1 - Article 25(1) of the Statute provides: “1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice. 2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.” An exception to this general rule is when a party raises a legal issue that is of general significance to the International Tribunal’s jurisprudence. See for example, Tadic Appeals Judgement, para 281; Kupreskic Appeals Judgement, para. 22; Erdemovic Appeals Judgement, para. 16.
2 - Kupreskic Appeals Judgement, para. 22.
3 - Article 25(2) of the Statute.
4 - The Appeals Chamber of the Tribunal ruled several times on the review criteria on appeal in the Erdemovic Appeals Judgement, para. 16; Tadic Appeals Judgement, paras 247, 281, 315-316; Aleksovski Appeals Judgement, para. 63; Furundzija Appeals Judgement, paras 35-37; Celebici Appeals Judgement, para. 435; Kupreskic Appeals Judgement, paras 22, 27-30; Kunarac Appeals Judgement, paras 35- 47; and Krnojelac Appeals Judgement, paras 4-18. Moreover, the Appeals Chamber of the International Criminal Tribunal for Rwanda set out similar criteria in the Serushago Appeals Judgement, para. 22; Akayesu Appeals Judgement, paras 18-24 and 232; Kayishema and Ruzindana Appeals Judgement, para. 143; Musema Appeals Judgement, paras 16-21; and Rutaganda Appeals Judgement, paras 17-24.
5 - Krnojelac Appeals Judgement, para. 10. See also, Furundzija Appeals Judgement, para. 35. Also held by the Appeals Chamber of the ICTR in Musema Appeals Judgement, para 16.
6 - Krnojelac Appeals Judgement, para. 12.
7 - Furundzja Appeals Judgement, para. 37, quoting Black’s Law Dictionary (7th ed., St. Paul, Minn. 1999). See also Kunarac Appeals Judgement, para. 39, referring to Furundzija Appeals Judgement.
8 - Serushago Sentencing Appeal Judgement, para. 32. See also Aleksovski Appeal Judgement, para. 187 and Tadic Sentencing Appeal Judgement, paras 20-22; Celebici Appeals Judgement, para. 725.
9 - Aleksovski Appeals Judgement, para. 187; Furundzja Appeals Judgement, para. 239; Tadic Sentencing Appeal Judgement, para. 22; Celebici Appeals Judgement, para. 725; Jelisic Appeal Judgement, para. 99; Serushago Sentencing Appeal, para. 32; Akayesu Appeals Judgement, para. 409.
10 - Kunarac Appeals Judgement, para. 48; Krnojelac Appeals Judgement, para. 16. The Appeals Chamber of the ICTR has held that claims that are not supported by precise references to the relevant parts of the record on appeal will normally fail, on the ground that the Appellant has not discharged the applicable burden. Kayeshima and Ruzindana Appeals Judgement, para. 137.
11 - IT/201, issued 7 March 2002.
12 - Ibid, para. 17, which provide “[w]here a party fails to comply with the requirements laid down in this Practice Direction, or where the wording of a filing is unclear or ambiguous, a designated Pre-Appeal Judge or the Appeals Chamber may, within its discretion, decide upon an appropriate sanction, which can include an order for clarification or re-filing. The Appeals Chamber may also reject a filing or dismiss submissions therein.”
13 - Ibid, paras 13-16, which provides “13. Where filings of the parties refer to passages in a judgement, decision, transcripts, exhibits or other authorities, they shall indicate precisely the date, exhibit number, page number and paragraph number of the text or exhibit referred to. 14. Any abbreviations or designations used by the parties in their filings shall be uniform throughout. Pages and paragraphs shall be numbered consecutively from the beginning to the end. 15. Any time limits prescribed under this Practice Direction shall run from, but shall not include, the day upon which the relevant document is filed. Should the last day of a time prescribed fall upon a non-working day of the International Tribunal it shall be considered as falling on the first working day thereafter. 16. The provisions of this Practice Direction are without prejudice to any such orders or decisions that may be made by a designated Pre-Appeal Judge or the Appeals Chamber. In particular a Pre-Appeal Judge or the Appeals Chamber may vary any time limit or recognise, as validly done any act done after the expiration of a time limit prescribed in this Practice Direction.” See also Kunarac Appeals Judgement, para. 44, “[a]n appellant must therefore clearly set out his grounds of appeal as well as the arguments in support of each ground. Furthermore, depending on the finding challenged, he must set out the arguments supporting the contention that the alleged error has invalidated the decision or occasioned a miscarriage of justice. Moreover, the appellant must provide the Appeals Chamber with exact references to the parts of the records on appeal invoked in its support. The Appeals Chamber must be given references to paragraphs in judgements, transcript pages, exhibits or other authorities, indicating precisely the date and exhibit page number or paragraph number of the text to which reference is made”.
14 - Kunarac Appeals Judgement, para. 48.
15 - Ibid, para. 43: “As set out in Article 25 of the Statute, the Appeals Chamber’s mandate cannot be effectively and efficiently carried out without focused contributions by the parties. In a primarily adversarial system, like that of the International Tribunal, the deciding body considers its case on the basis of the arguments advanced by the parties. It thus falls to the parties appearing before the Appeals Chamber to present their case clearly, logically and exhaustively so that the Appeals Chamber may fulfil its mandate in an efficient and expeditious manner. One cannot expect the Appeals Chamber to give detailed consideration to submissions of the parties if they are obscure, contradictory, vague, or if they suffer from other formal and obvious insufficiencies. Nonetheless, the Appeals Chamber has the obligation to ensure that the accused receives a fair trial”.
16 - Krnojelac Appeals Judgement, para. 10.
17 - The Appeals Chamber cannot be requested to give reasoned opinions on evidently unfounded submissions, see Kunarac Appeals Judgement, para. 42.
18 - AT. 18.
19 - The Appeals Chamber noted that the appellant failed to demonstrate the impact of several alleged errors, AT. 13-14, that some of the grounds submitted contained more than one ground, AT. 13, that there was repetition of arguments, AT. 15, and that some of the arguments were not clear enough for the Appeal Chamber to approach them, AT. 16.
20 - Defence Reply, para. 9.10 (under the eighth ground of appeal).
21 - Defence Appeal Brief, para. 107 (under the second ground of appeal). The Appellant restated that his kum relationship with the Lukic family was misinterpreted as close relationship with Milan Lukic himself, without explaining what the alleged error was or how this alleged error leads to a miscarriage of justice. AT. 41.
22 - Ibid, para. 102 (under the second ground of appeal). The Appellant submitted during oral argument that his detailed testimony was neither accepted as a mitigating factor nor as co-operation with the Prosecution, AT. 42-43. The Appeals Chamber is considering arguments relating to sentencing in Chapter VI.
23 - Defence Appeal Brief, paras 131-134 (under the third ground of appeal).
