The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T

“Decision on Motion for Judgement of Acquittal”

16 June 2004
Trial Chamber III (Judges Robinson [Presiding], Kwon and Bonomy)

Procedural Background

· On 4 April 2003, the Amici Curiae filed a motion to seek directions on their future role in the trial, including the question as to whether they should file a motion for acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence (“Rules”) at the close of the Prosecution case.¹

· On 27 June 2003, the Trial Chamber issued an order inter alia stating that the Amici Curiae “may submit a Motion pursuant to Rule 98 bis within seven days of the close of the Prosecution case”.²

· On 4 February 2004, the Prosecution filed a motion to object to the Amici Curiae filing a Rule 98 bis motion.³

· On 5 February 2004, the Trial Chamber dismissed the Prosecution Motion. It held that “the filing by the Amici Curiae of a Motion pursuant to Rule 98 bis does not in any way prejudice the Prosecution, does not infringe the interests of the Accused, and that it is in the interests of justice as a whole for the Motion to be brought”.⁴

· On 25 February 2004, the Prosecution closed its case and the Trial Chamber ordered inter alia that any Rule 98 bis be filed by the Accused or the Amici Curiae by 8 March 2004 and that any response by the Prosecution be filed by 22 March 2004.

· On 3 March 2004, the Amici Curiae filed their “Amici Curiae Motion for Judgement of Acquittal pursuant to Rule 98 bis” (“Motion”).

· On 23 March 2004, the Prosecution filed its confidential “Prosecution Response to Amici Curiae Motion for Judgement of Acquittal pursuant to Rule 98 bis ” (“Response”).

Decision

The Trial Chamber found “sufficient evidence to support each count in the three Indictments” but found that there is “no or insufficient evidence to support certain allegations relevant to some of the charges in the Indictments”.⁵ More specifically, the Trial Chamber inter alia held:

- Kosovo: there is sufficient evidence of an armed conflict in Kosovo at the relevant times for the purposes of Rule 98 bis.⁶

- Croatia: Croatia was a State by 8 October 1991 for the purposes of Rule 98 bis.⁷

- Bosnia: there existed a joint criminal enterprise, which included some members of the Bosnian Serb leadership, the aim and intention of which was to destroy a part of the Bosnian Muslims as a group, and that its participants committed genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina, Kljuc and Bosanski Novi. The Accused was a participant in that joint criminal enterprise (Judge Kwon dissenting ). The Accused was a participant in a joint criminal enterprise, which included members of the Bosnian Serb leadership, to commit other crimes than genocide and it was reasonably foreseeable to him that, as a consequence of the commission of those crimes, genocide of a part of the Bosnian Muslims as a group would be committed by other participants in the joint criminal enterprise, and it was committed. The Accused aided and abetted or was complicit in the commission of the crime of genocide in that he had knowledge of the joint criminal enterprise, and that he gave its participants substantial assistance, being aware that its aim and intention was the destruction of a part of the Bosnian Muslims as a group. The Accused was a superior to certain persons whom he knew or had reason to know were about to commit or had committed genocide of a part of the Bosnian Muslims as a group, and he failed to take the necessary measures to prevent the commission of genocide, or punish the perpetrators thereof.

Reasoning⁸

Rule 98 bis test

Applicable law

Rule 98 bis was adopted on 10 July 1998 in order to deal with a situation which by that time “had developed in every trial heard by the Tribunal”, where the Accused applied at the close of the Prosecution case for a determination that there was “no case to answer” on one or more or all the charges in the Indictment.⁹ Such applications, in the absence of a specific rule, were made pursuant to Rule 54, which allows a Trial Chamber to issue such orders as may be necessary for the conduct of the trial.¹⁰ The test adopted in such situations was:

“[…] whether as a matter of law there is evidence, were it to be accepted by the Trial Chamber, as to each count charged in the indictment which could lawfully support a conviction of the accused.”¹¹

Rule 98 bis (Motion for Judgement of Acquittal), as amended 17 October 1999, reads:

“(A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii).
(B) 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.” (emphasis added)

The test for determining whether the evidence is “insufficient to sustain a conviction ” was settled in the Jelisic case, in which the Appeals Chamber followed its previous holding in the Delalic Appeal Judgement that “[t]he test applied 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”¹² and held:

