1 - Trial Judgement, paras. 6 et seq: “The Take-over of Srebrenica and its Aftermath.”
2 - Ibid., para. 52.
3 - Ibid., para. 84.
4 - The latter challenge is examined in Part III of this Judgement, which considers whether the Trial Chamber was correct to find that the facts of this case supported the charge of genocide.
5 - Article II of the Genocide Convention.
6 - Indictment, para. 21.
7 - See Trial Judgement, para. 558 (“the indictment in this case defined the targeted group as the Bosnian Muslims”).
8 - Ibid., paras. 559 - 560.
9 - See Defence Appeal Brief, paras. 28, 38.
10 - Jelisic Trial Judgement, para. 82 (citing Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May – 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10) (1996), p. 89; Nehemiah Robinson, The Genocide Convention: A Commentary (1960) (1st ed. 1949), p. 63; Genocide Convention, Report of the Committee on Foreign Relations, U.S. Senate, 18 July 1981), p. 22). The Jelisic Trial Judgement was reversed in part by the Appeals Chamber on other grounds. See Jelisic Appeal Judgement, para. 72. The Trial Chamber’s definition of what constitutes an appropriate part of the group protected by the Genocide Convention was not challenged.
11 - Sikirica Judgement on Defence Motions to Acquit, para. 65.
12 - Jelisic Trial Judgement, para. 82; Sikirica Judgement on Defence Motions to Acquit, para. 77.
13 - See Art. 2 of the ICTR Statute (defining the specific intent requirement of genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”).
14 - Kayishema and Ruzindana Trial Judgement, para. 97.
15 - See Bagilishema Trial Judgement, para. 64 (“the intention to destroy must target at least a substantial part of the group”) (citing Kayishema and Ruzindana TrialJudgement, para. 97); Semanza Triall Judgement and Sentence, para. 316 (“The intention to destroy must be, at least, to destroy a substantial part of the group”) (citing Bagilishema Trial Judgement, para. 64). While Kayishema used the term “considerable number” rather than “substantial part,” Semanza and Bagilishema make it clear that Kayishema did not intend to adopt a different standard with respect to the definition of the term “a part.” The standard adopted by the Trial Chambers of the ICTR is therefore consistent with the jurisprudence of this Tribunal.
16 - 2 Executive Sessions of the Senate Foreign Relations Committee, Historical Series (1976), p. 370; see also Jelisic Trial Judgement, para. 82; William A. Schabas, Genocide in International Law (2000), p. 238.
17 - Ibid., cited in William A. Schabas, Genocide in International Law (2000), p. 238.
18 - Nehemia Robinson, The Genocide Convention: A Commentary (1960), pp. 63.
19 - Ibid., p.58.
20 - Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May – 26 July 1996, p. 89. The Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the International Law Commission, contains a prohibition of the offence of genocide substantively similar to the prohibition present in the Genocide Convention. The Draft code is not binding as a matter of international law, but is an authoritative instrument, parts of which may constitute evidence of customary international law, clarify customary rules, or, at the very least, “be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world.” Furundzija Trial Judgement, para. 227.
21 - Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 (“‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership.”); see also Jelisic Trial Judgement, para. 65 (quoting the report); Trial Judgement, para. 587 (same).
22 - The Trial Chambers in Jelisic and Sikirica referred to this factor as an independent consideration which is sufficient, in and of itself, to satisfy the requirement of substantiality. See Jelisic Trial Judgement, para. 82; Sikirica Trial Judgement, para. 65. Properly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied.
23 - For a discussion of these examples, see William A. Schabas, Genocide in International Law (2000), p. 235.
24 - Trial Judgement, para. 560 (“The Chamber concludes that the protected group, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims. The Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under Article 4.”). See also Trial Judgement, para. 591. Although the Trial Chamber did not delineate clearly the interrelationship between these two alternative definitions, an explanation can be gleaned from its Judgement. As the Trial Chamber found, “most of the Bosnian Muslims residing in Srebrenica at the time of the [Serbian] attack were not originally from Srebrenica but from all around the central Podrinje region.” Trial Judgement, para. 559; see also ibid., para. 592 (speaking about “the Bosnian Muslim community of Srebrenica and its surrounds”). The Trial Chamber used the term “Bosnian Muslims of Srebrenica” as a short-hand for the Muslims of both Srebrenica and the surrounding areas, most of whom had, by the time of the Serbian attack against the city, sought refuge with the enclave. This is also the sense in which the term will be used in this Judgement.
25 - While the Trial Chamber did not make a definitive determination as to the size of the Bosnian Muslim community in Srebrenica, the issue was not in dispute. The Prosecution estimated the number to be between 38,000 and 42,000. See Trial Judgement, para. 592. The Defence’s estimate was 40,000. See ibid ., para. 593.
26 - The pre-war Muslim population of the municipality of Srebrenica was 27,000. Trial Judgement, para. 11. By January 1993, four months before the UN Security Council declared Srebrenica to be a safe area, its population swelled to about 50,000 – 60,000, due to the influx of refugees from nearby regions. Ibid., para. 14. Between 8,000 and 9,000 of those who found shelter in Srebrenica were subsequently evacuated in March – April 1993 by the UN High Commissioner for Refugees. Ibid., para. 16.
27 - The Muslim population of Bosnia and Herzegovina in 1995, when the attack against Srebrenica took place, was approximately 1,400,000. See http://www.unhabitat.org/habrdd/conditions/southeurope/bosnia.htm, accessed 26/03/2004 (estimating that the Muslims constituted 40 percent of the 1995 population of 3,569,000). The Bosnian Muslims of Srebrenica therefore formed about 2.9 percent of the overall population.
28 - Trial Judgement, para. 12; see also para. 17.
29 - Security Council Resolution 819, UN Doc. S/RES/819 (1993), quoted in Trial Judgement, para. 18 & n. 17. The two other protected enclaves created by the Security Council were Žepa and Gorazde. See Security Council Resolution 824, UN Doc. S/RES/824 (1993); Trial Judgement, para. 18 & n. 18.
30 - Trial Judgement, paras. 15, 19 - 20.
31 - Defence Appeal Brief, paras. 38 - 39.
32 - Ibid., para. 40.
33 - Ibid.
34 - Trial Judgement, paras. 560, 561.
35 - Defence Appeal Brief, para. 40 (quoting Trial Judgement, para. 634) (internal quotation marks omitted).