24 - Ibid, paras 164-165 (under the third ground of appeal). The Prosecution submits that this argument raises a new ground of appeal not contained in the notice of appeal, although the Appellant did not seek leave to do so, and that it should accordingly be rejected on this ground, Prosecution Response Brief, para. 4.26. With regard to the Prosecution’s argument that this raises a new ground of appeal, the Appeals Chamber finds that the Notice of Appeal refers to these paragraphs of the Judgement and to the fact that Serbs had been leaving until the arrival of the JNA (the Uzice Corps). The Notice of Appeal states in the relevant part that “[w]hen we deal with Findings of Facts to the general requirements under C (para 39-56 pages 2323-2329) the Defence has objections for certain conclusions and states that to the coming of Uzice Corps in Visegrad (to this event it came because of the occupation of hydro plant by Mural Sabanovic and the threat that they would inflame the barrage and make a great catastrophe) Visegrad authority was kept by the Muslim majority and then the police of Serbian nationality was separated and till then the Serbs were those who had left Visegrad. The Defence states that during Uzice corps stay, around 19 May 1992, the state of security was not or less stable and that even after the departure of Uzice Corps it came to instability and various paramilitary actions.” The Appeals Chamber therefore finds that this is not a new ground of appeal.
25 - Ibid, paras 166-167.
26 - Defence Additional Appeal Brief, paras 15-17 (under the sixth ground of appeal) the Appeals Chamber specifically asked for clarification for this argument, see AT 16. The Appellant did not clarify this argument during the appeals hearing and the Appeals Chamber is unable to understand this submission.
27 - Defence Appeal Brief, para. 232. The Appeals Chamber notes that this argument is without object as the Appellant has been acquitted for all charges relating to the Pionirska incident.
28 - Ibid, paras 155-156 (under the third ground of appeal). See also AT. 34-35.
29 - Ibid, para. 154.
30 - Prosecution Response Brief, para. 4.17.
31 - Defence Reply, para. 4.7.
32 - Defence Appeal Brief, paras 258-265.
33 - Ibid, para. 270.
34 - Ibid, para. 278; Defence Reply, para. 9.2.
35 - Ibid, para. 282.
36 - Ibid, para. 91.
37 - The Appellant’s arguments in relation to this ground of appeal are found in Defence Appeal Brief, paras 127-175.
38 - Ibid, paras 169-170.
39 - Prosecution Response Brief, para. 4.34.
40 - Ibid, para. 171.
41 - Ibid, paras 171-175. Footnote 120 of the Judgement, refers to the testimony of the Appellant at T. 1882 and 2103-2105.
42 - Prosecution Response Brief, para. 4.37. See also paras 4.35-4.40. Prosecution argues that footnote 120 of the Judgement (and the references to the Appellant’s testimony at T. 1882, 2103-2105) clearly show that the person who told him this was Stanko Pecikoza and not Milan Lukic.
43 - Judgement, para. 80.
44 - Ibid, para. 100.
45 - Ibid, para. 60.
46 - Ibid, paras 94-101 and 118-126.
47 - Ibid, paras 112-117.
48 - Defence Appeal Brief, para. 22 (under the first ground of appeal); paras 191-194 (under the fourth ground of appeal); Defence Additional Appeal Brief, paras 46-51 (under seventh ground of appeal); AT. 21-22.
49 - Ibid, para. 22; AT. 22-24.
50 - Ibid, para. 23; AT 24. The Prosecution challenges the Appellant’s finding based on the evidence that witness VG-32 confirmed that the Appellant was unarmed in the hotel (contrary to the assertions of witness VG-14). See Prosecution Response Brief, para. 2.9.
51 - Prosecution Response Brief, para. 61; AT. 24.
52 - Ibid, para. 24. See also AT. 24.
53 - Defence Appeal Brief, para. 26.
54 - Ibid, paras 28-32; Defence Additional Appeal Brief, paras 2.9-2.10. The Appellant submits that it was the same approach which led witnesses VG-32 and VG-14 to attempt to convince the Trial Chamber that they heard the exact number of clicks produced by the automatic weapons on the bank of the Drina River at the moment of the shooting, with the sole difference being that the Trial Chamber was not convinced by their testimony on this point and found in paragraph 112 of the Judgement that there must have been a process of unconscious reconstruction on their part, Defence Appeal Brief, para. 30. See also AT. 24.
55 - Prosecution Response Brief, para. 2.9.
56 - Defence Appeal Brief, paras 24 and 59-60. See also AT. 24.
57 - Prosecution Response Brief, para. 2.9.
58 - Judgement, para. 103.
59 - Ibid, footnote 239, which refers to T. 433, 440 and 457.
60 - Ibid, footnote 239, which refers to T. 261, 271 and 275.
61 - T. 261 and 271. 
62 - See exhibit P. 132.
63 - Defence Appeal Brief, paras 34-51; Defence Reply, paras 2.11-2.13. See also AT. 25.
64 - AT. 22.
65 - Defence Appeal Brief, paras 63-74. These alleged contradictions relate to the order in which the two vehicles (Yugo and VW Passat) used by Lukic and his men to take the victims to the scene of the crime arrived at the hotel and how Lukic’s men were divided between the two vehicles when they left the hotel, Defence Appeal Brief, paras 64-67; the way in which the victims, the Appellant and Lukic’s men proceeded towards the scene of the crime and whether or not the Appellant replied to the victim Meho Dzafic on that occasion that he did not know him, Defence Appeal Brief, paras 68-71. The Prosecution responds that the fact that witness VG-32 did not hear the Appellant talking while they were on the bank does not mean that he said nothing, Prosecution Response Brief, para. 2.14. The question of knowing whether the shooting began immediately after this alleged exchange or after the co-perpetrators of the shooting spoke about whether to fire individually or in bursts, Defence Appeal Brief, paras 72-74. On this last point, the Appellant alleges a contradiction in the testimony of witness VG-14; AT.25-26.
66 - Prosecution Response Brief, para. 2.13.
67 - AT. 25.
68 - Defence Appeal Brief, paras 196-197.
69 - Judgement, para. 108.
70 - T. 274-275.
71 - Defence Appeal Brief, paras 92-93.
72 - Ibid, paras 77-81.
73 - Defence Appeal Brief, para. 79.
74 - Prosecution Response Brief, para. 2.15.
75 - Judgement, para. 105 (emphasis added).
76 - Defence Appeals Brief, paras 172-175; AT. 33.
77 - AT. 116-117.
78 - See para. 51 below where it is clarified that Stanko Pecikoza’s factory was not the Varda or the Partizan Factory.
79 - AT. 118, Prosecution was citing from trial transcript T. 2105.
80 - AT. 119.
81 - During the Appeals hearing the Prosecution seemed to believe that Pecikoza’s factory was called Partizan, AT. 118.
82 - T. 2088.
