19 April 2004
· On 2 August 2001, Trial Chamber I rendered its Judgement in the Krstic case (“Trial Chamber Judgement”).1 It found Radislav Krstic guilty of genocide, persecution for murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property of Bosnian Muslim civilians, murder as a violation of the laws or customs of war, and sentenced him to 46 years’ imprisonment.2
· On 15 and 16 August 2001, the Prosecution and the Defence respectively filed their notices of appeal of the Trial Chamber Judgement.
· The Prosecution filed its Appeal Brief on 14 November 2001. The Defence filed its Response to the Prosecution’s Appeal on 21 December 2001.The Prosecution filed its Brief in Reply on 14 January 2002.
· The Defence filed confidentially its Appeal Brief on 10 January 2002. The Prosecution filed confidentially its Response to the Defence Appeal Brief on 19 February 2002. The Defence filed its Brief in Reply on 6 March 2002.
· The public versions of the Defence Appeal Brief and of the Prosecution Response to the Defence Appeal Brief were filed respectively on 7 and 8 May 2002.
Grounds of Appeal
The Prosecution based its appeal on two grounds. First, it appealed against the Trial Chamber’s conclusion on impermissibly cumulative convictions. Second, it appealed against the sentence imposed by the Trial Chamber and requested the imposition of a life sentence on Radislav Krstic, with a minimum of 30 years imprisonment.
The Defence based its appeal on four grounds. First, it appealed against the conviction for genocide of Radislav Krstic on the basis that factual and legal errors had been committed by the Trial Chamber. Second, it appealed on the basis of various disclosure practices of the Prosecution which it alleged deprived Krstic of a fair trial. Third, it alleged that the Trial Chamber made a number of factual and legal errors. Fourth, it appealed against the sentence and alleged that the Trial Chamber failed to adequately take into account the sentencing practice in the former Yugoslavia and to give sufficient weight to the mitigating circumstances.
The Appeals Chamber:
· set aside, Judge Shahabuddeen dissenting, Radislav Krstic’s conviction as a participant in a joint criminal enterprise to commit genocide and found, Judge Shahabuddeen dissenting, Radislav Krstic guilty of aiding and abetting genocide (Count 1);
· resolved that the Trial Chamber incorrectly disallowed Radislav Krstic’s convictions as a participant in extermination and persecution (Counts 3 and 6) committed between 13 and 19 July 1995, but that his level of responsibility was that of an aider and abettor in extermination and persecution as crimes against humanity;
· set aside, Judge Shahabuddeen dissenting, Radislav Krstic’s conviction as a participant in murder under Article 3 (Count 5) committed between 13 and 19 July 1995, and found, Judge Shahabuddeen dissenting, Radislav Krstic guilty of aiding and abetting murder as a violation of the laws or customs of war;
· affirmed Radislav Krstic’s convictions as a participant in murder as a violation of the laws or customs of war (Count 5) and in persecution (Count 6) committed between 10 and 13 July 1995 in Potocari;
· dismissed the Defence and the Prosecution appeals concerning Radislav Krstic’s convictions in all other respects;
· dismissed the Defence and the Prosecution appeals against Radislav Krstic’s sentence and imposed a new sentence of 35 years’ imprisonment.
Article 4 of the Tribunal’s Statute (Genocide) reads as follows:
The Defence argued that the Trial Chamber’s definition of the part of the national group Krstic was found to have intended to destroy was unacceptably narrow. It also argued that the Trial Chamber erroneously enlarged the term “destroy” in the prohibition of genocide to include the geographical displacement of a community.
The targeted group, identified in the Indictment and accepted by the Trial Chamber, was that of the Bosnian Muslims.4 As evident from the Indictment, Krstic was not alleged to have intended to destroy the entire national group of Bosnian Muslims but only part of that group, namely the Bosnian Muslims from Srebrenica.
Although Trial Chambers of this Tribunal had already addressed the issue of what is covered by the requirement that the targeted group be targeted “in part”, the Appeals Chamber had not yet addressed the issue.
