International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber: Prosecutor v. Jelisić

doi:10.1017/S0020782900020945

* This document was reproduced and reformatted from the text appearing at the ICTY website (visited October 26,2001) <http://www.un.org/icty>.

1 Prosecutor v. Goran Jelisić, Case No.: IT-95-10-A.

2 The initial indictment was confirmed on 21 July 1995. At the request of the prosecution, all the charges based on Article 2 of theStatute, grave breaches of the Geneva Conventions of 1949, were withdrawn and an amended indictment was filed on 13 May 1998.

3 Agreed factual basis for guilty pleas to be entered by Goran Jelisić, 9 September 1998.

4 Second amended indictment against Goran Jelisić and Ranko Češić, 19 October 1998, paras. 14-36.

5 Provisional transcript of the trial proceedings inProsecutor v.Goran Jelisić, Case No.: IT-95-10-T (“the trial transcript“), 18 March 1999, pp. 275-280.

6 Ibid., p. 280.

7 Ibid., p. 286.

8 Ibid., 22 September 1999, p. 2311 (closed session).

9 Prosecutor's motion to be heard, 15 October 1999.

10 Trial transcript, 19 October 1999, pp. 2321 -2342.

11 Ibid., pp. 2328-2330.

12 Prosecutor v.Goran Jelisić, Case No.: IT-95-10-T, Judgement, 14 December 1999 (English version filed 14 January 2001), para. 139, p. 43.

13 Prosecution's notice of appeal, 21 October 1999.

14 Notice of cross-appeal, 26 October 1999.

15 Notice of appeal, 15 December 1999.

16 Prosecution motion for clarification of the right of the appellant Goran Jelisić to file two notices of appeal and for a scheduling order in relation to the appeal, 20 December 2000. On 21 January 2000, the cross-appellant filed: Response to prosecution motion filed 20 December 1999. On 28 January 2000, the prosecution filed Prosecution reply to defence's Response to prosecution motion filed 20 December 1999. The prosecution also requested that the Appeals Chamber classify the time limits with regard to Rule 111 of the Rules. In its scheduling order of 14 January 2000, the Appeals Chamber ordered that the time limit for the filing of the briefs pursuant to Rule 111 should commence from 15 December 1999, the day following the pronouncement of the written Judgement. On 7 March 2000, the Appeals Chamber ordered that the briefs in relation to the cross- appellant's appeal be filed by 15 May 2000. Following subsequent decisions this deadline was varied.

17 Order, 21 March 2000.

18 Prosecutor's appeal brief (public redacted version), 14 July 2000. On the same date a confidential version was filed: Prosecutor's appeal brief (confidential), as well as the book of authorities for the prosecution's appeal brief.

19 Reply to prosecution appeal brief, 14 August 2000.

20 Prosecutor's brief in reply (public redacted version), 29 August 2000. On the same date a confidential version was filed: Prosecutor's brief in reply (confidential).

21 On 3 May 2000, the cross-appellant filed: Motion for extension of time, whereby he requested an extension of time for filing the cross-appellant's brief due to a delay in providing the cross-appellant's counsel with a full set of audiotapes from the Trial Chamber proceedings in a language he could understand. On 11 May 2000, the Appeals Chamber granted an extension of time until 10 July 2000. On 7 July 2000, the cross-appellant requested an extension of time for the filing of his brief until 7 August 2000. On 17 July 2000, the Appeals Chamber issued: Order for provisional extension of time, which provisionally extended the time for filing of the cross-appellant's brief until 21 July 2000, in order to enable the Appeals Chamber to deliberate on the 7 July motion. On July 2000, in: “Decision on urgent motion requesting extension of time,” the 7 July motion was granted, as the recently appointed legal assistant needed more time to identify passages of the trial proceedings to be annexed to the appellant's brief. The filing time was extended to 7 August 2000. On 11 September 2000, the cross-appellant requested an extension of time for the filing of the response to the prosecution's brief. On 15 September 2000, in: “Decision on motion requesting extension of time,” the Appeals Chamber found that, by themselves, the grounds raised by the cross-appellant did not justify an extension of time. However, with regard to the special circumstances of the case, it found that it was appropriate to allow further time to enable counsel to explain the case to the cross-appellant. Hence, the time limit was extended to 6 October 2000.

