2. I have a reservation on the holding in paragraph 9 of today’s judgement that, where the Appeals Chamber corrects a legal error in the Trial Chamber’s findings, it “applies the correct legal standard to the evidence contained in the trial record, where necessary, and determines whether it is itself convinced beyond reasonable doubt as to the factual finding [of the Trial Chamber] challenged by the Defence before that finding is confirmed on appeal.”¹

3. The starting point of any inquiry into the correctness of a factual finding by the trial court has to be the appellate duty of deference to such a factual finding. Accordingly, where the Appeals Chamber is considering an appellant’s challenge to a factual finding which has been made by the Trial Chamber, it has to ask whether any reasonable tribunal of fact could have made that factual finding. Only if the answer is in the negative does the Appeals Chamber set aside the factual finding made by the Trial Chamber; otherwise, it affirms the finding.

4. The Appeals Chamber’s approach to the Trial Chamber’s factual findings remains deferential even in the event that the Appeals Chamber finds legal error. The mere circumstance that the Appeals Chamber corrects the legal standard applied by the Trial Chamber to its factual finding does not suffice to vacate the Trial Chamber’s factual finding (for example, that the accused held a gun). The Trial Chamber’s factual finding remains, unless it is set aside in the manner aforesaid; the correct legal standard must be applied to the Trial Chamber’s factual finding. If it is contended that there should be a different factual finding, it has to be shown that no reasonable tribunal of fact could have failed to make that factual finding.

5. I have not managed to free myself from doubt as to the correctness of statements by the Appeals Chamber to the effect that it has a right of independent determination of the meaning of evidence as if it had the advantages of a Trial Chamber sitting at first instance.² If the Appeals Chamber comes to a factual finding which differs from that of the Trial Chamber, it has to be borne in mind that, as often noted in the jurisprudence of the Tribunal, two reasonable people can come to equally reasonable but opposed meanings of the same set of facts. Where the meaning of facts is concerned, I would doubt that the corrective authority of the Appeals Chamber implies that its assessment must necessarily prevail.

6. The point has also been made by Judge Weinberg de Roca that the Appeals Chamber cannot truly determine “whether it is itself convinced beyond reasonable doubt as to the factual finding” of the Trial Chamber unless it actually examines the entire trial record in the way that a Trial Chamber would.³ That task is as physically impossible for the Appeals Chamber as it is legally misconceived. But that does not mean that the Appeals Chamber only has a duty to examine particular parts of the record to which the parties attract its attention before “it is itself convinced beyond reasonable doubt as to the factual finding of the Trial Chamber ”. What the impossibility points to is that the Appeals Chamber does not have to undertake the task which gives rise to the impossibility: instead, it should act on a principle which avoids that task.

7. I do not pursue the matter because of regard for precedent, including decisions of the Appeals Chamber acting by majority. But I enter a reservation on the point.

8. The Appeals Chamber has expressed the view that it is not possible to define a group protected against genocide in a negative manner. That was in response to a prosecution argument “that the Trial Chamber committed an error of law when … it declined to define the targeted group as all the non-Serbs in the Prijedor Municipality and instead required the Prosecution to establish genocide separately with respect to both Bosnian Croats and Bosnian Muslims”.⁴ I agree with the prosecution.

9. The requirement specified by the Trial Chamber would oblige the prosecution to establish all the elements of the crime of genocide in respect of Bosnian Croats and then to establish all those elements in respect of Bosnian Muslims, as if there were two distinct prosecutions. If the prosecution was right, it would be required to establish all those elements once only, this being in respect of “all the non-Serbs” in the Municipality considered as by themselves a group; in other words, individual or component groups would be assembled under one catch-all group.

10. The Appeals Chamber observes that, “pointing to the words ‘as such’ in the Genocide Convention, [experts] have reiterated that genocide focuses on destruction of groups, not individuals”.⁵ But nothing in the prosecution’s position is at variance with that well-known proposition. The expression “as such” emphasises that the destruction has to be not merely of the “individuals” composing the “group” but of the “group, as such”. But the expression “as such” cannot be fairly stretched to define the specific ingredients of a “group ” within the meaning of the Genocide Convention; it leaves that to be determined by other considerations.

11. If the argument for the prosecution depended on the determination (as to whether there is a group) being made only on the basis of the subjective appreciation of the perpetrator, then I would not agree with it. But that is not how I read the argument for the prosecution, which, closely examined, incorporates both subjective and objective considerations. Although I recognise that the prosecution has emphasised the perception of the perpetrator, it would not be correct to interpret that emphasis as intended to be exclusive. Members of a targeted group may well be, say, Croatians, but they may also see themselves as members of a wider group of non-Serbs in the area who are targeted primarily because they are non-Serbs; that may also be how others (including the perpetrators) see the situation. Also, that may be a permanent, on-going feature. In that case, the existence of a “non-Serb” group is an objective fact to be determined on the evidence as to whether or not there was such a group.

12. I cannot think of anything which necessarily prevents several different victim groups from being defined as collectively belonging to a “group” other than that of the perpetrator. It is true, as the majority points out, that the drafting history of the Genocide Convention reflects a focus on the genocidal campaigns against specific groups which took place in Europe during the Second World War. But that need not prevent a more general approach from being taken to the matter; even the genocidal campaigns of the Second World War were not understood exclusively through the lens of the “positive” approach.⁶ In the Nuremberg Proceedings the prosecution (speaking through Sir Hartley Shawcross ) said:

Such were the plans for the Soviet Union, for Poland and for Czechoslovakia. Genocide was not restricted to extermination of the Jewish people or of the gipsies. It was applied in different forms to Yugoslavia, to the non-German inhabitants of Alsace -Lorraine, to the people of the Low Countries and of Norway. The technique varied from nation to nation, from people to people. The long-term aim was the same in all cases.

The methods followed a similar pattern: first a deliberate programme of murder, of outright annihilation. This was the method applied to the Polish intelligentsia, to gipsies and to the Jews.⁷

13. The point thus made is reflected in paragraph 96 of the Final Report of the Commission of Experts established pursuant to Security Council resolution 780 (1992 ) of 6 October 1992. There the Commission said:

If there are several or more than one victim groups, and each group as such is protected, it may be within the spirit and purpose of the [Genocide] Convention to consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group along similar lines as if the non-A group had been homogenous. This is important if, for example, group B and to a lesser degree group C have provided the non-A group with all its leaders. Group D, on the other hand, has a more marginal role in the non-A group community because of its small numbers or other reasons. Genocide, “an odious scourge” which the Convention intends “to liberate mankind from” (preamble), would as a legal concept be a weak or even useless instrument if the overall circumstances of mixed groups were not covered. The core of this reasoning is that in one-against-every-one else cases the question of a significant number or a significant section of the group must be answered with reference to all the target groups as a larger whole.⁸

So, the Commission of Experts started off by accepting that a smaller victim group could be a protected group; but it accepted that as a matter of fact and not of legal necessity to prove that each of those groups was a protected group.

14. It is true that, as the Appeals Chamber observes, the Report of the Commission is addressing a situation in which “each individual group which makes up the aggregate group is itself a positively defined target group within the terms of the Convention”.⁹ But this does not mean, as the Appeals Chamber seems to think, that the Commission was suggesting a necessity for the Trial Chamber first to find that, in law, the component groups themselves constitute protected groups. The question is whether the prosecution must prove that the appellant sought to destroy each component group individually, or whether it would be enough to prove that he sought to destroy them collectively because they were not Serbs in the area concerned. The Report takes the latter view; I consider that it does so correctly.

15. In Jelisic,¹⁰ decided over six years ago, the Trial Chamber said (footnotes omitted):

A group may be stigmatised in this manner by way of positive or negative criteria. A “positive approach” would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A “negative approach” would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group. The Trial Chamber concurs with the opinion already expressed by the Commission of Experts¹¹ and deems that it is consonant with the object and the purpose of the Convention to consider that its provisions also protect groups defined by exclusion where they have been stigmatised by the perpetrators of the act in this way.

That holding was not challenged on appeal.¹² Pronouncements by other Trial Chambers are not clear on the precise point, but, at any rate, they do not support the view that a negative definition is not possible. This is with the exception of Brdanin,¹³ which was subsequent to the Trial Chamber’s holding in this case. As the Appeals Chamber recognises,¹⁴ in both that case and in this, the deciding Trial Chamber gave no reasons for the holding which it made. For its part, the Appeals Chamber considers that the “question whether the group targeted for genocide can be defined negatively is one of first impression for the Appeals Chamber”.¹⁵

16. The divergence in approaches may make a practical difference in some cases. If the prosecution were required to proceed against each component group separately, it would fail to prove its case if it did not prove a required ingredient in the case of a component group (for example, that those destroyed formed a significant element of the component group or part of the component group). Yet the same deficiency would not prove crucial if the prosecution were allowed to collect component groups in one compendious group and to proceed against the latter as the relevant group. This is so because, if the compendious group answers to the prescribed criteria of what is a group, the ingredients of the crime would have to be proved in relation to the compendious group as the relevant group, and not in relation to each component group separately considered. Therefore, what may be a deficiency in a prosecution concerning a component group may not necessarily be a deficiency in a prosecution concerning the compendious group.

