1. See also Judgement of the Appeals Chamber, para. 312.
2. Kvocka, Case No. IT-98 -301/1-A, 28 February 2005, pp. 250 ff. The case related to additional evidence, which is not involved here, but the majority principle remains the same in that it looks to the Appeals Chamber determining “whether it is itself convinced beyond reasonable doubt as to the factual findings [of the Trial Chamber] challenged by the Defence before that finding is confirmed on Appeal”.
3. Partial Dissenting Opinion of Judge Weinberg de Roca in Blaskic, IT-95-14-A, 29 July 2004, pp. 261 et seq; Separate Opinion of Judge Weinberg de Roca in Kordic and Cerkez, IT-95-14/2-A, 17 December 2004, pp. 301 et seq; and Separate Opinion of Judge Weinberg de Roca in Kvocka et al., IT-98-30/1-A, 28 February 2005, pp. 245 et seq.
4. Judgement of the Appeals Chamber, para. 16.
5. Judgement of the Appeals Chamber, para. 24 (footnote omitted).
6. Cf. Bettina Arnold, “Justifying Genocide”, in Alexander L. Hinton (ed.), Annihilating Difference: The Anthropology of Genocide (University of California Press, 2002), pp. 97-102, discussing the notion of Aryan purity and supremacy and the accompanying desire to exterminate all non-Aryans.
7. The Trial of German Major War Criminals (London, 1948), Part 19, pp. 449-450, emphasis added.
8. S/1994/674 – 27 May 1994, para. 96.
9. Judgement of the Appeals Chamber, para. 27.
10. IT-95-10-T, 14 December 1999, para. 71.
11. Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), UN Doc, S/1994/674. p. 25, para. 96.
12. IT-95-10-A, 5 July 2001.
13. IT-99-36-T, 1 September 2004, para. 685.
14. Judgement of the Appeals Chamber, para. 19.
15. Judgement of the Appeals Chamber, para. 19.
16. Judgement of the Appeals Chamber, para. 300.
17. Judgement of the Appeals Chamber, para. 276.
18. For source material of relevant terms in the Statute, see article 6(b) and (c) of the Charter of the International Military Tribunal, article II(1)(b) and (c) of Control Council Law No. 10, article 50 of Geneva Convention I, article 51 of Geneva Convention II, article 130 of Geneva Convention III, and articles 49 and 147 of Geneva Convention 1V.
19. Judgement of the Appeals Chamber, paragraph 300.
20. European Human Rights Reports, Vol. 4 (1982), 482 at 520. The demarcation line was in the nature of a front line. Ibid., paras. 14 and 17.
21. Ibid.
22. Report of the International Law Commission on the work of its forty-third session, General Assembly, Official Records, Forty-sixth Session, Supplement No. 10 (A/46/10), p. 268, para. 11, repeated in substance in Report of the International Law Commission, General Assembly, Official Records, Fifty-first Session, No. 10 (A/51/10), p. 100, referring to the ILC’s 1996 Draft Code of Crimes Against the Peace and Security of Mankind, article 18, para. 13 of the Commentary.
23. Judgement of the Appeals Chamber, para. 295.
24. This is the title used in the corresponding provisions of draft article 18 of the 1996 ILC Report. See the 1996 Report, supra, p. 93.
25. Judgement of the Appeals Chamber, para. 294.
26. Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law (Cambridge, 2005), Vol. 1, p. 457.
27. Judgement of the Appeals Chamber, para. 297.
28. See, Trial of German Major War Criminals (New York, 2001), Judgment, pp. 93, 99, 129, and other cases of the period.
29. Supreme National Tribunal of Poland, Law Reports of Trials of War Criminals Selected and Prepared by the United Nations War Crimes Commission (New York, 1977),Vol. XIII, p. 70, Case No. 74. At p. 72, there is a reference to para. (c)(iv)(3) of the indictment, which charged that the accused participated in “deporting ?peopleg to the area of the so-called ‘General Government’”, i.e., from one area of Poland to another area in the same country. The accused was found guilty; see p. 104.
30. Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International Humanitarian Law (Cambridge, 2005), Vol.II, part 2, p. 2917, para. 67.
31. Ibid., para. 71, p. 2917.
32. Judgement of the Trial Chamber, IT-97-24-T, 31 July 2003, footnotes 1344 and 1353.
33. Fisheries Jurisdiction Case (U.K. v. Iceland), I.C.J.Reports 1974, p. 127, para. 2.
34. YBILC 1964, II, p. 9, Third Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur.
35. Barcelona Traction, I.C.J. Reports 1970, separate opinion of Judge Jessup, p. 166, para.12.
36. Prosecutor v. Tadic, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995.
37. Antonio Cassese, International Criminal Law (Oxford, 2003), pp. 152-153.
38. IT-98-33-A, 1 July 2003.
39. Meron, President, Judges Pocar, Hunt and Güney; Judge Shahabuddeen dissenting.
40. Prosecutor v. Krstic, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003, para. 29. It may be noted that, in Stakic, IT-97-24-A, 20 September 2005, the Appeals Chamber unanimously observed “that it is not the role of the Appeals Chamber to either provide ‘authorization’ to contact a witness, nor to provide the means to facilitate that contact”.
