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Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

5.       Rule 142 of the Rules provides for the admission of additional evidence on appeal, and the Appeals Chamber finds that, in accordance with the jurisprudence of the ICTR and the International Tribunal for the former Yugoslavia (“ICTY”), this provision is applicable to appeals of decisions issued pursuant Rule 14 of the Rules.[1] According to Rule 142(A) of the Rules, a motion for the admission of additional evidence shall clearly identify with precision the specific finding of fact made by the trial chamber to which the evidence is directed. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[2] The applicant must also show that the additional evidence is relevant to a material issue at trial and credible.[3] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 142(C) of the Rules whether it could have been a decisive factor in reaching the Impugned Decision.[4]

6.       Where, however, the evidence was available during the revocation proceedings or could have been discovered through the exercise of due diligence, it may still be admissible on appeal pursuant to Rule 142(C) of the Rules if the applicant shows that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the Impugned Decision.[5]

7.       In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s decision.[6] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[7]

See also para. 39.

[1] See Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s First and Second Motions for Admission of Additional Evidence, 25 February 2013 (“Munyagishari Decision of 25 February 2013”), para. 5; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence before the Appeals Chamber pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Decision of 16 November 2005”), para. 6.

[2] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24; Munyagishari Decision of 25 February 2013, para. 5.

[3] Ngirabatware Decision of 21 November 2014, para. 25; Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10.

[4] Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. Cf. Ngirabatware Decision of 21 November 2014, para. 26.

[5] Cf. Ngirabatware Decision of 21 November 2014, para. 27; Munyagishari Decision of 25 February 2013, para. 6; Mejakić et al. Decision of 16 November 2005, para. 12.

[6] Cf. Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

[7] Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

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ICTR Rule Rule 115 ICTY Rule Rule 115 IRMCT Rule Rule 142
Notion(s) Filing Case
Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

14.     […] [T]he Appeals Chamber recalls that a party must establish that the evidence sought to be admitted was not available at trial “in any form whatsoever”.[1] […]

[…]

27.     Notwithstanding, for additional evidence to have been unavailable in the first instance, it must not have been available at trial “in any form whatsoever”.[2] […]

[1] Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motions for Admission of Additional Evidence and Investigation on Appeal, 27 September 2010 (“Renzaho Decision of 27 September 2010”), para. 19 (emphasis omitted).

[2] Renzaho Decision of 27 September 2010, para. 19 (emphasis omitted).

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ICTR Rule Rule 115 ICTY Rule Rule 115 IRMCT Rule Rule 142
Notion(s) Filing Case
Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

72.     The Appeals Chamber reiterates that the purpose of Rule 142 of the Rules is to address instances where a party is “in possession of material” that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial.[1] As repeatedly held by the ad hoc Tribunals, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted to allow it to determine whether the evidence meets the requirements of relevance and credibility.[2]

[…]

76.     The Appeals Chamber has the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings.[3] However, Rule 142 of the Rules does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage.[4] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence, which the Appeals Chamber may admit as additional evidence pursuant to Rule 142 of the Rules and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[5]

[1] See, e.g., Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Théoneste Bagosora’s Motion for Admission of Additional Evidence, 7 February 2011 (“Bagosora et al. Decision of 7 February 2011”), para. 8; Renzaho Decision of 27 September 2010, para. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR‑01‑70-A, Decision on Rukundo’s Motion for the Admission of Additional Evidence on Appeal, 4 June 2010, para. 5; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008 (“Hategekimana Decision of 2 October 2008”), para. 5; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006 (“Nahimana et al. Decision of 5 May 2006”), para. 20; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001 (“Kupreškić et al. Decision of 8 May 2001”), para. 5.