17. Victims may belong to different component groups. However, it would be natural for the perpetrators to say, if that is their subjective perception, that such component groups have the common characteristic of belonging to a larger “group” defined as being other than the group of the perpetrators; the victims themselves may share that view. In a given area, one group – group A – may benightedly imagine that it has the right to destroy all other groups, and these other groups may see themselves as forming one threatened group. Rather than proving the elements of a case of genocide in respect of each of a number of targeted groups one by one – several of them may be involved, some big, some small – it may be both natural and unobjectionable to do so once and for all in respect of all non-A’s, considered as by themselves a group defined with reference to group A. I agree with the Commission of Experts that such an approach is consistent with the purpose of the Genocide Convention; in some cases it may in fact be essential to the realisation of that purpose.

18. The Commission’s proposal is within the principles of customary international law; it does not expand customary international law. For the foregoing reasons, I consider that the view to the contrary expressed by the Appeals Chamber is not correct The Appeals Chamber held, in effect, that, under the law, “non-Serbs” in the area concerned could not be a “group” within the meaning of the Genocide Convention ; there was therefore no need to consider whether there could in fact be such a “group”. With respect, I consider that to be a mistaken view.

C. Whether a forcible displacement across a front line is a deportation and, if so, whether that applies to a forcible displacement across a constantly changing front line

22. The different derivations¹⁸ of the terms of the Statute create uncertainty as to the meaning of “deportation ”; there is the question whether it is used in the same sense in both article 2( g) and article 5(d) of the Statute. The uncertainty is resolved in this case if the Appeals Chamber is right in its view that “the crime of deportation requires the displacement of individuals across a border”.¹⁹ On that approach, the Appeals Chamber comes to the conclusion that it is not possible to prosecute for a “deportation” under article 5(d) where there is a crossing of a front line such as that in this case; such a front line, it says, is not a border. I read its judgement as a whole to mean that “transfer” is more appropriate in such a case and may ground a prosecution for “other inhumane acts” under article 5(i).

23. However, customary international law has not taken the position that deportation cannot refer to the crossing of any front line. In Cyprus v. Turkey, the European Commission of Human Rights used the term “deportation” to describe the forcible displacement of Greek Cypriots from the territory controlled by Turkish Cypriots “across the demarcation line” separating it from the south of Cyprus.²⁰ It may be said that what was involved there was a de facto boundary. It seems to me, however, that the Commission would not have spoken differently if the demarcation line existed on the first day of the occupation and the displacement was made on that day. Turkey landed troops in Cyprus on 20 July 1974; the application was presented to the Commission on 19 September 1974 – two months later. So there was scarcely time for any front line, whenever established between those dates, to evolve into a “de facto boundary”. The demarcation line was not a border; it was a front line.²¹

24. Note has to be taken of what the International Law Commission said in its 1991 report. There, the Commission expressed the view that “[d]eportation, already included in the 1954 draft Code, implies expulsion from the national territory, whereas the forcible transfer of population could occur wholly within the frontiers of one and the same State.”²² The Appeals Chamber relies on the Commission’s view,²³ but the Commission itself cites no supporting authority for the distinction which it makes between what, for the sake of simplicity, may be called internal forcible displacement and what may be called external forcible displacement.

25. I doubt that the International Law Commission intended its statement to be interpreted literally; it was simply making a general remark on the usual situations in which the terms would apply. In particular, I do not believe that the Commission meant that “deportation” is in any imaginable context restricted to expulsion from national territory. The Commission was defining crimes concerning “systematic or mass violations of human rights” (akin to “crimes against humanity”²⁴) to include “deportation or forcible transfer of population”; by contrast, article 5(d) of the Statute of the ICTY defines crimes against humanity to include “deportation ”, nothing being said of “forcible transfer of population”. On the language which it was considering, the Commission had to allocate the field of operation of each of the terms “deportation” and “forcible transfer” as they appeared in the combined expression before the Commission; it does not follow that the field which the Commission allocated to the operation of the term “deportation” as used in that combined expression has to apply to “deportation” as used alone in article 5(d) of the Statute. What happened was that the collocation of words in which the term occurred in the provision before the Commission deprived it in that provision of what I consider to be its natural capacity to extend to a front line. That collocation not being present in article 5(d) of the Statute (which speaks only of “deportation”), the term retains here its ordinary meaning as capable of extending to a front line. The immediate verbal contexts are materially different; that is enough, in my view, to override the usual proposition that the same meaning has to be given to a term wherever it occurs in a statute – a proposition which in any event is hedged around with qualifications.

26. No dependable guidance can be had from article 49 of the Fourth Geneva Convention. The first paragraph of that article reads: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive”. That provision only illustrates that “deportation ” encompasses the crossing of a border; it does not stipulate that “deportation” may not also be applied to the crossing of another kind of boundary.

27. Referring to article 17 of Protocol II, the Appeals Chamber writes:

Article 17 of Additional Protocol II dealing with non-international armed conflicts provides in the relevant part that “[c]ivilians shall not be compelled to leave their own territory for reasons connected with the conflict.” While Article 17 does not expressly address deportation or forcible transfer, this provision draws a careful distinction between displacement within the territory in which a person lives and compelled movement to another territory.²⁵

With respect, the comment of the Appeals Chamber on the quoted passage is not readily appreciated. The question to be answered is whether deportation applies only to the crossing of a border. Article 17 takes no view on the matter. As noted by the Appeals Chamber, the provision does not address the definition of either “deportation” or “forcible transfer”. It does not even specify what is meant by “their own territory”; the injunction which it lays down could equally apply to a forcible displacement from territory controlled by one army to territory controlled by an opposing army, both territories being in the same state.

28. Nor do I see that Rule 129 of the Rules published by the ICRC in 2005²⁶ and reproduced in paragraph 296 of the judgement of the Appeals Chamber assists in the determination of what customary international law provided at the time of the offence, or how the Security Council used the term “deportation” in article 5(d) of the Statute. Indeed, the Appeals Chamber concedes that the Rule “says little about what type of borders satisfy [the] requirement” for forcible displacement across a border.²⁷

29. The language of deportation, in the sense of a crossing of a border of the state, was used in several cases connected with the Second World War. That was natural in the circumstances of that supremely international armed conflict. Nevertheless, there was an observable tendency to speak interchangeably of “deportation”, “transfer ”, “evacuation” and “expulsion”.²⁸ It does not appear that there was occasion for the courts to focus on any precise distinction between deportation and transfer or to speak of the former alone in respect of external forcible displacement and of the latter alone in respect of internal forcible displacement. In Greiser,²⁹ “deportation” was used in the indictment in circumstances in which it could be argued, on the opposing thesis, that what was involved was a “transfer”. The case arose out of World War II and was decided by the Supreme National Tribunal of Poland in 1946. It related to the forcible displacement of civilians from one place to another within the same state. True, there was no crossing of a front line, but neither was there a crossing of a border; yet the term “deporting” was used. The reason is that there was a demarcation line which could not be transgressed.

30. There are provisions which seemingly use the term “deportation” to include an internal transfer. Thus, section 6(4) of Australia’s War Crimes Act, as amended in 1945, provides that “the deportation of a person to, or the internment of a person in, a death camp, or a place where persons are subjected to treatment similar to that undergone in a death camp or slave labour camp, is a serious [war] crime”.³⁰ See likewise article 3(2)(d-e) of Bangladesh’s 1973 International Crimes (Tribunal) Act.³¹ These texts (and there may be other similar texts in the international community) show that “deportation ” can occur if the victim, though always within the state, is placed behind demarcation lines which preclude his exit or seriously impair it.

31. Account must also be taken of authorities mentioned in the judgement of the Trial Chamber which go to establish that customary international law does know of deportation both in the sense of a forcible displacement within the territory of the state and in the sense of a forcible displacement across a border.³²

32. It is accepted that in the case of several texts “deportation” is used in relation to forcible displacement across a border. It is also recognised that strict uniformity is not necessary for the maturing of a proposition into customary international law. But to say that “deportation” has been used in several cases in relation to the crossing of a border is not the same as saying that it can only be so used. On the available material, my view is that customary international law includes no rule which precludes the use of “deportation” in relation to the crossing of a front line even if it has not become a border. Hints and allusions must be separated from a categorical proposition to the effect that the term cannot be so used. It is excessive to say that such a proposition formed part of customary international law. A conclusion which is based on the view that such a proposition formed part of customary international law is not supportable.