“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; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted ) but whether it could. At the close of the case for the prosecution, 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.”¹³

“No case to answer” procedure

Rule 98 bis has been found to have its origin in the common law “no case to answer” procedure. Nevertheless, as noted by the Trial Chamber in Kordic and Cerkez¹⁴, and cited with approval by the Appeals Chamber in the Jelisic Appeals Judgement¹⁵, Rule 98 bis must not necessarily be applied in the same way as proceedings for “no case to answer”:

“It is true that Rule 98bis proceedings, coming as they do at the end of the Prosecution’s case, bear a close resemblance to applications for no case to answer in common law jurisdictions. However, that does not necessarily mean that the regime to be applied for Rule 98 bis proceedings is the same as that which is applicable in the domestic jurisdictions of those countries. Ultimately, the regime to be applied for Rule 98bis proceedings is to be determined on the basis of the Statute and the Rules, having in mind, in particular, its construction in the light of the context in which the Statute operates and the purpose it is intended to serve. That determination may be influenced by features of the regime in domestic jurisdictions with similar proceedings, but will not be controlled by it; and therefore a proper construction of the Rule may show a modification of some of those features in the transition from its domestic berth.”

In the view of the present Trial Chamber, “[c]rucial to an understanding of the ‘no case to answer’ procedure in common law jurisdictions is the differing roles of the judges and jury in criminal trials: the judges being the tribunal of law and the jury, the tribunal of fact”.¹⁶ It referred to R. v. Galbraith( footnote 17 ), in which it was held that “a balance has to be struck between on the one hand the usurpation of the jury’s functions and on the other the danger of an unjust conviction ”¹⁸, as an illustration that “an essential function of the procedure is to ensure that at the end of the Prosecution’s case the jury is not left with evidence which cannot lawfully support a conviction”.¹⁹ As to the balance between the functions of the judge and the jury, the Trial Chamber quoted the following passage from R. v. Galbraith:

“(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”²⁰

The Trial Chamber then envisaged, inter alia, the following possibilities :

- “Where there is no evidence to sustain a charge, the Motion is to be allowed. […]

- Where there is some evidence, but it is such that, taken at its highest, a Trial Chamber could not convict on it, the Motion is to be allowed. This will be the case even if the weakness in the evidence derives from the weight to be attached to it, for example, the credibility of a witness. This is in accordance with the exception to the general principle in common law jurisdictions that issues of credibility and reliability must be left to the jury as the tribunal of fact.²¹

- Where there is some evidence, but it is such that its strength or weakness depends on the view taken of a witness’s credibility and reliability, and on one possible view of the facts a Trial Chamber could convict on it, the Motion will not be allowed. […]”²²

Deportation, forcible transfer and cross border transfer

The Accused is charged in the three Indictments²³ against him with deportation as a crime against humanity under Article 5(d) of the Statute²⁴, forcible transfer as a crime against humanity (other inhumane acts) under Article 5(i) of the Statute²⁵, unlawful deportation or transfer as a grave breach of the Geneva Conventions under Article 2(g) of the Statute²⁶.

Trial Chambers have held in several judgements that deportation is defined as “ the forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present, across a national border, without lawful grounds”.²⁷ The crime of forcible transfer has been defined as a forced removal or displacement of people from one area to another which may take place within the same national borders.²⁸

While the Amici Curiae submitted that deportation presumes transfer beyond borders, whereas forcible transfer relates to displacement within a State, the Prosecution submitted that deportation does not require border transfer. The Trial Chamber, decided to examine “the history of the law on deportation and forcible transfer”²⁹ to facilitate an understanding of its development and status:

Nuremberg International Military Tribunal (“IMT”)

The Trial Chamber found no reference to forcible transfer in the IMT case law but referred to the United States of America v. Milch³⁰ and held that the IMT dealt with deportation “as a crime involving cross border transfer”.³¹

Geneva Conventions

The Trial Chamber first referred to paragraph 1 of the Commentary to Article 49 of the Geneva Convention IV³², which distinguishes between “forcible transfers” and “deportations”. This paragraph reads :

“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

It then referred to Article 17 (“Prohibition of forced movement of civilians”) of Additional Protocol II to the Geneva Conventions³³ and its commentary³⁴, which reads:

“1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.
2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.”

