1. In this appeal, counsel for General Krstic told the Appeals Chamber: “We agree with the introductory comments of the Trial Chamber [that the]‘events of the nine days from 10th to 19th July 1995 in Srebrenica defy description in their horror and their implications for humankind’s capacity to revert to acts of brutality under the stresses of conflict.’”1 Recognising that horror, the Trial Chamber said, “in the words of Nuremberg Prosecutor Telford Taylor,” that it was “important that these incredible events be established by clear and public proof, so that no one can ever doubt that they were fact and not fable …”.2 Accordingly, the Trial Chamber took the view that it was “imperative to document these ‘incredible events’ in detail.”3 The documentation does not defeat the expectation.
2. At the end of its task, the Trial Chamber found that Srebrenica was a genocide and that General Krstic (“appellant”) had criminal responsibility for it. The Appeals Chamber agrees with that finding, and I respectfully concur, as I do on many other aspects. However, the Appeals Chamber disagrees with the Trial Chamber as to the level of the appellant’s criminal responsibility. Whereas the Trial Chamber considered that the appellant’s criminal responsibility was that of a “principal perpetrator”4 of genocide, the Appeals Chamber considers that the level should be that of an aider and abettor. I agree with the Trial Chamber.
3. On some aspects of cumulation of convictions I have a doubt and I express this later. But on sentence, I am in agreement with the Appeals Chamber. Thus, on the practical outcome, my position is the same as that of the Appeals Chamber. But, in the circumstances, I should like to explain how I have got there. In order to deal with the central question as to the level of the appellant’s criminal responsibility, it will be necessary to recapitulate the main facts.
4. The President of Republika Srpska was Mr. Radovan Karadzic. He was also the supreme commander of the Bosnian Serb Army (“VRS”). Subject to that control, General Mladic was Commander of all VRS forces. The army was divided into corps. One corps was the Drina Corps. The killings occurred within the area of responsibility of the Drina Corps.
5. The Drina Corps was earlier commanded by General Zivanovic, with the appellant as the Chief of Staff and Deputy Commander – then Colonel, later General-Major, and still later (after these events) Lieutenant Colonel-General. The evidence of Mr. Deronjic (a witness called by the Appeals Chamber) showed that President Karadzic came to have reservations about the efficiency of General Zivanovic. In consequence, President Karadzic replaced General Zivanovic with the appellant. The Trial Chamber found that the appellant became the de facto Commander of the Drina Corps from the evening of 13 July 1995 onwards and the de jure Commander from 15 July 1995 onwards.5
6. The killings occurred in July 1995. One way or another they spanned a period during which the appellant had responsibility at first as Chief of Staff and Deputy Commander of the Drina Corps and later as its Commander. Moreover, the particular position which he held in the military hierarchy is not decisive on the question whether he was a party to a joint criminal enterprise to commit genocide, the charge which is of relevance here; the particular hierarchical position is only relevant in so far as it may assist in determining whether he was in a position to make a significant contribution to the working of the enterprise and whether therefore he was a party to it.
7. The Trial Chamber found that “the Drina Corps Command must have known about the plan to execute the Bosnian Muslim men as of the evening of 13 July 1995.”6 That plan has to be understood against a background which went back in time.
8. On 16 April 1993, the Security Council resolved that “all parties and others treat Srebrenica and its surroundings as a ‘safe area’ that should be free from armed attack or any other hostile act.”7 At the same time, the Security Council created two other protected enclaves, namely, Zepa and Gorazde.8 The VRS was all around; the Bosnian Serbs desired to create a state for themselves and saw the Muslim population of these three places as in the way.
9. In April-May 1993, the commanders of the opposing military forces signed a Srebrenica “safe area” agreement. The Trial Chamber found that “[f]rom the outset, both parties to the conflict violated the ‘safe area’ agreement,”9 but that, “[d]espite these violations of the ‘safe area’ agreement by both sides to the conflict, a two-year period of relative stability followed the establishment of the enclave, although the prevailing conditions for the inhabitants of Srebrenica were far from ideal.”10 Between March 1995 and July 1995 the situation changed.
10. On 8 March 1995, President Karadzic issued a Directive to the VRS concerning the strategy of the VRS forces in the Srebrenica area. As set out in the judgment of the Trial Chamber and as recalled in paragraph 88 of the judgment of the Appeals Chamber, the Directive, known as “Directive No. 7”, specified that the VRS was to -
complete the physical separation of Srebrenica from Zepa as soon as possible, preventing even communication between individuals in the two enclaves. By planned and well- thought out combat operations, create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica.11
11. As indicated by the Trial Chamber in paragraph 28 of its judgment and by the Appeals Chamber in paragraph 89 of its judgment, the Directive called for the blocking of aid convoys, making the Muslim population “dependent on our good will while at the same time avoiding condemnation by the international community and international public opinion.” Careful as was the articulation, that strategy was obviously designed to promote the policy to “create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica.” The first fruits of the policy were noted by the Trial Chamber thus:
Just as envisaged by this decree, by mid 1995, the humanitarian situation of the Bosnian Muslim civilians and military personnel in the enclave was catastrophic. In early July 1995, a series of reports issued by the 28th Division reflected the urgent pleas of the ABiH forces [the opposing army] in the enclave for the humanitarian corridor to be deblocked and, when this failed, the tragedy of civilians dying from starvation.12
The appellant being a senior military officer in the VRS and particularly concerned with Srebrenica, it may be inferred that Directive No. 7 duly came to his notice. Also, it is to be taken that he understood the prescribed object of the stipulated “combat operations.”
12. A little later, on 31 March 1995, the VRS Main Staff issued Directive No. 7. 1. This Directive showed that it was issued “on the basis of Directive No. 7”, which had been previously issued by President Karadzic. According to the Trial Chamber, the new Directive ordered the Drina Corps, inter alia, to conduct “active combat operations … around the enclaves.”13
13. Then, by a letter of 9 July 1995, the Bosnian Serb leadership ordered the VRS to take Srebrenica;14 the Trial Chamber found that the letter “came with instructions to deliver ‘personally’ to General Krstic.”15 A reasonable inference is that the appellant understood that this order was intended to implement the earlier policy as set out in Directive No. 7 and advanced by Directive No. 7.1.
14. As previously mentioned, Mr. Deronjic was called by the Appeals Chamber. He testified, inter alia, to a conversation which he had with the Bosnian Serb leadership on 8 or 9 July 1995. The Appeals Chamber found that “Mr. Deronjic gave some evidence of an intention on the part of the Bosnian Serb leadership prior to 13 July 1995 to kill the Bosnian Muslim civilians in Srebrenica should military operations in that region be successful.”16 The Appeals Chamber gave no details of the conversation or as to the identity of Mr. Deronjic’s interlocutor. It found that Mr. Deronjic’s evidence did not help the prosecution because he “gave no evidence linking Radislav Krstic to a genocidal plan or indicating that Krstic was aware of that intention on the part of the Bosnian Serb leadership.”17
15. In any event, the Appeals Chamber also found that it could not rely on Mr. Deronjic’s testimony, speaking of “discrepancies in the evidence given by” him and of “ambiguities surrounding some of the statements he made.” These “discrepancies” and “ambiguities ” have not been particularized. The witness was speaking – and he was the only one to do so - of the origins of a policy which was of importance to the case. With respect, I am not persuaded that a basis has been satisfactorily laid for excluding the substance of his testimony on that point. His testimony was accepted by the Appeals Chamber on a matter favouring the appellant, as shown in paragraph 119 of its judgment and paragraph 25 below. So it is not the case that Mr. Deronjic’s testimony was wholly discredited. A court may of course accept evidence in part and reject it in part. But I am without a basis for sharing the Appeals Chamber’s conclusion that Mr. Deronjic’s testimony was to be rejected on a point of significance.
16. The Bosnian Serb leadership indicated to Mr. Deronjic that it would communicate further through a messenger. A messenger, in the person of Colonel Beara, duly appeared on 12 July 1995; he was instrumental in commencing the killings.
17. The letter written by General Tolmir on 9 July 1995 (already referred to) conveyed a declaration by the Bosnian Serb leadership that the Geneva Conventions were to be adhered to. However, Mr. Deronjic testified that he informed the leadership on more than one occasion that killings were going on.18 There is no evidence of any objection; it may be inferred that there was none. That must be taken into account in estimating the purpose of the declaration issued by the leadership and conveyed in General Tolmir’s letter. As was indicated in Directive No. 7, it was important to avoid “the condemnation of the international community and international public opinion.”
18. Consistent with the central policy as set out in Directive No. 7 is General Mladic’s statement at the second of three meetings held at Hotel Fontana on 11-12 July 1995 that he wanted a clear position whether the Bosnian Muslims in Srebrenica wanted to “survive, stay, or disappear.”19 So too with his ultimatum at that meeting to Mr Mandzic, “an unofficial Bosnian Muslim representative who was plucked from the crowd at Potocari,”20 that the latter should “bring people who can secure the surrender of weapons and save your people from destruction.”21 The appellant was at that meeting. At the third meeting, he was sitting at the side of General Mladic when the latter said that the Srebrenica Muslims “can either survive or disappear.”22 With apparent acceptance, the Trial Chamber noted that two witnesses “testified before the Trial Chamber that the clear message conveyed by General Mladic in this meeting was that the Bosnian Muslim refugees could only survive by leaving Srebrenica.”23
19. The Appeals Chamber does not seem to be taking the same position as the Trial Chamber on whether the appellant appreciated the import of what General Mladic was saying. Referring to General Mladic’s announcement “that the survival of the population depended upon the complete surrender of the ABiH” and noting the presence at the meetings of UNPROFOR leaders and foreign media, the Appeals Chamber says that there “was no evidence to suggest that at this time Radislav Krstic knew about the intent on the part of General Mladic to execute the Bosnian Muslim civilians who were to be transferred.”24 So, General Mladic’s intent to execute was not in doubt; the question was whether the appellant knew of it.