36 - See, e.g. , para. 581 (“Since in this case primarily the Bosnian Muslim men of military age were killed, a second issue is whether this group of victims represents a sufficient part of the Bosnian Muslim group so that the intent to destroy them qualifies as an ‘intent to destroy the group in whole or in part’ under Article 4 of the Statute.”); para. 634 (“[T]he Trial Chamber has concluded that, in terms of the requirement of Article 4(2) of the Statute that an intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively, the military aged Bosnian Muslim men of Srebrenica do in fact constitute a substantial part of the Bosnian Muslim group, because the killing of these men inevitably and fundamentally would result in the annihilation of the entire Bosnian Muslim community at Srebrenica.”).
37 - Defence Appeal Brief, para. 43.
38 - Ibid., paras. 46 - 47.
39 - The International Law Commission, when drafting a code of crimes which it submitted to the ICC Preparatory Committee, has examined closely the travaux préparatoires of the Convention in order to elucidate the meaning of the term “destroy” in the Convention’s description of the requisite intent. The Commission concluded: “As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, cultural or other identity of a particular group.” Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May – 26 July 1996, G.A.O.R., 51st session, Supp. No. 10 (A/51/10) (1996), pp. 90-91. The commentators agree. See, e.g. , William A. Schabas, Genocide in International Law (2000), p. 229 (concluding that the drafting history of the Convention would not sustain a construction of the genocidal intent which extends beyond an intent at physical destruction).
40 - Trial Judgement, para. 580. See also ibid., para. 576 (discussing the conclusion of the International Law Commission, quoted in note 39, supra).
41 - Trial Judgement, para. 594.
42 - Ibid., para. 593.
43 - Ibid., paras. 547, 594.
44 - Ibid., para. 75 & n. 155.
45 - Ibid., n. 3.
46 - See ibid ., paras. 592 - 594 (finding, on the basis of the parties’ estimates, the number of the killed men to be approximately 7,500 and the overall size of the Srebrenica community, augmented by refugees from the surrounding areas, to be approximately 40,000).
47 - Ibid., para. 595.
48 - See ibid ., para. 93 & notes 195, 196.
49 - Ibid., para. 595.
50 - Defence Appeal Brief, paras. 53 - 57.
51 - Ibid., para. 53.
52 - Trial Judgement, para. 595.
53 - See Stakic Trial Judgement, para. 519 & nn. 1097 - 1098 (citing K. Kreß, Münchner Kommentar zum StGB, Rn 57, section 6 VStGB (2003); William A. Schabas, Genocide in International Law (2000), p. 200; BGH v. 21.2.2001 – 3 StR 244/00, NJW 2001, 2732 (2733)).
54 - Jelisic Appeal Judgement, para. 47.
55 - Defence Appeal Brief, paras. 74-77.
56 - Jelisic Appeal Judgement, para. 47; see also Rutaganda Appeal Judgement, para. 528.
57 - Trial Judgement, paras. 591 - 599.
58 - Appellant Appeal Brief, paras. 84 - 101.
59 - Krnojelac Appeal Judgement, para. 11.
60 - Ibid., para. 12; Tadic Appeal Judgement, para. 64; Celebici Appeal Judgement, para. 434; Aleksovski Appeal Judgement, para. 63.
61 - Krnojelac Appeal Judgement, paras. 13, 39; Vasiljevic Appeal Judgement, para. 8
62 - Vasiljevic Appeals Judgement, para. 121; see also Vasiljevic Judgement, para. 68; Krnojelac Judgement, para. 83.
63 - Trial Judgement, paras. 633, 644.
64 - Defence Appeal Brief, paras. 204 - 210.
65 - Ibid., paras. 176 - 203.
66 - Ibid., paras. 157 - 175.
67 - Ibid., para. 143, 154.
68 - Ibid., paras. 328 - 331, 625.
69 - Defence Appeal Brief, para. 205.
70 - Ibid., para. 206.
71 - Ibid., paras. 207 - 208.
72 - Trial Judgement, paras. 312 - 315.
73 - Ibid., paras. 329, 317.
74 - Ibid., para. 330.
75 - T, pp. 406 - 407, Annex 7.
76 - Defence Appeal Brief, paras. 197 - 198.
77 - Ibid., para. 177.
78 - Trial Judgement, paras. 88 - 89.
79 - Defence Appeal Brief, para. 177.
80 - Ibid., paras. 179 - 180.
81 - Ibid., paras. 178 - 185.
82 - Trial Judgement, para. 168.
83 - Ibid., para. 289.
84 - Ibid., paras. 268.
85 - Ibid., paras. 168 - 178, 377.
86 - Ibid., para. 186.
87 - Defence Appeal Brief, para. 188.
88 - Exh. P364/2, tab 14/2; Trial Judgement, para. 194.
89 - Exh. P649; Trial Judgement, paras. 195, 264.
90 - Trial Judgement, para. 192 - 193.
91 - Exh. P609.
92 - Trial Judgement, paras. 265 - 272.
93 - Ibid., para. 265.
94 - Ibid., para. 266.
95 - Defence Appeal Brief, paras. 183 - 184.
96 - Ibid., para. 184 - 185.
97 - Ibid., paras. 187 - 191, 239.
98 - Ibid., para. 181.
99 - Ibid., para. 268.
100 - Ibid., para. 269.
101 - Ibid., paras. 269 - 270.
102 - Ibid., para. 270.
103 - Defence Appeal Brief, para. 198.
104 - Exh. D160; D158.
105 - Rule 115 Defence Motion to Present Additional Evidence, 10 January 2003, paras. 7 - 10; Annex Tabs 1 - 3.
106 - AT, p. 190.
107 - Trial Judgement, para. 362.
108 - See Section III.B.1(a) of this Judgement.
109 - T, p. 407.
110 - Trial Judgement, para. 158.
111 - Defence Appeal Brief, paras. 157 - 164.
112 - Ibid., paras. 165 - 169. Regarding the column, see also paras. 60 et seq.
113 - Ibid., para. 169.
114 - Trial Judgement, para. 239.
115 - Ibid., para. 244.
116 - Testimony of Richard Butler pursuant to the Order of the Appeals Chamber granting the Appellant’s Oral Rule 115 Motion, 24 November 2003 (“Butler Report”), T, p. 4617.
117 - Ibid., T, p. 4621.
118 - Ibid., T, pp. 4171 - 4718.
