Case No. IT-99-36-T
IN THE TRIAL CHAMBER
Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Registrar:
Hans Holthuis
PROSECUTOR
v.
RADOSLAV BRDJANIN
____________________________________
DECISION ON MOTION FOR ACQUITTAL PURSUANT TO RULE 98 BIS
____________________________________
The Office of the Prosecutor:
Ms. Joanna Korner
Counsel for the Accused:
Mr. John Ackerman
Mr. David Cunningham
CONTENTS
I. INTRODUCTION
A. Procedural background
B. Rule 98 bis: the law and standard of proof
II. PRELIMINARY MATTERS
A. Acts not challenged by the Defence
B. Acts conceded by the Prosecution not to be proved beyond a
reasonable doubt
C. Acts alleged by the Prosecution to be proved beyond a reasonable
doubt, but which are not set out in the Indictment
III. DEFENCE CHALLENGES
A. Individual criminal responsibility
1. Article 7(1): Joint Criminal Enterprise
2. Other modes of liability under Article 7(1) of the Statute
(a) Planning
(b) Instigating
(c) Ordering
(d) Aiding and Abetting
(e) Findings
3. Article 7(3)
B. Genocide
1. The law
(a) The objective element: actus reus
(b) The subjective element: mens rea
2. Conclusions regarding count 1
C. Complicity in genocide
1. Conclusions regarding count 2
D. Extermination
1. The law
(a) Objective element: actus reus
(b) Subjective element: mens rea
2. Factual Findings
(a) Objective element: actus reus
(b) Subjective element: mens rea
3. Conclusion regarding count 4
E. Persecutions
F. Torture
G. Deportation
H. Remaining counts
IV. DISPOSITION
I. INTRODUCTION
A. Procedural background
- On 22 August 2003, the Defence filed a partly confidential “Motion for
Judgement of Acquittal – Rule 98 Bis”.1
The Prosecution filed a confidential “Prosecutor’s Response to Defendant Radoslav
Brdanin’s ‘Motion for Judgement of Acquittal – Rule 98 Bis’” on 5 September
2003 and a “Public Version of “Prosecutor’s Response to the ‘Motion for Judgement
of Acquittal – Rule 98 Bis’ filed on 5 September and Addendum filed
on 16 -17 September 2003” on 2 October 2003.2
The oral decision with respect to the Defence Motion was rendered by the Trial
Chamber on 9 October 2003.3
B. Rule 98 bis: the law and standard of
proof
- Rule 98 bis (Motion for Judgement of Acquittal) of the Rules of
Procedure and Evidence (“Rules”) states as follows:
(A) An accused may file a motion for the entry of judgement
of acquittal on one or more offences charged in the indictment within
seven days after the close of the Prosecutor’s case and, in any event,
prior to the presentation of evidence by the defence pursuant to Rule
85 (A)(ii).
(B) The Trial Chamber shall order the entry of judgement
of acquittal on motion of an accused or proprio motu if it finds
that the evidence is insufficient to sustain a conviction on that or those
charges.
- Both the Defence and the Prosecution agree4
that the Rule 98 bis standard of review to be applied is correctly
set out in Jelisic Appeals Judgement:
The Appeals Chamber considers that the reference in
Rule 98 bis to a situation in which “the evidence is insufficient
to sustain a conviction” means a case in which, in the opinion of the
Trial Chamber, the prosecution evidence, if believed, is insufficient
for any reasonable trier of fact to find that guilt has been proved beyond
reasonable doubt. In this respect, the Appeals Chamber follows its recent
holding in the Delalic appeal judgement, where it said: “[t]he
test applied is whether there is evidence (if accepted) upon which a reasonable
tribunal of fact could be satisfied beyond reasonable doubt of
the guilt of the accused on the particular charge in question”. The capacity
of the prosecution evidence (if accepted) to sustain a conviction beyond
reasonable doubt by a reasonable trier of fact is the key concept; thus
the test is not whether the trier would in fact arrive at a conviction
beyond reasonable doubt on the prosecution evidence (if accepted) but
whether it could. At the close of the case for the prosecution, the Chamber
may find that the prosecution evidence is sufficient to sustain a conviction
beyond reasonable doubt and yet, even if no defence evidence is subsequently
adduced, proceed to acquit at the end of the trial, if in its own view
of the evidence, the prosecution has not in fact proved guilt beyond reasonable
doubt.5
- The factual findings in this decision are reached using this “98 bis
standard”, namely whether a reasonable trier of fact could be satisfied
beyond reasonable doubt that the evidence adduced, if believed, could sustain
a finding of guilt of Radoslav Brdjanin (“the Accused”).
II. PRELIMINARY MATTERS
A. Acts not challenged by the Defence
- The Trial Chamber notes that, for the purposes of the Defence Motion, the
Defence does not contest the occurrence of several of the specific incidents
alleged by the Prosecution in the Indictment6
to have taken place, on the basis of which the charges were brought.7
Irrespective of this, the Trial Chamber is itself further satisfied as far
as the occurrence of these events is concerned that the 98 bis standard
has been reached.8
B. Acts conceded by the Prosecution not to be
proved beyond a reasonable doubt
- In Appendix C attached to the Prosecution Response, the Prosecution concedes
that it has not produced sufficient evidence of a number of criminal acts
charged in the Indictment. These concessions are divided into two categories:
first, in part A of Appendix C, with respect to criminal acts in the municipalities
of Bihac -Ripac, Bosanska Dubica and Bosanska Gradiska; second, in part B
of Appendix C, with respect to the destruction and wilful damage of Bosnian
Muslim and Bosnian Croat religious and cultural buildings, as charged in paragraphs
47(3)(b), 62 and 63 of the Indictment.
- The legal consequences of these concessions are that some counts of the
Indictment are necessarily affected. For reasons of brevity and cohesion,
the concessions will be dealt with together, rather than by addressing parts
A and B separately.
- Based on the Prosecution’s concession regarding paragraph 38 of the Indictment,
concerning killings, the Trial Chamber has come to the conclusion that there
is no case to answer with regard to
[t]he killing of a number of people in the market place
and surrounding area in Bosanska Gradiska town on or about August 1992
- Bosanska Gradiska municipality
[t]he killing of a number of people in the villages
of Orasce and Duljci between 20 and 23 September 1992 – Bihac-Ripac municipality
for the purposes of counts 1 (genocide), 2 (complicity in genocide), 3
(persecutions ), 4 (extermination) and 5 (wilful killing).
- Based on the Prosecution’s concession regarding paragraph 40 of the Indictment,
with reference to camps, the Trial Chamber has come to the conclusion that
there is no case to answer with regard to the alleged camps and detention
facilities, staffed and operated by military and police personnel under the
direction of the Crisis Staffs and the Army of the Republika Srpska (“VRS”),
at
Bosanska Dubica municipality (SUP building)
Bihac-Ripac municipality (Traktorski Servis in Ripac)
for the purposes of counts 1 (genocide), 2 (complicity in genocide) and
3 (persecutions) with regard to any incidents alleged to have occurred in
either of these two camps.
- Based on the Prosecution’s concession regarding paragraph 42 of the Indictment,
dealing with causing serious bodily or mental harm, the Trial Chamber has
come to the conclusion that there is no case to answer with regard to the
following events:
Bihac-Ripac
From 9 June 1992, the village of Ripac was sealed off
and became a de facto centre of detention for the Bosnian Muslim
inhabitants. A hangar (Traktorski Servis) was utilised as a detention
facility for inhabitants and Bosnian Muslims from other areas. Some detainees
were tied up, beatings took place outside and during interrogations when
detainees were accused of being members of the “Green Berets ”. Detainees
were subject to forced labour. All detainees were non-combatants.
Bosanska Dubica
Between 1 April 1992 and 30 September 1992, number of
Bosnian Muslim non-combatants were detained by members of the Bosnian
Serb authorities (police forces and military ). They were taken to the
police (SUP) building. Beatings, involving the use of fists, feet, batons,
electric cables and rifle butts, were administered by members of the police,
military police and SDS. The beatings were both arbitrary and during interrogations,
the object of which was to persuade detainees to confess to involvement
in the activities of the SDA, a legitimate political party. Some detainees
were rendered unconscious as a result and/or suffered serious injury.
Beatings were witnessed by other detainees.
Bosanska Gradiska
After 15 July 1992, some Bosnian Muslim non-combatants
were detained by the police, reserve police and military police at the
school in Bistrica and the police station in Bosanska Gradiska.
At Bistrica and the police station in Bosanska Gradiska
detainees were interrogated, beaten and tortured.
for the purposes of counts 1 (genocide), 2 (complicity in genocide) and
3 (persecutions).
- With respect to counts 6 and 7 (torture), the Trial Chamber notes that
paragraph 53 of the Indictment re-alleges and re-incorporates the incidents
dealing with causing serious bodily or mental harm mentioned in paragraph
42, including those alleged to have taken place in Bihac-Ripac, Bosanska Dubica
and Bosanska Gradiska. However, the Trial Chamber is not of the opinion that
it needs to make any declaration on whether there is a case to answer with
respect to these incidents under these counts because they are not pleaded
by the Prosecution in paragraph 55 as amounting to torture.
- Based on the Prosecution’s concession regarding paragraph 47(3)(a) of the
Indictment, the Trial Chamber has come to the conclusion that there is no
case to answer to the charge of
[d]estruction, wilful damage and looting of the residential
and commercial properties in the parts of towns, villages and other areas
inhabited predominantly by a Bosnian Muslim and Bosnian Croat population,
in
- The Town of Ripac
Orasac
- The Town of Bosanska Dubica
- The Town of Bosanska Gradiska
Liskovac
Orahovo
for the purposes of counts 3 (persecutions), 10 (unlawful and wanton extensive
destruction and appropriation of property not justified by military necessity)
and 11 (wanton destruction of cities, towns or villages, or devastation
not justified by military necessity).
