1 Thursday, 15th July, 1999
3 (Open session)
4 (The Appellant entered court)
5 --- Upon commencing at 9.00 a.m.
6 JUDGE SHAHABUDDEEN: Mr. Registrar, will you
7 please call the case next on the list?
8 THE REGISTRAR: Good morning, Your Honours.
9 Case number IT-94-1-A, the Prosecutor versus Dusko
11 JUDGE SHAHABUDDEEN: Mr. Tadic, can you hear
13 THE APPELLANT: (No response)
14 JUDGE SHAHABUDDEEN: Are we in communication
16 THE APPELLANT: Yes.
17 JUDGE SHAHABUDDEEN: Well then, for the
18 record, the Registrar has called the case, and the
19 Appeals Chamber recognises the presence in court of
20 Mr. Tadic, the Appellant.
21 I take it that appearances are as before, but
22 perhaps there could be some utility in reconfirming
24 So, Mr. Clegg, do I take it that you continue
25 to appear before Mr. Tadic in all the appeals,
1 Mr. Livingston with you?
2 MR. CLEGG: That is so.
3 JUDGE SHAHABUDDEEN: Mr. Yapa, do I take it
4 that you continue to appear for the Prosecutor in all
5 the appeals, with you Ms. Hollis?
6 MR. YAPA: Yes, Your Honour.
7 JUDGE SHAHABUDDEEN: Mr. Fenrick, Mr. Keegan,
8 and Ms. Sutherland.
9 MR. YAPA: Yes, Your Honour.
10 JUDGE SHAHABUDDEEN: The Appeals Chamber
11 meets today pursuant to a scheduling order issued by
12 the Chamber on 2nd July, 1999, appointing today as the
13 day for delivery of judgement in this matter.
14 So the Appeals Chamber of this International
15 Tribunal will now deliver judgement. As will be
16 explained, the judgement is limited to two of the three
17 appeals now before the Chamber.
18 But, first, there is a word of explanation.
19 The Appeals Chamber is sitting in the absence of one of
20 its members, Judge Nieto-Navia. In exceptional
21 circumstances, he cannot attend today's sitting. The
22 President has made an Order, dated 2nd July, 1999, of
23 which notice has been given to the parties, authorising
24 the Appeals Chamber to deliver judgement in his
1 Copies of the judgement, which is in writing,
2 will be made available by the Registrar to the parties
3 towards the end of this sitting. Following the
4 practice of the Tribunal, I shall not be reading out
5 the text of the judgement, except for the operative
6 paragraph. Save for a reading of that paragraph, I
7 shall limit myself to introductory matters.
8 The Appeals Chamber has before it three
9 appeals in this case. They arise in this way:
10 The Accused, Dusko Tadic, was indicted on
11 34 counts of crimes within the jurisdiction of the
12 International Tribunal. At his initial appearance
13 before the Trial Chamber on 26 April 1995, he pleaded
14 not guilty to all counts. Three of the counts were
15 subsequently withdrawn at trial. Of the remaining
16 31 counts, the Trial Chamber found the accused guilty
17 on 9 counts, guilty in part on 2 counts, and not guilty
18 on 20 counts. Judgement was handed down on
19 7 May 1997. The related Sentencing Judgement was
20 delivered on 14 July 1997.
21 Both Mr. Tadic and the Prosecutor now appeal
22 against separate aspects of the judgement of the Trial
23 Chamber. Additionally, the Appellant appeals against
24 the Sentencing Judgement. This explains why there are
25 three appeals.
1 A great deal of time was taken up by
2 proceedings relating to requests by the Appellant for
3 leave to admit additional evidence. The main request,
4 which concerned a proposal to produce more than 80 new
5 witnesses, was made on 6 October 1997. It led to a
6 number of steps and was determined on 15 October 1998.
7 Two further requests by the Appellant for leave to
8 admit additional evidence were made on 8 January and
9 19 April 1999 respectively. They were disposed of on
10 25 January and 19 April 1999 respectively.
11 Oral argument on the three appeals was heard
12 by the Appeals Chamber from 19 to 21 April 1999. On
13 21 April 1999, the Appeals Chamber reserved its
15 For reasons to be given, judgement on the
16 Sentencing Appeal will be delivered at a later date.
17 The present judgement relates to the Appellant's Appeal
18 against Judgement and the Prosecutor's Cross-Appeal
19 against Judgement.
20 As to these two appeals, I shall be doing
21 three things. First, I shall introduce the text of the
22 judgement of the Appeals Chamber. Second, I shall give
23 a summary of the findings of the Appeals Chamber.
24 Finally, I shall read out the disposition of the
25 judgement of the Appeals Chamber.
1 I make it clear that the judgement is set out
2 in the text to be handed out. This statement is not
3 the judgement of the Appeals Chamber except for the
4 reading of the disposition of the judgement.
5 Perhaps I should say a word on the structure
6 of the judgement.
