TABLE OF CONTENTS

I. INTRODUCTION

II. APPLICABLE LAW

A. Applicable criteria for reviewing the alleged errors

1. Issues of general importance
2. Applicable review criteria of the allegations of errors in general and the errors of fact in particular
3. Admissibility of the grounds of appeal presented by the parties

B. Law applicable to the joint criminal enterprise and aiding and abetting

1. Joint criminal enterprise
2. Differences between participating in the joint criminal enterprise as a co-perpetrator and aiding and abetting

III. KRNOJELAC’S APPEAL

A. Krnojelac’s second ground of appeal: aiding and abetting persecution ( imprisonment and living conditions)

1. First sub-ground: Krnojelac’s acts or omissions and their significance for the commission of the crime of persecution based on imprisonment and living conditions

(a) Imprisonment
(b) Living conditions

2. Second sub-ground: Krnojelac’s awareness that, by his acts or omissions , he was contributing significantly to the underlying crimes committed by the principal offenders (persecution based on imprisonment and living conditions) and his knowledge of the offenders’ discriminatory intent

(a) Imprisonment
(b) Living conditions

3. Third sub-ground: the mens rea of the aider and abettor in an act of persecution

B. Krnojelac’s fifth ground of appeal: superior responsibility for the beatings inflicted on detainees

1. Beatings inflicted on Ekrem Zekovic
2. Krnojelac knew that beatings were taking place
3. Visible traces of beatings on the detainees

IV. THE PROSECUTION’S APPEAL

A. The Prosecution’s first ground of appeal: definition of participation in a joint criminal enterprise and its application in this instance

1. Alleged errors of law in the definition of participation in a joint criminal enterprise

(a) Identification of a third category of “participant”
(b) Erroneous conflation of the first two categories of joint criminal enterprise
(c) Scope of the common state of mind and required additional agreement

(i) Did the Trial Chamber err in law by partitioning the different types of crimes which form the joint criminal enterprise?
(ii) Did the Trial Chamber err in law by requiring proof of an agreement between Krnojelac and the principal perpetrators of the crimes in question?

2. Application of the law to the facts in this case

(a) Allegation that the Trial Chamber made an erroneous finding with respect to the crime of imprisonment
(b) Erroneous application of the intent criterion to the second category of joint criminal enterprise

3. Issue of general importance

B. The Prosecution’s second ground of appeal: the form of the Indictment
C. The Prosecution’s third and fourth grounds of appeal: errors relating to the mens rea of superior responsibility under Article 7(3) of the Statute

1. Third ground of appeal: error in the Trial Chamber's findings of fact regarding the acts of torture committed at the KP Dom

(a) Findings related to the context in which the beatings were committed and the widespread nature of these beatings
(b) Findings related to Krnojelac's jurisdiction over his subordinates as prison warden
(c) Findings related to the interrogations, their frequency and the punishment inflicted upon the detainees

2. Fourth ground of appeal: error in the Trial Chamber's findings of fact regarding the murders committed at the KP Dom

D. The Prosecution’s fifth ground of appeal: the Trial Chamber committed an error of fact when it found that the beatings constituting inhumane acts and cruel treatment were not inflicted on discriminatory grounds and that Krnojelac could not therefore be held responsible for persecution as a superior

F. The Prosecution’s sixth ground of appeal: the Trial Chamber erred in acquitting Krnojelac on the count of persecution (forced labour)

1. There was sufficient evidence that the labour was involuntary and to establish involuntary labour as a form of persecution

(a) The Trial Chamber erred in finding that there was insufficient evidence that the labour was involuntary
(b) If forced labour is established, the Trial Chamber’s findings are sufficient to warrant Krnojelac’s conviction for persecution based on forced labour

2. The Trial Chamber erred in holding that Krnojelac was not individually responsible under Article 7(1) of the Statute

G. The Prosecution’s seventh ground of appeal: persecution by way of deportation and expulsion

1. Persecution by way of deportation and expulsion

(a) The Prosecution’s allegation of persecution
(b) Acts of displacement that can be characterised as persecution (a crime against humanity)

2. Exercise of genuine choice
3. Discriminatory nature of the displacements
4. Krnojelac’s responsibility

V. SENTENCE

VI. DISPOSITION

SEPARATE OPINION OF JUDGE SCHOMBURG

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

ANNEX A: GLOSSARY

A. Appeal

1. Parties’ written submissions
2. References used in this case

B. Case-law cited
C. Other references

ANNEX B: PROCEDURAL BACKGROUND