4. Even if customary international law always used the term “deportation ” in relation to the crossing of a border, the term was reasonably capable of applying to a front line

33. If customary international law always used the term “deportation” in relation to the crossing of a border, the real reason was, not the fact that there was a border, but that there was a coercive demarcation line represented by the border. A front line also represents a coercive demarcation line. Thus, even if “deportation ” was never concretely applied to a forcible displacement across a front line, the law applicable to deportation across a border was always reasonably capable of applying to such displacement.

34. That view has to be considered in the light of the holding by the Appeals Chamber that the Trial Chamber’s position expands customary international law. The Tribunal does not of course have power to do that. Speaking of jurisdictional instruments, Judge Gros pointed out that “the rule is that interpretation cannot extend the jurisdiction which has been recognised”.³³ In my opinion, that view applies generally: interpretation cannot camouflage expansion.

35. But it is necessary to stress that, although the Tribunal cannot expand customary international law, it has an undoubted duty to interpret a principle established by that law. That duty is inescapable in a judicial forum called upon to apply a law: to apply is to interpret. Speaking of treaties, Waldock observed that “‘ interpretation’ and ‘application’ of treaties are closely inter-linked …”.³⁴ Putting it both more positively and more generally, Judge Jessup later pointed out that “[a]ny court’s application of a rule of law to a particular case, involves an interpretation of the rule.”³⁵ The duty is of general currency; that is obvious. It is that duty which no doubt led to the interpretation now given by the majority of the principle of deportation as not extending to the front line crossing in this case. I do not share that interpretation, but that interpretation and the opposite interpretation of the Trial Chamber both flow from a duty to interpret the scope of the existing law.

36. Further, it is accepted that in interpreting the law a chamber may “clarify” the law. In the Tadic decision on jurisdiction,³⁶ “the Appeals Chamber unanimously held that some customary rules of international law criminalized certain categories of conduct in internal armed conflict …”. The author of that statement added that it “is well known that until that decision many commentators, States as well as ICRC held the view that violations of the humanitarian law of internal armed conflict did not amount to war crimes proper, for such crimes could only be perpetrated within the context of an international armed conflict”.³⁷ The learned author, who was the Presiding Judge in the case, recognized that that was “[p]erhaps an instance of expansive interpretation”; but the holding has stood, although it is obvious that what was involved was a major matter indeed.

37. In Krstic,³⁸ the Appeals Chamber ³⁹ held that the Tribunal was competent to order a prospective witness “to attend at a location in Bosnia and Herzegovina, and at a time, to be nominated by the Krstic defence after consultation with the prosecution (and, if need be, with the Victims and Witnesses Section) to be interviewed there by the Krstic defence”.⁴⁰ The prospective witness, after being interviewed out of court, might eventually not be required to come to court at all, but obviously, for any violation of the order to attend the interview, he would face criminal sanctions. So the decision “created” an offence. There was no trace of the existence in customary international law of a rule authorising such a decision; indeed, the Appeals Chamber did not cite the existence of a similar rule in any place, let alone any state. One way of looking at it would be to say that the rule underlying the decision was competently made by the Appeals Chamber in exercise of its power to “clarify” the existing principle of customary international law that its proceedings had to be “fair”, including the principle of equality of arms, and that in this way the new rule always formed part of customary international law.

38. Also, the Appeals Chamber has in several cases recognised the authority of the Tribunal to punish criminal contempt, which, as it first held in Tadic, is an inherent judicial power.⁴¹ The Appeals Chamber acknowledged in that case that customary international law established no such criminal offence, and hence inferred the Tribunal’s power to punish contempt from the judicial authority conferred by the Statute to try cases.⁴² The decision “created” an offence in the context of contempt. That and other cases suggest that the power to clarify the law may be used so long as the “essence” of what is done can be found in existing law.

39. In appreciating the “essence” of a clarification, the question to be attended to is not whether a particular set of circumstances was ever concretely recognized by the existing law, but whether those circumstances reasonably fall within the scope of the existing law. This was the underlying approach of the Appeals Chamber to the issue of legality which was raised in Celebici.⁴³ More explicitly, the Appeals Chamber unanimously held in Hadzihasanovic that “where a principle can be shown to have been … established [as customary international law] it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle”.⁴⁴ In Karemera,⁴⁵ referring to that proposition, Trial Chamber III of the ICTR considered “that this is a well-established approach in international law”. In other words, the question is not whether the law, as it stands, was ever applied concretely to a particular set of circumstances, but whether the law, as it stands, was reasonably capable of applying to those circumstances.

40. In this matter, I gather that the approach of the majority has been to consider whether customary international law ever applied the concept of deportation in a concrete case to the crossing of a front line such as that in this case, as distinguished from the crossing of a border. It would have been useful to focus on the question whether customary international law included a principle which was reasonably capable as it stood of applying that concept to the crossing of such a front line, even if the concept had never been so applied in a concrete case. In my view, that question has to be answered in the affirmative.

5. Even if customary international law confines the use of the term “deportation ” to the crossing of a border, the question in this case is the different one of determining in what sense the Security Council used that term in article 5(d) of the Statute

(a) The critical question

41. It seems that the Appeals Chamber accepts that customary international law proscribes the forcible displacement of civilians across a front line, in circumstances not permitted by international law, as a punishable crime. This view can be extracted from various statements in the judgement of the Appeals Chamber. In paragraph 302 of the judgement, the Appeals Chamber states:

… the application of the correct definition of deportation would not leave individuals without the protection of the law. Individuals who are displaced within the boundaries of the State or across de facto borders not within the definition of deportation, remain protected by the law, albeit not under the protections afforded by the offence of deportation. Punishment for such forcible transfers may be assured by the adoption of proper pleading practices in the Prosecution’s indictments – it need not challenge existing concepts of international law.

In paragraph 317 of its judgement, the Appeals Chamber adds (footnotes omitted):

In the instant case, the Prosecution charged forcible transfer (in Count 8 of the Indictment) as the act underlying Article 5(i). Forcible transfer has been defined in the jurisprudence of the Tribunal as the forcible displacement of persons which may take place within national boundaries. The mens rea does not require the intent to transfer permanently. … The notion of forcible transfer had therefore clearly been accepted as conduct criminalised at the time relevant to this case, such that it does not violate the principle of nullum crimen sine lege.

42. The concern of the Appeals Chamber was not with the criminality of the act of forcibly displacing civilians across a front line, but with the mode of prosecution ; in particular, under what name was the act to be prosecuted? Implicitly, the Appeals Chamber accepts that the Security Council intended in the Statute to make such an act subject to prosecution. But if, because there is no crossing of a border, it cannot be prosecuted as a “deportation”, how is it to be prosecuted? As I apprehend it, the solution adopted by the Appeals Chamber is to say that, in such a case, the Security Council intended the forcible displacement to be regarded as a “forcible transfer” and, on this basis, to be prosecuted as “other inhumane acts” under article 5(i). With much respect, that looks roundabout.

43. The substantive issue having been determined by the Appeals Chamber when it accepted – as in my view, it did – that customary international law proscribes the forcible displacement of civilians across a front line as a punishable crime, the critical question which remains is whether the Security Council intended, in the Statute, to refer to that crime as a “deportation” or as “other inhumane acts”. Customary international law having been already applied to the substantive question whether there is a crime, the remaining issue is whether, as a matter of statutory interpretation, the Statute used the term “deportation” to refer to that crime. It seems to me that that question is to be answered by reference to the “ordinary meaning” rule accepted by the jurisprudence of the two Tribunals.⁴⁶ To this I now turn.

(b) The term “deportation”, in its ordinary meaning, is capable of extending to the forcible displacement of civilians across a front line.

44. There are dictionaries which define “deportation” to mean forcible displacement across a border.⁴⁷ And, to be sure, there are cases which illustrate that meaning. But cases illustrative of the use of a term, though valuable, do not necessarily limit the application of the term. Thus, a crossing of a border occurs in the “deportation” of aliens, and that is the term which is primarily used in that context.⁴⁸ But a crossing of a border is intrinsic to such an operation. That instance does not show that it is inadmissible to use “deportation” in other cases where the situation is different.

45. A larger meaning can be justified. In Halsbury’s Laws of England the term is defined to mean “the process whereby the competent authorities require a person to leave and prohibit him from returning to a territory.” ⁴⁹ Though one recognizes that deportation includes a border crossing, nothing is said in that passage of a restriction to such a crossing in all cases. That passage does not come from a text permitting the argument that “territory” is synonymous with “state”; it is a general statement. The possibility is opened up of the term, ordinarily understood, being given a wider meaning.