7 The judgement is divided into eight
8 sections. Section I sets out the procedural background
9 of the appeals, together with the respective grounds of
10 appeal and the reliefs sought. Sections II and III of
11 the judgement discuss the Appellant's first and third
12 grounds of appeal respectively. Leave to amend the
13 Appellant's Notice of Appeal to include a second ground
14 of appeal concerning the conduct of former counsel was
15 not granted by the Appeals Chamber and is not being
16 addressed. Sections IV to VIII deal with the
17 Prosecution's five grounds of appeal.
18 So I shall now briefly go through the
19 sections of the judgement.
20 First, the Appellant's Appeal against
21 Judgement. There are two grounds. The first ground is
22 as follows:
23 The Appellant's right to a fair trial was
24 prejudiced as there was no "equality of arms" between
25 the Prosecution and the Defence due to the prevailing
1 circumstances in which the trial was conducted.
2 As mentioned earlier, a second ground of
3 appeal is not being proceeded with.
4 The third ground of appeal is as follows:
5 The Trial Chamber erred at paragraph 397 of
6 the Judgement when it decided that it was satisfied
7 beyond reasonable doubt that the Appellant was guilty
8 of the murders of the two men concerned.
9 As for the reliefs sought on behalf of the
10 Appellant, these are as follows:
11 First, that the decision of the Trial Chamber
12 that the Appellant is guilty of the crimes proved
13 against him be set aside.
14 Second, that a re-trial of the Appellant be
16 Third, in the alternative to the relief
17 sought under (i) and (ii) above, that the decision of
18 the Trial Chamber at paragraph 397 of the Judgement
19 that the Appellant is guilty of the murders of the two
20 men concerned be reversed.
21 Fourth, that the sentence of the Appellant be
22 reviewed in the light of the relief sought under (iii)
24 I now pass to the Prosecutor's Cross-Appeal
25 against Judgement. There are five grounds of appeal,
1 and they are as follows:
2 1. The majority of the Trial Chamber erred
3 when it decided that the victims of the acts ascribed
4 to the accused in Section III of the Judgement - that
5 is the Judgement of the Trial Chamber - did not enjoy
6 the protection of the grave breaches regime of the
7 Geneva Conventions of 12 August 1949 as recognised by
8 Article 2 of the Statute of the International Tribunal.
9 2. The Trial Chamber erred when it decided
10 that it could not, on the evidence before it, be
11 satisfied beyond reasonable doubt that the accused had
12 played any part in the killing of any of the five men
13 from the village of Jaskici, as alleged in Counts 29,
14 30 and 31 of the indictment.
15 3. The Trial Chamber erred when it held that
16 in order to be found guilty of a crime against
17 humanity, the Prosecution must prove beyond a
18 reasonable doubt that the accused not only formed the
19 intent to commit the underlying offence but also knew of
20 the context of a widespread or systematic attack on the
21 civilian population and that the act was not taken for
22 purely personal reasons unrelated to the armed
24 4. The Trial Chamber erred when it held that
25 discriminatory intent is an element of all crimes
1 against humanity under Article 5 of the Statute of the
2 International Tribunal.
3 5. The majority of the Trial Chamber erred
4 in the decision of 27 November 1996 in which it denied
5 a Prosecution motion for production of Defence witness
7 On the basis of grounds 1, 2 and 3 of its
8 Cross-Appeal, the Prosecution sought to have the
9 Judgement of the Trial Chamber correspondingly
10 reversed. No reliefs were sought on grounds 4 and 5,
11 but both parties agreed that these grounds raised
12 issues of sufficient importance to justify a
13 pronouncement one way or another.
14 I shall now mention briefly the holdings of
15 the Appeals Chamber.
16 I shall deal first with the Appellant's
17 Appeal against Judgement.
18 As to the first ground, the Appeals Chamber
19 holds against the Appellant's contention that his right
20 to a fair trial was prejudiced.
21 As to the second ground, as already
22 mentioned, this is not being proceeded with.
23 As to the third ground, the Appeals Chamber
24 holds that the Trial Chamber did not err when it
25 decided that it was satisfied beyond reasonable doubt
1 that the Appellant was guilty of the murders of the two
2 men concerned.
3 I come now to the Prosecutor's Cross-Appeal.
4 As to the first ground, the Appeals Chamber
5 holds that there was an international armed conflict
6 and that in consequence the grave breaches regime of
7 the Geneva Conventions applied. The Appeals Chamber
8 also finds that victims were protected persons under
9 the Geneva Convention relative to the Protection of
10 Civilian Persons in Time of War.
11 The accused is therefore found guilty on the
12 counts on which he was acquitted by the Trial Chamber
13 on the sole basis of its findings to the contrary.