22 Appellant's brief on appeal against sentence (confidential), 7 August 2000. A public redacted version was filed on 2 March 2001, upon the request of the Appeals Chamber in an order dated 30 January 2001, which was reiterated during the hearing on appeal, appeal transcript, 23 February 2001, p. 246.

23 Respondent's brief of the prosecution (confidential), 6 September 2000. On 15 February 2001, a public redacted version was filed.

24 Appellant's reply to prosecutor's respondent's brief (confidential), 6 October 2000. A public redacted version was filed on 2 March 2001.

25 Decision by the Registrar, 5 February 2001.

26 Appellant's skeleton submissions, 16 February 2001.

27 Appeal transcript, 22 February 2001, p. 37 and 23 February 2001, pp. 198-199.

28 The prosecution's grounds of appeal were set out in the prosecution's brief and prosecution's reply, as well as during the hearing on appeal.

29 Prosecution's brief, para. 2.1, p. 9.

30 Prosecution's brief, para. 3.5, p. 27.

31 Ibid., para. 4.6, p. 53.

32 Ibid., para. 5.7, p. 86.

33 Ibid., para. 5.6(a), p. 85. Appeal transcript, 22 February 2001, p. 9.

34 Skeleton argument, para. 6.1, p. 6.

35 Appeal transcript, 23 February 2001, p. 198.

36 Ibid., pp. 164-165.

37 These were as follows: a) the factual basis for the Trial Chamber's conclusion with regard to the nature and seriousness of the offences was based upon a document which the Trial Chamber erroneously concluded had been agreed to between the parties; b) the Trial Chamber's Judgement included an unauthorised double conviction on counts 16-17 — killing of Huso and Smajil Zahirovic — while the indictment alleged that “he shot and killed one of them;” c) the Trial Chamber reversed the burden of proof; d) the cross-appellant was given no credit for his guilty plea, for having made early admissions to the offences charged and for his co-operation with the prosecution; e) the Trial Chamber failed properly to consider the defence case on sentence; f) the Trial Chamber failed properly to consider the sentencing practice in the former Yugoslavia; g) the Trial Chamber made inappropriate use of medical evidence; h) the 40 years’ sentence reflects a disparity between this case and other cases before the Tribunals; and i) the Trial Chamber inappropriately passed a single sentence, cross-appellant's brief, pp. 114-145.

38 Appeal transcript, 22 February 2001, p. 37, and 23 February 2001, pp. 198-199.

39 Skeleton argument, para. 6.2, p. 6.

40 Prosecutor v. Zejnil Delalić et al, Case No.: IT-96-21 -A, Judgement, 20 February 2001 (“theDelalić appeal judgement“).

41 Appeal transcript, 22 February 2001, pp. 32-35 and 245-246, referring to theDelalić appeal judgement.

42 Ibid., pp. 33-35. The Appeals Chamber decided the prosecution would have 10 days to respond and the cross-appellant would have 10 days from the filing of the response to file his reply, appeal transcript, 22 February 2001, p. 35 and 23 February 2001, pp. 245-246. Subsequently, on 6 March 2001, the “Prosecution response to the oral motion and the additional ground of appeal of Goran Jelisić regarding cumulative convictions” and the “Appellant's written submission in support of the oral motion to quash cumulative convictions” were filed.

43 The defence's brief for the presentation of the additional evidence, 8 September 2000.

44 Prosecution response to the defence's brief for the presentation of the additional evidence, 18 September 2000.

45 Decision on request to admit additional evidence, 15 November 2000.

46 General practice of courts in the former Yugoslavia and the newly emerged states on the territory of the former Yugoslavia in determining prison sentences, 7 March 2001.

47 Prosecution objection to the admission of document filed on 7 March 2001 on behalf of Goran Jelesic [sic], 9 March 2001.