It noted that its first paragraph covers “displacements of the civilian population as individuals or in groups within the territory of a Contracting Party where a conflict […] is taking place”³⁵ and that its second paragraph refers to the displacement of civilians (either individually or in groups) across a state border.³⁶

The Trial Chamber inferred that “although Additional Protocol II does not deal with the crimes of deportation and forcible transfer in express terms, Article 17, paragraph 1 may be construed as referring to forcible transfer within the territory of a state, i.e., internal displacement, and paragraph 2 may be interpreted as referring to deportation outside the territory of a state, i.e., external displacement”.³⁷

International Law Commission (“ILC”)

The Trial Chamber referred to the commentary to Article 18(g) (“arbitrary deportation or forcible transfer of population”) of the 1996 Draft Code Against the Peace and Security of Mankind, which distinguishes between deportation and forcible transfer :

“Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State.”³⁸

Tribunal case law

The Trial Chamber noted that the case law of the Tribunal is “not uniformly consistent ” in relation to the element of a “cross border movement” and found that “the preponderance of case law favours the distinction based on destination”.³⁹

The Trial Chamber first referred to para. 474 of the Krnojelac Trial Judgement, in which it was held, by reference to the Krstic Trial Judgement, that “[d]eportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries ”. It then referred to the Stakic Trial Judgement, in which the Trial Chamber held that deportation pursuant to Article 5(d) of the Statute “must be read to encompass forced population displacements both across internationally recognized borders and de facto boundaries, such as constantly changing frontlines, which are not internationally recognized”, and defined deportation “as the forced displacement of persons by expulsion or other coercive acts for reasons not permitted under international law from an area in which they are lawfully present to an area under the control of another party”.⁴⁰ The Trial Chamber finally referred to the Simic Trial Judgement, in which the Trial Chamber held that “[t]o establish deportation under Article 5 of the Statute, the crossing of a national border needs to be shown”.⁴¹

The Trial Chamber noted that the Stakic Trial Judgement “is the only case in which transfer across national border is not to be treated as a requirement for the crime of deportation”.⁴²

Statute of the International Criminal Court (“ICC”)

The Trial Chamber noted that, in the ICC Statute, the terms deportation and forcible transfer “appear to be given the same meaning”. Article 7(2)(d) of the ICC Statute provides:

“Deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”

It referred to one commentator of this article, who took the view that in light of the common distinction between deportation as involving cross-border transfer, and forcible transfer as relating to movement within a country, it is likely that the common distinction between the two crimes was intended⁴³, and to two other commentators, who were involved in the preparatory work of the ICC Statute and Elements of Crimes, who assert that “’Forcible transfer of population’ was added as an alternative to ‘deportation’ so as to encompass large-scale movements within a country’s borders”.⁴⁴

The Trial Chamber expressed its view that if the drafters of the ICC Statute intended such distinction, “it would be in line with customary international law”, and recognised that “the correctness of this interpretation must be a matter of dispute, since it contradicts what appears to be the plain meaning of Article 7(2)(d)”.⁴⁵

Conclusion

The Trial Chamber held:

“[…] the distinction between deportation and forcible transfer is recognised in customary international law. Deportation relates to involuntary transfer across national borders, while forcible transfer relates to involuntary transfers within a state. Article 7(2)(d) of the ICC Statute, if it conflates the two crimes, does not reflect customary international law.”⁴⁶

It adhered to the finding of the Trial Chamber in the Simic Trial Judgement that both crimes protect the same values, namely “the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location”⁴⁷ and to the finding of the Appeals Chamber in the Krnojelac Appeals Judgment :

“The prohibition against forcible displacements aims at safeguarding the right and aspiration of individuals to live in their communities and homes without outside interference. The forced character of displacement and the forced uprooting of the inhabitants of a territory entail the criminal responsibility of the perpetrator, not the destination to which these inhabitants are sent.”⁴⁸

As both crimes protect the same values, the Trial Chamber held:

“[t]here is no detriment to a victim if the crime of deportation is confined to transfer across borders, because if it is established that he has not been so transferred, then he is protected by the prohibition against forcible transfer, which applies to involuntary movements within national borders.”⁴⁹

Definition of a State

The Trial Chamber had to determine whether Croatia was a State or became a State on 8 October 1991, as argued by the Prosecution, or whether it only became a State at some time between 15 January 1992 and 22 May 1992, as contended by the Amici Curiae.