- Based on the Prosecution’s concession regarding paragraph 47(3)(b) of the
Indictment, the Trial Chamber has come to the conclusion that there is no
case to answer to the charge of
the destruction and wilful damage to the Bosnian Muslim
and Bosnian Croat religious and cultural buildings
listed in part B of Appendix C to the Prosecution Response, subject to
the following qualification. The Trial Chamber observes that Appendix C
to the Prosecution Response refers to Kljevci Roman Church under
the heading of Sanski Most municipality, but specifies that it is in fact
in Prijedor. Paragraph 47(3)(b) of the Indictment locates the Kljevci
Roman Catholic Church in Sanski Most municipality. Despite the small
discrepancy in the name of the building in question, the Trial Chamber finds
that the building referred to is the same one.9
- Accordingly, the Trial Chamber holds that there is no case to answer with
respect to the following incidents listed in part B of Appendix C to the Prosecution
Response under counts 3 (persecutions) and 12 (destruction or wilful damage
done to the institutions dedicated to religion):
Banja Luka municipality
Banja Luka city |
Cathedral St. Bonaventura
Ferhadija Mosque
Arnaudija Mosque
Sefer Beg Mosque |
Budzak |
Roman Catholic Subsidiary Church
Pastoral Centre |
Dervisi |
Roman Catholic Chapel |
Durbica Brdo |
Roman Catholic Subsidiary Church |
Kuljani |
Roman Catholic Subsidiary Church |
Rekavice |
Roman Catholic Chapel |
Bihac-Ripac municipality
Ripac town |
Mosque |
Cukovi hamlet |
Mosque |
Kulen Vakuf |
Sultan Ahmad’s Mosque |
Orasac hamlet |
Mosque |
Bosanska Dubica municipality
Bosanska Dubica town |
Gradska Town Mosque
Carsijska Mosque
Puhalska Mosque
Roman Catholic Church |
Bosanska Gradiska municipality
Bosanska Gradiska town |
Mosque |
Bukvik |
Roman Catholic Chapel |
Catrnja |
Roman Catholic Subsidiary Church |
Mackovac |
Roman Catholic Subsidiary Church |
Orahova |
Mosque |
Rovine |
Mosque |
Nova Topola |
Roman Catholic Parish Church/Monastery |
Bosanska Krupa municipality
Bosanski Novi municipality
Bosanska Kostajnica |
Mosque
Roman Catholic Church |
Brdjani |
Mosque |
Hozici |
Mosque |
Bosanski Petrovac municipality
Celinac municipality
Basici |
Mosque |
Presnace |
Roman Catholic Church |
Stara Dubrava |
Roman Catholic Church |
Donji Vakuf municipality
Balhodzici |
Mosque |
Cehajici |
Mosque |
Dobro Brdo |
Mosque |
Jemanlici |
Mosque |
Korjenici |
Mosque |
Stara Selo |
Mosque |
Suhodol |
Mosque |
Torklakovac |
Mosque |
Kljuc municipality
Kljuc town |
Roman Catholic Church |
Husici |
Mosque |
Kamicak |
Mosque |
Ramici |
Mosque |
Kotor Varos municipality
Kotor Varos town |
Mosque |
Bilice |
Roman Catholic Branch Church |
Jakotina |
Roman Catholic Church |
Orahova |
Roman Catholic Subsidiary Church |
Rujevica |
Roman Catholic Subsidiary Church |
Sokoline |
Roman Catholic Parish Church |
Vrbanjci |
Roman Catholic New Parish Church |
Prijedor municipality
Brdani |
Mosque |
Hrustici |
Mosque |
Kalate |
Mosque |
Ljubija |
Roman Catholic Parish Church |
Mahmuljani |
Mosque |
Mujkanovici |
Mosque |
Donja Ravska |
Parish Church |
Softici |
Mosque |
Srednji Jakupovici |
Mosque |
Stara Rijeka |
Roman Catholic Church
Roman Catholic Parish House |
Tomasica |
Roman Catholic Subsidiary Church |
Prnjavor municipality
Prnjavor town |
Roman Catholic Church |
Galjipovci |
Mosque |
Konjuhovci |
Mosque |
Kulasi |
Roman Catholic Church |
Macino Brdjo |
Roman Catholic Chapel |
Ralutinac |
Roman Catholic Parish Church |
Stivor |
Roman Catholic Church |
Sanski Most municipality
Cirkici |
Mosque |
Kljevci |
Roman Catholic Church |
Sasina |
Roman Catholic Church
Religious Centre |
Sipovo municipality
Teslic municipality
Gornji Teslic |
Mosque |
Hrankovici |
Mosque |
Kamenica |
Mosque |
Marica |
Mosque |
Pribinic |
Mosque |
Stenjak |
Mosque |
Trnovaca |
Mosque |
- Based on the Prosecution’s concession regarding paragraph 47(4) of the
Indictment, the Trial Chamber has come to the conclusion that there is no
case to answer to the charge of
deportation or forcible transfer of Bosnian Muslims
and Bosnian Croats […] from areas within the ARK municipalities listed
in paragraph 4 [of the Indictment] to areas under the control of the legitimate
government of Bosnia and Herzegovina (Travnik) and to Croatia (Karlovac)
in respect of Bihac-Ripac, Bosanska Dubica and Bosanska Gradiska municipalities
for the purposes of counts 8 (deportation) and 9 (inhumane acts (forcible
transfer)).
- Based on the Prosecution’s concession regarding paragraph 47(5) of the
Indictment, the Trial Chamber has come to the conclusion that there is no
case to answer to the charge of
the denial of fundamental rights to Bosnian Muslims
and Bosnian Croats, including the right to employment, freedom of movement,
right to proper judicial process, or right to proper medical care
in respect of Bihac-Ripac, Bosanska Dubica and Bosanska Gradiska municipalities
for the purposes of count 3 (persecutions).
C. Acts alleged by the Prosecution to be proved
beyond a reasonable doubt, but which are not set out in the Indictment
- In Appendix D of the Prosecution Response, the Prosecution lists incidents
for which, although not listed in the Indictment, it submits that sufficient
evidence has been provided such that, if believed, a reasonable trier of fact
could arrive at a conviction beyond reasonable doubt. The Prosecution states
that “it has proved the damage or destruction of other religious buildings
not listed in the Indictment ?…g and will apply to amend the Indictment accordingly”.10
- Oral argument on this point was heard following the delivery of the oral
decision. The Prosecution submitted that the Indictment should be amended
to include these acts as additional bases for the counts for which the Accused
is charged. Alternatively, it was submitted that these acts be included in
the Indictment as similar fact evidence.11 The
Defence objected to any amendment incorporating these acts as part of the
bases for the counts, on the grounds that there had been no motivation for
the Defence to conduct cross-examination of any of the Prosecution witnesses
regarding those matters.12
- Following the submissions by the parties the Trial Chamber issued an oral
decision denying the Prosecution’s request to amend the Indictment13
by including these acts as the bases for the charges, but allowing the inclusion
of the relevant evidence of these acts in the records, the final probative
value of which remains to be decided by the Chamber at a later stage.14
III. DEFENCE CHALLENGES
- The Defence challenges a number of issues. For ease of reference the Trial
Chamber will address these in an order different to that set out in the Defence
Motion.
A. Individual criminal responsibility
- The Prosecution cumulatively charges the Accused for the crimes alleged
in counts 1 through 12 under different modes of liability. These are:
1. responsibility for knowingly and wilfully participating in a joint
criminal enterprise (“JCE”), entailing the Accused’s individual criminal
responsibility under Article 7(1) of the Statute of the Tribunal (“Statute”);15
2. responsibility under Article 7(1) of the Statute for having planned,
instigated, ordered or otherwise aided and abetted in the planning, preparation,
or execution of the crimes charged in the Indictment;16
3. responsibility under Article 7(3) of the Statute for the crimes committed
by the Accused’s subordinates whilst he was holding positions of superior
authority.17
- The Trial Chamber has examined in relation to each of these modes of individual
criminal responsibility whether, on the basis of the Prosecution evidence,
if believed, a reasonable trier of fact could be satisfied beyond reasonable
doubt that the Accused is individually responsible for the crimes charged
in the Indictment. In order to avoid significant repetition, for the purposes
of this 98 bis Decision, the Trial Chamber will address all modes of
liability in relation to all the crimes charged in the Indictment together.
1. Article 7(1): Joint Criminal
Enterprise
- The Trial Chamber relies on the definition of JCE as set out by the Appeals
Chamber in the Tadic Appeals Judgement, and the three categories of
JCE identified therein.18
- During the pre-trial stage, the parties were put on notice by the PreTrial
Judge that the Prosecution was understood to have alternatively pleaded in
the Indictment a first category of JCE case (paragraph 27.1) and a third category
of JCE case ( paragraph 27.3).19 The Trial Chamber
finds that the second category of JCE was not pleaded. In view of this, the
Trial Chamber considers that it would be unfair to the Accused to allow the
Prosecution to invoke the second category of JCE for whatever purpose.20
The submissions of both the Defence and the Prosecution in relation to the
second category of JCE are therefore of no relevance and will not be considered
by the Trial Chamber.21
- In relation to the first category of JCE, the Defence submits that none
of the offences which qualify as crimes under the Tribunal’s Statute “can
be laid at ?the Accused’sg feet”. The Defence specifies that “StChere is not
a case where the Accused knew specifically that a crime would be committed
and assisted in the commission of that crime in some active ‘hands-on’ way”.22
- The Trial Chamber notes that the submission by the Defence that one of
the requirements to establish a JCE is to prove the ‘hands-on’ role of an
accused is not supported by the jurisprudence of this Tribunal.23
Participants in a JCE may contribute to the common plan in a variety of roles.
Indeed, the term participation is defined broadly and may take the form of
assistance in, or contribution to, the execution of the common plan or purpose.24
Participation includes both direct participation and indirect participation.