20. Paragraph 341 of the judgment of the Trial Chamber, to which reference is made in the judgment of the Appeals Chamber, referred to the hearing of the death cries of a slaughtered pig (offensive to Bosnian Muslims) and to the placing of a broken signboard from the Srebrenica Town Hall in front of Mr Mandzic at the second Hotel Fontana meeting. The Trial Chamber stated that these things “could hardly be ignored by anyone at the meeting. Most importantly, General Krstic was present when General Mladic announced that the survival of the Bosnian Muslim population was linked to the complete surrender of the ABiH.” It followed that, if the ABiH did not surrender, the Bosnian Muslim population would not survive. The Trial Chamber correctly added that, as a result of the Hotel Fontana meetings, the appellant “was put on notice that the survival of the Bosnian Muslim population was in question following the take-over of Srebrenica.”25
21. The submission of counsel for the appellant to the Appeals Chamber was that General Mladic “said words to the effect, you know, ‘You can either face death or you can go.’”26 Later counsel added : “But at some point I think the Trial Chamber – again, we – we have to accept this. We wish we didn’t, but I think we do under the Rules of the Chamber and under the Rules of this Tribunal - when General Mladic started to speak, he made it unfortunately clear that there was no real true choice for the civilians to leave the area.”27 The appellant was present when General Mladic spoke; he was General Mladic’s lieutenant so far as concerned Srebrenica and the surrounding area. It is unarguable, particularly against the combat policy set out in Directive No. 7, that the appellant did not know what was afoot.
22. Without doubt, General Mladic was a forceful figure. However, in my view this does not affect the question whether the appellant knew of the intention of his immediate commander, namely, General Mladic. Moreover, as the Trial Chamber found, there were numerous opportunities for oral contact between General Mladic and the appellant, so that, as the Trial Chamber said, “If General Mladic knew about the killings, it would be natural for General Krstic to know as well.”28 This is not fanciful speculation or guilty by association, but a reasonable inference which the Trial Chamber was entitled to draw from the material before it. The appellant knew of the intent to kill and, in the circumstances, to commit genocide.
23. Though of the view that at the time of the Hotel Fontana meetings the appellant did not know of the intent to execute,29 the Appeals Chamber proceeds on view that later – on 15 July 199530 - the appellant did come to know of that intent while the executions were in progress. However, contrary to the finding of the Trial Chamber, the Appeals Chamber holds that the appellant did not share that intent. I consider that the Trial Chamber was right in holding that the appellant both knew of and shared the intent to kill and that he did so before 15 July 1995. I shall refer to four pieces of evidence.
24. The first piece of evidence relates to the case of Colonel Borovcanin. Admittedly, the colonel’s troops had carried out a mass murder at Kravica Farm at around 1800 hours on 13 July 1995. Some 1000 to 1,500 unarmed civilian prisoners were in a warehouse ; they were practically all killed;31 there were few survivors.32 The evidence shows that some two and a half hours later, at 2040 hours, there was a telephone conversation between Colonel Borovcanin and the appellant. In the conversation, the appellant asked, “How’s it going?” Borovcanin replied, “It’s going well”. The appellant responded, “Don’t tell me you have problems.” To which the answer was, “I don’t, I don’t.”33 The conversation ended with the appellant saying, “OK, we’ll be in touch.”
25. The Appeals Chamber states that the “intercepted conversation between Colonel Borovcanin and Radislav Krstic is too oblique to support an inference that the conversation was a report by Colonel Borovcanin about a successfully completed execution of Muslims at the Kravica Farm on 13 July.”34 In support of its view that the conversation was “too oblique”, the Appeals Chamber refers to the evidence of Mr. Deronjic “that the execution at Kravica Farm was not planned, but was instead a spontaneous reprisal following a clash between the Muslim prisoners and the guards. If so, then the initiative for the massacre could have resided with the camp authorities rather than with the higher military commanders such as Krstic.”35
26. But the question is not whether the appellant took the “initiative for the massacre ”, but whether he shared the intent with which the “massacre” was committed. However the event may be explained, it cannot be justified: the Appeals Chamber itself calls it a “massacre”. It is not conceivable that Borovcanin was not reporting to the appellant about so momentous an event. It may be inferred from the record of the conversation that the appellant did not object. Even if the evidence does not go all the way to establish that the appellant was himself a party to the massacre, it strongly suggests that the massacre accorded with his understanding of a general policy to execute. In other words, he shared the policy.
27. The second piece of evidence is more to the point. Colonel Beara was the messenger from the Bosnian Serb leadership. The Appeals Chamber refers to him as having been “closely involved in the killings.”36 Indeed, he was principally instrumental in the implementation of the execution policy. An intercept of 15 July 1995 recorded a conversation between him and the appellant. The intercept read as follows:37
B: General, FURTULA didn’t carry out the boss’s order.
K: Listen, he ordered him to lead out a tank, not a train.
B: But I need 30 men just like it was ordered.
K: Take them from NASTIC or BLAGOJEVIC, I can’t pull anybody out of here for you.
B: But I don’t have any here. I need them today and I’ll give them back tonight. Krle, you have to understand. I can’t explain it like this to you.
K: I’ll disturb everything on this axis if I pull them out, and a lot depends on him.
B: I can’t do anything without 15 to 30 men with Boban INDIC.
K: Ljubo, this/line/is not secure.
B: I know, I know.
K: I’ll see what I can do, but I’ll disturb a lot. Check down with NASTIC and BLAGOJEVIC
B: But I don’t have any. If I did, I wouldn’t still be asking for the 3rd day.
K: Check with BLAGOJEVIC, take his Red Berets.
B: They’re not there, only 4 of them are still there. They took off, fuck ‘em, they’re not there any more.
K: I’ll see what I can do.
B: Check it out and have them go to Drago’s.
K: I can’t guarantee anything.
B: Krle, I don’t know what to do anymore.
K: Ljubo, then take those MUP/Ministry of Interior/guys from up there.
B: No, they won’t do anything, I talked to them. There’s no other solution but for those 15 to 30 men with INDIC. That were supposed to arrive on the 13th but didn’t.
K: Ljubo, you have to understand me, you guys fucked me up so much.
B: I understand, but you have to understand me too, had this been done then, we wouldn’t be arguing over it now.
K: Fuck it, now I’ll be the one to blame.
B: I don’t know what to do. I mean it, Krle. There are still 3,500 parcels that I have to distribute and I have no solution.
K: Fuck it, I’ll see what I can do.
28. The meaning of the intercepted conversation is clear. In the disingenuous coded language used, the reference to “3,500 parcels” was a reference to 3,500 captured civilians. The reference to “distribute” was a reference to a programme to kill them. The Trial Chamber found that. With respect, the Appeals Chamber is not persuasive when it says, in paragraph 76 of its judgment, that that finding is unsupported by anything other than the argument of the prosecution. It is difficult to imagine much scope for evidence on the point; the matter is pre-eminently one of interpretation involving argument. The Appeals Chamber has not been able to suggest an alternative meaning.
29. What was sought was not a fighting battalion, but only about 15 to 30 men, and then only for some hours. It is not in dispute that the appellant knew that he was being asked to provide executioners. And the appellant was willing to provide them through his subordinates38 Nastic and Blagojevic, if they had spare capacity. So the Trial Chamber correctly found “that, at the time this conversation took place on 15 July 1995, General Krstic knew the executions were occurring and that he undertook to assist Colonel Beara in obtaining the necessary personnel to carry them out.”39
30. Referring to the conversation, counsel for the appellant accepted before the Appeals Chamber that the appellant “did know about the killings”, but he contended that the appellant “really never was part of the plan to kill the men.”40 The Appeals Chamber, in substance, agrees with the submission of counsel for the appellant. It considers that the appellant’s “statements to Colonel Beara that he ‘will see what he can do’ cannot support the weight of reliance the Trial Chamber placed upon it. Rather than a firm promise of help, the statements could have been a refusal to commit, an effort by Krstic to end the conversation without saying a firm ‘no’ but also without assuming an unambiguous obligation to help.”41 The Appeals Chamber adds that “the fact that Krstic requested that men be taken from his subordinates may support a finding of knowledge that executions of Bosnian Muslims were taking place, but it cannot establish that Radislav Krstic shared the intent to commit genocide.”42 There are two difficulties with these views.
31. First, before the Trial Chamber the appellant denied that this conversation ever took place;43 by contrast, his attack on appeal was directed to the meaning of the conversation, his contention, as the Appeals Chamber observed, being that his statements were meant as a discreet refusal of the assistance sought.44 But the implication of the new contention is that he now accepts that the conversation did take place. The denial had been made precisely because the appellant correctly recognised the evidential significance of the conversation. Faced with the difficulty of denying the undeniable, namely, that the conversation took place, the appellant has changed tactic – he now accepts that the conversation took place but seeks to place an exculpatory interpretation on it.
32. Second, before concerning itself with the appellant’s later words – “I’ll see what I can do” - the Appeals Chamber might pause a little more over his earlier words, “Take them from Nastic or Blagojevic, I can’t pull anybody out of here for you.” Then there are his subsequent words, “Check with BLAGOJEVIC, take his Red Berets.” Those words show that, if the men had been available from the appellant’s “subordinates”45 (Nastic and Blagojevic ), they would in fact have been assigned by the appellant to help out with the executions. It happened that the men were not available from the subordinates, but of this the appellant himself did not know. That was the only reason why the men were not used as executioners. Thus, the appellant’s state of mind was one of readiness to provide some of the actual executioners. To prove that, it is not necessary to show that the men were in fact available from the subordinates whom the appellant indicated or that they actually stood in the firing line.
