International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Milan Babić*

doi:10.1017/S0020782900006434

1 Sentencing Hearing, T. 206, See also the Testimony of Drago Kovaćević, Sentencing Hearing, T. 153.

2 Prosecutor v. Milan Babić, Case No. IT-03-72-T (“Babić Case“), Ex. PS5, Witness Galbraith, T. 23087, 23105 and 23158.

3 Babić Case, Ex. PS5, Witness Galbraith, T. 23104, 23105 and 23157.

4 Ibid., Ex. PS5, Witness Galbraith, T. 23105.

5 Ibid., Ex. PS5, Witness Galbraith, T. 23203.

6 Ibid., Ex. PS5, Witness Galbraith, T. 23108. The majority Judges in the Appeals Chamber in fact acknowledged at para. 57 that this evidence was available before the Trial Chamber.

7 entencing Hearing, T. 205; Milošević Trial, Witness Galbraith, T. 23110.

8 S ecurity Council Resolution 827 (1993), S/3217, 25 May 1993, which states that one of the aims of this International Tribunal is to contribute to the restoration and maintenance of peace. See also Report of the Security-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), Presented 3 May 1993, (S/25704), Art. 10.

9 Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-T, 29 November 2002, para, 9; Alfred Musetna v. Prosecutor, Case No. ICTR-96-13-A, Judgement, 16 November 2001, para. 395.

1 entencing Judgement,paras 14 and 16.

2 Indictment,para.5. the indictment was filed on 6 November 2003 and confirmed on 17 November 2003(order for review of Indictment).see also sentencing Judgement,paras 16-17.

3 J oint Motion for consideration of plea agreement between Milan Babić and the office of the prosecutor Pursuant to Rule 62ter,12 january 2004.

4 I ndictment,para,15(emphasis in the original).

5 I bid.,para.3.

6 s entencing Judgement,para.7,

7 A mendment to the joint motion for consideration of plea Agreeement between Milan babić and the office of the prosecutor pursuant to Rule 62ter,Annex A,22 January 2004.

8 Tab 1 of the plea agreement.

9 At the appeal hearing, the Prosecution suggested that-should the Appeals chamber determine that the Trial chamber committed an error of law as submitted by both parties in grounds three, five and six-the Appeals chamber should impose a sentence of less than 11 years(AT.37).

10 Further Appearance,27 January 2004(“Further Appearance”)T.54-55.

11 Further Initial Appearance,28 January 2004(“Further Appearance”)T.61

12 Sentencing Judgement para.102

13 Notice of Appeal, 3 september 2004(“Notice of Appeal”),on 16 july 2004, the Defence filed the motion purseant to rule 127 for continuance of time to file notice of Appeal, seeking an extension of thirty days from the completion of the translation of the sentencing Judgement into Bosnian/Croatian/Serbian(“BCS”)on 28 july 2004,the Pre-appeal Judge granted the motion in part in that she ordered the appellant to file his notice of appeal 17 days after the filing f the BCS translation of the sentencing Judgement.The BCS Translation of the sentencing Judgement was filed on 18 August 2004.

14 Appellant's Brief Pursuant to Rule 111, 15 November 2004, Confidential. A public redacted version was filed on 24 March 2005 (“Appellant's Brief).

15 Prosecution Response to the Appellant's Brief Pursuant to Rule 111, Confidential. A public redacted version was filed on 24 March 2005 (“Respondent's Brief“).

16 Čelebići Appeal Judgement, paras 429 and 716. In addition, Trial Chambers are obliged to take into account the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10(3) of the Statute and in Rule

17 Kupreškić et al.Appeal Judgement, para. 408.

18 Mucić et al Judgement on Sentence Appeal, para. 11. See also Furundija Appeal Judgement, para. 40; Čelebići Appeal Judgement, para. 203; Dragan Nikolic Judgement on Sentencing Appeal, para. 8.

19 Tadić Appeal Judgement, para. 64; Furundžija Appeal Judgement, para. 37; Čelebići Appeal Judgement, paras 434—435; Kupreškić et al. Appeal Judgement, para. 29; Kunarac t al. Appeal Judgement, paras 35—48; Vasiljević Appeal Judge ment, paras 4-12; KvoČka et al. Appeal Judgement, para. 14.

20 Akayesu Appeal Judgement, para. 178; Kayishema and Ruzindana Appeal Judgement, para. 320; Musema Appeal Judgement, para. 15.

