1. Stakic’s Notice of Appeal, 1 September 2003; Prosecution’s Notice of Appeal, 1 September 2003.
2. Trial Judgement, para. 1.
3. Trial Judgement, paras 3-4.
4. Trial Judgement, paras 5, 336.
5. Trial Judgement, para. 336.
6. Trial Judgement, paras 67-84.
7. Trial Judgement, paras 88-101, 336.
8. Trial Judgement, para. 7.
9. Indictment, 27 March 2001.
10. Fourth Amended Indictment, filed 11 April 2002 (dated 10 April 2002) (“Indictment”).
11. Trial Judgement, Disposition.
12. Trial Judgement, Disposition.
13. Trial Judgement, Disposition.
14. Stakic Appeal Brief, 8 March 2004.
15. Prosecution Appeal Brief, 17 November 2003.
16. Kvocka Appeal Judgement, para. 14, citing Vasiljevic Appeal Judgement, paras 4-12; Kunarac Appeal Judgement, paras 35-48; Kupreskic Appeal Judgement, para. 29; Celebici Appeal Judgement, paras 434-435; Furundzija Appeal Judgement, paras 34 -40; Tadic Appeal Judgement, para. 64.
17. Kajelijeli Appeal Judgement, para. 5; Semanza Appeal Judgement, para. 7; Musema Appeal Judgement, para. 15; Akayesu Appeal Judgement, para. 178; Kayishema and Ruzindana Appeal Judgement, paras 177, 320. Under the Statute of the ICTR, the relevant provision is Article 24.
18. Kupreskic Appeal Judgement, para. 22; Tadic Appeal Judgement, para. 247.
19. Kvocka Appeal Judgement para. 16, citing Krnojelac Appeal Judgement, para. 10.
20. Kvocka Appeal Judgement, para. 16; Kordic Appeal Judgement, para. 16; Vasiljevic Appeal Judgement, para. 6.; Kupreskic Appeal Judgement, para. 26. See also Semanza Appeal Judgement, para. 7; Kambanda Appeal Judgement, para. 98.
21. Krnojelac Appeal Judgement, para. 10.
22. Kvocka Appeal Judgement, para. 17; Kordic Appeal Judgement, para. 17; Blaskic Appeal Judgement, para. 15.
23. Kvocka Appeal Judgement, para. 17; Kordic Appeal Judgement, para. 17. Blaskic Appeal Judgement, para. 15.
24. Blaskic Appeal Judgement, para. 13.
25. Kvocka Appeal Judgement, para. 18; Kordic Appeal Judgement, para. 18; Blaskic Appeal Judgement, para. 16; Celebici Appeal Judgement, para. 435; Furundzija Appeal Judgement, para. 37; Aleksovski Appeal Judgement, para. 63; Tadic Appeal Judgement, para. 64.
26. Furundzija Appeal Judgement, para. 37, referring to Tadic Appeal Judgement, para. 64. See also Kvocka Appeal Judgement, para. 19; Krnojelac Appeal Judgement, para. 11; Aleksovski Appeal Judgement, para. 63; Musema Appeal Judgement, para. 18.
27. Kvocka Appeal Judgement, para. 19, citing Kupreskic Appeal Judgement, para. 30. See also Kordic Appeal Judgement, para. 19, fn. 11; Blaskic Appeal Judgement, paras 17-18.
28. Kajelijeli Appeal Judgement, para. 6, referring to Niyitegeka Appeal Judgement, para. 9. See also Blaskic Appeal Judgement, para. 13; Rutaganda Appeal Judgement, para. 18.
29. Kajelijeli Appeal Judgement, para. 6, referring to Blaskic Appeal Judgement, para. 13; Niyitegeka Appeal Judgement, para. 9; Rutaganda Appeal Judgement, para. 18.
30. Practice Direction on Formal Requirements for Appeals from Judgement (IT/201) of 7 March 2002, para. 4(b). See also : Blaskic Appeal Judgement, para. 13; Vasiljevic Appeal Judgement, para. 11; Kajelijeli Appeal Judgement, para. 7; Niyitegeka Appeal Judgement, para. 10; Rutaganda Appeal Judgement, para. 19; Kayishema and Ruzindana Appeal Judgement, para. 137.
31. Kajelijeli Appeal Judgement, para. 7, referring to Blaskic Appeal Judgement, para. 13; Vasiljevic Appeal Judgement, para. 12; Kunarac Appeal Judgement, paras 43, 48; Niyitegeka Appeal Judgement, para. 10.
32. Kunarac Appeal Judgement, para. 47; Kajelijeli Appeal Judgement, para. 8.
33. Kajelijeli Appeal Judgement, para. 8, referring to Blaskic Appeal Judgement, para. 13; Vasiljevic Appeal Judgement, para. 12; Kunarac Appeal Judgement, para. 48; Niyitegeka Appeal Judgement, para. 11; Rutaganda Appeal Judgement, para. 19.
34. Trial Judgement, para. 545.
35. Trial Judgement, para. 546.
36. Trial Judgement, para. 553.
37. Prosecution Appeal Brief, paras 4.3-4.10.
38. See Jelisic Trial Judgement, para. 71.
39. Prosecution Appeal Brief, paras 4.3-4.4.
40. Prosecution Appeal Brief, paras 4.7-4.8, citing Krstic Trial Judgement, para. 557; Rutaganda Trial Judgement, para. 56.
41. Prosecution Appeal Brief, para. 4.6, citing Commission of Experts Report, para. 96.
42. Prosecution Appeal Brief, para. 4.9.
43. Stakic Response Brief, paras 167 -169.
44. Stakic Response Brief, para. 169.
45. Stakic Response Brief, para. 170, citing Akayesu Trial Judgement, para. 519, citing UN GAOR 6th Committee, 72nd Meeting (1948), p. 87, statement of the Representative of Brazil: “[G]enocide [is] characterised by the factor of particular intent to destroy a group. In the absence of that factor, whatever the degree of atrocity of an act and however similar it might be to the acts described in the convention, that act could still not be called genocide.”
46. Stakic Response Brief, para. 152.
47. Trial Judgement, para. 512.
48. Trial Judgement, para. 512.
49. Jelisic Trial Judgement, para. 71.
50. Trial Judgement, para. 512, citing Jelisic Trial Judgement, para. 71.
51. Brdjanin Trial Judgement, paras 685-686.
52. Article 4(2) of the Statute (emphasis added).
53. Raphaël Lemkin, Axis Rule in Occupied Europe (1944), p. 79.
54. Raphaël Lemkin, Axis Rule in Occupied Europe (1944), p. 79.
55. Raphaël Lemkin, Axis Rule in Occupied Europe (1944), p. 79.
56. Raphaël Lemkin, Axis Rule in Occupied Europe (1944), p. 79.
57. UN G.A. Res. 96(I) (1946).
58. See UN GAOR 6th Committee, 73rd Meeting (1948), p. 91 (statement of the Representative of the United States ) (observing that genocide is “the denial of the right to live of entire human groups”); UN GAOR 6th Committee, 73rd Meeting (1948), p. 92 (statement of the Representative of the United Kingdom) (stating that the Genocide Convention should bar only destruction of “human groups”); UN GAOR 6th Committee, 73rd Meeting (1948), p. 96 (statement of the Representative of the Union of Soviet Socialist Republics) (stating that “Genocide SiCs a crime aimed at the physical destruction, in whole or in part, of definite groups”).
59. UN GAOR 6th Committee, 73rd Meeting (1948), p. 96 (statement of the Representative of the Union of Soviet Socialist Republics); see also UN GAOR 6th Committee, 74th Meeting (1948), p. 99 (statement of the Representative of Iran) (noting that “[c]ertain States feared … the inclusion of political groups” and preferred to protect only “groups, membership of which was inevitable”); UN GAOR 6th Committee, 74th Meeting (1948), p. 105 (statement of the Representative of the Union of Soviet Socialist Republics) (stating the Soviet view that the “criterion must be of an objective character”).
60. Whitaker Report, para. 32.
61. Whitaker Report, para. 32.
62. See, e.g., Whitaker Report, para. 33.
63. See Report of the ILC on its 43rd Sess., p. 102 (noting that one element of genocide is the intent “to destroy, in whole or in part, one of the groups protected by the” Genocide Convention); Report of the ILC on its 48th Sess., p. 88 (noting that genocide requires intent “to destroy a group and not merely one or more individuals who are coincidentally members of a particular group”).
64. 1978 ECOSOC Genocide Study, para. 56.
65. 1978 ECOSOC Genocide Study, para. 59.
66. 1978 ECOSOC Genocide Study, para. 78, citing Antonio Planzer, Le crime de génocide (thesis) (St. Gallen, F. Schwald A.G.) (1956), p. 98).
67. Rutaganda Trial Judgement, paras 56-57.
68. In the Musema Trial Judgement, para. 162, the Trial Chamber stated that “a subjective definition alone is not enough”. In the Semanza Trial Judgement, para. 317, the Trial Chamber held that “the determination of whether a group” can be defined as a target group “ought to be assessed … by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators ” (emphasis in original). In the Bagilishema Trial Judgement, para. 65, the Trial Chamber was even more explicit, noting that the concept of a national, ethnical, racial, or religious group “must be assessed in light of a particular political, social, historical, and cultural context,” and that membership in “the targeted group must be an objective feature of the society in question”.
69. Commission of Experts Report, para. 96.
70. Prosecution Appeal Brief, para. 4.11.
71. Prosecution Appeal Brief, para. 4.12, citing Trial Judgement, para. 522, Semanza Trial Judgement, para. 316.
72. Prosecution Appeal Brief, paras 4.13-4.14.
73. Prosecution Appeal Brief, para. 4.15. In addition to citing findings made in the Trial Judgement, the Prosecution points out that the Trial Chamber’s Rule 98bis Decision found that there was “ample evidence that could lead a reasonable trier of fact to the conclusion that there were targeted killings of Bosnian Muslims and Bosnian Croats as ethnical /national groups.” Prosecution Appeal Brief, para. 4.15, citing Rule 98bis Decision, para. 31.
74. Prosecution Appeal Brief, para. 4.19, citing Trial Judgement, paras 548, 819.
75. Prosecution Appeal Brief, para. 4.18, citing Trial Judgement, paras 404, 497, 614, 825.
76. Prosecution Appeal Brief, para. 4.17, citing Trial Judgement, paras 52, 105-107.
77. Prosecution Appeal Brief, para. 4.19, citing Trial Judgement, paras 320, 691.
78. Prosecution Appeal Brief, para. 4.17, citing Trial Judgement, para. 473.
79. Prosecution Appeal Brief, para. 4.17, citing Trial Judgement, paras 278, 284-285, 288, 303-304, 809, 811-812.
80. Prosecution Appeal Brief, para. 4.16, citing Trial Judgement, paras 269, 653.
81. Prosecution Appeal Brief, para. 4.17, citing Trial Judgement, para. 307.
82. Prosecution Appeal Brief, para. 4.16, citing Trial Judgement, para. 162, 188, 233, 238, 807, 821.
83. Prosecution Appeal Brief, para. 4.21, citing Trial Judgement, paras 706, 712.
84. Prosecution Appeal Brief, para. 4.20, citing Witness M/Ex. S39 (Rule 92bis Statement), ERN 0102-8891 (second ellipsis in original). The Trial Chamber explained that, after it occupied “the Kingdom of Yugoslavia in 1941, the German Nazi regime created the ‘Independent State of Croatia’, headed by an anti-Serb Ustasa regime. Allied with Germany and Italy, Croatian fascists (Ustasas) fought both Serb monarchists (Cetniks) and communists (Tito’s partisans)” (Trial Judgement, para. 23). The Trial Chamber cited the term “Ustasa” as an example of derogatory language used by Radio Prijedor when referring to non-Serbs (Trial Judgement, para. 105).