In Jelisic, the first case to confront the question, Trial Chamber I held that “[g]iven the goal of the [Genocide] Convention5 to deal with mass crimes, it is widely acknowledged that the intention to destroy must target at least a substantial part of the group”.6 Similarly, the Sikirica Trial Chamber held that “[t]his part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group”.7
Trial Chambers of the International Criminal Tribunal for Rwanda (“ICTR”) have also considered the question and reached the same conclusion. The Trial Chamber in Kayishema found that the term “in part” required the “intention to destroy a considerable number of individuals who are part of the group”.8 The definition was refined by the Trial Chambers in the Bagilishema and Semanza cases to the effect that the intention to destroy must target at least a substantial part of the group.9
In the present case the Appeals Chamber confirmed that “[t]he intent requirement of genocide under Article 4 of the Statute is […] satisfied where the evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group”.10 It then turned to the determination of when the targeted group is substantial enough to meet this requirement.
Substantial part of a group
The Jelisic and the Sikirica Trial Chambers both explained that the substantiality requirement captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact that the destruction of the targeted part will have on the overall survival of the group.11 In the present case, the Appeals Chamber held the following:
The Appeals Chamber added, drawing from historical examples of genocide, that the “area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered” as a factor which, combined with others, can inform the analysis as to whether the targeted group is substantial.13 It made clear, though, that all the above-mentioned factors are “neither exhaustive nor dispositive”, and are only “useful guidelines” the applicability of which and relative weight will vary depending on the circumstances of each case.14
In the present case, the Appeals Chamber confirmed that the identification by the Trial Chamber of the Bosnian Muslims of Srebrenica as the targeted group abided by the above guidelines. The identified protected group was the national group of Bosnian Muslims. Although the targeted group constituted a small percentage of the overall Muslim population of Bosnia and Herzegovina at the time, the Appeals Chamber found that the “importance of the Muslim community in Srebrenica [was] not captured only by its size”.15 It inter alia concurred with the Trial Chamber that Srebrenica was of immense strategic importance to the Bosnian Serb leadership, was prominent in the eyes of the Bosnian Muslims and the international community, and that the fate of the Bosnian Muslims of Srebrenica was emblematic of that of all Bosnian Muslims.
The Defence did not in fact argue that the characterisation of the Bosnian Muslims of Srebrenica as a “substantial part” of the targeted group contravened Article 4 of the Statute but contended that the Trial Chamber had, to enter a finding of guilt, impermissibly measured the number of Bosnian Muslim men of military age Krstic had killed against the Bosnian Muslim population of Srebrenica. The Appeals Chamber found that the Defence misunderstood the analysis of the Trial Chamber, which in fact “treated the killing of the men of military age as evidence from which to infer that Radislav Krstic and some members of the VRS [Bosnian Serb Army] Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica, the only part of the protected group relevant to Article 4 analysis”.16 It dismissed the Defence’s appeal on this issue.
Intent to “destroy”
The Defence argued that the Trial Chamber impermissibly broadened the definition of genocide by concluding that an effort to displace a community from its traditional residence is sufficient to show that the alleged perpetrator intended to destroy a protected group. The Defence alleged that, by including a geographic displacement, the Trial Chamber departed from the established meaning of the term genocide in the Genocide Convention as applying only to instances of physical or biological destruction of a group.
As noted by the Appeals Chamber, the Genocide Convention and customary law in general prohibit only the physical or biological destruction of a human group.17 Indeed the Trial Chamber acknowledged this limitation and further stated that “an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.”18
As noted by the Appeals Chamber, the Trial Chamber did not rely mainly on the decision of the VRS forces to transfer the women, children and elderly within their control to other areas of Muslim-controlled Bosnia. The main evidence the Trial Chamber relied upon was the killing of the Bosnian Muslims men of military age as it impacted on the survival of the community. The Appeals Chamber found that 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 some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica. As the Trial Chamber found in the Stakic case, “[t]he expulsion of a group or part of a group does not in itself suffice for genocide”.19 Nevertheless a Trial Chamber may still rely on it as evidence of the specific intent of genocide. In fact the Appeals Chamber held that “[t]he genocidal intent may be inferred, among other facts, from evidence of ‘other culpable acts systematically directed against the same group’”.20
The Appeals Chamber finally addressed the argument of the Defence that the record of the trial contains no statement by members of the VRS indicating that the killing of the Bosnian Muslims was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica. It held that the absence of such statement is not determinative since, in the absence of direct evidence of genocidal intent, the intent may still be inferred from the factual circumstances of the case.21 It further held:
“The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified. If the crime committed satisfies the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered.”22
In the present case the Appeals Chamber found that “[t]he fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here. This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.”23. It dismissed the Defence’s appeal on this issue.
