1 - Trial Judgement, para 582.
2 - Kunarac was found guilty of the following counts in Indictment IT-96-23: Count 1 (crime against humanity (torture)); Count 2 (crime against humanity (rape)); Count 3 (violation of the laws or customs of war (torture)); Count 4 (violations of the laws or customs of war (rape)); Count 9 (crime against humanity (rape)); Count 10 (violation of the laws or customs of war (rape)); Count 11 (violation of the laws or customs of war (torture)); Count 12 (violation of the laws or customs of war (rape)); Count 18 (crime against humanity (enslavement)); Count 19 (crime against humanity (rape)); Count 20 (violation of the laws or customs of war (rape)).
3 - Trial Judgement, paras 630-745.
4 - Ibid., paras 630-687.
5 - Ibid., paras 699-704.
6 - Ibid., paras 705-715.
7 - Ibid., paras 716-745.
8 - Ibid., paras 745-782.
9 - Ibid., paras 811-817.
10 - Kupreskic Appeal Judgement, para 22 (footnotes omitted).
11 - Ibid., para 29.
12 - Ibid.
13 - Furundzija Appeal Judgement, para 37, quoting Black’s Law Dictionary (7th ed., St. Paul, Minn. 1999). See additionally the 6th edition of 1990.
14 - Kupreskic Appeal Judgement, para 30.
15 - Ibid., para 32.
16 - See Hadjianastassiou v Greece, European Court of Human Rights, no. 69/1991/321/393, [1992] ECHR 12945/87, Judgement of 16 December 1992, para 33.
17 - Ibid.
18 - See García Ruiz v Spain, European Court of Human Rights, no. 30544/96, ECHR, Judgement of 21 January 1999, para 26.
19 - As held by the Appeals Chamber in the Kupreskic Appeal Judgement, at para 27: “[A] party who submits that the Trial Chamber erred in law must at least identify the alleged error and advance some arguments in support of its contention. An appeal cannot be allowed to deteriorate into a guessing game for the Appeals Chamber. Without guidance from the appellant, the Appeals Chamber will only address legal errors where the Trial Chamber has made a glaring mistake. If the party is unable to at least identify the alleged legal error, he should not raise the argument on appeal. It is not sufficient to simply duplicate the submissions already raised before the Trial Chamber without seeking to clarify how these arguments support a legal error allegedly committed by the Trial Chamber.”
20 - This is also true in continental legal systems, see, e.g., § 344 II of the German Code of Criminal Procedure (Strafprozessordnung) containing a strict obligation on appellants to demonstrate the alleged miscarriage of justice. Under German law, a procedural objection is inadmissible if it cannot be understood from the appellant’s briefs alone; only one reference in a brief renders an objection inadmissible. This has been established jurisprudence of the German Federal Supreme Court of Justice in criminal matters (Bundesgerichtshof) since 1952, e.g. BGHSt., Volume 3, pp 213-214.
21 - See Kayishema Appeal Judgement, para 137. The second part of this paragraph reads: “One aspect of such burden [showing that the Trial Chamber’s findings were unreasonable] is that it is up to the Appellant to draw the attention of the Appeals Chamber to the part of the record on appeal which in his view supports the claim he is making. From a practical standpoint, it is the responsibility of the Appellant to indicate clearly which particular evidentiary material he relies upon. Claims that are not supported by such precise references to the relevant parts of the record on appeal will normally fail, on the ground that the Appellant has not discharged the applicable burden.” This burden to demonstrate is now explicitly set out in Rule 108 of the Rules. Furthermore, the “Practice Direction on Formal Requirements for Appeals from Judgement” (IT/201) of 7 March 2002 provides for appropriate sanctions in cases where a party has failed to meet the standard set out: “17. Where a party fails to comply with the requirements laid down in this Practice Direction, or where the wording of a filing is unclear or ambiguous, a designated Pre-Appeal Judge or the Appeals Chamber may, within its discretion, decide upon an appropriate sanction, which can include an order for clarification or re-filing. The Appeals Chamber may also reject a filing or dismiss submissions therein.”
22 - As regards the impact of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms to an appeal decision, see Hirvisaari v Finland, European Court of Human Rights, no. 49684/99, ECHR, Judgement of 27 September 2001, paras 30-32.
23 - The test set out, inter alia, in the Kupreskic Appeal Judgement (para 30) states the following: “Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is ‘wholly erroneous’ may the Appeals Chamber substitute its own finding for that of the Trial Chamber.”
24 - Kunarac Appeal Brief, paras 5-7 and 11-15; Vukovic Appeal Brief, paras 17 and 46 and Kovac Appeal Brief, paras 9 and 33-34. See also Appeal Transcript, T 46-48, 65 and 68.
25 - Appeal Transcript, T 47.
26 - Kunarac Appeal Brief, para 13 and Vukovic Appeal Brief, paras 61-65. See also Appeal Transcript, T 46-48.
27 - Appeal Transcript, T 48. See, e.g., Kovac Appeal Brief, para 22.
28 - Appeal Transcript, T 64-68.
29 - Kunarac Appeal Brief, paras 8-10 and Vukovic Appeal Brief, paras 50-53. See also Appeal Transcript, T 48 and 61-68 and Kovac Appeal Brief, paras 35-37.
30 - Kunarac Appeal Brief, para 8 and Vukovic Appeal Brief, para 51. See also Appeal Transcript, T 61-63.
31 - Kunarac Appeal Brief, para 10 and Vukovic Appeal Brief, para 53.
32 - Appeal Transcript, T 88.
33 - See, e.g., Kovac Appeal Brief, paras 131-133 and Prosecution Consolidated Respondent’s Brief, paras 2.2-2.4.
34 - Prosecution Consolidated Respondent’s Brief, para 3.6.
35 - Ibid., paras 3.5-3.6. See also Appeal Transcript, T 214-215.
36 - Appeal Transcript, T 216.
37 - Prosecution Submission Regarding Admissions and Contested Matters, 1 February 2000, p 4. See also Appeal Transcript, T 215.
38 - Ibid.
39 - Prosecution Consolidated Respondent’s Brief, para 3.31. See also Appeal Transcript, T 218.
40 - Ibid., paras 3.33-3.35. See also Appeal Transcript, T 221-222.
41 - Ibid.
42 - Prosecution Consolidated Respondent’s Brief, paras 2.2-2.5. See also Appeal Transcript, T 213-214.
43 - Appeal Transcript, T 213-214.
44 - Tadic Jurisdiction Decision, paras 67 and 70.
45 - Ibid., para 70.
46 - Ibid.
47 - See Trial Judgement, para 568.
48 - Tadic Jurisdiction Decision, para 70.
49 - Celebici Appeal Judgement, para 640 and Kayishema Appeal Judgement, para 91. See also Kambanda Appeal Judgement, para 25 and Akayesu Appeal Judgement, para 361.
50 - Ibid.
51 - See Trial Judgement, para 12, footnote 27.
52 - See Appeal Transcript, T 47-48.
