Appeals Chamber

The Prosecutor v. Goran Jelisic - Case No. IT-95-10-A

"Judgement"

5 July 2001
Judges Shahabuddeen [Presiding], Vohrah,  Nieto-Navia and Wald and Pocar

Fair trial - Right to be heard - Rule 98 bis(B) of the Rules of Procedure and Evidence - Test to be applied - Notion of proof beyond reasonable doubt - Intent to commit genocide - Proof - Existence of a plan or policy.

(1) The Rules must be read on the basis that they include a right of the parties to be heard in accordance with the judicial character of the Trial Chamber.
(2) The correct test to be applied in respect of Rule 98 bis (B) of the Rules of Procedure is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.
(3) The requisite intent to commit genocide is one to destroy, in whole or in part, a national, ethnical, racial or religious group by one of the prohibited acts enumerated in Article 4 of the Statute.
(4) Proof of specific intent may, in the absence of direct explicit evidence, be inferred from the circumstances of the case, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.
(5) In the context of providing specific intent, the existence of a plan or policy may become an important factor in most cases.

Procedural Background

The Prosecution requested that the case be remitted to a differently constituted Trial Chamber for a new trial.

Under this second ground of appeal, the cross appellant's arguments included the following:

- the sentence passed by the Trial Chamber for the counts in respect of which he had pleaded guilty erroneously took into account Prosecution evidence given at his genocide trial;
- the Trial Chamber handed down an unauthorised double conviction on the deaths of two brothers while the Indictment alleged one killing only;
- the absence of a recognised tariff for sentencing;
- the Trial Chamber failed to accept the remorse shown by the cross-appellant as genuine;
- the Trial Chamber failed to consider that the cross-appellant was not a commander;
- the Trial Chamber failed to consider adequately the role of the cross-appellant in the broader context of the conflict in the former Yugoslavia;
- the Trial Chamber was obliged to consider, but did not, the general practice regarding prison sentences in all the courts of the former Yugoslavia;
- the Trial Chamber failed to give him any credit for his guilty plea;
- the Trial Chamber failed to consider his cooperation with the Prosecution;
- the Trial Chamber failed to give adequate consideration to his youth.

The cross-appellant requested that his sentence be reduced. With regard to cumulative convictions, he asked that his convictions for what he contended was the lesser crime be quashed.

The Judgement

The Appeals Chamber by majority considered that in the circumstances of this case it was "not appropriate to order that the case be remitted for further proceedings", and declined "to reverse the acquittal." It unanimously affirmed the sentence of 40 years' imprisonment.

The Reasoning

The Appeals Chamber first observed "that, in long and complicated cases, such as most of those which come to the Tribunal, it is necessary for the Trial Chamber to exercise control over the proceedings." It added that this "control may well be vigorous, provided of course that it does not encroach on the right of a party to a fair hearing."

PROSECUTION'S APPEAL

First ground of appeal: denial of an opportunity to be heard.

The Appeals Chamber stated "that a party always has a right to be heard on its motion" but that "the hearing need not always be oral." It noted that "there is no provision in the Rules which provides for a right of a party to make oral submissions in connection with a written motion." The Appeals Chamber reiterated that "the practice of the Tribunal allows for a decision on a written motion without any supplementary oral arguments, the motion itself being regarded as affording to the moving party a sufficient right to be heard." In these circumstances, it could find no error in the fact that the Trial Chamber had decided against the claim that the Prosecution "had a right to be heard orally on whether it had a right to be heard on the substantive merits of acquittal" since all the arguments were in fact set out in the Motion "and needed no oral supplement."

The Appeals Chamber found that the Trial Chamber had clearly "considered that, where it was acting proprio motu, the prosecution had no right to be heard at all". It held that the Rules did not provide for such a right which could not be based on the principle audi alteram partem10. The Appeals Chamber expressed the view that "the fact that a Trial Chamber has a right to decide proprio motu [which] entitles it to make a decision" whether or not a party invited it to do so "does not relieve it of the normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made." It added that "[f]ailure to hear a party against whom the Trial Chamber is provisionally inclined is not consistent with the requirement to hold a fair trial11." The Appeals Chamber emphasised that the Rules must be read on the basis "that they include a right of the parties to be heard in accordance with the judicial character of the Trial Chamber." It found that the Prosecution "therefore had a right to be heard on the question of whether the evidence was sufficient to sustain a conviction" that the Trial Chamber denied.