85. Prosecution Appeal Brief, para. 4.20, citing Witness M/Ex. S39 (Rule 92bis Statement), ERN 0102-8893.
86. Prosecution Appeal Brief, para. 4.20, citing Witness M/Ex. S39 (Rule 92bis Statement), ERN 0102-8894.
87. Prosecution Appeal Brief, para. 4.22.
88. Stakic Response Brief, paras 176 -184.
89. Stakic Response Brief, paras 150 -156.
90. Stakic Response Brief, paras 157 - 159.
91. Trial Judgement, para. 545.
92. Trial Judgement, para. 545.
93. Trial Judgement, para. 545.
94. See Vasiljevic Appeal Judgement, paras 120, 128, 131.
95. Trial Judgement, paras 269, 278, 284-285, 288, 303-304, 809, 811-812.
96. Trial Judgement, paras 320, 691 (emphasis added).
97. Stakic Response Brief, para. 157 ; Prosecution Reply Brief, para. 3.8; see also Rule 98bis Decision para. 136.
98. Trial Judgement, para. 545.
99. Trial Judgement, para. 553.
100. Trial Judgement, para. 553.
101. Trial Judgement, paras 530, 558.
102. See Brdjanin Decision on Interlocutory Appeal, paras 9-10.
103. Prosecution Reply Brief, para. 1.10.
104. Prosecution Appeal Brief, paras 3.119-3.121.
105. Trial Judgement, paras 553-557.
106. Ex. S434.
107. Ewa Tabeau, T. 8414-8417.
108. Trial Judgement, para. 553, (emphasis added).
109. Trial Judgement, para. 553, (emphasis in original).
110. Ex. S166; Charles McLeod, T. 5130, T. 5161-5162.
111. Prosecution Appeal Brief, paras 3.71-3.77.
112. Stakic Response Brief, paras 105-111.
113. Stakic Response Brief, paras 33-57.
114. See Jelisic Appeal Judgement, para. 49; Tadic Appeal Judgement, para. 269.
115. Prosecution Appeal Brief, paras 3.88-3.105.
116. See Prosecution Appeal Brief, paras 3.99-3.104.
117. See, e.g., Ntakirutimana Appeal Judgement, para. 397.
118. Stakic Response Brief, paras 125-149.
119. See Stakic Response Brief, paras 127(n), 134, 136, 147 (describing evidence indicating the Appellant made peaceful statements).
120. Stakic Response Brief, paras 127(b), 127(c), 127(h), 127(i).
121. Ex. S187, p. 5; T. 5692.
122. Ex. S365-1, p. 4.
123. The Appeals Chamber does not agree with the Prosecution’s rather strained contention that the Appellant’s denials that genocide was occurring constituted evidence of his genocidal intent. The Trial Chamber could just as reasonably have concluded that the denials reflected a desire not to receive unwarranted blame.
124. Prosecution Appeal Brief, paras 2.22, 3.11-3.12, 3.69, 3.126.
125. Prosecution Appeal Brief, para. 3.15
126. Prosecution Appeal Brief, paras 3.16 (h), (i), 3.18-3.24, 3.47-3.55.
127. Prosecution Appeal Brief, paras 3.25-3.46.
128. Prosecution Appeal Brief, paras 3.60-3.67.
129. Stakic Response Brief, paras 20, 30, 79-82.
130. Stakic Response Brief, para. 30.
131. Stakic Response Brief, para. 87.
132. Stakic Response Brief, para. 122.
133. Stakic Response Brief, paras 89-99.
134. Stakic Response Brief, para. 95, citing Brdanin Rule 98bis Decision, para. 14.
135. Stakic Response Brief, para. 92.
136. Stakic Response Brief, paras 87(a), (b), (c), (g), (h).
137. Indictment, para. 26: “Milomir STAKIC participated in the joint criminal enterprise, in his roles as set out … above. The purpose of the joint criminal enterprise was the permanent forcible removal of Bosnian Muslim and Bosnian Croat inhabitants from the territory of the planned Serbian state, including a campaign of persecutions through the commission of the crimes alleged in Counts 1 to 8 of the Indictment.” See also paras 25, 27 –29. The Trial Chamber noted that “[t]he Prosecution … pleaded all three categories of joint criminal enterprise in relation to all the Counts charged in the Indictment ”, Trial Judgement, para. 427.
138. See Prosecution Final Trial Brief, para. 82.
139. Trial Judgement, paras 431-436.
140. Trial Judgement, para. 441.
141. Trial Judgement, para. 438.
142. Trial Judgement, paras 468-498.
143. Order for the Preparation of the Appeal Hearing, 26 September 2005, para. 5.
144. AT. 230-236.
145. AT. 302.
146. AT. 302, 303, 308, referring to pp. 42-66 of the Prosecution Final Trial Brief.
147. AT. 300-302
148. Tadic Appeal Judgement, para. 220.
149. See Kvocka Appeal Judgement, para. 79; Vasiljevic Appeal Judgement, para. 95; Krstic Appeal Judgement, paras 79–134; Ojdanic Decision on Jurisdiction, paras 20, 43; Furundzija Appeal Judgement, para. 119; Krnojelac Appeal Judgement paras 29-32; Celebici Appeal Judgement, para. 366; Tadic Appeal Judgement, para. 220, Prosecutor v. Radoslav Brdanin & Momir Talic, Case No: IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 24; Babic Judgement on Sentencing Appeal, paras 27, 38, 40.
150. Prosecution’s Final Pre-Trial Brief, (Revised April 2002), 5 April 2002, paras 3, 4, 13, 20, 21, 82, 98, 125.
151. Vasiljevic Appeal Judgement, paras 96-99; see also Tadic Appeal Judgement, paras 195-225; Krnojelac Appeal Judgement, paras 83-84.
152. Tadic Appeal Judgement, para. 227.
153. Tadic Appeal Judgement, para. 227.
154. Tadic Appeal Judgement, para. 227.
155. Tadic Appeal Judgement, para. 227.
156. Tadic Appeal Judgement, para. 228.
157. Tadic Appeal Judgement, paras 202-203.
158. Tadic Appeal Judgement, para. 228.
159. Tadic Appeal Judgement, para. 204.
160. Tadic Appeal Judgement, para. 228 (emphasis in original). See also Kvocka Appeal Judgement, para. 83.
161. Tadic Appeal Judgement, para. 220.
162. Indictment, para. 28.
163. Indictment, para. 29.
164. Kvocka Appeal Judgement, para. 42.
165. Indictment, para. 27.
166. See Section V.C(1)(b) infra.
167. Trial Judgement, para. 469.
168. Trial Judgement, para. 87.
169. Trial Judgement, paras 64, 87.
170. Indictment, para. 26.
171. Indictment, para. 23.
172. Trial Judgement, para. 475. See also Trial Judgement, paras 470, 471, 479, 496, 629.
173. Trial Judgement, para. 818
174. Trial Judgement, para. 819.
175. Trial Judgement, para. 706.
176. Vasiljevic Appeal Judgement, para. 100.
177. Indictment, para. 26.
178. The name change from the Crisis Staff to War Presidency took place on 31 May 1992. (Trial Judgement, para. 98).
179. Indictment, para. 22.
180. Indictment, para. 24.
181. Indictment, para. 25.
182. Trial Judgement, para. 336.
183. Trial Judgement, para. 822.
184. Trial Judgement, para. 823.
185. Trial Judgement, para. 400. See also Trial Judgement, para. 595 “…Sthe AppellantC actively participated in and threw the full support of the civilian authorities behind the decision to establish the infamous Keraterm, Omarska, and Trnopolje camps.”
186. Trial Judgement, para. 601. See also Trial Judgement, para. 479, “The response to the incidents at Hambarine and Kozarac in late May 1992 heralded the first in a series of measures taken by the Crisis Staff, in co-operation with the military and the police, to rid the municipality of non-Serbs.”
187. See Section VIII.C.2(c ) infra.
188. Indictment, para. 26.
189. Trial Judgement, para. 364.
190. Trial Judgement, para. 477.
191. Trial Judgement, para. 377.
192. Trial Judgement, para. 593, ( citations omitted).
193. Trial Judgement, para. 498.
194. Trial Judgement, para. 823.
195. Trial Judgement, para. 826. See also Trial Judgement, para. 818.
196. See Section VIII.C.2(c ) infra.
197. Trial Judgement, para. 712.
198. Trial Judgement, paras 488, 712, 774-816, 818, 823, 826.
199. Trial Judgement, para. 632.
200. Trial Judgement, paras 651-655.
201. Trial Judgement, para. 654.
202. This Common Purpose was the establishment of Serb power in the Municipality of Prijedor through deportations, forcible transfers and a campaign of persecutions.
203. Trial Judgement, para. 496.
204. Trial Judgement, para. 595.
205. Trial Judgement, para. 598.
206. Trial Judgement, para. 599.
207. Trial Judgement, para. 600.
208. Trial Judgement, para. 600.
209. Trial Judgement, para. 601.
210. Trial Judgement, para. 600.
211. Trial Judgement, para. 603.
212. Trial Judgement, para. 615.
213. Trial Judgement, para. 616.
214. Trial Judgement, para. 656.
215. Trial Judgement, para. 661.
216. Trial Judgement, para. 661.
217. Stakic Appeal Brief, paras 274, 322, 336, 351; Stakic Reply Brief, para. 116.
218. Stakic Appeal Brief, paras 272, 322; Stakic Reply Brief, para. 115.
219. Ojdanic Decision on Jurisdiction, paras 34 et seq.
220. See also Krnojelac Appeal Judgement, para. 29.
221. Ojdanic Decision on Jurisdiction, para. 21.
222. Ojdanic Decision on Jurisdiction, para. 41.
223. Tadic Appeal Judgement, para. 220.
224. Ojdanic Decision on Jurisdiction, para. 28.
225. See Section VIII.C.2(c ) infra.
226. Stakic Appeal Brief, paras 1- 24, 32-40, 47-54. In his Reply Brief, the Appellant alleges that the Trial Judgement convicted him for “conduct and actions outside the period of the indictment”, Stakic Reply Brief, para. 15.
227. Stakic Appeal Brief, para. 26.
228. Stakic Appeal Brief, paras 41 -43.
229. Stakic Appeal Brief, para. 16.
230. Stakic Appeal Brief, para. 18, referring to T. 1521 et seq. See also Stakic Reply Brief, para. 3.
231. Motion Objecting to the Form of the Third Amended Indictment, 27 March 2002; see the discussion below regarding the history of the third Indictment against the Appellant.
232. The Third Amended Indictment was filed as an annex to the Prosecution's Request for Leave to Amend the Indictment, 28 February 2002. The Trial Chamber granted the Request in its Decision on Prosecution’s Motion for Leave to Amend the Indictment, 4 March 2002, and the Third Amended Indictment was accepted.
233. Stakic Appeal Brief, para. 18, referring to T. 1535.
234. Prosecutor v. Milomir Stakic, Case No. IT-97-24-PT, Second Amended Indictment, filed 27 November 2001 (“Second Amended Indictment”), para. 56(a).