83 - T. 2090.
84 - AT. 75.
85 - Exhibit P 15.1, Statement by Appellant to the Office of the Prosecutor of 17 November 2000, p. 87 (emphasis added).
86 - T. 2103-2104 (emphasis added.)
87 - T. 2104.
88 - T. 2105 (emphasis added.)
89 - T. 274-275.
90 - Defence Appeal Brief, paras 191-194 (under fourth ground of appeal). Further the Appellant argues in the Defence Additional Appeal Brief, para. 58, that the Trial Chamber made an error of fact by accepting criminal responsibility of murder on the basis of inferences stemming from the testimony of witnesses VG-14 and VG-32.
91 - Defence Appeal Brief, para. 193.
92 - Prosecution Response Brief, para. 5.12, referring to the testimony of witness VG-32, T. 268.
93 - See paras 33-45 above.
94 - See, paras 115-132 below.
95 - Defence Appeal Brief, paras 83-85 (under first ground of appeal); Defence Additional Appeal Brief, paras 43-45 (under seventh ground of appeal); Judgement, paras 82-86.
96 - Prosecution Response, para. 2.16.
97 - Judgement, para. 106 (footnotes omitted).
98 - Ibid, para. 107 (emphasis added, footnotes omitted).
99 - Defence Appeal Brief, paras 5, 87.
100 - Defence Appeal Brief, paras 5-7 (emphasis omitted); AT. 30. Moreover, the Appellant refers to witness VG-79’s sketch, presented by the Defence as exhibit D-1, Defence Appeal Brief, para. 8.
101 - T. 334.
102 - T. 338, Defence Appeal Brief, para. 15.
103 - Defence Appeal Brief, para. 16.
104 - Ibid, paras 13-14; AT. 30-31. The Appellant states that, according to the witness, the three men were wearing a dark coloured uniform whereas it is unchallenged that he himself was wearing a light coloured olive green SMB uniform that day. Furthermore, he states that the fact there was a group of willows at a distance from the sandy plateau where the shooting took place was borne out by witness VG-32 when he described the move towards the bank of the Drina River, paras 88-89.
105 - Ibid, paras 17-19. The Appellant specifies that Milan Lukic was not arrested and that the two witnesses did not know who his two associates were.
106 - Prosecution Response Brief, paras 2.5-2.6.
107 - Judgement, para. 108 (emphasis added, footnotes omitted).
108 - T. 323-324.
109 - Exhibit, D1.
110 - Judgement, para. 206.
111 - Ibid, para. 209 (footnote omitted).
112 - Ibid, para. 112.
113 - Defence Appeal Brief, para. 94 (under second ground of appeal); Defence Appeal Brief, paras 226-230 (under the sixth ground of appeal); AT. 36-37.
114 - Ibid, para. 99. The Appellant reiterates this complaint in support of his sixth ground of appeal regarding persecution, para. 229.
115 - Ibid,, paras 118-121.
116 - As of the trial, the Appellant asserted that the house in question actually belonged to a Serb, Stojan Kosoric, and denied that Milan Lukic and he had ever discussed the house as claimed by witness VG-14, Defence Appeal Brief, para. 124. In a decision dated 21 October 2003, the Appeals Chamber denied the Defence Motion for Additional Evidence filed on 24 June 2003 and the Addendum to Defence Additional Evidence Motion filed on 11 July 2003 in which the Defence requested that five Visegrad municipality documents, a video cassette and the transcript of a statement it had been given by Stojan Kosoric be admitted as additional evidence pursuant to Rule 115 of the Rules.
117 - Defence Appeal Brief, paras 95-96.
118 - Ibid, para. 126.
119 - Prosecution Response Brief, para. 3.11.
120 - According to Trial Chamber, kum is a Serbian strong family bond. The Appellant was Milan Lukic’s best man at his wedding and the godfather of Milan Lukic’s child, Judgement, paras 46, 72-77.
121 - Prosecution Response Brief, para. 3.12.
122 - Prosecution Response Brief, paras 3.29-3.35; AT. 95.
123 - Ibid, para. 3.34.
124 - Ibid, para. 3.36. See also AT. 94.
125 - Judgement, para. 75 (emphasis added and footnotes omitted).
126 - Ibid, para. 95 (emphasis added).
127 - Ibid, footnote 148.
128 - T. 436, which reads as follows: “Q. [Once in Sase] where did the cars stop? A. The cars stopped in front of a house. Mitar Vasiljevic, as he was talking to Lukic, said that this was a Muslim house. Q. When the cars stopped, what happened? A. They ordered us to get out of the car and told us not to try to escape.”
129 - T. 2265, which reads as follows: “A. Milan Lukic knew which were the Muslim and which were the Serb houses, and the house that is shown on the photograph is not a Muslim house. It's a Serb house. Kosoric is the surname. Stojan is his first name. Judge Janu: You know, I'm not familiar with the area, but the witness VG14 said when you stopped, you told to Milan Lukic that this is a Muslim house. That is in his statement. A. When the car stopped -- I couldn't have said that. I wasn't with Milan in the car. He said that in -- that there were six people in the Yugo. Judge Janu: With him in the car -- you were not in the car with Milan Lukic? A. I was in the Yugo, with Meho Dzafic, the second car, another car.” It should be noted that both witness VG-14, who was in the Passat, (T. 435), and witness VG-32, who was in the Yugo, (T. 272), stated that the Appellant and Milan Lukic were in the Passat when they went from the hotel to Sase.
130 - Prosecution closing arguments, T. 4751-4752. See Prosecution Final Trial Brief, para. 72.
131 - Prosecution Final Trial Brief, paras 54-83.
132 - Judgement, para. 90.
133 - Ibid, para. 86.
134 - Defence Appeal Brief, paras 225-230 (under sixth ground of appeal).
135 - Prosecution Response Brief, para. 7.4.
136 - Judgement, para. 251.
137 - The Trial Chamber refers in footnote 627 to paragraphs 75 and 95 of the Judgement.
138 - Judgement, para. 254.
139 - Judgement, para. 254.
140 - Defence Appeal Brief, para. 113.
141 - Ibid, para. 114. The Appellant points out that witness VG-55 testified that they arrived at the house together and that the Appellant stood by the door whereas witness VG-59 stated that Milan Lukic entered the house after the Appellant. The Appellant claims that this second version of events is untrue because he stayed on the steps near the door while Milan Lukic began the search.
142 - Ibid, para. 115. The Appellant points out that witness VG-55’s evidence shows that he gave no reply to the witness’ question on this issue whereas witness VG-59 stated at the hearing that the Appellant had spoken of some individual wanted for murder but did not discuss this in his statement.
143 - Prosecution Response Brief, paras 3.21-3.25 and 3.28.
144 - Judgement, para. 80 (footnotes omitted).
