International Criminal Tribunal for the Former Yugoslavia: Prosecutor v. Radislav Krstic

doi:10.1017/S0020782900007543

* This document was reproduced and reformatted from the text appearing at the ICTY website (visited October 4, 2004) <http://www.un.org/icty> Due to the length of the document, the annexes will not be reproduced in this issue of ILM, however, their entries remain in the table of contents.

1 Trial Judgement, paras. 6 et seq: “The Take-over of Srebrenica and its Aftermath.“

2 Ibid., para. 52.

3 Ibid., para. 84.

4 The latter challenge is examined in Part III of this Judgement, which considers whether the Trial Chamber was correct to find that the facts of this case supported the charge of genocide.

5 Article II of the Genocide Convention.

6 Indictment, para. 21.

7 See Trial Judgement, para. 558 (“the indictment in this case defined the targeted group as the Bosnian Muslims“).

8 Ibid., paras. 559-560.

9 See Defence Appeal Brief, paras. 28, 38.

10 Jelisić Trial Judgement, para. 82 (citing Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May — 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10) (1996), p. 89; Nehemiah Robinson, The Genocide Convention: A Commentary (1960) (lsted. 1949), p. 63; Genocide Convention, Report of the Committee on Foreign Relations,(J.S. Senate, 18 July 1981), p. 22). The Jelisić Trial Judgement was reversed in part by the Appeals Chamber on other grounds. See Jelisić Appeal Judgement, para. 72. The Trial Chamber's definition of what constitutes an appropriate part of the group protected by the Genocide Convention was not challenged.

11 Sikirica Judgement on Defence Motions to Acquit, para. 65.

12 Jelisić Trial Judgement, para. 82; Sikirica Judgement on Defence Motions to Acquit, para. 77.

13 See Art. 2 of the ICTR Statute (defining the specific intent requirement of genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such“).

14 Kayishema and Ruzindana Trial Judgement, para. 97.

15 See Bagilishema Trial Judgement, para. 64 (“the intention to destroy must target at least a substantial part of the group“) (citing Kayishema and Ruzindana Trial Judgement, para. 97); Semanza Trial Judgement and Sentence, para. 316 (“The intention to destroy must be, at least, to destroy a substantial part of the group“) (citing Bagilishema Trial Judgement, para. 64). While Kayishema used the term “considerable number” rather than “substantial part,” Semanza and Bagilishema make it clear that Kayishema did not intend to adopt a different standard with respect to the definition of the term “a part.” The standard adopted by the Trial Chambers of the ICTR is therefore consistent with the jurisprudence of this Tribunal.

16 2 Executive Sessions of the Senate Foreign Relations Committee, Historical Series (1976), p. 370; see also Jelisić Trial Judgement, para. 82; William A. Schabas, Genocide in International Law (2000), p. 238.

17 Ibid., cited in William A. Schabas, Genocide in International Law (2000), p. 238.

18 Nehemia Robinson, The Genocide Convention: A Commentary (1960), pp. 63.

19 Ibid., p.58.

20 Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May — 26 July 1996, p. 89. The Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission, contains a prohibition of the offence of genocide substantively similar to the prohibition present in the Genocide Convention. The Draft code is not binding as a matter of international law, but is an authoritative instrument, parts of which may constitute evidence of customary international law, clarify customary rules, or, at the very least, “be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world.” Furundžija Trial Judgement, para. 227.

21 Whitaker, Benjamin, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 Google Scholar (” ‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership.“); see also Jelisić Trial Judgement, para. 65 (quoting the report); Trial Judgement, para. 587 (same).

22 The Trial Chambers in Jelisić and Sikirica referred to this factor as an independent consideration which is sufficient, in and of itself, to satisfy the requirement of substantiality. See Jelisić Trial Judgement, para. 82; Sikirica Trial Judgement, para. 65. Properly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied.

23 For a discussion of these examples, see William A. Schabas, Genocide in International Law (2000), p. 235.

24 Trial Judgement, para. 560 (“The Chamber concludes that the protected group, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims. The Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under Article 4.“). See also Trial Judgement, para. 591. Although the Trial Chamber did not delineate clearly the interrelationship between these two alternative definitions, an explanation can be gleaned from its Judgement. As the Trial Chamber found, “most of the Bosnian Muslims residing in Srebrenica at the time of the [Serbian] attack were not originally from Srebrenica but from all around the central Podrinje region.” Trial Judgement, para. 559; see also ibid., para. 592 (speaking about “the Bosnian Muslim community of Srebrenica and its surrounds“). The Trial Chamber used the term “Bosnian Muslims of Srebrenica” as a short-hand for the Muslims of both Srebrenica and the surrounding areas, most of whom had, by the time of the Serbian attack against the city, sought refuge with the enclave. This is also the sense in which the term will be used in this Judgement.

25 While the Trial Chamber did not make a definitive determination as to the size of the Bosnian Muslim community in Srebrenica, the issue was not in dispute. The Prosecution estimated the number to be between 38,000 and 42,000. See Trial Judgement, para. 592. The Defence's estimate was 40,000. See ibid., para. 593.

26 The pre-war Muslim population of the municipality of Srebrenica was 27,000. Trial Judgement, para. 11. By January 1993, four months before the UN Security Council declared Srebrenica to be a safe area, its population swelled to about 50,000 — 60,000, due to the influx of refugees from nearby regions. Ibid., para. 14. Between 8,000 and 9,000 of those who found shelter in Srebrenica were subsequently evacuated in March — April 1993 by the UN High Commissioner for Refugees. Ibid., para. 16.

27 The Muslim population of Bosnia and Herzegovina in 1995, when the attack against Srebrenica took place, was approximately 1,400,000. See http://www.unhabitat.org/habrdd/conditions/southeurope/bosnia.htm, accessed 26/03/2004 (estimating that the Muslims constituted 40 percent of the 1995 population of 3,569,000). The Bosnian Muslims of Srebrenica therefore formed about 2.9 percent of the overall population.

28 Trial Judgement, para. 12; see also para. 17.

29 Security Council Resolution 819, UN Doc. S/RES/819 (1993), quoted in Trial Judgement, para. 18 & n. 17. The two other protected enclaves created by the Security Council were Žepa and Gorazde. See Security Council Resolution 824, UN Doc. S/RES/824 (1993); Trial Judgement, para. 18 & n. 18.

30 Trial Judgement, paras. 15, 19 - 20.

31 Defence Appeal Brief, paras. 38 - 39.

32 Ibid., para. 40.

33 Ibid.

34 Trial Judgement, paras. 560, 561.

35 Defence Appeal Brief, para. 40 (quoting Trial Judgement, para. 634) (internal quotation marks omitted).

36 See, e.g., para. 581 (“Since in this case primarily the Bosnian Muslim men of military age were killed, a second issue is whether this group of victims represents a sufficient part of the Bosnian Muslim group so that the intent to destroy them qualifies as an ‘intent to destroy the group in whole or in part’ under Article 4 of the Statute.“); para. 634 (” The Trial Chamber has concluded that, in terms of the requirement of Article 4(2) of the Statute that an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively, the military aged Bosnian Muslim men of Srebrenica do in fact constitute a substantial part of the Bosnian Muslim group, because the killing of these men inevitably and fundamentally would result in the annihilation of the entire Bosnian Muslim community at Srebrenica.“).