33. An undertaking to provide executioners was not merely the provision of substantial assistance in the carrying out of genocide by another person, if that other person proceeded to realize his known intent to perpetrate genocide, so as to make the person providing the executioners liable only as an aider and abettor: it signified a sharing of the intent of that other person to commit genocide, and not mere knowledge of that intent. Accordingly, such an undertaking amounted to evidence of participation in the crime of genocide so as to make the genocide a crime committed by the person undertaking to provide executioners.
34. The third piece of evidence concerns the appellant’s admitted role in organising the transfer of women, children and the elderly by bus out of Srebrenica. In the words of his counsel, “There was unchallenged evidence that General Krstic had organised the transfer of women, children and the elderly from the Srebrenica area so that they would not be affected by the coming holocaust.”46 Thus, according to his counsel, the appellant recognised that a “coming holocaust ” awaited those who had not been transferred. The transfer and the holocaust combined to constitute one single act of genocide. The Appeals Chamber saw this when it said :47
The decision by Bosnian Serb forces to transfer the women, children and elderly within their control to other areas of Muslim-controlled Bosnia could be consistent with the Defence argument. This evidence, however, is also susceptible of an alternative interpretation. As the Trial Chamber explained, forcible transfer could be an additional means by which to ensure the physical destruction of the Bosnian Muslim community in Srebrenica. The transfer completed the removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the residual possibility that the Muslim community in the area could reconstitute itself. The decision not to kill the women or children may be explained by the Bosnian Serbs’ sensitivity to public opinion. In contrast to the killing of the captured military men, such an action could not easily be kept secret, or disguised as a military operation, and so carried an increased risk of attracting international censure.
The Appeals Chamber added:48
The Trial Chamber – as the best assessor of the evidence presented at trial – was entitled to conclude that the evidence of the transfer supported its finding that members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica. The fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff. The genocidal intent may be inferred, among other facts, from evidence of “other culpable acts systematically directed against the same group.”
35. Thus, standing alone, forcible transfer is not genocide. But in this case the transfer did not stand alone, and that indeed is the basis on which the Appeals Chamber rejected the defence argument that it showed that there was no genocide. It was part – an integral part – of one single scheme to commit genocide, involving killings, forcible transfer and destruction of homes. In particular, it showed that the intent with which the killings were done was indeed to destroy the Srebrenica part of the Bosnian Muslim group. In my view, the judgment of the Appeals Chamber has to be understood as affirming that, by taking on the role of chief executor of the policy of forcible transfer - an inseparable element of the genocide - the appellant shared the intent of the Main Staff to commit the crime of genocide.
36. The indictment (in paragraph 24.4 relating to counts 1 and 2 concerning genocide and complicity to commit genocide respectively) did aver that the “wide-scale and organized killing of Bosnian men … included49 [the fact that the]… VRS military personnel, under the command of Radislav Krstic, transported the Bosnian women and children, who had been separated from male members of their families in Potocari to an area near to Tisca village. Most of the Bosnian women and children driven to Tisca were permitted to cross into Bosnian Muslim territory.” Thus, it was the contention of the prosecution that the “wide-scale and organized killing of Bosnian men … included” the transportation of women and children. That contention was duly notified by the prosecution to the appellant in the text of the indictment; the contention was proved.
37. The Appeals Chamber accepts that the appellant had knowledge of the use of personnel and resources under his command for the purposes of the genocide.50 It mentioned the use of Drina Corps personnel to escort prisoners to execution sites, the use of Zvornik Brigade equipment for burial of victims, the use of Drina Corps fuel for the transport of prisoners to execution sites, the use of units of the Krajina Brigade (operating under the command of the Zvornik Brigade) as executioners.51 All these things were under the appellant’s control. The Main Staff could call upon these resources, but the appellant knew that the Main Staff also depended on his cooperation.52 As the Appeals Chamber observed, the appellant “knew that by allowing Drina Corps resources to be used he was making a substantial contribution to the execution of the Bosnian Muslim prisoners,”53 and “permitted the Main Staff to use personnel and resources under his command to facilitate them.”54
38. Referring to these matters, the Appeals Chamber states that the “Trial Chamber inferred the genocidal intent of the accused from his knowledge of the executions and his knowledge of the use of personnel and resources under his command to assist in those executions. However, knowledge on the part of Radislav Krstic, without more, is insufficient to support the further inference of genocidal intent on his part.”55 The line between knowledge of intent and a sharing of intent can be a subtle one. It turns on an appreciation of the evidence. In accordance with settled principles regulating the appeal process, the appreciation should be left to the Trial Chamber – even in the case of a stringent test. A stringent test does not empower the Appeals Chamber to step in where otherwise it could not. This is so except in cases of error - often qualified as having to be clear. I am not able to see any error here.
39. Having agreed with the Trial Chamber in rejecting the appellant’s claim that there was a parallel line of authority from which he was totally excluded, having recognized that the personnel and resources in question were under the appellant’s command, having acknowledged that the appellant knew that his personnel and resources were being used to carry out the executions, having spoken of the appellant “allowing ” his resources to be so used and of such use being “permitted” by him, the Appeals Chamber was not in a good position to reject the Trial Chamber’s finding that the appellant not only had knowledge of the executions but that he also shared the intent of the executions.
40. Counsel for the appellant conceded that “the Trial Chamber was warranted in finding that everything from that point on (the second Hotel Fontana meeting on 11 July 1995( constituted a joint criminal enterprise, at least in terms of who participated to deport the civilians.”56 The concession was rightly made, but I am not persuaded that it can be limited to deportation. There is no reason to disagree with the Trial Chamber in finding “beyond reasonable doubt that General Krstic participated in a joint criminal enterprise 57 to kill the Bosnian Muslim military -aged men from Srebrenica from the evening of 13 July 1995 onward.”58 Having shared the intent, that fixed him with criminal responsibility for genocide as a perpetrator, and the Trial Chamber so found. By contrast, the Appeals Chamber considers that his level of criminal responsibility was that of an aider and abettor. To this difference of opinion I shall return.
41. Meanwhile, it is proposed to address a submission by counsel for the appellant that, in law, there was no genocide. The challenge turns on the Genocide Convention of 1948, which, it is agreed, has the status of customary international law. The provisions of articles II and III of the Convention appear in paragraphs 2 and 3 respectively of article 4 of the Statute, which reads as follows:
Article 4
Genocide1. 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.
42. On the basis of these provisions, three questions have been raised. They have been considered in the judgment of the Appeals Chamber. I agree with the outcome of the judgment on the points in question, but I should like to give my views.
43. The first question was raised by counsel for the appellant under the rubric “part of a part.”59 I understand counsel’s argument this way: The Trial Chamber found that the “group” for genocide purposes was the Bosnian Muslims, and that a “part” of that group was represented by the Bosnian Muslim community of Srebrenica.60 Having so found, the Trial Chamber then –
measured the killing of military age men against the Bosnian Muslim community at Srebrenica and found it to be substantial. But, in doing so, it incorrectly diluted the genocide formula by measuring a part (military age men) against another part (of Srebrenica) and finding it substantial. The Trial Chamber never employed the correct formula of measuring the part intended to be destroyed (military age men of Srebrenica) against the group (Bosnian Muslims).61
Thus, counsel for the appellant submits that the task of the Trial Chamber was to determine whether the men killed constituted a “part” of the Bosnian Muslim group as a whole and that, in doing so, it used the wrong yardstick of measurement.
44. I respectfully agree with the Appeals Chamber that the “Defence misunderstands the Trial Chamber’s analysis.”62 The Trial Chamber found – and this has not been challenged – that the Srebrenica Muslims were “part” of the Bosnian Muslim group. Some of them were killed. The question then was whether those who were killed were killed with intent to destroy the Srebrenica “part” of the group. The Trial Chamber answered the question in the affirmative, using the killings, together with certain other matters, as evidence of that intent. Certainly, those who were killed belonged to the Srebrenica part of the Bosnian Muslim group, but no question really arose as to whether they constituted “part” of any group within the meaning of the chapeau of article 4(2) of the Statute; it was unnecessary to consider any such question. Accordingly also, no question arose as to the correct yardstick to be used to determine whether those killed constituted a “part” of any group.
45. Second, counsel for the appellant submits that an intent to destroy was inconsistent with the fact that women and children (including young males) were transported by the attacking Bosnian Serb forces to Muslim-held territory. Underlying the submission is the proposition, stressed by counsel, that the intent with which an act listed in article 4(2) of the Statute (“listed act”) is done always has to be to cause the physical or biological destruction of the group in whole or in part, so that an inconsistency arises if the intent is in fact to allow a substantial number of members of the group to survive.
46. The Appeals Chamber accepted the fundamental contention of counsel for the appellant that the intent had to be to destroy physically or biologically63 the Srebrenica part of the Bosnian Muslim group.64 That being so, an intent to allow a substantial number of Srebrenican Muslims to survive meant that there was no intent to destroy the Srebrenica part of the group physically. As the Appeals Chamber noted, “The decision by Bosnian Serb forces to transfer the women, children and elderly within their control to other areas of Muslim-controlled Bosnia could be consistent with the Defence argument.”65 Therefore, the appeal would have to be allowed if the transfer was unqualified. But, for reasons showing that it was materially qualified, the appeal on the point was dismissed.
47. I agree with the dismissal. If the proposition of counsel for the appellant is right, then, for the reasons given by the Trial Chamber and by the Appeals Chamber, I consider that the alleged requirement for proof of intent to destroy the group physically or biologically was met by the disastrous consequences for the family structures on which the Srebrenica part of the Bosnian Muslim group was based. The Trial Chamber was correct in finding that the Bosnian Serb forces knew that their activities “would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.”66 But I do not think the proposition of counsel for the appellant is right. These are my reasons.