145 - Witness VG-55 testified that “Q. That evening, how did Mitar Vasiljevic and Milan Lukic arrive? A. They came as dusk was falling, Mitar Vasiljevic, and Lukic, Milan Lukic. And there were five or six other people. They stormed my father-in-law's house. Mitar stood in front of the door. And when I went outside the house I said to Mitar, "How's Milojka?" I just didn't want him to kill me, that's all I was thinking of at the time. […] Q. You said you were afraid that he would kill you. How was Mitar Vasiljevic dressed? A. Yes, that's right. He had black trousers on. I don't know what he had above that. All I know is that he was armed; he had a rifle. Q. Do you remember what kind of rifle? A. I don't really know. He was holding a rifle and the rifle was cocked. I don't know. That's all I know. And he was pointing it”, T. 563.
146 - T. 564.
147 - This is how, according to witness VG-59, the group of about ten men introduced itself, T. 656.
148 - T. 670-671.
149 - T. 564.
150 - See paras 115-132 below.
151 - Judgement, para. 211.
152 - Ibid, para. 240.
153 - Ibid, paras 266-268.
154 - Ibid, para. 208.
155 - Ibid, para. 209.
156 - Ibid, para. 239.
157 - Ibid.
158 - Ibid, para. 210.
159 - Defence Additional Appeal Brief, para. 29.
160 - Ibid, paras 30-38. See also Defence Appeal Brief, para. 238, where it was submitted that: “the Prosecution in this case didn’t establish the proof of this existence of an arrangement or understanding amounting to an agreement.”
161 - Defence Appeal Brief, para. 241 (under the seventh ground of appeal) and paras 202-212 (under the fourth ground of appeal).
162 - Ibid, paras 183 to 216 and Defence Additional Appeal Brief, paras 39-42 and 59.
163 - Ibid, paras 222-224.
164 - Defence Additional Appeal Brief, paras 32-38.
165 - Ibid, paras 52-53. The Appellant also reiterates arguments already addressed in relation to the absence of proof that he carried a weapon and to the Trial Chamber’s reliance on his failure to prevent Milan Lukic from committing the crime (see Ibid, paras 43-51, see also Section A and D of Chapter IV above).
166 - Ibid, paras 10-14.
167 - Ibid, paras 5-6.
168 - Defence Appeal Brief, paras 217-219.
169 - See Tadic Appeals Judgement, para. 188 and para. 226, which provides that “[t]he Appeals Chamber considers that the consistency and cogency of the case law and the treaties referred to above, as well as their consonance with the general principles on criminal responsibility laid down both in the Statute and general international criminal law and in national legislation, warrant the conclusion that case law reflects customary rules of international criminal law.” To reach this finding the Appeals Chamber interpreted the Statute on the basis of its purpose as set out in the report of the United Nations Secretary-General to the Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993. It also considered the specific characteristics of many crimes perpetrated in war. In order to determine the status of customary law in this area, it studied in detail the case-law relating to many war crimes cases tried after the Second World War (paras 197 et seq.). It further considered the relevant provisions of two international Conventions which reflect the views of many States in legal matters (Article 2(3)(c) of the International Convention for the Suppression of Terrorist Bombings, adopted by a consensus vote by the General Assembly in its resolution 52/164 of 15 December 1997 and opened for signature on 9 January 1998; Article 25 of the Statute of the International Criminal Court, adopted on 17 July 1998 by the Diplomatic Conference of Plenipotentiaries held in Rome) (paras 221-222). Moreover, the Appeals Chamber referred to national legislation and case-law stating that it was a matter of specifying that the notion of “common purpose,” established in international criminal law, has foundations in many national systems, while asserting that it was not established that most, if not all of the countries, have the same notion of common purpose (paras 224-225). The Tadic Appeals Chamber used interchangeably the expressions “joint criminal enterprise,” “common purpose” and “criminal enterprise,” although the concept is generally referred to as “joint criminal enterprise,” and this is the term used by the parties in the present appeal. See also, Ojdanic Decision, para. 20 regarding joint criminal enterprise as a form of commission.
170 - See in particular Tadic Appeals Judgement, paras 195-226, describing the three categories of cases following a review of the relevant case-law, relating primarily to many war crimes cases tried after the Second World War. See also Krnojelac Appeals Judgement, paras 83-84.
171 - Ibid, para. 196. See also, Krnojelac Appeals Judgement, para 84, providing that, “apart from the specific case of the extended form of joint criminal enterprise, the very concept of joint criminal enterprise presupposes that its participants, other than the principal perpetrator(s) of the crimes committed, share the perpetrators’ joint criminal intent.”
172 - Tadic Appeals Judgement, paras 202-203. Although the participants in the joint criminal enterprises of this category tried in the cases referred to were mostly members of criminal organisations, the Tadic case did not require an individual to belong to such an organisation in order to be considered a participant in the joint criminal enterprise. The Krnojelac Appeals Judgement found that this “systemic” category of joint criminal enterprise may be applied to other cases and especially to the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, para. 89.
173 - Ibid, para. 204, which held that “[c]riminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk.” The Appeals Chamber came to the conclusion that this form of liability was applicable to Dusko Tadic, para. 232.
174 - Ibid, para. 227, referring to the Essen Lynching and the Kurt Goebell cases.
175 - Ibid, where the Tadic Appeals Chamber uses the expressions, “purpose,” “plan,” and “design” interchangeably.
176 - Ibid.
177 - Ibid, paras 196 and 228. See also Krnojelac Appeals Judgement, para. 97, where the Appeals Chamber considers that, “by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadic case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers - the principal perpetrators of the crimes committed under the system - to commit those crimes.”
178 - Ibid, paras 202, 220 and 228.
179 - Ibid, para. 228. See also paras 204 and 220.
180 - Judgement, para. 63.
181 - Tadic Appeals Judgement, paras 202-203.
182 - Defence Appeal Brief, paras 180-183 (under the fourth ground of appeal) and 236 (under the seventh ground of appeal).
183 - Prosecution Response Brief, para. 8.9.
184 - Defence Reply, para. 8.3.
185 - Tadic Appeals Judgement, para. 227. See also Krnojelac Appeals Judgement, para. 97 where the Appeals Chamber considers that, by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadic case.
186 - Furundzija Appeals Judgement, para. 119.
187 - Defence Appeal Brief, para. 241.
188 - Prosecution Response, para. 8.13.
189 - Defence Reply, para. 8.5.
190 - Defence Additional Appeal Brief, para. 6.
191 - Ibid, para. 5.
192 - Prosecution Response Brief, para. 7.14.
193 - Ibid, para. 7.14.
194 - Defence Additional Reply, paras 6-7.
195 - Defence Additional Appeal Brief, para. 6.
196 - Krnojelac Appeals Judgement, para. 185 (emphasis added).
197 - See also Krnojelac Trial Judgement, para. 433 and Kupreskic Trial Judgement, para. 624.