The Trial Chamber noted that the “best known definition of a state is the one provided by Article 1 of the Montevideo Convention”.⁵⁰ This article reads:

“The State as a person of international law should possess the following qualifications :
(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.”⁵¹

It found that those four criteria have been used “time and again” in questions related to statehood and that “reliance on them is so widespread that in some quarters they are seen as reflecting customary international law”.⁵² To support its finding, the Trial Chamber relied on one commentator who referred to the Montevideo Convention as a “crystallization of the state of customary international law” and as having exercised “great influence on the way in which the legal characteristics of statehood have been understood since”.⁵³

In the present case, the Trial Chamber did not find necessary to determine whether those criteria have the status of customary international law but nevertheless felt “sufficiently confident” to rely on them as “reflecting well-established core principles for the determination of statehood”. It concluded that “the criteria of statehood are laid down by law⁵⁴” and that the law, in its view, “is reflected by the four criteria set out in the Montevideo Convention ”.⁵⁵ The Trial Chamber, using these criteria, found that “there is sufficient evidence that Croatia was a State by 8 October 1991 for the purposes of Rule 98 bis”.⁵⁶

Aiding and abetting genocide and complicity in genocide

The question arose in the present case as to whether the Accused aided and abetted in the commission of the crime of genocide in Brcko, Prijedor, Sanski Most, Srebrenica, Bijeljina and Bosanski Novi, or was complicit in its commission.

The Trial Chamber first referred to the Krstic Appeals Judgement, in which the Appeals Chamber inter alia held the following:

“[t]he 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”⁵⁷;

“there is authority to the effect that the conviction of complicity in genocide, “where it prohibits conduct broader than aiding and abetting, requires proof that the accomplice had the specific intent to destroy a protected group”⁵⁸;”

The Trial Chamber observed that the Appeals Chamber convicted Krstic as an aider and abettor in the crime of genocide but noted that the Appeals Chamber’s finding was “obiter dicta” as it was “confined to the facts of that case”.⁵⁹ As to the Appeals Chamber’s finding that complicity in genocide can strike broader than the offence of aiding and abetting, the Trial Chamber noted that the Appeals Chamber took no position as to the mens rea of complicity⁶⁰, and therefore found that “there is […] no authoritative decision within the Tribunal as to whether there is a difference in the mens rea for aiding and abetting genocide and complicity in genocide, either when the latter is broader than aiding and abetting, or indeed, when it is of the same scope as aiding and abetting”.⁶¹ It found that “[i]n the absence of anything to indicate that complicity in genocide is broader than aiding and abetting in the circumstances of this case, […] there is merit in the Prosecution’s submission that the two are essentially the same”.⁶²

The Trial Chamber then referred with approval to the Stakic Trial Judgement, in which the Trial Chamber held that complicity in genocide under Article 4(3)( e) is the lex specialis in relation to liability under Article 7(1).⁶³ It refused as a result to confine itself, as suggested by the Prosecution, to a determination of the Accused’s responsibility as an aider or abetter. It found that the Accused’s form of liability “may be complicity in genocide” but refused to determine this matter at this stage of the trial, leaving such determination, “if necessary”, to the judgement phase.⁶⁴

Separate Opinion of Judge Patrick Robinson

Judge Robinson commented on the part of the Decision devoted to the degree of proof necessary under Rule 98 bis. He analysed the function of the Rule in the specific context of the Tribunal where Trial Chambers perform the “dual function of tribunal of law and tribunal of fact”⁶⁵ and where the charges are “multilayered to a degree that is generally not present in indictments at the domestic level”.⁶⁶

In his view, “the time has come to evaluate the operation of Rule 98 bis so as to determine whether changes are needed to make it a more beneficial instrument in the work of the Tribunal”.⁶⁷ He proposed that consideration be given to “confining motions under Rule 98 bis to submissions that: (a) are designed to eliminate a charge or count rather than individual allegations of fact […]; (b) that allege that there is no evidence, as distinct from insufficient evidence, to sustain a charge […]”.⁶⁸ In respect of the latter, he further suggested that the Prosecution should be required to list the charges for which it has adduced no evidence, that the Accused comment on the list so provided, and that the Trial Chamber should consider any disagreement on that list at the judgement phase, as a submission that there is insufficient evidence.⁶⁹