235. Prosecution Response Brief, para. 2.2, fn. 38.
236. Prosecution Response Brief, para. 2.3, fn. 41.
237. T. 1535 (emphasis added).
238. T. 1535.
239. T. 1536.
240. T. 1536 (emphasis added).
241. T. 1536. (emphasis added).
242. T. 1536 (emphasis added).
243. T. 1536.
244. Stakic Reply Brief, para. 3.
245. Stakic Appeal Brief, para. 24 ; Stakic Reply Brief, para. 3.
246. Trial Judgement, para. 19.
247. Stakic Appeal Brief, para. 33. The Appeals Chamber notes that the Appellant appears to include as “acts” outside the temporal scope of the Indictment both “material facts” (for example see Stakic Appeal Brief, paras 4-5, 33) and “evidence” (Stakic Appeal Brief, paras 6, 11, 36, 47-51).
248. Trial Judgement, para. 6 (footnote omitted).
249. Trial Judgement, para. 341.
250. Stakic Appeal Brief, para. 52, referring to Trial Judgement, para. 117, citing Ex. S268. The Appellant cites in his brief another report by Simo Drljaca (Ex. S353). However, the Appeals Chamber notes that this report is dated 16 August 1992 and is thus within the temporal scope of the Indictment.
251. Stakic Appeal Brief, para. 53, referring to Ex. S376.
252. Stakic Appeal Brief, para. 54, referring to Trial Judgement, para. 927, citing Ex. S187.
253. Stakic Appeal Brief, para. 48, fn. 42, referring to T.13098.
254. Stakic Appeal Brief, paras 48 -49.
255. Stakic Appeal Brief, para. 51, fn. 44, referring to Trial Judgement 329, citing Ex. D43-1.
256. Stakic Appeal Brief, para. 51, fn. 44, referring to Trial Judgement 366, citing Ex. D92-99.
257. Stakic Appeal Brief, para. 51, fn. 44, referring to Trial Judgement 368 (see Ex. S274).
258. Prosecution Response Brief, para. 2.7.
259. Prosecution Response Brief, para. 2.3.
260. Prosecution Response Brief, para. 2.7.
261. Specifically, the Prosecution states that the common goal was pleaded in the Indictment, paras 5, 8, 26, 27; the Appellant’s authority and role prior to 30 April 1992 are detailed in the Indictment, paras 17, 21, 22-25, 30, 31, 38; the Serbian Assembly of 7 January 1992 is outlined in the Indictment, para. 7. Prosecution Response Brief, para. 2.4.
262. Prosecution Response Brief, para. 2.4.
263. Kupreskic Appeal Judgement, para. 88.
264. Kupreskic Appeal Judgement, para. 88.
265. Kupreskic Appeal Judgement, para. 89.
266. Stakic Appeal Brief, para. 37.
267. Kvocka Appeal Judgement, para. 42.
268. The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Form of the Second Amended Indictment, 11 May 2000, paras 15-16.
269. A review of paras 17, 21, 22- 25 and 30 of the Indictment read in light of the time-period set out in paras 40, 53 and 57, shows that the Appellant’s participation in the joint criminal enterprise was based on his multi-faceted role during the relevant time-period of the Indictment.
270. See also Kupreskic Appeal Judgement, para. 31, citing Rule 89(C) and 89(D).
271. Stakic Appeal Brief, para. 52.
272. Trial Judgement, para. 117.
273. T. 7037, 27 August 2002. (Judge Schomburg: “But you agree that this report covers […] the period of time covered as well by the Indictment, the last nine months of 1992?”; Mr. Ostojic: “It certainly seems to suggest that, yes, Your Honour.”)
274. Ex. S187, p. 5. The Trial Chamber held that the interview took place toward the end of 1992 (see Trial Judgement, paras 497, 698). The Appellant dates the interview December 1992 or early 1993 (Stakic Appeal Brief, para. 54).
275. A third reference to the statement is made with regard to the crime of genocide, but in this case the Trial Chamber did not attach any probative value to it. See Trial Judgement, para. 554.
276. Trial Judgement, paras 825-826.
277. Trial Judgement, para. 927, referring to Ex. S187.
278. Ex. S187, p. 5 (emphasis added ).
279. Trial Judgement, para. 371.
280. Trial Judgement, paras 86, 92.
281. T. 7038.
282. Stakic Appeal Brief, para. 11.
283. Stakic Appeal Brief, para. 26.
284. T. 2125.
285. T. 2127-2128 (emphasis added).
286. Stakic Appeal Brief, paras 11, 50, 55.
287. Kordic Appeal Judgement, para. 19, fn. 11; Kupreskic Appeal Judgement, para. 32.
288. Stakic Appeal Brief, para. 25.
289. T. 2123-2125.
290. T. 2125.
291. T. 2127–2128 (emphasis added).
292. Stakic Appeal Brief, para. 41, referring to Trial Judgement, paras 912-913.
293. Stakic Appeal Brief, para. 42, referring to the Trial Judgement, para. 370.
294. Stakic Appeal Brief, paras 43 -45.
295. Prosecution Response Brief, para. 2.3.
296. Prosecution Response Brief, para. 2.4.
297. Kupreskic Appeal Judgement, para. 376.
298. Stakic Appeal Brief, paras 60 -88.
299. Stakic Appeal Brief, paras 89 -159.
300. Stakic Appeal Brief, paras 160 -169.
301. Stakic Appeal Brief, paras 170 -177.
302. Stakic Appeal Brief, paras 178 -186.
303. Stakic Appeal Brief, paras 187 -192.
304. Stakic Appeal Brief, paras 193 -204.
305. Stakic Appeal Brief, paras 64, 88, 186.
306. Stakic Appeal Brief, paras 64, 88, 147, 156, 169, 186, 192, 195, 204.
307. Stakic Appeal Brief, paras 156, 186, 195.
308. During oral argument before the Appeals Chamber, the Appellant presented several new citations to the record to support his arguments, in essence supplementing the arguments made in his Appeal Brief. This is not proper procedure, as the Prosecution did not have the opportunity to respond to this new information (see Rule 111). Further, as the additional citations are to the record, it is clear that all of the additional information provided was available to the Appellant at the time his appeal brief was due. However, the Appeals Chamber will consider these citations to the extent that they were clearly connected to an argument made in his Appeal Brief. Where mere citations were presented without argument, however, the Appeals Chamber cannot construct the argument sua sponte, and accordingly dismisses these submissions as unfounded. See Kvocka Appeal Judgement, para. 15.
309. Stakic Appeal Brief, para. 60.
310. Stakic Appeal Brief, para. 61.
311. Stakic Reply Brief, para. 32, see also Stakic Appeal Brief, para. 61.
312. Stakic Appeal Brief, para. 65.
313. Stakic Appeal Brief, para. 66, fns 60-62.
314. Stakic Appeal Brief, para. 68, fn. 63.
315. Stakic Appeal Brief, para. 84. See also paras 79-84.
316. Stakic Appeal Brief, paras 85 -88.
317. Stakic Appeals Brief, paras 112 -113.
318. Stakic Appeal Brief, paras 113 -117; Stakic Decision on Request for Approval of Defence Experts.
319. Prosecution Response Brief, para. 3.4, citing Celebici Decision on the Motion by the Prosecution to Allow the Investigators to Follow the Trial During the Testimonies of the Witnesses, 20 March 1997, para. 10.
320. Prosecution Response Brief, paras 3.5, 3.8, 3.23.
321. Prosecution Response Brief, para. 3.23.
322. See Tadic Appeal Judgement, paras 44, 56; Celebici Decision on the Prosecution’s Motion for an Order requiring Advance Disclosure of Witnesses by the Defense, 4 February 1998, para. 49.
323. Oric Decision on Length of Defence Case, para. 7.
324. Oric Decision on Length of Defence Case, para. 7; Kayishema and Ruzindana Appeal Judgement, para. 69.
325. Oric Decision on Length of Defence Case, paras 7-9.
326. Rule 65ter(G). In addition, the party offering an expert must disclose the expert’s statement within the time limit set by the Pre-Trial Judge – generally done before the opening of a party’s case – and then the opposing party must challenge the expert within 30 days or such other time as prescribed by the Trial Chamber (Rule 94bis).
327. The Defence submission requested the following experts, among others: (1) Academic Historians, (2) Constitutional Law Expert, (3) Demographer, (4), Police Experts, (5) Military Expert, (6) Handwriting Expert, (7) “Journalistic Ethics.”
328. Request for Approval of Defence Experts, 2 October 2002, p. 2.
329. Stakic Decision on Request for Approval of Defence Experts, p. 3.
330. Order for Defense to File More Information On Its Rule 65ter(G) Witnesses, 8 November 2002, p. 4.
331. T. 9408, 25 November 2002.
332. Stakic Appeal Brief, para. 90.
333. Stakic Appeal Brief, para. 109.
334. Stakic Appeal Brief, paras 99 -101; Stakic Reply Brief, para. 44.
335. Stakic Appeal Brief, para. 103.
336. Stakic Appeal Brief, paras 146 -47.
337. T. 9440.
338. See Trial Judgement, para. 387 (stating that Mr. Ten Camp had identified the possible author of a document ).
339. Stakic Appeal Brief, para. 123.
340. Stakic Appeal Brief, para. 124.
341. Stakic Appeal Brief, para. 127.
342. Black’s Law Dictionary (8th ed. 2004).
343. Trial Judgement, paras 469, 470, 472, 473, 477, 479, 482, 488.
344. Stakic Appeal Brief, paras 131 -134.
345. T. 9440.
346. Stakic Appeal Brief, para. 140.
347. T. 9421.
348. Judge Schomburg stated, “we don’t want to rely on demographics, … it doesn’t make any sense for the purposes we have before us, especially to count 1 and 2, and please take it that it’s not relevant.” T. 9525.
349. Stakic Appeal Brief, paras 138 -143.
350. Stakic Appeal Brief, para. 87, citing T. 8042.
351. Stakic Appeal Brief, para. 150, see also paras 88, 149.
352. Stakic Reply Brief, paras 52- 53.
353. The trial transcript shows that the Prosecution had discussed the possibility of Vulliamy testifying as an expert in the case against Dusko Tadic, not in the case against the Appellant.
354. T. 7939-7949, 7953- 7963, 7981 -7988, 8011, 8079-8080.
355. T. 7898-7904.
356. Ex. D25. See the discussion of this Ex. D25 in Section VIII.A infra.
357. T. 8053-8060.
358. Kajelijeli Appeal Judgement, para. 8. See also, Niyitegeka Appeal Judgement, para. 11; Ntakirutimana Appeal Judgement, para. 15; Rutaganda Appeal Judgement, para. 19; Kunarac Appeal Judgement, para. 47.
359. Kvocka Appeal Judgement, para. 15, citing Kunarac Appeal Judgement, para. 98; Krnojelac Appeal Judgement, para. 16; Blaskic Appeal Judgement, para. 13; Kordic Appeal Judgement, paras 21-23.
360. T. 9440-9441.
361. Trial Judgement, paras 129-334.
362. T. 9442.
363. Stakic Appeal Brief, paras 85, 86.
364. T. 7445.
365. T. 7446.
366. T. 7655.
367. Stakic Appeal Brief, para. 152.
368. Stakic Appeal Brief, para. 155, referring to the Dragan Nikolic Sentencing Judgement, paras 280, 282.
369. Prosecution Response Brief, para. 3.43.
370. Prosecution Response Brief, para. 3.44.
371. Prosecution Response Brief, para. 3.46.
372. T. 9424-9426.
373. Stakic Appeal Brief, para. 161.
374. Stakic Appeal Brief, para. 164, citing Defence Motion for Mistrial, 15 November 2002.
375. Stakic Appeal Brief, paras 166, 168, 169; Stakic Reply Brief, para. 63.
376. After the close of its case, the Prosecution turned over summaries of exculpatory portions of 35 witness statements to the Defence. It claims that the disclosure delay was not due to malice, but “ oversight” (Prosecution Response Brief, paras 3.49, 3.55). The Trial Chamber then ordered the disclosure of the witnesses’ full interview transcripts (Prosecution Response Brief, para. 3.49).