14 As to the second ground, the Appeals Chamber
15 holds that the Trial Chamber erred when it decided that
16 it could not, on the evidence before it, be satisfied
17 beyond reasonable doubt that the accused had played any
18 part in the killing of the five men from the village of
19 Jaskici. In the view of the Appeals Chamber, the Trial
20 Chamber also erred on the doctrine of common purpose.
21 As to the third ground, the Appeals Chamber
22 holds that an act carried out for purely personal
23 motives can constitute a crime against humanity.
24 As to the fourth ground, the Appeals Chamber
25 holds that discriminatory intent is not required for
1 all crimes against humanity but only for such crimes
2 relating to persecution.
3 As to the fifth ground, the Appeals Chamber
4 holds that a Trial Chamber may order, depending on the
5 circumstances of the case before it, the disclosure of
6 a Defence witness statement after examination-in-chief
7 of the witness.
8 I come now to the Appellant's Appeal against
9 Sentencing Judgement. As the judgement of the Appeals
10 Chamber explains, sentencing in relation to certain
11 counts on which the Appellant was acquitted at the
12 trial but in respect of which he is now found guilty,
13 will be deferred to a separate sentencing phase. That
14 being so, the Appellant's Appeal against Sentencing
15 Judgement will be determined when a decision is made as
16 to sentencing on those counts.
17 I shall now read the operative paragraph of
18 the judgement of the Appeals Chamber. It is as
20 1. For the foregoing reasons, THE APPEALS
21 CHAMBER, UNANIMOUSLY
22 (1) DENIES the first ground of the
23 Appellant's Appeal against Judgement;
24 (2) DENIES the third ground of the
25 Appellant's Appeal against Judgement;
1 (3) RESERVES JUDGEMENT on the Appellant's
2 Appeal against Sentence until such time as the further
3 sentencing proceedings referred to in sub-paragraph (6)
4 below have been completed;
5 (4) ALLOWS the first ground of the
6 Prosecution's Cross-Appeal, REVERSES the Trial
7 Chamber's verdict in this part, AND FINDS the Appellant
8 guilty on Counts 8, 9, 12, 15, 21 and 32 of the
10 (5) ALLOWS the second ground of the
11 Prosecution's Cross-Appeal, REVERSES the Trial
12 Chamber's verdict in this part, AND FINDS the Appellant
13 guilty on Counts 29, 30 and 31 of the Indictment;
14 (6) DEFERS sentencing on the counts mentioned
15 in sub-paragraphs (4) and (5) above to a further stage
16 of sentencing proceedings;
17 (7) HOLDS that an act carried out for the
18 purely personal motives of the perpetrator can
19 constitute a crime against humanity within the meaning
20 of Article 5 of the Tribunal' Statute relating to such
22 (8) FINDS that the Trial Chamber erred in
23 finding that all crimes against humanity require
24 discriminatory intent and holds that such intent is an
25 indispensable legal ingredient of the offence only with
1 regard to those crimes for which it is expressly
2 required, that is, for the types of persecution crimes
3 mentioned in Article 5(H) of the Tribunal's Statute;
4 (9) HOLDS that a Trial Chamber may order,
5 depending on the circumstances of the case at hand, the
6 disclosure of Defence witness statements after
7 examination-in-chief of the witnesses.
8 Done in both English and French, the English
9 text being authoritative.
10 There then follow the signatures of the five
11 members of the Bench. Dated this 15th day of July,
12 1999, at The Hague, The Netherlands.
13 Judge Nieto-Navia appends a Declaration to
14 this Judgement.
15 Judge Shahabuddeen appends a Separate Opinion
16 to this Judgement.
17 That ends the final part of the Judgement,
18 and the Registrar will now deliver copies of the text
19 to the parties concerned.
20 It remains to add that the Appeals Chamber
21 fixes 30 August 1999 at 2.30 p.m. to hear oral
22 arguments on sentencing for the counts mentioned in
23 sub-paragraphs (4) and (5) of the disposition. Each
24 party will have liberty to file a written brief in
25 respect of that matter by 25 August 1999. The briefs
1 may address the issue as to the relative seriousness in
2 law of the crimes referred to in those counts from the
3 point of view of penalty.
4 As mentioned earlier, the Appeal against
5 Sentencing Judgement will be determined when a decision
6 is made as to sentencing on the counts mentioned in
7 sub-paragraphs (4) and (5) of the disposition.
8 To return to the proceedings thus far, the
9 result of the Appeals Chamber's decision, stated in a
10 formula traditional to some law areas and perhaps more
11 generally understood is this:
12 The Appellant's Appeal against Judgement is
14 The Prosecutor's Cross-Appeal against
15 Judgement is allowed.
16 Will there be any applications from either
17 side at this stage?
18 MR. CLEGG: There is no application on behalf
19 of the Appellant.
20 JUDGE SHAHABUDDEEN: Or the Prosecution?
21 MR. YAPA: We have no application.
22 JUDGE SHAHABUDDEEN: There being no other
23 business, the Appeals Chamber stands adjourned.
24 --- Whereupon proceedings adjourned at
25 9.30 a.m.