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.