53 - The relevant transcript pages of the hearing show that, when counsel for Kunarac was interrupted by the Presiding Judge who was enquiring about the relevancy of her questions, she was cross-examining a witness about the number of cafés in Gacko. When asked what the relevance of her line of questioning was, counsel responded that she was merely testing the credibility of the witness. On the same occasion, counsel was also reminded by one of the Judges that her questions had to be directed to issues relevant to the case, that is, either relevant to a fact that is in issue between the parties or relevant as to the credit of the witness. Counsel responded that she was attempting to determine whether, as the witness claimed in her earlier statement, “nationalistic feelings on the Serb side were burgeoning” in Gacko. Despite her failure to explain the relevancy of her line of questioning, counsel was allowed by the Presiding Judge to pursue her line of questioning as she wished (Trial Transcript, T 2985-2990).
54 - Appeal Transcript, T 46-47. See also Prosecution Submission Regarding Admissions and Contested Matters, 1 February 2000 and Prosecution Submission Regarding Admissions and Contested Matters Regarding the Accused Zoran Vukovic, 8 March 2000.
55 - Defence Final Trial Brief, paras L.c.1-L.c.3.
56 - See, e.g., Trial Judgement, paras 22, 23, 31, 33 and 44.
57 - Ibid., para 567.
58 - Tadic Jurisdiction Decision, para 94 and Aleksovski Appeal Judgement, para 20.
59 - Trial of the Major War Criminals before the International Military Tribunal, Nüremberg, 14 November 1945-1 October 1946, vol 1, p 221.
60 - Tadic Jurisdiction Decision, paras 89-91 and Celebici Appeal Judgement, para 125.
61 - Tadic Jurisdiction Decision, para 98 and Trial Judgement, para 408.
62 - Tadic Jurisdiction Decision, para 134; Celebici Appeal Judgement, para 125 and Trial Judgement, para 408.
63 - See, e.g., Appeal Transcript, T 64-65 and 68.
64 - Kunarac Appeal Brief, paras 16-24; Appeal Transcript, T 45, 54-58 and 167-168; Vukovic Appeal Brief, paras 18-38 and 54-99 and Kovac Appeal Brief, paras 10-31 and 41.
65 - Kunarac Appeal Brief, paras 16-17 and 24; Vukovic Appeal Brief, paras 61-65 and Kovac Appeal Brief, para 40.
66 - Appeal Transcript, T 58. See also Kunarac Appeal Brief, para 19.
67 - See, e.g., Appeal Transcript, T 55.
68 - Ibid., T 58-59 and 142-144. See also Kunarac Appeal Brief, paras 16-26.
69 - See, e.g., Vukovic Appeal Brief, paras 65 and 70. See also Appeal Transcript, T 58-59 and 143-144.
70 - Appeal Transcript, T 58-59.
71 - Ibid., T 57. See also Kunarac Appeal Brief, paras 23-26; Vukovic Appeal Brief, paras 100-102 and 106-109 and Kovac Appeal Brief, paras 43-45.
72 - Appeal Transcript, T 57.
73 - Ibid., T 45, 50-53, 65-66, 68-70 and 168-171. See, e.g., Vukovic Appeal Brief, para 100.
74 - Appeal Transcript, T 45, 50-52 and 168-171.
75 - Prosecution Consolidated Respondent’s Brief, para 3.38. See also Appeal Transcript, T 222.
76 - Ibid.
77 - Prosecution Consolidated Respondent’s Brief, paras 3.8-3.9. See also Appeal Transcript, T 223.
78 - Prosecution Consolidated Respondent’s Brief, para 3.9.
79 - Ibid.
80 - Ibid., para 3.11. See also Appeal Transcript, T 223-224.
81 - Appeal Transcript, T 224.
82 - Prosecution Consolidated Respondent’s Brief, para 3.21. See also Appeal Transcript, T 226-228.
83 - Prosecution Consolidated Respondent’s Brief, para 3.27.
84 - Ibid.
85 - Ibid., para 3.13.
86 - Ibid., para 3.26. See also Appeal Transcript, T 222. Further, even if such a requirement existed, the Respondent asserts that the policy or plan would not need to be conceived at the highest level of the State machinery, nor would it need to be formalised or even stated precisely. The climate of acquiescence and official condonation of large-scale crimes would satisfy the notion of a plan or policy.
87 - Prosecution Consolidated Respondent’s Brief, paras 3.41 and 3.46.
88 - Appeal Transcript, T 222.
89 - Prosecution Consolidated Respondent’s Brief, paras 3.44-3.45. See also Appeal Transcript, T 228-230.
90 - See discussion above at paras 57-60.
91 - Trial Judgement para 413. See also Tadic Appeal Judgement, paras 249 and 251; Kupreskic Trial Judgement, para 546 and Tadic Trial Judgement, para 632.
92 - Trial Judgement, para 410.
93 - See Tadic Appeal Judgement, paras 248 and 251.
94 - Ibid., para 248.
95 - Article 5 of the Statute expressly uses the expression “directed against any civilian population.” See also Tadic Trial Judgement, paras 635-644.
96 - Tadic Appeal Judgement, para 248 and Mrksic Rule 61 Decision, para 30.
97 - Tadic Appeal Judgement, para 248.
98 - Ibid., para 251.
99 - Ibid. The Appeals Chamber notes that the Kunarac Trial Chamber stated as follows: “although the attack must be part of the armed conflict, it can also outlast it” (Kunarac Trial Judgement, para 420).
100 - See Tadic Appeal Judgement, para 251.
101 - Trial Judgement, para 580.
102 - Kupreskic Trial Judgement, para 765.
103 - Kupreskic Evidence Decision.
104 - The Kupreskic Trial Chamber held that, before adducing such evidence, counsel must explain to the Trial Chamber the purpose for which it is submitted and satisfy the court that it goes to prove or disprove one of the allegations contained in the indictment (Kupreskic Evidence Decision).
105 - Trial Judgement, para 424. See also Tadic Trial Judgement, para 644.
106 - Trial Judgement, para 421.
107 - Tadic Appeal Judgement, para 248 and Tadic Trial Judgement, para 648.
108 - Tadic Trial Judgement, para 648.
109 - Trial Judgement, para 429. See also Tadic Trial Judgement, para 648.
110 - Trial Judgement, para 429.
111 - Ibid., para 430.
112 - See Ibid.
113 - Ibid., para 431.