46. My understanding of the literature (including references given in the foregoing analysis) is that what the term “deportation” indicates is that there is some kind of demarcation line or barrier which, if crossed, effectively prevents or at least seriously inhibits the return of the forcibly displaced population to its accustomed area of residence. The forcible crossing of a border is a deportation but only in the sense that the border represents such a demarcation line or barrier; deportation is exemplified by the case of a crossing of a border, but it is not restricted to that case. It can include the crossing of a coercive demarcation line within the territory of a single state. It is, for example, normal to speak of “deportation ” where there is a forcible displacement across a coercive demarcation line within a large state, such as a state of a multi-territorial character.⁵⁰ A front line can be such a demarcation or barrier.

47. In common understanding there naturally exists a deportation whenever, within the same state, a party in control of a territory forcibly displaces civilians across a front line to territory controlled by an opposing party; nor do I see any evidence that customary international law has altered that. I hold the view that, in ordinary acceptation, “deportation” includes forcible displacement across a front line. The next question is whether, in the Statute, the Security Council used the term in that way.

48. The Report of the Secretary-General leading to the establishment of the Tribunal was expressly approved by the Security Council,⁵¹ which, at the same time, also adopted the Statute in the unchanged words of a draft annexed to the Report. The Report emphasizes the need to stop ethnic cleansing in all its forms, as does the resolution of the Security Council adopting the Statute.⁵²

49. Ethnic cleansing can involve the forcible displacement of civilians either across a border or across a front line. The desire of the Security Council to stop ethnic cleansing in whichever of these two ways it occurs is in harmony with the reference in the chapeau of article 5 of the Statute to crimes against humanity “when committed in armed conflict, whether international or internal in character …” The last part of this reference is consistent with the view that all the elements of any crime against humanity stipulated in that provision can be committed entirely within the confines of a state. This means that all the elements of the stipulated crime of “deportation” can be committed wholly within a state – as is in fact possible in the case of the other eight crimes stipulated in article 5. It follows that, in the view of the Security Council, “deportation” need not be restricted to a crossing of a border between states; it extends to the crossing of a front line in the same state.

(d) The general purpose of the Security Council

50. A pause may be taken to consider the extent, if any, to which the purpose which the Security Council had in mind may be taken into account. The general position is of course that the Tribunal “acts only on the basis of law … A Court functioning as a court of law can act in no other way”.⁵³ “Ethnic cleansing” refers to a policy. This is not a crime in its own right under customary international law, but the general purpose which it represents can help to draw inferences as to the existence of elements of crimes referred to in the Statute. It is not correct to proceed on the basis that such limited use amounts to the use of policy as a self-sufficient ground of judicial action.⁵⁴

51. In my view, the purpose represented by “ethnic cleansing” can also be used as an aid to resolve disputed points of interpretation of the Statute. Under contemporary ideas of a purposive interpretation, a court, in a proper case, can resolve issues of interpretation by taking into account, not merely the “mischief ” which the statute sought to remedy, but the need to promote the purpose which the statute sought to accomplish. It is superficial to suppose that an interpretation made in that way is based solely on policy. Such an interpretation is of particular use in resolving ambiguities.

52. In the present case, there is an ambiguity concerning the meaning of the reference to “deportation” in article 5(d): Does the reference apply only to a crossing of a border? Or, does it apply also to a crossing of a front line? The interpretation to be chosen is that which promotes the purpose which can be judicially seen to be driving the provision, i.e., the need to put down ethnic cleansing in whichever way it occurs. In my view, only the broader interpretation accomplishes that purpose.

53. That purpose would be fulfilled on the interpretation that the reference in article 5(d) to “deportation” applies to the crossing of a border as well as to the crossing of a front line separating an area of a state under the control of a party from an area of the same state under the control of an opposing party. That purpose would not be fulfilled if the reference applied only to the crossing of a border.

(e) A front line crossing cannot be satisfactorily prosecuted as “other inhumane acts”

54. As appears from the above, the Appeals Chamber accepts that a forcible displacement of civilians across a front line is a punishable crime at customary international law; it also accepts, if only implicitly, that the Statute intended to authorise prosecutions for that crime. But if the case cannot be prosecuted as a deportation under article 5(d), how is it to be prosecuted?

55. The judgement of the Appeals Chamber is not precise on these matters, but, as I understand it, the answer which the Appeals Chamber would give is that the act amounts to a “forcible transfer” and that, on that basis, it should be prosecuted under article 5(i) relating to “other inhumane acts”; that, at any rate, would appear to be the only remaining possibility of prosecution. Thus, argues the Appeals Chamber, such a displacement would not be left out of the international criminal process if, there being no crossing of a border, it could not be prosecuted as an act of “deportation” under article 5(d).⁵⁵ There is much in that view; but does it suffer from possible weaknesses? The danger lies in assuming that there could be no reasonable objection to a prosecution under article 5(i), or in assuming that a prosecution thereunder will in all material respects be equivalent to a prosecution under article 5(d). The danger is illustrated thus:

56. First, ethnic cleansing in an armed conflict can involve the forcible displacement of civilians either across a border or across a front line. The Security Council intended both to be prosecuted. It might also be thought that the Security Council logically intended both to be prosecuted with equal efficiency and therefore in accordance with the same machinery. If the Security Council intended that one was to be prosecuted as a “deportation” under article 5(d), it would be odd if it intended that the other was to be prosecuted as a “forcible transfer” amounting to “other inhumane acts” under article 5(i), for both relate to forcible displacement in the nature of “ethnic cleansing” about which the Security Council was manifestly and equally concerned.

57. Second, as has been repeatedly pointed out,⁵⁶ the reference in article 5(i) of the Statute to “other inhumane acts” is of a residual character. It does not mention “forcible transfer”; this term would have to be read into that reference. It would not accord with the emphasis placed by the Security Council on the need to stop all forms of ethnic cleansing for cases which involved a border crossing to be dealt with under the explicit reference to “deportation” in article 5(d), while cases which involved a front line crossing had to be regarded as a “forcible transfer” and, as such, sneaked in under the residual reference to “other inhumane acts” in article 5(i).

58. Third, if the idea of forcible displacement across a front line is brought within the meaning of “other inhumane acts” as referred to in article 5(i), it is only brought in on a subsidiary aspect. The mischief addressed by article 5(d), relating to “deportation”, is the forcible movement of civilians, considered as a “movement ”.⁵⁷ By contrast, under article 5(i) the accused is not being punished for a forcible movement simpliciter ; he is being punished for the inhumanity of a particular forcible movement. The two things may be related but are not necessarily the same.

59. Fourth, to establish the inhumanity of “other inhumane acts” there has to be proof that “the act or omission caused serious mental or physical suffering or that it constituted a serious attack on human dignity”.⁵⁸ It is at least possible that proof of the requisite seriousness cannot automatically be made in every case of forcible displacement of civilians across a front line. In a given case, the defence will be entitled to submit that, although there is proof of forcible displacement across a front line, there is no proof of seriousness ; there will be an expectation that in some situations that submission can succeed. If it can not succeed in any case, this conflicts with the requirement that there has to be poof of seriousness in every case in which the charge is for “other inhumane acts”.

60. Fifth, if a forcible displacement across a front line can always be prosecuted as “other inhumane acts” under article 5(i), it will be difficult to explain why a forcible displacement across a border cannot also be regarded as “other inhumane acts” and prosecuted under that provision. But, if it was the intention to provide for the prosecution of a forcible displacement across a border under both article 5(d) and article 5(i), there would be an imbalance in the prosecution procedures, for it would be only possible to prosecute for a forcible displacement across a front line under paragraph (i). There being an observable disequilibrium in available remedies for what in substance is the same thing, namely, forcible displacement of civilians in pursuit of ethnic cleansing, the consequence is a partial nullification of the presumed intention of the Security Council to provide an equal remedial regime for an act which was of obvious concern to the Council in whichever way it was done.

61. These matters may at least provide reasonable grounds for argument against any prosecution for a forcible displacement across a front line which is instituted under article 5(i) relating to “other inhumane acts”. This has to be taken into account in considering that, while there were cases of ethnic cleansing which involved a cross-border movement, other cases – almost certainly the majority – involved a cross-front line movement. From the foregoing, it appears that the latter could not be prosecuted with the same efficiency under article 5(i) relating to “other inhumane acts” as cases of “deportation” under article 5(d).

62. It may be argued that the Appeals Chamber does not say that one case may be prosecuted with the same efficiency as the other, so that criticisms on that score are beside the point. But then, if that is not being said, what is being said? Nothing suggests that the Security Council intended to provide for unequal approaches to the two forms of ethnic cleansing. In my opinion, the consequences of the view that “deportation” does not extend to a forcible displacement of civilians across a front line are so unsatisfactory as to caution against adopting that view.

