1. I agree with the conclusions reached by the Appeals Chamber, but not with certain reasons given in the Judgement. From the outset, a more holistic approach as to the assessment of the facts and the individual criminal responsibility would be preferable. A Judgement should be more elaborate on the reasons as to how a Chamber comes to the proportional sentence, with which I agree. However, I feel it is only necessary to add my observations on the approach taken with regard to the Prosecution’s seventh ground of appeal, i.e. persecution by way of deportation.
2. The Appeals Chamber should have felt itself obligated to discuss the definition of deportation. As stated in paragraph 6 of the Appeals Judgement,
[T]he case-law of the ad hoc tribunals accepts that there are situations in which the Appeals Chamber can raise questions [even] proprio motu or agree to consider alleged errors, which in being dealt with in no way affect the finding but do raise an issue of general significance for the case-law or functioning of the Tribunal.
Further, in paragraph 7 of the Judgement, the Appeals Chamber states:
The main question is to ensure the development of the Tribunal’s case-law and the standardisation of the applicable law. It is appropriate to consider an issue of general interest insofar as the response to that issue would be decisive for the development of the Tribunal’s case-law and when at question is an important point of law which deserves examination. The Appeals Chamber must guide the Trial Chambers in their interpretation of the law.
Thus, the primary goal, nobile officium and obligation of the Appeals Chamber is to offer guidance to and harmonisation for future decisions by Trial Chambers .
3. I do not believe that it is reasonable for the Appeals Chamber to state that it “is of the view that it is not necessary to express a view, either by affirmation or by way of rejection, on the Trial Chamber’s definitions of ‘deportation’ and ‘expulsion’”.1 Similarly, I do not agree with the words used earlier in the Judgement: “[T]he Appeals Chamber does not consider that the main [sic!] issue before it is the definitions of these terms ,”2 as well as “The Appeals Chamber is of the view that it is not necessary, as opposed to what has been submitted by the Prosecutor, to define expulsion as an ‘umbrella term that covers acts of forcible displacement, whether internal or cross-border’”.3
4. It is particularly important for the Appeals Chamber to give guidance when dealing with conduct that has previously been classified both under Article 5(i) of the Statute (other inhumane acts described as “forcible transfer”) and under Article 5(d) of the Statute (“deportation”). The former approach was taken in the Krsti c Judgement4 while the latter approach was adopted in Stakic.5 In both Krstic and Stakic the acts of “forcible transfer” and “deportation” respectively were also classified as persecution under Article 5(h) of the Statute. In Blaskic6 and Martinovic,7 forcible transfer of civilians was characterised as an act of persecution only , while in Kupreskic,8 expulsion of civilians was characterised as persecution. In Kupreskic the Trial Chamber stated, inter alia:
In light of the conclusions above, the Trial Chamber finds that the “organised detention and expulsion from Ahmici” of Bosnian Muslim civilians can constitute persecution . This is because these acts qualify as imprisonment, and deportation, which are explicitly mentioned in the Statute under Article 5.9
5. In the case before this Appeals Chamber, the Trial Chamber defined deportation as “[t]he 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”.10 The Trial Chamber went on to state: “Deportation requires the displacement of persons across a national border , to be distinguished from forcible transfer which may take place within national boundaries.”11 However, the Trial Chamber declined to describe forcible transfer in more detail because the criminal conduct was not charged as such in the Indictment.12
6. This brief overview already warrants a clear authoritative opinion by the Appeals Chamber.
7. Moreover, the Prosecution concentrated on the crime of deportation in its Brief and oral arguments, arguing that deportation “should be viewed as an umbrella term that covers acts of forcible displacement, whether internal or cross-border.”13 Notably, the focus of its oral arguments on the seventh ground of appeal was on the “first limb” as follows:
[T]he Trial Chamber erred in law in holding that the acts of forcible displacement charged as persecution require proof that the victims were forcibly displaced across a national border and that deportation is to be distinguished from forcible transfer which may take place within national boundaries.14
Prosecution counsel argued that the terms “deportation” and “forcible transfer” were synonymous,15 and stated:
The Appeals Chamber must seize this opportunity to try and resolve this issue, because even at the trial level, the position is still unclear.16
In my opinion, the Appeals Chamber should have met this challenge in order
– to enable the Prosecution to plead as concretely as possible,
– to allow the Defence to better understand the elements of the charges against the accused and thereby assisting in a proper defence,
– to guide any future judgements or 98 bis decisions,
and in doing so avoiding unnecessary appeals.