37 Defence Appeal Brief, para. 43.

38 Ibid., paras. 46-47.

39 The International Law Commission, when drafting a code of crimes which it submitted to the ICC Preparatory Committee, has examined closely the travaux préparatories of the Convention in order to elucidate the meaning of the term “destroy” in the Convention's description of the requisite intent. The Commission concluded: “As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, cultural or other identity of a particular group.” Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May — 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10) (1996), pp. 90-91. The commentators agree. See, e.g., William A. Schabas, Genocide in International Law (2000), p. 229 (concluding that the drafting history of the Convention would not sustain a construction of the genocidal intent which extends beyond an intent at physical destruction).

40 Trial Judgement, para. 580. See also ibid., para. 576 (discussing the conclusion of the International Law Commission, quoted in note 39, supra).

41 Trial Judgement, para. 594.

42 Ibid., para. 593.

43 Ibid., paras. 547, 594.

44 Ibid., para.75 &n.155.

45 Ibid., n.3.

46 See ibid., paras. 592-594 (finding, on the basis of the parties’ estimates, the number of the killed men to be approximately 7,500 and the overall size of the Srebrenica community, augmented by refugees from the surrounding areas, to be approximately 40,000).

47 Ibid.,para.595.

48 See ibid., para. 93 &notes 195, 196.

49 Ibid., para. 595.

50 Defence Appeal Brief, paras. 53 - 57.

51 Ibid., para. 53.

52 Trial Judgement, para. 595.

53 See Stakić Trial Judgement, para. 519 & nn. 1097-1098 (citing K. Kreß, Münchner Kommentar zum StGB, Rn 57, section 6 VStGB (2003); William A. Schabas, Genocide in International Law (2000), p. 200; BGH v. 21.2.2001 — 3 StR 244/00, NJW 2001, 2732 (2733)).

54 Jelisi Appeal Judgement, para. 47.

55 Defence Appeal Brief, paras. 74-77.

56 Jelisić Appeal Judgement, para. 47; see also Rutaganda Appeal Judgement, para. 528.

57 Trial Judgement, paras. 591 - 599.

58 Appellant Appeal Brief, paras. 84 - 101.

59 Krnojelac Appeal Judgement, para. 11.

60 Ibid., para. 12; Tadić Appeal Judgement, para. 64; Čelebići Appeal Judgement, para. 434; Aleksovski Appeal Judgement, para. 63.

61 Krnojelac Appeal Judgement, paras. 13, 39; Vasiljević Appeal Judgement, para. 8

62 Vasiljević Appeals Judgement, para. 121; see also Vasiljević Judgement, para. 68; Krnojelac Judgement, para. 83.

63 Trial Judgement, paras. 633, 644.

64 Defence Appeal Brief, paras. 204 - 210.

65 Ibid., paras. 176 - 203.

66 Ibid., paras. 157 - 175.

67 Ibid., para. 143, 154.

68 Ibid., paras. 328-331,625.

69 Defence Appeal Brief, para. 205.

70 Ibid., para. 206.

71 Ibid., paras. 207-208.

72 Trial Judgement, paras. 312-315.

73 Ibid., paras. 329, 317.

74 Ibid., para. 330.

75 T, pp. 406 - 407, Annex 7.

76 Defence Appeal Brief, paras. 197 - 198.

77 Ibid., para. 177.

78 Trial Judgement, paras. 88 - 89.

79 Defence Appeal Brief, para. 177.

80 Ibid., paras. 179 - 180.

81 Ibid., paras. 178-185.

82 Trial Judgement, para. 168.

83 Ibid., para. 289.

84 Ibid., paras. 268.

85 Ibid., paras. 168 - 178, 377.

86 Ibid., para. 186.

87 Defence Appeal Brief, para. 188.

88 Exh. P364/2, tab 14/2; Trial Judgement, para. 194.

89 Exh. P649; Trial Judgement, paras. 195, 264.

90 Trial Judgement, para. 192-193.

91 Exh. P609.

92 Trial Judgement, paras. 265-272.

93 Ibid., para. 265.

94 Ibid., para. 266.

95 Defence Appeal Brief, paras. 183-184.

96 Ibid., para. 184-185.

97 Ibid., paras. 187-191,239.

98 Ibid., para. 181.

99 Ibid., para. 268.

100 Ibid., para. 269.

101 Ibid., paras. 269-270.

102 Ibid., para. 270.

103 Defence Appeal Brief, para. 198.

104 Exh. D160;D158.

105 Rule 115 Defence Motion to Present Additional Evidence, 10 January 2003, paras. 7-10; Annex Tabs 1-3.

106 AT, p. 190.

107 Trial Judgement, para. 362.

108 See Section III.B. 1 (a) of this Judgement.

109 T, p. 407.

110 Trial Judgement, para. 158.

111 Defence Appeal Brief, paras. 157-164.

112 Ibid., paras. 165-169. Regarding the column, see also paras. 60 et seq.

113 Ibid., para. 169.

114 Trial Judgement, para. 239.

115 Ibid., para. 244.

116 Testimony of Richard Butler pursuant to the Order of the Appeals Chamber granting the Appellant's Oral Rule 115 Motion, 24 November 2003 (“Butler Report“), T, p. 4617.

117 Ibid., T, p. 4621.

118 Ibid., T pp. 4171-4718.

119 Trial Judgement, paras. 240, 246.

120 Ibid., para. 240.

121 Defence Appeal Brief, paras. 165-166.

122 Trial Judgement, para. 401.

123 AT, pp. 217-221; the relevant evidence is at Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Transcript of hearing dated 14 November 2003, page 4608 et seq.

