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1 Guidance on issues to be addressed in Final Briefs and/or Closing
2 Arguments.
3 I. Each party (unless otherwise specified) is requested in its
4 Final Brief and/or Closing Arguments to consider the following legal
5 questions and to provide definitions where appropriate. The parties are
6 asked to elaborate on any previous arguments with reference to the Trial
7 Chamber's 98 bis Decision.
8 Counts 1 and 2: Genocide and complicity in genocide.
9 1. What is envisaged by Article 4(2)(c) "deliberately inflicting
10 on the group conditions of life calculated to bring about its physical
11 destruction in whole or in part"? What is meant by "physical
12 destruction"?
13 2. How should the overlap between Article 4(3) and Article 7(1)
14 be conceptualised?
15 3. What is the mens rea for complicity in genocide?
16 4. How should aiding and abetting genocide as opposed to
17 complicity in genocide be defined?
18 Count 4: Extermination.
19 1. How, if at all, should the minimum size of the victimised
20 population be defined?
21 2. Which circumstances are considered relevant to establish the
22 accused's mens rea for the alleged campaign of extermination? (OTP).
23 Count 5: Murder as a violation of the laws and customs of war.
24 1. How should the question of foreseeability be dealt with?
25 2. Who are the victims of acts alleged to have been submitted by
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1 Dr. Stakic? (OTP).
2 Count 6: Persecution.
3 1. For the crime of persecution, must the actus reus be
4 discriminatory, or is it sufficient that the mens rea is discriminatory?
5 2. Does "physical violence" refer only to beatings or physical
6 assault, or may this crime include other acts?
7 3. Do the allegations of "physical violence" and "destruction,
8 wilful damage and looting of residential and commercial properties in the
9 parts of towns, villages and other areas in Prijedor Municipality"
10 correspond to crimes enumerated in the Statute? If yes, which ones?
11 (OTP).
12 4. Can the denial of the following rights: (i) employment, (ii)
13 freedom of movement, (iii) proper judicial process and (iv) proper medical
14 care, be considered as "gross and blatant" denials of the fundamental
15 rights reaching the same level of gravity as other acts enumerated in
16 Article 5? Could at least some of them be considered as "justified" in
17 the context of the conflict in which they occurred (e.g. establishment of
18 curfew, checkpoints)?
19 5. The Appeals Chamber Judgement in the Kunarac case provides a
20 very broad definition of the crime of rape. Based on this definition,
21 what remains for the crime of sexual assault? Similarly, based on the
22 legal definition of torture set forth in the Kunarac Appeals Judgement,
23 what remains of "beatings"?
24 Counts 7 and 8: Deportation and forcible transfer.
25 1. Does the crime of "other inhumane acts (forcible transfer)"
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1 under Article 5(i) of the Statute fulfil the requirements of criminal law,
2 in particular the principle of legality/nullem crimen sine lege?
3 2. Must the victims be moved to an area under an opposing party's
4 control, or does the prohibition also apply if they are moved to an area,
5 different from the one in which they are lawfully present, that is under
6 the deporting party's control?
7 3. Could forcible transfer, as described in question 2, be
8 legally regarded as deportation and/or an act of persecution? (OTP: If
9 so, what remains under count 8?)
10 How long must the dislocation of the population endure?
11 5. Should repatriation of victims to their original place of
12 residence by the deporting party be recognised under the law?
13 II. The OTP is requested in its Final Brief and Closing Arguments
14 to provide clarification on the factual issues listed below. The Defence
15 is invited to present arguments in relation to these issues. Caveat: The
16 absence of a question in relation to certain facts does not mean that
17 those facts have already been established beyond a reasonable doubt.
18 1. The crucial facts that support the allegations that Dr. Stakic
19 had the specific intent (dolus specialis) necessary for genocide under
20 Article 4(3)(a).
21 2. The protected groups for the purpose of the definition of
22 genocide in this case.
23 3. The targeted groups for the purpose of the definition of
24 persecution and extermination in this case.
25 4. The facts to support the alleged denial of proper medical care
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1 (i.e. only the conditions in the camps?).
2 5. The discriminatory element for the alleged denials of
3 fundamental human rights (e.g. did the curfew limit the freedom of
4 movement of the non-Serb population only, or did it apply to everyone in
5 the municipality?)
6 6. The crucial evidence to establish the intent of Dr. Stakic to
7 discriminate.
8 7. The key evidence to establish the authority of the Crisis
9 Staff over the police and the army (especially in relation to the camps).
10 8. The evidence to support the allegation in paragraph 17(j) that
11 the Crisis Staff "investigated, arrested and prosecuted persons".
12 9. The evidence to support the allegation that the Crisis Staff
13 ordered the military attacks on Hambarine and other villages and areas
14 alleged in the indictment.
15 10. The crucial evidence (testimonial and/or documentary) to
16 establish the link between Dr. Stakic's acts and the crimes alleged in the
17 indictment.
18 11. The evidentiary basis for the allegation that the Crisis
19 Staff established the detention facilities (apart from the Omarska and
20 Trnopolje camps).
21 12. The evidence to support the allegation that the police and/or
22 the army were responsible for security at the Trnopolje camp.
23 13. The evidence to support the allegation in paragraph 41(3)
24 that the conditions in the camps included "polluted water"
25 and "insufficient or non-existent medical care".
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1 14. The evidence to support the allegation in paragraph 44(7),
2 namely "the killing of a number of people in the village of Brisevo on or
3 about 24 July 1992"?
4 15. The evidence to support the allegation in paragraph 46 of the
5 indictment. What is the OTP's basis for including the Prijedor JNA
6 barracks, the Miska Glava Community Centre and the SUP Building, Prijedor
7 on the same level as the Omarska, Keraterm and Trnopolje camps?
8 16. The evidence to support the allegations in paragraph 47(5),
9 47(6) and 47(10)?
10 17. The factual basis for the foreseeability and responsibility
11 of Dr. Stakic in relation to the allegations set out in paragraphs 47(7)
12 and 47(8).
13 18. The evidentiary basis for the allegation in paragraph 49(3)
14 that female detainees were raped in the Keraterm camp.
15 19. The evidentiary basis for the allegation in paragraph 49(5)
16 that non-camp personnel were given access to the camps.
17 20. The evidentiary basis for the allegation in paragraph 49(7)
18 that predominantly prominent members of the Bosnian Muslim and Croat
19 communities were interrogated, beaten and tortured at the Prijedor SUP and
20 the JNA barracks.
21 21. The evidentiary basis for the allegations in paragraphs
22 54(3)(a)(vii) and 54(3)(a)(vii).
23 22. The evidentiary basis for the allegation in paragraph
24 54(b)(ix).
25 23. Is it sill the OTP's case that there was a joint criminal
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1 enterprise/co-perpetratorship on both a horizontal and vertical level? If
2 yes, what is the evidentiary basis?
3 III. The OTP is invited to consider whether to withdraw the
4 following allegations on the basis that they are not sufficiently
5 precise:
6 1. The allegation in paragraph 54(3)(a)(xiii).
7 2. The allegation in the last paragraph of 54(3)(b) beginning
8 with "during and after the attacks...".
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