An accused’s involvement in the criminal act must form a link in the chain
of causation, but it is not necessary that the participation be a conditio
sine qua non, or that the offence would not have occurred but for the
participation.25
- The Trial Chamber accepts that, while a JCE may have a number of different
criminal objects, it is not necessary for the Prosecution to prove that every
participant agreed to every one of the crimes being committed.26
However, it is necessary for the Prosecution to prove that, between the member
of the JCE responsible for committing the material crime charged and the person
held responsible under the JCE for that crime, there was an agreement to commit
at least that particular crime.27
- On this basis, the Trial Chamber is satisfied that a reasonable trier of
fact could, on the basis of the evidence before it, if believed, find beyond
reasonable doubt that the Accused shared with other members of the JCE a common
plan which amounted to and involved the commission of the crimes charged in
the Indictment in counts 1 through 12. Solely for the purposes of the 98 bis
standard, the Trial Chamber is satisfied that each of the members of the
JCE was in one way or another involved in the commission of one or more of
the crimes charged in the Indictment in counts 1 through 12 and that the Accused
intended the result of the common plan and voluntarily participated in furthering
the crimes in question.
- In relation to the third category of JCE, the Defence again submits that
the ‘hands-on’ requirement for the establishment of a JCE is not met in relation
to the Accused, since he was remote from the events in question and did not
participate in them in any significant way. The Trial Chamber dismisses this
argument on the basis of its previous reasoning.28
- In applying the 98 bis standard, the Trial Chamber is satisfied
that the Accused and all other members of the JCE identified in the Indictment
shared a common plan which amounted to, and involved the commission of the
crimes of deportation and forcible transfer as described in paragraphs 58
and 59 of the Indictment. The Trial Chamber is further satisfied according
to the 98 bis standard that the crimes charged in counts 2 to 7 inclusive
and counts 10, 11 and 12 were natural and foreseeable consequences of the
crimes of deportation and forcible transfer as agreed upon. With respect to
count 1, however, the Trial Chamber finds that in order to arrive at a conviction
for genocide under Article 4(3)(a) the specific intent for genocide must be
met. As explained further in paragraphs 55-57 below, this specific intent
is incompatible with the notion of genocide as a natural and foreseeable consequence
of a crime other than genocide agreed to by the members of the JCE. For this
reason the Trial Chamber finds that there is no case to answer with respect
to count 1 in the context of the third category of JCE.
- The Trial Chamber finds that on the basis of the evidence available, if
believed, a reasonable trier of fact could also find beyond reasonable doubt
that the Accused was aware of the risk that the crimes charged in the Indictment
in counts 2 to 7 inclusive and counts 10, 11 and 12 would be committed by
other members of the JCE. Notwithstanding his awareness, the Accused wilfully
furthered the deportation and forcible transfer of a large proportion of the
Bosnian Muslim and Bosnian Croat population from areas within the Autonomous
Region of Krajina (“ARK”) municipalities to areas under the control of the
legitimate government of Bosnia and Herzegovina (Travnik) and to Croatia (Karlovac).
The Accused intended to force these persons to leave their territory “without
grounds permitted under international law”29.
Solely for the purposes of the 98 bis standard, the Trial Chamber is
satisfied that each of the members of the JCE was in one way or another involved
in the commission of one or more of the crimes charged in the Indictment in
counts 2 through 12. The Trial Chamber does not find support for the Defence
submission that the third category of JCE requires specific knowledge of the
events and “presence” in the sense of participation in the activities resulting
in the commission of a crime that could have been foreseen by the Accused.30
- For the reasons set out above, the Trial Chamber upholds the Defence Motion
with respect to count 1 in the context of the third category of JCE, and dismisses
it in respect of all other challenges related to JCE.31
2. Other modes of liability under
Article 7(1) of the Statute
- Although the Defence, solely for the purposes of the Rule 98 bis exercise,
does not specifically challenge the evidence in relation to the modes of liability
under Article 7(1) of the Statute other than ‘committing’ in the context of
JCE, the Trial Chamber has examined the evidence in relation to each individual
mode of liability for which the Accused is charged.32
(a) Planning
- In applying the 98 bis standard, the Trial Chamber is satisfied
on the basis of the evidence available, that the Accused, in concert with
other individuals identified in the Indictment, planned, designed and organised
the commission of the crimes charged in the Indictment in counts 1 through 12
at both the preparatory and execution phases, whereby his participation in
formulating a criminal plan and endorsing a plan proposed by others was substantial.33
For the purposes of the present decision, the Trial Chamber is further satisfied
that, on the basis of the evidence before it, if believed, a reasonable trier
of fact could find beyond reasonable doubt that the crimes in question were
actually committed and that the Accused intended these crimes to be committed.34
(b) Instigating
- In applying the 98 bis standard, the Trial Chamber is satisfied
that on the basis of the evidence available, a reasonable trier of fact could
find beyond reasonable doubt that the Accused, by his acts and conduct, prompted
other individuals identified in the Indictment to commit the crimes charged
in the Indictment in counts 1 through 12.35
It is not necessary to prove that these crimes would not have been perpetrated
without his involvement.36 In applying the 98
bis standard, the Trial Chamber is satisfied that there is, however,
sufficient evidence to find that the acts and conduct of the Accused constitute
a clear contributing factor to the conduct of the physical perpetrators of
the crimes in question: the Accused intended to provoke and induce the commission
of these crimes, and was aware of the substantial likelihood that the commission
of these crimes would be a probable consequence of his acts and conduct.37
(c) Ordering
- In applying the 98 bis standard, the Trial Chamber is satisfied
on the basis of the evidence available that the Accused possessed the authority
to give orders. The relevant evidence suggests that his orders were in fact
implemented by other individuals identified in the Indictment. Furthermore,
the relevant evidence, if believed, suggests that the Accused knowingly and
wilfully used his position of authority to order those individuals to commit
the crimes charged in the Indictment in counts 1 through 12.38
(d) Aiding and Abetting
- In applying the 98 bis standard, the Trial Chamber is further satisfied
on the basis of the evidence available, that the Accused aided and abetted
other individuals identified in the Indictment in committing the crimes charged
in counts 1 through 12 of the Indictment. The relevant evidence, if believed,
suggests that he rendered a substantial contribution to the commission of
these crimes: his acts and omissions, although for the most part geographically
and temporally unconnected to the actual commission of the crimes in question,
had a decisive effect on the commission of these crimes. They consisted in
facilitating and giving assistance to the commission of the crimes in question,
as well as in encouraging and giving moral support to the physical perpetrators
thereof.39 For the purposes of the present decision,
the Trial Chamber is satisfied that the 98 bis standard is reached
suggesting that the Accused knew that the respective principals intended to
commit the crimes in question and he was aware that his acts assisted the
principal offenders in the commission of these crimes, and that therefore,
based on this evidence, a reasonable trier of fact, could find the Accused
criminally responsible for aiding and abetting.40
(e) Findings
- For the above reasons, the Trial Chamber dismisses the Defence Motion in
respect of the Accused’s liability for planning, instigating, ordering or
otherwise aiding and abetting in the planning, perpetration or execution of
the crimes charged in the Indictment in counts 1 through 12.41
3. Article 7(3)
- The jurisprudence has established the following three-pronged test for
criminal liability pursuant to Article 7(3) of the Statute:
1. the existence of a superior-subordinate relationship between the commander
(the accused) and the perpetrator of the crime;
2. the accused knew or had reason to know that the crime was about to
be or had been committed; and
3. the accused failed to take the necessary and reasonable measures to
prevent the crime or punish the perpetrator thereof.42
- The Defence submits that the Prosecution has failed to meet its burden
with regard to the first prong of this test, having failed to prove the existence
of a superior-subordinate relationship between the Accused and any of the
offenders who committed any of the specific acts alleged in any of the substantive
counts charged in the Indictment.43 The Prosecution
responds that sufficient evidence has been adduced to prove each of the three
elements necessary to establish responsibility under Article 7(3) of the Statute
in relation to the Accused.44
- The Trial Chamber is satisfied that sufficient evidence has been tendered,
on the basis of which, if believed, a reasonable trier of fact could be satisfied
beyond reasonable doubt that the Accused is responsible pursuant to Article 7(3)
of the Statute for the crimes charged in the Indictment in counts 1 through 12.
- For the purposes of the present decision, i.e. according to the 98 bis
standard, the Trial Chamber is satisfied that there is sufficient evidence
that the Accused (a) held a number of government and party positions which
involved varying degrees of authority; (b) as inter alia President
of the ARK Crisis Staff, exercised effective control over members of municipal
governments and Crisis Staffs of the ARK municipalities, the police on both
the regional level (CSB) and the municipal level (SJBs), the military and
paramilitary groups, and (c) possessed both de jure and de facto
power to prevent his subordinates’ crimes and to punish or ensure the
punishment of the perpetrators of these crimes after they had been committed.
- In addition, the Trial Chamber is satisfied that based on the evidence
available, if believed, a reasonable trier of fact could be satisfied beyond
reasonable doubt that the Accused knew or had reason to know that the crimes
in question were about to be or had been committed. Moreover, in applying
the 98 bis standard, it is satisfied that the Accused did nothing to
prevent those crimes or punish the perpetrators thereof.
- The Trial Chamber, therefore, dismisses the Defence Motion in respect of
the Accused’s responsibility pursuant Article 7(3) of the Statute for the
crimes charged in the Indictment in counts 1 through 12.45
B. Genocide
- Under count 1, the Accused is charged with genocide, punishable under Articles
4(3)(a), and 7(1) and 7(3) of the Statute of the Tribunal.