119 - Trial Judgement, paras. 240, 246.
120 - Ibid., para. 240.
121 - Defence Appeal Brief, paras. 165 - 166.
122 - Trial Judgement, para. 401.
123 - AT, pp. 217 - 221; the relevant evidence is at Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-T, Transcript of hearing dated 14 November 2003, page 4608 et seq.
124 - Butler Report, T, pp. 4615 - 4616.
125 - Trial Judgement, para. 401.
126 - Defence Appeal Brief., paras. 174 - 175.
127 - Trial Judgement, para. 380.
128 - Ibid., para. 382.
129 - Ibid., paras. 385, 387.
130 - Ibid., par 383.
131 - Ibid., n. 1015 (citing T 483).
132 - Defence Appeal Brief, para. 96.
133 - Ibid., para. 97.
134 - Trial Judgement, para. 2.
135 - Ibid., para. 407.
136 - Ibid.
137 - Ibid., para. 339.
138 - Ibid., para. 343.
139 - Ibid, para. 126.
140 - Ibid., para. 130.
141 - Ibid.
142 - Ibid., para. 156.
143 - Ibid, para 130.
144 - Ibid, para 132.
145 - Ibid.
146 - T, p. 401.
147 - Appeal Proceedings, Friday 21 November 2003, T, pp. 101 - 174.
148 - Trial Judgement, paras. 352 - 354.
149 - Ibid., para. 354.
150 - Ibid., para. 367.
151 - Ibid.
152 - Ibid., para. 58.
153 - Ibid., paras. 160, 367.
154 - Ibid., para. 368.
155 - Ibid., para. 369.
156 - Ibid.
157 - Ibid., para. 183.
158 - Ibid., para. 295.
159 - Ibid., para. 363.
160 - Ibid., para. 156.
161 - Ibid., para. 70.
162 - Ibid., para. 296.
163 - Ibid., para. 379.
164 - Ibid., para. 400.
165 - Ibid., para. 408.
166 - Ibid., paras. 380 - 387, 408.
167 - Ibid., para. 381.
168 - Ibid., para. 384.
169 - Ibid., para. 423.
170 - Trial Judgement, para. 382.
171 - Ibid., para. 423.
172 - T, pp.  340 - 341.
173 - Butler Report.
174 - Trial Judgement, para. 408.
175 - Ibid., para. 385.
176 - Major Obrenovic was subsequently promoted to the rank of Lieutenant-Colonel.
177 - Ibid., paras. 388 - 389.
178 - Ibid., para. 389.
179 - Ibid., para. 390.
180 - Ibid., para. 392.
181 - Ibid., para. 393.
182 - Ibid., para. 390.
183 - Trial Judgement, para. 395.
184 - Ibid., para. 396.
185 - Appeal Hearing, Thursday 27 November T, p. 421.
186 - Trial Judgement, paras. 388 - 399, 411.
187 - Ibid., para. 397.
188 - Ibid., para. 409 - 410.
189 - Ibid., para. 242.
190 - Ibid., paras. 400 - 410.
191 - Ibid., para. 403.
192 - Ibid., para. 400.
193 - Ibid., paras. 283 - 289, 375 - 377.
194 - Ibid., para. 143.
195 - Trial Judgement, para. 177, read with paras 215, 446, 624..
196 - His evidence at the Appeal hearing was that he had reported to President Karadzic “about the incidents in connection with the detained or captured Muslims that I was aware of up until that time that is in the 14th in the morning. A major incident or a major tragedy that occurred on the 13th in the evening was the killing of a large number of Muslims in the agricultural farm in Kravica. Muslims were held there, and I received this information from the ground – or the Muslims who had surrendered … And an incident broke out between the army of the Republika Srpska, members of the police, the special police forces, and those captured Muslims. A killing occurred of several Serb policemen – one, actually – and several were wounded in this clash. And then the policeman or the soldiers, whoever was there … took their revenge on those captured, and according to the information passed on to me by Mr. Borov~anin, about 300 men were killed.” AT, p. 124
197 - T, pp. 2527 - 2259, Annex B-32.
198 - AT, p. 124 – 125.
199 - Annex 3, Evidence of Nikolic (T, p. 402).
200 - Trial Judgement, paras. 195 - 204.
201 - Ibid., para. 215.
202 - Ibid., paras. 220 - 225.
203 - Ibid., para. 224.
204 - Ibid., para. 225.
205 - Ibid., para. 232.
206 - Ibid., paras. 239 - 243.
207 - Ibid., para. 246.
208 - Ibid., paras. 252 - 253.
209 - Ibid., paras. 254 - 256.
210 - Ibid., paras. 257 - 261.
211 - Ibid., para. 296.
212 - Ibid., para. 418.
213 - Ibid., para. 633.
214 - Ibid., para. 336.
215 - Ibid., para. 420.
216 - Ibid.
217 - Ibid., para. 358.
218 - Ibid., para. 359.
219 - Ibid., para. 360.
220 - Ibid., para. 374.
221 - Ibid., para. 290.
222 - Ibid., para. 378.
223 - Ibid., para. 416.
224 - Ibid., para. 416, 417.
225 - Ibid., para. 417.
226 - See Krnojelac Appeal Judgement, para. 52; Vasiljevic Appeal Judgement, para. 102.
227 - Indictment, paras. 18, 23.
228 - Indictment, paras. 21 - 26. The Appeals Chamber notes that there was ample discussion on the issue of aiding and abetting versus complicity to genocide during the Appeals hearing, in response to questions posed by the bench. T 431-437.
229 - Trial Judgement, paras. 642 – 644.
230 - See ibid ., para. 640; see also Semanza Triall Judgement, paras. 394 - 395 & n. 655.
231 - See Stakic Trial Judgement, para. 531; Stakic Decision on Rule 98 Bis Motion for Judgement of Acquittal, para. 47; Semanza Triall Judgement, paras. 394 – 395.
232 - See Stakic Trial Judgement, para. 531; Stakic Decision on Rule 98 Bis Motion for Judgement of Acquittal, para. 47.
233 - See Krnojelac Appeal Judgement, para. 70 (“The Appeals Chamber notes first of all that, in the case-law of the Tribunal … this term [accomplice] has different meanings depending on the context and may refer to a co-perpetrator or an aider and abettor.”) (citing Tadic Appeal Judgement, paras. 220, 229).
