1 - Appeals Chamber’s transcript, 27 November 2003, p. 343, referring to the impugned judgment, para. 2.
2 - Impugned judgment, para. 95.
3 - Ibid.
4 - Ibid., para. 644.
5 - Ibid., paras. 330, 331, 625 and 631.
6 - Ibid., para. 362.
7 - Ibid., para. 18.
8 - Ibid., para. 18.
9 - Ibid., para. 22.
10 - Ibid., para. 25.
11 - Ibid., para. 28.
12 - Ibid.
13 - Ibid., para. 29.
14 - Ibid., paras. 33 and 334.
15 - Ibid., para. 334.
16 - Judgment of the Appeals Chamber, para. 94.
17 - Ibid.
18 - Appeals Chamber’s transcript, 21 November 2003, pp. 116, 124, 125, testimony of Mr Deronjic.
19 - Impugned judgment, para. 130.
20 - Ibid., para. 128.
21 - Ibid., para. 130.
22 - Ibid., para. 132.
23 - Ibid., 133. See also, Ibid., paras. 130-132.
24 - Judgment of the Appeals Chamber., para. 87.
25 - Impugned judgment, para. 343.
26 - Appeals Chamber’s transcript, 26 November 2003, p. 274.
27 - Ibid., 27 November 2003, p. 360.
28 - Impugned judgment, para. 407.
29 - Judgment of the Appeals Chamber, para. 87.
30 - Ibid, paras. 101, 134.
31 - See the impugned judgment, paras. 205ff. Cf. judgment of the Appeals Chamber, para. 118, 197, for the evidence of Mr Deronjic stating that “according to information passed on to me by Mr Borovcanin, about 300 men were killed.” The Trial Chamber relied on direct evidence.
32 - Impugned judgment, para. 211.
33 - See exhibit P 529, referred to in the impugned judgment at para. 176, 430, at para. 287, 758, and at para. 376, 1005.
34 - Judgment of the Appeals Chamber, para. 119.
35 - Ibid.
36 - Ibid., para.102. And see the impugned judgment, para. 384, stating: “Both the Prosecution and the Defence agreed that Colonel Beara was fully involved in the killings” ( omitted).
37 - Impugned judgment, para. 380.
38 - See, below, the reference by the Appeals Chamber in paragraph 104 of its judgment to “subordinates”.
39 - Impugned judgment, para. 385.
40 - See also Appeals Chamber’s transcript, 26 November 2003, pp. 278-279, where counsel for the appellant is recorded as saying that “the only direct evidence of his involvement was that July 15th telephone conversation with Colonel Beara in which you can legitimately infer General Krstic’s knowledge that men were being killed – not, mind you, a genocidal plan, but that men were being killed. And, it is our submission – and we’ll be speaking to that in more detail later – that he never did anything to further the enterprise. He didn’t participate in that sense.”
41 - Judgment of the Appeals Chamber, para. 76.
42 - Ibid., para. 104.
43 - Impugned judgment, para. 385.
44 - Or, as it was put in paragraph 174 of the Defence Appeal Brief of 10 January 2002, “The true facts show that General Krstic never followed up on Beara’s request.”
45 - The Appeals Chamber itself calls them “subordinates” in paragraph 104 of its judgment.
46 - Appeals Chamber’s transcript, 27 November 2003, p. 332; emphasis added.
47 - Judgment of the Appeals Chamber, para. 31, s omitted.
48 - Ibid., para. 33, s omitted.
49 - Emphasis added.
50 - Judgment of the Appeals Chamber, para. 126.
51 - Ibid., paras. 126-128.
52 - Ibid., para. 137.
53 - Ibid., para. 137.
54 - Ibid., para. 144, emphasis added.
55 - Ibid., para. 129.
56 - Appeals Chamber’s transcript, 27 November 2003, pp. 360-361.
57 - The Trial Chamber overruled a defence submission that the prosecution could not rely on the doctrine. See impugned judgment, para. 602.
58 - Impugned judgment, para. 633. See also, Ibid., paras. 631 and 632.
59 - Defence Appeal Brief, 10 January 2002, p. 13 above para. 35.
60 - Impugned judgment, paras. 560 and 591.
61 - Defence Appeal Brief, 10 January 2002, para. 40. See also, Ibid., paras.37-39. And see argument by counsel for General Krstic in Appeals Chamber’s transcript, 26 November 2003, at pp. 297ff, and 27 November 2003, pp. 351-352.
62 - Judgment of the Appeals Chamber, para. 19.
63 - Ibid., paras. 24 and 25.
64 - Ibid., paras. 28, 29, 37 and 38.
65 - Ibid., para. 31.
66 - Impugned judgment, para. 595, emphasis added.
67 - The distinction is not made in paragraph 580 of the impugned judgment which states that “customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group,” but the focus there was on the question whether cultural destruction fell within the definition of genocide.