198 - Defence Additional Brief, para. 59 (under fourth ground of appeal); Defence Appeal Brief, para. 231 (under sixth ground of appeal).
199 - Judgement, paras 113 and 208.
200 - Defence Additional Appeal Brief, para. 57 (under the fourth ground of appeal).
201 - See paras 61-67 above.
202 - Prosecution Response Brief, para. 5.8.
203 - Ibid, para. 5.10.
204 - Judgement, para. 68.
205 - Ibid, para. 113 (emphasis added). See also para. 208.
206 - Ibid, para. 95.
207 - Judgement, paras 103, 105 and 209.
208 - See paras 33-45 and 55-57 above.
209 - See paras 46-54 above.
210 - Judgement, para. 99.
211 - Ibid, para. 100.
212 - Ibid, para. 100. The Appeals Chamber notes that this Trial Chamber’s finding, which is not disputed, differs from the one at paragraph 209 that the Appellant pointed a gun at the Muslim men while they were detained at the Vilina Vlas Hotel.
213 - Ibid., paras 100 and 102.
214 - The Yugo.
215 - Ibid., para. 102.
216 - Ibid, para. 68. See above para. 120.
217 - Testimony of the Appellant, T. 1892-1893, 2124-2125.
218 - Judgement, para. 112.
219 - T. 274-275, testimony of witness VG-32.
220 - Judgement, para. 107. Testimony of witnesses VG-14 and VG-32.
221 - Ibid, para. 107.
222 - Cf. for a comparable situation in a national jurisdiction Prosecutor v. Novislav Djajic, 3St 20/96, Supreme Court of Bavaria, 23 May 1997. In this case, the accused was found guilty of, inter alia, aiding and abetting 14 murders by standing with a gun in the middle of a semi-circle that Serbs had formed around a group of Muslims who were then shot.
223 - Defence Appeal Brief, para. 216, which refers to the Appellant’s arguments in paras 205-212.
224 - Ibid, para. 206.
225 - Ibid, paras 206-212.
226 - Tadic Appeals Judgement, para. 229.
227 - See paras 145-147 below.
228 - Defence Appeal Brief, para. 23; Defence Additional Appeal Brief, paras. 10-14; Defence Additional Reply, paras 11-12.
229 - Prosecution Response Brief, paras 7.6-7.10.
230 - Ibid., paras 7.17-7.18.
231 - Defence Additional Appeal Brief, para. 21.
232 - Prosecution Response Brief, para. 7.22.
233 - Defence Additional Appeal Brief, para. 22.
234 - Ibid. para. 23.
235 - Prosecution Response Brief, paras 7.23-7.24.
236 - The Trial Chamber found in paragraph 251 of the Judgement that “The Trial Chamber has already found that the Accused acted as an informant to Milan Lukic’s group, assisting that group in locating the Muslim population of Visegrad. The Trial Chamber has already satisfied itself that the Accused did so with full awareness that the intent of Milan Lukic’s group was to persecute the local Muslim population of Visegrad through the commission of the underlying crimes. The Trial Chamber is satisfied that, in providing information to the group led by Milan Lukic, the Accused shared the intention of that group to persecute the local Muslim civilians on religious or political grounds. In order to convict the Accused for the crime of persecution, however, the Prosecution must also establish that the Accused participated in the commission of a persecutory act with a discriminatory intention. It is not sufficient to merely establish an intention to persecute. Where that act is not one of the offences enumerated in the Statute, it must be an act of equal gravity to those enumerated acts in order to form the basis of a charge of persecution”, (footnotes omitted).
237 - The Trial Chamber found in paragraphs 254-255 that “254. The Trial Chamber has already found that the Accused has individual criminal responsibility for murder punishable under Article 5 of the Statute in relation to five victims, pursuant to a joint criminal enterprise to kill the seven Bosnian Muslim men on the banks of the Drina River. The Trial Chamber is satisfied that the only reasonable inference available on the evidence is that these seven Muslim men were singled out for religious or political reasons, and that the killing of five of them were acts carried out on discriminatory grounds, namely, religious or political. The Trial Chamber is also satisfied that the acts of the Accused were in fact discriminatory, in that the men were killed only because they were Muslims. Accordingly, the Accused incurs individual criminal responsibility for the crime of persecution on the basis of the underlying crime of murder of five of the Bosnian Muslim civilians. 255. In addition, the Trial Chamber has already found that the Accused committed the offence of inhumane acts, a crime against humanity pursuant to Article 5(i) of the Statute in relation to the two survivors of the Drina River shooting. Those acts amounting to inhumane acts under Article 5 of the Statute are of sufficient gravity to constitute persecution. The Trial Chamber is satisfied that the only reasonable inference available on the evidence is that the intention to kill these two men, and the attempt to do so, were acts carried out on one of the prohibited discriminatory grounds and that these two men, like the five who were killed, were singled out for religious or political reasons. As stated in the previous paragraph, the Trial Chamber is satisfied that the acts of the Accused were in fact discriminatory in that inhumane acts were inflicted against these men only because they were Muslims” (footnotes omitted).
238 - See Krnojelac Appeals Judgement, para. 184.
239 - Judgement, para. 254. On the interpretation given by the Appeals Chamber on the requirement to “discriminate in fact”, see also Krnojelac Appeals Judgement, para. 185.
240 - See Judgement, paras 254 and 261.
241 - See Judgement, paras 238 and 261.
242 - See Krnojelac Trial Judgement, para. 488.
243 - Judgement, para. 251.
244 - Defence Appeal Brief, paras 217-219 (under the fourth ground of appeal).
245 - Jelisic Appeals Judgement, para. 82. See also Kunarac Appeals Judgement, para. 176.
246 - Defence Appeal Brief, paras 302-303.
247 - Prosecution Response Brief, paras 9.1-9.20.
248 - This part of the ground of appeal is brought in the last part of the Defence Appeal Brief.
249 - Judgement, para. 306.
250 - Defence Appeal Brief, paras 283-286.
251 - Ibid, paras 287-299; Dusko Tadic, Miroslav Kvocka, Dragoljub Pracac, Mladjo Radic, Milorad Krnojelac, Dusko Sikirica, Damir Dosen, Dragan Kolundzija, Dario Kordic, Zdarvko Mucic, were all convicted for different counts of crimes against humanity and violations of the laws and customs of war, sentenced to prison terms ranged from 3 to 25 years (only Kordic was sentenced to 25 years, Tadic and Radic were sentenced to 20 years).
252 - Prosecution Response, para. 9.19. Tadic Appeals Judgement, paras 185-237.
253 - Tadic Sentencing Appeal, paras 55-57 and 76.
254 - Defence Appeal Brief, para. 250.
255 - Ibid, para. 255.