- The Defence submits that there is no evidence to show the existence of
a plan at the level of the Serbian Democratic Party (“SDS”), of the Republika
Srpska or of the ARK to destroy in whole or in part a national, ethnical,
racial or religious group, as such.46 In the
absence of such a plan, the Defence concludes that there was no JCE to commit
genocide.47 The Defence also submits that there
is no evidence to show that the Accused had such a plan, and that in any case
there is no evidence to show that genocide was committed during the period
covered by the Indictment in the area contemplated therein.48
- The Prosecution responds that the evidence demonstrates that a plan to
forcibly and permanently remove the Bosnian Muslim and Bosnian Croat inhabitants
from the territory of the planned Serbian state existed at all levels (republic,
regional and municipal), “and that by the Summer of 1992 that plan encompassed
an intent to destroy the Bosnian Muslim and Bosnian Croat groups in the [ARK]”.49
The Prosecution further submits that the Accused devised this plan or at the
very least was privy to it and willingly embraced it with the intent to destroy
the Bosnian Muslim and Bosnian Croat groups.50
Finally, the Prosecution submits that a genocidal campaign against the Bosnian
Muslim and Bosnian Croat groups was implemented in the ARK between April and
December 1992.51
1. The law
- Both parties have made submissions regarding the law applicable to counts 1
(genocide) and 2 (complicity in genocide). The Trial Chamber will address
the applicable law only with respect to those issues on which the parties
disagree or which in its view need to be clarified at this stage.52
(a) The objective element: actus reus
- The Prosecution submits that the Bosnian Muslim and Bosnian Croat groups
are the protected groups in this case.53 The
Defence is silent on this matter. In applying the 98 bis standard,
the Trial Chamber finds that there is sufficient evidence that the Prosecution’s
submission is correct.
- In the Indictment, the Prosecution pleads that the execution of the campaign
designed to destroy, in whole or in part, the Bosnian Muslim and Bosnian Croat
groups in the municipalities contemplated in the Indictment consisted of conduct
specified in Article 4(2)(a), (b) and (c) of the Statute, namely killing Bosnian
Muslim and Bosnian Croat non-combatants, causing them serious bodily or mental
harm and detaining them under conditions calculated to bring about the physical
destruction of a part of them.54 According to
the Indictment, in the camps and detention facilities these conditions consisted
of beatings or other physical maltreatment, starvation rations, contaminated
water, insufficient or non-existent medical care, unhygienic conditions and
lack of space.55
- The Prosecution Response adds the submission that “the mass deportation
of the Bosnian Muslim and Bosnian Croat groups” constituted conditions of
life calculated to bring about their physical destruction, within the meaning
of Article 4(2)(c) of the Statute.56 As paragraphs
37 (3) and 43 of the Indictment unmistakably show, this submission is not
pleaded in the Indictment. The Trial Chamber thus finds that the Defence was
not adequately put on notice of this aspect of the Prosecution case for counts
1 and 2, and as a consequence the Trial Chamber will not entertain it.57
(b) The subjective element: mens rea
- The specific intent required for genocide under Article 4(3)(a) of the
Statute is the “intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such”.58
- The parties do not dispute that the specific intent requirement is satisfied
by the intent to destroy the protected groups “in part” as within a limited
geographic area, in this case, the Bosnian Muslim and Bosnian Croat groups
in the ARK.59 The Tribunal’s jurisprudence supports
this view.60
- The Prosecution submits in the alternative that the specific intent requirement
is met by the targeting for destruction of the Bosnian Muslim and Bosnian
Croat leadership and military aged men, because they constitute significant
sections of those groups.61 The Defence opposes
the view that military aged men constitute a significant section of the group
for the purposes of meeting the specific intent requirement.62
Given the current jurisprudence of this Tribunal,63
for the purposes of this decision the Trial Chamber deems it inappropriate
to rule out at this stage that targeting military aged men could, all things
being equal, constitute evidence of the intent to destroy in part a national,
ethnical, racial or religious group, as such.
- As stated earlier,64 in the Indictment the
Prosecution pleads inter alia that the Accused is responsible for genocide
on the basis that it was a natural and foreseeable consequence of the campaign
designed to eliminate the Bosnian Muslim and Bosnian Croat populations from
the municipalities contemplated in the Indictment through their deportation
or forcible transfer.65 The Defence opposes this
submission and contends that as a matter of law a conviction for genocide
under the third category of JCE is not permissible because of the specific
intent requirement.66 The Prosecution responds
that “a conviction under Article 4(3)(a) would not require proof of specific
intent where the Accused willingly assumed the risk that genocide might be
committed as a natural and foreseeable consequence of the execution of the
[JCE]”.67
- As already stated,68 the Trial Chamber relies
on the definition of the third category of JCE put forward by the Appeals
Chamber in the Tadic case, according to which it consists of “a common
design to pursue one course of conduct where one of the perpetrators commits
an act which, while outside the common design, was nevertheless a natural
and foreseeable consequence of the effecting of that common purpose”.69
- The Trial Chamber reiterates that the specific intent required for genocide
is set out in paragraph 52 above. This specific intent cannot be reconciled
with the mens rea required for a conviction pursuant to the third category
of JCE. The latter consists of the Accused’s awareness of the risk that genocide
would be committed by other members of the JCE. This is a different mens rea
and falls short of the threshold needed to satisfy the specific intent
required for a conviction for genocide under Article 4(3)(a).70
For this reason, the Trial Chamber has found that there is no case to answer
with respect to count 1 in the context of the third category of JCE.71
2. Conclusions regarding count 1
- In addition to and in the context of the Defence challenges identified
earlier, the Defence specifically disputes that two items of evidence, namely
the “Variant A and B document” (Exhibit P 25) and the “Six strategic goals
of the Serbian people ” (Exhibit P 189) support the existence of a genocidal
plan or reflect the specific intent required for genocide.72
The Trial Chamber finds that it is outside the scope of Rule 98 bis to
address at this stage whether specific items of evidence taken in isolation
support any such conclusion.
- Based on the evidence of the Accused’s participation in the first category
of JCE, if believed, the Trial Chamber finds that a reasonable trier of fact
could be satisfied beyond reasonable doubt that the Accused shared with other
members of the JCE a common plan which amounted to and involved the commission
of genocide against the Bosnian Muslim and Bosnian Croat groups in the ARK
during the period relevant to the Indictment in the area contemplated therein.73
Consistent with this finding and based on the same 98 bis standard
criteria, there is sufficient evidence on the basis of which a reasonable
trier of fact could be satisfied beyond reasonable doubt that the Accused
possessed the specific intent for count 1.
- The Trial Chamber finds that there is sufficient evidence of killings,
infliction of serious bodily harm and the deliberate imposition of conditions
of life calculated to bring about physical destruction, carried out against
Bosnian Muslims and Bosnian Croats and intended to bring about the destruction
in part of the groups as such which, if believed, could satisfy a reasonable
trier of fact beyond reasonable doubt that genocide was committed in the municipalities
mentioned in the Indictment between April and December 1992.
- Finally, for the purposes of Rule 98 bis only and based on the said
98 bis standard criteria exclusively, the Trial Chamber finds that
there is sufficient evidence that the Accused knowingly furthered the crime
of genocide which, if believed, could lead a reasonable trier of fact to be
satisfied beyond reasonable doubt of the Accused’s criminal responsibility
for genocide under count 1 of the Indictment.
- Naturally, the considerations of this Trial Chamber in paragraphs 59 to
61 are at the core of the case against the Accused and will engage the members
of this Trial Chamber considerably for the final stage of this trial. There
is in fact other evidence that argues in favour of the Accused which the Trial
Chamber is fully aware of but which for the purposes of the current exercise,
i.e. meeting the 98 bis standard, cannot have any consequences. It
will of course be given all due weight when the Trial Chamber comes to its
final decision, when it will also be in a position to assess all the evidence
currently available in the light of the evidence that may be brought forward
by the Defence.
- Consequently, with the exception of the finding of the Trial Chamber in
paragraph 57 above, the Defence Motion fails with respect to count 1. Whilst
the majority of the Trial Chamber supports this conclusion, Judge Janu dissents.74
C. Complicity in genocide
- Under count 2, the Accused is charged with complicity in genocide, punishable
under Articles 4(3)(e), and 7(1) and 7(3) of the Statute of the Tribunal.
- The Defence submits that there is no evidence to prove that genocide was
committed in the ARK and that consequently it is not possible to sustain a
conviction for complicity in genocide.75 The
Prosecution responds that it has made a case with respect to genocide as well
as with respect to complicity in genocide.76
The Trial Chamber has already stated above that a reasonable trier of fact
could, on the evidence adduced so far in this case, if believed, be satisfied
beyond reasonable doubt that genocide was committed in the municipalities
mentioned in the Indictment, between April and December 1992.77
- Although not specifically raised in the Defence Motion, the Trial Chamber
finds it necessary to address the mens rea requirement for complicity
in genocide. The Prosecution submits that the mental element for complicity
in genocide is that “the Accused knew that the crime was being committed in
furtherance of the intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such”.78 The Trial
Chamber notes that, according to the jurisprudence of the ICTR, an accused
may be convicted for complicity in genocide if the Prosecution proves beyond
reasonable doubt that an accused knew that his own acts assisted in the commission
of genocide by the principal offender and was aware of the principal offender’s
state of mind;79 it need not show that an accused
shared the specific intent of the principal offender. Considering this, the
Trial Chamber does not find it appropriate at this stage to dismiss the count
of complicity in genocide with respect to the third category of JCE.
1. Conclusions regarding count 2
- With respect to the charge of complicity in genocide, the Trial Chamber
is satisfied that a reasonable trier of fact could, on the evidence adduced
so far in this case, if believed, be satisfied beyond reasonable doubt that
the Accused assisted in the commission of genocide in the knowledge that he
was so doing. As a consequence, a reasonable trier of fact could on the basis
of this evidence be satisfied beyond reasonable doubt of the Accused’s guilt
of complicity in genocide.