124 Butler Report, T, pp. 4615-4616.

125 Trial Judgement, para. 401.

126 Defence Appeal Brief., paras. 174-175.

127 Trial Judgement, para. 380.

128 Ibid, para. 382.

129 Ibid., paras. 385, 387.

130 Ibid., par 383.

131 Ibid., n. 1015 (citing T 483).

132 Defence Appeal Brief, para. 96.

133 Ibid., para. 97.

134 Trial Judgement, para. 2.

135 Ibid., para. 407.

136 Ibid.

137 Ibid, para. 339

138 Ibid, para. 343

139 Ibid, para. 126.

140 Ibid, para. 130.

141 Ibid.

142 Ibid, pain. 156.

143 Ibid, para 130.

144 Ibid, para 132.

145 Ibid.

146 T. p. 401.

147 Appeal Proceedings, Friday 21 November 2003, T, pp. 101-174.

148 Trial Judgement, paras. 352-354.

149 Ibid, para. 354.

150 Ibid, para. 367.

151 Ibid.

152 Ibid, para. 58.

153 Ibid, paras. 160, 367

154 Ibid., para. 368.

155 Ibid., para. 369.

156 Ibid.

157 Ibid., para. 183.

158 Ibid., para. 295.

159 Ibid., para. 363.

160 Ibid., para. 156.

161 Ibid., para. 70.

162 Ibid., para. 296.

163 Ibid, para. 379.

164 Ibid, para. 400.

165 Ibid, para. 408.

166 Ibid, paras. 380-387, 408.

167 Ibid, para. 381.

168 Ibid, para. 384.

169 Ibid, para. 423.

170 Trial Judgement, para. 382.

171 Ibid., para. 423.

172 T, pp. 340-341.

173 Butler Report.

174 Trial Judgement, para. 408.

175 Ibid, para. 385.

176 Major Obrenović was subsequently promoted to the rank of Lieutenant-Colonel.

177 Ibid, paras. 388-389.

178 Ibid, para. 389.

179 Ibid, para. 390.

180 Ibid., para. 392.

181 Ibid., para. 393.

182 Ibid., para. 390.

183 Trial Judgement, para. 395.

184 Ibid., para. 396.

185 Appeal Hearing, Thursday 27 November T, p. 421.

186 Trial Judgement, paras. 388-399, 411.

187 Ibid., para. 397.

188 Ibid., para. 409-410.

189 Ibid, para. 242.

190 Ibid., paras. 400-410.

191 Ibid, para. 403.

192 Ibid., para. 400.

193 Ibid., paras. 283-289, 375-377.

194 Ibid, para. 143.

195 Trial Judgement, para. 177, read with paras 215, 446, 624..

196 His evidence at the Appeal hearing was that he had reported to President Karadžić “about the incidents in connection with the detained or captured Muslims that I was aware of up until that time that is in the 14th in the morning. A major incident or a major tragedy that occurred on the 13th in the evening was the killing of a large number of Muslims in the agricultural farm in Kravica. Muslims were held there, and I received this information from the ground — or the Muslims who had surrendered … And an incident broke out between the army of the Republika Srpska, members of the police, the special police forces, and those captured Muslims. A killing occurred of several Serb policemen — one, actually — and several were wounded in this clash. And then the policeman or the soldiers, whoever was there … took their revenge on those captured, and according to the information passed on to me by Mr. Borovčanin, about 300 men were killed.” AT, p. 124.

197 T, pp. 2527-2259, Annex B-32.

198 AT, p. 124—125.

199 Annex 3, Evidence of Nikolić (T, p. 402).

200 Trial Judgement, paras. 195-204.

201 Ibid., para. 215.

202 Ibid., paras. 220-225.

203 Ibid., para. 224.

204 Ibid., para. 225.

205 Ibid., para. 232.

206 Ibid., paras. 239-243.

207 Ibid., para. 246.

208 Ibid., paras. 252-253.

209 Ibid, paras. 254-256.

210 Ibid., paras. 257-261.

211 Ibid, para. 296.

212 Ibid., para. 418.

213 Ibid., para. 633.

214 Ibid., para. 336

215 Ibid., para. 420.

216 Ibid.

217 Ibid., para. 358.

218 Ibid., para. 359.

219 Ibid., para. 360.

220 Ibid., para. 374.

221 Ibid., para. 290.

222 Ibid., para. 378.

223 Ibid., para. 416.

224 Ibid., para. 416, 417.

225 Ibid., para. 417.

226 See Krnojelac Appeal Judgement, para. 52; Vasiljević Appeal Judgement, para. 102.

227 Indictment, paras. 18, 23.

228 Indictment, paras. 21-26. The Appeals Chamber notes that there was ample discussion on the issue of aiding and abetting versus complicity to genocide during the Appeals hearing, in response to questions posed by the bench. T 431-437.

229 Trial Judgement, paras. 642 — 644.

230 See ibid., para. 640;see also SemanzaTrial Judgement, paras.394-395 &n.655.

231 See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal, para. 47; Semanza Trial Judgement, paras. 394 — 395.

232 See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal, para. 47.

233 See Krnojelac Appeal Judgement, para. 70 (“The Appeals Chamber notes first of all that, in the case-law of the Tribunal… this term [accomplice] has different meanings depending on the context and may refer to a co-perpetrator or an aider and abettor.“) (citing Tactic Appeal Judgement, paras. 220, 229).

234 In this Appeal, the Appeals Chamber is concerned solely with the application to Article 4(3) of only one mode of liability deriving from Article 7(1), that of aiding and abetting. The Appeals Chamber expresses no opinion regarding other modes of liability listed in Article 7(1).

235 See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware … of the discriminatory intent of the perpetrators of that crime,” but “need not share th[at] intent“); Vasiljević Appeal Judgement, para. 142 (“In order to convict [the accused] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that [he] had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate ….“); see also Tadić Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.“).

236 Code Pénal, Art. 121-7 (“Est complice d'un crime ou d'un délit la personne qui sciemment, par aide ou assistance, en a facilité la préparation ou la consommation.“); see also Cour de Cassation, Chambre criminelle, 1st October 1984, summary 96.

237 Code Pénal, Art. 211-1.

238 See section 27(1) of the German Penal Code (Strafgesetzbuch). According to section 2 of the German Code of Crimes Against International Law (CCIL), section 27(1) of the German Penal Code is applicable to crimes of genocide. See Albin Eser & Helmut Kreicker, Nationale Strafverfolgung Vöölkerrechtlicher Verbrechen (Freiburg 2003), Vol. I, pp. 107, 108.

239 With the implementation of the Statute of the International Criminal Court (ICC) in Germany, Section 6 of the CCIL recently replaced former §§ 220a of the German Penal Code. See Gerhard Werle & Florian Jessberger International Criminal Justice Is Coming Home: The New German Code of Crimes Against International Law,” Criminal Law Forum 13, (2002), pp. 201 - 202. The new provision is substantively similar. See ibid., pp. 191 — 223. This article also provides a full reprint of the CCIL in English. The text is also available, both in English and in several other languages, at <http://www.iuscrim.mpg.de/forsch/online_pub.html.>

240 See Arts. 25, 65 of the Swiss Criminal Code (Schweizerisches Strafgesetzbuch) (“La peine pourra être atténuée (art 65) à l’égard de celui qui aura intentiollement prêté assistance pour commetre un crime ou un délit.“); see also Judgement of the Swiss Federal Supreme Court (Schweizerisches Bundesgericht) of 17 February 1995, Decisions of the Swiss Federal Supreme Court (Bundesgerichtsentscheide, 121 IV, pp. 109, 120.

241 See, e.g., National Coal Board v. Gamble [1959] 1 Q.B. 11.

242 See Schedule 8, Art. 6 of the International Criminal Court Act of 2001 (specifying that a determination of liability in aiding and abetting genocide follows the general regulations of Section 8 of the Accessories and Abettors Act of 1861). The approach was the same under the pre-ICC English law.See Genocide Act of 1969 (replaced by the International Criminal Court Act on 31 August 2001); Official Report, Fifth Series, Parliamentary debates, Commons 1968-69, Vol. 777, 3 - 14 February 1969, pp. 480-509 (explaining that secondary liability with respect to genocide will be governed by the general principles of the English criminal law).

243 See Dunlop and Sylvester v. Regina [1979] 2 S.C.R. 881 (Supreme Court of Canada) (“one must be able to infer that the accused had prior knowledge that an offence of the type committed was planned”); Giorgianni (1985) 58 A.L.R. 641 (High Court of Australia) (relying on National Coal Board to hold that, to “be convicted of aiding, abetting, counselling or procuring the commission of an offence,” the accused must “know … all the essential facts which made what was done a crime”).

244 See Courteau, Candace, Note, The Mental Element Required for Accomplice Liability, 59 La. L. Rev. 325, 334 (1998)Google Scholar (while the majority of federal and state jurisdictions in the United States require a showing that an aider and abettor shared the principal perpetrator's intent, some states still find knowledge to be sufficient).