9. The Judgement fails to analyse the Trial Chamber’s reasoning in deciding not to convict Krnojelac of persecution committed by acts of “deportation and expulsion ”17, and it fails to explain why the Trial Chamber erred in law. This aspect of the Appeals Judgement is not convincing against what is a consistent and systematic argumentation, albeit incorrect, in the Trial Judgement. Krnojelac is charged in the Indictment with deportation and expulsion (and/or “transfer”18). The Trial Chamber starts by asking the logical question whether deportation was committed , to which the answer is found to be no. Since “forcible transfer” is not pleaded , the Trial Chamber takes the view that it “cannot consider that offence as founding a charge of persecution”.19 It is therefore difficult to see how the Appeals Chamber can reach the conclusion that “forced displacements” occurred, without discussing the correctness of the approach taken by the Trial Chamber.
10. The Statute of the International Criminal Court has a single category of “deportation or forcible transfer of population”20 which is defined as the “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”.21 While this is not the law of this Tribunal, it demonstrates the confusion that could be caused by identifying a new category of “forced displacements” without considering its relationship to deportation, expulsion and forcible transfer.
11. In deciding whether or not persecution was committed by way of the acts alleged, I would favour a systematic approach where the first stage would be to consider whether one of the offences listed under Article 5 of the Statute was committed. Thus, the crime of “deportation” (English version of the Statute) or “expulsion” (misleading French version of the Statute) would need to be discussed and defined, this being a question of lex specialis. If it were concluded that the facts did not support a conviction under deportation/expulsion, then the second stage would be to consider whether an offence of the same gravity as one of the other offences listed in Article 5 had been committed.
12. I agree with the Appeals Chamber’s analysis in paragraphs 218, 221 - 223 and 229 . Already this analysis allows for the term “forced displacement” to be replaced by the term “deportation" in the sense of Article 5 (d) of the Statute.
13. Adopting a grammatical/literal interpretation of the word “deportation” as a first stage whereby the literal meaning of the word and its roots define the limits of its interpretation, d e portation / e x pulsion is “the act or an instance of removing a person to another country; esp., the expulsion or transfer of an alien from a country”.22 Thus, under Roman law, the term deportatio referred to instances where persons were dislocated from one area to another area also under the control of the Roman Empire. A cross-border requirement was consequently not envisaged. Expressed in these terms, the concept of d e portation seems to mean (1) the removal of someone from the territory over which the person removing others exercises (sovereign ) authority or, (2) to remove someone from the territory where the person being removed could receive the “protection” of the authority of that territory. The core aspect of deportation is twofold: (1) to take someone out of the place where he or she was lawfully staying, and (2) to remove that person from the protection of the authority concerned.23
14. The second stage is to determine the meaning of deportation in the specific context in which it is used, having reference to the intention of the authors of the Statute :
Interpretation, as applied to written law, is the art or process of discovering and expounding the intended signification of the language used, that is, the meaning which the authors of the law designed it to convey to others.24
I do not believe that it is necessary to decide whether deportation has the same meaning under the Geneva Conventions and under Article 5 of the Statute. In his report pursuant to Security Council resolution 808, the Secretary-General noted in relation to Article 5 of the Statute that:
Crimes against humanity were first recognized in the Charter and Judgement of the Nürnberg Tribunal, as well as in Law No. 10 of the Control Council for Germany. Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.25
The report continues:
Crimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds. In the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called “ethnic cleansing” and widespread and systematic rape and other forms of sexual assault, including enforced prostitution .26
The Tribunal was established, inter alia, to hold criminally responsible those persons in the former Yugoslavia who had committed “ethnic cleansing” irrespective of the location of particular borders. The main point is that the underlying conduct 27 was already punishable under public international law at the time the acts were committed. This same view was also taken in the aforementioned Trial Chamber decisions28 and is accepted by the Appeals Chamber.29
15. In my view, the actus reus of deportation is forcibly removing or uprooting individuals from the territory and the environment in which they are lawfully present . A fixed destination is not required.
…Article 5(d) of the Statute must be read to encompass forced population displacements both across internationally recognised borders and de facto boundaries, such as constantly changing frontlines, which are not internationally recognised. The crime of deportation in this context is therefore to be 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.30
The question of whether a border is internationally recognised or merely de facto is immaterial. This was also the approach taken by the International Military Tribunal at Nuremberg31 and the District Court of Jerusalem in the case of Attorney General v. Adolf Eichmann32.
16. The mens rea for deportation is the intent to remove the victim, which implies the intention that the victim can or will not return.
17. While I concur with the conclusion of the Appeals Chamber that the acts classified by the Appeals Chamber as forcible displacement amount to persecution, I would define the underlying conduct as deportation. Therefore, the question of the acts being of the same level of gravity as the other crimes listed in Article 5 of the Statute does not arise.
Done in English and French, the English text being authoritative.
____________________
Judge Wolfgang Schomburg
Dated this seventeenth day of September 2003
At The Hague
The Netherlands
[Seal of the Tribunal]