234 - In this Appeal, the Appeals Chamber is concerned solely with the application to Article 4(3) of only one mode of liability deriving from Article 7(1), that of aiding and abetting. The Appeals Chamber expresses no opinion regarding other modes of liability listed in Article 7(1).
235 - See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need not share th[at] intent”); Vasiljevic Appeal Judgement, para. 142 (“In order to convict [the accused] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that ?heg had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate . . . .”); see also Tadic Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.”).
236 - Code Pénal, Art. 121-7 (“Est complice d'un crime ou d'un délit la personne qui sciemment, par aide ou assistance, en a facilité la préparation ou la consommation.”); see also Cour de Cassation, Chambre criminelle, 1st October 1984, summary 96.
237 - Code Pénal, Art. 211-1.
238 - See section 27(1) of the German Penal Code (Strafgesetzbuch). According to section 2 of the German Code of Crimes Against International Law (CCIL), section 27(1) of the German Penal Code is applicable to crimes of genocide. See Albin Eser & Helmut Kreicker, Nationale Strafverfolgung Völkerrechtlicher Verbrechen (Freiburg 2003), Vol. I, pp. 107, 108.
239 - With the implementation of the Statute of the International Criminal Court (ICC) in Germany, Section 6 of the CCIL recently replaced former § 220a of the German Penal Code. See Gerhard Werle & Florian Jessberger International Criminal Justice Is Coming Home: The New German Code of Crimes Against International Law,” Criminal Law Forum 13, (2002), pp. 201 - 202. The new provision is substantively similar. See ibid ., pp. 191 – 223. This article also provides a full reprint of the CCIL in English. The text is also available, both in English and in several other languages, at http://www.iuscrim.mpg.de/forsch/online_pub.html.
240 - See Arts. 25, 65 of the Swiss Criminal Code (Schweizerisches Strafgesetzbuch) (“La peine pourra être atténuée (art 65) à l’égard de celui qui aura intentiollement prêté assistance pour commetre un crime ou un délit.”); see also Judgement of the Swiss Federal Supreme Court (Schweizerisches Bundesgericht) of 17 February 1995, Decisions of the Swiss Federal Supreme Court (Bundesgerichtsentscheide, 121 IV, pp. 109, 120.
241 - See, e.g. , National Coal Board v. Gamble [1959] 1 Q.B. 11.
242 - See Schedule 8, Art. 6 of the International Criminal Court Act of 2001 (specifying that a determination of liability in aiding and abetting genocide follows the general regulations of Section 8 of the Accessories and Abettors Act of 1861). The approach was the same under the pre-ICC English law. See Genocide Act of 1969 (replaced by the International Criminal Court Act on 31 August 2001); Official Report, Fifth Series, Parliamentary debates, Commons 1968-69, Vol. 777, 3 - 14 February 1969, pp. 480-509 (explaining that secondary liability with respect to genocide will be governed by the general principles of the English criminal law).
243 - See Dunlop and Sylvester v. Regina [ 1979] 2 S.C.R. 881 (Supreme Court of Canada) (“one must be able to infer that the accused had prior knowledge that an offence of the type committed was planned”); Giorgianni (1985) 58 A.L.R. 641 (High Court of Australia) (relying on National Coal Board to hold that, to “be convicted of aiding, abetting, counselling or procuring the commission of an offence,” the accused must “know … all the essential facts which made what was done a crime”).
244 - See Candace Courteau, Note, The Mental Element Required for Accomplice Liability, 59 La. L. Rev. 325, 334 (1998) (while the majority of federal and state jurisdictions in the United States require a showing that an aider and abettor shared the principal perpetrator’s intent, some states still find knowledge to be sufficient).
245 - The same analysis applies to the relationship between Article II of the Genocide Convention, which contains the requirement of specific intent, and the Convention’s Article III, which lists the proscribed acts, including that of complicity.
246 - William Schabas, Genocide in International Law, at 289 (2000) (quoting UN Doc. A/C.6/236 & Corr. 1; UN Doc. A/C.6/SR.87).
247 - 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.
248 - See, e,g., Krnojelac Trial Judgement, paras. 489-490 (finding a defendant liable for having aided and abetted the crime of persecution, which requires the specific intent to discriminate, where the principal perpetrators of the crime were not identified). Although the Appeals Chamber, on unrelated grounds, increased the defendant’s level of responsibility to that of a co-perpetrator, it rejected the defendant’s appeal against his conviction as an aider and abettor. See Krnojelac Appeal Judgement, paras. 35-53. See also Stakic Trial Judgement, para. 534 (stating that “an individual can be prosecuted for complicity even where the perpetrator has not been tried or even identified”) (citing Musema Trial Judgement, para. 174); Akayesu Trial Judgement, para. 531 (same).
249 - See Vasiljevic Trial Judgement, para. 143.
250 - In entering a conviction against General Krstic as a participant in a joint criminal enterprise to commit genocide under Article 7(1) the Trial Chamber stated that he could also bear responsibility as a Commander pursuant to Article 7(3). The Trial Chamber concluded, however, that a conviction under Article 7(1) sufficiently expressed General Krstic’s criminality. Trial Judgement, para. 652. The Appeals Chamber’s determination that General Krstic is responsible as an aider and abettor is also based on Article 7(1). Even if General Krstic is also found to be responsible as a Commander, the Appeals Chamber concludes, as did the Trial Chamber, that the mode of liability under Article 7(1) best encapsulates General Krstic’s criminality. This is because the most he could have done as a Commander was to report the use of his personnel and assets, in facilitating the killings, to the VRS Main Staff and to his superior, General Mladic, the very people who ordered the executions and were active participants in them. Further, although General Krstic could have tried to punish his subordinates for their participation in facilitating the executions, it is unlikely that he would have had the support of his superiors in doing so. See Krnojelac Trial Judgement, para. 127; not disturbed on appeal, see Krnojelac Appeal Judgement.
251 - Defence Appeal Brief, paras. 143 - 156.
252 - Ibid., para. 154; Exh. D432.
253 - Ibid., para. 154; Trial Testimony of Drazen Erdemovic, T, p. 3083 (14 April 2000).
254 - Ibid., para. 154, Trial Judgement para. 358.
255 - Ibid.
256 - Trial Judgement, paras. 355, 337.
257 - Trial Judgement, para. 335.
258 - Trial Judgement, paras. 339-343.
259 - Trial Judgement, paras. 350-354.