48. The proposition that the intended destruction must always be physical or biological is supported by much in the literature. However, the proposition overlooks a distinction between the nature of the listed “acts” and the “intent” with which they are done. From their nature, the listed (or initial) acts must indeed take a physical or biological form, but the accompanying intent, by those acts, to destroy the group in whole or in part need not always lead to a destruction of the same character.67 There are exceptions. Article 4(2)(c) of the Statute speaks of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,” and an intent to cause physical or biological destruction of the group in whole or in part is also implied in the case of article 4(2)(d) proscribing “measures intended to prevent births within the group.” However, a contrario, it would seem that, in other cases, the Statute itself does not require an intent to cause physical or biological destruction of the group in whole or in part.
49. The a contrario position applies in relation to article 4(2)(a) of the Statute concerned with “killing members of the group,” which was involved in this case. Of course those who were killed were destroyed physically. But that is not the question. The question is whether, to prove genocide, it was necessary to show that the intent with which they were killed was to cause the physical or biological destruction of the Srebrenica part of the Bosnian Muslim group. The stress placed in the literature on the need for physical or biological destruction implies, correctly, that a group can be destroyed in non-physical or non-biological ways. It is not apparent why an intent to destroy a group in a non-physical or non-biological way should be outside the ordinary reach of the Convention on which the Statute is based, provided that that intent attached to a listed act, this being of a physical or biological nature.
50. Counsel for the appellant correctly recognised that the attack is directed to the existence of the group; in his words, “the principle (is( that genocide is not a crime against individuals; it is a crime against human groups.”68 It is the group which is protected. A group is constituted by characteristics – often intangible - binding together a collection of people as a social unit. If those characteristics have been destroyed in pursuance of the intent with which a listed act of a physical or biological nature was done, it is not convincing to say that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological.
51. Counsel for the appellant understandably relies on views expressed by the International Law Commission in 1991. Referring to the standard formula concerning “intent to destroy”, the Commission stated that “the word ‘destruction’ … must be taken only in its material sense, its physical or biological sense.”69 The focus there was on whether the term “genocide”, as used in the Convention, included cultural genocide, the generally accepted answer being in the negative. If that does not account for the view expressed by the Commission, then, with respect, that view is not correct. The intent certainly has to be to destroy, but, except for the listed act, there is no reason why the destruction must always be physical or biological.
52. The travaux préparatoires relating to the Genocide Convention are of course valuable; they have been and will be consulted with profit. But I am not satisfied that there is anything in them which is inconsistent with this interpretation of the Convention. However, if there is an inconsistency, the interpretation of the final text of the Convention is too clear to be set aside by the travaux préparatoires.70 On settled principles of construction, there is no need to consult this material, however interesting it may be.
53. Out of abundant caution, I would make two things clear. First, the question is whether there was the required intent, not whether the intent was in fact realised. Second, the foregoing is not an argument for the recognition of cultural genocide. It is established that the mere destruction of the culture of a group is not genocide : none of the methods listed in article 4(2) of the Statute need be employed. But there is also need for care. The destruction of culture may serve evidentially to confirm an intent, to be gathered from other circumstances, to destroy the group as such. In this case, the razing of the principal mosque confirms an intent to destroy the Srebrenica part of the Bosnian Muslim group.71
54. In sum, I consider that the Statute is to be read to mean that, provided that there is a listed act (this being physical or biological), the intent to destroy the group as a group is capable of being proved by evidence of an intent to cause the non-physical destruction of the group in whole or in part, except in particular cases in which physical destruction is required by the Statute. This is not an excepted case. Consequently, the fact that, in this case, women, children and the elderly were allowed to survive did not signify an intent which was at variance with that which is required.
55. Third, it was contended for the appellant that what happened in Srebrenica was a displacement and not a genocide. Displacement, in the sense of compulsory relocation, is a common feature of wars. According to one commentator, displacement is not genocide even if the consequence is dissolution of the group,72 a proposition on which I reserve my opinion where it is proven that, there being an initial listed act, the deliberate object of the relocation is to accomplish such a dissolution.
56. In support of his submission that displacement is not genocide, counsel for the appellant cited the fact that displacement is not listed in article 4(2) of the Statute as one of the means of perpetrating genocide, and he drew a contrast with article 5(d) which specifically sets out deportation as a crime against humanity.73 There is also the fact that the only case of transfer which amounts to genocide, if there is the required intent, is a case of “forcibly transferring children of the group to another group” within the meaning of article 4(2)(e) of the Statute.
57. No doubt, mere displacement does not amount to genocide. But, in this case, there was more than mere displacement. The killings, together with a determined effort to capture others for killing, the forced transportation or exile of the remaining population, and the destruction of homes and places of worship, constituted a single operation which was executed with intent to destroy a group in whole or in part within the meaning of the chapeau to paragraph 2 of article 4 of the Statute.74 It was this combination of factors to which the Trial Chamber referred when it stated in paragraph 595 of its judgment that the “Bosnian Serb forces knew, by the time they decided to kill all of the military-aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.” It was likewise a combination of factors which led the German Supreme Court in a 1999 case to hold that there was no mere displacement but genocide in that case.75
58. In support of his interesting submission that Srebrenica was not a genocide, counsel for the appellant contended that, while “calling the atrocities at Srebrenica genocide would be of some short term comfort to the families of the victims, and a politically correct thing to do at this moment in time, this Court’s judgment must be written for the ages.”76 Counsel is right in the important sense that the duty of the Tribunal is to adjudicate on the basis of legal principles; it is not its mission to decree on the convenience of political considerations. Yet, however vigorous the reminder, the Appeals Chamber does not need it. In this case, guided by what it finds to be the applicable legal norms, it found that Srebrenica was a genocide. I agree with the finding.
59. I agree with the Appeals Chamber that, under customary international law, there is a crime of aiding and abetting the commission of genocide and that it has power to substitute a conviction for aiding and abetting genocide for a conviction by the Trial Chamber for committing genocide as a perpetrator.
60. An argument is that the reference to a “person who … aided and abetted …” in article 7(1) of the Statute does not authorize a prosecution for aiding and abetting genocide. The asserted reason is that genocide and any crime related to genocide are exclusively regulated by article 4 of the Statute and that that article does not comprehend a crime of aiding and abetting genocide. More particularly, it is said that article 4 requires proof that an accused had the specific genocidal intent if he is charged with any of the crimes listed in that article including a crime of “complicity in genocide” as mentioned in article 4(3)(e), and that aiding and abetting does not require such proof, it being only necessary to prove that an accused charged with aiding and abetting had knowledge of the intent. Therefore, a crime of aiding and abetting genocide would add to the genocidal crimes authorized by article 4, relevant provisions of which correspond to articles II and III of the Genocide Convention of 1948, which in turn reflect customary international law. That would be in breach of the well understood prohibition against adding to crimes which existed under customary international law.
61. It will be convenient to pause for the purpose of dealing with an initial question as to whether a person charged with aiding and abetting the commission of a crime of specific intent has to be shown to have had that intent, as distinguished from merely knowing of it. The judgment of the Appeals Chamber indicates that an affirmative answer is given to the question in most states of the United States, but that a negative answer is given in other jurisdictions (including a minority of states in the United States).77 I understand the Appeals Chamber to be taking the view that it is the latter position which is relevant to this case, that is to say, that proof of possession of specific intent is not required for aiding and abetting the commission of a crime of specific intent, mere knowledge of the intent being enough. It is on this basis, with which I agree, that the inquiry will proceed.
62. As to the main question, it seems to me that either aiding and abetting is part of complicity in genocide as the latter is referred to in article 4(3)(e) of the Statute or it is not. If it is not part of complicity in genocide, it follows that, so far as the operation of the Convention is concerned, it cannot be part of customary international law. To make an act punishable as aiding and abetting under article 7(1) of the Statute when it is not punishable as complicity in genocide under article 4(3)(e) is therefore to add impermissibly to customary international law.
63. On the other hand, if aiding and abetting is part of complicity in genocide, it is part of customary international law by reason of complicity in genocide being provided for in the Genocide Convention in 1948. In that case, the reference to aiding and abetting in article 7(1)of the Statute merely reproduces customary international law as contained in the reference to complicity in genocide as mentioned in article 4(3)(e) of the Statute. So neither provision is in breach of the prohibition against adding to customary international law.
64. But is aiding and abetting part of complicity in genocide? I see nothing in the text of the Genocide Convention or in the relevant travaux préparatoires which is inconsistent with the ordinary meaning of “complicity in genocide” as including aiding and abetting. As has been noticed by the Appeals Chamber, the case law of the Tribunal shows that the cognate term “accomplice” has different meanings depending on the context; the term may refer to a co-perpetrator or to an aider and abettor.78 In my view, the reference in article 4(3)(e) of the Statute to “complicity in genocide” can and does include aiding and abetting.
65. If the Statute falls to be construed to mean that it has incorporated aiding and abetting as part of complicity in genocide, it appears to me that it has also imported the general law relating to aiding and abetting, in accordance with which, as has been discussed, it has to be shown that the aider and abettor had knowledge of the intent to commit genocide, not that he shared that intent.
66. This does not mean that the act of the aider and abettor does not have to be shown to be intentional. Intent must always be proved, but the intent of the perpetrator of genocide is not the same as the intent of the aider and abettor. The perpetrator’s intent is to commit genocide. The intent of the aider and abettor is not to commit genocide; his intent is to provide the means by which the perpetrator, if he wishes, can realise his own intent to commit genocide.79 Nor does it follow that proof of genocidal intent is in no sense required. But what has to be shown is that the perpetrator had that intent; it does not have to be shown that the aider and abettor himself had that intent. In the case of the aider and abettor what has to be shown is that he had knowledge that the perpetrator had that intent.