256 - The Prosecution during the oral hearing distinguished between the efficiency of the crime, i.e. organization of the killing in such a way that no burying was necessary, and the cold-bloodedness of the killings i.e. the discussions in front of the victims whether to shoot individually or not, AT. 138.
257 - Prosecution Response, para. 9.5.
258 - Furundzija Appeals Judgement, para. 249; Aleksovski Appeals Judgement, para. 182; referring to Kupreskic Trial Judgement, para. 852. See also Jelisic Appeals Judgement, para. 94.
259 - Defence Appeal Brief, para. 251; Defence Reply, para. 9.3.
260 - Prosecution Response Brief, para. 9.6.
261 - Ibid, para. 9.6.
262 - Judgement, para. 276.
263 - T. 278.
264 - See, inter alia, T. 439, the conversation referred to is that between the Appellant and Meho Dzafic.
265 - Defence Appeal Brief, para. 252; Defence Reply, para. 9.4.
266 - Prosecution Response, para. 9.7.
267 - Judgement, para. 234.
268 - Ibid, para. 235, (emphasis added). The Trial Chamber referred to Krnojelac Trial Judgement, para. 144 and Kunarac Trial Judgement, para. 501.
269 - Judgement, para. 239.
270 - Ibid, para. 276.
271 - Defence Appeal Brief, para. 253; Defence Reply, para. 9.5.
272 - Defence Additional Appeal Brief, para. 63.
273 - Prosecution Response Brief, para. 9.8.
274 - Judgement, para. 266.
275 - Kunarac Appeals Judgement, para. 357 (footnote omitted).
276 - AT. 137 (emphasis added).
277 - Judgement, para. 258.
278 - Defence Appeal Brief, para. 267-268.
279 - Defence Reply, para. 9.7.
280 - Defence Appeal Brief, para. 268.
281 - Prosecution Response Brief, paras 9.13.
282 - Judgement, para. 297 (emphasis added).
283 - See Todorovic Sentencing Judgement, para 89; Erdemovic Second Sentencing Judgement, p. 16; Blaskic Trial Judgement, para 775; Serushago Sentencing Judgement, paras 40-41; Ruggiu Trial Judgement, paras 69-72; Simic Sentencing Judgement, para. 92; Banovic Sentencing Judgement, para 70.
284 - See Judgement, para. 296.
285 - Defence Appeal Brief, paras 271-272; Defence Reply, para. 9.8.
286 - Defence Appeal Brief, para. 273, the Appellant also argues that the other witnesses either did not want or did not dare to testify since the other accused are still at large, para. 274.
287 - Prosecution Response Brief, para. 9.16.
288 - Rule 101(B)(ii) provides: “any mitigating circumstances including the substantial co-operation with the Prosecution by the convicted person before or after conviction.”
289 - The Trial Chamber held that “[t]he Prosecution submitted that the fact that the Accused gave a statement to the Prosecution did not amount to “substantial co-operation” pursuant to Rule 101(B)(ii) as his statement “was self-serving and does not rise to the level of ‘substantial co-operation.’” The Trial Chamber does not accept the Prosecution’s argument insofar as it suggests that only a self-incriminatory statement could justify granting some mitigation of the accused for making a statement. It is true that the statement given by the Accused did not disclose anything which was not already known, or very little. But the actual content of such a statement is relevant to the amount of mitigation to give to the Accused for making it. The fact that he did give such a statement may in itself in some case be a sign of co-operation, however modest. The Trial Chamber is not satisfied that the statement given by the Accused in the present case represented “substantial” co-operation pursuant to Rule 101(B)(ii), but it does not interpret Rule 101(B)(ii) as excluding the fact that a statement was made from the matters which may be taken into account in mitigation unless such co-operation is “substantial.” Nevertheless, the co-operation which was given by the Accused was indeed modest, and it has been given very little weight,” Judgement, para. 299.
290 - See Krnojelac Appeals Judgement, paras 263-264; Jelisic Appeal Judgement, para. 99; Aleksovski Appeal Judgement, para. 99. The Appeals Chamber of the ICTR has in several cases determined that quashing a conviction would not necessarily affect the imposed sentence and may be determined by the Appeal Chamber without remitting it back to the Trial Chamber. See Musema Appeals Judgement, paras 372-373.
291 - Cf. R. v. Price (2000), 144 C.C.C. (3d) 343 at 358 (Ont. C.A.)(Can.); §3B1.2 of the 2003 United States Sentencing Guidelines, applicable to aiding and abetting through §2X2.1 of the Guidelines: “Based on the defendant’s role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between (a) and (b), decrease by 3 levels”; Regina v. Dwayne Gordon, CA (Crim Div), [2002] EWCA Crim 1637, 11 June 2002 (England); Article 27 (2) of the 1997 Chinese Penal Code (“An accomplice shall, in comparison with a principal offender, be given a lesser punishment or a mitigated punishment or be exempted from punishment”; Articles 32 (2) and 55 of the 1988 Penal Code of South Korea (Article 32 [2]: “The punishment of accessories shall be mitigated to less than that of the principals”; Article 55 [1] no. 2: “When penal servitude for life or imprisonment for life is to be mitigated, it shall be reduced to limited penal servitude, or limited imprisonment, for not less than seven years; no. 3: When limited penal servitude or limited imprisonment is to be mitigated, it shall be reduced by one-half of the term of the punishment”); Sections 27 (2), 49 of the German Penal Code (Section 27 [2]: “The punishment for the accessory corresponds to the punishment threatened for the perpetrator. It shall be mitigated pursuant to Section 49 subsection [1]”; Section 49 [1]: “If mitigation is prescribed or permitted under this provision, then the following shall apply to such mitigation: 1. Imprisonment for not less than three years shall take the place of imprisonment for life; 2. In cases of imprisonment for a fixed term, at most three-fourths of the maximum term provided may be imposed […]”); Section 34 (1) no. 6 of the Austrian Penal Code: “it is true that accomplices are normally less blameworthy than principals and therefore deserve less severe sentences”.
292 - Impugned judgment, para. 58.
293 - Impugned judgment, para. 56.
294 - Impugned judgment, paras. 46 and 72.
295 - Impugned judgment, para. 60.
296 - Judgment of the Appeals Chamber, para. 30.
297 - Impugned judgment, para. 46.
298 - Impugned judgment, para. 75. See also para. 95.
299 - Judgment of the Appeals Chamber, paras. 74.
300 - Impugned judgment, paragraph 95. Emphasis added.
301 - Impugned judgement, para. 99.
302 - Judgment of the Appeals Chamber, para. 37.
303 - Impugned judgment, para.105.
304 - Judgment of the Appeals Chamber, para. 53. See also, ibid., para. 124.
305 - Judgment of the Appeals Chamber, para. 53.
306 - See judgment of the Appeals Chamber, paras. 46-54.
307 - See judgment of the Appeals Chamber, para. 53.