41. Prosecutor v. Tadic, Case No. IT-94-1A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (“Tadic Contempt Decision”), paras. 13-29.
42. Tadic Contempt Decison, para. 14.
43. IT-96-21-A, 20 February 2001, para. 179.
44.Prosecutor v. Hadzihasanovic, IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 12. On the particular point, the decision was unanimous, although on some matters there were dissenting opinions, including one from me. For interesting comments on those opinions in an editorial article contributed to an international law journal by a learned member of the majority, who was also the President of the Tribunal and the Presiding Judge in the case, see Theodor Meron, “Editorial Comment: Revival of Customary Humanitarian Law”, 99 AJIL 817 at 825-826 (2005). See also some observations of Judge Petrén in Judicial Settlement of International Disputes (Max Planck Institute, New York, 1974), p. 78.
45. Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on the Preliminary Motions by the Defence of Joseph Nzirorera, Édouard Karemera, André Rwamakuba and Mathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise, 11 May 2004, para. 37.
46. See, for example, Akayesu Appeal Judgement, paras. 478-479.
47. See Black’s Law Dictionary (Minnesota, 1990), p. 438, defining deportation as “?bganishment to a foreign country”.
48. See, for example, Oppenheim’s International Law, Vol. I, Parts 2 to 4 (Essex, 1992), p. 946, stating: “Deportation is primarily a means of removing an alien from the state which is deporting him, rather than to any particular other state”. The stress here is on the word “alien”.
49. Halsbury’s Laws of England, Vol. 18, 4th ed., (London, 1977), para. 201. The prohibition against returning of course lasts during the life of the deportation; if the deportation order was revoked, there would be nothing to prevent a return.
50. As happened in the Roman Empire, victims being deported, inter alia, to islands near the Italian shore: there was a deportatio in such cases. See Adolf Berger, Encyclopedic Dictionary of Roman Law (1953), p. 432, quoted in Black’s Law Dictionary, 8th ed.(Minnesota, 2004), p. 471.
51. See first operative paragraph of Resolution 827 (1993), S/RES/827 (1993) 25 May 1993.
52. See paras. 6, 9, 10, 11 and 48 of the Report of the Secretary-General, S/25704, 3 May 1993, and the third preambular paragraph of resolution 827 (1993), to which the Trial Chamber referred in paragraph 676 of its judgement.
53. Namibia, I.C.J. Reports 1971, p. 23, para. 29. And see Judge Cassese’s separate and dissenting opinion in Erdemovic, IT-96-22-A, 7 October 1997, para. 11(ii).
54. See Robert Yewdall Jennings in Judicial Settlement of International Disputes (Max Planck Institute, New York, 1974), p. 37, to the effect that, while policy is inadmissible, a judge “must have an eye to policy considerations”.
55. Judgement of the Appeals Chamber, para. 317.
56. See, for example, Judgement of the Appeals Chamber, para. 315.
57. “Movement” is the term used in the title of article 17 of Protocol II, reading “Prohibition of forced movement of civilians”.
58. Vasiljevic Appeal Judgement, para. 165(ii); see also Judgement of the Appeals Chamber, paras. 362, 366.
59. Paragraph 679 of the Trial Judgement in Stakic, IT-97-24-T of 31 July 2003.
60. European Human Rights Reports, Vol. 4 (1982), 482 at 520.
61. Judgement of the Appeals Chamber, para. 302.
62. For an interesting general discussion of legality and the evolution of the law, see Antonio Cassese, International Criminal Law (Oxford, 2003), pp.139-153.
63. “International law, being primarily based upon the general principles of law and justice, is unfettered by technicalities and formalistic considerations which are often given importance in municipal law ”, separate opinion of Vice-President Wellington Koo, Barcelona Traction, ICJ Reports 1964, 6 at 62-3; the examination of cases must not become “a sort of ritual, totally unjustified in the general conception of international law, which is not formalistic”, separate opinion of Judge Gros, Nuclear Tests, ICJ Reports 1974, 253 at 278.
64. “[L]e droit international … ne comporte pas le formalisme du droit romain. Il ne prescrit pas des paroles sacramentelles …” (argument of M. Politis, Mavrommatis Concessions, P.C.I.J., Series C, No. 5 - I, p. 50); and Norwegian Loans, Pleadings, Vol. 1, p. 382, Réplique du gouvernement de la République Française. See also the approach taken in Aegean Sea Continental Shelf Case (Greece v. Turkey), I.C.J.Reports 1978, p. 3 at para. 96, where the court distinguished “the question of form” from “the nature of the act or transaction”.
65. Judgement of the Appeals Chamber, para. 300.
66. European Human Rights Reports, Vol. 4 (1982), 482 at 520. The demarcation line was in the nature of a front line. Ibid., paras. 14 and 17.