- The Defence Motion therefore fails with respect to count 2. Whilst the
majority of the Trial Chamber supports this decision, Judge Janu dissents.80
D. Extermination
- Under count 4, the Accused is charged with extermination, a crime against
humanity punishable under Articles 5(b), and 7(1) and 7(3) of the Statute.81
- In its Motion, the Defence submits in general that “StChe Prosecutor has
failed to present sufficient evidence to support a conviction of extermination”.82
More specifically with regard to the actus reus element of extermination,
the Defence explains that the primary requirement for establishing the crime
of extermination is that “the killings must have been done on a massive scale”.83
The Defence further argues that there is no evidence to support mass killings
of the kind that would be required to prove the commission of the crime of
extermination and that “such evidence cannot be established by an accumulation
of separate and unrelated incidents”.84 In addition
the Defence believes that there is no evidence that the Accused, “by reason
of either his position or authority, could decide upon the fate or had control
over a large number of individuals”.85 With respect
to the mens rea element of extermination, the Defence finally submits
that there is no evidence that the Accused “had knowledge that his action
was part of a vast murderous enterprise in which large numbers of individuals
were systematically marked for killing or were killed”.86
- In its Response, the Prosecution concurs with the Defence description of
the actus reus element of the crime of extermination.87
However, the Prosecution refutes the Defence submissions that there is insufficient
evidence to establish the killing of persons on a massive scale and that the
crime of extermination cannot be proved by an accumulation of incidents.88
The Prosecution maintains that “StChe Defence Motion offers no legal or factual
arguments to support these assertions and ignores case law”.89
In addition, the Prosecution notes that the mens rea of extermination
has been formulated differently within the jurisprudence of this Tribunal
and the ICTR.90 The Prosecution submits that,
irrespective of which mens rea standard will ultimately be applied
by this Trial Chamber, it has met its burden under Rule 98 bis to prove
that a reasonable Trial Chamber could convict the Accused on the charge of
extermination.91
1. The law
(a) Objective element: actus reus
- The Trial Chamber concurs with the parties that the actus reus of
extermination is the killing of persons on a massive scale.92
The Trial Chamber accepts the definition of the actus reus element
of extermination as identified by the Vasiljevic Trial Chamber:
The material element of extermination consists of any
act or combination of acts which contributes to the killing of a large
number of individuals.93
- The Trial Chamber observes that there is no basis in law or jurisprudence
for the Defence submission that the commission of the crime of extermination
cannot be established by an accumulation of separate and unrelated incidents.
On the contrary, the Trial Chamber is of the opinion that the element of the
massiveness of the crime on the territory covered by the Indictment allows
for the possibility to establish the evidence of the actus reus of
extermination on an aggregated basis.94
- The Trial Chamber also notes in relation to the actus reus of extermination
that there is no requirement that the Prosecution prove that the Accused had
control over a large number of individuals because of his position or authority,
as submitted by the Defence. In order to establish the material element of
the crime of extermination, it suffices that the evidence shows that the Accused
has committed any act or combination of acts which contributed to the killing
of a large number of individuals.95
(b) Subjective element: mens rea
- The Trial Chamber observes that the mens rea for the crime of extermination
is not defined uniformly in the jurisprudence of this Tribunal and the ICTR.
In general, three different approaches can be identified. Pursuant to the
first approach, which is formulated by the Kayishema Trial Chamber,
the mens rea for extermination is that an accused through his act(s)
or omission(s) must have intended the killing, or be reckless or grossly negligent
as to whether the killing would result and be aware that his acts(s) or omission(s)
forms part of a mass killing event.96 The Trial
Chamber in Krstic adopted a second approach and held that the crimes
of murder and extermination have the same mens rea
which consists of the intention to kill or the intention
to cause serious bodily injury to the victim which the perpetrator must
have reasonably foreseen was likely to result in death.97
- The Stakic Trial Chamber has refined this standard. Arguing that
the mens rea standard for extermination cannot be lower than the mens
rea required for murder as a crime against humanity, the Trial Chamber
found that the general standard is dolus directus or dolus eventualis.98
The Trial Chamber emphasised that
it would be incompatible with the character of the crime
of extermination and with the system and construction of Article 5 if
recklessness or gross negligence sufficed to hold an accused criminally
responsible for such a crime.99
- The third approach, which has been articulated in the Vasiljevic Trial
Judgement and upon which the Defence relied in its Motion,100
defines the mens rea standard as follows:
The offender must intend to kill, to inflict grievous
bodily harm, or to inflict serious injury, in the reasonable knowledge
that such act or omission is likely to cause death, or otherwise intends
to participate in the elimination of a number of individuals, in the
knowledge that his action is part of a vast murderous enterprise in
which a large number of individuals are systematically marked for killing
or killed.101
- In the absence of settled jurisprudence and for the purposes of this Rule
98 bis decision, the Trial Chamber favours the formulation of the mens
rea as set out in the Vasiljevic Trial Judgement. This includes
the requirement that the Accused had knowledge that his action was part of
a vast murderous enterprise in which large number of individuals were systematically
marked for killing or were killed. The Trial Chamber notes that the mens
rea element of extermination is sub judice before the Appeals Chamber
in another case,102 and thus defers its final
decision on the matter until a later stage.
2. Factual Findings
(a) Objective element: actus reus
- The Trial Chamber is satisfied that, on the basis of the evidence adduced
by the Prosecution, if believed, a reasonable trier of fact could be satisfied
beyond reasonable doubt that the material element of the crime of extermination,
i.e. the killings which took place, independently or cumulatively reach the
requisite level of massiveness to prove the crime of extermination. In applying
the 98 bis standard, the Trial Chamber therefore finds that extermination
was committed in the municipalities listed in paragraph 4 of the Indictment,
which formed part of the ARK, between 1 April 1992 and 31 December 1992. For
the purposes of this decision and applying the 98 bis standard, the
Trial Chamber has already found above that the Accused participated in the
crime of extermination as charged.103
(b) Subjective element: mens rea
- The Trial Chamber is also satisfied that sufficient evidence has been presented,
in terms of the 98 bis standard criteria which, if believed, could
lead a reasonable trier of fact to the conclusion that the Accused possessed
the requisite intent to kill, to inflict grievous bodily harm, or to inflict
serious injury, in the reasonable knowledge that such act or omission was
likely to cause death, or otherwise to participate in the elimination of a
number of individuals, in the knowledge that his action was part of a vast
murderous enterprise in which large number of individuals were systematically
marked for killing or were killed. In this respect the Trial Chamber refers
back to its previous findings on the individual responsibility of the Accused,
finding inter alia that the Accused possessed the requisite intent
in relation to the crime of extermination as charged in the Indictment.104
3. Conclusion regarding count 4
- On the basis of the Trial Chamber’s findings as to the legal elements for
extermination and on the basis of the evidence presented to date, if believed,
the Trial Chamber finds that a reasonable trier of fact could be satisfied
beyond reasonable doubt of the guilt of the Accused with regard to extermination
as a crime against humanity. The Defence Motion therefore fails with respect
to count 4.
E. Persecutions
- Under count 3, the Accused is charged with persecutions, a crime against
humanity punishable under Article 5(h), and 7(1) and 7(3) of the Statute of
the Tribunal.105
- The Defence submits that the denials of rights alleged as persecution are
not denials of internationally recognised fundamental rights, and that
“[s]uch charges and the vagueness associated with them are a denial of the
principal of nullum crimen sine lege”.106
- In paragraph 47(5) of the Indictment, the Prosecution alleges that the
following acts amount to persecution:
the denial of fundamental rights to Bosnian Muslims
and Bosnian Croats, including the right to employment, freedom of movement,
right to proper judicial process, or right to proper medical care.
- The jurisprudence of this Tribunal, as accepted by the Defence, states
that the actus reus of the crime of persecution consists of
[a]n act or omission that:1. discriminates in fact
and which denies or infringes upon a fundamental right laid down in customary
international or treaty law[.]107
- Within the context of this definition, the need to clarify what would amount
to a fundamental right obviously arises. The Trial Chamber favours the approach
taken in Kupreskic Trial Judgement that there is no list of established
fundamental rights and the relative decision is best taken on a case by case
basis.108
- In the instant case, the Prosecution submits in its Response that each
of the rights alleged to have been denied in the Indictment amounting to persecution
is fundamental.109 Basing itself on the jurisprudence
of this Tribunal, and particularly the Kupreskic Trial Judgement,
the Trial Chamber is satisfied that within the context of the conflict in
the ARK between April and December 1992, the denial of the rights to employment,
freedom of movement, proper judicial process, and proper medical care, based
on the evidence available, if believed, could lead a reasonable trier of fact
to come to a finding beyond reasonable doubt that given all circumstances
they amounted to fundamental rights within the context of the alleged persecution.
- The Trial Chamber considers it necessary to make a point of clarification
with respect to the manner in which the Prosecution pleaded the denial of
fundamental rights in the Indictment, notably by using of the word “including”.
The jurisprudence of this Tribunal makes it clear that an accused is entitled
to know the case against him and is entitled to assume that any list of alleged
acts contained in an indictment is exhaustive, regardless of the inclusion
of words such as “including”, which may imply that other unidentified acts
are being charged as well.110 The Trial Chamber
agrees with the approach taken in the Stakic Trial Judgement :
[T]he Trial Chamber will not consider any denial of
fundamental rights not expressly mentioned by the Prosecution in the Indictment.
The Accused is not sufficiently informed of, and therefore unable to defend
against, any charges other than those explicitly stated in the Indictment.111
- In the instant case, the Trial Chamber considers that only four specific
rights (employment, freedom of movement, proper judicial process and proper
medical care) are alleged in the Indictment to have been denied and has restricted
its analysis accordingly.
- In its Motion, the Defence also submits that there is no evidence connecting
the Accused to any of the underlying acts alleged to amount to persecution.
The Trial Chamber, applying the 98 bis standard, has already found
above that the crime of persecution was committed112
and that the Accused participated with the requisite intent in this crime
as charged113. For these reasons, the Defence
Motion with respect to count 3 is dismissed.