21 Čelebići Appeal Judgement, para. 717.

22 Krnojelac Appeal Judgement, para. 11.

23 Tadić Judgement in Sentencing Appeals, para. 22; Aleksovski Appeal Judgement, para. 187; Furundžija Appeal Judgement, para. 239; Čelebići Appeal Judgement, para. 725;Kupreškićet al. Appeal Judgement, para. 408; Jelisić Appeal Judgement, para. 99; Krstić Appeal Judgement, para. 242;Blaškić Appeal Judgement, para. 680.

24 Appellant's Brief, para. 41.

25 Ibid.

26 Respondent's Brief, para. 3.2. AT. 41-42.

27 Sentencing Judgement, para. 7. At the Further Initial Appear ance, the Presiding Judge provided an explanation as to why the Trial Chamber had some doubts about the legal qualification of the Appellant's liability with respect to the crime he pled guilty to. He explained that the Trial Chamber was “of a provisional view that this legal qualification might be inconsistent with the facts” (T. 29).

28 Further Initial Appearance, T. 44.

29 Ibid., T. 44-45.

30 Ibid., T. 45.

31 Further Appearance, T. 61.

32 Appellant's Brief, para. 41.

33 Further Initial Appearance, T. 29.

34 Respondent's Brief, para. 3.3.

35 Rule 62bis (Guilty Pleas) reads : “If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change his or her plea to guilty and the Trial Chamber is satisfied that: (i) the guilty plea has been made Voluntarily; (ii) the guilty plea is informed; (iii) the guilty plea is not equivocal; and (iv) there is a sufficient factual basis for the crime and the accused's participation in it, either on the basis of independent indicia or on lack of any material disagreement between the parties about the facts of the case, the Trial Chamber may enter a finding of guilt and instruct the Registrar to set a date for the sentencing hearing.” (emphasis added).

36 Appellant's Brief, para. 41.

37 Plea Agreement, para. 18.

38 Further Initial Appearance, T. 44.

39 Appellant's Brief, para. 41.

40 Respondent's Brief, para. 3.9.

41 Ibid.

42 Ibid., citing Erdemovi﹜ Appeal Judgement, para. 14 of the Joint Separate Opinion of Judge McDonald and Judge Vohrah: see also AT. 42.

43 Plea Agreement, para. 3.

44 Notice of Appeal, para. 2; Appellant's Brief, para. 70.

45 Appellant's Brief, paras 71-89.

46 Ibid., paras 90-100.

47 Respondent's Brief, para. 3.17.

48 Ibid., para. 3.32.

49 Appellant's Brief, para. 71.

50 Ibid., para. 72, citing para. 24(d) of the Sentencing Judgement (emphasis added by the Appellant).

51 Ibid., para. 76.

52 Respondent's Brief, para. 3.22; AT. 51-52.

53 Furundžija Appeal Judgement, para. 69.

54 Appellant's Brief, para. 75.

55 Kunarac et al. Appeal Judgement, para. 41 (referring to Hadji-anastassiou v. Greece, European Court of Human Rights, no. 69/1991/321/393, [1992] ECHR 12945/87, Judgement of 16 December 1992, para. 33).

56 Kunarac et al. Appeal Judgement, para. 41.

57 Sentencing Judgement, para. 24(d), referring to paras 33(b) and 14-16 of the Factual Statement.

58 Appellant's Brief, para. 77, citing para. 24(g) of the Sentencing Judgement.

59 Ibid, para. 80.

60 Respondent's Brief, para. 3.24; AT. 51-52.

61 Factual Statement, para. 6.

62 Sentencing Judgement, para. 37, referring to para. 34 of the Factual Statement.

63 Appellant's Brief, para. 81.

64 Ibid., referring to para. 79 of the Sentencing Judgement.

65 Respondent's Brief, para. 3.26.

66 Sentencing Judgement, para. 40.

67 Ibid.

68 Ibid., para. 79.

69 Ibid.

70 Ibid., paras 39-40.

71 Appellant's Brief, para. 82. Under this part of his second ground of appeal, the Appellant also raises arguments, pertaining to his alleged limited participation in the crimes charged (Appellant's Brief, paras 86-89). His arguments in that respect will be addressed under the third ground of appeal, which is specifically concerned with the question of his alleged limited participation as a mitigating factor.