The Appeals Chamber concluded that the Prosecution's first ground of appeal succeeded.

Second ground of appeal: standard to be applied pursuant to Rule 98 bis (B) of the Rules.

The Appeals Chamber considered "whether the references by the Trial Chamber to a test of proof of guilt beyond reasonable doubt were correct." It expressed the view that the matter turned on an interpretation of the text of Rule 98 bis(B). In doing so, the Appeals Chamber reiterated "that the adversarial aspect of the Tribunal's procedure is an important one but not exclusive of other influences." It considered that "the notion of proof beyond reasonable doubt must be retained in the operation of Rule 98 bis(B)." The Appeals Chamber referred to the Foca Decision and to the Decision on Defence Motions for Acquittal rendered by Trial Chamber I on 15 December 2000 in the case The Prosecutor v. Miroslav Kvocka et al.12. It followed its recent holding in the Judgement of 20 February 2001 in The Prosecutor v. Zejnil Delalic et al.13 and added that the capacity of the Prosecution "evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept". The Appeals Chamber reiterated that the correct test is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. It considered that at the close of the Prosecution case, the Chamber may find that the Prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no Defence "evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence", the Prosecution "has not in fact proved guilt beyond reasonable doubt."

The Appeals Chamber consequently found that the Trial Chamber had erred in applying the test for determining whether the Prosecution evidence is insufficient to sustain a conviction. It concluded that the Prosecution's second ground of appeal succeeded.

Third ground of appeal: intent to commit genocide.

First part

The Appeals Chamber first noted that Article 4(2)14 and (3)15 of the Statute "largely reflect[s] Articles II16 and III17 of the Convention on the Prevention and Punishment of the Crime of Genocide" and that "[t]he Statute itself defines the intent required". It found that the requisite intent was one to destroy, in whole or in part, a national, ethnical, racial or religious group18 by one of the prohibited acts enumerated in Article 4 of the Statute. The Appeals Chamber considered that proof of specific intent may, in the absence of direct explicit evidence, be inferred from the circumstances of the case, "such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts."19

It further expressed "the opinion that the existence of a plan or policy is not a legal ingredient of the crime." The Appeals Chamber however considered that "in the context of providing specific intent", this element "may become an important factor in most cases." It added that "[t]he evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime" and referred to a recently rendered oral Decision of the Appeals Chamber of the International Criminal Tribunal for Rwanda on 1 June 2001 in Obed Ruzindana and Clément Kayishema v. The Prosecutor20. In the instant case, the Appeals Chamber reiterated "the necessity to distinguish specific intent from motive."21 It considered "that a question of interpretation of the Trial Chamber's Judgement" was involved and that, read in context, the issue "with which the Judgement was concerned in referring to dolus specialis was whether destruction of a group was intended." The Appeals Chamber concluded that the Prosecution's challenge to the Trial Chamber's finding on this issue was "not well founded, being based on a misunderstanding of the Judgement."

It held that this part of the Prosecution's third ground of appeal therefore failed.

Second part

The Appeals Chamber examined two issues: (1) "whether the Trial Chamber was entitled to make its own evaluation of the relevant evidence"; (2) whether under the correct standard, i.e. on consideration of all relevant evidence submitted by the Prosecution in its case, the Trial Chamber was entitled to conclude that no reasonable trier of fact could find the evidence sufficient to sustain a conviction for genocide beyond reasonable doubt; (3) whether the Trial Chamber had reasonably concluded that, even on the basis of the evidence it had cited and discussed, Goran Jelisic should have been acquitted for lack of the requisite intent by any reasonable trier of fact.

On the first issue, the Appeals Chamber considered that the Trial Chamber "was required to take the evidence at its highest and could not pick and choose among parts of that evidence."

On the second issue, it "reviewed the evidence in the appeal record" and did not concur with "the Trial Chamber's conclusion that it was not sufficient to sustain a conviction." The Appeals Chamber considered that the evidence "in the record could have provided the basis for a reasonable Chamber to find beyond a reasonable doubt" that Goran Jelisic had the intent to destroy the Muslim group in Brcko.

On the third issue, it found that even if the Trial Chamber's conclusion - that there was insufficient evidence to show that Goran Jelisic had intended to destroy the group - was examined on the basis of the evidence specifically referred to by the Trial Chamber itself, "it did not pass the approved standard for acquittal under Rule 98 bis(B)". Consequently, this part of the Prosecution's third ground of appeal was sustained.