260 - Trial Judgement, para. 344 – 345, 347.
261 - Ibid., para. 358.
262 - Ibid., para. 616.
263 - Defence Appeal Brief, para. 208.
264 - Ibid., paras. 102 - 142.
265 - Blaskic Decision on the Appellant’s Motion for the Production of Material, para. 38. See also Akayesu Appeal Judgement, para. 340.
266 - Brdjanin Decision on Motion for Relief from Rule 68 Violations by the Prosecutor.
267 - For example, where the Defence knew of the existence of the non-disclosed evidence, prejudice cannot be shown. In the Blaskic Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, it was held that “the Prosecution may still be relieved of the obligation under Rule 68, if the existence of the relevant exculpatory evidence is known and the evidence is accessible to the appellant, as the appellant would not be prejudiced materially by this violation.”
268 - Rule 65ter has since been amended.
269 - Prosecution’s Response to Motion for Production of Evidence, 10 December 2001, para. 41; incorporated by reference into the Prosecutor’s Response Appeal Brief at para. 3.51.
270 - Transcript of Pre-Trial Conference (6 March 2000), pp. 398 - 400.
271 - Presumably the pre-trial judge was referring to Rule 67, and not Rule 68 as stated in the transcript.
272 - Transcript of Pre-Trial Conference (6 March 2000), pp. 398 - 400.
273 - Defence Appeal Brief, paras. 105 and 107.
274 - Ibid.
275 - Krajisnik & Plavsic Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter, 66(B) and 67(C).
276 - Krajisnik & Plavsic, paras. 7 and 8.
277 - The amendment entered into force on 28 December 2001.
278 - Rule 65ter(E)(iii): “The Prosecutor shall serve on the defence copies of the exhibits … listed.”
279 - Defence Appeal Brief, para. 106.
280 - Krajisnik & Plavsic, para. 7.
281 - Ibid, para. 8.
282 - Prosecution Response, paras. 3.27 - 3.37. While this agreement governed military documents for which admission as evidence was sought, that category of evidence constituted a substantial part of the Prosecution’s case.
283 - As noted by the Prosecution in its Response to the Defence Appeal Brief, para. 3.28.
284 - Prosecution Response, para. 3.36.
285 - Ibid.
286 - Ibid.
287 - Defence Appeal Brief, paras. 118 - 119.
288 - The tape had been disclosed to the Defence the day before it was used at trial. See Prosecution’s Response, para. 3.44, citing T. 6799.
289 - Prosecution Response, para. 3.45.
290 - Defence Appeal Brief, para. 110 - 123.
291 - Ibid., para. 121.
292 - Decision on the Defence Motions to Exclude Exhibits in Rebuttal Evidence and Motion for Continuance (confidential), 25 April 2001; references are to the public version of 4 May 2001. This Decision was made after hearing nine witnesses testify about the evidence in rebuttal, and after considering thirty exhibits relating to the conversation and hearing it played multiple times in court. See Defence Appeal Brief, para. 120.
293 - See Akayesu Appeal Judgement, para. 343.
294 - Akayesu Appeal Judgement, paras. 341 - 344.
295 - Ibid.
296 - Defence Appeal Brief, paras. 122 - 123.
297 - In the Prosecution Response at paragraph 3.50, the Prosecution submitted that no Rule at that time precluded it from introducing the tape solely for the purpose of impeachment. Rule 65ter(E) applies only to exhibits and not to evidence submitted for the purposes of impeachment.
298 - Defence Appeal Brief, para. 113.
299 - Decision on the Defence Motions to Exclude Exhibits in Rebuttal Evidence and Motion for Continuance (confidential), 25 April 2001, public version 4 May 2001.
300 - Ibid., paras. 10 – 13.
301 - See Defence Rule 68 Brief, para. 1. On 30 November 2001, the Defence filed its Motion for Production of Evidence, 30 November 2001, seeking the production of material which it alleged the Prosecution should have disclosed to it at trial under Rule 68. Following this motion, a number of filings were made by each party on the issue (see Annex A, Procedural Background). A number of reports updating the status of disclosure were also filed by the parties after they had reached an agreement: Prosecution’s Status Report (partly confidential), 28 July 2003; Status Report (filed by the Prosecution, partly confidential), 17 March 2003; Prosecution’s Status Report on Disclosure as of November 2002, 14 November 2002; Second Status Report on Appellant’s Request for Deferral of Decision on Motion for Production of Evidence, 4 June 2002; Prosecution’s Status Report on Disclosure, signed 5 June 2002, filed 6 June 2002; Status Report on Appellant’s Request for Deferral of Decision on Motion for Production of Evidence, signed 19 March 2002, filed 20 March 2002. The additional disclosure by the Prosecution culminated in the Defence filing a motion for the admission of additional evidence on appeal pursuant to Rule 115 (Rule 115 Defence Motion to Present Additional Evidence, 10 January 2003; Supplemental Rule 115 Defence Motion to Present Additional Evidence, filed confidentially 20 Jan 2003; Defence Addendum to Rule 115 Motion with Request for Authorisation to Exceed Page Limit on the Rule 115 Motion, filed confidentially 27 January 2003; Defence Addendum to Rule 115 Motion with Request for Authorisation to Exceed the Page Limit in the Rule 115 Motion Filed on 27 January 2003, public version filed on 12 February 2003; Defence Reply to the Prosecution’s Response to Defence Motions for Additional Evidence Under Rule 115, filed confidentially on 12 February 2003; Supplemental Rule 115 Motion to Present Additional Evidence, filed confidentially on 12 February 2003; Rule 115 Defence Motion to Present Additional Evidence Filed on 10 January 2003, public version filed on 12 February 2003.) It was in that motion that the Defence made submissions relating to violations of Rule 68. The parties subsequently agreed (Status Conferences, 27 August 2002, Transcript p. 43; 25 November 2002, Transcript pp. 58 - 59, 65, 67 - 68; 19 March 2003, Transcript, pp. 79 - 80) that allegations relating to Rule 68 and the fairness of the trial should be dealt with separately from the Rule 115 motion. In accordance with this agreement, the Defence confidentially filed its “Defence Appeal Brief Concerning Rule 68 Violations,” on 11 April 2003 (“Defence Rule 68 Brief”) to which the Prosecution responded confidentially in its Response to Defence Appeal Brief Concerning Rule 68 Violations, 8 May 2003 (“Prosecution Rule 68 Brief”).