48 Evidence may also be admitted in certain circumstances under Rule 89 of the Rules,see for exampleProsecutor v. Zejnil Delalić et al, Case No.: IT-96-21 -A, Order on motion for the extension of the time-limit and admission of additional evidence, 31 May 2000, and Order on motion of Esad Landžo to admit as additional evidence the opinion of Francisco Villalobos Brenes, 14 February 2000,Prosecutor v. Zoran Kupreškić et al, Case No.: IT-95-16-A, Redacted Decisions of the Appeals Chamber of 26 February 2001 and 11 April 2001, 30 May 2001.See equivalent,Jean-Paul Akayesu v. The Prosecutor, Case No.: ICTR-96-4-A, Decision (on the consolidation or summarization of motions not yet disposed of), 22 August 2000, applying Rule 89 of the ICTR Rules.

49 Appeal transcript, 23 February 2001, pp. 190-191.

50 Prosecution's brief, para. 2.1, p. 9.

51 Judgement, para. 16, p. 4.

52 Trial transcript, 19 October 1999, p. 2330.﹛Audi alteram partem means to hear the other side.)

53 See generallyR. v.Barking and Dagenham Justices, exparte Director of Public Prosecutions [1995] Crim LR 953(“Barking case”), andDirector of Public Prosecution v.Cosier, Q.B.D., 5 April 2000(“Cosier case“).

54 See Cosier case,supra.

55 See Cosier case,supra. For a more general observation on the importance of not deciding without first hearing counsel's aiguments,see Judgead hoc Barwick's dissenting opinion inNuclear Tests (Australia v. France), ICJ Reports 1974, p. 442.

56 See Barking andCosier cases,supra.

57 Skeleton argument, paras. 2.1-2.4, pp. 2-3.

58 Prosecution's brief, para. 3.5, p. 27.

59 Judgement, para. 108, pp. 33-34.

60 Response to prosecution's brief, pp. A-1135-1136 as given by the Registry.

61 Prosecutor v. Dario Kordić and Mario Čerkez, Case No.: IT-95-14/2-T, Decision on defence motions for judgement of acquittal, 6 April 2000, para. 9, p. 5.

62 Prosecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T, IT-23-1-T, Decision on motion for acquittal, 3 July 2000 (“theKunarac decision“), para. 3, p. 3 (emphasis in original). Andsee, ibid., paras. 7-8, pp. 4-5.

63 Prosecutor v. Miroslav Kvočka et al, Case No.: IT-98-30/1-T, Decision on defence motions for acquittal, 15 December 2000, (“theKvočka decision“) para. 12.

64 R.v.Galbraith, 73 Cr. App. R. 124, at p. 127, C.A., per Lord Lane, C.J.

65 As to the permissibility of drawing inferences at the close of the case for the prosecution,see Monteleone v. The Queen [1987] 2 S.C.R. 154, in which Mclntyre J., for the court, said: “It is not for the trial judge to draw inferences of fact from the evidence before him.” Andsee the reference to “inferences” inHer Majesty v. Al Megrahi and Another, infra. Cf.Kvočka decision, para. 12, p. 5, in which the Trial Chamber said: “The Chamber prefers an objective standard, under which it is entitled at this stage to apply any reasonable inferences and presumption or legal theories when reviewing the Prosecution evidence.” The issue thus posed is not passed upon here.

66 Delalić appeal judgement, para. 434, p. 148 (emphasis in original). Or, as it was correctly put by Trial Chamber II in theKunarac decision, para. 10,p.6, the “prosecution needs only to show that there is evidence upon which a reasonable tribunal of fact could convict, not that the Trial Chamber itself should convict” (emphasis in original).

67 According to MacKinnon A.C.J.O. inR.v.Syms (1979) 47 C.C.C. (2d) 114 at 117, a trial judge should withdraw a case from the jury only where “the evidence was so slight or tenuous that it would be incapable of supporting a verdict of guilty.“

68 Judgement, para. 98, p. 31.

69 Ibid., para. 108, pp. 33-34.

70 Skeleton argument, para. 3.1, p. 3.

71 Ibid., para. 3.2, p. 3.

72 Prosecution's brief, para. 5.5, p. 85.

73 Ibid., para. 4.22, p. 59.

74 Ibid., states “[i]n German law, for example, the term ‘Absicht’ is used to capture what is often being referred to asdolus specialis in literature, whilst Norwegian law uses the term ‘hensikt'.“

75 Ibid., para. 4.21, p. 58.

76 This proposition does not contain any element of probability. It refers to knowledge of the actual destruction, in whole or in part. Appeal transcript, 22 February 2001, pp. 68-69.