[2] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Prosecutor v. Dragomir Milošević, Case No. IT‑98‑29/1-A, Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009, para. 18; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 13; Hategekimana Decision of 2 October 2008, paras. 7, 8. See also Practice Direction on Requirements and Procedures for Appeals, MICT/10, 6 August 2013, para. 12(e), providing that a party applying to present additional evidence pursuant to Rule 142 of the Rules shall do so by way of a motion filed containing “an appendix with copies of the evidence the party is applying to present before the Appeals Chamber”.

[3] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20. Kupreškić et al. Decision of 8 May 2001, para. 5.

[4] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20; Kupreškić et al. Decision of 8 May 2001, paras. 5, 10.

[5] See, e.g., Bagosora et al. Decision of 7 February 2011, paras. 8, 9; Nahimana et al. Decision of 5 May 2006, para. 20. Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence before the Appeals Chamber, 30 June 2005 (“Galić Decision of 30 June 2005”), para. 87; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on the Request for Presentation of Additional Evidence, 18 November 2003, para. 13. 

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ICTR Rule Rule 115 ICTY Rule Rule 115 IRMCT Rule Rule 142
Notion(s) Filing Case
Decision on a Motion for an Extension of a Word Limit - 08.09.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 2-3:

RECALLING that, pursuant to paragraphs 6(a) and 7 of the Practice Direction on Lengths of Briefs and Motions, an appellant’s and a respondent’s briefs in an appeal from a trial judgment should not exceed 30,000 words where the appeal is not restricted to sentencing issues;[1]

RECALLING that, pursuant to paragraph 17 of the Practice Direction, a party must seek advance authorization to exceed the word limits set out in the Practice Direction, and must provide an explanation of the exceptional circumstances that necessitate the oversized filing;

RECALLING FURTHER that, pursuant to the same paragraph of the Practice Direction, a judge may dispose of a motion for an extension of a word limit without hearing the other party unless it is considered that there is a risk that the other party may be prejudiced;

EMPHASIZING that the quality and effectiveness of an appeal brief do not depend on its length, but on the clarity and cogency of the arguments presented and that, therefore, excessively long briefs do not necessarily facilitate the efficient administration of justice;[2]

[1] Practice Direction on Lengths of Briefs and Motions, MICT/11, 6 August 2013 (“Practice Direction”).

[2] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A, Decision on Stanišić’s Urgent Request for Extension of Word Limit, 31 October 2013 (“Stanišić and Simatović Decision of 31 October 2013”), p. 2; Georges A.N. Rutaganda v The Prosecutor, Case No. IT-96-03-R68, Decision on Motion for Leave to Exceed the Word Limit, 23 February 2010, p. 2.

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Other instruments Paragraphs 6(a), 7, and 17 of the Practice Direction on Lengths of Briefs and Motions
Notion(s) Filing Case
Decision on Croatia's Amicus Curiae Application - 18.07.2016 PRLIĆ et al.
(IT-04-74-A )

9.          […] The Appeals Chamber further observes that the Tribunal’s jurisdiction is restricted to “natural persons” and the Tribunal does not have the competency to make findings on state responsibility.[1] […]

[1] Statute of the Tribunal, Arts 1, 6-7. See also Gotovina and Markač Decision of 8 February 2012 [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8 February 2012], para. 12.

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Notion(s) Filing Case
Decision on Redacted Versions of Decisions - 18.07.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 3:

RECALLING that, with regard to confidential material, the Mechanism must find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses and the confidentiality of sensitive information;[1]

[1] See Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016 (“Appeals Chamber Decision of 10 May 2016”), p. 2 and references cited therein. 

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Notion(s) Filing Case
Decision on Redacted Versions of Decisions - 18.07.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 4:

CONSIDERING that legal certainty presupposes respect for the principle of res judicata, which holds that no party is entitled to seek a review of a final and binding decision or judgment merely for the purpose of obtaining a rehearing and a fresh determination of the same issue;[1]

[1] See Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 202 (“The doctrine [of res judicata] refers to a situation when ‘a final judgement on the merits’ issued by a competent court on a claim, demand or cause of action between parties constitutes an absolute bar to a ‘second lawsuit on the same claim’ between the same parties”). See also, e.g., Brumărescu v. Romania [1999] ECHR 105 at para. 61, (“[o]ne of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question”); Ryabykh v. Russia [2003] ECHR 396 at para. 52 (“Legal certainty presupposes respect for the principle of res judicata, that is the principle of finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case”).