Aiding and abetting genocide
The Trial Chamber found that Krstic knew that Drina Corps personnel and resources were being used to assist in the executions of the Bosnian Muslims but did not take any steps to punish his subordinates for that participation.24 It 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. The Appeals Chamber, however, found that “knowledge on the part of Radislav Krstic, without more, is insufficient to support the further inference of genocidal intent on his part”.25 It recalled that genocide is “one of the worst crimes known to mankind [whose] gravity is reflected in the stringent requirement of specific intent”.26 It found that Radislav Krstic was not a supporter of the VRS Main Staff’s plan to execute the Bosnian Muslims and that he could not be found guilty of genocide as a principal perpetrator.
The Appeals Chamber held that although Krstic was not a supporter of the genocidal plan, he permitted the Main Staff to call upon Drina Corps resources and to employ those resources. It therefore found Krstic criminally responsible as an aider and abettor to genocide, referring to para. 52 of the Krnojelac Appeals Judgement in which it held:
“The Appeals Chamber considers that the aider and abettor in persecution, an offence with a specific intent, must be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration.”27
It held: “The conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal”.28
For convictions of complicity in genocide, the Appeals Chamber found some authority to the effect that such conviction, “where it prohibits conduct broader than aiding and abetting29, requires proof that the accomplice had the specific intent to destroy a protected group”.30 In its view, “Article 4 of the Statute is most naturally read to suggest that Article 4(2)’s requirement that a perpetrator possess the requisite ‘intent to destroy’ a protected group applies to all the prohibited acts enumerated in Article 4(3), including complicity in genocide”.31 Therefore a conviction of complicity in genocide would have required a showing of genocidal intent.
Finally, the Appeals Chamber found that the fact that the Trial Chamber did not identify individual members of the Main Staff of the VRS as the principal participants in the genocidal enterprise does not negate the finding that Radislav Krstic was aware of their genocidal intent. It held: “A defendant may be convicted for having aided and abetted a crime which requires specific intent even where the principal perpetrators have not been tried or identified”.32 Accordingly, the Appeals Chamber set aside Krstic’s conviction as a participant in a joint criminal enterprise to commit genocide and entered a finding of guilt for aiding and abetting genocide.
Disclosure of exculpatory evidence
Remedy for non-compliance with the obligation to disclose exculpatory evidence
The Defence alleged in its Appeal Brief that the Prosecutor had failed to comply with its disclosure obligation pursuant to Rule 68.33 The Appeals Chamber held that when the Defence seeks a remedy in such case, the Defence “must show (i) that the Prosecution has acted in violation of its obligations under Rule 68, and (ii) that the Defence’s case suffered material prejudice as a result.”34 In other words, if the Defence satisfies the Tribunal that there has been a failure by the Prosecution to comply with Rule 68, the Tribunal - in addressing the aspect of appropriate remedies - will examine whether or not the Defence has been prejudiced by that failure to comply before considering whether a remedy is appropriate.35
Identification of exculpatory evidence
The Defence submitted that the Prosecution had failed to identify which materials were actually exculpatory. In the Krajisnik and Plavsic case, the Trial Chamber, while recognising that Rule 68 does not require the Prosecution to identify the material being disclosed to the Defence as exculpatory, held that “as a matter of practice and in order to secure a fair and expeditious trial, the Prosecution should normally indicate which material it is disclosing under the Rule […]”.36
In the present case, the Appeals Chamber held that “the fact that there is no prima facie obligation on the Prosecution to identify the disclosed Rule 68 material as exculpatory does not prevent the accused from arguing, as a ground of appeal, that he suffered prejudice as a result of the Prosecution’s failure to do so”.37 It dismissed this ground of appeal as the Defence failed to identify any prejudice.