67. The framers of the Genocide Convention would not have learnt from their recent past if, as the opposing argument implies, the Convention failed to criminalise a case in which commercial suppliers sold a deadly gas knowing of the intent of the purchaser to use his purchase for the purpose of liquidating a national, ethnical, racial or religious group but not themselves sharing the purchaser’s intent.80 In my opinion, the Genocide Convention did not make that mistake; the case would be caught by the concept of aiding and abetting, which would in turn be caught by the reference in the Convention to “complicity in genocide.”
68. This conclusion is in keeping with the case law of this Tribunal and of the ICTR to the effect that “complicity in genocide”, as mentioned in article 4(3)(e ) of the ICTY Statute (article 2(3)(e) of the ICTR Statute(, includes aiding and abetting as referred to in article 7(1) of the ICTY Statute (article 6(1) of the ICTR Statute(. The case law is correct: aiding and abetting genocide does not represent an addition to crimes known to customary international law but has always formed part of that law.
69. While I agree with the Appeals Chamber that it has competence to impose a conviction for aiding and abetting the commission of genocide, I am not able to support its decision that such a conviction should be imposed in this case.
70. There are many things to be said in favour of the appellant. The Trial Chamber correctly remarked that he “found himself squarely in the middle of one of the most heinous wartime acts committed in Europe since the Second World War.”81 He appeared to the Trial Chamber “as a reserved and serious career officer who is unlikely to have ever instigated a plan such as the one devised for the mass execution of Bosnian Muslim men, following the take-over of Srebrenica in July 1995.”82 Speaking on 12 July 1995 of the women and children being transported out of Potocari, he warned with impeccable military propriety that “not a hair must be touched on their heads.”83 In an interview given on the same day, he emphasised that the civilians would be treated properly and transported wherever they wanted to go.84 In the words of the Trial Chamber, “the security unit of the Main Staff was heavily involved in carrying out the crimes and there are indications on the Trial Record that the Drina Corps was not always consulted about what was going on within its zone of responsibility.”85 And the appellant did at the same time have to concentrate on another task, namely, the capturing of the UN protected enclave of Zepa.
71. The question is whether these matters sound in mitigation of guilt as a co-perpetrator or whether they go to prove that the appellant’s guilt was that only of an aider and abettor. The difference between committing a crime as a co-perpetrator in a joint criminal enterprise and aiding and abetting its commission was explained in Tadic.86 In “the case of aiding and abetting, the requisite element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal. By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal purpose were likely to be committed )…”.
72. On the basis of this distinction, it appears to me that the Trial Chamber correctly found that the appellant not merely knew of an intent to commit genocide but that he also shared that intent and that he was therefore guilty as a co-perpetrator of genocide,87 matters in his favour being taken into account in sentencing. The position was rightly understood by the Trial Chamber when it stated as follows in paragraph 724 of its judgment, concerned with sentencing:
The Trial Chamber’s overall assessment is that General Krstic is a professional soldier who willingly participated in the forcible transfer of all women, children and elderly from Srebrenica, but would not likely, on his own, have embarked on a genocidal venture; however, he allowed himself, as he assumed command responsibility for the Drina Corps, to be drawn into the heinous scheme and to sanction the use of Corps assets to assist with the genocide…. Afterwards, as word of the executions filtered in, he kept silent and even expressed sentiments lionising the Bosnian Serb campaign in Srebrenica. … His story is one of a respected professional soldier who could not balk his superiors’ insane desire to forever rid the Srebrenica area of Muslim civilians, and who, finally, participated in the unlawful realisation of this hideous design.
73. Subject to weight, it appears to me that that approach was a fair one. It took account of the professionalism of the appellant as a career military officer and of the fact that, by himself, he would not commit the crimes into which he allowed himself to be led. These are matters which go to mitigate his guilt as a co-perpetrator of genocide and not to reduce his criminal responsibility to that of an aider and abettor. To adopt and adapt the words of Tadic,88 to hold him liable only as an aider and abettor would be to understate the degree of his criminal responsibility.
74. It seems to me that there are problems in reaching the conclusion that the appellant’s guilt was that of an aider and abettor. The Appeals Chamber accepts that Drina Corps personnel and resources were used for the killings.89 Explaining this, it said that the appellant “knew that by allowing Drina Corps resources to be used he was making a substantial contribution to the execution of the Bosnian Muslim prisoners. Although the evidence suggests that Radislav Krstic was not a supporter of that plan, as Commander of the Drina Corps he did nothing to prevent the Main Staff from calling upon Drina Corps resources, and he permitted that employment of those resources.”90
75. A substantial contribution for the purpose of aiding and abetting is a contribution that assists the perpetrator to commit his crime if he wishes to do so. That must be distinguished from participating in the commission of the crime itself. If, as I think, by “allowing,” or by reason of the fact that he “permitted,” the use of Drina Corps personnel and resources for the executions, the appellant authorized that use for that purpose, I would think that he was participating in the commission of the crime itself and not merely enabling the perpetrator to commit the crime if he so wished. He was therefore correctly adjudged to be guilty of genocide.
76. Finally, there is a question as to whether convictions can be cumulated where criminality arises from the same conduct. I respectfully agree with the Appeals Chamber in allowing the appeal by the prosecution against the decision of the Trial Chamber that a conviction for extermination cannot be cumulated with a conviction for genocide and that a conviction for persecution cannot be cumulated with a conviction for genocide.
77. I only note that, without discussion, the Appeals Chamber has not recorded corresponding convictions, an omission not reconcilable with controlling jurisprudence. The question has not been whether the Appeals Chamber could reverse an acquittal and replace it by a conviction, but whether there is a right of appeal from such a conviction and, if so, to which body. 91 The second part of the question does not control the first. Either an appellant has a right of appeal from a conviction by the Appeals Chamber or he has not. If he has such a right of appeal, he can exercise his right of appeal to whatever may be the correct forum. If he has no such right of appeal, it does not follow that there can be no conviction. That is not my reading of the Statute and applicable human rights instruments.92
78. Suppose that an accused has been acquitted on all charges by the Trial Chamber, but that the acquittals are all reversed by the Appeals Chamber. On the view that no convictions are to be entered, the accused, though found to have committed possibly very serious crimes, goes free. This needs to be compared with Rule 99(B) of the Rules of Evidence and Procedure. That Sub-Rule provides that, though acquitted, an accused may be detained pending appeal by the prosecution. It is reasonable to suppose that that implies an understanding by the judges who legislated the Sub- Rule that a sentence of imprisonment can be passed by the Appeals Chamber and that therefore the Appeals Chamber is competent to make a conviction. If the Appeals Chamber is not competent to make a conviction, that Sub-Rule would have to be revoked, as there would be no juridical basis for detaining an acquitted accused pending appeal by the prosecution.
79. A possible answer to these problems is to say that the Appeals Chamber can remit the matter to the Trial Chamber for a conviction to be made and for sentence appropriate to the conviction to be passed. But, wide as it is, the power to remit is not at large. It does not embrace a case in which, as I opine, the only reason for remitting is an erroneous assumption that the Appeals Chamber is itself not competent to convict. The existence of that competence is shown by Rule 99(B).
80. To return to the remaining points on cumulation, I accept the Appeals Chamber’s decision that a conviction for murder as a crime against humanity cannot be cumulated with a conviction for persecution and that a conviction for inhumane acts cannot be cumulated with a conviction for persecution. Previous decisions of the Appeals Chamber (to some of which I was a party)93 point this way. However, had it not been for those decisions I should have had difficulty in joining in with the decision of the Appeals Chamber. I note below the reasons for this difficulty.
81. First, then, there is the question whether a conviction for persecution, as a crime against humanity under article 5(h) of the Statute, may be cumulated with a conviction for murder, as a crime against humanity under article 5(a), in relation to the same conduct. The Trial Chamber held that only a conviction for persecution was possible; it dismissed the charge of murder.94 There could be a problem with that view.
82. The question of cumulation is approached in some jurisdictions through the concept of abuse of process. In the Tribunal, it is regulated by principles deriving from the Blockburger95 test as adopted in Delalic.96 It is accepted that an accused is only to be punished for his actual criminal conduct. But his actual criminal conduct may embrace several crimes. If it does, more than one conviction may be necessary to describe the full criminality of his conduct, any overlapping being taken into account in sentencing.
83. Thus, it is possible that murder has been committed under paragraph (a) of article 5 without any additional features to indicate that it was also committed with intent to persecute the victim on “political, racial and religious grounds” under paragraph (h) of that article. If that is the case, then the conviction has to be for murder alone. If that is not the case, the full criminality of the offender’s conduct will not be dealt with unless there is also a conviction for persecution. But it is said that the elements of murder are subsumed by those of persecution and that therefore only a conviction for persecution is possible. Is the argument sound?
84. Under article 5 of the Statute, it is possible to cumulate extermination and enslavement, enslavement and deportation, deportation and imprisonment, imprisonment and torture, torture and rape, all charged under different paragraphs of that article. However, on the Appeals Chamber’s view, it will not be possible to cumulate persecution under paragraph (h) of that article with any of these crimes. In other words, once persecution is brought on the basis of the other crimes, it will not be possible to proceed independently for any of them. In particular, it will not be possible to make an independent conviction for murder under paragraph (a) of that provision if, under paragraph (h), there is also a conviction for persecution. That seems curious.