245 The same analysis applies to the relationship between Article II of the Genocide Convention, which contains the requirement of specific intent, and the Convention's Article III, which lists the proscribed acts, including that of complicity.

246 Schabas, William, Genocide in International Law, at 289 (2000)Google Scholar (quoting UN Doc. A/C.6/236 & Corr. 1; UN Doc. A/C.6/SR.87).

247 As it is not at issue in this case, the Appeals Chamber takes no position on the mens rea requirement for the conviction for the offence of complicity in genocide under Article 4(3) of the Statute where this offense strikes broader than the prohibition of aiding and abetting.

248 See, e,g., Krnojelac Trial Judgement, paras. 489-490 (finding a defendant liable for having aided and abetted the crime of persecution, which requires the specific intent to discriminate, where the principal perpetrators of the crime were not identified). Although the Appeals Chamber, on unrelated grounds, increased the defendant's level of responsibility to that of a co-perpetrator, it rejected the defendant's appeal against his conviction as an aider and abettor. See Krnojelac Appeal Judgement, paras. 35-53. See also Stakić Trial Judgement, para. 534 (stating that “an individual can be prosecuted for complicity even where the perpetrator has not been tried or even identified”) (citing Musema Trial Judgement, para. 174); Akayesu Trial Judgement, para. 531 (same).

249 See Vasiljević Trial Judgement, para. 143.

250 In entering a conviction against General Krstić as a participant in a joint criminal enterprise to commit genocide under Article 7(1) the Trial Chamber stated that he could also bear responsibility as a Commander pursuant to Article 7(3). The Trial Chamber concluded, however, that a conviction under Article 7(1) sufficiently expressed General Krstić's criminality. Trial Judgement, para. 652. The Appeals Chamber's determination that General Krstić is responsible as an aider and abettor is also based on Article 7(1). Even if General Krstić is also found to be responsible as a Commander, the Appeals Chamber concludes, as did the Trial Chamber, that the mode of liability under Article 7(1) best encapsulates General Krstić's criminality. This is because the most he could have done as a Commander was to report the use of his personnel and assets, in facilitating the killings, to the VRS Main Staff and to his superior, General Mladić, the very people who ordered the executions and were active participants in them. Further, although General Krstić could have tried to punish his subordinates for their participation in facilitating the executions, it is unlikely that he would have had the support of his superiors in doing so. See Krnojelac Trial Judgement, para. 127; not disturbed on appeal, see Krnojelac Appeal Judgement.

251 Defence Appeal Brief, paras. 143-156.

252 Ibid., para. 154; Exh. D432.

253 Ibid., para. 154; Trial Testimony of Drazen Erdemović, T, p. 3083 (14 April 2000).

254 Ibid., para. 154, Trial Judgement para. 358.

255 Ibid.

256 Trial Judgement, paras. 355, 337.

257 Trial Judgement, para. 335.

258 Trial Judgement, paras. 339-343.

259 Trial Judgement, paras. 350-354.

260 Trial Judgement, para. 344 — 345, 347.

261 Ibid., para. 358.

262 Ibid., para. 616.

263 Defence Appeal Brief, para. 208.

264 Ibid, paras. 102-142.

265 Blaškić Decision on the Appellant's Motion for the Production of Material, para. 38. See also Akayesu Appeal Judgement, para. 340.

266 Brdjanin Decision on Motion for Relief from Rule 68 Violations by the Prosecutor.

267 For example, where the Defence knew of the existence of the non-disclosed evidence, prejudice cannot be shown. In the Blaškić Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, it was held that “the Prosecution may still be relieved of the obligation under Rule 68, if the existence of the relevant exculpatory evidence is known and the evidence is accessible to the appellant, as the appellant would not be prejudiced materially by this violation.”

268 Rule 65ter has since been amended.

269 Prosecution's Response to Motion for Production of Evidence, 10 December 2001, para. 41; incorporated by reference into the Prosecutor's Response Appeal Brief at para. 3.51.

270 Transcript of Pre-Trial Conference (6 March 2000), pp. 398-400.

271 Presumably the pre-trial judge was referring to Rule 67, and not Rule 68 as stated in the transcript.

272 Transcript of Pre-Trial Conference (6 March 2000), pp. 398-400.

273 Defence Appeal Brief, paras. 105 and 107.

274 Ibid.

275 Krajišnik & Plavšić Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter, 66(B) and 67(C).

276 Krajišnik & Plavšić, paras. 7 and 8.

277 The amendment entered into force on 28 December 2001.

278 Rule 65ter(E)(iii): “The Prosecutor shall serve on the defence copies of the exhibits … listed.”

279 Defence Appeal Brief, para. 106.

280 Krajišnik & Plavšić, para. 7.

281 Ibid., para. 8.

282 Prosecution Response, paras. 3.27-3.37. While this agreement governed military documents for which admission as evidence was sought, that category of evidence constituted a substantial part of the Prosecution's case.

283 As noted by the Prosecution in its Response to the Defence Appeal Brief, para. 3.28.

284 Prosecution Response, para. 3.36.

285 Ibid.

286 Ibid.

287 Defence Appeal Brief, paras. 118-119.

288 The tape had been disclosed to the Defence the day before it was used at trial. See Prosecution's Response, para. 3.44, citing T. 6799.

289 Prosecution Response, para. 3.45.

290 Defence Appeal Brief, para. 110-123.

291 Ibid., para. 121.

292 Decision on the Defence Motions to Exclude Exhibits in Rebuttal Evidence and Motion for Continuance (confidential), 25 April 2001; references are to the public version of 4 May 2001. This Decision was made after hearing nine witnesses testify about the evidence in rebuttal, and after considering thirty exhibits relating to the conversation and hearing it played multiple times in court. See Defence Appeal Brief, para. 120.

293 See Akayesu Appeal Judgement, para. 343.

294 Akayesu Appeal Judgement, paras. 341-344.

295 Ibid.

296 Defence Appeal Brief, paras. 122-123.

297 In the Prosecution Response at paragraph 3.50, the Prosecution submitted that no Rule at that time precluded it from introducing the tape solely for the purpose of impeachment. Rule 65fer(E) applies only to exhibits and not to evidence submitted for the purposes of impeachment.

298 Defence Appeal Brief, para. 113.

299 Decision on the Defence Motions to Exclude Exhibits in Rebuttal Evidence and Motion for Continuance (confidential), 25 April 2001, public version 4 May 2001.