F. Torture
- Under counts 6 and 7, the Accused is charged with torture both as a crime
against humanity and a grave breach of the Geneva Conventions of 1949, punishable
respectively under Articles 5(f) and 2(b), and 7(1) and 7(3) of the Statute.114
- With respect to the charge of torture, the Defence submits as follows regarding
the evidence adduced during the Prosecution case:
Whether it rises to the widespread or systematic nature
that would justify a finding of the commission of a Crime Against Humanity
is the question with regard to this count of the indictment.115
- The Trial Chamber finds that the Defence confuses the legal requirements
for the chapeau elements of crimes against humanity (including the necessity
that there be a widespread or systematic attack) with the legal requirements
for the crime of torture. There is no such legal requirement for the crime
of torture. What the Prosecution has to establish for count 6 is that there
was a widespread or systematic attack against a civilian population, in the
context of which the crime of torture was committed, and not that the commission
of the crime of torture itself was of a widespread or systematic nature.
- In its Motion, the Defence further submits that there is no evidence connecting
the Accused to any torture.116 The Trial Chamber,
applying the 98 bis standard, has already found above that the Accused
participated with the requisite intent in the commission of the crime of torture
as charged.117 For these reasons, the Trial
Chamber dismisses the Defence’s challenges in relation to counts 6 and 7.
G. Deportation
- Under counts 8 and 9, the Accused is charged with deportation and inhumane
acts, crimes against humanity, punishable respectively under Articles 5(d)
and 5 (i), and 7(1) and 7(3) of the Statute of the Tribunal.118
- With respect to the charge of deportation, the Defence submits that “the
Prosecution ha?sg failed to present sufficient evidence to support a conviction
for deportation as a grave breach of the Geneva Convention under count 9 of
the indictment”.119 The reference to count 9
may be intentional or accidental. But even if posed in the context of count 8
which specifically deals with deportation, the Defence argument would still
not be valid as the notion itself would remain alien to the grave breaches
of the Geneva Conventions.
- The Defence also raises a challenge concerning the law applicable to deportation.120
Specifically, the Defence submits that the law is correctly set out in the
Krnojelac Trial Judgement in that deportation requires “the displacement
of persons across a national border, to be distinguished from forcible transfer
which may take place within national boundaries” 121.
The Defence contrasts this with the approach taken in the Stakic Trial
Judgement, which focuses on forcible removal rather than the destination resulting
from such removal, though acknowledging that there must at least be a transfer
to territory controlled by another party to the conflict.122
- The Trial Chamber notes that deportation and forcible transfer were addressed
in the recent Krnojelac Appeals Judgement. However, the principles
laid down therein were set out in the context of deportation and/or forcible
transfer as one of the ways of committing persecution. The Krnojelac Appeals
Judgement expressly does not take any decision with regard to the definition
of deportation as it may be different from forcible transfer.123
Therefore, the Trial Chamber does not find the Krnojelac Appeals Judgement
to be of assistance in the instant matter.
- The Trial Chamber notes that, if the Stakic approach were to be
applied in the instant case, for the purposes of and based on the 98 bis
standard, one would have to dismiss the charge of forcible transfer on
a legal basis and concentrate on the charge of deportation in which case,
in the opinion of this Trial Chamber, the 98 bis standard is reached.
On the same 98 bis standard, there is sufficient evidence of forced
displacement of part of the population across either internal borders (i.e.
established by the areas controlled by the respective parties to the conflict)
or international borders.
- If, in the alternative, the Krnojelac Trial Judgement approach were
to be applied using the 98 bis standard, there would be a case to answer
with respect to both counts, as there is abundant evidence of forcible displacements
both within and across international borders that, if believed, could lead
a reasonable trier of fact to so conclude beyond a reasonable doubt.
- It is the opinion of the Trial Chamber that it should not pre-empt the
issue at the Rule 98 bis stage when a definitive pronouncement by the
Appeals Chamber on this subject matter may be forthcoming before the final
judgement of the Trial Chamber in this case,124
and in view of what is stated in the second part of paragraph 99 supra,
it would be improper for this Trial Chamber, at this stage, to eliminate the
crime of forcible transfer from the remaining proceedings.
- In its Motion, the Defence further submits that there is no evidence connecting
the Accused to any deportations or forcible transfers.125
The Trial Chamber, applying the 98 bis standard, has already found
above that the Accused participated with the requisite intent in the commission
of the crimes of deportation and forcible transfer as charged.126
For these reasons, the Trial Chamber dismisses the Defence’s challenges with
respect to counts 8 and 9.
H. Remaining counts
- The Defence has not raised any specific challenge in relation to count
5 (wilful killings, a grave breach of the Geneva Conventions, punishable under
Articles 2( a), 7(1) and 7(3) of the Statute), count 10 (unlawful and wanton
extensive destruction and appropriation of property not justified by military
necessity, a grave breach of the Geneva Convention of 1949, punishable under
Articles 2(d), 7(1) and 7(3) of the Statute), count 11 (wanton destruction
of cities, towns or villages, or devastation not justified by military necessity,
a violation of the laws or customs of war, punishable under Articles 3(b),
7(1) and 7(3) of the Statute) or count 12 (destruction or wilful damage done
to institutions dedicated to religion, a violation of the laws or customs
of war, punishable under Articles 3(d), 7(1) and 7(3) of the Statute of the
Tribunal). Although the Defence admitted that in accordance with Rule 98 bis
standard the Trial Chamber could find that these crimes have been committed,
it argued that there is no evidence which would connect the Accused with any
of these crimes.127
- In this respect, the Trial Chamber recalls that it has already found that
on the basis of the evidence before it, if believed, a reasonable Trial Chamber
could be satisfied beyond reasonable doubt that the Accused, as charged in
the Indictment, furthered with the requisite intent the crimes of wilful killings,
unlawful and wanton extensive destruction and appropriation of property not
justified by military necessity, wanton destruction of cities, towns or villages,
or devastation not justified by military necessity, and destruction or wilful
damage done to institutions dedicated to religion.128
Accordingly, the Defence Motion with respect to counts 5, 10, 11 and 12 fails.
IV. DISPOSITION
For the foregoing reasons, the Trial Chamber pursuant to Rule 98 bis:
(1) unanimously GRANTS the Defence Motion insofar as the Accused is acquitted
of count 1 of the Indictment in the context of the third category of joint
criminal enterprise;
(2) unanimously STRIKES OUT those factual allegations in the Indictment
detailed in paragraphs 8-16 of this Decision;
(3) by majority (Judge Ivana Janu dissenting) DISMISSES the remaining
issues in the Defence Motion with regard to count 1 of the Indictment and
all issues in the Defence Motion with regard to count 2 of the Indictment;
(4) unanimously DISMISSES all issues in the Defence Motion with regard
to counts 3 through 12 of the Indictment.
A Partial Dissenting Opinion of Judge Ivana Janu is attached to the present
decision.
Done in French and English, the English version being authoritative.
_______________
Judge Carmel Agius
Presiding
_______________
Judge Ivana Janu
_______________
Judge Chikako Taya
Dated this 28th day of November 2003
At The Hague
The Netherlands
[Seal of the Tribunal]
PARTIAL DISSENTING OPINION OF JUDGE IVANA JANU
1. While I agree with the findings of the majority of the Trial Chamber
to grant the Defence Motion insofar as the Accused is acquitted of count 1
of the Indictment in the context of the third category of joint criminal
enterprise, to strike out those factual allegations in the Indictment detailed
in paragraphs 8-16 of this Decision and to dismiss all issues in the Defence
Motion with regard to counts 3 through 12 of the Indictment, I respectfully
disagree with the remaining factual findings of the majority of the Trial
Chamber in relation to count 1 (genocide) and its factual findings in relation
to count 2 (complicity in genocide).
2. I am not satisfied that any reasonable trier of fact could, on the
basis of the evidence before this Trial Chamber, if believed, find beyond
reasonable doubt that :
(i) the Accused held the intent to destroy in whole or in part the Bosnian
Muslim and Bosnian Croat groups in the ARK as such;129
(ii) the killings, infliction of serious bodily harm and deliberate imposition
of conditions of life calculated to bring about physical destruction against
Bosnian Muslims and Bosnian Croats, have been committed with the intent to
destroy in whole or in part the Bosnian Muslim and Bosnian Croat groups in
the ARK as such;130
(iii) genocide was committed in the municipalities mentioned in the Indictment
between April and December 1992;131 and
(iv) the Accused assisted in the commission of genocide in the knowledge
that he was so doing.132
3. I therefore come to the following conclusions:
1. the Accused is not guilty under any head of liability of Articles 7(1)
or 7(3) of the Statute for the crime of genocide, and should, therefore, be
acquitted of count 1; and
2. the Accused is not guilty under any head of liability of Articles 7(1)
or 7(3) of the Statute for the crime of complicity in genocide, and should,
therefore, be acquitted of count 2.
Done in French and English, the English version being authoritative.
_______________
Judge Ivana Janu
Dated this 28th day of November 2003,
At The Hague,
The Netherlands
[Seal of the Tribunal]
1 - Motion for Judgement of Acquittal – Rule
98 Bis, 22 August 2003 (“Defence Motion”).
2 - Public Version of “Prosecutor’s Response to the ‘Motion
for Judgement of Acquittal – Rule 98 Bis’” filed on 5 September and Addendum
filed on 16-17 September 2003, 2 October 2003 (“Prosecution Response”).
3 - Transcript pp (“T.”) 20780-20797.
4 - Defence Motion, p. 2; Prosecution Response, para. 8.
5 - Prosecutor v. Goran Jelisic, Case No. IT-95-10-A,
Judgement, 5 July 2001 (“Jelisic Appeals Judgement”), para. 37 (emphasis
added).
6 - Fifth Amended Indictment, 7 October 2002 (“Indictment”).
7 - The Defence has clearly stated, however, that it is not
making any admissions: “Your honour, I want to make something very clear […].
By my not contesting certain factual matters, I said I think very clearly in the
motion that for the purposes of the motion I would not be contesting those matters
but I was not making any admissions that the Prosecution has proven any of those
factual matters beyond a reasonable doubt. And I want to make that very clear.”
T. 20800.
8 - Reference to “these events” concerns those incidents which
the Defence does not dispute for the purposes of the Defence Motion.