85. In probing this curiosity, it is helpful to note that the substantial idea underlying the Blockburger97 principles is that the lawgiver “does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the ‘same offense’, they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.”98 I am unable to see that the “same offense” was being proscribed by the two provisions in this case. The intention was to defend different interests of the international community, and that in my view remains a valid way in which an international criminal tribunal should look at the matter. Those interests do not of course replace any formal tests adopted by the Tribunal, but it will be superficial to suggest that, in an institution of this kind, those interests do not serve to explain the import and operation of those tests.99
86. The jurisprudence in Australia could be restated in terms of Blockburger, but it is interesting and useful to note that the courts there seem to apply a gist or gravamen approach to the problem of cumulation. In Pearce v. The Queen ,100 the appellant was convicted of “grievous bodily harm” under the usual provision dealing directly with that subject and also of “grievous bodily harm” under another provision which dealt with that offence when committed in the course of breaking and entering a dwelling house. In holding that there were impermissible double convictions, the leading judgment of the High Court of Australia said that “a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences.”101 As the gist of that act would be included in the offence when committed in the course of breaking and entering a dwelling house, a conviction for both offences was not permissible.
87. That is consistent with the seemingly different position taken by the Supreme Court of New South Wales (Court of Criminal Appeal) in R. v. Lucy Dudko.102 There, force was used to rescue a prisoner at a penitentiary and at the same time the same force was used as a threat to accomplish the hijacking of a helicopter which was used to transport him. In the leading judgment, Spigelman, C.J., said:
[I]n one case the focus was on a rescue by force and in the other case, on a hijack by threat. Even though the force and the threat was constituted by the same act, it cannot be concluded in this case, unlike Pearce, that the Appellant has been “doubly punished for a single act.” In Pearce, the single act was the infliction of grievous bodily harm. That was much more than simply an element of the offence, it was the gist or gravamen of the criminal behaviour. In the present case the gist or gravamen of the criminal behaviour was not the same in the two offences. In my opinion it is not correct to say that there was a double punishment on the facts of this case.
88. In Dudko, there was a common physical act, but its focus was not the same in the two offences: the gist or gravamen of each offence was different from that of the other. In the present matter, the gist or gravamen of one case is that the appellant murdered civilians; in the other case, the different gist or gravamen is that the appellant persecuted those victims as evidenced by the murders. The focus is different; the first crime, together with the circumstances in which it occurred, is evidence of the second crime but it is not the same as the second.
89. I think this is the theory on which the indictment was based. Paragraph 31 of the indictment reads as follows:
The crime of persecutions was perpetrated, executed, and carried out by or through the following means:
a. the murder of thousands of Bosnian Muslim civilians, including men, women, children, and elderly persons;
b. the cruel and inhumane treatment of Bosnian Muslim civilians, including severe beatings;
c. the terrorizing of Bosnian Muslim civilians;
d. the destruction of personal property of Bosnian Muslims; and,
e. the deportation or forcible transfer of Bosnian Muslims from the Srebenica enclave.
By these acts or omissions, and the acts and omissions described in paragraphs 4, 6, 7, 11 and 22 through 26, RADISLAV KRSTIC committed:
COUNT 6: Persecutions on political, racial and religious grounds, a CRIME AGAINST HUMANITY, punishable under Articles 5(h), and 7(1) and 7(3) of the Statute of the Tribunal.
While this part of the indictment speaks of “murder”, it does so by way of stating a “means” through which persecution was committed.
90. It is important to bear in mind the distinction between the legal elements of an offence and the evidence on which those elements are based. It is accepted that persecution is “the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited under Article 5.”103 There is nothing in that definition which replicates the legal elements of the crime of murder. Murder is a crime of specific intent,104 the intent being to cause the death of the victim. That element is not required by persecution. The conduct of the appellant in committing the crime of murder may be evidence of the crime of persecution, but the legal elements of the crime of murder are not themselves part of the legal elements of the crime of persecution.
91. Were it otherwise, the legal elements of the crime of persecution would vary according to the legal elements of the particular crime on which the persecution is based. The legal elements of the crime of persecution would include the legal elements of the crime of enslavement if enslavement were alleged to be the basis of the persecution charged. Similarly with respect to deportation, imprisonment, torture and rape. The legal elements of a charge for persecution would thus vary from case to case; in the present case, they would include the legal elements of all the crimes on which the persecution is alleged to have been based. That variability is not reconcilable with the stability, definitiveness and certainty with which the legal elements of a crime should be known. Those elements must not depend on accidents of prosecution; they must clearly appear once and for all from a reading of the provision defining the crime.
92. Paragraph 31 of the indictment alleges that persecution was committed “through the following means”, murder and four other matters being cited, some clearly falling under article 5 of the Statute. It cannot be that a conviction for persecution was intended to embrace convictions for all these other crimes. A conviction for persecution as a crime against humanity does not focus on the guilt of the appellant in committing a particular crime of murder as a crime against humanity. On the other hand, a conviction for murder as a crime against humanity does not focus on those aspects of the conduct involved in the commission of that crime which portray an intention to persecute. To have recourse to the jurisprudence of Australia, the gravamen or gist of the crime of persecution is different from the gravamen or gist of the crime of murder.
93. In short, all the legal elements of the crime of murder lie outside of the legal elements of the crime of persecution: the facts of the murder are only evidence on which the charge of persecution is based. Delalic does not mandate non -cumulation in this case. There could therefore be difficulty with the holding in paragraph 675 of the impugned decision in favour of non-cumulation.
94. Second, there is the question whether a conviction for persecution under article 5(h) of the Statute may be cumulated with a conviction for inhumane acts (in relation to forcible transfers) under article 5(i). The Trial Chamber held that cumulation was not permissible, considering that a conviction for persecution was enough. The same reasoning as above suggests difficulties with that holding.
95. Genocide is the “crime of crimes”. The Appeals Chamber has said, correctly, that it “is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent.”105 But, with respect, the stringency should not be overrated; to suggest that the requirement of proof of specific intent was not observed by the Trial Chamber in this case is not plausible.
96. In my view, it has not been shown that no reasonable tribunal of fact could have assessed the evidence as the Trial Chamber did; going further, I opine that no reasonable tribunal of fact could have assessed the evidence differently from the way in which the Trial Chamber assessed it. The appellant was a “principal perpetrator ” of genocide, as the Trial Chamber said he was.
97. However, I consider that effect to the mitigating matters referred to indicates that the proper sentence should be imprisonment for thirty-five years, being the same period as that fixed by the Appeals Chamber on another approach.
Done in both English and French, the English text being authoritative.
_______________
Mohamed Shahabuddeen
Dated this 19th April 2004
At The Hague
The Netherlands
[Seal of the Tribunal]
1. The main aspects of the appeal proceedings are summarised below.
2. The Trial Judgement was handed down on 2 August 2001.106 In accordance with Rule 108 of the Rules, the Defence and the Prosecution filed their Notices of Appeal on 15 August107 and 16 August 2001, respectively. On 17 September 2001, the then-President of the Tribunal, Judge Jorda, issued an order assigning the following judges to the Appeals Chamber: Judge Hunt, Judge Shahabuddeen, Judge Güney, Judge Gunawardana, and Judge Pocar.108 On 28 September 2001, the Presiding Judge, Judge Shahabuddeen, designated Judge Hunt as the Pre-Appeal Judge in this case.109
3. On 8 November 2002, Judge Jorda, as President, issued an order assigning Judge Meron to replace Judge Gunawardana on the bench of the Appeals Chamber.110
4. On 24 July 2003, Judge Meron, as President, issued an order assigning Judge Schomburg to replace Judge Hunt on the bench of the Appeals Chamber.111
5. On 14 October 2003, Judge Meron, as President, issued an order designating himself as the Pre-Appeal Judge in this case.112
6. The Prosecution filed its Appeal Brief on 14 November 2001.113 On 5 November 2001, the Pre-Appeal Judge had granted the Defence’s request for an extension of time to file its Appeal Brief,114 and the Defence filed a confidential version of its Appeal Brief on 10 January 2002.115
7. On 17 December 2001, The Pre-Appeal Judge rejected the Defence’s petition for an extension of time to file its Response to the Prosecution Appeals Brief,116 and on 21 December 2001 the Defence filed its Response to the Prosecution Appeals Brief.117
8. Following the Pre-Appeal Judge’s Decision allowing an extension of time for the filing of its Brief in Reply,118 the Prosecution filed its Brief in Reply on 14 January 2002.119 The Prosecution then filed confidentially its Response to the Defence Appeal Brief on 19 February 2002.120 The Defence filed its Brief in Reply on 6 March 2002.121
9. On 10 April 2002, the Pre-Appeal Judge ordered the Prosecution and the Defence to file within 28 days public redacted versions of the Prosecution Response to the Appeal Brief and the Defence Appeal Brief, respectively.122 The Defence filed its public version of the Defence Appeal Brief on 7 May 2002.123 The Prosecution filed a public version of its Response to Defence Appeal Brief on 8 May 2002.124
10. The Prosecution bases its appeal on two grounds. First, the Prosecution appeals against the Trial Chamber’s conclusion on impermissibly cumulative convictions.125 Second, the Prosecution appeals against the sentence imposed by the Trial Chamber.126 It requested the imposition of a life sentence on Radislav Krstic, with a minimum of 30 years imprisonment.
11. The Defence bases its appeal on four grounds. First, it appeals against the conviction for genocide of Radislav Krstic on the basis that factual and legal errors had been committed by the Trial Chamber;127 second, it appeals on the basis of various disclosure practices of the Prosecution which it alleges deprived Krstic of a fair trial;128 third, it alleges that the Trial Chamber made a number of factual and legal errors ;129 and fourth, it appeals against the sentence handed down to Krstic because the Trial Chamber failed adequately to take into account the sentencing practice in the former Yugoslavia, and to give sufficient weight to the alleged mitigating circumstances.130
12. During these proceedings, the Appeals Chamber received a number of requests from third parties, mostly for access to evidence submitted in this case. In addressing these requests, the Appeals Chamber was asked to vary certain protective measures pursuant to Rule 75(G).