377. Prosecution Response Brief, para. 3.48.
378. Prosecution Response Brief, para. 3.48, referring to Decision on Rule 98bis Motion for Judgement of Acquittal, 31 October 2002; T. 9438.
379. T. 9436-9439; Prosecution Response Brief, paras 3.51-3.52; see Prosecutor v. Furundzija, IT-95-17-T, Decision, 16 July 1998, para. 21; see also Prosecutor v. Radislav Brdanin, Case No. IT-99-36-T, Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to be Imposed pursuant to Rule 68bis and Motion for Adjournment While Matters Affecting Justice and a Fair Trial can be Resolved ”, 30 October 2002, para. 26.
380. Prosecution Response Brief, para. 3.50.
381. Prosecution Response Brief, para. 3.53.
382. Stakic Reply Brief, para. 64; Krstic Appeal Judgement, para. 215. The Appellant states that because he was found guilty as an “indirect co-perpetrator,” the Prosecution has a duty to produce Rule 68 materials that refer not only to him, but also to his co-perpetrators (Stakic Reply Brief, paras 63-64). The Appeals Chamber has refused to permit this ground of appeal because it was raised for the first time in the Appellant’s Reply Brief. See Decision on Prosecution’s Motion to Disallow a Ground of Appeal and to File a Further Response, 20 July 2004, para. 9.
383. Decision on Prosecution’s Motion to Disallow a Ground of Appeal and to File a Further Response, para. 9.
384. See Prosecutor v. Kordic and Cerkez, Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001; Prosecutor v Tihomir Blaskic, Appeals Chamber Decision on the Appellant’s Motion for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000, para. 42; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-PT, Decision on the Production of Discovery Materials, 27 January 1997, para. 22; Prosecutor v. Jean Bosco Barayagwiza, Case No. ICT-97-19, Decision (Prosecutor’s Request for Review of Reconsideration – Separate Opinion of Judge Shahabuddeen), 31 March 2000, para. 68.
385. Krstic Appeal Judgement, para. 180.
386. Prosecution Response Brief, para. 3.51.
387. Blaskic Appeal Judgement, para. 268; Krstic Appeal Judgement, para. 153; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-PT, Decision on the Appellant’s Motion for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, Appeals Chamber, 26 September 2000, para. 38.
388. Prosecution Response Brief, para. 3.54.
389. Krstic Appeal Judgement, para. 187. The Appeals Chamber notes that in Krstic the Prosecution’s disclosures were made, in some cases, over two years after the Prosecution came into possession of the evidence and over three months after the trial had begun (Krstic Appeal Judgement, para. 196).
390. See Furund‘ija Trial Judgement, para. 22 (referring to a previous oral order in that case).
391. T. 9630-9634, 9710-9712, 9889 -9890, 9893.
392. Stakic Appeal Brief, para. 174, citing T. 12162-12168 (private session).
393. Stakic Appeal Brief, paras 175, 176, citing Rule 92bis A(i)(a)(emphasis added).
394. Stakic Appeal Brief, para. 176.
395. Prosecution Response Brief, para. 3.60.
396. Prosecution Response Brief, para. 3.60.
397. Prosecution Response Brief, para. 3.60.
398. Prosecution Response Brief, para. 3.61, citing Trial Judgement para. 927.
399. Prosecution Response Brief, para. 3.61, citing Trial Judgement, para. 926; Kunarac Appeal Judgement, para. 33.
400. T. 12150-12177 (private session).
401. T. 12078.
402. Stakic Appeal Brief, para. 178.
403. Stakic Appeal Brief, para. 183.
404. Stakic Appeal Brief, para. 185.
405. Prosecution Response Brief, para. 3.64.
406. Trial Judgement, para. 128.
407. Trial Judgement, para. 244.
408. Trial Judgement, para. 263.
409. Trial Judgement, paras 141, 610.
410. Trial Judgement, para. 244.
411. Trial Judgement, para. 288.
412. Trial Judgement, para. 167.
413. Trial Judgement, para. 235.
414. Trial Judgement, para. 240.
415. Trial Judgement, paras 224, 238.
416. Trial Judgement, paras 206, 212, 224.
417. Trial Judgement, para. 210.
418. Trial Judgement, paras 230, 232, 289.
419. Trial Judgement, para. 238.
420. Trial Judgement, para. 269.
421. Trial Judgement, para. 273.
422. Trial Judgement, para. 304.
423. Trial Judgement, para. 167.
424. Trial Judgement, para. 199.
425. Trial Judgement, para. 168.
426. Trial Judgement, paras 197, 245.
427. Trial Judgement, para. 226.
428. Trial Judgement, para. 476.
429. Trial Judgement, para. 781.
430. T. 9832, 9838, 10379, 10444-10445, 11069, 11086.
431. Stakic Appeal Brief, para. 187, fn. 219, 190.
432. Stakic Appeal Brief, para. 191.
433. Prosecution Response Brief, para. 3.69.
434. Prosecution Response Brief, para. 3.72; reasons for Rule 91 warnings found in para. 3.74, fn. 250.
435. Prosecution Response Brief, para. 3.71.
436. Moreover, Rule 91 makes clear that a Trial Chamber need not have strong grounds to believe that a witness has testified falsely in order to issue a warning, for if a Trial Chamber does have such grounds, the Rule empowers it to go beyond a mere warning and authorise an investigation or prosecution.
437. The Appellant refers in particular to the following witnesses: Murselovic, Sivac, Mujadic, Kuruzovic, and Karagic (Stakic Appeal Brief, para. 193).
438. Stakic Appeal Brief, para. 193.
439. Kordic Appeal Judgement, fn. 12.
440. Stakic Appeal Brief, paras 196 -199.
441. Stakic Appeal Brief, para. 200.
442. T.11557, 11594–11595.
443. Prosecution Response Brief paras 3.82-3.83.
444. T. 11556-11558.
445. Stakic Appeal Brief, paras 201, 202.
446. Stakic Appeal Brief, paras 201, 202.
447. Prosecution Response Brief, para. 3.87, citing T. 12386-87.
448. Stakic Appeal Brief, paras 201 -204.
449. Stakic Appeal Brief, para. 205.
450. Stakic Appeal Brief, para. 205 ; Stakic Reply Brief, para. 72.
451. Stakic Appeal Brief, paras 206 -207.
452. Stakic Appeal Brief, para. 206, fn. 245.
453. Stakic Appeal Brief, heading 3 following para. 209.
454. Stakic Appeal Brief, paras 215, 221, 226, 357, 373.
455. Stakic Appeal Brief, paras 220 -228.
456. Stakic Appeal Brief, paras 229 -230.
457. Stakic Appeal Brief, heading 4 following para. 231, citing Trial Judgement, paras 469-472.
458. Stakic Appeal Brief, paras 232 -249.
459. Stakic Appeal Brief, para. 232.
460. Stakic Appeal Brief, paras 237 -241, referring to Ex. SK39.
461. Stakic Appeal Brief, paras 242 -243. The Appellant then offers a “more reasonable explanation for the take-over of Prijedor,” which presents him as an uninformed civilian leader, who did not know about any atrocities and acted only in accordance with the existing laws, paras 244-245.
462. Stakic Appeal Brief, para. 249, citing Trial Judgement, para. 472.
463. Stakic Reply Brief, paras 71, 77-78.
464. Stakic Reply Brief, para. 73.
465. Prosecution Response Brief, para. 4.12.
466. Prosecution Response Brief, paras 4.4, 4.16.
467. Prosecution Response Brief, para. 6.68. This argument is made only with reference to murder pursuant to Article 3.
468. Vasiljevic Appeal Judgement, para. 120; Ntakirutimana Appeal Judgement, para. 171; Semanza Trial Judgement, para. 148; Musema Trial Judgement, para. 108; Celebici Trial Judgement, para. 601.
469. Kupreskic Appeal Judgement, para. 303; Kordic Appeal Judgement, para. 834.
470. Celebici Appeal Judgement, para. 458; Krnojelac Trial Judgement, para. 67. With respect to a Trial Chamber’s findings of fact on which the conviction does not rely, the Appeals Chamber will defer to the findings of the Trial Judgement where such findings are reasonable.
471. Celebici Appeal Judgement, para. 458; Kvocka Appeal Judgement, para. 18.
472. The Accused must present clearly and in detail any such alternative inference he wishes the Appeals Chamber to consider. See Vasiljevic Appeal Judgement, para. 12. See also Blaskic Appeal Judgement, para. 13; Kunarac Appeal Judgement, paras 43, 48; Niyitegeka Appeal Judgement, para. 10
473. See Section V.C.1(c) supra.
474. See Section V.C.1(c) supra.
475. Trial Judgement, para. 823.
476. Trial Judgement, para. 819.
477. Trial Judgement, para. 823.
478. Trial Judgement, para. 471.
479. Trial Judgement, para. 471.
480. Trial Judgement, para. 616.
481. Trial Judgement, paras 590-616 ; Witness Arifagic (T. 7074-7075), Witness B (T. 2263), Witness Brown (T. 8588-8590 ), Witness DD (T. 9486-9489), Witness DH (T. 13518) (closed session), Witness F (Rule 92bis statement in Tadic T. 1605-1606), Witness Kuruzovic (T. 14437, 14576-14579), Witness Merdzanic (T. 7722-7723), Witness P (T. 3329-3331 ), Witness Poljak (T. 6333-6334), Witness R (T. 4273), Witness Sivac (T. 6765), Witness T (T. 2620) (closed session), Witness T (Rule 92bis statement in Kvocka, (T. 2620) (closed session), Witness U (T. 6214-6216), Ex. SK45, Ex. S47, Ex. S60, Ex. S79, Ex. S91, Ex. D178, Ex. S187-1, Ex. S240, Ex. S262, Ex. S345, Ex. S350, Ex. S353, Ex. S389-1, Ex. S407.
482. Trial Judgement, paras 76, 79, 86, 87, 336, 492, 592; Ex. S47, Ex. S91, Ex. S112, Ex. S180, Ex. S187, Witness Kuruzovic (T. 14437).
483. Trial Judgement, paras 172-184 ; Witness A (T. 1909) (closed session), Witness Cehajic (T. 3051, 3090-3109, 3113 -3114), Witness DD (T. 9555), Witness Sivac (T. 6629-6630), Ex. S389-4.
484. Trial Judgement, paras 375, 469, 479, 593; Witness Budimir (T.12888, 12908, 13003), Witness Kovacevic (T. 10217 ), Witness Kuruzovic (T. 14510), Witness Travar (T. 13389); Ex. S28, Ex. S60.
