TABLE OF CONTENTS
II. THE STANDARD FOR APPELLATE REVIEW
III. THE PROSECUTION’S THIRD GROUND OF APPEAL: THE GROUP(S) ALLEGEDLY TARGETED FOR GENOCIDE
A.
The Trial Chamber’s alleged
error in defining the target group
B. The Trial Chamber’s
alleged error regarding the targeting of the Bosnian
Croats
C. Conclusion
IV. THE PROSECUTION’S FIRST AND SECOND GROUNDS OF APPEAL: MENS REA FOR GENOCIDE
A. Mens Rea of other perpetrators
B. Intent
to kill all Muslims in Prijedor
C.
The relationship between motive and intent
D. Conditions of life calculated to bring
about destruction
E. Inferences from
the Appellant’s
utterances
F. The Trial
Chamber’s assessment of
the totality of the evidence
V. JOINT CRIMINAL ENTERPRISE AND THE MODE OF LIABILITY APPLIED BY THE TRIAL CHAMBER
A. The mode of liability applied by the Trial
Chamber
B. The requirements for joint criminal
enterprise liability
C. The application of joint criminal
enterprise to the factual findings
1. Did the Appellant participate in a joint criminal enterprise?
(a) The participants in the alleged joint
criminal enterprise
(b) The Common Purpose of the alleged joint
criminal enterprise
(c) The Appellant’s
participation in the Common Purpose
2. Did the Appellant intend to further the
Common Purpose of the joint criminal enterprise?
3. Does the Appellant incur third category
joint criminal enterprise liability for certain
crimes falling outside the scope of the enterprise?
(a) The crimes falling outside the Common
Purpose
(b) The crimes were a natural and foreseeable
consequence of efforts to carry out the Common
Purpose
D. The concept of dolus eventualis (“advertent
recklessness”) within the context of joint
criminal enterprise
E. Conclusion
VI. THE APPELLANT’S FIRST GROUND OF APPEAL: ALLEGED EXPANSION OF THE INDICTMENT
A.
The Appellant’s “understanding” with
the Prosecution
B. The Trial
Chamber’s alleged reliance
on “acts” outside the Indictment
period
(a)
The pre-Indictment period “acts”
(b)
The post-Indictment period “acts”
2. Did the Trial Chamber err in relying on evidence outside the scope of the Indictment?
C.
Did the Trial Chamber prevent the Appellant from
contesting “acts” outside
the temporal scope of the Indictment?
D. Pleading the
Appellant’s status
of commander as an aggravating circumstance
A. Alleged violations of the Appellant’s right to a fair trial
1. Denial of the Appellant’s request to obtain expert witnesses and to admit expert evidence
(a) The handwriting expert
(b) The police expert
(c) The constitutional law expert
(d) The demographer
(e) Expert called to rebut Witness Vulliamy
(f) The designation of Nicolas Sebire as
an expert
(g) Psychiatrist or criminologist
2.
Alleged violations of Rule 68 by the Prosecution
3. Denial of
the Appellant’s attempts
to introduce Rule 92bis evidence
4. Alleged
improper admission of the Prosecution’s
Rule 92bis evidence
5. Rule 91 warnings to Defence witnesses
6. Admission
of “unreliable and untrustworthy” evidence
(a) “Unreliable” evidence
(b) Evidence concerning Milorad Stakic
(c) Evidence
on the Appellant’s flight
from Prijedor
1. Submissions of the Parties
2. Discussion
(a)
The existence of a Common Purpose and the Appellant’s
participation therein
(b)
The Appellant’s awareness of the
crimes committed
(i) Count 5: Murder
(ii) Count 4: Extermination
A.
The Trial Chamber’s finding that
the purported attack was “widespread” and “systematic”
B.
Extermination as a crime against humanity
1.
Is knowledge of a “vast scheme of
collective murder” required?
2. Is the intent to kill a large number of
victims required?
3. Did the Trial Chamber err in its consideration
of the evidence related to the mens rea for
extermination?
C. Deportation as a crime against humanity
1. Submissions of the Parties
2. Discussion
(a) The elements of the crime of deportation
(i) Forced character of the displacement
(ii)
Cross-border transfer
(iii) Is there a requirement
of an intent to permanently displace the victims
of deportation?