77 Prosecution's brief, para. 4.9, p. 54. The specification that category iii) only relates to conduct as an aider or abettor was made during oral argument,see appeal transcript, 22 February 2001, pp. 69 and 77.

78 Cross-appellant's reply, pp. 1135-1134. The Appeals Chamber notes that the respondent during oral argument addressed this issue more generally and did not elaborate on the degree of intent required. Appeal transcript, 22 February 2001, pp. 119-130.

79 United Nations Treaty Series, vol. 78, p. 277, General Assembly Resolution 260A (III).

80 See for example:Prosecutor v. AlfredMusema, Case No.: ICTR-96-13-T, Judgement and sentence, 27 January 2000, paras. 164-167, pp. 56-58, which refer to specific intent anddolus specialis interchangeably;Prosecutor v.Jean-Paul Akayesu, Case No.: ICTR-96-4-T, 2 September 1998, Judgement, para. 498, which refers to genocidal intent. The International Law Commission refers to specific intent (A/51/10), p. 87.

81 The Appeals Chamber does not attribute to this term any meaning it might carry in a national jurisdiction.

82 The Appeals Chamber notes it is speaking here solely in the context of the commission of genocide within the meaning of Article 4 of the Statute.

83 This was also held in the oral decision by the Appeals Chamber for the ICTR inObed Ruzindana and Clément Kayishema v. Prosecutor, Case No.: ICTR-95-1-A, 1 June 2001.

84 Prosecutor v.Duško Tadić, Case No.: IT-95-1-A, Judgement, 15 July 1999 (“theTadić appeal judgement“), para. 269, p. 120.

85 Prosecution brief, paras. 4.6 and 4.8, pp. 53-54.

86 Judgement, para. 108, pp. 33-34.

87 Appeal transcript, 22 February 2001, pp. 94-97.

88 Tadić appeal judgement, para. 64, pp. 27-28.

89 Appeal transcript, 22 February 2001, p. 144.

90 Judgement, paras. 73-75 and 77, pp. 23-24 (footnotes excluded).

91 Ibid., para. 108, p. 33.

92 Ibid., para. 105, p. 33.

93 Ibid., para. 106, p. 33.

94 Ibid., para. 107, p. 33.

95 Ibid., para. 102, p. 32.

96 Annex A, filed confidentially as an annex to the confidential version of the prosecution's brief.

97 Trial transcript, 13 September 1999 (witness M), p. 1462.

98 Annex A, referring to Witness I in trial transcript, 7 September 1999, p. 1112.

99 Ibid.

100 Trial transcript, 1 December 1998, p. 81.

101 Trial transcript, 9 September 1999, p. 1306, 14 September 1999, p. 1556 and exhibit 66 (transcript of interview with the respondent on 4 June 1998), p. 49.

102 Judgement, para. 107, p. 33.

103 Rule 67 of the Rules. With regard to diminished mental responsibility,see the Appeals Chamber's finding inDelalić appeal judgement, paras. 580-590, pp. 200-204.

104 Cf.Rigby v. Woodward [1957] 1 WLR 250, andGriffith v. Jenkins and another, (1991) 156 JP 29.

105 For a solution of this kind,see inter alia, Cosier case,Barking case.See also United States v. Hooper, 432 F.2nd 604,139 U.S. App. D.C. 171 (1970),United States v.Lindsey, 47 F. 3d 440, 310 U.S. App. D.C. 300 (1995).