9 - This discrepancy was highlighted by the Trial Chamber during
the discussion following its oral decision rendered on 9 October 2003 (T. 20788),
and the Prosecution was invited to address it. However, despite undertaking orally
to do so (“Your Honour, I’m sorry about that, those two aspects of confusion in
our list in Annex B. We’ll check that and get back to Your Honours over whether
it is mosques or Catholic churches.” T. 20803), the Prosecution’s “Corrigendum
to Appendix C to ‘Prosecutor’s Motion in Respect of Response to Defendant Radoslav
Brdanin’s Motion for Judgement of Acquittal – Rule 98 bis’” (“Corrigendum”),
filed on 31 October 2003, did not address it. In its oral decision rendered on
9 October 2003, the Trial Chamber also noted that Appendix C to the Prosecution
Response refers to Ljubija Mosque in Prijedor Municipality, whereas the
incident charged under paragraph 47(3)(b) of the Indictment refers to Ljubija
Roman Catholic Parish Church. The Corrigendum clarified that paragraph B of
Appendix C should read “Ljubija – Roman Catholic Parish Church” (vide para.
3). The Trial Chamber accordingly finds that the Indictment and the Prosecution
Response are referring to the same building.
10 - Prosecution Response, footnote 1.
11 - T. 20797-20798.
12 - T. 20798-20799.
13 - Prosecution v. Radoslav Brdjanin, Case No. IT-99-36-T,
Confidential Addendum to the “Prosecutor’s Response to the “Motion for Judgement
of Acquittal – Rule 98 bis””, 16 September 2003.
14 - T. 20827-20828.
15 - Indictment, paras 27.1-27.4.
16 - Indictment, paras 33 and 27.4.
17 - Indictment, para. 34.
18 - Prosecutor v. Dusko Tadic, Case No. IT-94-1-A,
Judgement, 15 July 1999 (“Tadic Appeals Judgement”), paras 185-229: The
first category of JCE consists of “[c]ases where all co-defendants, acting pursuant
to a common design, possess the same criminal intention; for instance, the formulation
of a plan among the co-perpetrators to kill, where, in effecting this common design
(and even if each co-perpetrator carries out a different role within it), they
nevertheless all possess the intent to kill. The objective and subjective prerequisites
for imputing criminal responsibility to a participant who did not, or cannot be
proven to have, effected the killing are as follows: (i) The accused must voluntarily
participate in one aspect of the common design (for instance, by inflicting non-fatal
violence upon the victim, or by providing material assistance to or facilitate
the activities of his co-perpetrators), and (ii) The accused, even if not personally
effecting the killing, must nevertheless intend the result.” (Tadic Appeals
Judgement, para. 196).
The second category of JCE “is in many respects similar to that set forth above,
and embraces the so-called “concentration camp” cases. The notion of common purpose
was applied to instances where the offences charged were alleged to have been
committed by members of military or administrative units such as those running
concentration camps; i.e., by groups of persons acting pursuant to a concerted
plan.” (Tadic Appeals Judgement, para. 202).
The third category of JCE “concerns cases involving a common design to pursue
one course of conduct where one of the perpetrators commits an act which, while
outside the common design, was nevertheless a natural and foreseeable consequence
of the effecting of that common purpose. An example of this would be a common,
shared intention on the part of a group to forcibly remove members of one ethnicity
from their town, village or region (to effect “ethnic cleansing”) with the consequence
that, in the course of doing so, one or more of the victims is shot and killed.
While murder may not have been explicitly acknowledged to be part of the common
design, it was nevertheless foreseeable that the forcible removal of civilians
at gunpoint might well result in the deaths of one or more of those civilians.
Criminal responsibility may be imputed to all participants within the common enterprise
where the risk of death occurring was both a predictable consequence of the execution
of the common design and the accused was either reckless or indifferent to that
risk.” (Tadic Appeals Judgement, para. 204).
The Trial Chamber notes that what has been stated in the Tadic Appeals
Judgement in relation to JCE has come up repeatedly in judgements before the Tribunal,
and that both the definition and classification set out therein have recently
been confirmed by the Appeals Chamber in Prosecutor v. Milorad Krnojelac,
Case No. IT-97-25-A, Judgement, 17 September 2003 (“Krnojelac Appeals Judgement”).
19 - Prosecutor v. Radoslav Brdjanin and Momir Talic,
Case No. IT-99-36-P, Decision on Form of Third Amended Indictment, 21 September 2001,
para. 22.
20 - Vide Krnojelac Appeals Judgement, paras 124-144,
in which a similar decision was reached.
21 - Defence Motion, p. 32; Prosecution Response, p. 65.
22 - Defence Motion, pp. 31-32. According to the Defence, the
“hands-on” participation requirement does not necessarily require presence at
the scene, but it does require an active form of participation (p. 31). It is
added that the doctrine requires a specific knowledge of the events and a “presence”
in the sense of participation in the activities resulting in the commission of
a crime that could have been foreseen by the Accused (p. 36).
23 - Defence Motion, pp. 31-32.
24 - Tadic Appeals Judgement, para. 227.
25 - Tadic Appeals Judgement, para. 199, referring to
the to Ponzano case (Trial of Feurstein and others, Proceedings
of a War Crimes Trials held at Hamburg, Germany, Judgement of 24 August 1948).
26 - Trial of the Major War Criminals before the International
Military Tribunal, Judgement, Nuremberg 1947, (1995), Vol XXII, p. 468.
27 - Prosecutor v. Radoslav Brdjanin and Momir Talic,
Case No. IT-99-36-P, Decision on Form of Further Amended Indictment and Prosecution
Application to Amend, 26 June 2001, para. 44.
28 - Para. 26 supra.
29 - Indictment, para. 27.1.
30 - Defence Motion, p. 36.
31 - Judge Janu dissents with the finding of the majority of
the Trial Chamber with respect of the Accused’s responsibility under count 1 under
the fist category of JCE and his responsibility under count 2 under the first
and the third category of JCE (vide Partial Dissenting Opinion of Judge Ivana
Janu).
32 - For the purposes of this decision, the Trial Chamber does
not find it necessary to discuss the relationship between the modes of liability
other than ‘committing’ under Article 7(1) and Article 4(3) of the Statute.
33 - Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T,
Judgement, 2 September 1998 (“Akayesu Trial Judgement”), para. 480, reiterated
in Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Judgement, 2 August
2001 (“Krstic Trial Judgement”), para. 601, in Prosecutor v. Tihomir
Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (“Blaskic Trial
Judgement”), para. 279 and in Prosecutor v. Dario Kordic and Mario Cerkez,
Case No. IT-95-14/2-T, Judgement, 26 February 2001 (“Kordic and Cerkez
Trial Judgement”), para. 386.
34 - Akayesu Trial Judgement, para. 473; Blaskic
Trial Judgement, para. 278; Kordic and Cerkez Trial Judgement, para. 386.
35 - Blaskic Trial Judgement, para. 280, Krstic
Trial Judgement, para. 601, Kordic and Cerkez Trial Judgement, para. 387,
see also for the International Criminal Tribunal for Rwanda (“ICTR”), Akayesu
Trial Judgement, para. 482.
36 - Kordic and Cerkez Trial Judgement, para. 387.
37 - Prosecutor v. Miroslav Kvocka et al., Case No.
IT-98-30/1-T, Judgement, 2 November 2001 (“Kvocka Trial Judgement”), para.
252.
38 - Kordic and Cerkez Trial Judgement, para. 388; Krstic
Trial Judgement, para. 601; Blaskic Trial Judgement, para. 282.
39 - Krstic Trial Judgement, para. 601; Prosecutor
v. Zlato Aleksovski, Case No. IT-95-14/1-A, Judgement, 30 May 2001 (“Aleksovski
Appeals Judgement”), paras 162-164; Prosecutor v. Anto Furundzija, Case
No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundzija Trial Judgement”),
paras 209, 232-233, endorsed by the Prosecutor v. Ignace Bagilishema Case
No. ICTR-95-1A-T, Judgement, 7 June 2001 (“Bagilishema Trial Judgement”),
para. 33; Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement,
27 January 2000 (“Musema Trial Judgement”), para. 125.
40 - Furundzija Trial Judgement, para. 245-246.
41 - Judge Janu dissents with the finding of the majority of
the Trial Chamber in respect of the Accused’s responsibility under Article 7(1)
of the Statute for planning, instigating, ordering or otherwise aiding and abetting
in the planning, preparation, or execution of the crimes charged in the Indictment
in counts 1 and 2 (vide Partial Dissenting Opinion of Judge Ivana Janu).
42 - Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T,
Judgement, 16 November 1998, para. 346 and Prosecutor v. Zejnil Delalic et al.,
Case No. IT-96-21-A, Judgement, 20 February 2001, paras 189-198, 225-226, 238-239,
256, 263 (the Trial Chamber’s conclusions as to the first two elements were confirmed
by the Appeals Chamber. The third element was not in issue in this Appeal).
43 - Defence Motion, p. 43.
44 - Prosecution Response, paras 207-247.
45 - Judge Janu dissents with the finding of the majority of
the Trial Chamber in respect of the Accused’s responsibility under Article 7(3)
of the Statute regarding the crimes charged in the Indictment in counts 1 and
2 (vide Partial Dissenting Opinion of Judge Ivana Janu).
46 - Defence Motion, p. 20.
47 - Defence Motion, p. 20.
48 - Defence Motion, p. 20.
49 - The Trial Chamber notes that the Prosecution is not entirely
consistent in its submissions as to the date the genocidal campaign commenced
to be implemented in the ARK. The earliest it submits is Spring 1992, and April
1992 (Prosecution Response, paras 249, 356). The latest it submits is Summer 1992
(Prosecution Response, para. 251).
50 - Prosecution Response, para. 311.
51 - Prosecution Response, para. 249.
52 - Article 4 of the Statute provides as follows:
1. The International Tribunal shall have the power to prosecute
persons committing genocide as defined in paragraph 2 of this article or of
committing any of the other acts enumerated in paragraph 3 of this article.