Dissenting Opinion of Judge O-Gon Kwon

Judge Kwon disagreed with the majority that there is, under the first category of joint criminal enterprise, sufficient evidence upon which a Trial Chamber could find beyond reasonable doubt that the Accused had the specific intent to destroy the Bosnian Muslims as a group in whole or in part. In his view, taking the Prosecution’s evidence as its highest, “the furthest that a Trial Chamber could infer in relation to the mens rea requirement is the knowledge that genocide was committed in the specified municipalities in Bosnia Herzegovina, but not the genocidal intent of the Accused himself”.⁷⁰

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1. On the role of the Amici Curiae, see Milosevic, IT-02-54-T, Order Inviting Designation of Amicus Curiae, 30 August 2001, Judicial Supplement No. 26; and Order Concerning Amicus Curiae, 11 January 2002.
2. Milosevic, IT-02-54-T, Order on Amici Curiae Request Concerning the Manner of their Future Engagement and Procedural Direction under Rule 98 bis”, 27 June 2003.
3. Milosevic, IT-02-54-T, Prosecution Motion under Rule 73(A) for a Ruling on the Competence of the Amici Curiae to Present a Motion for Judgement of Acquittal under Rule 98 bis, 4 February 2004. In its motion, the Prosecution relied on a Decision of the Appeals Chamber whereby it held that the Amici Curiae are not a “party to the proceedings” and that “the fact that the amici were instructed by the Trial Chamber to take all steps they consider appropriate to safeguard a fair trial for the Accused does not alter this conclusion” (Milosevic, IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and the Preparation of the Defence Case, 20 January 2004, para. 4, Judicial Supplement No. 47).
4. Milosevic, IT-02-54-T, Decision on Prosecution’s Motion under Rule 73(A) for a Ruling on the Competence of the Amici Curiae to Present a Motion for Judgement of Acquittal Under Rule 98 bis, 5 February 2004.
5. Decision, para. 316.
6. The Trial Chamber dismissed the Amici Curiae submission that there was no armed conflict in Kosovo in the Federal Republic of Yugoslavia (“FRY”) prior to 24 March 1999 (commencement of the North Atlantic Treaty Organisation (“NATO”) - bombing campaign).
7. The Trial Chamber dismissed the Amici Curiae submission that Croatia only become a state some time between 15 January and 22 May 1992, and that consequently the conflict in Croatia was not international before that time.
8. Only those findings significant to the Tribunal’s case law are addressed in the present summary. The full text of the Trial Chamber’s Decision, including a Separate Opinion from Judge Robinson and a Dissenting Opinion from Judge Kwon, is available on the Tribunal’s website at www.un.org/icty (“Judgements” page).
9. Kunarac et al., IT-96-23-T & IT-96-23/1-T, Decision on Motion for Acquittal (“Kunarac Acquittal Decision”), 3 July 2000, para. 2, Judicial Supplement No. 18.
10. Rule 54 (General Rule) reads : “At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.”
11. Tadic, IT-94-1-T, Decision on Defence Motion to Dismiss Charges, 13 September 1996, p. 2. The same test was adopted in Delalic, IT-96-21-T, Order on Motions to Dismiss the Indictment at the Close of the Prosecutor’s Case, 18 March 1998, p. 4: whether “[…] as a matter of law, there is evidence relating to each element of the offences in question which, were it to be accepted, is such that a reasonable Tribunal might convict.”
12. Delalic et al., IT-96-21-A, Judgement, 20 February 2001, para. 434 (emphasis in the original), Judicial Supplement No. 23. This test was previously stated in the Kunarac Acquittal Decision, para. 3.
13. Jelisic, IT-95-10-A, Judgement (“Jelisic Appeals Judgement”), 5 July 2001, para. 37 (footnote omitted), Judicial Supplement No. 26.
14. Kordic & Cerkez, IT-95-14/2-T, Decision on Defence Motions for Judgement of Acquittal (“Kordic Judgement of Acquittal”), 6 April 2000, para. 9, Judicial Supplement No. 14.
15. Jelisic Appeals Judgement, para. 33.
16. Para. 11.
17. R. v. Galbraith, 73 Cr. App. R. 124 (1981), at p. 127 (per Lord Jane, C.J.).
18. Ibid., at p. 125.
19. Para. 11.
20. R. v. Galbraith, at p. 127.