300 Ibid., paras. 10— 13.

301 See Defence Rule 68 Brief, para. 1. On 30 November 2001, the Defence filed its Motion for Production of Evidence, 30 November 2001, seeking the production of material which it alleged the Prosecution should have disclosed to it at trial under Rule 68. Following this motion, a number of filings were made by each party on the issue (see Annex A, Procedural Background). A number of reports updating the status of disclosure were also filed by the parties after they had reached an agreement: Prosecution's Status Report (partly confidential), 28 July 2003; Status Report (filed by the Prosecution, partly confidential), 17 March 2003; Prosecution's Status Report on Disclosure as of November 2002, 14 November 2002; Second Status Report on Appellant's Request for Deferral of Decision on Motion for Production of Evidence, 4 June 2002; Prosecution's Status Report on Disclosure, signed 5 June 2002, filed 6 June 2002; Status Report on Appellant's Request for Deferral of Decision on Motion for Production of Evidence, signed 19 March 2002, filed 20 March 2002. The additional disclosure by the Prosecution culminated in the Defence filing a motion for the admission of additional evidence on appeal pursuant to Rule 115 (Rule 115 Defence Motion to Present Additional Evidence, 10 January 2003; Supplemental Rule 115 Defence Motion to Present Additional Evidence, filed confidentially 20 Jan 2003; Defence Addendum to Rule 115 Motion with Request for Authorisation to Exceed Page Limit on the Rule 115 Motion, filed confidentially 27 January 2003; Defence Addendum to Rule 115 Motion with Request for Authorisation to Exceed the Page Limit in the Rule 115 Motion Filed on 27 January 2003, public version filed on 12 February 2003; Defence Reply to the Prosecution's Response to Defence Motions for Additional Evidence Under Rule 115, filed confidentially on 12 February 2003; Supplemental Rule 115 Motion to Present Additional Evidence, filed confidentially on 12 February 2003; Rule 115 Defence Motion to Present Additional Evidence Filed on 10 January 2003, public version filed on 12 February 2003.) It was in that motion that the Defence made submissions relating to violations of Rule 68. The parties subsequently agreed (Status Conferences, 27 August 2002, Transcript p. 43; 25 November 2002, Transcript pp. 58-59, 65, 67-68; 19 March 2003, Transcript, pp. 79-80) that allegations relating to Rule 68 and the fairness of the trial should be dealt with separately from the Rule 115 motion. In accordance with this agreement, the Defence confidentially filed its “Defence Appeal Brief Concerning Rule 68 Violations,” on 11 April 2003 (“Defence Rule 68 Brief) to which the Prosecution responded confidentially in its Response to Defence Appeal Brief Concerning Rule 68 Violations, 8 May 2003 (“Prosecution Rule 68 Brief).

302 Prosecution Rule 68 Brief, para. 2.1; See para. 3.9 where the Prosecution specifies that six statements rather than five contain Rule 68 materials.

303 Ibid.

304 Čelebići Decision on the Request of the Accused Hazim Delić Pursuant to Rule 68, para. 12.

305 Decision on Prosecution's Extremely Urgent Request for Variation of Orders Regarding Private Session Testimony, 14 November 2003.

306 Krstić Decision on Prosecution's Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C), 27 Mar 2003, p 4; Kordic & Čerkez Decision on Motion by Dario Kordic for Access to Unredacted Portions of October 2002 Interviews with Witness “AT”, para. 24.

307 Prosecution Rule 68 Brief, para. 2.7.

308 Ibid., para. 2.15, citing United States v Comosona, 848 F. 2d 1110 (10th Cir 1988) at p. 1115.

309 Krstić Decision on Applications for Admission of Additional Evidence on Appeal.

310 Defence Rule 68 Brief, para. 27.

311 Rule 115 Reasons, para. 43.

312 Defence Rule 68 Brief, para. 28.

313 Rule 115 Reasons, para. 50.

314 Op cit., para. 54.

315 Defence Rule 68 Brief, para. 29.

316 Ibid.

317 Rule 115 Reasons, para. 56.

318 Defence Rule 68 Brief, para. 37.

319 Rule 115 Reasons, para. 119.

320 Defence Rule 68 Brief, para. 40, citing the Blaškić Decision on the Defence Motion for Sanction's for the Prosecutor's Continuing Violation of Rule 68. The Blaškić Decision stated at p. 3 that “possible violations of Rule 68 are governed less by a system of sanctions than by the judge's definitive evaluation of the evidence presented by either of the parties, and the possibility which the opposing party will have had to contest it.“

321 For example, the evidence of Dragan Obrenović was admitted under Rule 115, while the evidence of other witnesses whose statements form the subject of this application was rejected. See Krstić Decision on Applications for Admission of Additional Evidence on Appeal, and Rule 115 Reasons, para. 3.

322 Rule 115 Reasons.

323 Defence Appeal Brief, para. 128.

324 Prosecution Response, para. 3.53.

325 Krajišnik & Plavšić Decision on Motion from Momcilo Krajišnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68, p. 2: “as a matter of practice and in order to secure a fair and expeditious trial, the Prosecution should normally indicate which material it is disclosing under the Rule and it is no answer to say that the Defence are in a better position to identify it.“

326 Defence Appeal Brief, para. 129.

327 Notably the disclosures of 25 June 2000 and 5 March 2001.

328 Defence Appeal Brief, para. 129.

329 Ibid.

330 Ibid., para. 129 et seq.

331 Prosecution Response, para. 3.59.

332 In its response at para. 3.60 the Prosecution submits that, in relation to the 25 June 2000 disclosure, the Defence had 24 days to examine the binders before commencement of cross examination, and that any material not identified as exculpatory at that stage could have been introduced in the Defence's case-in-chief. In relation to the 5 March 2001 disclosure, the Prosecution submits that the material was disclosed 14 days prior to the commencement of the Prosecution's case in rebuttal and that the Defence could have used the material in the Prosecution's rebuttal or in its own rejoinder, which began on 2 April 2001.

333 See the discussion regarding prejudice at paragraph 153 above.

334 See the discussion under Section E below.

335 See inter alia Order for a Witness to Appear, 13 December 2000; and Further Order for a Witness to Appear, 18 December 2000.

336 See the Order on Prosecution's Motion to Lift Ex Parte Status of Meeting with the Trial Chamber on 11 January 2002,7 March 2002 (confidential), in which the Pre-Appeal Judge granted the Prosecution's request to permit access to notes taken of the meeting of 11 January 2001, at which meeting the Prosecution disclosed these circumstances to the Trial Chamber.

337 Hadžihasanović et al. Indictment (confidential).

338 Halilović Indictment.

339 Defence Appeal Brief, para. 139.

340 Prosecution Response, p. 46.

341 Ibid., para. 3.72.

342 Ibid., paras. 3.67-3.69.

343 Kordic & Čerkez Order on Motion to Compel Compliance by the Prosecution with Rules 66 (A) and 68.

344 Prosecution's Response, para. 3.83.

345 T, pp. 9439-9505.

346 Trial Judgement, paras. 613-615.

347 T, p. 9595-9617.

348 Prosecution Response, para. 3.73. See the Krstić Order to Appear and Order to Appear (2).

349 Further Response to Appellant's 24 December 2001 Supplemental Reply, 11 March 2002; Prosecution Request for Leave to File a Further Response to “Defence Appeal Brief Concerning Rule 68 Violations”, 23 May 2003; Prosecution's Further Response to the Reply filed by Radislav Krstić on 22 May 2003 Regarding Rule 68 Violations, 30 June 2003.

350 Defence Response, para. 7.

351 See Kunarac et al. Appeal Judgement, para. 169; Mucić et al. Judgement on Sentence Appeal, para. 25.

352 Kunarac et al. Appeal Judgement, para. 169.

353 Čelebići Appeal Judgement, para. 412; see also Jelisić Appeal Judgement, para. 78; Kupreškić et al. Appeal Judgement, para. 387; Kunarac et al. Appeal Judgement, para. 168; Vasiljević Appeal Judgement, paras. 135, 146. This approach has also been endorsed by the Appeals Chamber of the ICTR. See Musema Appeal Judgement, para. 363.