485. Trial Judgement, para. 594.
486. Trial Judgement, paras 395, 399 -400.
487. Trial Judgement, paras 400, 401 ; Witness Kuruzovic (T. 14590, 14716, 14813), Witness Vulliamy (T. 7912-7913, 7923 ); Ex. J13, Ex. S107, Ex. D137, Ex. S187, Ex. S250, Ex. S251, Ex. S353, Ex. S407. The Trial Chamber considered a variety of documentary evidence showing the Crisis Staff’s role in running the camps, including a decision by the Crisis Staff to assign the duty of security for the Trnopolje camp to the Regional Command (Trial Judgement, para. 593, citing Ex. S250, p. 5) and a letter and a dispatch from Simo Drljaca stating that the War Presidency had made a decision to substitute the police for the army in order to secure the Omarska, Keraterm and Trnopolje camps (Trial Judgement, paras 382-383, citing Ex. S251, p. 2). It also considered documents compiled by Serbian police authorities describing security issues within the camps (Trial Judgement, para. 384, citing Ex. S353), as well as documentary evidence showing that the Crisis Staff prohibited the release of detainees from the camps (Trial Judgement, paras 385-386; Ex. J13, Ex. S113, Ex. S115, Ex. S116, Ex. S250). In addition, the Trial Chamber considered testimony from witnesses who spoke directly to the Appellant about relatives detained in the camps, almost all of whom stated that knowledge of the killings and mistreatment in the camps was widespread (Trial Judgement, paras 179, 598; Witness Cehajic (T. 3075-3077)). It heard evidence that the Room 3 massacre at Keraterm camp was common knowledge (Trial Judgement, para. 394, citing evidence given by Witness Kuruzovic (T. 14588-14589). See also Trial Judgement, para. 407, Witness Z (T. 7558-7560) (closed session)). Finally, it cited documentary evidence that the Appellant was aware of the conditions in Croat and Muslim detention camps, and was aware that deaths occurred at Omarska (Trial Judgement, paras 596 -597, citing Ex. D92-92, Ex. S187-1).
488. Trial Judgement, para. 598.
489. Trial Judgement, para. 600, citing Ex. S79.
490. Trial Judgement, para. 600, citing Section I.E.3(h), which in turn cites survivors of the massacre, the commander of the Trnopolje camp, Slobodan Kuruzovic, and other witnesses, fns 440-457.
491. Trial Judgement, paras 219 and 601, citing testimony from Slobodan Kuruzovic, T. 14576-14577.
492. Trial Judgement, para. 600.
493. Trial Judgement, para. 600, citing Section I.E.3(e-g), which in turn cites numerous witnesses to the killings, fns.  428-439.
494. Trial Judgement, para. 601, citing Section II.8 of the Trial Judgement; Witness Budimir (T. 13144), Witness Jankovic (T. 10739-10740), Witness MacLeod (T. 5131), Witness Marjanovic (T. 11707-11708), Witness Radakovic (T. 11079), Witness Z (T. 7558-7560) (closed session), Ex. S166, Ex. S187-1, Ex. S358. In support of this observation, the Trial Chamber cited its earlier factual findings concerning the Appellant’s knowledge of the deportation campaign. Specifically, it considered an interview with a British television crew in which the Appellant elaborated on the methods used to assist those “wishing to leave” and where they might go (Trial Judgement, para. 403; Ex. S187-1). The Trial Chamber relied on witnesses who gave oral testimony that the Appellant himself had seen “the long lines of Muslim and Croat men and women standing outside the SUP building waiting for permission to leave the municipality” (Trial Judgement, para. 404, Witness Jankovic (T.10739-40), Witness Budimir (T.13144), Witness Marjanovic (T.11707-08), Witness Radakovic (T.11079), Witness Z (T.7559)). Further, the Trial Chamber considered evidence indicating that the Crisis Staff redistributed land to the Serbs which formerly belonged to Muslims and Croats (Trial Judgement, para. 405; Ex. S158, Ex. S196). It also referred to the testimony of Witness McLeod, a representative of the European Community Monitoring Mission, suggesting that the Muslim population was systematically kicked out by whatever method was available (Trial Judgement, paras 406; Witness McLeod (T.5131), Ex. S166). Next, the Trial Chamber referred to a dispatch sent from the Command of the 1st Krajina Corps to the Prijedor Operative Group Command blaming the civilian and military authorities for the “needless spilling of Muslim blood” when the Muslim population was driven out from Prijedor (Trial Judgement, para. 408; Ex. S358).
495. The Trial Chamber referred specifically to the following incidents: 44 women placed on a bus that departed from the Omarska camp during July 1992 were never seen again, and presumed killed (Trial Judgement, para. 210); at least 120 detainees left the Omarska camp in a convoy on 5 August 1992, some of whose corpses were later identified among 126 bodies in Hrastova Glavica (approx. 30km from Prijedor); six to eight men were killed en route to the Manjaca camp on 6 August 1992, having boarded a bus from the Omarska camp (Trial Judgement, para. 213).
496. Trial Judgement, para. 600.
497. Trial Judgement, para. 604; Ex. S345, Ex. S60.
498. Trial Judgement, paras 606-608 ; Ex. S47, Ex. S389-1.
499. Trial Judgement, para. 608; Ex. S353.
500. Trial Judgement, para. 609.
501. Trial Judgement, para. 612, Witness Arifagic (T. 7074-7075), Witness P (T. 3329-3331), Witness Poljak (T. 6333-6334), Witness R (T. 4273), Witness U (T. 6214-6216).
502. Trial Judgement, para. 255; Witness Q (T. 3937, 3947-3954 (closed session), Ex. S15-25.
503. Trial Judgement, paras 256-265 ; Witness Atilja (T. 5603-5611, 5614), Witness C (T. 2343-2345), Witness I (Rule 92bis statement, 12 and 14 July 2001), Witness S (T. 5879-5896, 5901-5914, 5917-5919, 5922-5952, 5959-5960, 5966-5970) (closed session), Witness X (T. 6862 -6865, 6870), Ex. S211/S, Ex. S212.
504. Trial Judgement, paras 266-268 ; Witness C (T. 2310-2311), Witness V (T. 5727-5742).
505. Trial Judgement, para. 269.
506. Trial Judgement, paras 270-272 ; Witness DD (T. 9637-9640), Witness Karagic (T. 5226, 5233-5241), Witness Nasic (Rule 92bis statement 1995, pp. 3, 4), Witness Q, (T. 3928-3931), Ex. S169.
507. Trial Judgement, paras 273-274 ; Witness Karagic (T. 5242), Witness Nasic (Rule 92bis statement, p. 4), Ex. S169, photograph 4.
508. Trial Judgement, para. 610; Witness Sivac (T. 6765), Witness T (T. 2620) (closed session).
509. Trial Judgement, para. 614; Ex. S240-1.
510. Trial Judgement, para. 614; Ex. S240-1.
511. Trial Judgement, para. 661.
512. Trial Judgement, para. 661.
513. See Section VII.B.2(b)( i) supra.
514. The Appeals Chamber has addressed the arguments raised by the Appellant against the standard of mens rea used by the Trial Chamber regarding murder and extermination in Section V.D supra.
515. Stakic Appeal Brief, para. 257.
516. Stakic Appeal Brief, para. 256. The Appellant cites Ex. D110, Ex. D146, Ex. D185, Ex. D238, Ex. D240, Ex. D306.
517. Stakic Appeal Brief, para. 259.
518. Stakic Appeal Brief, paras 264 -266, referring to Ex. D25, Ex. S1.
519. Stakic Appeal Brief, para. 263, referring to Brdanin Rule 98bis Decision, para. 14.
520. Kunarac Appeal Judgement, paras 93, 97.
521. Trial Judgement, paras 628, 630.
522. Stakic Reply Brief, para. 91.
523. Kunarac Appeal Judgement, para. 90.
524. Trial Judgement, para. 629.
525. Trial Judgement, para. 629.
526. Stakic Appeal Brief, paras 250, 254, 256.
527. Ex. D25, and Witness Vulliamy, T. 8049.
528. Witness Vulliamy, T.8049: “ Q: When you use the word “systematic” [in exhibit 25], what are you referring to? Witness Vulliamy: I'm saying that we didn't see any systematic extermination, by which I mean mass killing of individuals, that day in the camp before our eyes. Q: And did you before your eyes also, sir, note that there was no visible evidence of serious violence? Witness Vulliamy: During our very brief and restricted visit to Omarska that day, as I think I've already said and it's on the television, we did not get to see ourselves any -- well, I mentioned the wound, but I wouldn't call that systematic extermination. I didn't see any systematic extermination and that's what I'm saying here, but I think I go on to qualify that we had our suspicions about what was going on in the hut that they refused to allows [sic.] us into.”
529. Witness Vulliamy gave evidence that “… there's no doubt that … that article [Ex. D25] and those that appeared in the very few weeks after it would have given the impression of a widespread - to use your term and not mine - a widespread and systematic persecution, yes”; Witness Vulliamy, T. 8046, T. 8049.
530. See para. 246 supra.
531. Stakic Appeal Brief, para. 270. The Appeals Chamber notes that the Appellant’s brief refers to “Article 4 of the Statute” when referring to extermination as a crime against humanity (Stakic Appeal Brief, paras 267-268). Article 4 of the Statute governs genocide, and the Appeals Chamber proceeds on the basis that this was merely a typographic error, and the Appellant intended rather to refer to Article 5(b) of the Statute (extermination as a crime against humanity).
532. See Section V.D supra.
533. Stakic Appeal Brief, para. 284, referring to Vasiljevic Trial Judgement, para. 227.
534. Stakic Appeal Brief, paras 269, 288-291, 294, referring to the Vasiljevic Appeal Judgement, paras 228-229, where it was held that, to be responsible for extermination, an accused must have known of the vast scheme of collective murder and have been willing to take part therein.
535. Stakic Appeal Brief, para. 269, referring to the Vasiljevic Trial Judgement, paras 216-233. The Appellant submits that the number of 486 deaths, in which he was implicated, does not meet the threshold required for extermination.
536. Stakic Appeal Brief, para. 284. In his Reply Brief, paras 101-102, the Appellant, countering the Prosecution’s Response, submits that there is authority for this proposition, and that the policy consideration to be weighed is the maintenance of the distinction between multiple murders and extermination.
537. Stakic Appeal Brief, Section E, p. 57.
538. Stakic Appeal Brief, paras 300 -301, referring to Trial Judgement, para. 616.
539. Stakic Appeal Brief, para. 302.
540. Namely Ex. S152, “a report from Drljaca”, Stakic Appeal Brief, para. 302.
541. Prosecution Response Brief, para. 5.14.
542. Prosecution Response Brief, para. 5.16.
543. Prosecution Response Brief, paras 5.17, 5.34.
544. Prosecution Response Brief, para. 5.16.
545. Vasiljevic Trial Judgement, para. 222.
546. Ntakirutimana Appeal Judgement, para. 539 (footnotes omitted).
547. Ntakirutimana Appeal Judgement, para. 522. See Ndindabahizi Trial Judgement, para. 479.
548. Vasiljevic Trial Judgement, para. 226.
549. Vasiljevic Trial Judgement, para. 229.
550. Trial Judgement, para. 640.
551. Ntakirutimana Appeal Judgement, para. 516. See also Vasiljevic Trial Judgement, para. 229.
552. Ntakirutimana Appeal Judgement, para. 522. The Akayesu Trial Judgement (para. 592) had also held that the victims be “named or described persons”. The Appeals Chamber in Ntakirutimana dispensed with this requirement, and it is not necessary that a precise identification of certain named or described persons be established; it is sufficient that mass killings occurred (Ntakirutimana Appeal Judgement, para. 521).
553. Ntakirutimana Appeal Judgement, para. 522.
554. Ntakirutimana Appeal Judgement, para. 522.
555. Ntakirutimana Appeal Judgement, para. 516. See also Vasiljevic Trial Judgement, para. 229.
556. Ntakirutimana Appeal Judgement, para. 516 (footnotes omitted). See also Krstic Trial Judgement, para. 501, where the Krstic Trial Chamber held that “while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited”; and the Vasiljevic Trial Judgement, para. 227, fns 587, 229.