72. I reach three conclusions. First, it is not entirely correct to say, as the Appeals Chamber says, that, under customary international law, “the crime of deportation requires the displacement of individuals across a border”;⁶⁵ under customary international law, the concept of deportation can apply in relation to the crossing of a front line even if the front line is not a border. Second, even if existing materials always used the term “deportation” in relation to the crossing of a border, the term was reasonably capable of applying in relation to the crossing of a front line, inclusive of a constantly changing front line. Third, even if customary international law rigidly confined the use of the term “deportation ” to the crossing of a border, it still recognized the crossing of a front line as a crime and it was open to the Security Council to provide in the Statute for the prosecution of this crime as a “deportation”.

73. Nothing needs to be added in respect of the first two points. In relation to the third point, it may be emphasised that the question is one of statutory interpretation. As a matter of statutory interpretation, it is clear that the Security Council intended the term “deportation” to encompass forcible displacement across a front line. In particular, there was nothing in customary international law which forbade the Security Council from using the term “deportation” to cover a case of forcible displacement across a front line. For the reasons given, that term was more satisfactory than “other inhumane acts” and was in fact the term which the Security Council used to refer to the crime of forcible displacement, whether it occurred across a border or across a front line.

74. In judging the issue raised in this case, it is useful to bear this in mind. One state partially invades another. The armed forces of the two states establish a front line somewhere in the invaded state. The invading state displaces civilians of the invaded portion of the invaded state by forcibly sending them across the front line. Turkey v. Cyprus⁶⁶ suggests that that is an act of “deportation”. If that is right, the position cannot be different if the front line was established by opposing forces of the same state. The development which has led to the extension of the leading principles of international humanitarian law to internal armed conflicts also requires that reasonable scope be given to the operation of those principles in such conflicts. It cannot be that a forcible displacement by an invading state across a front line is a deportation when a similar displacement by an internal party is not.

75. One would have thought that the thing uppermost in the mind of the Security Council was the phenomenon of a party to an armed conflict expelling civilians across a front line. It is primarily that which the Security Council intended to stop by providing for prosecutions of “deportation”. It is puzzling to say that forcible displacement may be prosecuted as a “deportation” if, as in a minority of cases, it involves passage across a border, but that it can only be prosecuted by the uncertain procedure relating to “inhumane acts” if, as in the majority of cases, it involves passage across a front line. The distinction is artificial.

76. I regret that I am not able to support the position taken by the Appeals Chamber on deportation.

Done in both English and French, the English text being authoritative.

____________________
Mohamed Shahabuddeen

Dated this 22 March 2006
At The Hague
The Netherlands

[Seal of the International Tribunal]

XIV. OPINION DISSIDENTE DU JUGE GÜNEY SUR LE CUMUL DE DECLARATIONS DE CULPABILITE

1. Dans l’affaire Kordic et Cerkez, je m’étais clairement prononcé, avec le Juge Schomburg, contre le renversement de jurisprudence opéré à la majorité des juges de la Chambre d’appel sur la question du cumul de déclarations de culpabilité prononcées pour persécutions constitutives de crime contre l’humanité – crime sanctionné en vertu de l’article 5 du Statut – et pour emprisonnement, assassinats et autres actes inhumains prononcés sur la base du même article à raison des mêmes faits¹. Dans la présente affaire, la majorité de la Chambre d’appel fait sien le raisonnement adopté par majorité dans l’Arrêt Kordic et Cerkez pour conclure que la Chambre de première instance a versé dans l’erreur en déclarant qu’il n’était pas possible, sur la base de l’article 5 du Statut et à raison des mêmes faits, de déclarer un accusé coupable d’assassinat et d’expulsion d’une part et de persécutions d’autre part². Il est également précisé qu’un accusé peut être déclaré coupable, à raison des mêmes faits et en vertu de l’article 5 du Statut, à la fois d’extermination et de persécutions, mais aussi d’autres actes inhumains (transfert forcé) et de persécutions³. Je ne peux souscrire aux conclusions de la majorité de la Chambre d’appel en cette matière et souhaite à nouveau exprimer mon désaccord avec le raisonnement emprunté pour y parvenir.

2. Comme j’en faisais état dans l’opinion dissidente conjointe attachée à l’Arrêt Kordic et Cerkez⁴, je suis d’avis que le crime de persécutions doit être perçu comme une coquille vide, sorte de catégorie supplétive destinée à couvrir tout type d’acte sous-jacent. Ce n’est qu’en qualifiant l’acte sous-jacent constituant la persécution que le crime sanctionné à l’article 5(h) du Statut prend corps. Sans l’acte sous-jacent, la coquille que constitue la disposition relative aux persécutions demeure vide.

3. Il me paraît dès lors vain d’appliquer une lecture rigide et purement théorique de la notion d’« élément nettement distinct » qui est au cœur de la jurisprudence du Tribunal en matière de cumul de déclarations de culpabilité quand il s’agit de comparer crime de persécutions et d’autres crimes contre l’humanité⁵. Je crois en effet que dans le cas de figure spécifique où une Chambre doit examiner la question du cumul de déclarations de culpabilité prononcées à raison des mêmes faits pour persécutions et pour d’autres crimes contre l’humanité, cette dernière ne peut, si elle veut rendre compte le plus pleinement et le plus justement possible du comportement criminel de l’accusé, se contenter de comparer les éléments constitutifs des crimes en question mais doit étendre son examen aux actes sous-jacents au crime de persécutions sans lesquels point n’est de crime.

4. S’agissant du crime d’assassinat sanctionné à l’article 5(a) du Statut et du crime de persécutions sanctionné à l’article 5(h), il est vrai que si la comparaison s’arrêtait à la lettre des deux dispositions, on pourrait considérer au premier abord que les deux crimes possèdent chacun des éléments distincts : tandis que l’assassinat consiste en un acte ou une omission entraînant le décès de la victime commis dans l’intention de tuer la victime ou de porter des atteintes graves à son intégrité physique, la persécution consiste en un acte ou une omission commis délibérément avec l’intention d’exercer une discrimination pour des raisons politiques, raciales et religieuses qui introduit une discrimination de fait, et qui dénie ou bafoue un droit fondamental reconnu par le droit international coutumier ou conventionnel. Pour autant, ces dispositions ne sont pas à mon sens nettement distinctes l’une de l’autre dès lors que l’on ne peut considérer le crime de persécutions sans l’acte sous-jacent qui lui donne corps. En comparant le crime de persécutions dans son entièreté – acte sous-jacent y compris, en l’espèce l’acte d’assassinat – avec le crime d’assassinat au sens de l’article 5(a) du Statut, on réalise que seul un élément nettement distinct sépare les deux crimes : l’élément discriminatoire requis pour le crime de persécutions. Dans l’un et l’autre cas, il a été commis un acte ou une omission entraînant le décès de la victime commis dans l’intention de la tuer ou de porter des atteintes graves à son intégrité physique.

5. Partant, confrontée à la question du cumul de déclarations de culpabilité pour persécutions et pour assassinat constitutifs de crime contre l’humanité à raison des mêmes faits, une chambre ne devrait se fonder pour déclarer l’accusé coupable que sur la disposition la plus spécifique, à savoir le crime de persécutions pour assassinat. Le même raisonnement s’applique selon moi aux crimes d’expulsion, d’autres actes inhumains et d’extermination dont il est question dans le cas d’espèce, mais aussi aux autres crimes contre l’humanité qui pourraient constituer les actes sous -jacents au crime de persécutions.

6. Comme le Juge Schomburg et moi-même le rappelions dans notre opinion dissidente, cette approche a longtemps été celle de la Chambre d’appel dans les affaires où ce problème spécifique de cumul s’est posé⁶. Il ne me paraît pas exister, aujourd’hui plus qu’hier, de raisons impérieuses qui commandent de s’écarter d’une approche endossée sans ambiguïté par la Chambre d’appel pour lui substituer une interprétation du test Celebici que je considère erronée⁷.

Fait en anglais et français, la version en français faisant foi.