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Notion(s) Filing Case
Decision on Redacted Versions of Decisions - 18.07.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 5:

CONSIDERING […] that issuing public redacted versions of the Decisions will ensure the public nature of these proceedings to the extent possible while the interests of the parties on whose behalf the ex parte status was granted can be adequately protected by appropriate redactions;

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

1036. The Appeals Chamber recalls that the mens rea for extermination has been defined as the intention of the perpetrator to: (i) kill on a large scale; or (ii) systematically subject a large number of people to conditions of living that would lead to their deaths.[1] In this regard, the Appeals Chamber recalls that it has consistently held that the elements of the crime of extermination are the same as those required for murder as a crime against humanity, with the difference that extermination is killing on a large scale.[2] As such, the Appeals Chamber considers that the mens rea for extermination to “(i) kill on a large scale” can be met by establishing the mens rea for murder as a crime against humanity – i.e. the intent to: (i) kill the victim; or (ii) wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death[3] – plus the additional intention to do so on a large scale.[4]

[1] Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, paras 259-260. See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 45.

[2] Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, para. 260. See Popović et al. Appeal Judgement, para. 701.

[3] Kvočka et al. Appeal Judgement, para. 261.

[4] In this regard, the Appeals Chamber also recalls that “[t]]he principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime” (Boškoski and Tarčulovski Appeal Judgement, para. 66, quoting Naletilić and Martinović Appeal Judgement, para. 114). Thus, for a conviction of extermination, not only the actus reus but also the mens rea must encompass the large scale element.

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ICTR Statute Article 3(b) ICTY Statute Article 5(b)
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

1021.  The Appeals Chamber recalls that the actus reus of extermination is “the act of killing on a large scale”.[1] It is this element of “massiveness” that distinguishes the crime of extermination from the crime of murder.[2] However, the expression “on a large scale” does not suggest a strict numerical approach with a minimum number of victims.[3] While extermination as a crime against humanity has been found in relation to the killing of thousands, it has also been found in relation to far fewer killings.[4]

1022.  The assessment of “large scale” is made on a case‑by‑case basis, taking into account the circumstances in which the killings occurred.[5] The Appeals Chamber has found that relevant factors include but are not limited to: (i) the time and place of the killings;[6] (ii) the selection of the victims and the manner in which they were targeted;[7] (iii) the type of victims;[8] (iv) whether the killings were aimed at the collective group rather than victims in their individual capacity;[9] and (v) the population density of the victims’ area of origin.[10] These factors do not constitute elements of the crime of extermination as a crime against humanity, but rather are factors which a trier of facts may take into account when assessing whether or not the “large scale” element is satisfied.[11] Moreover, separate killing incidents may be aggregated for the purpose of meeting the “large scale requirement” if the killings are considered to be part of one and the same operation.[12] Whether killings are part of the same operation must be assessed on a case‑by‑case basis taking into account the circumstances in which they occurred.[13] As held by the ICTR Appeals Chamber, collective consideration of distinct events committed in different locations, in different circumstances, by different perpetrators, over an extended period of time cannot satisfy the requirement of killing on a large scale.[14]

[…]

1027.  […] [T]he Appeals Chamber considers that while a trial chamber may take into consideration the time frame when assessing whether killings are part of the same operation,[15] the jurisprudence does not establish specific time limits as a requirement for extermination.[16] Rather, as set out above, it is the collective consideration of factors, including the time frame, which should be taken into account in determining whether the killings formed part of the same operation and thus whether they may be aggregated.[17] […]

1028.  Further, the Appeals Chamber notes that Župljanin offers no support for his statement that killings may only be aggregated when at least one of the incidents in itself is considered large scale,[18] and it finds no support for this proposition in the Tribunal’s case law.[19] […]

[1] Tolimir Appeal Judgement, para. 146; Lukić and Lukić Appeal Judgement, para. 536, referring to Stakić Appeal Judgement, para. 259, Ntakirutimana and Ntakirutimana Appeal Judgement, para. 516; Karemera and Ngirumpatse Appeal Judgement, para. 660. See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 44.