72 Respondent's Brief, paras 3.29-3.30.

73 Kvočka et al. Appeal Judgement, para. 83 (footnotes omitted).

74 Appellant's Brief, para. 90.

75 Ibid., paras 92-99.

76 Ibid., para. 91.

77 Respondent's Brief, para. 3.32.

78 Ibid., paras 3.34 and 3.35, referring to paras 79, 90-92 of the Sentencing Judgement.

79 Ibid., para. 3.36.

80 AT. 51.

81 Dragan Nikolić, Judgement on Sentencing Appeal, para. 89.

82 Ibid., citing Kunarac et al. Appeal Judgement, para. 41.

83 Sentencing Judgement, para. 101.

84 Dragan Nikolć Judgement on Sentencing Appeal, para. 19 quoting Čelebići Appeal Judgement, para. 821.

85 Ibid.

86 Čelebići Appeal Judgement, para. 720.

87 Ibid., para. 717.

88 Jelisć Appeal Judgement, para. 96.

89 elebiji Appeal Judgement, para. 719. Dragan Nikoći, Judgement on Sentencing Appeal, para. 15.

90 Appellant's Brief, para. 102.

91 Ibid., para. 108.

92 Ibid., para. 112.

93 Ibid., para. 108. See also para. 88 of the Appellant's Brief which reads in part: “The Judgement affords no reasoning as to why the Trial Chamber rejected, or disregarded, those portions of the Factual Statement which had previously been accepted, and upon which Appellant's plea of guilty was predicated.“

94 Respondent's Brief, para. 3.39.

95 Ibid., para. 3.47.

96 Ibid., para. 3.40. See Sentencing Judgement, paras 76-80. At para. 111 of the Appellant's Brief, the Appellant further submits that since the mitigating factors must be established on a balance of probabilities, “the Trial Chamber erred in both law and fact and abused its discretion by finding that it was not established as more likely than not that [he] played a limited role in the [joint criminal enterprise]”. Mitigating circumstances must indeed be established on the balance of probabilities, as the Trial Chamber acknowledged at para. 48 of the Sentencing Judgement. See Čelebići Appeal Judgement, para. 590. However, because the Appeals Chamber finds that the Trial Cham-ber did not err in finding that the Appellant's role in the joint criminal enterprise was not as limited as the parties suggested (see infra para. 40), and thus, was not a mitigating circumstance, the question of whether the Trial Chamber applied the correct standard of proof with regard to finding his alleged limited role as a mitigating circumstance is moot. Accordingly, the Appeals Chamber dismisses this part of the Appellant's ground of appeal.

98 Respondent's Brief, para. 3.39 (emphasis added).

99 Ibid., para. 3.43.

100 Under this sub-section, the Appeals Chamber also addresses the Appellant's arguments under his second ground of appeal, as developed at paras 86-89 of the Appellant's Brief. See supra footnote 71.

101 Appellant's Brief, para. 102.

102 Ibid., para. 106.

103 Factual Statement, para. 5. See also para. 87 of the Appellant's Brief, in which the Appellant refers to the fact that the Prosecution reiterated at the Sentencing Hearing that he was not ‘ ‘the architect of the plan and was far from being the most important actor in the joint criminal enterprise'’ and that he never had “control over the military or Krajina police force that committed the crimes however'’ (Sentencing Hearing, T. 77, lines 21-22, and T. 78, lines 9-11).

104 Factual Statement, para. 16. See also para. 88 of the Appellant's Brief where the Appellant refers to the fact that “he was not a member of the parallel structure [and] had no ability to control the actions of those in the parallel structure''.

105 Factual Statement, para. 20. See also para. 88 of the Appellant's Brief where the Appellant refers to the fact that “the government of the SAO Krajina, of which he was President, never had any effective control over Martić and the police force in Krajina; he tried to remove Martić but was unsuccessful”.

106 Factual Statement, para. 27. See also para. 88 of the Appellant's Brief where the Appellant refers to the fact that “he tried to assume command over the TO, who only took orders from the JNA [Yugoslav People's Army] and were committing crimes, but was again unsuccessful”.

107 Factual Statement, para. 34.

108 Ibid., para. 33(d). See also para. 88 of the Appellant's Brief where the Appellant refers to the fact that “he did not share the state of mind, nor approved of the methods, of the leaders of the [joint criminal enterprise] with respect to ethnic cleansing”.