68 - Defence Brief in Reply, 6 March 2002, para. 26.
69 - Report of the International Law Commission to the General Assembly on the Work of its Forty-third Session, UN Doc. A/CN.4/SER.A/1991/Add.1 (Part 2), p. 102, para. (4), chapter iv, concerning article 19, “Genocide”, in the “Draft Code of Crimes against the Peace and Security of Mankind.”
70 - See a helpful discussion in William A. Schabas, Genocide in International Law, The Crime of Crimes (Cambridge, 2000), pp. 229-230.
71 - I agree in these respects with paras. 580 and 595 of the impugned judgment.
72 - See the citation from K. Kreß, Münchner Kommentar zum StGB, Rn 57, § 6 VStGB, (Munich 2003), given in paragraph 519 of Stakic, IT-97-24-T, of 31 July 2003.
73 - Transcript of the Appeals Chamber, 27 November 2003, pp. 343 and 354.
74 - By contrast, counsel for General Krstic argued that the deportation showed “an avoidance of an attempt to commit genocide” and could not be taken together with the killings. See transcript of the Appeals Chamber, 27 November 2003, pp. 355-356.
75 - BGH 3 StR 215/98, Urteil vom 30.4.1999, BGH St 45,65ff.
76 - Defence Brief in Reply, 6 March 2002, para. 27.
77 - Ibid., paras. 137-138.
78 - Judgment of the Appeals Chamber, para. 139.
79 - See, generally, the reasoning relating to aiding and abetting in National Coal Board v. Gamble, (1959( 1 Q.B. 11, concurring opinion of Devlin J, and DPP for Northern Ireland v. Lynch, (1975( AC 653, HL, dissenting opinion of Lord Simon of Glaisdale.
80 - See and compare The Zyklon B Case, Law Reports of Trials of War Criminals, Vol. 1 (London, 1947), p. 93.
81 - Impugned judgment, para. 421.
82 - Ibid., para. 420.
83 - Ibid., para. 358.
84 - Ibid.
85 - Ibid., para. 361.
86 - IT-94-1-A, of 15 July 1999, para. 229(iv).
87 - Impugned judgment, para. 644.
88 - IT-94-1-A, of 15 July 1999, para. 192.
89 - Judgment of the Appeals Chamber, paras. 56, 61 and 78.
90 - Ibid., para. 137, emphasis added.
91 - See Rutaganda, ICTR-96-3-A, of 26 May 2003, and the opinions appended thereto. In that case (Judge Pocar dissenting), acquittals by the Trial Chamber were in fact reversed and replaced by convictions imposed by the ICTR Appeals Chamber.
92 - My position was given in a separate opinion appended to Rutaganda, ICTR-96-3-A, of 26 May 2003.
93 - The judgment in Krnojelac, IT-97-25-A, of 17 September 2003, paras. 178,188, was set out in a few lines, without much discussion. So too with Vasiljevic, IT-38-92-A, of 25 February 2004, para. 146.
94 - Impugned judgment, para. 675.
95 - Blockburger v. United States, 284 U.S. 299.
96 - IT-96-21-A, of 20 February 2001, paras. 412-413.
97 - Ibid.
98 - Whalen v. United States, 445 U.S. 684 (1980), at 692, confirming Blockburger.
99 - Albernaz v. U.S., 450 U.S. 333(1981), at 343, reaffirming Blockburger but stating (per Justice Rehnquist delivering the opinion of the Court): “The conclusion we reach today regarding the intent of Congress is reinforced by the fact that the two conspiracy statutes are directed to separate evils presented by drug trafficking. ‘Importation’ and ‘distribution’ of marihuana impose diverse societal harms …” (Emphasis added).
100 - 194 CLR 610 (1998).
101 - McHugh, Hayne and Callinan, JJ., at p. 623.
102 -[200]NSWCCA, 336 (2002).
103 - Kupreškic, IT-95-16-T, of 14 January 2000, para. 621.
104 - Archbold, Criminal Pleading, Evidence and Practice 2003 (London, 2003), paras. 17-34(a), and Blackstone’s Criminal Practice 2003 (Oxford, 2003), para, B1.11(a).
105 - Judgment of the Appeals Chamber, para. 134.
106 - Available in B/C/S on 21 November 2001.
107 - Signed 14 August 2001.
108 - Order of the President Assigning Judges to the Appeals Chamber, 17 September 2001.
109 - Order Designating a Pre-Appeal Judge, 28 September 2001.
110 - Order of the President Assigning a Judge to the Appeals Chamber, signed 8 November 2002, filed 13 November 2002.
111 - Order Replacing a Judge in a Case Before the Appeals Chamber, 24 July 2002.
112 - Order Designating a Pre-Appeal Judge, 14 October 2003.