302 - Prosecution Rule 68 Brief, para. 2.1; See para. 3.9 where the Prosecution specifies that six statements rather than five contain Rule 68 materials.
303 - Ibid.
304 - Celebici Decision on the Request of the Accused Hazim Delic Pursuant to Rule 68, para. 12.
305 - Decision on Prosecution’s Extremely Urgent Request for Variation of Orders Regarding Private Session Testimony, 14 November 2003.
306 - Krstic Decision on Prosecution’s Motion to Be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C), 27 Mar 2003, p 4; Kordic & Cerkez Decision on Motion by Dario Kordic for Access to Unredacted Portions of October 2002 Interviews with Witness “AT”, para. 24.
307 - Prosecution Rule 68 Brief, para. 2.7.
308 - Ibid., para. 2.15, citing United States v Comosona, 848 F. 2d 1110 (10th Cir 1988) at p. 1115.
309 - Krstic Decision on Applications for Admission of Additional Evidence on Appeal.
310 - Defence Rule 68 Brief, para. 27.
311 - Rule 115 Reasons, para. 43.
312 - Defence Rule 68 Brief, para. 28.
313 - Rule 115 Reasons, para. 50.
314 - Op cit., para. 54.
315 - Defence Rule 68 Brief, para. 29.
316 - Ibid.
317 - Rule 115 Reasons, para. 56.
318 - Defence Rule 68 Brief, para. 37.
319 - Rule 115 Reasons, para. 119.
320 - Defence Rule 68 Brief, para. 40, citing the Blaskic Decision on the Defence Motion for Sanction’s for the Prosecutor’s Continuing Violation of Rule 68. The Blaskic Decision stated at p. 3 that “possible violations of Rule 68 are governed less by a system of sanctions than by the judge’s definitive evaluation of the evidence presented by either of the parties, and the possibility which the opposing party will have had to contest it.”
321 - For example, the evidence of Dragan Obrenovic was admitted under Rule 115, while the evidence of other witnesses whose statements form the subject of this application was rejected. See Krstic Decision on Applications for Admission of Additional Evidence on Appeal, and Rule 115 Reasons, para. 3.
322 - Rule 115 Reasons.
323 - Defence Appeal Brief, para. 128.
324 - Prosecution Response, para. 3.53.
325 - Krajisnik & Plavsic Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68, p. 2: “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 and it is no answer to say that the Defence are in a better position to identify it.”
326 - Defence Appeal Brief, para. 129.
327 - Notably the disclosures of 25 June 2000 and 5 March 2001.
328 - Defence Appeal Brief, para. 129.
329 - Ibid.
330 - Ibid., para. 129 et seq.
331 - Prosecution Response, para. 3.59.
332 - In its response at para. 3.60 the Prosecution submits that, in relation to the 25 June 2000 disclosure, the Defence had 24 days to examine the binders before commencement of cross examination, and that any material not identified as exculpatory at that stage could have been introduced in the Defence’s case-in-chief. In relation to the 5 March 2001 disclosure, the Prosecution submits that the material was disclosed 14 days prior to the commencement of the Prosecution’s case in rebuttal and that the Defence could have used the material in the Prosecution’s rebuttal or in its own rejoinder, which began on 2 April 2001.
333 - See the discussion regarding prejudice at paragraph 153 above.
334 - See the discussion under Section E below.
335 - See inter alia Order for a Witness to Appear, 13 December 2000; and Further Order for a Witness to Appear, 18 December 2000.
336 - See the Order on Prosecution’s Motion to Lift Ex Parte Status of Meeting with the Trial Chamber on 11 January 2002, 7 March 2002 (confidential), in which the Pre-Appeal Judge granted the Prosecution’s request to permit access to notes taken of the meeting of 11 January 2001, at which meeting the Prosecution disclosed these circumstances to the Trial Chamber.
337 - Hadzihasanovic et al. Indictment (confidential).
338 - Halilovic Indictment.
339 - Defence Appeal Brief, para. 139.
340 - Prosecution Response, p. 46.
341 - Ibid. , para. 3.72.
342 - Ibid., paras. 3.67 - 3.69.
343 - Kordic & Cerkez Order on Motion to Compel Compliance by the Prosecution with Rules 66 (A) and 68.
344 - Prosecution’s Response, para. 3.83.
345 - T, pp. 9439 - 9505.
346 - Trial Judgement, paras. 613 - 615.
347 - T, p. 9595 - 9617.
348 - Prosecution Response, para. 3.73. See the Krstic Order to Appear and Order to Appear (2).
349 - Further Response to Appellant’s 24 December 2001 Supplemental Reply, 11 March 2002; Prosecution Request for Leave to File a Further Response to “Defence Appeal Brief Concerning Rule 68 Violations”, 23 May 2003; Prosecution’s Further Response to the Reply filed by Radislav Krstic on 22 May 2003 Regarding Rule 68 Violations, 30 June 2003.
350 - Defence Response, para. 7.
351 - See Kunarac et al. AppealJudgement, para. 169; Mucic et al. Judgement on Sentence Appeal, para. 25.
352 - Kunarac et al. AppealJudgement, para. 169.
353 - Celebici Appeal Judgement, para. 412; see also Jelisic Appeal Judgement, para. 78; Kupreskic et al. Appeal Judgement, para. 387; Kunarac et al. Appeal Judgement, para. 168; Vasiljevic Appeal Judgement, paras. 135, 146. This approach has also been endorsed by the Appeals Chamber of the ICTR. See Musema Appeal Judgement, para. 363.
354 - Celebici Appeal Judgement, para. 412; see also Jelisic Appeal Judgement, para. 78; Kupreskic et al. Appeal Judgement, para. 387; Kunarac et al. AppealJudgement, paras. 168, 173.
355 - Celebici Appeal Judgement, para. 413; see also Jelisic Appeal Judgement, para. 79; Kupreskic et al. Appeal Judgement, para. 387; Kunarac et al. AppealJudgement, para. 168.
356 - Prosecution Appeal Brief, paras. 1.6, 3.38.
357 - Trial Judgement, paras. 682, 685 - 686.
358 - Prosecution Appeal Brief, para. 3.34.
359 - Musema Appeal Judgement, para. 366. At the Appeal hearing, the Defence conceded that, under the reasoning of Musema, convictions for extermination and genocide are not impermissibly cumulative. See AT, p. 281.