21. Footnote 24 of the Decision: “See R. Watson, Criminal Law (New South Wales) (1996), at p. 5740 (expressing this exception with great clarity: ‘On a submission of no case the judge is concerned with the question whether there is evidence which is legally capable of leading to a conviction and not with the question whether the evidence is so lacking in weight that a conviction based upon it would be unsafe or unsatisfactory, except where the evidence is so inherently incredible that no reasonable person would accept its truth.’).” In the Kordic Judgement of Acquittal, the Trial Chamber held: “[…] generally the Chamber would not consider questions of credibility and reliability in dealing with a motion under Rule 98 bis; leaving those matters to the end of the case. However, there is one situation in which the Chamber is obliged to consider those matters; it is where the Prosecution’s case has completely broken down, either on its own presentation, or as a result of such fundamental questions being raised through cross-examination as to the reliability and credibility of a witness that the Prosecution is left without a case”. See also Kvocka et al., IT-98-30/1-T, Decision on Defence Motion for Acquittal, 15 December 2000, para. 17, Judicial Supplement No. 21; Galic, IT-98-29-T, Decision on the Motion for the Entry of the Acquittal of the Accused Stanislav Galic, 3 October 2002, para. 11, Judicial Supplement No. 37.
22. Para. 13.
23. The three Indictments are available on the Tribunal’s website on the “Indictments” page (“Kosovo Indictment”, IT-99-37-PT; “Croatia Indictment”, IT-02-54-T; “Bosnia Indictment”, IT-02-54-T). On 13 December 2001, the Trial Chamber ordered inter alia that the Croatia and Bosnia Indictments be joined and be given a common case number (Milosevic, IT-99-37-PT, IT-01-50-PT, IT-01-51-PT, 13 December 2001, Decision on Prosecution’s Motion for Joinder, Judicial Supplement No. 30). On 1 February 2002, the Appeals Chamber ordered inter alia that the three Indictments “be tried together in the one trial” and that the case against the Accused be given a single number (see Press Release No. 657).
24. Count 1 of the Kosovo Indictment, Count 14 of the Croatia Indictment, Count 16 of the Bosnia Indictment.
25. Count 2 of the Kosovo Indictment, Count 15 of the Croatia Indictment, Count 17 of the Bosnia Indictment.
26. Count 16 of the Croatia Indictment, Count 18 of the Bosnia Indictment.
27. Simic, IT-95-9-PT, Judgement (“Simic Trial Judgement”), 17 October 2003, para. 122, Judicial Supplement No. 45; Naletilic & Martinovic, IT-98-34-T, Judgement, 31 March 2003, para. 670, Judicial Supplement No. 42; Krnojelac, IT-97-25-T, Judgement (“Krnojelac Trial Judgement”), 15 March 2002, paras. 474 & 476, Judicial Supplement No. 31 bis; Krstic, IT-98-33-T, Judgement (“Krstic Trial Judgement”), 2 August 2001, paras. 521, 531 and 532, Judicial Supplement No. 27.
28. Krnojelac Trial Judgement, para. 474. The Krstic Trial Judgement, at its paragraph 521, defines both deportation and forcible transfer as “the involuntary and unlawful evacuation of individuals from the territory in which they reside”.
29. Paras. 47-79.
30. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 (1952) Vol. 6, at 681: “Displacement of groups of persons from one country to another is the proper concern of international law in as far as it affects the community of nations. International law has enunciated certain conditions under which the fact of deportation of civilians from one nation to another during times of war becomes a crime […].” (emphasis added)
31. Para. 52.
32. Commentary to Article 49 of the Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (“Geneva Convention IV” or “Fourth Geneva Convention”), at para. 1, p. 278.
33. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
34. C. Pilloud, et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) (“Commentary”).
35. Commentary, at pp. 1472-1473.
36. Article 17 covers “expulsion of groups of civilians across the boundaries by armed forces or armed groups because of military operations” and “territory” refers to “the whole of the territory of a country” (Commentary, at p. 1474).
37. Para. 56.