[2] Tolimir Appeal Judgement, para. 146; Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, para. 260; Ntakirutimana and Ntakirutimana Appeal Judgement, para. 516. See Trial Judgement, vol. 1, para. 44.

[3] Lukić and Lukić Appeal Judgement, para. 537; Stakić Appeal Judgement, para. 260; Ntakirutimana and Ntakirutimana Appeal Judgement, para. 516.

[4] Lukić and Lukić Appeal Judgement, para. 537. In the Lukić and Lukić case, the Appeals Chamber found that the killing of 59 persons was sufficiently large so as to constitute extermination (Lukić and Lukić Appeal Judgement, para. 543). In the Akayesu case, the ICTR Appeals Chamber upheld the finding that the killing of 16 persons constituted extermination (see Akayesu Appeal Judgement, paras 423-424; Akayesu Trial Judgement, paras 737-744).

[5] Lukić and Lukić Appeal Judgement, para. 538, referring to Martić Trial Judgement, para. 63, Stakić Trial Judgement, para. 640, Brđanin Trial Judgement, para. 391, Blagojević and Jokić Trial Judgement, para. 57; Krajišnik Trial Judgement, para. 716, Nahimana et al. Trial Judgement, para. 1061. See Brđanin Appeal Judgement, para. 472, finding “that the scale of the killings, in light of the circumstances in which they occurred, meets the required threshold of massiveness for the purposes of extermination” (emphasis added).

[6] Lukić and Lukić Appeal Judgement, para. 538.

[7] Lukić and Lukić Appeal Judgement, para. 538.

[8] Lukić and Lukić Appeal Judgement, para. 542.

[9] Lukić and Lukić Appeal Judgement, para. 538.

[10] Lukić and Lukić Appeal Judgement, paras 539, 542-543.

[11] Lukić and Lukić Appeal Judgement, para. 542.

[12] Tolimir Appeal Judgement, para. 147; Karemera and Ngirumpatse Appeal Judgement, paras 661-662; Bagosora and Nsengiyumva Appeal Judgement, para. 396.

[13] Cf. Tolimir Appeal Judgement, para. 149.

[14] Karemera and Ngirumpatse Appeal Judgement, para. 661; Bagosora and Nsengiyumva Appeal Judgement, para. 396.

[15] See supra [Stanišić and Župljanin Appeal Judgement]], para. 1022.

[16] See Tolimir Appeal Judgement, para. 147, stating that “[i]]t is not required that that the killings be on a vast scale in a concentrated location over a short period of time.” See also Karemera and Ngirumpatse Appeal Judgement, para. 661; Bagosora and Nsengiyumva Appeal Judgement, para. 396.

[17] Tolimir Appeal Judgement, para. 147; Karemera and Ngirumpatse Appeal Judgement, para. 661; Bagosora and Nsengiyumva Appeal Judgement, para. 396. See supra [Stanišić and Župljanin Appeal Judgement]], para. 1022.

[18] See Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 228.

[19] The Appeals Chamber notes that in the Brđanin case, the Trial Chamber found killings occurring in separate incidents between 22 April 1992 and 18 December 1992 to collectively amount to extermination (10 victims at Manjača detention camp, 94 victims at Omarska detention camp, 20 victims at Trnopolje detention camp, 20 victims in the Sanski Most Incident, 4 victims in front of Manjača Camp, 190 victims at Room 3 Keraterm detention camp, 200 victims at Korićanske Stijene, 11 victims at Petar Kočić elementary school, 144 victims at Biljani, 45 victims at Teslić TO). It however did not convict Brđanin for extermination, and this finding was not challenged on appeal (see Brđanin Trial Judgement, paras 436-465, 467, 478-479).