308 - In Musema, ICTR-96-13-A, of 16 November 2001, para. 20, the ICTR Appeals Chamber said, “It does not necessarily follow that because a Trial Chamber did not refer to any particular evidence or testimony in its reasoning, it disregarded it.” In paragraph 21 it added: “It is for an appellant to show that the finding made by the Trial Chamber is erroneous and that the Trial Chamber indeed disregarded some item of evidence, as it did not refer to it.” In this regard, unless the Trial Chamber has remained silent before a startling piece of evidence, its silence does not show that it failed to take account of the evidence. See and consider R. v. London Borough of Brent B.C., ex parte Barisse (1999), 31 HLR 50 at 58. There is nothing particularly startling about the particular piece of evidence in this case, more especially as, on my interpretation, it coincides with the conclusion reached by the Trial Chamber.
309 - Impugned judgment, para.105, and judgment of the Appeals Chamber, para. 53.
310 - Judgment of the Appeals Chamber, para. 128. See also, ibid., para. 132.
311 - Judgment of the Appeals Chamber, paras. 60 and 86.
312 - Impugned judgment, para. 111.
313 - Impugned judgment, para. 106.
314 - Defence Respondent’s Brief against Prosecution Respondent’s Brief of 18 August 2003, dated 2 September 2003, para. 2.6. See also Defence Appellant’s Brief Against Judgment of November 29, 2002, dated 24 June 2003, paras. 5, 9, 10, 12, 87 and 89
315 - Transcript of the Appeals Chamber, 18 November 2003, p. 30, Mr Domazet.
316 - Transcript of the Appeals Chamber, 18 November 2003, p. 149, where Mr Domazet said “that the fact that he didn’t come up close, that he stayed behind in the bushes was when [sic] he saw Lukic lining them up and that the three of them were taking up positions like a firing squad and that they were going to kill them and there was nothing more that he could do.”
317 - Impugned judgment, para. 108 (footnotes omitted).
318 - See paragraph 24 below on consciousness of guilt, discussed in, inter alia, R. v. Franklin, [2001] A Crim R 223.
319 - Impugned judgment, para. 297.
320 - Judgment of the Appeals Chamber, paras. 67, 177 and 179, respectively.
321 - Judgment of the Appeals Chamber, para. 86. See also, ibid., paras. 67 and 128.
322 - Judgment of the Appeals Chamber, paras. 45, 67 and 134.
323 - Impugned judgment, para. 109 (footnotes omitted).
324 - Impugned judgment, para. 110.
325 - Impugned judgment, para. 209; and see judgment of the Appeals Chamber, para. 134.
326 - Impugned judgment, para. 98.
327 - Judgment of the Appeals Chamber, para. 86. See also, ibid., paras. 67 and 128.
328 - See R. v. Franklin, [2001] A Crim R 223, and the authorities collected in it.
329 - Impugned judgment, paras. 112-113, footnotes omitted.
330 - For the effect of withdrawal, see Pinkerton v. United States, 328 U.S. 640 (1946) at 646.
331 - See judgment of the Appeals Chamber, para. 111. And see R. v. Salmon (1880) 6 Q.B.D.79; R. v. Swindall and Osborne (1846) 2 C. & K. 230; and Du Cros v. Lambourne [1907] 1 K.B. 40. It is different if all that can be proved is that one of the persons, but not whether any particular person, committed the crime and there is no proof that they all shared a common intent to commit it or that there is no criminal legal nexus among them.
332 - See impugned judgment, paras. 209-210.
333 - The argument seems to be alluded to in paragraph 129 of the judgment of the Appeals Chamber, which reads: “The Trial Chamber did not find, however, that the Appellant acted at the same level of authority or with the same degree of control over the killings as the other three actors.”
334 - Mr Knoops, co-counsel for the appellant, Transcript of the Appeals Chamber, 18 November 2003, p. 50. And see, ibid., pp. 47, 48, 49, 126, 127, 144, 145, 154 and 155, for defence and prosecution arguments on the point.
335 - Mr Knoops, co-counsel for the appellant, Transcript of the Appeals Chamber, 18 November 2003, p. 50. See also (Additional) Defence Appeal Brief, dated 24 June 2003, para. 56, stating “the Trial Chamber deduces this alleged personal participation of the accused in this joint criminal enterprise from his assumed possibility and power to intervene in the actions of Milan Lukic and his group.”
336 - Tadic, IT-94-1-A, 15 July 1999, para. 186.
337 - Claus Roxin, Täterschaft und Tatherrschaft, 6th ed. (Berlin and New York, 1994), pp. 278-279, cited in Stakic, IT-97-24-T, 31 July 2003, para. 440 (the two pages from Roxin being translated into English by the Registry of the ICTY). The famous Sirius case in Germany shows the excesses resulting from a subjective approach. In contrast, there is the more objective approach of the control theory. As it is put in Nigel Foster and Satish Sule, German Legal System and Laws, 3rd ed. (Oxford, 2002), at p. 331, “Control over the crime may arise from …, in cases of jointly committed offences, control over a contributing act that is necessarily causal for commission of the crime.” That is to say, if the contribution is not made, the joint offence cannot be committed; thus the contributing offender has control over the joint offence.
338 - G. P. Fletcher, Rethinking Criminal Law (Oxford, 2000), p. 642, and Andrew Ashworth, Principles of Criminal Law, 2nd ed. (Oxford, 1995), pp. 410, 415, 439 and 441.
339 - Tadic, supra, para. 199, recalling Trial of Valentin Feurstein and others, Proceedings of a Military Court held at Curiohaus, Hamburg, B.A.O.R., Germany (4-24 August, 1948), summing up of 24 August 1948 (original transcripts in Public Record Office, Kew, Richmond; on file with the International Tribunal’s Library).
340 - See, for example, R. v. Franklin, [2001] A Crim R 223, at paras. 35ff of the judgment of Brooking JA.
341 - Impugned judgment, IT-98-32-T, of 29 November 2002, paras. 107 and 305. See also para. 41 below.
342 - Tadic, IT-94-1-A, 15 July 1999, para. 186.
343 - Impugned judgment, para. 107.
344 - See para. 60 of the judgment of the Appeals Chamber.
345 - 3 St 20/96, 23 May 1997, referred to in footnote 223 of the Appeals Chamber’s judgment. See also a review of the Djajic decision by Christoph J.M. Safferling in (1998) 92 A.J.I.L. 528.
346 - 3 St 20/96, 23 May 1997., p. 39; English translation by the Registry of the ICTY.
347 - Ibid., p. 90.
348 - Ibid., p. 91.
349 - Ibid., p. 39.
350 - See the reasoning relating to aiding and abetting in National Coal Board v. Gamble, (1959( 1 Q.B. 11, concurring opinion of Devlin J, and in DPP for Northern Ireland v. Lynch, [1975] AC 653, HL, dissenting opinion of Lord Simon of Glaisdale.