114 - There has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against humanity. The practice reviewed by the Appeals Chamber overwhelmingly supports the contention that no such requirement exists under customary international law. See, for instance, Article 6(c) of the Nuremberg Charter; Nuremberg Judgement, Trial of the Major War Criminals before the International Military Tribunal, Nüremberg, 14 November 1945 – 1 October 1945, in particular, pp 84, 254, 304 (Streicher) and 318-319 (von Schirach); Article II(1)(c) of Control Council Law No 10; In re Ahlbrecht, ILR 16/1949, 396; Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501; Case FC 91/026; Attorney-General v Adolph Eichmann, District Court of Jerusalem, Criminal Case No. 40/61; Mugesera et al. v Minister of Citizenship and Immigration, IMM-5946-98, 10 May 2001, Federal Court of Canada, Trial Division; In re Trajkovic, District Court of Gjilan (Kosovo, Federal Republic of Yugoslavia), P Nr 68/2000, 6 March 2001; Moreno v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, ?1994g 1 F.C. 298, 14 September 1993; Sivakumar v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, ?1994g 1 F.C. 433, 4 November 1993. See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, paras 47-48; Yearbook of the International Law Commission (ILC), 1954, vol. II, 150; Report of the ILC on the work of its 43rd session, 29 April – 19 July 1991, Supplement No 10 (UN Doc No A/46/10), 265-266; its 46th session, 2 May – 22 July 1994, Supplement No 10 (UN Doc No A/49/10), 75-76; its 47th session, 2 May – 21 July 1995, 47, 49 and 50; its 48th session, 6 May – 26 July 1996, Supplement No 10 (UN Doc No A/51/10), 93 and 95-96. The Appeals Chamber reached the same conclusion in relation to the crime of genocide (Jelisic Appeal Judgement, para 48). Some of the decisions which suggest that a plan or policy is required in law went, in that respect, clearly beyond the text of the statute to be applied (see e.g., Public Prosecutor v Menten, Supreme Court of the Netherlands, 13 January 1981, reprinted in 75 ILR 331, 362-363). Other references to a plan or policy which have sometimes been used to support this additional requirement in fact merely highlight the factual circumstances of the case at hand, rather than impose an independent constitutive element (see, e.g., Supreme Court of the British Zone, OGH br. Z., vol. I, 19). Finally, another decision, which has often been quoted in support of the plan or policy requirement, has been shown not to constitute an authoritative statement of customary international law (see In re Altstötter, ILR 14/1947, 278 and 284 and comment thereupon in Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501, pp 586-587).
115 - See Tadic Appeal Judgement, para 248.
116 - Trial Judgement, para 418; Tadic Appeal Judgement, paras 248, 251 and 271; Tadic Trial Judgement, para 659 and Mrksic Rule 61 Decision, para 30.
117 - The issue of mens rea is dealt with below, see paras 102-105.
118 - Kupreskic Trial Judgement, para 550.
119 - Ibid.; Tadic Trial Judgement, para 649 and Mrksic Rule 61 Decision, para 30. On 30 May 1946, the Legal Committee of the United Nations War Crime Commission held that: “Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims” (see, History of the United Nations War Crimes Commission and the Development of the Laws of War, Compiled by the United Nations War Crimes Commission, 1948, p 179).
120 - Trial Judgement, para 434.
121 - Ibid.
122 - Ibid., para 433. See also Tadic Appeal Judgement, paras 248 and 252.
123 - See, for a telling illustration of that rule, Attorney-General of the State of Israel v Yehezkel Ben Alish Enigster, District Court of Tel-Aviv, 4 January 1952, para 13.
124 - Kunarac Appeal Brief, para 130.
125 - Kovac Appeal Brief, para 160 and Appeal Transcript, T 118.
126 - Appeal Transcript, T 120. See also Kunarac and Kovac Reply Brief, para 6.39.
127 - Appeal Transcript, T 119 and 125.
128 - Ibid., T 119; Kovac Appeal Brief, para 164; Kunarac Appeal Brief, para 131 and Kunarac and Kovac Reply Brief, paras 5.64-5.65 and 6.39.
129 - Kovac Appeal Brief, para 164 and Kunarac and Kovac Reply Brief, paras 5.65 and 6.39.
130 - Appeal Transcript, T 120, 122 and 126 and Kovac Appeal Brief, para 165.
131 - Appeal Transcript, T 120.
132 - Ibid., T 118-119; Kunarac Appeal Brief, paras 129 and 133 and Kovac Appeal Brief, paras 163 and 165.
133 - The victims concerned are FWS-75, FWS-87, A.S. and A.B.
134 - Kovac Appeal Brief, para 165.
135 - Appeal Transcript, T 120 and Appellants’ Reply on Prosecution’s Consolidated Respondent’s Brief, paras 5.67 and 6.39.
136 - Appeal Transcript, T 246 and Prosecution Consolidated Respondent’s Brief, paras 5.164- 5.169.
137 - Appeal Transcript, T 246.
138 - Ibid.
139 - Ibid., T 256.
140 - Ibid., T 257. See also Prosecution Consolidated Respondent’s Brief, para 5.178.
141 - Appeal Transcript, T 254-255 and 272-273.
142 - Ibid., T 254 and Prosecution Consolidated Respondent’s Brief, paras 5.180- 5.183.
143 - Trial Judgement, para 539.
144 - Ibid., para 540.
145 - “Chattel slavery” is used to describe slave-like conditions. To be reduced to “chattel” generally refers to a form of movable property as opposed to property in land.
146 - It is not suggested that every case in which the juridical personality is destroyed amounts to enslavement; the concern here is only with cases in which the destruction of the victim’s juridical personality is the result of the exercise of any of the powers attaching to the right of ownership.
147 - Trial Judgement, para 539. See also Article 7(2)(c) of the Rome Statute of the International Criminal Court, adopted in Rome on 17 July 1998 (PCNICC/1999/INF.3, 17 August 1999), which defines enslavement as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”
148 - Trial Judgement, para 543. See also Trial Judgement, para 542.
149 - Ibid., para 542.
150 - Ibid., para 540.
151 - US v Oswald Pohl and Others, Judgement of 3 November 1947, reprinted in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council No. 10, Vol 5, (1997), p 958 at p 970.
152 - Kunarac Appeal Brief, para 99; Vukovic Appeal Brief, para 169 and Kovac Appeal Brief, para 105.
153 - Kovac Appeal Brief, para 107.
154 - Prosecution Consolidated Respondent’s Brief, para 4.15 (quoting Trial Judgement, para 457). Indeed, it is worth noting that the part of the German Criminal Code penalizing rape and other forms of sexual abuse is entitled “Crimes Against Sexual Self-Determination” (German Criminal Code (Strafgesetzbuch), Chapter 13, amended by law of 23 November 1973).
155 - Prosecution Consolidated Respondent’s Brief, para 4.19.
156 - Trial Judgement, paras 447-456.
157 - Ibid., para 460.
158 - See, e.g., Furundzija Trial Judgement, para 185. Prior attention has focused on force as the defining characteristic of rape. Under this line of reasoning, force or threat of force either nullifies the possibility of resistance through physical violence or renders the context so coercive that consent is impossible.
159 - Trial Judgement, para 458.
160 - Ibid., para 438.
161 - California Penal Code 1999, Title 9, Section 261(a)(6). The section also lists, among the circumstances transforming an act of sexual intercourse into rape, “where it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another” (Section 261(a)(2)). Consent is defined as “positive cooperation in act or attitude pursuant to an exercise of free will” (Section 261.6).
162 - Indeed, a more recently enacted German Criminal Code (Strafgesetzbuch), Chapter 13, Section 177, which defines sexual coercion and rape, recognizes the special vulnerability of victims in certain situations. It was amended in April 1998 to explicitly add “exploiting a situation in which the victim is unprotected and at the mercy of the perpetrator’s influence” as equivalent to “force” or “threat of imminent danger to life or limb”.
163 - See, e.g., N.J. Stat. Section 2C: 14-2 (2001) (An actor is guilty of, respectively, aggravated and simple sexual assault…[if]“[t]he actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional, or occupational status” or if “[t]he victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor’s legal, professional or occupational status.”).
164 - State of New Jersey v Martin, 235 N.J. Super. 47, 56, 561 A.2d, 631, 636 (1989). Chapter 13 of the German Criminal Code has similar provisions. Section 174a imposes criminal liability for committing “sexual acts on a prisoner or person in custody upon order of a public authority.” Section 174b punishes sexual abuse by means of exploiting a position in public office. In neither instance is the absence of consent an element.
