Judge Theodor Meron, Presiding

Judge Mohamed Shahabuddeen

Judge Mehmet Güney

Judge Andrésia Vaz

Judge Christine Van Den Wyngaert




The Office of the Prosecutor:

Ms. Helen Brady

Ms. Shelagh McCall

Counsel for the Accused:

Mr. John Ackerman


THE APPEALS CHAMBERof the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 ("International Tribunal");

NOTING the Judgement rendered in this case by Trial Chamber II on 1 September 2004;

NOTING the "Prosecutionís Brief on Appeal", filed on 28 January 2005, the Defenceís "Response to Prosecutionís Brief on Appeal", filed on 10 May 2005, and the "Prosecutionís Brief in Reply on Appeal", filed on 25 May 2005;

NOTING the Prosecutionís first two grounds of appeal concerning Joint Criminal Enterprise ("JCE") as a mode of liability;

NOTING that the Prosecution submits that the Trial Chamber erred by requiring that the principal perpetrator of a crime be a member of the JCE (First Ground of Appeal);

NOTING that the Prosecution also submits that the Trial Chamber erred by effectively requiring that for a plan, design, or purpose to be "common" there must be proof of a direct understanding or agreement between the accused and the persons who physically carried out the crimes in the indictment (Second Ground of Appeal) and asks that the judgement against Br|anin be revised to find him responsible under JCE;

CONSIDERING that, should the Prosecution present more detailed arguments on this matter at the appeal hearing, Br|anin would be deprived of the opportunity adequately to prepare his response;

EMPHASISING that the present order in no way expresses the Appeals Chamberís views on the Prosecutionís first two grounds of appeal, which issue will be finally determined in the Appeal Judgement;

HEREBY ORDERS proprio motu the Prosecution to file, by Monday 13 November 2006, a submission of no more than ten pages in length in response to the following questions:

If the Prosecutionís Second Ground of Appeal was to be granted and Br|aninís responsibility was then to be analysed pursuant to JCE, would the elements of JCE be fulfilled, taking into account the agreement inter partes at trial and based on the trial record? If so, and referring to the findings of the Trial Chamber in the Judgement as well as trial record, how would the elements of JCE be met, and according to which form(s) of JCE would Br|anin be responsible for the crimes alleged in the indictment?

AND GRANTS Br|anin leave to respond in writing to the submission of the Prosecution, if he so wishes, no later than Friday 24 November, without prejudice to his entitlement to respond orally at the hearing scheduled for 7 and 8 December 2006.

Done in English and French, the English version being authoritative.



Judge Theodor Meron

Presiding Judge



Dated this 27th day of October 2006,

At The Hague,

The Netherlands



[Seal of the Tribunal]