109 Appellant's Brief, para. 109.

110 Ibid., See also para. 86 of the Appellant's Brief: ‘ ‘The limited role of the Appellant was not a mere ‘contention’ of Prosecution, but rather, was reflected, defined and substantiated in the Factual Statement which was accepted by the Trial Chamber, and upon which the Appellant's plea of guilt was predicated.“

111 See supra para. 24.

112 Sentencing Judgement, para. 24(d).

113 See supra para. 18.

114 Sentencing Judgement,,para. 79.

115 Ibid

116 Ibid. See also paras 40 and 57.

117 See paras 24(e), (g) and (h) of the Sentencing Judgement, referring respectively to paras 33(e), (f) and (h) of the Factual Statement.

118 Respondent's Brief, para. 3.43.

119 Vasiljević Appeal Judgement para. 102. See also Tadić Appeal Judgement, para. 229; Krnojelac Appeal Judgement, paras 31-33.

120 As stated at paragraph 100 ofthe Vasiljević Appeal Judgement, participation in a joint criminal enterprise “need not inVolve the commission of a specific crime under one of the provisions [of the Statute] (for example murder, extermination, torture or rape), but may take the form of assistance in, or contribution to, the execution of the common purpose.“

121 Respondent's Brief, para. 3.39.

122 Kupreškić, et al.Trial Judgement, para. 852, endorsed in Alek-sovski Appeal Judgement, para. 182. See also Blaskić Appeal Judgement, para. 683.

123 Sentencing Judgement para. 50.

124 Respondent's Brief, para. 3.43. AT 40.

125 Tadić Judgement in Sentencing Appeals, paras 56-57.

126 Sentencing Judgement, para. 79.

127 Kajelijeli Trial Judgement, para. 963, cited in Krstić Appeal Judgement, para. 268.

128 Appellant's Brief, para. 113.

129 Sentencing Judgement, para. 91.

130 Appellant's Brief, para. 121.

131 Ibid., pan. 131.

132 Ibid., para. 181.

133 As stated in the Serushago Sentencing Appeal Judgement, Trial Chambers are “required as a matter of law to take account of mitigating circumstances.” See para. 22; see also Musema Appeal Judgement, para. 395.

134 Jokić Sentencing Judgement, paras 95-96; Todorovćc Sentencing Judgement, para. 88; Rule 101(B)(ii).

135 Jelisć, Appeal Judgement, para. 122; Jokić Sentencing Judgement, para. 76.

136 Jokić Sentencing Judgement, para. 89; Erdemović 1998 Sentencing Judgement, para. 16(iii).

137 Jokić Sentencing Judgement, para. 73.

138 Erdemović 1998 Sentencing Judgement, para. 16(i); Kupreškić et al. Appeal Judgement, para. 459.

139 Jokić Sentencing Judgement, para. 100; Dragan Nikolić Sentencing Judgement, para. 268.

140 Kunarac et al. Appeal Judgement, paras 362 and 408.

141 Jokić Sentencing Judgement, paras 90-91 and 103.

142 Erdemović 1998 Sentencing Judgement, para. 17 (stating that duress ‘ ‘may be taken into account only by way of mitigation. ‘’).

143 Krstić Appeal Judgement, para. 273.

144 Čelebići Appeal Judgement, para. 590.

145 Jokić Sentencing Judgement, para. 100.

146 Sikirica et al. Sentencing Judgement, paras 195 and 229.

147 Simic et al. Trial Judgement, para. 98. All the above mentioned mitigating circumstances have been mentioned at para. 696 of the Blaškić Appeal Judgement.

148 Čelebići Appeal Judgement, para. 780.

149 Ibid., para. 481.

150 Kupreskic et al. Appeal Judgement, para. 458.

151 Ibid., para. 430.

152 Čelebići Appeal Judgement, para. 763.

153 Ibid., para. 590.

154 Niyitegeka Appeal Judgement, para. 267.

155 Kayishema andRuzindana Appeal Judgement, para. 366; Niyi tegeka Appeal Judgement, para. 266. A Trial Chamber's deci sion may be disturbed on appeal “if an appellant shows that the Trial Chamber either took into account what it ought not to have, or failed to take into account what it ought to have taken into account, in the weighing process inVolved in this exercise of the discretion.” Čelebići Appeal Judgement, para. 780.