165 - See Women Prisoners of the District of Columbia Department of Corrections v District of Columbia, 877 F. Supp. 634, 640 (D.D.C. 1994), rev’d on other grounds, 93 F.3d 910 (D.C. Cir. 1996) and Prison Litigation Reform Act of 1996, Pub. L. 105-119, 18 U.S.C. Section 3626.
166 - Kunarac Appeal Brief, para 120 and Vukovic Appeal Brief, para 163.
167 - Kunarac Appeal Brief, paras 120-121.
168 - Vukovic Appeal Brief, paras 159 and 164-167.
169 - Kunarac Appeal Brief, paras 120-121 and Vukovic Appeal Brief, paras 159 and 164-167.
170 - Prosecution Consolidated Respondent’s Brief, paras 6.42-6.45.
171 - Kunarac and Kovac Reply Brief, para 6.23.
172 - Ibid., para 6.25.
173 - Vukovic Appeal Brief, para 164.
174 - Ibid., para 160.
175 - Ibid., para 164.
176 - Ibid.
177 - Ibid.
178 - Kunarac Appeal Brief, para 122 and Vukovic Appeal Brief, para 166.
179 - Vukovic Appeal Brief, para 165 and Kunarac Appeal Brief, para 122.
180 - Kunarac Appeal Brief, para 123 and Vukovic Appeal Brief, para 166.
181 - Kunarac Appeal Brief, para 123.
182 - Vukovic Appeal Brief, para 166.
183 - Ibid., para 167.
184 - Prosecution Respondent’s Brief, para 3.5.
185 - Ibid., para 3.6.
186 - Ibid., para 3.7.
187 - Trial Transcript, T 1294, quoted in Prosecution Respondent’s Brief, para 3.8.
188 - Prosecution Respondent’s Brief, para 3.10.
189 - Trial Judgement, para 816.
190 - Prosecution Respondent’s Brief, para 3.13.
191 - Ibid.
192 - Prosecution Consolidated Respondent’s Brief, para 6.145. According to the Prosecutor, the evidence, in particular the discriminatory statements, establish that FWS-75 was tortured with the purpose of humiliating her because she was a Muslim woman: see Prosecution Consolidated Respondent’s Brief, para 6.146.
193 - Prosecution Consolidated Respondent’s Brief, para 6.145.
194 - Article 1 of the Torture Convention: “For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
195 - Trial Judgement, para 497.
196 - Ibid., paras 465-497. The Chamber concurs with, in particular, the quite complete review carried out in the Celebici and Furundzija cases where torture was not prosecuted as a crime against humanity.
197 - Counts 1 (crime against humanity), 3 and 11 (violation of the laws or customs of war), Trial Judgement, para 883.
198 - Counts 33 (crime against humanity) and 35 (violation of the laws or customs of war), Trial Judgement, para 888.
199 - Furundzija Appeal Judgement.
200 - In the Aleksovski Appeal Judgement at para 113 it was stated “that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers.”
201 - See Furundzija Appeal Judgement, para 111; Celebici Trial Judgement, para 459; Furundzija Trial Judgement, para 161 and Trial Judgement, para 472. The ICTR comes to the same conclusion: see Akayesu Trial Judgement, para 593. It is interesting to note that a similar decision was rendered very recently by the German Supreme Court (BGH St volume 46, p 292, p 303).
202 - Furundzija Appeal Judgement, para 111: “The Appeals Chamber supports the conclusion of the Trial Chamber that “there is now general acceptance of the main elements contained in the definition set out in Article 1 of the Torture Convention [Furundzija Trial Judgement, para 161] and takes the view that the definition given in Article 1 [of the said Convention] reflects customary international law.”
203 - Furundzija Trial Judgement, para 160, quoting Article 1 of the Torture Convention.
204 - Furundzija Appeal Judgement, para 111, citing Furundzija Trial Judgement, para 162.
205 - See Commission on Human Rights, Forty-eighth session, Summary Record of the 21st Meeting, 11 February 1992, Doc. E/CN.4/1992/SR.21, 21 February 1992, para 35: “Since it was clear that rape or other forms of sexual assault against women held in detention were a particularly ignominious violation of the inherent dignity and right to physical integrity of the human being, they accordingly constituted an act of torture.” Other Chambers of this Tribunal have also noted that in some circumstances rape may constitute an act of torture: Furundzija Trial Judgement, paras 163 and 171 and Celebici Trial Judgement, paras 475-493.
206 - See Celebici Trial Judgement, paras 480 and following, which quotes in this sense reports and decisions of organs of the UN and regional bodies, in particular, the Inter-American Commission on Human Rights and the European Court of Human Rights, stating that rape may be a form of torture.
207 - Kunarac Appeal Brief para 122 and Vukovic Appeal Brief, para 165.
208 - Prosecution Consolidated Respondent’s Brief, para 6.145.
209 - Kunarac and Kovac Reply Brief, paras 6.47-6.48. According to the Appellant Kunarac, it is not because the victim is Muslim or because she is a woman that discrimination was proved in general: see Kunarac Appeal Brief, para 123 and Kunarac and Kovac Reply Brief, para 6.49.
210 - Vukovic Appeal Brief, para 166.
211 - In the case of FWS-183: see Trial Judgement, paras 341 and 705-715.
212 - Trial Judgement, paras 486 and 654.
213 - Kovac Appeal Brief, paras 145 and 150.
214 - Ibid., para 145.
215 - Ibid., para 146.
216 - Prosecution Consolidated Respondent’s Brief, para 5.141.
217 - Trial Judgement, para 514.
218 - Aleksovski Trial Judgement, para 56, quoted in Trial Judgement, para 504.
219 - Trial Judgement, para 507 (emphasis added).
220 - Ibid., para 514.
221 - Kovac Appeal Brief, para 145.
222 - Trial Judgement, paras 508-514.
223 - Ibid., para 512.
224 - Ibid.
225 - Celebici Appeal Judgement, para 400.
226 - Blockburger v United States, 284 U.S. 299, 304 (1931) (“The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”).
227 - Celebici Appeal Judgement, paras 412-13. Hereinafter referred to as the Celebici test.
228 - Separate and Dissenting Opinion of Judge David Hunt and Judge Mohamed Bennouna, Celebici Appeal Judgement, para 23.
229 - Ibid.
230 - Rutledge v United States, 517 U.S. 292, 116 S. Ct. 1241, 1248 (1996).
231 - Ibid., citing Ball v United States, 470 U.S. 856, 865 (1985).
232 - See, e.g., Partial Dissenting Opinion of Judge Shahabuddeen, Jelisic Appeal Judgement, para 34: “To record the full criminality of his conduct, it may be necessary to convict of all the crimes, overlapping in convictions being adjusted through penalty”.
233 - See supra n 226.
234 - Black’s Law Dictionary, s.v. lesser included offense: “One which is composed of some, but not all elements of a greater offense and which does not have any element not included in greater offense so that it is impossible to commit greater offense without necessarily committing the lesser offense.” (6th ed., St. Paul, Minn. 1990)
235 - Tadic Sentencing Appeal Judgement, para 69: “After full consideration, the Appeals Chamber takes the view that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case”.
