica and Zepa.
1814. On 10 July 1995—after the VRS had launched a military assault on the enclave, taken over UN OP’s and moved to capture Srebrenica town itself—Gvero issued a statement to the media, concerning the attack on the enclave, in which he explained that the VRS’ combat activity was directed towards neutralising Muslim terrorists and was not directed against civilians or members of UNPROFOR. His conclusion was that "there is no reason for the media and foreigners to get involved in the Muslim war propaganda."
1815. Considering that Gvero knew of the plan to take-over the Srebrenica enclave and to forcibly remove the civilian population, and the action which had been taken to implement it, this was unquestionably a misleading press release. While of course the release of false information to the media and international authorities does not constitute a criminal act, the purpose of the release was not an innocent one. The only reasonable inference as to the goal behind this communique is that it was intended to mislead, in particular the international authorities concerned with protecting the enclave, with a view to delaying any action on their part which might thwart the VRS’ military efforts.
1816. The next day, after NATO had initiated air strikes against the VRS forces advancing on the town, Gvero formed part of a concerted response from the VRS to stop the bombing. Gvero called UNPROFOR headquarters in Sarajevo and spoke with General Nicolai. He adopted his earlier tactic of falsely asserting that this was only the VRS responding to attacks. At this time, Gvero had the additional knowledge that the VRS had already taken-over Srebrenica town and that Bosnian Muslims had fled into the DutchBat compound in Potočari. Armed with this information, Gvero told Nicolai that unless air support stopped immediately, Nicolai "would be held responsible for all further developments and the destiny of his men and the civilian population in Srebrenica." It is true that no overt threatening language was used nor were possible reprisals against the people gathered in Potocari specifically referenced. Nevertheless, Nicolai interpreted and understood this to be a threat with respect to the UNPROFOR members and the civilian population gathered in Potocari. Given all the circumstances, especially the timing of the call, the knowledge of Gvero as to the situation on the ground and the related VRS’ efforts to stop the bombing, the Trial Chamber is satisfied that this was intended as and constituted a threat. In essence, Gvero was warning that failure to stop the NATO air strikes could result in dire consequences for UNPROFOR and the civilians in Potocari; and the responsibility for those people would fall on Nicolai.
1817. Strategically, soon after this conversation Gvero issued a warning to VRS personnel about the treatment of UNPROFOR personnel. The Trial Chamber is satisfied, from the timing and content of the document, that it was designed to ensure that no further actions were taken in relation to UNPROFOR that might provoke a response and interfere with efforts to end the NATO air strikes.
1818. The Trial Chamber is unable to conclude that Gvero’s discussion with Nicolai constituted a determinative factor in the NATO decision to suspend air support, since there had been prior attempts by the VRS to stop the bombing. Nevertheless, the Trial Chamber is satisfied that this was precisely Gvero’s aim. Moreover, the Trial Chamber considers that at this stage of the military assault, with the ABiH forces no longer a factor and UNPROFOR overrun, NATO air strikes were essentially the only means by which the VRS’ advance towards and capture of the enclave could be halted. From the VRS’ perspective, this was the last significant obstacle to the completion of the plan to take over the Srebrenica enclave and forcibly remove its inhabitants.
1819. Further evidence as to the significance of Gvero’s actions comes from the intercepted conversations between Gvero and Karadzic, which followed shortly after Gvero’s communication with Nicolai. Gvero recounts the essence of his discussion with the UNPROFOR Chief of Staff and assures the President that "[e]verything is going according to plan, don’t worry." As the evidence before the Trial Chamber does not establish that Gvero had general responsibility for communications with Karadzic, this conversation demonstrates that the content of his discussions with Nicolai was of sufficient import to be specifically relayed to the President of RS.
1820. On the basis of these acts taken in combination, the Trial Chamber is satisfied that Gvero played a limited but important role in supporting the VRS’ military action, which was essential to the success of the plan to forcibly transfer. As a senior assistant commander, cloaked with authority from the highest echelons, Gvero took steps to block protective action in favour of the enclave by international authorities, notably UNPROFOR and NATO. The Trial Chamber is satisfied that by disseminating false information and issuing a serious threat, whether effective or not in the end, Gvero made a contribution to the JCE which by its nature cannot be classified as other than significant."