354 Čelebići Appeal Judgement, para. 412; see also Jelisić Appeal Judgement, para. 78; Kupreškić et al. Appeal Judgement, para. 387; Kunarac et al. Appeal Judgement, paras. 168, 173.

355 Čelebići Appeal Judgement, para. 413; see also Jelisić Appeal Judgement, para. 79; Kupreškić et al. Appeal Judgement, para. 387: Kunarac et al. Appeal Judgement, para. 168.

356 Prosecution Appeal Brief, paras. 1.6,3.38.

357 Trial Judgement, paras. 682, 685-686.

358 Prosecution Appeal Brief, para. 3.34.

359 Musema Appeal Judgement, para. 366. At the Appeal hearing, the Defence conceded that, under the reasoning of Musema, convictions for extermination and genocide are not impermissibly cumulative. See AT, p. 281.

360 Trial Judgement, para. 682.

361 Ibid.

362 Ibid.

363 Trial Judgement, para. 544; see also Jelisić Appeal Judgement, para. 46 (“The specific intent [of genocide] requires that the perpetrator, by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such.“) (footnote omitted).

364 Tadić Appeal Judgement, para. 248; see also Kunarac et al. Appeal Judgement, paras. 85, 96, 102.

365 See, e.g.,\ The Rome Statute of the International Criminal Court: A Commentary (Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at p. 340 (under customary international law,” it is only for crimes against humanity [and not for genocide] that knowledge of the widespread or systematic practice is required“).

366 Trial Judgement, n. 1455 (quoting Report of the Preparatory Commission for the International Criminal Court, 6 July 2000, PCNICC/2000/INF/3/Add.2). The Trial Chamber stated that this definition was present in the Statute of the ICC; the definition, of course, is given only in the Elements of Crimes. There is a difference between the two. The Elements of Crimes, adopted by the Assembly of States Parties to the ICC pursuant to Article 9(1) of the ICC Statute, are intended only to “assist the Court in the interpretation and application” of the substantive definitions of crimes given in the Statute itself. See Elements of Crimes, General Introduction, para. 1. Unlike the definitions present in the Statute, the definitions given in the Elements of Crimes are not binding rules, but only auxiliary means of interpretation. See 1 The Rome Statute of the International Criminal Court: A Commentary (Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at p. 348. Article 6 of the ICC Statute, which defines genocide, does not prescribe the requirement introduced in the Elements of Crimes. Ibid., at p. 349.

367 See 1 The Rome Statute of the International Criminal Court: A Commentary (Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at pp. 339 — 340, 348-350.

368 Trial Judgement, para. 685.

369 Jelisić Appeal Judgement, para. 48.

370 See ibid.

371 Kunarac et al. Appeal Judgement, para. 98

372 Ibid., para. 174.

373 Prosecution Appeal Brief, paras. 1.6, 3.47.

374 Trial Judgement, paras. 682-686.

375 Prosecution Appeal Brief, paras. 1.6, 3.49.

376 Trial Judgement, para. 675. The Trial Chamber's Judgement is rather unclear as to what convictions the Chamber actually entered. Two different sets of crimes were at issue in this case: the crimes committed in Potočari between 11 and 13 July 1995, and the crimes committed against Bosnian Muslims of Srebrenica between 13 and 19 July 1995. With respect to the first set, the Trial Chamber stated, in the section on General Krstić's criminal responsibility, that he was guilty of inhumane acts of forcible transfer as a crime against humanity (Count 8) and of persecution as a crime against humanity, carried out through murder, forcible transfer and other means (Count 6). See ibid., para. 653; see also ibid., para. 618 & notes 1367-1368. Notably absent was a finding of guilt for murder as a crime against humanity (Count 4) on the basis of the acts committed in Potočari. In the section on cumulative convictions, however, the Trial Chamber suddenly announced that the murders committed at Potočari could “be legally characterised” as murders under Article 5 (Count 4). See ibid., para. 671. The Chamber then proceeded to analyse whether this murder conviction was impermissibly cumulative with the conviction for persecution based on the same acts, eventually setting aside the murder conviction. See ibid., paras. 673, 675. Given that the Appeals Chamber affirms the Trial Chamber's conclusion that these convictions are impermissibly cumulative, there is no need to decide whether General Krstić's conviction for murder as a crime against humanity based on the acts committed in Potočari must be vacated because he was, in fact, never found guilty of that crime by the Trial Chamber.

377 Prosecution Appeal Brief, paras. 1.6,3.80.

378 Trial Judgement, para. 676.

379 Vasiljević Appeals Judgement, paras. 135, 146.

380 Ibid., para. 146.

381 Krnojelac Appeal Judgement, para. 188. The Prosecution argues that the Krnojelac Appeal Judgement is not binding because the issue was adjudicated by the Appeals Chamber proprio motu, and without the benefit of briefing or argument. AT, p. 233. There is no indication, however, that the Appeals Chamber in Krnojelac reached its decision without due consideration of the issue. In any event, the conclusion reached by the Krnojelac Appeals Chamber was subsequently re-affirmed in the Vasiljević Appeal Judgement, a decision which post-dates the appeal hearing in this case.

382 Prosecution Appeal Brief, paras. 3.54-3.55, 3.73-3.75.

383 The jurisprudence of the United States Supreme Court, on whose Blockburger test the Tribunal's approach to cumulative convictions is based, see Kunarac etal. Appeal Judgement, para. 168, is instructive in this regard. In Ball v. United States, 470 U.S. 856 (1985). the U.S. Supreme Court examined the question of whether convicting a felon for receiving a firearm and possessing the same firearm was impermissibly cumulative. Applying the Blockburger test, the court easily concluded that the legislator “did not intend to subject felons to two convictions [because] proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon.” Ibid., at 862.

384 Trial Judgement, para. 726.

385 See Annex A, Procedural Background.

386 Prosecution Appeal Brief, section 4(A).

387 Ibid., section 4(B).

388 Trial Judgement, para. 724, Prosecution Appeal Brief, section 4(C).

389 Trial Judgement, paras. 711-712, Prosecution Appeal Brief, section 4(D).

390 Prosecution Appeal Brief, para. 2.2, citing the test established in the Kupreškić et al. Appeal Judgement.

391 Ibid., paras. 5.2-5.3.

392 Defence Response to Prosecution Appeal Brief, paras. 38-50; Trial Judgement, para. 697.

393 Trial Judgement, paras. 713-716, Defence Response to Prosecution Appeal Brief, para. 99.

394 Defence Response to Prosecution Appeal Brief, para. 100.

395 Vasiljević Appeal Judgement, para. 149.

396 Rule 101(B). See also Čelebići Appeal Judgement, para. 716 (“These ‘general guidelines’ amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances, … the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts of the former Yugoslavia.“).

397 Čelebići Appeal Judgement, para. 780. See also Kambanda Appeal Judgement, para. 124 (while the Trial Chamber is bound by the Rules to consider the mitigating factors, the weight to be accorded to those factors “is a matter for the discretion of the Trial Chamber.“).

398 Jelisić Appeal Judgement, para. 101; see also Trial Judgement para. 700.

399 See below.

400 Čelebići Appeal Judgement, para. 715. See also Furundžija Appeal Judgement, para. 238.

401 Vasiljević Appeal Judgement, para. 9. See also Jelisić Appeal Judgement, para. 99; Čelebići Appeal Judgement para. 725; Furundžija Appeal Judgement, para. 239; Aleksovski Appeal Judgement, para. 187; Tadić Judgement in Sentencing Appeals, para. 22.