236 - With regard to Articles 3 and 5 of the Statute, the Appeals Chamber held in the Jelisic Appeal Judgement that, as each has an element of proof of fact not required by the other, neither was a lesser included offence of the other (para 82).
237 - Trial Judgement, para 556.
238 - See, e.g., Kupreskic Appeal Judgement, para 388 (holding that Trial Chamber erred in acquitting defendants on counts under Article 5 of the Statute) and Jelisic Appeal Judgement, para 82 (noting that each of Articles 3 and 5 of the Statute “has a special ingredient not possessed by the other”).
239 - The Appeals Chamber notes that the International Criminal Court’s Preparatory Committee’s Elements of Crimes incorporates the chapeaux into the substantive definitions of the criminal offences. Although the Appeals Chamber does not rely on statutory schemes created after the events underlying this case, the Appeals Chamber observes that the ICC definitions were intended to restate customary international law.
240 - For example, were the Appeals Chamber to disregard the chapeaux, the murder of prisoners of war charged under Article 2 of the Statute could not also, in special circumstances, be considered a genocidal killing under Article 4 of the Statute. The same is true of convictions for crimes against humanity (Article 5 of the Statute) and convictions for crimes against the laws or customs of war (Article 3 of the Statute). In all of the above, different chapeaux-type requirements constitute distinct elements which may permit the Trial Chamber to enter multiple convictions.
241 - See Blockburger v United States, supra n 226. See also Rutledge v United States, supra n 230 (courts assume, absent specific legislative directive, that lawmakers did not intend to impose two punishments for the same offence); Missouri v Hunter, 459 U.S. 359, 366 (1983); Whalen v United States, 445 U.S. 684, 691-2 (1980) and Ball v United States, supra n 231.
242 - See Trial Judgement, para 557.
243 - The Appeals Chamber defers to the Trial Chamber’s findings of fact. The Appeals Chamber will disturb these findings only if no reasonable trier of fact could have so found. See Kupreskic Appeal Judgement, para 41; Tadic Appeal Judgement, para 64 and Aleksovski Appeal Judgement, para 63. The Appeals Chamber in the Kupreskic case recently clarified the burden on those contesting a Trial Chamber’s factual findings: “The appellant must establish that the error of fact was critical to the verdict reached by the Trial Chamber, thereby resulting in a ‘grossly unfair outcome’” (para 29).
244 - See supra 'Definition of the Crime of Torture (Dragoljub Kunarac and Zoran Vukovic)'.
245 - Celebici Trial Judgement, paras 475-496.
246 - Ibid., para 491, quoting supra n 205, para 35. The United Nations Special Rapporteur on Torture introduced his 1992 Report to the Commission on Human Rights by stating: “Since it was clear that rape or other forms of sexual assault against women held in detention were a particularly ignominious violation of the inherent dignity and right to physical integrity of the human being, they accordingly constituted an act of torture.” (para 35).
247 - Celebici Trial Judgement, para 489.
248 - Fernando and Raquel Mejia v Peru, Case No. 10,970, Judgement of 1 March 1996, Report No. 5/96, Inter-American Yearbook on Human Rights, 1996, p 1120 and Aydin v Turkey, Opinion of the European Commission of Human Rights, 7 March 1996, reprinted in European Court of Human Rights, ECHR 1997-VI, p 1937, paras 186 and 189.
249 - Fernando and Raquel Mejia v Peru, supra n 248, p 1120.
250 - Ibid., p 1124.
251 - Celebici Trial Judgement, para 486.
252 - Aydin v Turkey, Opinion of the European Commission of Human Rights, supra n 248, paras 186 (footnote omitted) and 189.
253 - Aydin v Turkey, European Court of Human Rights, no. 57/1996/676/866, Judgement of 22 September 1997, ECHR 1997-VI, para 86.
254 - See supra 'Definition of the Crime of Enslavement'.
255 - Tadic Jurisdiction Decision, para 91; Celebici Appeal Judgement, para 133 and Furundzija Trial Judgement, paras 131-133.
256 - Kunarac Appeal Brief, paras 144-145.
257 - Trial Judgement, para 436.
258 - Furundzija Trial Judgement, paras 272 and 274-275.
259 - Trial Judgement, para 400. On appeal, the Prosecution invoked the Tadic Jurisdiction Decision to explain the broad scope of Article 3 of the Statute. See Prosecution Consolidated Respondent’s Brief, para 2.4.
260 - Tadic Jurisdiction Decision, para 94.
261 - See Celebici Trial Judgement, para 476 (“There can be no doubt that rape and other forms of sexual assault are expressly prohibited under international humanitarian law.”); Furundzija Trial Judgement, paras 169-170 (“It is indisputable that rape and other serious sexual assaults in armed conflict entail the criminal liability of the perpetrators…The right to physical integrity is a fundamental one, and is undeniably part of customary international law.”) and Trial Judgement, para 408 (“In particular, rape, torture and outrages upon personal dignity, no doubt constituting serious violations of common Article 3, entail criminal responsibility under customary international law.”). See also Akayesu Trial Judgement, para 596.
262 - See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, Art. 27; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted on 8 June 1977, Articles 76(1), 85 and 112; and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), adopted on 8 June 1977, Art. 4(2)(e). After the Second World War, rape was punishable under the Control Council Law No. 10 on the Punishment of Persons Guilty of War Crimes and Crimes Against Humanity for Germany. Additionally, high-ranking Japanese officials were prosecuted for permitting widespread rapes: Charter of the International Military Tribunal for the Far East, 19 January 1946, amended 26 April 1946. TIAS No. 1589, 4 Bevans 20. See also In re Yamashita, 327 U.S. 1, 16 (1946), denying General Yamashita’s petition for writs of habeas corpus and prohibition. In an aide-memoire of 3 December 1992, the International Committee of the Red Cross declared that the rape is covered as a grave breach (Article 147 of the fourth Geneva Convention). The United States independently took a comparable position. See also Cyprus v Turkey, 4 EHHR 482 (1982) (Turkey’s failure to prevent and punish rapes of Cypriot woman by its troops). See Aydin v Turkey, supra n 253, para 83:“[R]ape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally.” See also Mejia v Peru, supra n 248, p 1176: “Rape causes physical and mental suffering in the victim. In addition to the violence suffered at the time it is committed, the victims are commonly hurt or, in some cases, are even made pregnant”.
263 - Trial Judgement, para 554.
264 - Kunarac Appeal Brief, para 93.
265 - Ibid.
266 - Ibid.
267 - Ibid.
268 - This witness claimed to have known the whereabouts of Kunarac at all times during the period of 23-26 July (Trial Judgement, para 598) and to have seen Kunarac around Cerova Ravan in the period between 7-21 July (Trial Judgement, para 605). However, the witness never claimed to have seen Kunarac around Cerova Ravan on 27 July, as held by the Trial Chamber (Trial Judgement, para 599).
269 - Kunarac Appeal Brief, para 93.
270 - Ibid., para 55.
271 - Ibid., para 54.
272 - Trial Judgement, para 596.
273 - Ibid., para 598.
274 - Ibid., para 597.
275 - Ibid., para 619.
276 - Ibid., para 625.
277 - Ibid., para 637.
278 - Appeal Transcript, T 145.