13. On 30 November 2001, the Defence filed a Motion for Production of Evidence.131 On 10 December 2001, the Prosecution filed confidentially its Response to that Motion ;132 the Defence filed its Reply on 11 December 2001,133 and the Defence on 24 December 2001 then filed confidentially a Supplemental Reply134 to which, subject to the Pre-Appeal Judge’s subsequent order granting it leave to do so,135 the Prosecution filed a response on 12 February 2002.136 The Defence then filed a Request for Deferral of Decision on 20 February 2002.137 The Prosecution responded to this Request on 5 March 2002,138 in which it did not oppose the Defence’s Request.
14. On 1 March 2002,139 the Pre-Appeal Judge granted leave to the Prosecution to file a further Response concerning conceded violations of its obligations under Rule 68 by 8 March 2002.140 On 11 March 2002, the Prosecution filed its Further Response to Appellant’s 24 December 2001 Supplemental Reply,141 and on 26 March 2002, the Defence confidentially filed its Further Reply to the Prosecutor’s 11 March 2002 Further Response.142
15. On 10 April 2002 the Prosecution filed a Motion proposing a procedure for the further proceedings on the Motion for Production of Evidence filed on 30 November 2001, or alternatively a request for extension of time.143
16. The Defence confidentially filed its Appeal Brief concerning Rule 68 violations on 11 April 2003.144 Following the granting of an extension of time,145 the Prosecution filed confidentially its Response to the Defence’s Brief Concerning Rule 68 Violations on 8 May 2003.146 The Defence confidentially filed its Reply on 22 May 2003.147 Having being granted leave to do so,148 the Prosecution then confidentially filed a Further Response on 30 June 2003.149 Subsequent to being granted an extension of time to do so,150 the Defence confidentially filed its Further Reply to Prosecution’s Further Response to Reply on 14 July 2003.151
17. On 18 November 2003, the Prosecution filed its Motion for the Filing of Rule 68 Evidence, Admission of Rebuttal Evidence and Admission of 115 Evidence in Response to the Defence Supplemental Motion to Present Additional Evidence Pursuant to Rule 115.152 The Defence filed its Reply to this motion on 20 November 2003.153 The Prosecution subsequently withdrew its Motion on 20 November 2003.154
18. On 1 April 2003, the Defence confidentially filed a Motion seeking the issuance of subpoena for witnesses.155 By Order of 1 July 2003, the Appeals Chamber granted the issuance of the two subpoenas sought.156 The subpoenas were issued confidentially on 10 July 2003.
19. In its Decision of 19 November 2003, the Appeals Chamber summoned a witness proprio motu pursuant to Rules 98 and 107.157
20. The Defence confidentially filed a Rule 115 Motion for the admission of additional evidence on 10 January 2003,158 and a confidential Supplemental Motion on 21 January 2003.159 Having been granted an extension of time,160 the Prosecution confidentially filed its Response to the Defence’s Rule 115 Motions on 31 January.161 The Defence filed confidentially its reply on 12 February 2003162 following the granting of an extension of time.163 By Order of 26 February 2002,164 the Prosecution was granted leave165 to amend its Response to the Defence’s Rule 115 Motion. On 5 August 2003, the Appeals Chamber ordered that some of the evidence be admitted as additional evidence on appeal pursuant to Rule 115.166
21. On 24 September 2003, the Appeals Chamber issued a Scheduling Order requiring the Prosecution to file a Notice indicating whether or not it would seek to rely on any rebuttal evidence, and if so, to submit such evidence.167 The Prosecution filed its Notice pursuant to that Order on 3 October 2003.168 Following a Decision granting it an extension of time,169 the Defence filed its Reply on 30 October 2003.170 In its Decision of 19 November 2003, the Appeals Chamber ordered the admission of the evidence submitted by the Prosecution.171
22. The Defence confidentially filed a further Rule 115 Motion for the admission of additional evidence (two witness statements) on 7 August 2003.172 The Prosecution filed a confidential Response on 15 August 2003.173 The Defence’s Motion was denied by the Appeals Chamber in its Decision of 15 September 2003.174
23. On 4 November 2003, the Defence filed a Supplemental Motion to Present Additional Evidence Pursuant to Rule 115,175 to which the Prosecution responded confidentially on 11 November 2003.176 The Defence replied confidentially to the Prosecution’s Response on 17 November 2003.177 In its Decision of 20 November 2003,178 the Appeals Chamber granted the Motion.
24. On 30 October 2003, the Defence sought to admit a report prepared by its military expert.179 On 12 November 2003, the Prosecution submitted confidentially a Motion180 to disallow this evidence submitted by the Defence, together with a subsequent supplement.181 The Defence filed its Answer to this Motion on 17 November 2003,182 and the Prosecution responded on 18 November 2003.183 In its Decision of 20 November 2003, the Appeals Chamber dismissed the Defence’s submission. 184
25. The Prosecution submitted a Motion for the Admission of Additional Evidence on 11 November 2003, which was partly confidential and ex parte,185 to which the Defence replied on 17 November 2003.186 Subsequently, the Prosecution filed its Reply.187 The Appeals Chamber dismissed the motion in its Decision of 19 November 2003.188
26. Status Conferences were held pursuant to Rule 65bis of the Rules on 11 December 2001; 5 April 2002; 27 August 2002; 25 November 2002; 19 March 2003; 30 July 2003; and 1 April 2004.
27. The evidentiary portion of the hearing was held on 21 November 2003. The remainder of the hearing was held on 26 and 27 November 2003.
ALEKSOVSKI
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24
March 2000 (“Aleksovski Appeal Judgement”).
BANOVIC
Prosecutor v. Pedrag Banovic, Case No. IT-02-65/1-S, Sentencing Judgement,
28 October 2003 (“Banovic Sentencing Judgement”).
BLASKIC
Prosecutor v. Tihomir Blaskic, Decision on the Production of Discovery
Materials, Case No. IT-95-14-PT, Trial Chamber, signed 27 January 1997, filed
30 January 1997 (“Blaskic Decision on the Production of Discovery Materials”).
Prosecutor v Tihomir Blaskic, Decision on the Defence Motion for Sanction’s for the Prosecutor’s Continuing Violation of Rule 68, Case No. IT-95-14-T, 28 September 1998 (“Blaskic Decision on the Defence Motion for Sanction’s for the Prosecutor’s Continuing Violation of Rule 68”).
Prosecutor v. Tihomir Blaskic, Decision on the Appellant’s Motion for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Findings, Case No. IT-95-14-A, Bench of the Appeals Chamber, 26 September 2000 (“ Blaskic Decision on the Appellant’s Motion for the Production of Material ”).
BRDJANIN AND TALIC
Prosecutor v. Radoslav Brdjanin, Decision on “Motion for Relief from
Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed Pursuant
to Rule 68bis and Motion for Adjournment while Matters affecting Justice
and a Fair Trial can be Resolved”, Case No. IT-99-36-T, Trial Chamber II, 30
October 2002 (“Brdjanin Decision on Motion for Relief from Rule 68 Violations
by the Prosecutor ”).
CELEBICI
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Decision on
the Request of the Accused Hazim Delic Pursuant to Rule 68 for Exculpatory Information,
24 June 1997 (“Celebici Decision on the Request of the Accused Hazim
Deli c Pursuant to Rule 68”).
Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as “Pavo”, Hazim Delic and Esad Landzo also known as “Zenga”, Case No. IT-96-21-T, Judgement, 16 November 1998 (“Celebici Trial Judgement”).
Prosecutor v. Zejnil Delalic, Zdravko Mucic (aka “Pavo”), Hazim Delic and Esad Landzo (aka “Zenga”) (“Celebici Case”), Case No. IT-96-21-A, Judgement, 20 February 2001 (“Celebici Appeal Judgement”).
Prosecutor v. Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96- 21-A bis, Judgement on Sentence Appeal, 8 April 2003 (“Mucic et al. Judgement on Sentence Appeals”).
FURUNDZIJA
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December
1998 (“Furundzija Judgement”).
Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-A, Appeal Judgement, 21 July 2000 (“Furundzija Appeal Judgement”).
HADZIHASANOVIC ET AL.
Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, Case
No. IT-01-47-1, Indictment (confidential), signed 5 July 2001, filed
6 July 2001 (“Hadzihasanovic et al. Indictment”).
HALILOVIC
Prosecutor v. Sefer Halilovic, Case No. IT-01-48-I, Indictment, filed
30 July 2001, modified and supplemented 10 September 2001 (“Halilovic Indictment
”).
JELISIC
Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Judgement, 14 December
1999 (“Jelisic Judgement”).
Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001 (“Jelisic Appeal Judgement”).
KORDIC AND CERKEZ
Prosecutor v. Dario Kordic and Mario Cerkez, Order on Motion to Compel
Compliance by the Prosecution with Rules 66 (A) and 68, Case No. IT-95-14/2,
Trial Chamber, 26 February 1999 (“Kordic & Cerkez Order on Motion to
Compel Compliance by the Prosecution with Rules 66 (A) and 68”).
Prosecution v Dario Kordic & Mario Cerkez, Case No. IT-95-14/2-A, Decision on Motion by Dario Kordic for Access to Unredacted Portions of October 2002 Interviews with Witness “AT”, signed 23 May 2003, signed 26 May 2003 (“Kordic & Cerkez Decision on Motion by Dario Kordic for Access to Unredacted Portions of October 2002 Interviews with Witness ‘AT’”).