The Appeals Chamber emphasised "that the choice of remedy lies within its discretion […] based on the facts of the case before it" and that it was "not obliged, having identified an error, to remit for retrial pursuant to Rule 117(C)22. The Appeals Chamber considered that the question arose as to how it "should exercise its discretion in this case." It found that a retrial would be limited to the issue "of whether he possessed the special intent to destroy in whole or in part, a national, ethnical, racial or religious, as such." It also found that considerable time would have elapsed between the date when "the offences were committed in May 1992 and the date of any potential retrial." Furthermore, the Appeals Chamber took into account the ad hoc nature of the "Tribunal which, unlike a national legal system, means resources are limited in terms of man-power and the uncertain longevity of the Tribunal."

Last, it referred to the notion of "the interests of justice" and did "not consider that the facts of this case constitute appropriate circumstances" within the meaning of Rule 117(C).

CROSS-APPELLANT'S APPEAL

First ground of appeal.

The Appeals Chamber followed its reasoning in the Celebici Appeals Chamber Judgement and found that "cumulative convictions under both Articles 3 and 5 of the Statute are permissible."23

Second ground of appeal.

On the admissibility of evidence at trial on the count of genocide, the Appeals Chamber held that in imposing sentence the Trial Chamber could "take into account evidence presented during the genocide trial, insofar as that evidence was presented to demonstrate facts or conduct" to which Goran Jelisic had pleaded guilty. It pointed out that the important point was "that in considering evidence for the purpose of sentencing, the Trial Chamber should [have] afforded the cross-appellant an opportunity to test the evidence in cross-examination and/or by way of evidence adduced" by Goran Jelisic himself. Accordingly, the Appeals Chamber concluded that this part of the second ground of appeal failed.

As to the unauthorised double conviction for the killing of Huso and Smajil Zahirovic whereas the Indictment alleged the killings in the alternative, it should be reiterated that the cross-appellant had pleaded guilty to the killing of only one of the two brothers. The Appeals Chamber quashed the conviction for one of the murders and considered unsatisfactory that which of the two brothers Goran Jelisic had killed had not been established.

It found that the question was "whether the totality of that conduct [wa]s materially affected by the Trial Chamber's error of convicting the cross-appellant of one additional murder." The Appeals Chamber reiterated the finding of the Celebici Appeals Chamber Judgement "that a person who is convicted of many crimes should generally receive a higher sentence than a person convicted of only one of those crimes." (Para. 771) It added that "[a] sentence imposed should reflect the inherent gravity of the criminal conduct" as stated in Article 24(2) of the Statute24 and referred to its Judgement of 24 March 2000 in the case The Prosecutor v. Zlatko Aleksovski25. The Appeals Chamber expressed the opinion that the additional murder of which Goran Jelisic had been convicted "does not substantially influence the totality of his criminal conduct."

It found that the Trial Chamber had "erred in finding the cross-appellant guilty of two murders" and therefore quashed the conviction of one.

With regard to the cross-appellant's submission that the Trial Chamber had erred in the exercise of its discretion when imposing sentence, several sub-grounds were raised and will be examined in turn. On the absence of a recognised tariff for sentencing, the Appeals Chamber considered "that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences." It stated that "[w]here there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed". It held however that it was "difficult and unhelpful to lay down a hard and fast rule on the point" and that there were "a number of variable factors to be considered in each case."26

Specifically, the Appeals Chamber stated that "[t]he Statute and the Rules leave it open to the Trial Chamber to consider the mitigating effect of a guilty plea on the basis that the mitigating weight to be attached to the plea lies in the discretion of the Trial Chamber." In this case, the Appeals Chamber noted that the Trial Chamber had considered "the guilty plea in mitigation." It pointed out that "[t]he weight to be attached to it is at the discretion of the Trial Chamber".

The Appeals Chamber noted that the notion of "substantial cooperation", within the meaning of Rule 101(B)(ii)27, "is not defined in the Rules" and held that its interpretation is also left to the discretion of the Trial Chamber. It considered also that the youth of an accused is a factor which should be taken into account in sentencing.