279 - Kunarac Appeal Brief, para 37.
280 - Ibid.
281 - Ibid.
282 - Ibid.
283 - Ibid.
284 - Ibid., para 38.
285 - Appeal Transcript, T 146.
286 - Kunarac Appeal Brief, para 46.
287 - Prosecution Consolidated Respondent’s Brief, paras 6.23 and 6.24 and Appeal Transcript, T 308.
288 - Prosecution Consolidated Respondent’s Brief, paras 6.27-6.29.
289 - Appeal Transcript, T 309.
290 - Prosecution Consolidated Respondent’s Brief, paras 6.32-6.35 and Appeal Transcript, T 310.
291 - Appeal Transcript, T 311.
292 - Trial Transcipt, T 3683.
293 - Trial Judgement, para 642 and Kunarac Appeal Brief, paras 31-34 and 37.
294 - Celebici Appeal Judgement, para 491.
295 - Prosecution Consolidated Respondent’s Brief, para 6.77.
296 - Appeal Transcript, T 318.
297 - Prosecution Consolidated Respondent’s Brief, para 6.76.
298 - Trial Judgement, para 679.
299 - Ibid.
300 - Ibid., para 676.
301 - Ibid., para 676, footnote 1390.
302 - Ibid., para 562 (emphasis added).
303 - Ibid., para 677.
304 - Ibid., para 682.
305 - Kunarac Appeal Brief, para 68.
306 - Kunarac and Kovac Reply Brief, paras 6.32-6.33.
307 - Kunarac Appeal Brief, para 68.
308 - Prosecution Consolidated Respondent’s Brief, paras 6.89-6.92.
309 - Ibid., para 6.85 and Appeal Transcript, T 307.
310 - Prosecution Consolidated Respondent’s Brief, para 6.90.
311 - Trial Judgement, paras 699-703.
312 - Trial Transcript, T 1703.
313 - Kunarac Appeal Brief, para 76.
314 - Ibid., para 59.
315 - Ibid.
316 - Ibid., para 76 (with reference to FWS-183’s Statement of 1 April 1998). See also Trial Judgement, para 340.
317 - Kunarac Appeal Brief, para 76.
318 - Prosecution Consolidated Respondent’s Brief, para 6.98.
319 - Ibid., para 6.99.
320 - Kunarac Appeal Brief, para 80.
321 - Ibid. (with reference to Ex-P 212 and 212a).
322 - Trial Judgement, para 721.
323 - Kunarac Appeal Brief, para 80.
324 - Ibid.
325 - Ibid., para 82 (with reference to Trial Judgement, paras 727 and 743).
326 - Ibid., para 69.
327 - Ibid., para 83.
328 - Appeal Transcript, T 134-135.
329 - Kunarac Appeal Brief, para 86.
330 - Ibid., para 87 (citing Trial Transcript, T 2972).
331 - Kunarac and Kovac Reply Brief, para 6.39.
332 - Kunarac Appeal Brief, para 89.
333 - Appeal Transcript, T 134.
334 - Prosecution Consolidated Respondent’s Brief, paras 6.111-6.112.
335 - Ibid., para 6.119 and Appeal Transcript, T 313-314.
336 - Prosecution Consolidated Respondent’s Brief, para 6.105.
337 - Trial Judgement, para 740.
338 - Ibid.
339 - Kovac Appeal Brief, para 57.
340 - Ibid.
341 - Ibid.
342 - Ibid., para 58.
343 - Prosecution Consolidated Respondent’s Brief, paras 5.3 and 5.4.
344 - Ibid., para 5.10.
345 - Ibid., para 5.5.
346 - Ibid., para 5.4.
347 - Ibid., para 5.6.
348 - Trial Judgement, para 586. See also para 569.
349 - Kovac Appeal Brief, para 59.
350 - Ibid.
351 - Ibid., para 60.
352 - Ibid., paras 63-64 and Appeal Transcript, T 171-2.
353 - Kovac Appeal Brief, para 65.
354 - Ibid., para 66.
355 - Ibid., paras 68-69.
356 - Ibid., para 71.
357 - Prosecution Consolidated Respondent’s Brief, para 5.16.
358 - Ibid., para 5.12.
359 - Ibid.
360 - Ibid., para 5.14. See also paras 5.20-5.21.
361 - Ibid., para 5.15.
362 - Trial Judgement, paras 151-157.
363 - Ibid., paras 750-752.
364 - Ibid., paras 757-759, 761-765 and 772-773.
365 - See Kovac Appeal Brief, para 73 where calculations are made by referring to the testimony, and the Appellant concludes that it was impossible that he committed certain acts.
366 - Appeal Transcript, T 174-175 and 186.
367 - Kovac Appeal Brief, paras 73-76 and Appeal Transcript, T 174.
368 - Prosecution Consolidated Respondent’s Brief, para 5.36.
369 - Ibid., para 5.33.
370 - Ibid., para 5.32.
371 - Ibid., para 5.30.
372 - Ibid., paras 5.28, 5.33 and 5.36.
373 - Ibid., paras 5.29 and 5.34-5.35.
374 - Ibid., paras 5.39 and 5.57. The Respondent notes, however, that there is no legal requirement that the testimony of a single witness on a material fact be corroborated before being accepted as evidence: para 5.58.
375 - Ibid., para 5.44.
376 - Ibid., para 5.45.
377 - Ibid., para 5.49.
378 - Trial Judgement, para 759.
379 - Ibid., paras 760 and 765.
380 - Ibid., para 759.
381 - Ibid., paras 760 and 765.
382 - Ibid., para 761.
383 - Kovac Appeal Brief, para 73.
384 - Ibid.
385 - Ibid., para 79.
386 - Ibid., para 80. The Appellant Kovac finds contradictions in FWS-87’s evidence which pertain to particular passages of the transcripts where she answered “No” or “I don’t know” to the same questions posed by different parties.
387 - Ibid., para 83.
388 - Ibid., paras 85-87.
389 - Ibid., para 79.
390 - Prosecution Consolidated Respondent’s Brief, paras 5.69-5.72.
391 - Ibid., para 5.72.
392 - Ibid., paras 5.77 and 5.82.
393 - Ibid., para 5.82 and Appeal Transcript, T 303.
394 - Prosecution Consolidated Respondent’s Brief, paras 5.83 and 5.86.
395 - Ibid., para 5.20 and Appeal Transcript, T 257.
396 - Prosecution Consolidated Respondent’s Brief, para 5.22.
397 - Ibid., paras 5.66-5.67.
398 - Ibid., para 5.85.
399 - Ibid., para 5.86.
400 - Trial Judgement, paras 564 and 566.
401 - Ibid., para 762.
402 - Kovac Appeal Brief, paras 90-91.
403 - Ibid., paras 93-94.
404 - Prosecution Consolidated Respondent’s Brief, para 5.156.
405 - Ibid., para 5.157.
406 - Ibid., para 5.156.
407 - Kovac Appeal Brief, para 96.
408 - Ibid., paras 97-102.
409 - Ibid., para 103.
410 - Prosecution Consolidated Respondent’s Brief, para 5.89.
411 - Ibid., para 5.90.
412 - Appeal Transcript, T 199.
413 - Trial Judgement, paras 589 and 591.
414 - Ibid., para 789.