156 See Prosecutor v. Mom∼ilo Krajisnik, Case No. IT-00-39- AR73.1, Decision on Interlocutory Appeal of Decision on Second Defence Motion for Adjournment, 25 April 2005, para. 7. See also Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, 1 November 2004, para. 9; Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT- 01-51-AR73, Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 1 February 2002, paras 5-6.

157 Sentencing Judgement, para. 88.

158 Ibid., para. 89.

159 Appellant's Brief, para. 114.

160 See Sentencing Judgement, para. 75.

161 Appellant's Brief, para. 121, referring to para. 91 of the Sentencing Judgement.

162 Ibid., para. 123.

163 Ibid, para. 127.

164 Respondent's Brief, para. 3.60.

165 Ibid.

166 Ibid. AT. 46^7.

167 Sentencing Judgement, para. 91 (emphasis added, footnote omitted).

168 Ibid., para. 92 (emphasis added).

169 Tadić Judgement in Sentencing Appeals, para. 59.

170 Furundija Trial Judgement, para. 284.

171 Jelisić Trial Judgement, para. 124: “Among the mitigating circumstances set out by the Defence, the Trial Chamber will consider the age of the accused. He is now 31 years old and, at the time of the crimes, was 23. The Trial Chamber also takes into account the fact that the accused had never [been] convicted of a violent crime and that he is the father of a young child. Nonetheless, as indicated by the Trial Chamber hearing the Furundžija case, many accused are in that same situation and, in so serious a case, the Judges cannot accord too great a weight to considerations of this sort.” See also Banović Sentencing Judgement, para. 75: “[M]any accused share these personal factors and, in the Trial Chamber's view, the weight to be accorded to them is limited”.

172 Appellant's Brief, para. 126.

173 Sentencing Judgement, para. 91.

174 Ibid., para. 92.

175 Appellant's Brief, para. 131.

176 Ibid., para. 138, citing para. 95 of the Sentencing Judgment.

177 Appellant's Brief, para. 139.

178 Ibid., para. 140.

179 Ibid., para. 139. He argues that similar conduct has previously been accepted as a mitigating circumstance in other cases, but only makes reference to the Plavšić case (Appellant's Brief, para. 133).

180 Appellant's Brief, para. 132.

181 Ibid., para. 141. See also Factual Statement, para. 34.

182 Appellant's Brief, para. 138; AT. 31.

183 Respondent's Brief, para. 3.63; AT. 47.

184 Respondent's Brief, para. 3.64.

185 AT. 48.

186 Blaškić Trial Judgement, para. 773. See also Blaškić Appeal Judgement, para. 696, where the Appeals Chamber held that the factors taken into account as evidence in mitigation include, inter alia, the character of the accused subsequent to the conflict.

187 Sentencing Judgement, para. 94 (footnote omitted).

188 Sentencing Judgement, para. 94: ‘'For instance, in the Plavšić case, the Trial Chamber accepted Biljana Plavšić's post-conflict conduct as a mitigating factor because after the cessation of hostilities she had demonstrated considerable support for the 1995 General Framework Agreement for Peace in Bosnia-Herzegovina (Dayton Agreement) and had attempted to remove obstructive officials from office in order to promote peace.“

189 Sentencing Judgement, paras 95 and 96.

190 Sentencing Judgement, para. 95.

191 Plavšić Sentencing Judgement, paras 85-93.

192 Ibid., para. 94.

193 A review of the Appellant's Sentencing Brief reveals that subsequent conduct as a mitigating circumstance was addressed as a separate heading but the arguments contained therein are those relevant to his co-operation with the Prosecution and his Voluntary surrender. See Milan Babić Sentencing Brief, para. 65. However, the Prosecution's submissions during the Sentencing Hearing specifically addressed his attempts to facilitate peace. See Sentencing Hearing, T. 205 and 206.

194 AT. 30 and 31.

195 Appellant's Brief, para. 132; AT 31.

196 Prosecution's Sentencing Brief, paras 27-28; Sentencing Hearing, T. 205 and 206.

197 Sentencing Judgement, footnotes 38 and 41.

198 Sentencing Hearing, T. 205.

199 Ibid., referring to Ambassador Galbraith's testimony in theMiloševićcase marked as Ex. PS5. At the Appeal Hearing, the Prosecution also referred to the Appellant's testimony in the Milošević case, marked as Ex. PS7 (AT. 48). Although the Prosecution referred to it as Ex. PS6 at the Appeal Hearing, the Appellant's testimony in the Milošević case was marked as PS7 when the Prosecution tendered it into evidence. See Sentencing Hearing, T. 81.