113 - Prosecution Appeal Brief, 14 November 2001.
114 - Order Granting Extension of Time, 5 November 2001, which granted an additional 50 days.
115 - Confidential Defence Appeal Brief, 10 January 2002.
116 - Decision on Application by Appellant to Suspend Briefing Schedule or for Extension of Time, signed 17 December 2001, filed 18 December 2001.
117 - Defence Response to Prosecution Appeal Brief, 21 December 2001.
118 - Decision on Prosecution Motion for Extension of Time, 24 December 2001.
119 - Prosecution Brief in Reply, 14 January 2002.
120 - Prosecution Response to the Defence Appeal Brief, 19 February 2002. The Prosecution later filed a corrigendum to this Response on 21 February 2002.
121 - Defence Brief in Reply, 6 March 2002.
122 - Order, 10 April 2002.
123 - Defence Appeal Brief (Public Version), 7 May 2002.
124 - Prosecution Response to Defence Appeal Brief (Public Version), 8 May 2002.
125 - Prosecution Appeal Brief, section 3.
126 - Prosecution Appeal Brief, section 4. The Prosecution submits that the sentence (a) was manifestly inadequate because of the gravity of the offences, and because of the accused’s degree of participation in the events; (b) was in manifest disparity with ICTR genocide cases; (c) was erroneous in that it found that the accused had palpably lesser guilt than other unidentified participants in the events; and (d) failed to include pre-meditation as an aggravating factor.
127 - Defence Appeal Brief, pp. 5 - 35.
128 - Op cit., pp. 35 - 47.
129 - Op cit., pp. 47 - 52.
130 - Op cit., p. 68; and Defence Brief in Response, pp. 15 - 33.
131 - Motion for the Production of Evidence, 30 November 2001.
132 - Prosecution’s Response to Motion for Production of Evidence (Confidential), 10 December 2001.
133 - Reply to Prosecution’s Response to Motion for Production of Evidence, 11 December 2001.
134 - Supplemental Reply: Motion for Production of Evidence, 24 December 2001.
135 - Order on Prosecution’s Request for Leave to File a Response to Appellant’s 24 December 2001 Supplemental Reply, 15 February 2002.
136 - Request for Leave to File a Supplementary Response and Prosecution’s Supplementary Response to Appellant’s 24 December 2001 Supplementary Reply, signed 11 February 2002, filed 12 February 2002.
137 - Request for Deferral of Decision: Motion for Production of Evidence, signed 19 February 2002, filed 20 February 2002.
138 - Prosecution Response to Request for Deferral of Decision, 5 March 2002.
139 - In response to the Prosecution’s Motion for Leave to File a Further Supplementary Response, 28 February 2002.
140 - Scheduling Order, 1 March 2002. This late filing was authorised by the Pre-Appeal Judge in its Order following requests by both parties for an extension of time to file documents, and by the Prosecution’s request for authority to exceed the page limit for its further response of 21 March 2002, pursuant to Rule 127 and paragraph 7 of the Practice Direction.
141 - Prosecution’s Further Response to Defence’s Supplemental Reply of 24 December 2001, 11 March 2002.
142 - Further Reply to the Prosecutor’s 11 March Further Response (Confidential), 26 March 2002.
143 - Prosecution Motion Proposing Procedure for the Continued Litigation on the Motion for Production of Evidence Filed on 30 November 2001 or Alternatively a Request for Extension of Time, 10 April 2002. The Prosecution filed a public redacted version of this motion on 12 April 2002.
144 - Defence Appeal Brief Concerning Rule 68 Violations (Confidential), signed 10 April 2003, filed 11 April 2003.
145 - Order on Extension of Time, 1 May 2003.
146 - Prosecution Response to Defence Appeal Brief Concerning Rule 68 Violations (Confidential), 8 May 2003.
147 - Defence Reply to Prosecution Response to Brief Concerning Rule 68 Violations (Confidential), 22 May 2003.
148 - Decision Granting Leave for Supplementary Response, 29 May 2003.
149 - Prosecution’s Further Response to the Reply Filed by Radislav Krstic on 22 May 2003 Regarding Rule 68 Violations, 30 June 2003.
150 - Order on Extension of Time, 8 May 2003.
151 - Defence Further Reply to Prosecution’s Further Response to Reply Filed by Radislav Krsti} on 22 May 2003 Regarding Rule 68 Violations (Confidential), signed 11 July 2003, filed 14 July 2003.
152 - 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, 18 November 2003.
153 - Defence Reply to the Prosecution’s 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, 20 November 2003.
154 - Withdrawal of “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”, 20 November 2003.
155 - Defence Motions for Issuance of Subpoena (confidential), 1 April 2003. An addendum to this Motion was filed on 3 April 2003.
156 - Decision on Application for Subpoenas, 1 July 2003 (Judge Shahabuddeen dissenting).