The Appeals Chamber found that the Trial Chamber has the discretion to impose life imprisonment and that it also has a broad discretion as to which factors it may consider in sentencing and the weight to attribute to them. Generally, the Appeals Chamber found that "the cross-appellant has failed to show an error in the exercise of the Trial Chamber's discretion."

Separate Opinion of Judge Nieto-Navia

Judge Nieto-Navia appended a Separate Opinion in which he did "not agree that there is an absolute obligation on the Trial Chamber to hear from the Prosecution." The Judge added that "an interpretation of the Rules accords with a view that a decision under Rule 98 bis lies within the discretion of the Trial Chamber and that it may reach it with or without the assistance of submissions from the Prosecution." Judge Nieto-Navia expressed the view that "if it is totally convinced, based on the evidence so far presented, that there is no need to hear further argument, it is within its competence to make that decision." However, the Judge considered that "whether or not in a particular case a Trial Chamber is more comfortable making this decision with the benefit of a form of closing argument from the Prosecution is a matter solely within its discretion - it may equally reach this decision without further assistance from the parties." In the circumstances of the instant case, Judge Nieto-Navia believed that the Trial Chamber had "erred in finding that the Prosecution could not have a right to be heard on the question of whether the evidence was sufficient to sustain a conviction." Consequently, the Judge did not "dissent from the Appeals Chamber's conclusions on this point" although he disagreed "with the general statement that the Prosecution has an absolute right to be heard in the case of a proprio motu decision under Rule 98 bis."

Partial Dissenting Opinion of Judge Shahabuddeen

With respect to the appeal by the Prosecution, Judge Shahabuddeen agreed with the Judgement of the Appeals Chamber that the Trial Chamber had erred in acquitting Goran Jelisic at the close of the Prosecution case "on the ground that the evidence was insufficient to sustain a conviction ("mid-trial acquittal")" but dissented "in so far as, having so held, it declined to reverse the acquittal and to remit the case for a continuation of the proceedings, including a fresh hearing by a recomposed bench if the previous bench could not be brought together."

The Judge emphasised that "notwithstanding its finding that the acquittal was erroneous, the Appeals Chamber has power not to remit the case for a continuation of the proceedings." However, Judge Shahabuddeen considered "that the power has not been correctly exercised in this case." It appeared to him "that, where the Appeals Chamber upholds the substance of a prosecution appeal from a mid-trial acquittal (as it has done in this case), the logical course would be to remit for a continuation of the hearing". The Judge pointed out that "a decision that the acquittal was erroneous but that the case should nevertheless not be remitted for a continuation of the hearing has to be based on exceptional grounds" which do not exist here. Judge Shahabuddeen noted that the Appeals Chamber based its decision on "matters other than the merits of the case" relating "to the concept of judicial economy." The Judge insisted that he "would remit."

Partial Dissenting Opinion of Judge Wald

Judge Wald could not see that the Appeals Chamber had "any choice but to remand the case to a Trial Chamber for further proceedings". The Judge noted that "the resources of the Tribunal are stretched thin" and that "there may well be reason to prioritise cases involving allegations of State-planned and executed crimes, rather than individualistic or opportunistic crimes." Judge Wald referred to the book on Genocide in International Law published in 2000 by William Schabas who stressed "that the currency of this 'crime of all crimes'28 should not be diminished by use in other than large scale state-sponsored campaigns to destroy minority groups, even if the detailed definition of genocide" in the Statute would allow broader coverage. Judge Wald stated that she does not believe the Appeals Chamber, either pursuant to the Statute or the Rules or principles discerned from national jurisdictions, has the authority to decline to reverse the acquittal "of an alleged crime as serious as genocide, after it has, itself, authoritatively decided that the trial was aborted by a mistaken acquittal under Rule 98 bis."

The Judge pointed out that it could not "be maintained that a decision by the Appeals Chamber not to order a retrial in this case could not affect the sentence ultimately imposed" on the accused. Moreover, the Judge reviewed the two English cases cited in the Judgement and did not find that it "reveals any generally recognised inherent power in appellate bodies to prevent the prosecution of a crime in the interests of judicial economy, or that such a power is essential to a court of law's functioning." Judge Wald added that "[t]he discovery of a power in the Appeals Chamber to refuse to allow the Prosecutor discretion whether to proceed with a trial mistakenly cut off midway has serious implications for the relationship between the Prosecutor and the Judges."

