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
98 bis test - Deportation, forcible transfer and cross border
transfer – Definition of a State - Aiding and abetting genocide and
complicity in genocide
98 bis test: 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.
forcible transfer and cross border transfer: 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.
of a State: the criteria of statehood are laid down by law.
The law is reflected by the four criteria set out in the Montevideo
and abetting genocide and complicity in genocide: 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.
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
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”
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”).
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:
there is sufficient evidence of an armed conflict in Kosovo at the relevant
times for the purposes of Rule 98 bis.6
Croatia was a State by 8 October 1991 for the purposes of Rule 98 bis.7
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
98 bis test
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
bis (Motion for Judgement of Acquittal), as amended 17 October
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)
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
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
case to answer” procedure
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”:
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.”
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:
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
Chamber then envisaged, inter alia, the following possibilities
there is no evidence to sustain a charge, the Motion is to be allowed.
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
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
forcible transfer and cross border transfer
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.
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
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:
International Military Tribunal (“IMT”)
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
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
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.”
referred to Article 17 (“Prohibition of forced movement of civilians”)
of Additional Protocol II to the Geneva Conventions33
and its commentary34, which reads:
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.”
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
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
Law Commission (“ILC”)
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 :
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
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
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
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
of the International Criminal Court (“ICC”)
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:
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
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
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
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
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
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
crimes protect the same values, the Trial Chamber held:
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
of a State
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.
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:
State as a person of international law should possess the following
(a) a permanent population; (b) a defined territory; (c) government;
and (d) capacity to enter into relations with other States.”51
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
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
and abetting genocide and complicity in genocide
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
Chamber first referred to the Krstic Appeals Judgement, in which
the Appeals Chamber inter alia held the following:
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;
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
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
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
Opinion of Judge Patrick 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
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
Opinion of Judge O-Gon 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
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.
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
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
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
64. Para. 297.
65. Separate Opinion of Judge Patrick Robinson,
66. Ibid., para. 16.
67. Ibid., para. 14.
68. Ibid., para. 17.
70. Dissenting Opinion of Judge O-Gon Kwon,