106 Second amended indictment, para. 14, p. 3 stated: “[…] Goran Jelisić personally killed the victims described in paragraphs 16-25, 30 and 33 (the killings the cross-appellant pleaded guilty to.) By these actions, Goran JELISIĆ committed or aided and abetted: Count 1: Genocide, a crime recognized by Article 4(2)(a) of the Tribunal Statute.“

107 Prosecutor's pre-trial brief, 19 November 1998, para. 2.2, p. 4 stated: “In perpetrating the acts outlined in the indictment, the accused committed genocide by killing members of the group, contrary to Article 4(2)(a) of the Statute.“

108 Judgement, para. 140, p. 43.

109 Delalić appeal judgement, para. 412, p. 138.

110 Ibid., para. 413, p. 138.

111 Appeal transcript, 22 February 2001, p. 33.

112 Also applied inProsecutor v. Dragoljub Kunarac et al, Case Nos.: IT-96-23-T ' IT-96-23/1-T, Judgement, 22 February 2001, para. 556, pp. 198-199.

113 Judgement, para. 130, p. 40.

114 Ibid.

115 Ibid., paras. 131 and 133, p. 40.

116 Cross-appellant's reply, p. 12. Appeal transcript, 23 February 2001, p. 241.

117 Cross-appellant's reply, pp. 17-18.

118 Cross-appellant's brief, pp. 121-123, skeleton argument, para. 6.2(v), p. 6, appeal transcript, 23 February 2001, p. 241.

119 Agreed factual basis, p. 4.

120 Delalić appeal judgement, para. 771, p. 275.

121 Judgement, para. 137, p. 41.

122 Prosecutorv. Zlatko Aleksovski, Case No.: IT-95-14/1-A, Judgement, 24 March 2000(“the Aleksovski appeal judgement“), para. 182, p. 75.

123 See generallyProsecutor v. Anto Furundžija, Case No.: IT-95-17/1-A, Judgement, 21 July 2000, (“theFurundžija appeal judgement“), paras. 236-239, pp. 73-74, andDelalić appeal judgement, paras. 715-718, pp. 252-253.

124 Appeal transcript, 23 February 2001, pp. 165-168.

125 Ibid., pp. 165, 178-180.

126 Ibid., pp. 165-168. Cross-appellant's reply pp. 24-29.

127 The Appeals Chamber understands, from the skeleton argument and the oral hearing, the cross-appellant to be advancing these factors.

128 Appeal transcript, 23 February 2001, pp. 176-177, 183-185.

129 Cross-appellant's reply, pp. 23-24. Appeal transcript, 23 February 2001, pp. 173-175, 189-190.

130 Appeal transcript, 23 February 2001, p. 166.

131 Delalić appeal judgement, para. 725, p. 256.See also Furundžija appeal judgement, para. 239, p. 74,Prosecutor v. Serushago, Case No.: ICTR-98-39-S, Sentence, 5 February 1999, para. 32,Aleksovski appeal judgement, para. 187, pp. 77-78 andProsecutor v. Dusko Tadić, Case No.: IT-94-1-A and IT-94-1-Abis, Judgement in sentencing appeals, 26 January 2000 (“theTadićsentencing appeal“), paras. 20-22, pp. 12-13.

132 Furundžija appeal judgement, para. 250, p. 77, also referred to inDelalić appeal judgement, para. 720, p. 254.

133 Delalić appeal judgement, para. 731, pp. 258-259.

134 Aleksovski appeal judgement, para. 182, p. 75.

135 Prosecutor v. Zoran Kupreškić et al, Case No.: IT-95-16-T, Judgement, 14 January 2000, (“theKupreškić trial judgement“), para. 852, p. 318.

136 Judgement, para. 127, p. 39.

137 Appeal transcript, 23 February 2001, pp. 176-177.

138 Ibid., pp. 219-220, citing the Report by Doctor van den Bussche of 8 November 1999 (“the report“), p. 17. Notice of filing, 15 November 1999, included the report.

139 Report, pp. 10, 17. The Trial Chamber referred to p. 22 of the French translation. It corresponds to p. 17 of the English translation, which has not been properly reflected in the English translation of the Judgement.