557. The Appellant refers to only one paragraph in the Trial Judgement (para. 616), and one exhibit (Ex. S152), Stakic Appeal Brief, paras 300 et seq.
558. Trial Judgement, para. 661.
559. Trial Judgement, para. 658.
560. Trial Judgement, para. 661.
561. See Section V supra.
562. See Section V.D supra.
563. Stakic Appeal Brief, para. 307.
564. Stakic Appeal Brief, para. 308.
565. Stakic Appeal Brief, para. 308.
566. Stakic Appeal Brief, paras 308, 309.
567. Stakic Appeal Brief, para. 310.
568. Stakic Appeal Brief, paras 306, 311.
569. Stakic Appeal Brief, para. 312.
570. Stakic Appeal Brief, para. 313, citing Art. 17, Geneva Convention IV, which provides that “The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas.”
571. “[S]uch as the Red Cross and UNHCR”, Stakic Appeal Brief, para. 313.
572. Stakic Appeal Brief, para. 313.
573. Trial Judgement, para. 687.
574. Stakic Appeal Brief, paras 315 -317.
575. Prosecution Response Brief, para. 5.48, referring to Trial Judgement, paras 712, 881.
576. Prosecution Response Brief, para. 5.48.
577. Prosecution Response Brief, para. 5.50, citing Krnojelac Appeal Judgement, para. 218. The Prosecution avers that “(i(t is the forced character of the displacement, not the destination to which the victims are sent, that attracts criminal responsibility.” Prosecution Response Brief, para. 5.51.
578. Prosecution Response Brief, para. 5.53.
579. Prosecution Response Brief, paras 5.56-5.60. The Prosecution Response Brief discusses the application of Geneva Convention IV in the Naletilic and Martinovic Trial Judgement.
580. Krnojelac Appeal Judgement, para. 218.
581. Prosecution Response Brief, para. 5.52.
582. Trial Judgement, para. 679.
583. Prosecution Response Brief, paras 5.51, 5.52, AT. 318.
584. Prosecution Response Brief, paras 5.54-5.55, citing Trial Judgement, para. 687.
585. Prosecution Response Brief, para. 5.65.
586. Prosecution Response Brief, paras 5.67-5.73.
587. Trial Judgement, para. 881.
588. Trial Judgement, para. 712.
589. See Section X.B.1(b) infra.
590. Article 6(c).
591. See para. 290 infra.
592. Article 5(c).
593. Article II(1)(c).
594. Principle VI(c); see Yearbook of the International Law Commission, 1950, vol. II, “Report of the International Law Commission to the General Assembly”, p. 377
595. Article 2(11), see Yearbook of the International Law Commission, 1954, vol. II, “Report of the International Law Commission to the General Assembly”, p. 150. Subsequent to the adoption of the Statute, other instruments have also recognised deportation as a crime against humanity. See e.g. Article 3(d) of the Statute of the ICTR; Article 18(g) of the 1996 Draft Code of Crimes against the Peace and Security of Mankind; and Article 7(1)(d) of the Rome Statute of the International Criminal Court.
596. The Trial Chamber in casu described it thus: “?ign essence, the prohibition against deportation serves to provide civilians with a legal safeguard against forcible removals in time of armed conflict and the uprooting and destruction of communities by an aggressor or occupant of the territory in which they reside” (Trial Judgement, para. 681).
597. Krnojelac Appeal Judgement, para. 218. As noted in the discussion above, the Appellant was indicted for forcible transfer (Count 8), but that count was dismissed by the Trial Chamber. See infra for further consideration of the Trial Chamber’s treatment of forcible transfer.
598. See Krnojelac Trial Judgement, para. 474, where deportation is defined as “the forced displacement of persons by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.” For a substantially similar definition, see Blaskic Trial Judgement, para. 234.
599. Krnojelac Trial Judgement, para. 475. See also Krnojelac Appeal Judgement, para. 233.
600. Kunarac Appeal Judgement, para. 129, (in the context of rape).
601. Krnojelac Appeal Judgement, para. 229.
602. Krnojelac Appeal Judgement, para. 229.
603. Kunarac Trial Judgement, para. 460, cited with approval in Kunarac Appeal Judgement, paras 127-128 (in the context of rape).
604. Krstic Trial Judgement, para. 530.
605. Krnojelac Trial Judgement, para. 475, citing the Krstic Trial Judgement, para. 529.
606. Trial Judgement, para. 707.
607. During the Appeal Hearings (AT. 208), the Appellant referred to para. 707 of the Trial Judgement as being another factual conclusion having “no support in the evidence.” The Appeals Chamber disagrees. A plain reading of the Trial Judgement from para. 688 demonstrates the basis for the findings set out in para. 707.
608. Article 19 of Geneva Convention III reads as follows: “Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger. Only those prisoners of war who, owing to wounds or sickness, would run greater risks by being evacuated than by remaining where they are, may be temporarily kept back in a danger zone. Prisoners of war shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone.”
609. Geneva Convention IV, Article 49.
610. See Article 17 of Additional Protocol II.
611. Trial Judgement, para. 679.
612. Trial Judgement, para. 680.
613. Bassiouni, M. Cherif., Crimes Against Humanity in International Criminal Law, (The Hague/London/Boston: Kluwer Law International, 1999), pp. 60, 70-71.
614. IMT Judgment, Vol I (1947), p. 227.
615. IMT Judgment, Vol I (1947), p. 244.
616. IMT Judgment, Vol I (1947), p. 297.
617. IMT Judgment, Vol I (1947), p. 329.
618. IMT Judgment, Vol I (1947), p. 319.
619. Milch Judgment, Concurring Opinion of Judge Phillips, p. 865.
620. Krupp Judgment, pp. 1432 -1433.
621. See also Article 147, Geneva Convention IV. “Presumably, a transfer is a relocation within the occupied territory, and a deportation is a relocation outside the occupied territory”, Henckaerts, Deportation and Transfer of Civilians in Time of War, Vanderbilt Journal of International Law, Vol 26, 1993, p. 472 as cited in the Krnojelac Trial Judgement, fn. 1429.
622. See C. Pilloud et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), pp. 1472-1474.
623. Report of the International Law Commission on the work of its forty-third session, 29 April – 19 July 1991, UN Doc. A/46/10, p. 104.
624. 1996 ILC Draft Code, Article 18(g), the commentary of which (para. 13) provides that “Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State.”
625. Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, UN Doc. A/51/10, p. 100, para. 13.
626. Henckaerts, J-M. and Doswald- Beck, L. Customary International Humanitarian Law, Vol. 1: Rules ( Cambridge 2005).
627. Nikolic Rule 61 Decision, para. 23.
628. Trial Judgement, para. 678.
629. Krstic Trial Judgement, para. 521; Krnojelac Trial Judgement, paras 474, 476. See also the Rule 98bis Decision, para. 130.
630. Krstic Trial Judgement, para. 521. The Appeals Chamber notes that the Brdanin Trial Chamber agreed with the distinction drawn in Krstic: Brdanin Trial Judgement, para. 542.
631. “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.” (Emphasis added).
632. United Nations Security Council Resolutions: S/RES/469 (1980); S/RES/484 (1980); S/RES/607 (1988); S/RES/608 (1988 ); S/RES/636 (1989); S/RES/641 (1989); S/RES/681 (1990); S/RES/694 (1991); S/RES /726 (1992); S/RES/799 (1992) (concerning deportations to Lebanon). See also the following United Nations General Assembly Resolution A/RES/40/161 (D-E) (1985 ).
633. Trial Judgement, para. 679.
634. With respect to the borders of occupied territory, no case of occupation was pleaded, nor was a finding of occupation made by the Trial Chamber.
635. Milosevic Rule 98bis Decision, para. 78 (referring to deportation and forcible transfers of civilians ); Krnojelac Appeal Judgement, paras 209-225 (referring to persecutions by way of deportation and expulsion); Krstic Trial Judgement, paras 519-532 (referring to deportation and forcible transfers of civilians).
636. Blagojevic Trial Judgement, para. 601; Brdjanin Trial Judgement, para. 545; Simic et al. Trial Judgement, para. 134; Naletilic and Martinovic Trial Judgement, para. 520 ; Trial Judgement, para. 687. See also Krnojelac Appeal Judgement, Separate Opinion of Judge Schomburg, para. 16.
637. ICRC Commentary (GC IV), pp. 277-283.
638. ICRC Commentary (GC IV), p. 280.
639. See Trial Judgement, para. 687, fn. 1346, citing the Naletilic and Martinovic Trial Judgement.
640. Article 49 of Geneva Convention IV.
641. See Trial Judgement, para. 687.
642. Stakic Appeal Brief, para. 314.
643. Trial Judgement, para. 314.
644. Trial Judgement, para. 707.
645. See Section V supra.
646. Indictment, paras 17(l), 19, 25, 41(1), 43 and 45 (within a genocidal campaign), 54(4) (within a persecutory campaign), 58, 59.
647. Trial Judgement, para. 719, citing the Rule 98bis Decision, para. 131.
648. Trial Judgement, para. 724.
649. The crime of other inhumane acts has been included in the following international legal instruments: Article 6(c) of the Nuremberg Charter; Article 5(c) of the Tokyo Charter; Article II(c) of Control Council Law No. 10. The crime of other inhumane acts is also referred to in Principle 6(c) of the Nuremberg Principles of 1950 and the ILC Draft Code (Article 18). Convictions have been entered on this ground pursuant to Control Council Law No. 10: see e.g. the Medical Judgment (p.198), the Justice Judgment (pp. 23, 972, 1200), the Ministries Judgment (pp. 467-475, 865), and the High Command Judgment (pp. 465, 580). The Appeals Chamber also notes that numerous human rights treaties also prohibit inhuman and degrading treatment: see e.g. ICCPR (Article 7), the European Convention on Human Rights (Article 3), the Inter-American Convention on Human Rights (Article 5) and the African Charter on Human and People’s Rights (Article 5).
650. Kupreskic Trial Judgement, para. 563.
651. Kordic Appeal Judgement, para. 117; Vasiljevic Trial Judgement, para. 234; Galic Trial Judgement, paras 151-153; Naletelic and Martinovic Trial Judgement, para. 247; Krnojelac Trial Judgement, para. 130; Kvocka Trial Judgement, para. 206 ; Kordic Trial Judgement, para. 269; Kupreskic Trial Judgement, para. 563. For the ICTR, see e.g. Kayishema and Ruzindana Trial Judgement, para. 150.
652. Indictment, paras 58, 59.
653. Krnojelac Trial Judgement, para. 474; Krstic Trial Judgement, para. 521. See also Stakic Rule 98bis Decision, in which the Trial Chamber found that forcible transfer relates to displacement within a State.
654. Article 17 of Protocol II similarly prohibits the “displacement” of civilians.
655. See Krstic Trial Judgement, para. 523; Kupreskic Trial Judgement, para. 566.
656. See the definition of other inhumane acts set out in the Kordic Appeal Judgement, para. 117: “the victim must have suffered serious bodily or mental harm; the degree of severity must be assessed on a case-by-case basis with due regard for the individual circumstances ”.