Disclosure of exculpatory evidence
The Defence submitted that it was only permitted to view copies of exculpatory evidence and was in fact refused copies of the materials. The Appeals Chamber held that “[o]n a plain reading of Rule 68, the Prosecution is merely obliged to disclose the existence of Rule 68 material, not to provide the actual material itself”.38
Since the Defence had not shown that it suffered prejudice during the trial, the Appeals Chamber dismissed this ground of appeal.
The Appeals Chamber found that the Prosecution did not always meet its obligations under Rule 68 and that in such case “[t]he consequences are governed by Rule 46 (Misconduct of Counsel)39 and Rule 68bis (Failure to Comply with Disclosure)40”.41
Nevertheless, in light of the absence of material prejudice to the Defence, the Appeals Chamber could not impose any sanctions on the Prosecution. It was “persuaded that […] the Prosecution acted in good faith in the implementation of a systematic disclosure methodology which, in light of the findings [in the present case] must be revised so as to ensure future compliance with [its] obligations”.42 It ordered that the Prosecution “investigate the complaints and take appropriate action”. Finally, the Appeals Chamber held that it “will not tolerate anything short of strict compliance with disclosure obligations” and considered the discussion of this issue to be “sufficient to put the Office of the Prosecutor on notice for its conduct in future proceedings”.43
Multiple convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision has a distinct element not contained in the other.44 In the present case, the Prosecution was challenging the Trial Chamber’s non-entry, as impermissibly cumulative with genocide, of Radislav Krstic’s convictions for extermination and persecution, and for murder and inhuman acts as crimes against humanity.
Extermination and genocide
In the present case, the Trial Chamber concluded that the requirement of a widespread and systematic attack against a civilian population was subsumed within the genocide requirement that there be an intent to destroy, in whole or in part, a national, ethnical, racial or religious group.45
The ICTR Appeals Chamber, in the Musema Appeals Judgement, addressed the issue and permitted convictions for genocide and extermination based on the same conduct because genocide “requires proof of intent to destroy, in whole or in part, a national, ethnical or religious group, [which] is not required by extermination ”, while extermination as a crime against humanity “requires proof that the crime was committed as part of a widespread or systematic attack against a civilian population, which proof is not required in the case of genocide”.46
The Appeals Chamber followed the finding of the ICTR Appeals Chamber in Musema and held:
The Trial Chamber also concluded that the definitions of intent for extermination and genocide “both require that the killings be part of an extensive plan to kill a substantial part of a civilian population”.48 As the Appeals Chamber previously explained, however, the existence of a plan or policy is “not a legal ingredient of the crime” and can only be a factor in the context of proving specific intent.49 Similarly, the Appeals Chamber previously held, with regard to crimes against humanity, that “the existence of a policy or plan may be evidentially relevant, but it is not a legal element of the crime”.50 Accordingly the Appeals Chamber held in the present case that the Trial Chamber’s finding was erroneous.
Finally, the Appeals Chamber clarified that the intent requirement of genocide is not limited to instances where the perpetrator seeks to destroy only civilians. It held:
Persecution and genocide
The Trial Chamber concluded that the offence of persecution as a crime against humanity was impermissibly cumulative with the conviction for genocide.52
Since persecution and extermination, as crimes against humanity, share the same requirement that the underlying act be part of a widespread or systematic attack against a civilian population and that it be perpetrated with the knowledge of that connection, the Appeals Chamber held that “[t]he offence of genocide does not subsume that of persecution” and found the Trial Chamber’s conclusions to be erroneous.53
Partial dissenting opinion of Judge Shahabuddeen
Judge Shahabuddeen inter alia agreed with the Trial Chamber that Radislav’s Krstic responsibility was that of a “principal perpetrator”54 of genocide and not, as the Appeals Chamber found, that of an aider and abettor. He agreed with the sentence given by the Appeals Chamber but expressed his doubts as to some aspects of cumulative convictions.