200 Sentencing Hearing, T. 205.

201 Sentencing Judgement, paras 15, 16, 24, 34.

202 Ibid., T. 206, referring to Drago Kovacević's testimony.

203 Ibid., T. 153.

204 Sentencing Judgement, para. 98.

205 Appellant's Brief, para. 141, referring to paragraph 34 of the Factual Statement, which reads in its relevant part: “[…] At the end of 1991 or beginning of 1992, in relation to imprisonments he took steps to alleviate the problems by appointing professional prison staff.” The Defence further submitted that by bringing in new guards in the prisons, he “was able to get rid of the brutality that was in there.“

206 At the Appeal Hearing, Judge Giiney asked the following: “In the appeals brief, you mentioned for the first time that Mr. Babic attempted to alleviate […] the problems prevailing in detention centres by using professional prison personnel, but you do not explain to what extent this contributed to improving detention conditions. Could you expand on this? […]”. In response, the Defence did not deny that this was mentioned for the first time in the Appellant's Brief and said that the Appellant would be better placed to answer this question. The Appellant did not provide any further explanation.AT. 53 and 54.

207 ’ ‘As regards additional mitigating evidence that was available,though not raised, at trial, the Appeals Chamber does not consider itself to be the appropriate forum at which such material should first be raised.” Kvočka et al. Appeal Judgement, para. 674; see alsoKupreškić Appeal Judgement, para. 414.

208 Appellant's Brief, para. 140.

209 Ibid.

210 Respondent's Brief, para. 3.65.

211 Sentencing Judgement, para. 48.

212 Appellant's Brief, para. 181.

213 Ibid., para. 188.

214 Respondent's Brief, para. 3.97; AT. 48^9.

215 The Appeals Chamber will not address the issue of whether, taken “in amalgamation”, the mitigating factors referred to by the Appellant were properly weighed by the Trial Chamber. An appellant can only succeed in challenging a Trial Chamber's decision regarding the weight afforded to a mitigating circumstance by demonstrating that the Trial Chamber committed a discernible error concerning a specific factor. As correctly stated at para. 675 of the Kvočka Appeal Judgement, “[h]ere recital of mitigating factors without more does not suffice to discharge this burden”.

216 Appellant's Brief, para. 182.

217 Sentencing Judgement, para. 70.

218 Appellant's Brief, para., 182. Respondent's Brief, paras 3.89 and 3.90.

220 Sentencing Judgement, para. 70.

221 Sentencing Judgement, para. 71:’ ‘The Trial Chamber is satisfied that Babic's admission of guilt in the circumstances described above is a mitigating factor.” See also Sentencing Judgement, para. 97: “In conclusion, the Trial Chamber accepts that the following factors establish that a reduced sentence is appropriate: Babić's admission of guilt and the promptness thereof … .“

222 Appellant's Brief, para. 183.

223 Ibid.

224 Ibid., para. 184.

225 Respondent's Brief, para. 3.91; AT. 49.

226 Ibid., para. 3.92.

227 Sentencing Judgement, para. 75.

228 See Section IV(B)(2).

229 Appellant's Brief, para. 185.

230 Ibid.

231 Respondent's Brief, para. 3.93; AT. 49.

232 Ibid., para. 3.93.

233 Sentencing Judgement, para. 82.

234 Ibid., para. 83.

235 Ibid., para. 84: “The Trial Chamber is satisfied that the remorse expressed by Babic is sincere and consequently constitutes a mitigating factor.“

236 Appellant's Brief, para. 186.

237 Ibid.

238 Ibid.

239 Respondent's Brief, para. 3.94.

240 Ibid.

241 Sentencing Judgement, para. 74. See Section VI(B).

242 Sentencing Judgement, para. 86.

243 Ibid., para. 74.

244 Ibid., para. 86.

245 Ibid., para. 97.

246 Appellant's Brief, para. 187.

247 Ibid.

248 Respondent's Brief, para. 3.95.

249 See Section VI(B).

250 Appellant's Brief, para. 143.

251 Ibid., para. 145, quoting para. 61 of the Sentencing Judgement.

252 Respondent's Brief, para. 3.67, quoting para. 148 of the Appellant's Brief.

253 Ibid., para. 3.68.

254 Ibid., para. 3.68; AT. 43.

255 Sentencing Judgement, para. 62.

256 Ibid., para. 79. See supra para. 38.

257 Sentencing Judgement, para. 56.

258 Indictment, para. 3.

259 Factual Statement, paras 4 and 5.

260 AT. 52-53.

261 AT. 43, lines 2-6: “[…] in this particular ground, the [A]ppellant has misconstrued what the Trial Chamber did. It did not base this particular aggravating circumstance on [the Appellant's] leadership role in the joint criminal enterprise. In fact, it based the aggravating circumstance on his role as a regional political leader.“