415 - Vukovic Appeal Brief, para 131.
416 - Ibid.
417 - Prosecution Respondent’s Brief, paras 2.15 and 2.48, citing Trial Judgement, paras 589, 789 and 796.
418 - Appeal Transcript, T 286-287.
419 - Ibid.
420 - Trial Judgement, para 589.
421 - Ibid., para 789.
422 - Kupreskic Appeal Judgement, para 88.
423 - Vukovic Appeal Brief, para 129.
424 - Ibid., para 126.
425 - Ibid., para 123.
426 - Ibid.
427 - Appeal Transcript, T 202.
428 - Trial Judgement, para 246.
429 - Vukovic Appeal Brief, para 125.
430 - Ibid.
431 - Appeal Transcript, T 203.
432 - Vukovic Appeal Brief, para 126.
433 - Trial Transcript, T 1293-1294.
434 - Prosecution Respondent’s Brief, para 2.22. See also Appeal Transcript, T 228.
435 - Appeal Transcript, T 290.
436 - Ibid.
437 - Prosecution Respondent’s Brief, para 2.26 and Appeal Transcript, T 289.
438 - Prosecution Respondent’s Brief, para 2.28.
439 - Ibid., para 2.31.
440 - Trial Transcript, T 1293-1294.
441 - Ibid., T 1262.
442 - Ibid., T 1148.
443 - Vukovic Appeal Brief, para 129.
444 - Ibid.
445 - Ibid., para 130.
446 - Ibid., para 131.
447 - Ibid., para 129, citing Kupreskic Trial Judgement, para 768.
448 - Prosecution Respondent’s Brief, para 2.45.
449 - Ibid., para 2.51.
450 - Appeal Transcript, T 293.
451 - See supra, paras 226-227.
452 - Trial Judgement, para 814.
453 - Vukovic Appeal Brief, para 129.
454 - Trial Judgement, paras 789 and 796.
455 - Ibid., para 589.
456 - Ibid., para 789.
457 - Vukovic Appeal Brief, paras 141-142.
458 - Ibid., para 136.
459 - Ibid., paras 137 and 139-140.
460 - Vukovic Reply Brief, para 2.32.
461 - Vukovic Appeal Brief, paras 139-140.
462 - Vukovic Reply Brief, para 2.31.
463 - Ibid., para 2.33.
464 - Prosecution Respondent’s Brief, para 2.66.
465 - Ibid., para 2.67, citing Trial Judgement, para 802.
466 - Ibid., para 2.68.
467 - Trial Judgement, para 803.
468 - Ibid., para 801.
469 - Ibid., para 802.
470 - Ibid.
471 - Ibid., para 805.
472 - Kunarac Appeal Brief, para 149. Rule 101(C) of the 18th edition of the Rules of Procedure and Evidence, 2 August 2000.
473 - Kunarac Appeal Brief, para 150.
474 - Ibid., para 151.
475 - Prosecution Consolidated Respondent’s Brief, para 8.5.
476 - Ibid., para 8.9.
477 - Trial Judgement, para 823, footnote 1406.
478 - Ibid., para 855.
479 - Blaskic Trial Judgement (currently under appeal), para 805.
480 - Ibid., para 807.
481 - Celebici Appeal Judgement, para 771.
482 - Kambanda Appeal Judgement, paras 100-112.
483 - Kunarac Appeal Brief, para 153.
484 - Kunarac and Kovac Reply Brief, para 6.58.
485 - Kunarac Appeal Brief, para 154.
486 - Prosecution Consolidated Respondent’s Brief, para 8.12.
487 - Trial Judgement, para 829.
488 - Ibid., citing Celebici Appeal Judgement, paras 813 and 820.
489 - Ibid.
490 - Celebici Appeal Judgement, paras 813 and 820 and Kupreskic Appeals Judgement, para 418.
491 - Kunarac Appeal Brief, para 154.
492 - Prosecution Consolidated Respondent’s Brief, paras 8.15 and 8.16.
493 - Ibid., para 8.17.
494 - Ibid.
495 - Ibid., para 8.18.
496 - Ibid., para 8.21.
497 - Ibid., para 8.22.
498 - Ibid.
499 - Appeal Transcript, T 326.
500 - Trial Judgement, para 867.
501 - Ibid., para 858.
502 - U.N. Doc. A/44/25, adopted 20 November 1989.
503 - Trial Judgement, para 835.
504 - Trial Transcript, T 5392.
505 - Trial Judgement, para 874.
506 - Ibid., para 744.
507 - Ibid., para 542.
508 - Tadic Appeal Judgement, para 305.
509 - Kunarac Appeal Brief, paras 158-159.
510 - Prosecution Consolidated Respondent’s Brief, para 8.23.
511 - Trial Judgement, para 870.
512 - Defence Final Trial Brief, para K.h.4.
513 - Trial Transcript, T 6447.
514 - Erdemovic Sentencing Judgement, para 16.
515 - Tadic Sentencing Judgement, para 26.
516 - Kunarac Appeal Brief, para 162.
517 - Prosecution Consolidated Respondent’s Brief, para 8.19.
518 - Trial Transcript, T 6568, 6572 and 6574.
519 - Trial Judgement, para 890.
520 - Kovac Appeal Brief, para 179.
521 - Ibid., para 172 and Appeal Transcript, T 183.
522 - Kovac Appeal Brief, para 174. See also Appeal Transcript, T 90 and 179.
523 - Appeal Transcript, T 97-98.
524 - Ibid., T 92.
525 - Kovac Appeal Brief, para 171.
526 - Prosecution Consolidated Respondent’s Brief, para 8.4.
527 - Cf. S.W. v the United Kingdom, European Court of Human Rights, no. 47/1994/494/576, Judgement of 22 November 1995, ECHR 1995-A/335-B, para 35.
528 - Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, Permanent Court of International Justice, Advisory Opinion, 4 December 1935, Series A/B, Judgments, Orders and Advisory Opinions, 1935, Vol 3, No. 65, p 41 at p 51.
529 - Kovac Appeal Brief, para 175 and Appeal Transcript, T 181.
530 - Prosecution Consolidated Respondent’s Brief, para 8.35.
531 - Ibid., paras 8.36, 8.38 and 8.39 and Appeal Transcript, T 327.
532 - Supra, paras 347-349.
533 - Tadic Sentencing Appeal Judgement, para 21.
534 - Trial Judgement, paras 829-835.
535 - Kovac Appeal Brief, para 181.
536 - Ibid., para 180.
537 - Ibid.
538 - Ibid.
539 - Ibid.
540 - Ibid.
541 - Prosecution Consolidated Respondent’s Brief, para 8.41.
542 - Ibid., para 8.43.
543 - Ibid., para 8.44.
544 - Trial Judgement, para 759.
545 - Ibid., para 754.
546 - Ibid., para 841, citing Aleksovski Appeal Judgement, para 185.
547 - Aleksovski Appeal Judgement, footnotes 353-355.
548 - Trial Judgement, para 857.
549 - Kovac Appeal Brief, para 184.
550 - Prosecution Consolidated Respondent’s Brief, para 8.46.
551 - Trial Judgement, paras 567 and 569.
552 - Ibid., para 586.
553 - Ibid.
554 - Ibid., para 587.
555 - Ibid.