KRAJISNIK & PLAVSIC
Prosecutor v. Momcilo Krajisnik & Biljana Plavsic, Case No. IT-00-39&40
-PT, Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory
Evidence Pursuant to Rule 68, 19 July 2001 (“Krajisnik & Plavsic Decision
on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence
Pursuant to Rule 68”).
Prosecutor v Momcilo Krajisnik & Biljana Plavsic, Case No. IT-00-39&40, Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter, 66(B) and 67(C), 1 August 2001, (“Krajisnik & Plavsic Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter, 66(B) and 67(C)”).
KRNOJELAC
The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement,
signed 15 March 2002 (“Krnojelac Judgement”).
The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Appeal Judgement, signed 17 September 2003, filed 5 November 2003 (“Krnojelac Appeal Judgement ”).
KRSTIC
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Order to Appear,
12 December 2000; Order to Appear (2), 15 December 2000 (“Krstic Order
to Appear”).
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Decision on the Defence Motions to Exclude Exhibits in Rebuttal Evidence and Motion for Continuance, 25 April 2001 (“Decision on the Defence Motions to Exclude Exhibits in Rebuttal Evidence and Motion for Continuance, 25 April 2001).
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Judgement, 2 August 2001 (“Krstic Trial Judgement” or “Trial Judgement”).
Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Decision on Prosecution’s Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C), IT-98-33-A, 27 March 2003.
Prosecutor v. Radislav Krstic, Decision on Applications for Admission of Additional Evidence on Appeal, Case No. IT-98-33-A, 5 August 2003 (“Krstic Decision on Applications for Admission of Additional Evidence on Appeal”).
Prosecutor v. Radislav Krstic, Decision on Prosecution’s Extremely Urgent Request for Variation of Orders Regarding Private Session Testimony, IT-98-33-A, 14 November 2003 (“Decision on Prosecution’s Extremely Urgent Request for Variation of Orders Regarding Private Session Testimony, 14 November 2003”).
Prosecutor v. Radislav Krstic, Reasons for the Decisions on Applications for Admission of Additional Evidence on Appeal, Case No. IT-98-33-A, (confidential) 6 April 2004, (“Rule 115 Reasons”).
KUNARAC, KOVAC AND VUKOVIC
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case
No. IT-96-23 & IT-96-23/1-T, Judgement, 22 February 2001 (“Kunarac et al.
Trial Judgement”).
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002 (“Kunarac et al. Appeal Judgement”).
Z. KUPRESKIC, M. KUPRESKIC, V. KUPRESKIC, JOSIPOVIC, (PAPIC) AND SANTIC
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago
Josipovic and Vladimir Santic, Case No. IT-95-16-A, Appeal Judgement, 23
October 2001 (“Kupreskic et al. Appeal Judgement”).
NIKOLIC
Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Sentencing Judgement,
2 December 2003 (“Nikolic Sentencing Judgement”).
OBRENOVIC
Prosecutor v. Dragan Obrenovic, Case No. IT-02-60/2-S, Sentencing Judgement,
10 December 2003 (“Obrenovic Sentencing Judgement”).
PLAVSIC
Prosecutor v.Biljana Plavsic, Case No. IT-00-39&40/1, Sentencing Judgement,
27 February 2003 (“Plavsic Sentencing Judgement”).
SIKIRICA
Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kurundzija, Judgement
on Defence Motions to Acquit, 3 September 2001 (“Sikirica Judgement on
Defence Motions to Acquit”).
STAKIC
Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Decision on Rule 98bis
Motion for Judgement of Acquittal, 31 October 2002 (“Stakic Decision
on Rule 98bis Motion for Judgement of Acquittal”)
Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, 31 July 2003 (“Stakic Trial Judgement”).
TADIC
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Sentencing Judgement,
14 July 1997 (“Tadic Sentencing Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999 (“Tadic Appeal Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000 (“Tadic Judgement in Sentencing Appeals ”).
TODOROVIC
Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S, Sentencing Judgement,
31 July 2001 (“Todorovic Sentencing Judgement”).
VASILJEVIC
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T, Judgement, 29 November
2002 (“Vasiljevic Judgement”).
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-A, Appeal Judgement, 25 February 2004 (“Vasiljevic Appeal Judgement”).
AKAYESU
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June
2001 (“Akayesu Appeal Judgement”).
BAGILISHEMA
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7
June 2001 (“Bagilishema Trial Judgement”).
KAMBANDA
Jean Kambanda v Prosecutor, Case No. ICTR 97-23-A, Judgement, 19 October
2000 (“Kambanda Appeal Judgement”).
KAJELIJELI
The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement,
1 December 2003, (“Kajelijeli Trial Judgement”).
KAYISHEMA AND RUZINDANA
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T,
Judgement, 21 May 1999 (“Kayishema and Ruzindana Trial Judgement”).
MUSEMA
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement, 27 January
2000 (“Musema Trial Judgement”).
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Appeal Judgement”).
SEMANZA
Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence,
15 May 2003 (“Semanza Trial Judgement and Sentence”).
SERUSHAGO
Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Sentence, 5 February
1999 (“Serushago Sentence”).
Cour de Cassation, Chambre criminelle, 1st October 1984, summary 96.
Dunlop and Sylvester v. Regina ?1979g 2 S.C.R. 881 (Supreme Court of Canada).
Giorgianni (1985) 58 A.L.R. 641 (High Court of Australia).
Judgement of the Swiss Federal Supreme Court (Schweizerisches Bundesgeircht ) of 17 February 1995, in Decisions of the Swiss Federal Supreme Court (Bundesgerichtsentscheide ), 121 IV.
National Coal Board v. Gamble ?1959g 1 Q.B. 11.
B. List of Other Legal Authorities
Cassese, Antonio; Gaeta, Paola; and Jones, John R.W.D. (Eds) The Rome Statute of the International Criminal Court: A Commentary ( 2002).
Courteau, Candace The Mental Element Required for Accomplice Liability, 59 La. L. Rev. 325, 334 (1998).
Eser, Albin; and Kreicker, Helmut Nationale Strafverfolgung Völkerrechtlicher Verbrechen (Freiburg) (2003).
Executive Sessions (2) of the Senate Foreign Relations Committee, Historical Series 370 (1976).
Hearings on the Genocide Convention Before a Subcommittee of the Senate Committee on Foreign Relations: The Genocide Convention – Its Origins and Interpretation, 81st Cong., 2nd Sess., 487, 498 (1950).
Official Report, Fifth Series, Parliamentary debates, Commons 1968-69, Vol. 777, 3 - 14 February 1969.
Report of the Preparatory Commission for the International Criminal Court, 6 July 2000, PCNICC/2000/INF/3/Add.2.
Report of the Committee on Foreign Relations, Genocide Convention, U.S. Senate, 18 July 1981.
Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May – 26 July 1996.
Robinson, Nehemiah, The Genocide Convention, Institute of Jewish Affairs (1949).
Schabas, William A, Genocide in International Law, Cambridge University Press (2000).
Werle, Gerhard & Jessberger, Florian International Criminal Justice is coming Home: The new German Code of Crimes against International Law, Criminal Law Forum 13, (2002)
Whitaker, Benjamin, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/ 6.
According to Rule 2(B), of the Rules of Procedure and Evidence, the masculine shall include the feminine and the singular the plural, and vice-versa.
| 28th Division |
The military unit of the ABiH that was present in the Srebrenica enclave at the time the events took place |
| ABiH |
Army of Bosnia and Herzegovina |
| ACHR |
American Convention of Human Rights of 22 November 1969 |
| ARK |
Autonomous Region of Bosanska Krajina |
| AT |
Transcript page from hearings before the Appeals Chamber. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless not specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcript released to the public. |
| BiH |
Bosnia and Herzegovina |
| Butler Report |
The Testimony of Richard Butler pursuant to the Order of the Appeals Chamber granting the Appellant’s Oral Rule 115 Motion, 24 November 2003 ("Butler Report"). |
| D |
Denotes a Defence Exhibit (Exh.D) |
| Defence |
Counsel for Radislav Krstic |
| Dutch-bat |
The battalion of UNPROFOR troops from the Netherlands stationed in the Srebrenica enclave from January 1995. |
| ECHR |
European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1959 (European Convention on Human Rights) |
| Exh. |
Exhibit |
| Federation |
The Federation of Bosnia and Herzegovina, being one of the entities of BiH |
| FRY |
Federal Republic of Yugoslavia (now: Serbia and Montenegro) |
| Genocide Convention |
Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 |
| ICC |
International Criminal Court |
| ICC Statute |
(Rome) Statute of the International Criminal Court, of 17 July 1998, UN Doc. A/CONF.183/9 |
| ICTR |
International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 |
| ICTR Rules |
Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, in force |
| ICTR Statute |
Statute of the International Criminal Tribunal for Rwanda, established by Security Council Resolution 955 |
| ICTY |
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 |
| IKM |
Serbo-Croatian acronym for istureno komandno mesto, the equivalent of ‘Forward Command Post’ |
| Indictment |
Amended Indictment by the Prosecutor of The Tribunal Against Radislav Krstic, 27 October 1999. |
| MUP |
Ministry of the Interior of the Republika Srpska |
| OTP/Prosecution |
Office of the Prosecutor |
| p. |
Page |
| pp. |
Pages |
| para. |
Paragraph |
| paras. |
Paragraphs |
| Rules |
Rules of Procedure and Evidence of the ICTY in force |
| P |
Denotes a Prosecution Exhibit (Exh.P) |
| Statute |
The Statute of the International Tribunal for the Former Yugoslavia established by Security Council Resolution 827 |
| T |
Transcript page from hearings before the Trial Chamber. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless not specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcript released to the public. |
| Tribunal |
See: ICTY |
| UN |
United Nations |
| Vol |
Volume |
| VRS |
Bosnian Serb Army |