140 Appeal transcript, 23 February 2001, pp. 176-177.

141 Ibid., pp. 173-175.

142 Judgement, para. 95 (footnotes omitted).

143 Appeal transcript, 23 February 2001, pp. 216-217.

144 Ibid., p. 217.

145 Tadić sentencing appeal, paras. 55-56, pp. 24-25.

146 Judgement, para. 133, p. 40.

147 Cross-appellant's brief, pp. 139-141 (emphasis in original).

148 Aleksovski appeal judgement, para. 178, p. 73.See also inter alia, Kupreškić trial judgement, 14 January 2000, para. 841, p. 314,Prosecutor v. Anto Furundžija, Case No.: IT-95-17/1-T, Judgement, 10 December 1998 (“theFurundžija trial judgement“), para. 240, pp. 91-92,Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-T, 3 March 2000 (“theBlaškić'trial judgement“), para. 760, pp. 248-249.

149 Delalić appeal judgement, para. 814, p. 292.

150 Cross-appellant's brief, pp. 129-138. He refers specifically toProsecutor v. Drazen Erdemović, Case No.: iT-96-22-TW.y, Sentencing Judgement, 5 March 1998, andProsecutor v. Georges Ruggiu, Case No.: ICTR-97-32-I, Judgement and Sentence, 1 June 2000.

151 Appeal transcript, 23 February 2001, p. 175.

152 Ibid.

153 Judgement, para. 127, p. 39 (footnote omitted).

154 Appeal transcript, 23 February 2001, pp. 193-195 (closed session).

155 Judgement, para. 127, p. 39.

156 Skeleton argument, para. 6.2(iv), p. 6.

157 Appeal transcript, 23 February 2001, p. 177.

158 Ibid. Counsel citedLandzo (aged 19),Erdemović (aged 23) andFurundžija (aged 23) in support as well asBlaškić trial judgement, para. 778, p. 255, andFurundžija trial judgement, para. 284, p. 107.

159 Judgement, para. 124, p. 38.

1 Majority Judgement, para. 25.

2 Majority Judgement, para. 27.

3 T, 19 October 1999, p. 1705.

4 T, 19 October 1999, p. 1706.

5 Majority Judgement, para. 26.

6 T, 19 October 1999, p. 1708.

7 Ibid.

8 T, 19 October 1999, p. 1709.

9 Save for one possible witness who it stated it would perhaps call in the future.

10 T, 19 October 1999, p. 1708.

11 Prosecution Brief para. 2.4.

12 The Prosecution stated that it was an “extraordinary step” for the Trial Chamber to “summarily terminate the proceedings.” Prosecution Brief, para. 2.3. It is noted that this was the first time since Rule9%bis was adopted by the Tribunal at the eighteenth Plenary Session on 9-10 July 1998, that such a decision was enteredproprio motu, while all subsequent decisions by Trial Chambers have been rendered pursuant to motions filed by the defence.

13 Prosecution Brief, para. 2.4.

14 In the decision inR. v. Barking and Dagenham Justices, ex parte Director of Public Prosecutions, [1995] Crim LR 953, the court found “desirable that the Magistrates, in such circumstances, should call upon the party that they are provisionally against, in this case the Prosecution, before making a ruling” (emphasis added). This is however distinct from the situation to which I allude. That is, not a situation in which the justices are “provisionally” against a party, but rather are already convinced. In any event, I believe that the jurisprudence supports my contention that a decision by the court is discretionary, that is, it is “desirable” and not mandatory to hear the party.

15 Emphasis added.

16 Rule 85(A) of the Rules.

17 See, Prosecutor v. Dario Kordić and Mario Čerkez, Decision on appeal regarding the admission into evidence of seven affidavits and one formal statement, Case No. IT-95-14/2-AR73.6, 18 September 2000, paras. 23et seq.

18 Ibid., para. 22, referring to Article 31(1) of the Vienna Convention on the Law of Treaties (1969).

19 Majority Judgement, footnote 55.

20 Nuclear Tests (Australia v.France), ICJ Reports 1974, p. 253, at para. 33.

21 Majority Judgement, para. 28.

22 T, 19 October 1999, p. 1706. The Trial Chamber stated: “By a done lieu de joindre cette requête, qu'on appellera I'incident, au fond.“

1 IT-96-21-A, of 20 February 2001, paras. 433-434.

2 Ibid., para. 433

3 R. v.Barking and Dagenham Justices, ex parteDirector of Public Prosecutions [1995] Crim LR 953, per Scott Baker J.

4 [1962] 1 All ER 448.