The Judge referred to the Judgements and Sentences rendered by Trial Chambers I and II of the International Criminal Tribunal of Rwanda on 27 January 2000 and 21 May 1999 in the cases The Prosecutor v. Alfred Musema29 and Clément Kayishema and Obed Ruzindana30 respectively and expressed the view that "genocide is at the apex" of a hierarchy of "seriousness" among the crimes31. Thus, "the view that there is no additional public interest in determining a genocide charge simply because the underlying killings have already been dealt with as crimes against humanity and violations of the laws or customs of war may be problematic in the development of international criminal law."

Judge Wald also stated that she does "not believe it falls within the judicial function to veto a retrial on 'practical' or 'policy' grounds." She pointed out that "[a]ny such decision based on 'judicial economy' inevitably reflects judges' views as to which cases are 'worthy' and which are not." The Judge added that the Prosecutor "must calibrate legal and policy considerations in making her choices on how to utilise limited resources." Judge Wald stressed that "[t]o recognise a parallel power in judges to accept or reject cases on extra-legal grounds invites challenges to their impartiality as exclusively definers and interpreters of the law." She expressed her fear that "the Appeals Chamber is entering into strange and uncharted terrain […] by announcing a power to declare that prosecution of a crime as serious as genocide may not go forward because of extra-record considerations."

The Judge concluded that she "would not order a retrial" but "would remit the case to a Trial Chamber […] for the Prosecutor to choose her course of action in light of the developments" which have occurred since the original Indictment "was issued in 1995 and the actions taken by the Appeals Chamber in this case." She therefore desisted "from the declination to reverse the acquittal on the genocide count and the denial of a remand."

Partial Dissenting Opinion of Judge Pocar

Judge Pocar disagreed "with the view expressed by the majority of the Appeals Chamber on […] the consequences of the test to be applied under Rule 98 bis(B)".

The Judge stated his belief "that the Trial Chamber did not err" in respect of the standard to be applied under Rule 98 bis(B).

Therefore, Judge Pocar expressed "the view that the Appeals Chamber should not disturb the factual findings made by the Trial Chamber in this case."

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1. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."
2. "The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges."
3. The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-T, Trial Chamber I, Judgement, 14 December 1999 (hereinafter the "Jelisic Trial Chamber Judgement", summarised in Judicial Supplement No. 10), para. 16.
4. Idem.
5. "1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:

(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.

2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers."

6. See The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23/1-T, Trial Chamber II, Decision on Motion for Acquittal, 3 July 2000 (hereinafter the "Foca Decision", summarised in Judicial Supplement No. 18).
7. "1. 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."

8. Jelisic Trial Chamber Judgement, paras. 88 to 98.
9. Jelisic Trial Chamber Judgement, paras. 99 to 108.
10. Audi alteram partem, which means hear the other side, is a principle of natural justice according to which a decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his or her case and to know and answer the other party’s case.
11. Article 21 of the Statute provides that:

"1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt."

12. The Prosecutor v. Miroslav Kvocka et al. ("Omarska & Keraterm Camps"), Case No. IT-98-30/1-T, Trial Chamber I, Decision on Defence Motions for Acquittal, 15 December 2000 (summarised in Judicial Supplement No. 21).
13. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (hereinafter the "Celebici Appeals Chamber Judgement", summarised in Judicial Supplement No. 23), para. 434.
14. "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."

15. "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."

16. "In the present Convention, 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."

17. "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 of genocide."