402 Prosecution's Appeal Brief, paras. 4.1 et seq; and para. 4.23.

403 Defence Response, paras. 51-64.

404 Čelebići Appeal Judgement, para. 712.

405 Jelisić Appeal Judgement, cited in the Prosecution Appeal Brief, paras. 4.25 et seq.

406 Jelisić Appeal Judgement, para. 96.

407 Ibid., emphasis added.

408 See, e.g., the Furundžija Appeal Judgement, para. 250 (“The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given. A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules“) (emphasis added); see also Čelebići Appeal Judgement, paras. 719, 721, 757-758, 798; Kupreškić et al. Appeal Judgement, para. 443. The ICTR follows the same practice. Kajelijeli Trial Judgement, para. 963 (“Principal perpetrators convicted of either genocide or extermination as a crime against humanity or both have been punished with sentences ranging from fifteen years to life imprisonment. Secondary or indirect forms of participation have generally resulted in a lower sentence.“); see also the Serushago Sentence, para. 22 (the accused was convicted of genocide and three counts of crimes against humanity (murder, extermination, and torture) and sentenced to 15 years imprisonment in light of the circumstances of that case).

409 Čelebići Appeal Judgement, para. 757: “When such a range or pattern has appeared, a Trial Chamber would be obliged to consider that range or pattern of sentences, without being bound by it.“

410 Kupreškić et al. Appeal Judgement, para. 444.

411 Prosecution Appeal Brief, paras. 4.24-4.86.

412 Trial Judgement, para. 696. See also the following footnotes: 1464, 1465, 1474, 1479, 1484, 1491, 1492, 1497, 1507, 1509, 1511 and 1513.

413 In the Stakić Trial Judgement, the accused was sentenced to life imprisonment.

414 The ICTR has frequently imposed life sentences on persons convicted of genocide. See, for example, the Kambanda Trial Judgement (affirmed on appeal); the Akayesu Trial Judgement (affirmed on appeal); the Kayishema & Ruzindana Trial Judgement, imposing on Clement Kayishema a life sentence (affirmed on appeal); the Rutaganda Trial Judgement (appeal pending); the Musema Trial Judgement (affirmed on appeal); the Kamuhanda Trial Judgement (appeal pending); and the Niyitegeka Trial Judgement (appeal pending). However, the ICTR has also issued lesser sentences than life imprisonment for convictions of genocide. In the Kayishema & Ruzindana Trial Judgement, Obed Ruzindana was sentenced to 25 years imprisonment (affirmed on appeal); in the Serushago Trial Judgement, the Defendant was sentenced to 15 years imprisonment (affirmed on appeal); and in the Ntakirutimana Trial Judgement and Sentence, the defendants were sentenced to 10 and 25 years imprisonment (appeal pending).

415 Trial Judgement, para. 724.

416 Prosecution Appeal Brief, para. 4.91.

417 Ibid.

418 The Tribunal has recognised the practice of ‘gradation of sentence'; cf. the Aleksovski Appeal Judgement, para. 184.

419 Trial Judgement, paras. 710-712.

420 Prosecution's Appeal Brief, paras. 4.113 et seq.

421 The Appeals Chamber has, of course, concluded in any event that general Krstić was not a participant in a genocidal enterprise, but only an aider and abettor of genocide.

422 Defence Response to Prosecution Appeal Brief, paras. 46-50.

423 Kunarac et al. Trial Judgement, para. 29. This reasoning has been consistently adopted by the Appeals Chamber. See Kunarac et al. Appeal Judgement, para. 347 — 349; Tadić Judgement in Sentencing Appeals, para. 21; Čelebići Appeal Judgement, paras. 813 and 820; Kupreškić et al. Appeal Judgement, para. 418.

424 See also Todorović Sentencing Judgement, paras. 96 et seq. (which conducted a similar analysis of the Bosnia-Herzegovinian law).

425 Plavšić Sentencing Judgement, para. 115; Nikolić Sentencing Judgement, para. 96.

426 Banović Sentencing Judgement, para. 89.

427 Defence Response to Prosecution Appeal Brief, paras. 66-72 and 99. See Trial Judgement at paras. 713—717 and 723. The alleged mitigating circumstances were: good personal character; no previous record; poor health; and cooperation with the Prosecution.

428 Trial Judgement, para. 713.

429 Vasiljević Appeal Judgement, para. 181.

430 Paras. 697 et seq.

431 Article 24(2), recognized as “normally the starting point for consideration of an appropriate sentence” in the Aleksovski Appeal Judgement, para. 182: “the most important consideration, which may be regarded as the litmus test for the appropriate sentence.” See also Čelebići Trial Judgement, para. 1225 (“By far the most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence.“).

432 Article 24(1) of the Statute, Rule 101(B)(iii).

433 Article 24(2).

434 Rules 101(B)(i) and (ii).

435 Vasiljević Appeal Judgement, paras. 181 — 182, n.291.

436 Kajelijeli Trial Judgement, para. 963; Vasiljević Appeal Judgement, n. 291 (citing the law of seven common law and civil law jurisdictions).

437 Prosecution Appeal Brief, para. 3.95.

438 See Art. 24 of the Criminal Code of Fry (“A person, who premedidately aided another person in perpetration of a criminal act, will be punished as if he had committed it, his sentence can also be reduced.“).

439 Defence Response to Prosecution Appeal Brief, para. 69.

440 Ibid., paxa.12.

441 See para. 82, supra.

442 See para. 272, supra.

443 See para. 132, supra.

444 Prosecution Appeal Brief, 5.3.

445 Tadić Judgement in Sentencing Appeals, paras. 28, 32.

446 Appeals Chamber's transcript, 27 November 2003, p. 343, referring to the impugned judgment, para. 2.

447 Impugned judgment, para. 95.

448 Ibid.

449 Ibid., para. 644.

450 Ibid., paras. 330, 331, 625 and 631.

451 Ibid., para. 362.

452 Ibid., para. 18.

453 Ibid., para. 18.

454 Ibid., para. 22.

455 Ibid., para. 25.

456 Ibid., para. 28.

457 Ibid.

458 Ibid., para. 29.

459 Ibid., paras. 33 and 334.

460 Ibid., para. 334.

461 Judgment of the Appeals Chamber, para. 94.

462 Ibid.

463 Appeals Chamber's transcript, 21 November 2003, pp. 116, 124, 125, testimony of Mr. Deronjić.

464 Impugned judgment, para. 130.

465 Ibid., para. 128.

466 Ibid., para. 130.

467 Ibid., para. 132.

468 Ibid., 133. See also, ibid., paras. 130-132.

469 Judgment of the Appeals Chamber., para. 87.

470 Impugned judgment, para. 343.

471 Appeals Chamber's transcript, 26 November 2003, p. 274.

472 Ibid., 27 November 2003, p. 360.

473 Impugned judgment, para. 407.

474 Judgment of the Appeals Chamber, para. 87.

475 Ibid., paras. 101, 134.

476 See the impugned judgment, paras. 205ff. Cf. judgment of the Appeals Chamber, para. 118, 197, for the evidence of Mr. Deronjić stating that “according to information passed on to me by Mr. Borovčanin, about 300 men were killed.” The Trial Chamber relied on direct evidence.