5 See R. v. Galbraith [1981] 1 WLR 1039, phrased in terms appropriate to a trial by judge and jury.

6 Per Lord, Merriman P., inRamsden v. Ramsden [1954] 2 All ER 623.Google Scholar

7 Blackstone's Criminal Practice 2001 (London,2001), p. 1562, paragraph D19.8.

8 See Emmins on Criminal Procedure,5th ed.(London,1992), p.194, para. 12.8.3, and Seabrooke, andSprack, ,Criminal Evidence and Procedure: The Statutory Framework (London, 1996), p.303 Google Scholar, para. 22.3.

9 R. v. Galbraith, supra.

10 Blackstone, supra, p. 1562, para. D19.8.

11 See, inter alia, Botton v. Secretary of State for the Environment [1992] 1 PLR 1;Griffith v.Jenkins [1992] 2 A.C. 76, H.L.;Director of Public Prosecution v. Cosier, Q.B.D., 5 April 2000; andR. v. Barking and Dagenham Justices, ex parteDirector of Public Prosecution [1995] Crim LR 953. Particularities are not, it is submitted, relevant to the general thinking.

12 IT-95-14/1-A, of 24 March 2000.

13 See, generally,United States of America v.Hooper, (1970) 139 U.S. App. D.C. 171, andUnited States of America v. Lindsey, (1995) 310 U.S. App. D.C. 300.

14 Au Pui-Kuen v. Attorney-General of Hong Kong [ 1979] 1 All ER 769, PC.

15 IT-96-21 -A, of 20 February 2001.

16 Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna inDelalić, IT-96-21 -A, of 20 February 2001, paras. 25ff.

17 See Missouri v.Hunter, 459 U.S. 359 (1983), at pp. 368-369, in which Chief Justice Burger, delivering the opinion of the Supreme Court of the United States, said that “[w]here a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.“

18 See Separate and Dissenting Opinion,supra, para. 26; iTalićs as in the original. Andsee paragraph 27,ibid.

19 See and compareGrady v. Corbin, 495 U.S. 508 (1990), favouring the “same conduct” test, andUnited States v.Dixon, (1993) 113 S. Ct. 2849, overruling the former and restoring the “same elements” test ofBlockburger v. United States, 284 U.S. 299 (1932). That the double jeopardy principle was involved does not affect the applicability of the fundamental underlying principle, although, as the literature shows, it is recognised that there is room for discussion.

20 See in this respect Report of the Preparatory Commission for the International Criminal Court, PCNICC/2000/INF/Add.2, UN General 6 July 2000, stating, under Article 8(2)(a) at p. 18, that the “perpetrator was aware of the factual circumstances that established that protected status,” a formula which, it is believed, avoids a purely subjective approach to the question of knowledge while respecting the usual requirements ofmens rea.

21 See Separate and Dissenting Opinion,supra, para. 26; iTalićs as in the original. Andsee para. 27,ibid.

22 For example, “An institution … cannot at one and the same time be and not be.”See Namibia, I.C.J. Reports 1971, at p. 73, per Judge Ammoun, concurring. Whatever might be the position in other fields of thought, that, I think, represents the standard jurisprudential view. Thus, as it was put, it “is not usual to advance at one and the same time an argument and its opposite.”See Nuclear Tests, Interim Measures (Australia v.France), ICJ Reports 1973, 99 at 153, per Judge Gros, dissenting.

23 This is not to say that, individually, I would not wish to reserve my thinking on other aspects of the reasoning inDelalić. I am not sure that paragraphs 419-423 of the judgement in that case proceeded on the premise that Article 3 of the Statute of the Tribunal is confined to cases involving injury to persons taking no active part in the hostilities. If so, it is to be observed that, in paragraph (a), the provision provides for prosecution of cases involving the “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering.” Injury to active members of opposing fighting forces would appear to be contemplated. Also, I do not have the impression that paragraphs 412-413 of the Delatić judgement deal with a case in which all the elements of one crime are the same as all the elements of the other crime or crimes. It is possible that the omission was due to a view that that could not happen under the Statute of the Tribunal. But that would be a matter for argument in a proper case.