38. International Law Commission Draft Code 1996, Article 18, Commentary (13).
39. Para. 58.
40. Stakic, IT-97-24-T, Judgement (“Stakic Trial Judgement”), 31 July 2003, para. 679, Judicial Supplement No. 43. See also Krnojelac, IT-97-25-A, Judgement (“Krnojelac Appeal Judgement”), 17 September 2003, Separate Opinion of Judge Schomburg, para. 15, Judicial Supplement No. 45.
41. Simic Trial Judgement, para. 129.
42. Para. 674.
43. C. Hall, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (1999), at p. 136.
44. H. von Hebel and D. Robinson, “Crimes Within the Jurisdiction of the Court”, in R. Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (1999), at p. 99.
45. Para. 67. In the Stakic Trial Judgement, the Trial Chamber noted in paragraph 680: “According to the Elements of Crimes for the International Criminal Court, the first element of this crime against humanity is that ‘[t]he perpetrator deported or forcibly transferred, without grounds under international law, one or more persons to another State or location, by expulsion or other coercive acts.’ [footnote 1338: “Assembly of State Parties to the Rome Statute of the International Criminal Court, 1st session, 3-10 Sept. 2002, Part II.B. Elements of Crimes, ICC-ASP/1/3 (Emphasis added).”] While such simultaneous use of both terms (deportation and forcible transfer) might create terminological confusion in the law, it is clear that the Statute of the International Criminal Court does not require proof of crossing an international border but only that the civilian population was displaced.”
46. Para. 68.
47. Simic Trial Judgement, para. 130.
48. Krnojelac, IT-97-25-A, Judgement, 17 September 2003, para. 218, Judicial Supplement No. 45. In Krnojelac, the Appeals Chamber found in the same paragraph that the “acts of forcible displacement underlying the crime of persecution punishable under Article 5(h) of the Statute are not limited to displacements across a national border”.
49. Para. 69.
50. Para. 85.
51. Montevideo Convention on Rights and Duties of States, signed 26 December 1933 (“Montevideo Convention”).
52. Para. 86.
53. C. Warbrick, “States and Recognition in International Law”, in M.D. Evans (ed.), International Law (2003), at p. 221.
54. The Trial Chamber referred in its footnote to I. Brownlie, Principles of Public International Law (2003), at pp. 86-88; J. Crawford, The Creation of States in International Law (1979), at p. 17.
55. Para. 87.
56. Para. 115. For a complete application of these criteria to the present case, see paras. 94 to 114 of the Decision.
57. Krstic, IT-98-33-A, Judgement (“Krstic Appeals Judgement”), 19 April 2004, para. 140, Judicial Supplement No. 49.
58. Krstic Appeals Judgement, para. 142.
59. Para. 295 and footnote 761: “Prosecutor v. Krstic, Case No. IT-98-33-A, “Judgement”, 19 April 2004, at para. 139 (“The Appeals Chamber concludes that the latter approach (i.e., characterising Krstic’s responsibility as aiding and abetting under Article 7(1) of the Statute (is the correct one in this case”.).”
60. In footnote 247 of the Krstic Appeals Judgement, the Appeals Chamber held: “ As it is not at issue in this case, the Appeals Chamber takes no position on the mens rea requirement for the conviction for the offence of complicity in genocide under Article 4(3) of the Statute where this offense strikes broader than the prohibition of aiding and abetting.”
61. Para. 296.
62. Para. 297 (emphasis added).
63. See Stakic Trial Judgement, para. 531: “The Trial Chamber considered the relationship between Article 7(1) and complicity in genocide under Article 4(3) in its Decision on 98 bis Motion for Judgement of Acquittal [Stakic, IT-97-24-T, Decision on Rule 98bis Motion for Judgement of Acquittal, 31 October 2002, para. 47]. Noting the overlap between Articles 7(1) and 4(3), the Trial Chamber concluded that two approaches are possible. Article 4(3) can either be regarded as lex specialis in relation to Article 7(1) (lex generalis), or the modes of participation under Article 7(1) can be read into Article 4(3).”
64. Para. 297.
65. Separate Opinion of Judge Patrick Robinson, para. 11.
66. Ibid., para. 16.
67. Ibid., para. 14.
68. Ibid., para. 17.
69. Ibid.
70. Dissenting Opinion of Judge O-Gon Kwon, para. 3.