360 - Trial Judgement, para. 682.
361 - Ibid.
362 - Ibid.
363 - Trial Judgement, para. 544; see also Jelisic Appeal Judgement, para. 46 (“The specific intent [of genocide] requires that the perpetrator, by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such.”) (footnote omitted).
364 - Tadic Appeal Judgement, para. 248; see also Kunarac et al. Appeal Judgement, paras. 85, 96, 102.
365 - See, e.g. , 1 The Rome Statute of the International Criminal Court: A Commentary (Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at p. 340 (under customary international law, “it is only for crimes against humanity [and not for genocide] that knowledge of the widespread or systematic practice is required”).
366 - Trial Judgement, n. 1455 (quoting Report of the Preparatory Commission for the International Criminal Court, 6 July 2000, PCNICC/2000/INF/3/Add.2). The Trial Chamber stated that this definition was present in the Statute of the ICC; the definition, of course, is given only in the Elements of Crimes. There is a difference between the two. The Elements of Crimes, adopted by the Assembly of States Parties to the ICC pursuant to Article 9(1) of the ICC Statute, are intended only to “assist the Court in the interpretation and application” of the substantive definitions of crimes given in the Statute itself. See Elements of Crimes, General Introduction, para. 1. Unlike the definitions present in the Statute, the definitions given in the Elements of Crimes are not binding rules, but only auxiliary means of interpretation. See 1 The Rome Statute of the International Criminal Court: A Commentary (Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at p. 348. Article 6 of the ICC Statute, which defines genocide, does not prescribe the requirement introduced in the Elements of Crimes. Ibid., at p. 349.
367 - See 1 The Rome Statute of the International Criminal Court: A Commentary (Antonio Cassese, Paola Gaeta, John R.W.D. Jones, eds, 2002), at pp. 339 – 340, 348 - 350.
368 - Trial Judgement, para. 685.
369 - Jelisic Appeal Judgement, para. 48.
370 - See ibid .
371 - Kunarac et al. Appeal Judgement, para. 98
372 - Ibid., para. 174.
373 - Prosecution Appeal Brief, paras. 1.6, 3.47.
374 - Trial Judgement, paras. 682 - 686.
375 - Prosecution Appeal Brief, paras. 1.6, 3.49.
376 - Trial Judgement, para. 675. The Trial Chamber’s Judgement is rather unclear as to what convictions the Chamber actually entered. Two different sets of crimes were at issue in this case: the crimes committed in Potocari between 11 and 13 July 1995, and the crimes committed against Bosnian Muslims of Srebrenica between 13 and 19 July 1995. With respect to the first set, the Trial Chamber stated, in the section on General Krstic’s criminal responsibility, that he was guilty of inhumane acts of forcible transfer as a crime against humanity (Count 8) and of persecution as a crime against humanity, carried out through murder, forcible transfer and other means (Count 6). See ibid ., para. 653; see also ibid., para. 618 & notes 1367 - 1368. Notably absent was a finding of guilt for murder as a crime against humanity (Count 4) on the basis of the acts committed in Potocari. In the section on cumulative convictions, however, the Trial Chamber suddenly announced that the murders committed at Potocari could “be legally characterised” as murders under Article 5 (Count 4). See ibid ., para. 671. The Chamber then proceeded to analyse whether this murder conviction was impermissibly cumulative with the conviction for persecution based on the same acts, eventually setting aside the murder conviction. See ibid ., paras. 673, 675. Given that the Appeals Chamber affirms the Trial Chamber’s conclusion that these convictions are impermissibly cumulative, there is no need to decide whether General Krstic’s conviction for murder as a crime against humanity based on the acts committed in Potocari must be vacated because he was, in fact, never found guilty of that crime by the Trial Chamber.
377 - Prosecution Appeal Brief, paras. 1.6, 3.80.
378 - Trial Judgement, para. 676.
379 - Vasiljevic Appeals Judgement, paras. 135, 146.
380 - Ibid., para. 146.
381 - Krnojelac Appeal Judgement, para. 188. The Prosecution argues that the Krnojelac Appeal Judgement is not binding because the issue was adjudicated by the Appeals Chamber proprio motu, and without the benefit of briefing or argument. AT, p. 233. There is no indication, however, that the Appeals Chamber in Krnojelac reached its decision without due consideration of the issue. In any event, the conclusion reached by the Krnojelac Appeals Chamber was subsequently re-affirmed in the Vasiljevic Appeal Judgement, a decision which post-dates the appeal hearing in this case.
382 - Prosecution Appeal Brief, paras. 3.54 - 3.55, 3.73 - 3.75.
383 - The jurisprudence of the United States Supreme Court, on whose Blockburger test the Tribunal’s approach to cumulative convictions is based, see Kunarac et al. Appeal Judgement, para. 168, is instructive in this regard. In Ball v. United States, 470 U.S. 856 (1985), the U.S. Supreme Court examined the question of whether convicting a felon for receiving a firearm and possessing the same firearm was impermissibly cumulative. Applying the Blockburger test, the court easily concluded that the legislator “did not intend to subject felons to two convictions [because] proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon.” Ibid., at 862.
384 - Trial Judgement, para. 726.
385 - See Annex A, Procedural Background.
386 - Prosecution Appeal Brief, section 4(A).
387 - Ibid., section 4(B).
388 - Trial Judgement, para. 724, Prosecution Appeal Brief, section 4(C).
389 - Trial Judgement, paras. 711 - 712, Prosecution Appeal Brief, section 4(D).
390 - Prosecution Appeal Brief, para. 2.2, citing the test established in the Kupreskic et al. Appeal Judgement.
391 - Ibid., paras. 5.2 - 5.3.
392 - Defence Response to Prosecution Appeal Brief, paras. 38 - 50; Trial Judgement, para. 697.
393 - Trial Judgement, paras. 713 - 716, Defence Response to Prosecution Appeal Brief, para. 99.
394 - Defence Response to Prosecution Appeal Brief, para. 100.
395 - Vasiljevic Appeal Judgement, para. 149.
396 - Rule 101(B). See also Celebici Appeal Judgement, para. 716 (“These ‘general guidelines’ amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances, … the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts of the former Yugoslavia.”).
397 - Celebici Appeal Judgement, para. 780. See also Kambanda Appeal Judgement, para. 124 (while the Trial Chamber is bound by the Rules to consider the mitigating factors, the weight to be accorded to those factors “is a matter for the discretion of the Trial Chamber.”).