657. Trial Judgement, para. 693, citing Witness Cehajic (T. 3099).
658. Trial Judgement, para. 693.
659. Trial Judgement, para. 693, citing Witness C and Witness Murselovic. Witness C’s convoy left Manjaca for Karlovac on 18 December 1992 via Banja Luka, Bosanska Gradiska, across the Sava river to Croatia and on to Karlovac (T. 2342-2343). Witness Murselovic’s convoy left Manjaca for Karlovac on 14 or 15 November 1992 via Banja Luka, Gradiska, and Nova Gradiska ( in Croatia) to Karlovac (T. 2772).
660. Trial Judgement, paras 316, 696, Ex. S43.
661. The relevant findings in the Trial Judgement on the convoy, together with the underlying evidence, are: Para. 316 / Witness C (T. 2343): Witness C says nothing relevant about this convoy. Para. 696 / Ex. S90: Ex. S90 is the minutes of a session of the National Defence Council of the Prijedor Municipal Assembly dated 29/09/92, reporting the planned provision of an escort, vehicles & fuel to the convoy in question. No date of the convoy is given. Para. 696 / Ex. 424: Ex. 424 is a National Security Service report, Banja Luka sector, dated 23/10/92, mentioning the departure of 1561 persons with Red Cross assistance. No date for the departure is specified. Para. 696 / Ex. S435 : Ex. S435 is an ICRC Press communiqué dated 2 October 1992 confirming the ICRC as having evacuated 1,560 people on 1 October 1992 – the only evidence to provide a date, which falls outside the temporal scope of the Indictment.
662. Trial Judgement, para. 699, referring to Ex. S354.
663. Trial Judgement, para. 693, referring to Witness A, who was one of 1,360 people in this convoy.
664. Trial Judgement, paras 814-815, referring to Witness Vulliamy (T. 7984).
665. Trial Judgement, paras 693, 700, referring, respectively, to Witness X, Witnesses B and Witness Z.
666. Trial Judgement, para. 319, citing Witness Kuruzovic (T. 14456); para. 693, citing Witness B (T. 2257, 2263).
667. Trial Judgement, paras 314, 318, 693.
668. Stakic Appeal Brief, para. 321.
669. Stakic Appeal Brief, para. 322.
670. See Section V.D supra. The Appellant also submits that the Trial Chamber drew impermissible inferences regarding his mens rea for persecutions. This submission has been dealt with in the section on Miscarriage of Justice and will not be considered further here. See Section VII.B supra.
671. Stakic Appeal Brief, para. 323.
672. Stakic Appeal Brief, para. 325.
673. Stakic Appeal Brief, paras 327 -333.
674. Trial Judgement, para. 343 (the Appellant erroneously cites para. 341 in his Reply Brief, para. 113).
675. Prosecution Response Brief, para. 5.77.
676. Prosecution Response Brief, para. 5.80.
677. Prosecution Response Brief, paras 6.14 et seq.
678. Trial Judgement, para. 818.
679. Prosecution Response Brief, para. 5.81, after noting that it is nevertheless relevant to determine the specific discriminatory intent of the direct perpetrators.
680. Prosecution Response Brief, paras 5.75, 5.82.
681. Namely, Ex. D56 and Ex. SK46, referred to in the Trial Judgement, paras 102 and 343 respectively. The Appellant’s reliance, in another section of his Brief, on character evidence allegedly showing that he harboured no prejudice against non-Serbs (Stakic Appeal Brief, paras 439 -441) and noted by the Prosecution (Prosecution Appeal Brief, para. 5.84) is not relevant to the factual determination of the requisite mens rea for persecutions. The Appellant neither raised that argument in respect of this issue, nor did he attempt to show how a reasonable trier of fact would not have come to the same conclusion as the Trial Chamber with respect to the character evidence.
682. Prosecution Response Brief, para. 5.82.
683. Prosecution Response Brief, para. 5.84.
684. Trial Judgement, para. 826 generally.
685. See the Trial Judgement’s Disposition.
686. Trial Judgement, para. 785.
687. Trial Judgement, para. 790.
688. Trial Judgement, para. 806.
689. Trial Judgement, para. 808.
690. Trial Judgement, para. 813.
691. See Kordic Appeal Judgement, para. 101; Blaskic Appeal Judgement, para. 131; Vasiljevic Appeal Judgement, para. 113; Krnojelac Appeal Judgement, para. 185.
692. Trial Judgement, para. 738.
693. Trial Judgement, para. 737.
694. Trial Judgement, para. 741.
695. Trial Judgement, paras 818, 819.
696. Trial Judgement, para. 822.
697. Trial Judgement, para. 823.
698. Stakic Appeal Brief, para. 329.
699. Trial Judgement, paras 68, 102. Ex. D56 was submitted at trial by counsel for the Appellant and read aloud during proceedings by Witness Marjanovic, T. 11652.
700. Witness Marjanovic, T. 11656.
701. Ex. D56, T. 11654.
702. The Party of Democratic Action was a political party representing Muslim interests.
703. Ex. D56, T. 11653-11654.
704. In reference to murder: Trial Judgement, para. 777, fn. 1457, referring to Witness S, and fn. 1458, referring to Ex. S212; Trial Judgement, para. 778, fn. 1459, referring to Witness X, T. 6886 -6914; Trial Judgement, para. 779, fn. 1460, referring to Witness Q, T. 3998-3999 (closed session). In reference to destruction of religious buildings: Trial Judgement, para. 812, fn. 1499, referring to pp. 3-4 of Witness AA’s 92bis statement, Witness Cehajic, T. 3102, Witness H’s 92bis transcript in Sikirica, T. 2257, Witness Beglerbegovic, T. 4142, and Witness DF, T. 10099 (closed session); and Trial Judgement, para. 815, fn. 1502, referring to Witness Vulliamy, T. 7984.
705. Trial Judgement, para. 343.
706. Trial Judgement, paras 344, 346, 359, 364, 377, 389, 400-401, 404.
707. Stakic Appeal Brief, paras 334, 340. The Appellant’s other arguments under this ground, concerning the evidence and legal requirements related to his mens rea, are considered elsewhere in this Judgement and will not be addressed here.
708. Tadic Trial Judgement, para. 573 (emphasis added).
709. Stakic Appeal Brief, paras 346 -347.
710. Stakic Appeal Brief, paras 342 -344.
711. Prosecution Response Brief, para. 6.3, citing Kunarac Appeal Judgement, para. 59; Trial Judgement, para. 569.
712. Prosecution Response Brief, paras 6.4, 6.8, citing Trial Judgement, paras 158, 347 et seq, 373, 491, 576, 589, 591, 596, 600, 614, 616.
713. Prosecution Response Brief, para. 6.5.
714. Tadic Appeal Decision on Jurisdiction, paras 67, 70; Kunarac Appeal Judgement, para. 55; Rutaganda Appeal Judgement, paras 569-571.
715. Kunarac Appeal Judgement, para. 58.
716. Kunarac Appeal Judgement, para. 58.
717. Tadic Appeal Decision on Jurisdiction, para. 70.
718. Kunarac Appeal Judgement, paras 60, 64.
719. Trial Judgement, para. 571.
720. Trial Judgement, paras 575-576.
721. Trial Judgement, paras 569-570, 576. The Trial Chamber specifically found that the Appellant issued an ultimatum to the residents of Hambarine that they should surrender their weapons or suffer the consequences, that the Crisis Staff made the decision to intervene militarily in Hambarine, that the Appellant stated, referencing the Crisis Staff, “we made a decision that the army and police go up there […]”, and also cited to various evidence that the Appellant maintained close contacts with the military (Trial Judgement, para. 576).
722. Trial Judgement, paras 588, 616.
723. Trial Judgement, paras 210-219, 251-274.
724. Trial Judgement, paras 571-574.
725. Trial Judgement, paras 99-100, 137, 159, 356–359, 366-374, 402-408, 469, 477, 479, 484, 486-488, 576.
726. Trial Judgement, para. 356.
727. Akayesu Trial Judgement, paras 641-643.
728. Trial Judgement, para. 576.
729. Trial Judgement, para. 593.
730. Para. 576 refers to an ultimatum to the residents of Hambarine to surrender their weapons, an SJB report stating that it was the Crisis Staff who decided to invade Hambarine, and an interview in which the Appellant stated that the Crisis Staff decided to attack the town of Kozarac.
731. Trial Judgement, paras 131, 141 -152, 571, 576.
732. See paras 345-346 supra.
733. See Trial Judgement, para. 870, 880.
734. Prosecution Appeal Brief, paras 5.21-5.28, 5.38-5.44.
735. Prosecution Appeal Brief, para. 5.45.
736. Prosecution Appeal Brief, paras 5.45-5.52.
737. Prosecution Appeal Brief, para. 5.51.
738. Prosecution Appeal brief, para. 5.45, fn. 449, citing Kupreskic Trial Judgement, paras 695, 710.
739. Blockburger v. United States, 284 U.S. 299, (1932).
740. Stakic Response Brief, para. 193.
741. Stakic Response Brief, para. 195, Stakic Reply Brief, para. 162.
742. Stakic Response Brief, para. 200.
743. Stakic Response Brief, paras 203-204.
744. Stakic Appeal Brief, paras 534 -544.
745. Prosecution Response Brief, paras 8.3-8.5.
746. Celebici Appeal Judgement, paras 412-413.
747. Kordic Appeal Judgement, para. 1032.
748. Both parties have indicated their agreement with this principle in their submissions. However, the Appeals Chamber notes that the Appellant also makes the inconsistent submission that it is the conduct of the accused that matters in the application of the test. The Appeals Chamber disagrees with this submission. See Prosecution Appeal Brief, para. 5.23, Prosecution Reply Brief, para. 4.2; Stakic Response Brief, paras 200, 205, Stakic Reply Brief, para. 162.
749. Kordic Appeal Judgement, para. 1033 (footnotes omitted).
750. Kunarac Appeal Judgement, para. 177.
751. Prosecution Response Brief, paras 8.6-8.7. See Prosecution Appeal Brief, paras 5.26, 5.35-5.36, 5.45-5.52; Stakic Appeal Brief, para. 542, fn. 555, Stakic Response Brief, paras 189-199; Stakic Reply Brief, paras 159-160, 162-163.
752. Trial Judgement, para. 869.
753. Trial Judgement, para. 870.
754. Kordic Appeal Judgement, para. 1041.
755. Kordic Appeal Judgement, para. 1041.
756. See Kordic Appeal Judgement, para. 1041.
757. See Section VIII.C supra.
758. Trial Judgement, para. 877.
759. See Section VIII.C supra.
760. Kordic Appeal Judgement, para. 1041.
761. See the discussion of the crime of extermination in the section on Article 5(b) supra, and Ntakirutimana Appeal Judgement, para. 542.
762. See Ntakirutimana Appeal Judgement, para. 542. See also Kajelijeli Trial Judgement, para. 886, Kayishema and Ruzindana Trial Judgement, paras 647-650, Rutaganda Trial Judgement, para. 422, Musema Trial Judgement, para. 957, Semanza Trial Judgement, paras 500-505.
763. Stakic Appeal Brief, para. 376.
764. Stakic Appeal Brief, para. 375.
765. Prosecution Response Brief, para. 7.3.
766. Stakic Reply Brief, para. 128.
767. Trial Judgement, para. 13.
768. Trial Judgement, para. 13.
769. Stakic Appeal Brief, para. 394.
770. Stakic Appeal Brief, para. 395, referring to Dragan Nikolic Sentencing Judgement, paras 39, 252. The Sentence was reduced to 20 years on Appeal.