Le 22 mars 2006,
à La Haye, Pays-Bas

__________________
Mehmet Güney

[Seal of the International Tribunal]

(a) Stakic Appeal

10. Pursuant to Rule 127 of the Rules, the Appellant sought an extension of time in which to file his brief in support of his appeal.¹⁶ The Prosecution responded to the Appellant’s request for an extension of time on 23 October 2003.¹⁷ The Pre-Appeal Judge, Judge Theodor Meron, issued a decision granting an extension of time to the Appellant to file his brief in support of his appeal from 17 November 2003 to 6 January 2004.¹⁸

11. On 17 December 2003 the Appellant sought a further extension of time in which to file his brief in support of his appeal.¹⁹ The Appellant was granted a further extension of time to file his brief in support of his appeal in a Decision issued on 19 December 2003.²⁰

12. The Appellant filed a brief in support of his appeal²¹ and a supporting book of authorities²² on 3 February 2004. However, on 11 February 2002 the Prosecution filed an urgent motion which alleged that the references in the Appellant’s brief in support of his appeal were imprecise and therefore contravened the Tribunal’s “Practice Direction on Formal Requirements for Appeals from Judgement” (IT/201).²³ The Appellant disputed the Prosecution’s allegations of imprecise referencing.²⁴ In a decision issued on 23 February 2004, the Pre-Appeal Judge upheld the Prosecution motion and allowed the Appellant to re-file the brief with precise referencing but without adding new arguments on or before 8 March 2004.²⁵ The Pre-Appeal Judge also allowed the Prosecution 30 days from the date of the re -filing of the Appellant’s brief to file its response.²⁶ Consequently, the Appellant re-filed his brief in support of his appeal on 9 March 2004 (“Stakic Appeal Brief”).²⁷

13. In relation to its response to the Appellant’s re-filed brief in support of his notice of appeal, the Prosecution filed a motion for an extension of the page limit from 100 to 139 pages²⁸ which was granted by a decision of the Pre-Appeal Judge issued on 5 April 2004.²⁹ The Prosecution filed its response to the Appellant’s re-filed brief in support of his notice of appeal on 8 April 2004 (“Prosecution Response Brief”)³⁰ and a supporting book of authority.³¹ The Prosecution filed a corrigendum to the book of authorities on 16 April 2004³² and to the response on 29 April 2004.³³

14. In a motion filed on 20 April 2004, the Appellant requested an extension of time to file a reply brief to the Prosecution Response until 20 May 2004.³⁴ The motion was granted in a decision issued on 26 April 2004.³⁵ Accordingly, the Appellant filed a brief in reply on 20 May 2004 (“Stakic Reply Brief”).³⁶

15. On 8 June 2004, the Prosecution filed a motion alleging that the Appellant raised a new ground of appeal in the Stakic Reply Brief, relating to the non-disclosure of Rule 68 material concerning the Appellant’s alleged co-perpetrators, and seeking leave to respond to another matter clarified by the Appellant in the Stakic Reply Brief.³⁷ In a Decision issued on 20 July 2004, Judge Meron granted the Prosecution’s motion in relation to both issues.³⁸ Consequently, the Prosecution filed an addendum to the Prosecution’s Response Brief on 22 July 2004,³⁹ and the Appellant filed a reply to this addendum on 2 August 2004.⁴⁰

16. In its Decision of 21 June 2005,⁴¹ the Appeals Chamber ordered the Appellant to re-file a public version of his Appellant’s Brief, and the Prosecution a public version of its Response thereto, since the Parties had only filed confidential versions of these briefs. On 7 July 2005, the Appellant filed his Re-filed Appellant's Brief in Support of his Notice of Appeal.⁴² On 13 July 2005, the Prosecution filed a public redacted version of its Response Brief.⁴³

17. In an order on the filing of the public version of Appellant's brief, dated 19 July 2005,⁴⁴ the Appeals Chamber considered that the Appellant’s Re-filed Appellant's Brief still contained confidential information, and ordered the Appellant to file a public version of the Appellant’s Brief by 26 July 2005. On 20 July 2005, the Appellant again filed his Re-filed Appellant's Brief in Support of his Notice of Appeal.⁴⁵

(b) The Prosecution Appeal

18. The Prosecution filed its appeal brief (“Prosecution Appeal Brief”⁴⁶) and supporting book of authorities⁴⁷ on 17 November 2003. The Appellant filed his response brief on 30 December 2003.⁴⁸ In a motion pursuant to Rule 117 of the Rules and filed on 7 January 2004, the Prosecution sought an extension of time in which to file its reply brief, and permission to extend the pages of the reply brief.⁴⁹ The Pre-Appeal Judge granted both of the Prosecution’s requests and required the Prosecution to file its reply brief by 19 January 2004, and stipulated that it be no more than 40 pages in length.⁵⁰ The Prosecution filed its brief in reply on 19 January 2004 (“Prosecution Reply Brief”).⁵¹

5. Motions pursuant to Rule 115 of the Rules

19. On 3 February 2004 the Appellant filed a motion to admit additional evidence before the Appeals Chamber pursuant to Rule 115 of the Rules.⁵² On 6 February 2004, the Appellant filed a motion to extend the time for filing of the documentary evidence in Annex 2 of his motion for admission of evidence pursuant to Rule 115.⁵³ In a decision issued on 10 February 2004, the Pre-Appeal Judge granted the Appellant’s motion to extend the time for the admission of Annex 2 documents to no later than (1) on or before the 7th day following the receipt of all English translations of the documents by the Appellant’s counsel, or (2) 16 April 2004.⁵⁴ The Appellant filed Annex 1 to his motion to admit additional evidence on 5 April 2004⁵⁵ and Annexes 3 and 4 on 7 April 2004.⁵⁶

20. On 14 April 2004 the Prosecution filed an urgent motion to request an extension of time in which to file a response to the Appellant’s motion under Rule 115.⁵⁷ In a decision issued on 16 April 2004, the Pre-Appeal Judge held that good cause had been shown by the Prosecution and allowed the Prosecution to file a response on or before 3 June 2004.⁵⁸ On 25 April 2004 the Prosecution filed a motion to extend the page limit of its response to the Appellant’s motion.⁵⁹ On 29 April 2004 the Prosecution filed a motion to strike out certain documents filed by the Appellant in relation to his Rule 115 motion⁶⁰ and filed a corrigendum to its motion to strike out the documents on 10 May 2004.⁶¹

21. On 27 May 2004 the Pre-Appeal Judge handed down his decision on the two motions filed by the Prosecution, wherein he dismissed the Prosecution’s motion to strike out the documents filed by the Appellant before it handed down its decision on this issue, but allowed an extension of time to the Prosecution to file a response to the Appellant’s Rule 115 motion.⁶² On 3 June 2004 the Prosecution filed a response to the Appellant’s motion to admit additional evidence pursuant to Rule 115.⁶³ On 25 January 2005 a confidential decision was issued on the Appellant’s Rule 115 motion admitting statements previously rendered to the Prosecution by Witness BT106.⁶⁴

22. On 27 July 2005, the Prosecution filed a confidential motion requesting clarification of the Appeals Chamber’s confidential decision on Stakic's Rule 115 motion to admit additional evidence on appeal.⁶⁵ On 6 September 2005, the Appeals Chamber ordered the Appellant to file a notice by 8 September 2005, indicating whether it intended to call Witness BT106 as a witness at the hearing.⁶⁶ On 9 September 2005, the Appellant filed his submission pursuant to the Appeals Chamber’s order issued on 6 September 2005,⁶⁷ following which the Prosecution filed its request for leave to file a response/reply.⁶⁸ In an Order of 14 September 2005, the Appeals Chamber ordered the Prosecution to file its submission as requested by 15 September 2005,⁶⁹ and the Prosecution complied.⁷⁰

23. In a decision issued on 20 September 2005 the Appeals Chamber summoned Witness BT106 as a witness proprio motu and ordered that Witness BT106 be present at the hearing on 4 October 2005.⁷¹ On 26 September 2005, the Appeals Chamber filed a Scheduling Order informing Witness BT106 and the parties that the examination of the witness would be on the content and background of the Admitted Statements, and scheduling the hearings for 4, 5 and 6 October 2005.⁷² The same day, the Appeals Chamber issued an order for the preparation of the hearings on appeal by which it invited the Parties to, inter alia, further develop their submission on the issues set out therein.⁷³

ALEKSOVSKI

Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”).

BABIC

Prosecutor v. Milan Babic, Case No. IT-03-72-A, Judgement on Sentencing Appeal, 18 July 2005, (“Babic Judgement on Sentencing Appeal”).

BLASKIC

Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaskic Appeal Judgement”).

BRDJANIN

Prosecutor v. Radoslav Brdjanin Case No. IT-99-36-T, Decision on Motion for Acquittal pursuant to Rule 98bis, 28 November 2003 (“Brdjanin Rule 98bis Decision”).

Prosecutor v. Radoslav Brdjanin Case No. IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004 (“Brdjanin Decision on Interlocutory Appeal”).

Prosecutor v. Radoslav Brdjanin, Case No. IT-99-36-T, Judgement, 1 September 2004 (“Brdjanin Trial Judgement”).

“CELEBICI”

Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No. IT-96-21-T, Judgement, 16 November 1998 (“ Celebici Trial Judgement”).

Prosecutor v. Zejnil Delalic, Zdravko Mucic, a.k.a. “Pavo”, Hazim Delic and Esad Landzo, a.k.a. “Zenga”, Case No. IT-96-21-A, Judgement, 20 February 2001 (“ Celebici Appeal Judgement”).

DERONJIC

Prosecutor v. Miroslav Deronjic, Case No: IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005, (“Deronjic Appeal Judgement”).

FURUNDZIJA

Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundzija Trial Judgement”).

HADZIHASANOVIC

Prosecutor v. Enver Hadzihasanovic, Mehmet Alagic and Amir Kubura, Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003 (“Hadzihasanovic Appeal Decision on Jurisdiction”).