398 - Jelisic Appeal Judgement, para. 101; see also Trial Judgement para. 700.
399 - See below.
400 - Celebici Appeal Judgement, para. 715. See also Furundzija Appeal Judgement, para. 238.
401 - Vasiljevic Appeal Judgement, para. 9. See also Jelisic Appeal Judgement, para. 99; Celebici Appeal Judgement para. 725; Furundzija Appeal Judgement, para. 239; Aleksovski Appeal Judgement, para. 187; Tadic Judgement in Sentencing Appeals, para. 22.
402 - Prosecution’s Appeal Brief, paras. 4.1 et seq; and para. 4.23.
403 - Defence Response, paras. 51 - 64.
404 - Celebici Appeal Judgement, para. 712.
405 - Jelisic Appeal Judgement, cited in the Prosecution Appeal Brief, paras. 4.25 et seq.
406 - Jelisic Appeal Judgement, para. 96.
407 - Ibid., emphasis added.
408 - See, e.g. , the Furundzija Appeal Judgement, para. 250 (“The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given. A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules”) (emphasis added); see also Celebici Appeal Judgement, paras. 719, 721, 757 - 758, 798; Kupreskic et al. Appeal Judgement, para. 443. The ICTR follows the same practice. Kajelijeli Trial Judgement, para. 963 (“Principal perpetrators convicted of either genocide or extermination as a crime against humanity or both have been punished with sentences ranging from fifteen years to life imprisonment. Secondary or indirect forms of participation have generally resulted in a lower sentence.”); see also the Serushago Sentence, para. 22 (the accused was convicted of genocide and three counts of crimes against humanity (murder, extermination, and torture) and sentenced to 15 years imprisonment in light of the circumstances of that case).
409 - Celebici Appeal Judgement, para. 757: “When such a range or pattern has appeared, a Trial Chamber would be obliged to consider that range or pattern of sentences, without being bound by it.”
410 - Kupreskic et al. Appeal Judgement, para. 444.
411 - Prosecution Appeal Brief, paras. 4.24 - 4.86.
412 - Trial Judgement, para. 696. See also the following footnotes: 1464, 1465, 1474, 1479, 1484, 1491, 1492, 1497, 1507, 1509, 1511 and 1513.
413 - In the Stakic Trial Judgement, the accused was sentenced to life imprisonment.
414 - The ICTR has frequently imposed life sentences on persons convicted of genocide. See, for example, the Kambanda Trial Judgement (affirmed on appeal); the Akayesu Trial Judgement (affirmed on appeal); the Kayishema & Ruzindana Trial Judgement, imposing on Clement Kayishema a life sentence (affirmed on appeal); the Rutaganda Trial Judgement (appeal pending); the Musema Trial Judgement (affirmed on appeal); the Kamuhanda Trial Judgement (appeal pending); and the Niyitegeka Trial Judgement (appeal pending). However, the ICTR has also issued lesser sentences than life imprisonment for convictions of genocide. In the Kayishema & Ruzindana Trial Judgement, Obed Ruzindana was sentenced to 25 years imprisonment (affirmed on appeal); in the Serushago Trial Judgement, the Defendant was sentenced to 15 years imprisonment (affirmed on appeal); and in the Ntakirutimana Trial Judgement and Sentence, the defendants were sentenced to 10 and 25 years imprisonment (appeal pending).
415 - Trial Judgement, para. 724.
416 - Prosecution Appeal Brief, para. 4.91.
417 - Ibid.
418 - The Tribunal has recognised the practice of ‘gradation of sentence’; cf. the Aleksovski Appeal Judgement, para. 184.
419 - Trial Judgement, paras. 710 - 712.
420 - Prosecution’s Appeal Brief, paras. 4.113 et seq.
421 - The Appeals Chamber has, of course, concluded in any event that general Krstic was not a participant in a genocidal enterprise, but only an aider and abettor of genocide.
422 - Defence Response to Prosecution Appeal Brief, paras. 46 - 50.
423 - Kunarac et al. Trial Judgement, para. 29. This reasoning has been consistently adopted by the Appeals Chamber. See Kunarac et al. Appeal Judgement, para. 347 – 349; Tadic Judgement in Sentencing Appeals, para. 21; Celebici Appeal Judgement, paras. 813 and 820; Kupreskic et al. Appeal Judgement, para. 418.
424 - See also Todorovic Sentencing Judgement, paras. 96 et seq. (which conducted a similar analysis of the Bosnia-Herzegovinian law).
425 - Plavsic Sentencing Judgement, para. 115; Nikolic Sentencing Judgement, para. 96.
426 - Banovic Sentencing Judgement, para. 89.
427 - Defence Response to Prosecution Appeal Brief, paras. 66 - 72 and 99. See Trial Judgement at paras. 713 – 717 and 723. The alleged mitigating circumstances were: good personal character; no previous record; poor health; and cooperation with the Prosecution.
428 - Trial Judgement, para. 713.
429 - Vasiljevic Appeal Judgement, para. 181.
430 - Paras. 697 et seq.
431 - Article 24(2), recognized as “normally the starting point for consideration of an appropriate sentence” in the Aleksovski Appeal Judgement, para. 182: “the most important consideration, which may be regarded as the litmus test for the appropriate sentence.” See also Celebici Trial Judgement, para. 1225 (“By far the most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence.”).
432 - Article 24(1) of the Statute, Rule 101(B)(iii).
433 - Article 24(2).
434 - Rules 101(B)(i) and (ii).
435 - Vasiljevic Appeal Judgement, paras. 181 – 182, n.291.
436 - Kajelijeli Trial Judgement, para. 963; Vasiljevic Appeal Judgement, n. 291 (citing the law of seven common law and civil law jurisdictions).
437 - Prosecution Appeal Brief, para. 3.95.
438 - See Art. 24 of the Criminal Code of FRY (“A person, who premedidately aided another person in perpetration of a criminal act, will be punished as if he had committed it, his sentence can also be reduced.”).
439 - Defence Response to Prosecution Appeal Brief, para. 69.
440 - Ibid., para.72.
441 - See para. 82, supra.
442 - See para. 272, supra.
443 - See para. 132, supra.
444 - Prosecution Appeal Brief, 5.3.
445 - Tadic Judgement in Sentencing Appeals, paras. 28, 32.