556 - Ibid., para 762.
557 - Ibid., para 761.
558 - Kovac Appeal Brief, para 185 and Appeal Transcript, T 92-93.
559 - Trial Transcript, T 6568, 6572 and 6574.
560 - Vukovic Appeal Brief, para 177.
561 - Ibid.
562 - Ibid., para 178.
563 - Vukovic Reply Brief, para 4.2.
564 - Prosecution Respondent’s Brief, para 4.6.
565 - Ibid.
566 - Ibid., para 4.7.
567 - Ibid., paras 4.10 and 4.11.
568 - Vukovic Appeal Brief, paras 180 and 183.
569 - Ibid.
570 - Ibid., para 181.
571 - Ibid.
572 - Ibid., para 182.
573 - Ibid., para 184.
574 - Ibid., para 185.
575 - Prosecution Respondent’s Brief, para 4.14.
576 - Trial Judgement, para 835.
577 - Ibid.
578 - Vukovic Appeal Brief, para 186.
579 - Ibid.
580 - Prosecution Respondent’s Brief, para 4.16.
581 - Ibid., para 4.19.
582 - Appeal Transcript, T 328-329.
583 - Trial Judgement, para 235.
584 - Ibid., para 879.
585 - Vukovic Appeal Brief, para 188.
586 - Vukovic Reply Brief, para 4.3.
587 - Vukovic Appeal Brief, para 188.
588 - Prosecution Respondent’s Brief, para 4.20.
589 - Ibid., para 4.21.
590 - Trial Judgement, para 815.
591 - Ibid., para 817.
592 - See supra, para 133.
593 - Vukovic Appeal Brief, para 190.
594 - Trial Transcript, T 6568, 6572 and 6574.
595 - Notice of Appeal Against Judgment of 22 February 2001, 6 March 2001.
596 - Notice of Appeal Against Judgment of 22 February 2001, 6 March 2001.
597 - Notice of Appeal Against Judgment of 22 February 2001, 7 March 2001.
598 - Extension of Time Limit for Appelant’s (sic) Brief, 18 May 2001.
599 - Prosecution Response to Request for Extension of Time Limit for Appellant’s Brief, 22 May 2001.
600 - Décision relative à la requête aux fins de prorogation de délai, 25 May 2001.
601 - Impossibility of Performing the Duties as Defense (sic) Counsel for Accused Zoran Vukovic (sic), 28 May 2001.
602 - Joint Request for the Authorisation to Exced (sic) tha (sic) Page Limits for the Appellant’s Brief, 25 June 2001.
603 - Prosecution Response to “Joint Request for the Authorisation to Exceed the Page Limits for the Appellant’s Brief”, 5 July 2001.
604 - Decision on Joint Request for Authorisation to Exceed Prescribed Page Limits, 10 July 2001.
605 - Appelant’s (sic) Brief for the Acused (sic) Zoran Vukovic (sic) Against Judgment of 22. February 2001, 12 July 2001 (conf).
606 - Appelant’s (sic) Brief for the Acused (sic) Dragoljub Kunarac Against Judgment of 22. February 2001, 16 July 2001.
607 - Appelant’s (sic) Brief for the Acused (sic) Radomir Kovac Against Judgment of 22. February 2001, 16 July 2001.
608 - Prosecution Request for Extension of Time, Notice of Filing Respondent Briefs Over 100 Pages and, If Necessary Motion to Exceed Page Limit of Prosecution’s Response Briefs, 10 August 2001.
609 - Prosecution’s Respondent’s Brief in Relation to “Appellant’s Brief for the Accused Zoran Vukovic against Judgement of 22 February 2001”, 13 August 2001 (conf).
610 - Prosecution’s Consolidated Respondent’s Brief, 15 August 2001 (conf) and Book of Authorities to Prosecution’s Consolidated Respondent’s Brief, 15 August 2001 (conf).
611 - Decision on Prosecution Request for Extension of Time, Notice of Filing Respondent Briefs Over 100 Pages and, if Necessary Motion to Exceed Page Limit of Prosecution’s Response Briefs, 3 September 2001.
612 - Prosecution’s Request for Clarification, 26 September 2001.
613 - Decision on Prosecution’s Request for Clarification, 11 October 2001.
614 - The Defense’s Request for the Extention (sic) of Time Limit, 20 August 2001.
615 - Prosecution’s Response to the Joint Motion of the Appellants Radomir Kovac and Dragoljub Kunarac Entitled “The Defense’s Request for the Extension of Time Limit” Filed on 20 August 2001, 23 August 2001.
616 - Appellant’s Brief in Reply on Prosecutor’s Respondent’s Brief, 28 August 2001.
617 - Appellants’ Reply on Prosecution’s Consolidated Respondent’s Brief, 4 September 2001 (conf).
618 - Order on Page Limits, 7 September 2001.
619 - The Defense’s Request for the Provisional Release of the Accused Dragoljub Kunarac, 19 September 2001.
620 - Prosecution’s Response to the Motion Entitled “The Defense’s Request for the Provisional Release of the Accused Dragoljub Kunarac” Filed on 19 September 2001, 25 September 2001.
621 - Ordonnance de la Chambre d’Appel relative à la requette de Dragoljub Kunarac aux fins de mise en liberté provisoire, 16 October 2001.
622 - Information of (sic) Preventing Defense (sic) Counsel for Accused Zoran Vukovic (sic) to (sic) Visit His Client, 20 September 2001.
623 - Order for Filing Public Versions, 2 October 2001.
624 - Information Regarding the Order for Filing Public Versions of the Appealant’s (sic) Brief of the Accused Zoran Vukovic (sic), 11 October 2001.
625 - Document entitled “Internal Memorandum”, 18 October 2001.
626 - Information Regarding the Order for Filing Public Versions of the Appelants’ (sic) Briefs of the Accused Dragoljub Kunarac and Radomir Kovac (sic), 20 October 2001.
627 - Ordonnance portant calendrier, 29 October 2001.
628 - Motion of the Defence of the Accused Zoran Vukovic (sic) for Presentation of Additional Evidence, 6 November 2001.
629 - Prosecution’s Response to “Motion of the Defence of the Accused Zoran Vukovic for Presentation of Additional Evidence”, 16 November 2001.
630 - Decision on the Motion of the Defence of the Accused Zoran Vukovic for Presentation of Additional Evidence, 30 November 2001.
631 - Joint Statement of the Defence Regarding the Schedule of Presentation of the Appellant’s Briefs, 6 November 2001.
632 - Prosecution’s Statement Regarding the Appellant’s Schedule of Presentation, 9 November 2001.
633 - Joint Statement of the Defence about Division of Total Time for Presentation of Appellants’ Submissions, 26 November 2001.
634 - Statement of the Defence of the Accused Radomir Kovac (sic), 18 December 2001.
635 - Ordonnance du Président portant affectation de Juges à la Chambre d’Appel, 21 May 2001.
636 - Ordonnance portant nomination d’un Juge de la mise en état en appel, 8 June 2001.
637 - Ordonnance du Président relative à la composition de la Chambre d’Appel pour une affaire, 23 November 2001.
638 - Scheduling Order, 11 June 2001.
639 - Scheduling Order, 26 September 2001.
640 - Scheduling Order for the Hearing on Appeal, 16 November 2001.