JELISIC

Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Judgement, 14 December 1999 (“Jelisic Trial Judgement”).

Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001 (“Jelisic Appeal Judgement”).

JOKIC

Prosecutor v.Miodrag Jokic, Case No. IT-01-42/1-A, Judgement on Sentencing Appeal, 30 August 2005 (“Jokic Appeal Judgement”).

KORDIC AND CERKEZ

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001 (“Kordic Trial Judgement”).

Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004 (“Kordic Appeal Judgement”).

KRNOJELAC

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement”).

Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement, 17 September 2003 (“Krnojelac Appeal Judgement”).

KRSTIC

Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Judgement, 2 August 2001 (“Krstic Trial Judgement”).

Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgement, 19 April 2004 (“Krstic Appeal Judgement”).

KUNARAC

Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 and IT-96-23/1-T, Judgement, 22 February 2001 (“Kunarac Trial Judgement”).

Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 and IT-96-23/1-A, Judgement, 12 June 2002 (“Kunarac Appeal Judgement ”).

KUPRESKIC

Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic, a.k.a. “Vlado”, Case No. IT-95-16-T, Judgement, 14 January 2000 (“Kupreskic Trial Judgement”).

Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic and Vladimir Santic, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic Appeal Judgement”).

KVOCKA

Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac, Case No. IT-98-30/1-T, Judgement, 2 November 2001 (“Kvocka Trial Judgement”).

Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac, Case No. IT-98-30/1-A, Judgement, 28 February 2005 (“Kvocka Appeal Judgement”).

NALETILIC AND MARTINOVIC

Prosecutor v. Mladen Naletilic and Vinko Martinovic, Case No. IT-98-34-T, Judgement, 31 March 2003 (“Naletilic and Martinovic Trial Judgement”)

D. NIKOLIC

Prosecutor v. Dragan Nikolic a/k/a Jenki, Case No. IT-94-2, Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 October 1995 (“ Nikolic Rule 61 Decision”).

Prosecutor v. Dragan Nikolic, Case No. IT-94-2-S, Sentencing Judgement, 18 December 2003 (“Dragan Nikolic Sentencing Judgement”).

Prosecutor v. Dragan Nikolic, Case No. IT-94-2-A, Judgement on Sentencing Appeal, 4 February 2005 (“Dragan Nikolic Appeal Judgement”).

OJDANIC

Prosecutor v. Milan Milutinovic, Nikola Sainovic and Dragoljub Ojdanic, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003 (“Ojdanic Decision on Jurisdiction ”).

ORIC

Prosecutor v. Naser Oric, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005 (“Oric Decision on Length of Defence Case”).

B. SIMIC

Prosecutor v. Blagoje Simic, Miroslav Tadic and Simo Zaric, Case No. IT-95 -9-T, Judgement, 17 October 2003 (“Simic et al. Trial Judgement”).

M. SIMIC

Prosecutor v. Milan Simic, Case No. IT-95-9/2-S, Sentencing Judgement, 17 October 2002 (“Simic Sentencing Judgement”).

STAKIC

Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Decision on Request for Approval of Defence Experts, 8 October 2002 (“Decision on Request for Approval of Defence Experts”).

Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Decision on Rule 98bis Motion for Judgement of Acquittal, 31 October 2002 (“Rule 98bis Decision ”).

Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Judgement, 31 July 2003 (“Trial Judgement”).

Prosecutor v. Milomir Stakic, Case No. IT-97-24-A, Decision on Prosecution’s Motion to Disallow a Ground of Appeal and to File a Further Response, 20 July 2004 (“Decision on Prosecution’s Motion to Disallow a Ground of Appeal and to File a Further Response”).

TADIC

Prosecutor v. Dusko Tadic a/k/a “Dule”, Case No. IT-94-1-AR-72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“ Tadic Appeal Decision on Jurisdiction”).

Prosecutor v. Dusko Tadic a/k/a “Dule”, Case No. IT-94-1-T, Opinion and Judgement, 7 May 1997 (“Tadic Trial Judgement”).

Prosecutor v. Dusko Tadic a/k/a “Dule”, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadic Appeal Judgement”).

Prosecutor v. Dusko Tadic a/k/a “Dule”, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 November 1999 (“Tadic Sentencing Judgement”).

Prosecutor v. Dusko Tadic a/k/a “Dule”, Case No. IT-94-1-A and IT-94-1- Abis, Judgement in Sentencing Appeals, 26 January 2000 (“Tadic Sentencing Appeal Judgement”).

VASILJEVIC

Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T, Judgement, 29 November 2002 (“Vasiljevic Trial Judgement”).

Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-A, Judgement, 25 February 2004 (“Vasiljevic Appeal Judgement”).

AKAYESU

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998 (“Akayesu Trial Judgement”).

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”).

BAGILISHEMA

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001 (“Bagilishema Trial Judgement ”).

KAJELIJELI

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgment and Sentence, 1 December 2003 (“Kajelijeli Trial Judgement”).

Juvénal Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”).

KAMBANDA

Prosecutor v. Kambanda, Case No ICTR-97-23-S, Judgement and Sentence, 4 September 1998 (“Kambanda Trial Judgement”).

Jean Kambanda v. Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000 (“Kambanda Appeal Judgement”).

KAMUHANDA

Jean de Dieu Kamuhanda v. Prosecutor, Case No. ICTR-95-54A-A, Appeal Judgement, 19 September 2005 (“Kamuhanda Appeal Judgement”).

KAYISHEMA AND RUZINDANA

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999 (“Kayishema and Ruzindana Trial Judgement”).

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement ”).

MUSEMA

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement, 27 January 2000 (“Musema Trial Judgement”).

Alfred Musema v. Prosecutor, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Appeal Judgement”).

NDINDABAHIZI

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement and Sentence, 15 July 2004 (“Ndindabahizi Trial Judgement”).

NIYITEGEKA

Eliezer Niyitegeka v. Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 (“Niyitegeka Appeal Judgement ”).

NTAKIRUTIMANA

Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases No. ICTR-96-10 & ICTR-96-17-T, Judgement and Sentence, 21 February 2003 (“Ntakirutimana Trial Judgement”).

Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Appeal Judgement, 13 December 2004 (“Ntakirutimana Appeal Judgement”).

RUTAGANDA

Prosecutor v. Georges Anderson Nderubunwe Rutaganda, Case No ICTR-96-3-T, Judgement and Sentence, 6 December 1999 (“Rutaganda Trial Judgement”).

Georges Anderson Nderubunwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”).

SEMANZA

Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003 (“Semanza Trial Judgement”).

Laurent Semanza v. Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005 (“Semanza Appeal Judgement”).

SERUSHAGO

Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Sentencing Judgement, 5 February 1999 (“Serushago Sentencing Judgement”).

Omar Serushago v. Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgment, 6 April 2000 (“Serushago Sentencing Appeal Judgement”).

3. Decisions Related to Crimes Committed During World War II

According to Rule 2(B) of the Rules of Procedure and Evidence, the masculine shall include the feminine and the singular the plural, and vice-versa.

Additional Protocol I

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3

Additional Protocol II

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, 1125 U.N.T.S. 609

Appellant

Dr. Milomir Stakic

ARK

Autonomous Region of Bosanska Krajina

AT

Transcript page from hearings on appeal in the present case. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcripts released to the public. The Appeals Chamber accepts no responsibility for the corrections to or mistakes in these transcripts. In case of doubt the video-tape of a hearing is to be revisited.

B/C/S

The Bosnian/Croatian/Serbian languages

D

Designates "Defence" for the purpose of identifying exhibits

Defence

The Appellant and/or the Appellant’s counsel at the trial stage

ECMM

European Community Monitoring Mission

ECOSOC

United Nations Economic and Social Council

Ex.