157 - Decision to Summon a Witness Proprio Motu, 19 November 2003.
158 - Rule 115 Defence Motion to Present Additional Evidence, 10 January 2003 (Public Version filed on 12 February 2003).
159 - Supplemental Rule 115 Motion to Present Additional Evidence, 21 January 2003 (Public Version filed 12 February 2001). A further addendum was filed on 27 January 2003 (Public Version 12 February 2001).
160 - Order on Extension of Time, 13 February 2003.
161 - Prosecution’s Response to Defence Motion to Present Additional Evidence under Rule 115, 31 January 2003 (confidential).
162 - Defence Reply to the Prosecution's Response to Defence Motions for Admission of Additional Evidence under Rule 115, 12 February 2003 (Public Version filed on 21 February 2003).
163 - Orders on Extension of Pages and Extension of Time, 4 February 2003.
164 - Order Granting Prosecution Motion of 24 February 2003, 26 February 2003.
165 - Pursuant to the Prosecution’s Motion Seeking Leave to Amend the ‘Prosecution Response to Defence Motions for Admission of Additional Evidence under Rule 115’, 24 February 2003.
166 - Decision on Applications for Admission of Additional Evidence on Appeal, 5 August 2003. Reasons (confidential in part) for this Decision were given on 6 April 2004.
167 - Scheduling Order, 24 September 2003.
168 - Prosecution’s Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order (Confidential); and Prosecution’s Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order, both of 3 October 2003. The Prosecution filed its further notice and filing of rebuttal evidence and arguments in compliance with the Appeals Chamber’s Scheduling Order (confidential) on 21 October 2003.
169 - Decision for the Defence’s Motion for Extension of Time, 15 October 2003.
170 - Reply to Prosecution’s Notice and Further Notice and Filing of Rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order (confidential), 30 October 2003.
171 - Decision on the Admissibility of Material Presented by the Prosecution in Rebuttal to Rule 115 Evidence Admitted on appeal, 19 November 2003.
172 - Motion for Leave to Present Further Evidence in Support of Defence Rule 115 Motion to Produce Additional Evidence, 7 August 2003.
173 - Prosecution’s Response to Applicant’s Confidential Motion for Leave to Present Further Evidence in Support of Defence Rule 115 Motion to Produce Additional Evidence, and Prosecution Request for Extension of Page Limit, 15 August 2003.
174 - Decision on Application for Admission of Further Additional Evidence on Appeal, 15 September 2003. Reasons (confidential in part) for this Decision were given on 6 April 2004.
175 - Supplemental Motion to Present Additional Evidence pursuant to Rule 115, 4 November 2003.
176 - Prosecution Response to Defence’s Supplemental Motion to Present Additional Evidence pursuant to Rule 115 (Confidential), 11 November 2003.
177 - Defence Reply to the Prosecution Response to Defence Supplemental Motion to Present Additional Evidence Pursuant to Rule115 (confidential), 17 November 2003.
178 - Decision on the Defence Supplemental Motion to Present Additional Evidence 20 November 2003.
179 - Defence Reply to prosecution’s notice and further Notice and Filing of rebuttal Evidence and Arguments in Compliance with the Appeals Chamber’s Scheduling Order (confidential), 30 October 2003.
180 - Prosecution Motion to Disallow Opinion of Appellant’s Military Expert, Request for Leave to Address recent Challenge to Admissibility of Rebuttal Documents, and Notice of Position on Outstanding Evidentiary Issues, 12 November 2003. The Prosecution filed a Supplement to this Motion on 13 November 2003.
181 - Supplement to Prosecution’s Motion to Disallow Opinion of Appellant’s Military Expert, Request for Leave to Address Recent Challenge to Admissibility of Rebuttal Documents, and Notice of Position on Outstanding Evidentiary Issues, (confidential) 13 November 2003.
182 - Answer to Prosecution’s Motion to Disallow Opinion of Appellant’s Military Expert, Request for Leave to Address Recent Challenge to Admissibility of Rebuttal Documents, and Notice of Position on Outstanding Evidentiary Issues, 17 November 2003.
183 - Response to “Answer to Prosecution’s Motion to Disallow Opinion of Appellant’s Military Expert”, 18 November 2003.
184 - Decision on the Defence Request to Admit a Report of the Defence Military Expert, 20 November 2003.
185 - Prosecution’s Motion for the Admission of Additional Evidence (partly confidential and ex parte annex C), 11 November 2003.
186 - Response to Prosecution’s 11 November 2003 Motion for Admission of Additional Evidence (confidential), 17 November 2003.
187 - Prosecution’s Reply Regarding the Prosecution’s motion of 11 November 03 to Admit Additional Evidence, 18 November 2003.
188 - Decision on the Prosecution’s Motion for Admission of Additional Evidence, 19 November 2003. s