771. Stakic Appeal Brief, paras 394 -395.
772. T. 9424.
773. T. 9426.
774. T. 9424.
775. Stakic Appeal Brief, para. 396.
776. Stakic Appeal Brief, para. 399.
777. Prosecution Response Brief, para. 7.8.
778. Prosecution Response Brief, para. 7.11, referring to Celebici Trial Judgement, para. 1234 and Kambanda Trial Judgement, para. 58.
779. Aleksovski Appeal Judgement, para. 182; Celebici Appeal Judgement, para. 731; Jelisic Appeal Judgement, para. 101.
780. Celebici Appeal Judgement, para. 717; Dragan Nikolic Appeal Judgement, para. 9.
781. Dragan Nikolic Appeal Judgement, para. 46.
782. Trial Judgement, para. 654.
783. Stakic Appeal Brief, para. 404.
784. Stakic Appeal Brief, paras 414 -416.
785. Stakic Appeal Brief, paras 418 -421, 426-435.
786. Stakic Appeal Brief, para. 425.
787. Stakic Appeal Brief, paras 426 -429; Stakic Reply Brief, paras 132-133.
788. Vasiljevic Appeal Judgement, para. 182.
789. Prosecution Response Brief, para. 7.5.
790. Prosecution Response Brief, para. 7.12.
791. Trial Judgement, para. 928, citing Celebici Appeal Judgement, para. 821; Kupreskic Appeal Judgement, para. 443.
792. Prosecution Response Brief, para. 7.16.
793. Prosecution Response Brief, para. 7.18.
794. Trial Judgement, para. 918.
795. Aleksovski Appeal Judgement, para. 182, citing Kupreskic Trial Judgement, para. 852 (emphasis added).
796. Trial Judgement, para. 906.
797. See Section V supra.
798. Furundzija Appeal Judgement, para. 250; Celebici Appeal Judgement, para. 720.
799. Celebici Appeal Judgement, para. 721.
800. Trial Judgement, para. 933.
801. Trial Judgement, para. 931.
802. Stakic Appeal Brief, para. 452.
803. Stakic Appeal Brief, para. 453.
804. Stakic Appeal Brief, para. 453.
805. Prosecution Response Brief, para. 7.26.
806. Prosecution Response Brief, para. 7.27.
807. Stakic Reply Brief, para. 124.
808. Trial Judgement, para. 399.
809. Trial Judgement, para. 389.
810. Trial Judgement, para. 905.
811. Stakic Appeal Brief, para. 455. The Appellant argues that Trial Chambers lack authority to intervene in decisions regarding probation, early release, pardon and commutation of sentence.
812. Stakic Appeal Brief, paras 459 -460.
813. Stakic Appeal Brief, para. 456.
814. Stakic Appeal Brief, paras 463 -468.
815. Prosecution Response Brief, para. 7.31.
816. Trial Judgement, p. 253 (emphasis in original). See also Trial Judgement, p. 254.
817. Trial Judgement, para. 937, referring to Rules 123-125 of the Rules, and to the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal, IT/146, 7 April 1999.
818. Article 28 of the Statute provides that “[i]f, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she may be eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly.”
819. Rule 123 of the Rules provides that “[if] according to the law of the State of imprisonment, a convicted person is eligible for pardon or commutation of sentence, the State shall, in accordance with Article 28 of the Statute, notify the Tribunal of such eligibility.”
820. The Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal, which was issued by President Gabrielle Kirk McDonald “in order to establish an internal procedure for the determination of applications for pardon, commutation of sentence and early release of persons convicted by the International Tribunal” provides that “[u]pon a convicted person becoming eligible for pardon, commutation of sentence or early release under the law of the State in which the convicted person is serving his or her sentence (“the Enforcing State”), the Enforcing State shall, in accordance with its agreement with the International Tribunal on the enforcement of sentences …notify the International Tribunal accordingly.”
821. “If, pursuant to the applicable national law of the requested State, the convicted person is eligible for pardon or commutation of the sentence, the requested State shall notify the Registrar accordingly.” Article 8(1), Agreement between the Government of Norway and the United Nations on the enforcement of sentences of the International Criminal Tribunal for the Former Yugoslavia (24 April 1998). The International Tribunal’s agreement with Norway is, mutatis mutandis, identical to the Model Agreement. See also Tolbert, “Enforcement of Sentences” p. 535, fn. 10.
822. It is notable that the issues in question here are explicitly addressed in the Statute and Rules, which otherwise provide little guidance to the relationship between the Host State and the Tribunal.
823. Article 28 of the Statute, Rules 124 and 125 of the Rules, Practice Direction, paras 5-11.
824. Trial Judgement, p. 253.
825. Trial Judgement, p. 254.
826. Stakic Appeal Brief, para. 483.
827. Stakic Appeal Brief, paras 480 -481.
828. Stakic Appeal Brief, para. 482.
829. Stakic Appeal Brief, paras 475, 486.
830. Stakic Appeal Brief, paras 476, 487.
831. Stakic Appeal Brief, para. 489.
832. Stakic Appeal Brief, para. 469.
833. Stakic Appeal Brief, para. 489.
834. Stakic Appeal Brief, para. 490.
835. Prosecution Response Brief, para. 7.36.
836. Prosecution Response Brief, para. 7.37, citing Trial Judgement, paras 887-890.
837. Serushago Appeal Judgement, para. 30; see also Jokic Appeal Judgement, para. 38; Dragan Nikolic Appeal Judgement, para. 69; Tadic Sentencing Appeal Judgement, para. 21.
838. Trial Judgement, para. 889.
839. Trial Judgement, paras 887-890.
840. Trial Judgement, para. 890.
841. Stakic Appeal Brief, paras 493 -494.
842. Stakic Appeal Brief, para. 495.
843. Stakic Appeal Brief, para. 442.
844. Prosecution Response Brief, para. 7.11.
845. Prosecution Response Brief, para. 7.19.
846. Prosecution Response Brief, para. 7.19, citing Celebici Appeal Judgement para. 806.
847. Trial Judgement, para. 899.
848. Trial Judgement, para. 900, referring to Aleksovski Appeal Judgement, para. 185 and Celebici Appeal Judgement, para. 806.
849. Trial Judgement, paras 925-927.
850. Trial Judgement, para. 924 : “The Trial Chamber finds that the mitigating circumstances do not carry enough weight to alter substantially the deserved sentence”. See also para. 926: “This factor Spersonality of the AccusedC will not be given undue weight given the severity of the crimes”.
851. Trial Judgement, para. 901.
852. Trial Judgement, para. 902.
853. Trial Judgement, para. 903.
854. Aleksovski Appeal Judgement, para. 185; Celebici Appeal Judgement, para. 806; Furundzija Trial Judgement, para. 288; Tadic Sentencing Judgement, paras 7-9; Kupreskic Trial Judgement, para. 848.
855. Kambanda Trial Judgement, para. 28; Rutaganda Trial Judgement, para. 456.
856. Celebici Appeal Judgement, para. 806
857. Stakic Appeal Brief, para. 501 ; AT. 353.
858. Stakic Appeal Brief, paras 500 -501.
859. Stakic Appeal Brief, para. 502.
860. Prosecution Response Brief, para. 7.40.
861. Prosecution Response Brief, para. 7.40, citing Trial Judgement, para. 926.
862. Prosecution Response Brief, para. 7.42, citing Trial Judgement, para. 922.
863. Prosecution Response Brief, para. 7.42.
864. Prosecution Response Brief, para. 7.43.
865. Naleteilic and Martinovic Trial Judgement, para. 742.
866. Trial Judgement, paras 920-927.
867. Trial Judgement, para. 926.
868. Trial Judgement, para. 924.
869. Trial Judgement, para. 922.
870. Kunarac Trial Judgement, para. 847.
871. Musema Appeal Judgement, para. 396.
872. Niyitegeka Appeal Judgement, para. 267.
873. AT. 337.
874. Stakic Appeal Brief, para. 508 ; AT. 337, 349.
875. Stakic Appeal Brief, para. 513 ; AT. 351.
876. Stakic Appeal Brief, para. 512 ; see AT. 351.
877. Stakic Appeal Brief, para. 514.
878. Celebici Appeal Judgement, para. 745; Kupreskic Appeal Judgement, para. 451; Krnojelac Trial Judgement, paras 173, 496.
879. Prosecution Response Brief, para. 7.45.
880. Prosecutor v. Stanislav Galic, Case No. IT-98-29-T, Separate and Partially Dissenting Opinion of Judge Nieto-Navia, Trial Judgement, 5 December 2003, para. 121.
881. Stakic Reply Brief, para. 135.
882. Kayishema and Ruzindana Appeal Judgement, paras 358–359; Babic Judgement on Sentencing Appeal, para. 80; Kamuhanda Appeal Judgement, para. 347; see Aleksovski Appeal Judgement, para. 183; Ntakirutimana Appeal Judgement, para. 563, Krstic Trial Judgement, para. 709.
883. Stakic Appeal Brief, para. 517.
884. Blaskic Appeal Judgement, para. 693; Vasiljevic Appeal Judgement, para. 173; Deronjic Appeal Judgement, para. 106.
885. Trial Judgement, para. 914.
886. Stakic Appeal Brief, para. 519 ; AT. 349-350.
887. Ntakirutimana Trial Judgement.
888. Kayishema and Ruzindana Trial Judgement.
889. Stakic Appeal Brief, para. 520 ; Trial Judgement, para. 915.
890. AT. 349.
891. Stakic Appeal Brief, para. 521.
892. Prosecution Response Brief, para. 7.48.
893. Prosecution Response Brief, para. 7.48, referring to Simic et al. Trial Judgement, para. 1084; Kayishema and Ruzindana Trial Judgement, para. 26; Ntakirutimana Trial Judgement, para. 910.
894. Prosecution Response Brief, para. 7.49.
895. Trial Judgement, para. 915.
896. Prosecution Response Brief, para. 7.49.
897. Trial Judgement, para. 915.
898. Kayishema and Ruzindana Trial Judgement, para. 26.
899. Ntakirutimana Trial Judgement, para. 153.
900. Trial Judgement, para. 916.
901. Stakic Appeal Brief, para. 446.
902. Stakic Appeal Brief, para. 448.
903. Prosecution Response Brief, paras 7.25, 7.50.
904. Stakic Reply Brief, paras 144 -145.
905. Stakic Reply Brief, para. 146.
906. Trial Judgement, para. 916.
907. Trial Judgement, para. 916.
908. Trial Judgement, para. 916.
909. Trial Judgement, para. 916.
910. Stakic Appeal Brief, para. 525.
911. Stakic Appeal Brief, para. 527, citing Trial Judgement para. 911.
912. Prosecution Response Brief, para. 7.51.
913. Prosecution Response Brief, para. 7.52.
914. Prosecution Response Brief, para. 7.52. Regarding premeditation, see Krstic Trial Judgement para. 711; Celebici Trial Judgement para. 1261; Regarding planning, see Kupreskic Trial Judgement para. 862.
915. Prosecution Response Brief, para. 7.52.
916. See Trial Judgement, paras 337-346.
917. Kupreskic Appeal Judgement, para. 376.
918. Trial Judgement, para. 918.
919. Stakic Appeal Brief, para. 530.
920. Stakic Appeal Brief, para. 531.
921. AT. 351.
922. Stakic Appeal Brief, para. 532.
923. Prosecution Response Brief, para. 7.53.
924. Prosecution Response Brief, para. 7.53.
925. Prosecution Response Brief, para. 7.53.
926. Prosecution Response Brief, para. 7.53.
927. Stakic Reply Brief paras 63-65, 148.
928. Decision on Prosecution’s Motion to Disallow a Ground of Appeal and to File a Further Response, para. 9.