1 See e.g. W. Schabas,Genocide in International Law (2000) at 9.

2 Majority Judgement at para. 77.

3 Statute, Article 25(2).

4 See e.g. Prosecutor v.Tadić, Case No.: IT-94-1-A-R77, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, paras. 12-29.

5 Majority Judgement at para. 73.

6 W. LaFave ' H. Israel, Criminal Procedure (2nd ed., 1992) at 1157-1158.

7 United States v. Lindsey, Al F.3d 440, 310 U.S. App. D.C. 300 (1995) at 306.

8 Kg. United States v.Hooper, 432 F.2d 604, 139 U.S. App. D.C. 171 (1970) at 173; Lindsey,ibid, at 306.

9 E.g. Hooper, ibid at 173 FN8;United States v.Butera, 677 F.2d 1376 (1Ith Cir. 1982) at 1385;United States v. Cardona, 650 F,2d 54 (5th Cir. 1981) at 57;United States v. Dorsey, 865 F.2d 1275, 275 U.S. App. D.C.176 (1989) at 181 FN4.

10 Prosecution's Appeal Brief, 14 July 2000, para. 5.1.

11 R v. Barking and Dagenham Justices, (1995) Crim LR 953.

12 R v. Cosier, Q.B.D., 5 April 2000.

13 E.g. in the US Federal system, no appeal may be taken by the prosecution from the grant of a judgement of acquittal made after trial\ has begun but before it has been completed and a final verdict rendered.See 18 U.S.C. Section 3731; Rule 29, F.R. Cr P. The rationale for this rule is to avoid infringing the principle of double jeopardy.

14 Prosecutor v. Delalić et al, Case No.: IT-96-21-A, Judgement, 20 February 2001 (hereafterDelalić), para. 413. The Trial Chamber in theKunarac case subsequently adopted this approach.See Prosecutor v.Kunarac et al, Case Nos.: IT-96-23-T ' IT-96-23/1-T, Judgement, 22 February 2001, para. 549-550.

15 Delalić, para. 423.

16 Danner, A., “Constructing a Hierarchy of Crimes in International Criminal Law Sentencing,” 87(3) Virginia Law Review (2001), 101 at 170.CrossRef Google Scholar

17 Prosecutor v.Musema, Case No.: ICTR-96-13-T, Judgement and Sentence, at para. 981;Prosecutor v. Rutaganda, Case No.: ICTR-96-3-T, Judgement and Sentence, at para. 451;Prosecutor v.Kayishema et al, Case No.: ICTR-95-1-T, Sentence, at para. 9.

1 See para. 37, note 66, of this judgement, where theDelalić appeal judgement, para. 434, p. 148, and theKunarac decision on motion for acquittal, 3 July 2000, para. 10, p. 6, are cited.

2 The authorities cited in the judgement to sustain the majority's position refer largely to cases which are eventually sent to a jury, and even if a few do not, it is my view that the issue should be approached prudently, avoiding the application, in a mechanical fashion, of national solutions without assessing whether they may require adaptations to the needs of the procedure before this Tribunal, and taking into account also the fact that they may result in disregarding the fundamental rights of the accused as applicable under the Statute of this Tribunal.

3 It has been constantly affirmed by the Appeals Chamber that a Trial Chamber is best placed to hear, assess, and weigh the evidence, and that the Appeals Chamber has to give a margin of deference to the Trial Chamber's evaluation of the evidence presented at trial. It has also been affirmed that the Appeals Chamber “may overturn the Trial Chamber's finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal or where the evaluation of the evidence is wholly erroneous.”See Aleksovski appeal judgement, para. 63.See also Tadić appeal judgement, para. 64, andDelalić appeal judgement, para. 506.

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International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber: Prosecutor v. Jelisić

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International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber: Prosecutor v. Jelisić

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