18. See The Prosecutor v. Radovan Karadzic and Ratko Mladic ("Bosnia and Herzegovina"), Case No. IT-95-5-R61 & IT-95-18-R61, Trial Chamber I, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, in which the Trial Chamber considered "that it must focus more specifically on the analysis of the intention ‘to destroy in whole or in part a national, ethnical, racial or religious group’." (Para. 94)
19. See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, Judgement, 2 October 1998, in which the Trial Chamber declared that genocidal intent could be inferred from the physical acts and specifically "their massive and/or systematic nature of their atrocity". It held that "[i]n the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact." The Trial Chamber considered "that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act." The Trial Chamber expressed "the opinion that it is possible to infer the genocidal intention that presided over the commission of a particular act, inter alia, from all acts or utterances of the accused, or from the general context in which other culpable acts were perpetrated systematically against the same group, regardless of whether such other acts were committed by the same perpetrator or even by other perpetrators." (Para. 477)
20. Obed Ruzindana and Clément Kayishema v. The Prosecutor, Case No. ICTR-95-1-A, Appeals Chamber, Decision, 1 June 2001.
21. See The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-T, Trial Chamber II, Judgement, 14 July 1997, in which the Trial Chamber took into account the fact that "[t]he maximum sentence, namely the death penalty, under the SFRY Penal Code could be imposed in a murder case under the codes of the former Yugoslav republics, where the crime is aggravated by any of a number of factors, including where the convicted person […] kills out of a base or low motive, which the Trial Chamber considers to include religious, ethnic or political persecution; or commits a multiple homicide." The Trial Chamber found that "[t]hese factors have been taken into account in determining the appropriate sentence." (Para. 45); The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (summarised in Judicial Supplement No. 1), in which the Trial Chamber considered that motive will normally be taken into account in assessing the appropriate penalty once the offender’s guilt has been determined: "[g]enerally, motive is not an essential ingredient of liability for the commission of an offence. It is to some extent a necessary factor in the determination of sentence after guilt has been established." (Para. 1235) See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6), in which the Judges considered that the conclusion is "warranted that the relevant case-law and the spirit of international rules concerning crimes against humanity make it clear that under customary law, ‘purely personal motives’ do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated." (Para. 270) See also The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-T, Trial Chamber I, Judgement, 14 December 1999, in which the Trial Chamber considered the sentence and stated that the crimes ascribed to the accused had been given two distinct characterisations but formed part of "a single set of crimes committed over a brief time span which does not allow for distinctions between their respective criminal intention and motives." In view of the overall consistency, the Trial Chamber expressed the opinion that it was appropriate to impose a single penalty for all the crimes of which the accused had been found guilty (para. 137). See also The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13), in which the Trial Chamber considered that "[t]he motive of the crime is liable to constitute an aggravating circumstance when it is particularly flagrant." (Para. 785)
22. "In appropriate circumstances the Appeals Chamber may order that the accused be retried according to law."
23. See also The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber II, Judgement, 22 February 2001 (summarised in Judicial Supplement No. 23), in which the finding of the Celebici Appeals Chamber Judgement was applied to Articles 3 and 5 of the Statute (para. 552).
24. "In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person."
25. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13), para. 182; see also The Prosecutor v. Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Trial Chamber II, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 6), in which the Judges held that "[t]he sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused." (Para. 852); The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-A, Appeals Chamber, Judgement, 19 October 2000, in which the Judges noted that "[a] sentence imposed should reflect the inherent gravity of the criminal conduct." (Para. 125).
26. See also The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-A, Appeals Chamber, Judgement, 21 July 2000 (summarised in Judicial Supplement No. 18), para. 238; Celebici Appeals Chamber Judgement, paras. 715 and 718.
27. "In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as […] any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction".
28. Trial Chamber I of the International Criminal Tribunal for Rwanda characterised genocide as the "crime of the crimes" in three Judgements: The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-T, 4 September 1998, para. 16; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 2 October 1998, para. 8; The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-T, 5 February 1999, para. 4.
29. The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Trial Chamber I, Judgement, 27 January 2000.
30. The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber II, Judgement, 21 May 1999.
31. See also The Prosecutor v. Drazen Erdemovic ("Pilica Farm"), Case No. IT-96-22-A, Appeals Chamber, Judgement, 7 October 1997 (hereinafter the "Erdemovic Appeals Chamber Judgement"), Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 20 et seq.; The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-Abis, Appeals Chamber, Judgement in Sentencing Appeals (hereinafter the "Tadic Appeals Chamber Sentencing Judgement"), 26 January 2000 (summarised in Judicial Supplement No. 11), Separate Opinion of Judge Cassese, para. 14; The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-A, Appeals Chamber, Judgement, 21 July 2000 (hereinafter the "Furundzija Appeals Chamber Judgement", summarised in Judicial Supplement No. 18), Declaration of Judge Lal Chand Vohrah, paras. 5 et seq.
In the opposite sense, see Erdemovic Appeals Chamber Judgement, Separate and Dissenting Opinion of Judge Li, paras. 19 et seq.; Tadic Appeals Chamber Sentencing Judgement, para. 69 and Separate Opinion of Judge Shahabuddeen; Furundzija Appeals Chamber Judgement, paras. 240 to 243; The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber II, Judgement, 22 February 2001 (summarised in Judicial Supplement No. 23), para. 851.