351 - Tadic, IT-94-1-A, 15 July 1999, para. 192.
352 - Impugned judgment, paras. 107 and 305. And see paragraph 34 above.
353 - Judgment of the Appeals Chamber, para. 131.
354 - Case IT-96-22-A, 7 October 1997, p. 17, para. (4) of part iv of the judgment, a majority one.
355 - Impugned judgment, paras. 254 and 255.
356 - See para. 60 of the judgment of the Appeals Chamber.
357 - Notice of Appeal Against the Trial Judgement of 29 November 2002 (First Notice of Appeal). In its First Notice of Appeal the Defence also requested to exceed the 75 days provided for in Rule 111 of the Rules for filing the Appellant’s Brief since the translation of the Judgement into a language the Appellant understands, i.e. BCS, was not yet available, it was suggested that the 75 days would start when the translation was available.
358 - Prosecution Motion Concerning Defects in the Defence Notice of Appeal and Response to Defence Motion for Extension of Time, 3 January 2003. The Defence responded to the Prosecution motion on 21 January 2003. Defence Reply to the Prosecution Motion Concerning Defects in the Defence Notice of Appeal and Defence Reply to the Prosecution Motion Concerning Defence Motion for Extension of Time Limited, 21 January 2003.
359 - Decision on Prosecution Motion Concerning Defects in the Defence Notice of Appeal and on Defence Motion for Extension of Time, 29 January 2003.
360 - Notice of Appeal against Judgement of November 29, 2002 (Defence Notice of Appeal).
361 - Defence Motion for the Extension of Time, 29 May 2003.
362 - Prosecution Response to Defence Motion for Extension of Time, 30 May 2003, submitting that the reasons filed by the Defence for the extension of time are not a “good cause” within the meaning of Rule 127(A) of the Rules.
363 - Decision on Defence and Prosecution Motions for Extension of Time, 3 June 2003. The Pre-Appeal Judge found that the circumstances raised both by the Defence and the Prosecution motions constitute good cause within the meaning of Rule 127 of the Rules. He also considered that it is in the interest of justice to allow the Defence the adequate time to adjust for the changes they have made in the composition of their team, p. 3.
364 - Prosecution Respondent’s Brief, filed confidentially on 18 August 2003.
365 - Defence Respondent’s Brief Against Prosecution Respondent’s Brief of 18 August 2003, filed confidentially on 2 September 2003.
366 - (Additional) Defence Brief in Reply, 2 September 2003.
367 - Order to File Redacted Public Versions, 6 November 2003.
368 - Defence Appeal Brief, paras 1 and 90.
369 - Prosecution Response Brief, para. 2.3.
370 - Prosecution Response Brief, para. 2.4.
371 - Defence Additional Appeal Brief, para. 3.
372 - Judgement, paras 92-93.
373 - Ibid, paras 94-101 and 118-126.
374 - Ibid, paras 102-105.
375 - Ibid, paras 106-111.
376 - Ibid, paras 112-117.
377 - Prosecution Response Brief, paras 3.2-3.3.
378 - Defence Appeal Brief, paras 127-175.
379 - Defence Reply, para. 4.14, the Appellant submitted that the Trial Chamber erred in finding that he had the “requisite knowledge of criminal activity of the Lukic group s [sic] criminal activity before 7 June 1992”.
380 - Prosecution Response Brief, paras 4.2-4.3.
381 - Defence Appeal Brief, para. 55-59; Defence Additional Appeal Brief, paras 176-224.
382 - Prosecution Response, para. 5.10.
383 - Judgement, para. 307.
384 - Defence Appeal Brief, paras 222-224.
385 - Prosecution Response Brief, para. 6.3.
386 - Defence Appeal Brief, paras 226-230.
387 - Defence Additional Appeal Brief, para. 231.
388 - Ibid, paras 8-9; also Defence Additional Reply, paras. 8-10.
389 - Ibid, para. 18.
390 - Prosecution Response, para 7.8.
391 - Defence Additional Appeal Brief, paras 26-29.
392 - Defence Appeal Brief, para. 241.
393 - Ibid, para 236-238; Defence Additional Appeal Brief, paras 30-32.
394 - Defence Additional Appeal Brief, paras 32-38.
395 - Ibid, paras 39-42.
396 - Ibid, paras 43-45.
397 - Ibid, paras 46-51.
398 - Ibid, paras 52-53.
399 - Defence Appeal Brief, paras 239-240.
400 - Prosecution Response, para. 8.5.
401 - Defence Appeal Brief, paras 302-303.
402 - Prosecution Response Brief, paras 9.1-9.20.
403 - Order of the President Assigning Judges to a Bench of the Appeals Chamber, filed on 9 January 2003, French being authoritative. On 24 January 2003, Judge Jorda signed an order assigning Judge Jorda to replace Judge Pocar on the Bench of the Appeals Chamber, filed on 31 January 2003, French being authoritative.
404 - Order Assigning a Pre-Appeal Judge, filed 5 February 2003, French being authoritative.
405 - Order Assigning a Judge to a Case Before the Appeals Chamber, filed on 18 June 2003.
406 - Order Replacing a Judge in a Case Before the Appeals Chamber, filed 26 September 2003.
407 - D-51 Buying and selling contract from 10 September 1985; D-52 Object location from 23 March 1988, D-53 General agreement of the electricity supply enterprise from 29 April 1988; D-54 Decision act of Visegrad Municipality for agricultural agreement from 18 May 1998; D-55 Decision act of Visegrad Municipality for building permit from 9 September 1988; D-56 Video tape of Stojan Kosoric of the house in Sase, 2 March 2003; D-57 Transcript of Stojan Kosoric tape.
408 - On 4 July, the Senior Legal Officer informed the Appellant that the Defence Motion was lacking necessary details and therefore the Appellant would be granted leave to file an addendum to the motion, Letter from John Hocking dated 4 July 2003 and response from Defence Counsel Mr Vladimir Domazet dated 7 July 2003. Scheduling Order signed on 8 July 2003 by the Pre-Appeal Judge granted leave to the Defence to file an addendum to the Additional Evidence Motion, no later than 11 July 2003 and the Prosecution to file its response no later than 18 July 2003. The Defence were allowed to file its reply to the Prosecution response if it so wishes not later than 22 July 2003.
409 - Prosecution Response to Defence Motion for Additional Evidence, 17 July 2003. The Appellant replied on 22 July 2003 and reargued that the proposed additional evidence could have been a decisive factor at trial and that it is in the interest of justice to admit the evidence as additional evidence, Defence Response to Prosecution Motion Dated 17 July 2003.
410 - Decision on Application of Additional Evidence, 21 October 2003.
411 - Scheduling Order, 22 October 2003.