477 Impugned judgment, para. 211.

478 See exhibit P 529, referred to in the impugned judgment at para. 176, 430, at para. 287, 758, and at para. 376, 1005.

479 Judgment of the Appeals Chamber, para. 119.

480 Ibid.

481 Ibid., para. 102. And see the impugned judgment, para. 384, stating: “Both the Prosecution and the Defence agreed that Colonel Beara was fully involved in the killings” ( omitted).

482 Impugned judgment, para. 380.

483 See, below, the reference by the Appeals Chamber in paragraph 104 of its judgment to “subordinates”.

484 Impugned judgment, para. 385.

485 See also Appeals Chamber's transcript, 26 November 2003, pp. 278-279, where counsel for the appellant is recorded as saying that “the only direct evidence of his involvement was that July 15th telephone conversation with Colonel Beara in which you can legitimately infer General Krstić's knowledge that men were being killed — not, mind you, a genocidal plan, but that men were being killed. And, it is our submission — and we'll be speaking to that in more detail later — that he never did anything to further the enterprise. He didn't participate in that sense.“

486 Judgment of the Appeals Chamber, para. 76.

487 Ibid., para. 104.

488 Impugned judgment, para. 385.

489 Or, as it was put in paragraph 174 of the Defence Appeal Brief of 10 January 2002, “The true facts show that General Krstić never followed up on Beara's request.“

490 The Appeals Chamber itself calls them “subordinates” in paragraph 104 of its judgment.

491 Appeals Chamber's transcript, 27 November 2003, p. 332; emphasis added.

492 Judgment of the Appeals Chamber, para. 31, s omitted.

493 Ibid., para. 33, s omitted.

494 Emphasis added.

495 Judgment of the Appeals Chamber, para. 126.

496 Ibid., paras. 126-128.

497 Ibid., para. 137.

498 Ibid., para. 137.

499 Ibid., para. 144, emphasis added.

500 Ibid., para. 129.

501 Appeals Chamber's transcript, 27 November 2003, pp. 360-361.

502 The Trial Chamber overruled a defence submission that the prosecution could not rely on the doctrine. See impugned judgment, para. 602.

503 Impugned judgment, para. 633. See also, ibid., paras. 631 and 632.

504 Defence Appeal Brief, 10 January 2002, p. 13 above para. 35.

505 Impugned judgment, paras. 560 and 591.

506 Defence Appeal Brief, 10 January 2002, para. 40. See also, ibid., paras. 37-39. And see argument by counsel for General Krstić in Appeals Chamber's transcript, 26 November 2003, at pp. 297ff, and 27 November 2003, pp. 351-352.

507 Judgment of the Appeals Chamber, para. 19.

508 Ibid., paras. 24 and 25.

509 Ibid., paras. 28, 29, 37 and 38.

510 Ibid, para. 31.

511 Impugned judgment, para. 595, emphasis added.

512 The distinction is not made in paragraph 580 of the impugned judgment which states that “customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group,” but the focus there was on the question whether cultural destruction fell within the definition of genocide.

513 Defence Brief in Reply, 6 March 2002, para. 26.

514 Report of the International Law Commission to the General Assembly on the Work of its Forty-third Session, UN Doc. A/CN.4/SER.A/1991/Add.l (Part 2), p. 102, para. (4), chapter iv, concerning article 19, “Genocide”, in the “Draft Code of Crimes against the Peace and Security of Mankind.“

515 See a helpful discussion in William A. Schabas, Genocide in International Law, The Crime of Crimes (Cambridge, 2000), pp. 229-230.

516 I agree in these respects with paras. 580 and 595 of the impugned judgment.

517 See the citation from K. Kreß, Münchner Kommentar zum StGB, Rn 57, §§ 6 VStGB, (Munich 2003), given in paragraph 519 of Stakić, IT-97-24-T, of 31 July 2003.

518 Transcript of the Appeals Chamber, 27 November 2003, pp. 343 and 354.

519 By contrast, counsel for General Krstic argued that the deportation showed “an avoidance of an attempt to commit genocide” and could not be taken together with the killings. See transcript of the Appeals Chamber, 27 November 2003, pp. 355-356.

520 BGH 3 StR 215/98, Urteil vom 30.4.1999, BGH St 45,65ff.

521 Defence Brief in Reply, 6 March 2002, para. 27.

522 Ibid., paras. 137-138.

523 Judgment of the Appeals Chamber, para. 139.

524 See, generally, the reasoning relating to aiding and abetting in National Coal Board v. Gamble, [ 1959] 1 Q.B .11, concurring opinion of Devlin J, and DPP for Northern Ireland v. Lynch, [1975] AC 653, HL, dissenting opinion of Lord Simon of Glaisdale.

525 See and compare The Zyklon B Case, Law Reports of Trials of War Criminals, Vol. 1 (London, 1947), p. 93.

526 Impugned judgment, para. 421.

527 Ibid., para. 420.

528 Ibid, para. 358.

529 Ibid.

530 Ibid, para. 361.

531 IT-94-1-A, of 15 July 1999, para. 229(iv).

532 Impugned judgment, para. 644.

533 IT-94-1-A, of 15 July 1999, para. 192.

534 Judgment of the Appeals Chamber, paras. 56, 61 and 78.

535 Ibid., para. 137, emphasis added.

536 See Rutaganda, ICTR-96-3-A, of 26 May 2003, and the opinions appended thereto. In that case (Judge Pocar dissenting), acquittals by the Trial Chamber were in fact reversed and replaced by convictions imposed by the ICTR Appeals Chamber.

537 My position was given in a separate opinion appended to Rutaganda, ICTR-96-3-A, of 26 May 2003.

538 The judgment in Krnojelac, IT-97-25-A, of 17 September 2003, paras. 178,188, was set out in a few lines, without much discussion. So too with Vasiljević, IT-38-92-A, of 25 February 2004, para. 146.

539 Impugned judgment, para. 675.

540 Blockburger v. United States, 284 U.S. 299.

541 IT-96-21-A, of 20 February 2001, paras. 412-413.

542 Ibid.

543 Whalen v. United States, 445 U.S. 684 (1980), at 692, confirming Blockburger.

544 Albernaz v. U.S., 450 U.S. 333(1981), at 343, reaffirming Blockburger but stating (per Justice Rehnquist delivering the opinion of the Court): “The conclusion we reach today regarding the intent of Congress is reinforced by the fact that the two conspiracy statutes are directed to separate evils presented by drug trafficking. ‘Importation’ and ‘distribution’ of marihuana impose diverse societal harms …” (Emphasis added).

545 194 CLR 610 (1998).

546 McHugh, Hayne and Callinan, JJ., at p. 623.

547 [200]NSWCCA, 336 (2002).

548 Kupreškić, IT-95-16-T, of 14 January 2000, para. 621.

549 Archbold, Criminal Pleading, Evidence and Practice 2003 (London, 2003), paras. 17-34(a), and Blackstone's Criminal Practice 2003 (Oxford, 2003), para, Bl.l l(a).

550 Judgment of the Appeals Chamber, para. 134.

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International Criminal Tribunal for the Former Yugoslavia: Prosecutor v. Radislav Krstic

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International Criminal Tribunal for the Former Yugoslavia: Prosecutor v. Radislav Krstic

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