Exhibit

General Assembly Resolution 96(I)

G.A. Res. 96(I). UN GAOR. 1^st Session, (1946)

Geneva Convention III

Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949, 75 U.N.T.S. 135

Geneva Convention IV

Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 U.N.T.S. 287

Geneva Conventions

Geneva Conventions I to IV of 12 August 1949

Genocide Convention

Convention of the Prevention and Punishment of the Crime of Genocide, of 9 December 1948, 78 U.N.T.S. 277

ICCPR

International Covenant on Civil and Political Rights, adopted by the UN General Assembly on 16 December 1966, entry into force on 23 March 1976; 999 U.N.T.S. 171

ICTR

International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994

ICTY

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, also "Tribunal"

ILC

International Law Commission

1991 ILC Draft Code

The International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, provisionally adopted by the Commission at its forty-third session (1991) (A/46/10)

1996 ILC Draft Code

The International Law Commission’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the Commission at its forty-eighth session (1996) (A/48/10)

IMT

The Nuremberg International Military Tribunal for the just and prompt trial and punishment of the major war criminals of the European Axis, established on 8 August 1945

IMT Judgment

Trial of Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946

Indictment

Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Fourth Amended Indictment, filed 11 April 2002 (dated 10 April 2002)

JNA

Yugoslav Peoples’ Army (Army of the Socialist Federal Republic of Yugoslavia)

Nuremberg Charter

Charter of the IMT, annexed to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis ("London Agreement") of 8 August 1945, 82 U.N.T.S. 279

OTP

See Prosecution

Prosecution

The Office of the Prosecutor

Prosecution Appeal Brief

The Prosecution’s Appeal Brief, filed on 17 November 2003

Prosecution Final Trial Brief

Prosecution’s Final Pre-Trial Brief (Revised April 2002), filed on 5 April 2002

Prosecution Response Brief (Confidential)

Prosecution’s Response Brief (confidential), filed 8 April 2004

Prosecution Response Brief

Prosecution’s Response Brief (public redacted version), filed 13 July 2005

Prosecution Reply Brief

The Prosecution’s Brief in Reply, filed 19 January 2004

Prosecution Final Trial Brief (Confidential)

Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Final Trial Brief (Confidential), filed 5 May 2003

Report of the ILC on its 43rd Sess.

Report of the International Law Commission on the Work of its Forty-Third Session, Yearbook of the International Law Commission (1991)

Report of the ILC on its 48th Sess.

Report of the International Law Commission on the Work of its Forty-Eight Session, 6 May-26 July 1996 (A/51/10)

Rome Statute

Statute of the International Criminal Court, of 17 July 1998, UN Doc. A/CONF.183/9

Rules

Rules of Procedure and Evidence of the ICTY

SDS

Serbian Democratic Party

SFRY

Former: Socialist Federal Republic of Yugoslavia

SJB

Public Security Station

Stakic Additional Reply Brief

Milomir Stakic’s Brief in Reply to the Prosecution’s Addendum to its Response, filed 2 August 2004 (dated 30 July 2004)

Stakic Appeal Brief (confidential)

Milomir Stakic’s Re-Filed Appellant’s Brief In Support of his Notice of Appeal (In accordance with the Appeals Chamber’s Decision of 23 February 2004) (confidential), signed 8 March 2004 and filed 9 March 2004

Stakic Appeal Brief

Milomir Stakic’s Re-Filed Appellant’s Brief In Support of his Notice of Appeal (In accordance with the Appeals Chamber’s Decision of 23 February 2004 and 22 June 2005, filed 20 July 2005

Stakic Defence

Counsel for Milomir Stakic (See also Defence)

Stakic Reply Brief

Milomir Stakic’s Brief in Reply, filed 20 May 2004

Stakic Response Brief

Milomir Stakic’s Response to the Prosecution’s Appeal Brief, filed 30 December 2003 (dated 27 December 2003)

Statute

Statute of the International Tribunal for the former Yugoslavia established by Security Council Resolution 827 (1993)

SUP

Secretariat of the Interior

T

Transcript page from hearings at trial in the present case. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcripts released to the public. The Appeals Chamber accepts no responsibility for the corrections to or mistakes in these transcripts. In case of doubt the video-tape of a hearing is to be revisited.

TO

Territorial Defence Forces

Tokyo Charter

Charter of the International Military Tribunal for the Far East of 19 January 1946, 4 Bevans 20 (as amended, 26 April 1946, 4 Bevans 27)

Trial Judgement

Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Judgement , 31 July 2003

Tribunal

See ICTY

UN

United Nations

VRS

Army of Serbian Republic

Additional Protocol I	Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3
Additional Protocol II	Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, 1125 U.N.T.S. 609
Appellant	Dr. Milomir Stakic
ARK	Autonomous Region of Bosanska Krajina
AT	Transcript page from hearings on appeal in the present case. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcripts released to the public. The Appeals Chamber accepts no responsibility for the corrections to or mistakes in these transcripts. In case of doubt the video-tape of a hearing is to be revisited.
B/C/S	The Bosnian/Croatian/Serbian languages
D	Designates "Defence" for the purpose of identifying exhibits
Defence	The Appellant and/or the Appellant’s counsel at the trial stage
ECMM	European Community Monitoring Mission
ECOSOC	United Nations Economic and Social Council
Ex.	Exhibit
General Assembly Resolution 96(I)	G.A. Res. 96(I). UN GAOR. 1^st Session, (1946)
Geneva Convention III	Geneva Convention III Relative to the Treatment of Prisoners of War of 12 August 1949, 75 U.N.T.S. 135
Geneva Convention IV	Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 U.N.T.S. 287
Geneva Conventions	Geneva Conventions I to IV of 12 August 1949
Genocide Convention	Convention of the Prevention and Punishment of the Crime of Genocide, of 9 December 1948, 78 U.N.T.S. 277
ICCPR	International Covenant on Civil and Political Rights, adopted by the UN General Assembly on 16 December 1966, entry into force on 23 March 1976; 999 U.N.T.S. 171
ICTR	International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994
ICTY	International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, also "Tribunal"
ILC	International Law Commission
1991 ILC Draft Code	The International Law Commission’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind, provisionally adopted by the Commission at its forty-third session (1991) (A/46/10)
1996 ILC Draft Code	The International Law Commission’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind, adopted by the Commission at its forty-eighth session (1996) (A/48/10)
IMT	The Nuremberg International Military Tribunal for the just and prompt trial and punishment of the major war criminals of the European Axis, established on 8 August 1945
IMT Judgment	Trial of Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945-1 October 1946
Indictment	Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Fourth Amended Indictment, filed 11 April 2002 (dated 10 April 2002)
JNA	Yugoslav Peoples’ Army (Army of the Socialist Federal Republic of Yugoslavia)
Nuremberg Charter	Charter of the IMT, annexed to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis ("London Agreement") of 8 August 1945, 82 U.N.T.S. 279
OTP	See Prosecution
Prosecution	The Office of the Prosecutor
Prosecution Appeal Brief	The Prosecution’s Appeal Brief, filed on 17 November 2003
Prosecution Final Trial Brief	Prosecution’s Final Pre-Trial Brief (Revised April 2002), filed on 5 April 2002
Prosecution Response Brief (Confidential)	Prosecution’s Response Brief (confidential), filed 8 April 2004
Prosecution Response Brief	Prosecution’s Response Brief (public redacted version), filed 13 July 2005
Prosecution Reply Brief	The Prosecution’s Brief in Reply, filed 19 January 2004
Prosecution Final Trial Brief (Confidential)	Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Final Trial Brief (Confidential), filed 5 May 2003
Report of the ILC on its 43rd Sess.	Report of the International Law Commission on the Work of its Forty-Third Session, Yearbook of the International Law Commission (1991)
Report of the ILC on its 48th Sess.	Report of the International Law Commission on the Work of its Forty-Eight Session, 6 May-26 July 1996 (A/51/10)
Rome Statute	Statute of the International Criminal Court, of 17 July 1998, UN Doc. A/CONF.183/9
Rules	Rules of Procedure and Evidence of the ICTY
SDS	Serbian Democratic Party
SFRY	Former: Socialist Federal Republic of Yugoslavia
SJB	Public Security Station
Stakic Additional Reply Brief	Milomir Stakic’s Brief in Reply to the Prosecution’s Addendum to its Response, filed 2 August 2004 (dated 30 July 2004)
Stakic Appeal Brief (confidential)	Milomir Stakic’s Re-Filed Appellant’s Brief In Support of his Notice of Appeal (In accordance with the Appeals Chamber’s Decision of 23 February 2004) (confidential), signed 8 March 2004 and filed 9 March 2004
Stakic Appeal Brief	Milomir Stakic’s Re-Filed Appellant’s Brief In Support of his Notice of Appeal (In accordance with the Appeals Chamber’s Decision of 23 February 2004 and 22 June 2005, filed 20 July 2005
Stakic Defence	Counsel for Milomir Stakic (See also Defence)
Stakic Reply Brief	Milomir Stakic’s Brief in Reply, filed 20 May 2004
Stakic Response Brief	Milomir Stakic’s Response to the Prosecution’s Appeal Brief, filed 30 December 2003 (dated 27 December 2003)
Statute	Statute of the International Tribunal for the former Yugoslavia established by Security Council Resolution 827 (1993)
SUP	Secretariat of the Interior
T	Transcript page from hearings at trial in the present case. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcripts released to the public. The Appeals Chamber accepts no responsibility for the corrections to or mistakes in these transcripts. In case of doubt the video-tape of a hearing is to be revisited.
TO	Territorial Defence Forces
Tokyo Charter	Charter of the International Military Tribunal for the Far East of 19 January 1946, 4 Bevans 20 (as amended, 26 April 1946, 4 Bevans 27)
Trial Judgement	Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Judgement , 31 July 2003
Tribunal	See ICTY
UN	United Nations
VRS	Army of Serbian Republic