262 AT. 52, line 23 to AT. 53 line 4.

263 AT. 53, lines 6-9.

264 Brdnin Trial Judgement, para. 1099. Having found that a joint criminal enterprise was not an appropriate mode of liability to describe the individual criminal responsibility of Brdnin, the Trial Chamber found that his position of authority at the highest level of the political hierarchy and the abuse of such authority constituted an aggravating factor of considerable weight.

265 See Aleksovski Appeal Judgement, para. 183; Čelebići Appeal Judgement, para. 745;Kupreškić Appeal Judgement, para. 451.

266 Krstić Trial Judgement, para. 709.

267 Kayishema and Ruzindana Appeal Judgement, paras 358- 359.

268 Aleksovski Appeal Judgement, para. 183.

269 Ntakirutimana Appeal Judgement, para. 563.

270 Sentencing Judgement, para. 61.

271 Notice of Appeal, para. 8.

272 Appellant's Brief, para. 162. See also Respondent's Brief, para. 3.72.

273 See Sections V and VII.

274 Appellant's Brief, para. 165.

275 Ibid., paras 166 and 168.

276 Ibid., para. 167.

277 See Section V(A).

278 See Section IV(B)(1). The Prosecution, for this reason, did not wish to present any argument in respect of this argument of the Appellant: “This argument has also been addressed previously in the Prosecution's answer to the second ground of appeal and will, therefore, not be reiterated in this section.”(Respondent's Brief, para. 3.76).

279 Respondent's Brief, paras 3.72 and 3.77.

280 Appellant's Brief, para. 168.

281 Dragan NikolićJudgement on Sentencing Appeal, para. 89.

282 Ibid.

283 Appellant's Brief, para. 171.

284 Sentencing Judgement, para. 53.

285 Ibid.

286 Appellant's Brief, para. 172.

287 Respondent's Brief, para. 3.82.

288 Ibid. See also AT. 38.

289 Indictment, para. 5.

290 Ibid., para. 6.

291 Ibid., para. 13.

292 Appellant's Brief, para. 174 : “The Trial Chamber, failed to draw the necessary distinction between the geographical scope existing in the period of time covered by Appellant's plea and afterwards.“

293 Appellant's Brief, para. 175; referring to para. 24 of the Sentencing Judgement.

294 Ibid., para. 174; referring to para. 34 of the Sentencing Judgement.

295 Ibid., para. 175; AT. 25.

296 Ibid., para. 173.

297 Sentencing Judgement, para. 24(b), emphasis added.

298 Factual Statement, para. 33(b), emphasis added.

299 Indictment, para. 5.

300 Appellant's Brief, para. 178.

301 Factual Statement, para. 33(g), emphasis added.

302 Sentencing Judgement, para. 24(f), emphasis added.

303 Appellant's Brief, para. 172.

304 Appellant's Brief, para. 191, referring to para. 98 of the Sentencing Judgement. See also Appellant's Brief, para. 192

305 Appellant's Brief, para. 190.

306 Ibid., paras 190 and 192.

307 Ibid, para. 192.

308 Ibid., para. 193. See also para. 198.

309 Respondent's Brief, para. 3.99.

310 Ibid., para. 3.100, referring to para. 48 of the Sentencing Judgement.

311 Ibid., para. 3.102, citing para. 198 of the Appellant's Brief.

312 Sentencing Judgement, para. 98.

313 Appellant's Brief, para. 192; Respondent's Brief, para. 3.101.

314 Sentencing Judgement, paras 54-62.

315 Appellant's Brief, para. 192.

316 Sentencing Judgement, para. 102.

317 Ibid., para. 98 (emphasis added).

318 Appellant's Brief, para. 198.

319 Ibid., para. 199.

320 Respondent's Brief, para. 3.101; footnote 185.

321 Appellant's Brief, paras 194, 195 and 196.

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International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Milan Babić*

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