(iv) Conclusion
(b) Whether the Trial Chamber erred in its
analysis of the facts regarding deportation
(c) The effect
of the Trial Chamber’s
error on the Appellant’s convictions
(i)
The Trial Chamber’s treatment
of forcible transfer
(ii) Applying
the correct legal definitions of deportation and
forcible transfer to the facts
D. Persecutions as a crime against humanity
X. THE APPELLANT’S SEVENTH AND THE PROSECUTION’S FOURTH GROUNDS OF APPEAL : CUMULATIVE CONVICTIONS
1.
Prosecution’s Appeal
2. Appellant’s
Appeal
1. The application of the cumulative convictions test.
(a) Murder as a crime against humanity and
persecutions
(b) Deportation and persecutions
(c) Other inhumane acts (forcible transfer)
and persecutions
(d) Extermination and persecutions
2. The effect of the errors of law
XI. THE APPELLANT’S SIXTH GROUND OF APPEAL: SENTENCING
A. Alleged misconduct of the Prosecution
B. Alleged failure to hear an expert criminologist
or psychiatrist
C. Allegation that the sentence of life imprisonment
be limited to the gravest of crimes
D. The
principle of proportionality and the sentencing practices
of the Tribunal and of the ICTR
E.
Allegation that the sentence was imposed because
the Appellant was found guilty by association
F.
Whether the Trial Chamber imposed a minimum sentence
G. Alleged violation
of the prohibition against cruel, inhumane and degrading punishment
H.
Alleged failure to consider the sentencing practice
in the courts of the former Yugoslavia
I.
Whether the Trial Chamber erred when it relied exclusively
on the principles of deterrence and retribution
J. Whether the Trial Chamber failed to give
adequate weight to evidence of mitigating circumstances
K. Aggravating factors
1.
The Appellant’s superior
position
2. Whether planning and ordering the crime
of deportation is an aggravating factor
3. The Appellant’s
professional background
4. Whether the Appellant was unwilling to
help individuals in need
5. “Long
phase of preparation and planning”
6. “White
collar crimes”
L. Alleged failure to provide material concerning
co-perpetrators
M. Conclusion
XIII. PARTLY DISSENTING OPINION OF JUDGE SHAHABUDDEEN
A. Whether the Appeals Chamber, where it
corrects a legal standard, may determine whether
it is itself convinced beyond reasonable doubt
as to the factual finding of the Trial Chamber
B. Whether groups protected against genocide
may be defined negatively
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
1. Preliminary
2. The framework of this opinion
3. Customary international
law did not confine “deportation” to
the crossing of a border
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
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
(b) The term “deportation”,
in its ordinary meaning, is capable of extending
to the forcible displacement of civilians across
a front line.
(c) The Security Council’s
emphasis on the need to stop ethnic cleansing
in all its forms
(d) The general purpose of the Security Council
(e) A front line crossing
cannot be satisfactorily prosecuted as “other
inhumane acts”
6. If “deportation” includes
forcible displacement across a front line, it
was permissible for the Trial Chamber to speak
of “constantly changing frontlines”
7.
The view that deportation applies to a front line does
not conflict with the principle of nullum crimen
sine lege.
8. The view that “deportation” applies
in relation to a front line accurately reflects
the substance of customary international law.
9. Conclusions on deportation
XIV. OPINION DISSIDENTE DU JUGE GÜNEY SUR LE CUMUL DE DÉCLARATIONS DE CULPABILITÉ
XV. JOINT SEPARATE OPINION OF JUDGES VAZ AND MERON
XVI. ANNEX A: PROCEDURAL BACKGROUND
1. History of Trial Proceedings
2. Filing of
notices of appeal
3. Composition
of the Appeals Chamber
4. Filing
of the appeal briefs
(a) Stakic Appeal
(b) The Prosecution Appeal
5. Motions pursuant to Rule 115 of the Rules
6. Other motions relating to evidence
7. Hearings
8. Status conferences
A. List of Tribunal and Other Decisions
1. Tribunal
2. ICTR
3. Decisions Related to Crimes Committed
During World War II
4. Other Decisions
B. List of Other Legal Authorities
1. Books, Edited Volumes and Collections
2.
Dictionaries
3. Other Legal Authority