2. Genocide means any of the following acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
(a) genocide;
(b) conspiracy to commit genocide;
(c) direct and public incitement to commit genocide;
(d) attempt to commit genocide;
(e) complicity in genocide.
53 - Indictment, para. 36; Prosecution Response,
para. 290.
54 - Indictment, para. 36-37.
55 - Indictment, paras 37(3) and 43.
56 - Prosecution Response, para. 250.
57 - The Indictment fulfils “the fundamental purpose of providing
the accused with a description of the charges against him with sufficient particularity
to enable him to mount his defence” (Prosecutor v. Zoran Kupreskic et al,
Case No. IT-95-16-A, Judgement, 23 October 2001 (“Kupreskic Appeals Judgement”),
para. 95). In this respect, the Appeals Chamber emphasised “that the Prosecution
is expected to know its case before it goes to trial. It is not acceptable for
the Prosecution to omit the material aspects of its main allegations in the
indictment with the aim of moulding the case against the accused in the course
of the trial depending on how the evidence unfolds” (Kupreskic Appeals
Judgement, para. 92).
58 - Statute, Article 4(2).
59 - Defence Motion, p. 15; Prosecution Response, paras 290
and 298.
60 - Prosecutor v. Goran Jelisic, Case No. IT-95-10-T,
Judgement, 14 December 1999 (“Jelisic Trial Judgement”), para. 83. Prosecutor
v. Dusko Sikirica et al., Case No. IT-95-8, Judgement on Defence Motions
to Acquit (“Sikirica 98 bis Decision”), para. 68. Krstic
Trial Judgement, paras 589-590. Prosecutor v. Milomir Stakic, Case No.
IT-97-24-T, Judgement, 31 July 2003 (“Stakic Trial Judgement”), para.
523.
61 - Prosecution Response, para. 298.
62 - Defence Motion, p. 14.
63 - Vide Krstic Trial Judgement, para. 595;
Sikirica 98 bis Decision, para. 81.
64 - Vide paras 21, 24, 29-32 supra.
65 - Indictment, para. 27.3; Prosecution Response, para. 188.
66 - The “specific intent requirement (…) would not permit
a genocide conviction on the extended form of a joint criminal enterprise which
does not require the accused to share the intent of the perpetrator” (Defence
Motion, page 17).
67 - Prosecution Response, para. 283. The Trial Chamber does
not believe that the Krstic Trial Judgement supports the Prosecution’s
position: vide footnote 70 infra and Krstic Trial Judgement,
paras 633-635.
68 - Vide para. 23.
69 - Tadic Appeals Judgement, para. 204.
70 - The Stakic Trial Chamber stated the following:
“[t]he notions of “escalation” to genocide, or genocide as a “natural and foreseeable
consequence” of an enterprise not aimed specifically at genocide are not compatible
with the definition of genocide under Article 4(3)(a)” (Stakic Trial
Judgement, para. 530). Although this Trial Chamber concurs to an extent, it
is unable to agree with the Stakic Trial Chamber that the notion of “escalation”
to genocide is irreconcilable with a conviction for genocide under Article 4(3)(a).
“Escalation” to genocide merely designates a factual allegation that the specific
intent for genocide was formed at a stage later than the onslaught of an initial
operation not amounting to genocide. According to the Krstic Trial Chamber,
“[i]t is conceivable that, although the intention at the outset of an operation
was not the destruction of a group, it may become the goal at some later point
during the implementation of the operation” (Krstic Trial Judgement,
para. 572). In the context of the first category of JCE, the factual scenario
described does not rule out that genocide may have been within the common purpose
of the JCE.
71 - Vide para. 30 supra.
72 - Defence Motion, p. 20.
73 - Vide para. 28 supra.
74 - Vide Partial Dissenting Opinion of Judge Ivana
Janu.
75 - Defence Motion, p. 22.
76 - Prosecution Response, paras 253 and 359.
77 - Vide para. 60 supra.
78 - Prosecution Response, para. 350. Vide also ibid.,
para. 353. The Indictment pleads that the Accused shared the requisite intent
for complicity in genocide, which it identifies as that he “knew that he was
providing assistance in a crime being committed by others in furtherance of
the intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such (Indictment, para. 27.1).
79 - Akayesu Trial Judgement, paras 540, 544; Musema
Trial Judgement, para. 182; Bagilishema Trial Judgement, para. 71; Prosecutor
v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement, 15 May 2003, para. 394.
80 - Vide Partial Dissenting Opinion of Judge Ivana
Janu.
81 - Indictment, paras 49-52.
82 - Defence Motion, p. 49.
83 - Defence Motion, p. 49.
84 - Defence Motion, p. 50.
85 - Defence Motion, pp. 50-51.
86 - Defence Motion, p. 51.
87 - Prosecution Response, para. 395.
88 - Prosecution Response, para. 396.
89 - Prosecution Response, para. 396.
90 - Prosecution Response, para. 405.
91 - Prosecution Response, para. 407.
92 - Vide Krstic Trial Judgement, para. 501;
Stakic Trial Judgement, para. 638.
93 - Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T,
Judgement, 29 November 2002 (“Vasiljevic Trial Judgement”), para. 229.
94 - In this respect, the Trial Chamber finds support in
the approach adopted by the Stakic Trial Chamber, which stated that “In
the opinion of this Trial Chamber, an assessment of whether the element of massiveness
has been reached depends on a case-by-case analysis of all relevant factors”;
Stakic Trial Judgement, para. 640.
95 - Vide Vasiljevic Trial Judgement, para. 229.
96 - Prosecutor v. Clément Kayishema and Obed Ruzindana,
Case No. ICTR-95-1-T, Judgement, 21 May 1999 (“Kayishema Trial Judgement”),
para. 144.
97 - Krstic Trial Judgement, para. 495.
98 - Stakic Trial Judgement, para. 642.
99 - Stakic Trial Judgement, para. 642 (emphasis added).
100 - Defence Motion, p. 51.
101 - Vasiljevic Trial Judgement, para. 229 (emphasis
added).
102 - The formulation of the mens rea required for
the crime of extermination has been appealed by the Defence in the case Prosecutor
v. Milomir Stakic, IT-97-24.
103 - Vide section on individual criminal responsibility
at paras 23-44 supra.
104 - Vide section on individual criminal responsibility
at para. 28.
105 - Indictment, paras 45-48.
106 - Defence Motion, p. 48.
107 - Vide Prosecutor v. Milorad Krnojelac, Case
No. IT-97-25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement”),
para. 431, being a consolidation of the requirements set out in Tadic
Trial Judgement, para. 715, Prosecutor v. Zoran Kupreskic et al., Case
No. IT-95-16-T, Judgement, 14 January 2000 (“Kupreskic Trial Judgement”),
para. 621 and Kordic and Cerkez Trial Judgement, paras 189, 195.
108 - Vide Prosecutor Kupreskic Trial
Judgement, para. 623: “The Trial Chamber does not see fit to identify which
rights constitute fundamental rights for the purposes of persecution. The interests
of justice would not be served by so doing, as the explicit inclusion of particular
fundamental rights could be interpreted as the implicit exclusion of other rights
(expressio unius est exclusio alterius). This is not the approach taken
to crimes against humanity in customary international law, where the category
of “other inhumane acts” also allows courts flexibility to determine the cases
before them, depending on the forms which attacks on humanity may take, forms
which are ever-changing and carried out with particular ingenuity. Each case
must therefore be examined on its merits.”
109 - Prosecution Response, para. 364.
110 - Stakic Trial Judgement, paras 770-772. See
also Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Decision on
the Defence Motion to Dismiss the Indictment based upon Defects in the Form
thereof, 4 April 1997, para. 22.
111 - Stakic Trial Judgement, para. 772.
112 - Para. 34.
113 - Vide section on individual criminal responsibility
at paras 23-44 supra.
114 - Indictment, paras 53-56.
115 - Defence Motion, p. 51.
116 - Defence Motion, p. 47.
117 - Vide section on individual criminal responsibility
at paras 23-44 supra.
118 - Indictment, paras 57-60.
119 - Defence Motion, p. 53.
120 - Defence Motion, p. 52-53.
121 - The following definition is set out in the Krnojelac
Trial Judgement at para. 474: “Deportation may be defined as the forced displacement
of persons by expulsion or other coercive acts from the area in which they are
lawfully present, without grounds permitted under international law. Deportation
requires the displacement of persons across a national border, to be distinguished
from forcible transfer which may take place within national boundaries.” (Footnotes
omitted).
122 - Stakic Trial Judgement, para. 679: “The crime
of deportation in this context is therefore defined as the forced displacement
of persons by expulsion or other coercive acts for reasons not permitted under
international law from an area in which they are lawfully present to an area
under the control of another party”.
123 - Para. 224: “…the Appeals Chamber considers that it
is not necessary to express a view either supporting or rejecting the Trial
Chamber’s definition of the terms ‘deportation’ or ‘expulsion’”. See also the
Separate Opinion of Judge Shahabuddeen at para. 4: “…the Appeals Chamber has
made it clear that it is expressing no views either by way of affirmation or
by way of rejection of the definition given by the Trial Chamber”.
124 - The definition of deportation and specifically the
existence of a cross border element has been appealed by the Prosecution in
the case Prosecutor v. Mladen Naletilic and Vinko Martinovic, IT-98-34.
125 - Defence Motion, p. 47.
126 - Vide section on individual criminal responsibility
at paras 23-44 supra.
127 - Defence Motion, pp. 51, 54 and 55.
128 - Vide section on individual criminal responsibility
at paras 23-44 supra.
129 - Vide Prosecution v. Radoslav Brdjanin,
IT-99-36-T, Decision on Motion for Acquittal Pursuant to Rule 98 bis,
28 November 2003, (“Rule 98 bis Decision”), paras 28, 34-36, 41-43 and
59.
130 - Vide Rule 98 bis Decision, para. 60.
131 - Vide Rule 98 bis Decision, paras 31,
34-37, 43, 60 and 65.
132 - Vide Rule 98 bis Decision, para. 31,
34-37, 42-43 and 67.