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ICTR Statute Article 3(b) ICTY Statute Article 5(b)
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

32. On the issue of disqualification of Judges, Rule 15(A) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provides that “[a] Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality.”[1] In light of Article 13 of the Statute – which requires Judges to be, inter alia, impartial – Rule 15(A) of the Rules has been interpreted and applied in accordance with the principle that a Judge is not impartial if actual bias or an unacceptable appearance of bias exists.[2] The Appeals Chamber also notes that a Judge who has not met the requirements of this Rule in a specific case has otherwise been entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases when he fulfils the requirements of Rule 15 of the Rules in those other cases.[3] The Appeals Chamber therefore considers that determinations of actual bias or unacceptable appearance of bias under Rule 15 of the Rules should be made on a case‑by‑case basis.[4] Accordingly, the Appeals Chamber finds that Judge Harhoff’s disqualification in the Šešelj case, which was determined pursuant to Rule 15 of the Rules, does not automatically disqualify him from other cases. Stanišić and Župljanin therefore cannot rely on a finding of apparent bias made in another case and must instead show that those actions of Judge Harhoff which allegedly demonstrate an unacceptable appearance of bias, impacted on his impartiality in their trial proceedings.[5]

33. Additionally, as held by the Appeals Chamber, there has been no general finding or final determination on Judge Harhoff’s partiality with regard to the present case,[6] and the factual findings in the Šešelj Decisions were limited to the particular circumstances of that case.[7] The Appeals Chamber emphasises in this respect that, as a rule, factual findings made by one chamber are not binding upon subsequent chambers.[8] The Appeals Chamber also does not find Stanišić and Župljanin’s argument that the Šešelj case and the current proceedings are “identical” to be persuasive.[9] Recalling that it is the burden of the party seeking disqualification of a Judge to demonstrate a reasonable apprehension of bias,[10] the Appeals Chamber notes that the arguments presented in the Šešelj case, as well as the evidence considered, differ from those in this case, and that in the Šešelj case, the Letter was sent by Judge Harhoff while the case was ongoing.[11] Thus, Stanišić and Župljanin’s reliance on the findings in the Šešelj case is insufficient to meet their burden of proof. Furthermore, the Appeals Chamber considers that Stanišić takes out of context the Acting President’s Order Replacing Judge Harhoff in the Šešelj proceedings.[12] It is clear that the relevant statement in the order, i.e. that Judge Harhoff’s disqualification was “therefore now final”, concerned the finality of the disqualification pursuant to Rule 15 of the Rules in the Šešelj proceedings and related only to that case.[13] Similarly, Stanišić and Župljanin’s argument that a different conclusion on Judge Harhoff’s impartiality in this case would invalidate the Šešelj Decisions is without merit and is dismissed.

[1] See Šainović et al. Appeal Judgement, para. 179.

[2] Furundžija Appeal Judgement, paras 189-191; Šainović et al. Appeal Judgement, paras 179-181. See Furundžija Appeal Judgement, para. 175 (noting that Rule 15(A) of the Rules calls for a Judge to withdraw from a particular case if he or she believes that his or her impartiality is in question).

[3] See Čelebići Appeal Judgement, para. 683 (stating that the “relevant question to be determined by the Appeals Chamber is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that [the Judge]] might not bring an impartial and unprejudiced mind to the issues arising in the case” (emphasis added)). See also Delalić et al. Disqualification and Recusal Decision [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision of the Bureau on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 October 1999]], para. 9 (“If the Judge does not fulfil the requirements referred to in Rule 15(B), he or she is disqualified from hearing that particular case, although he or she is fully entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases”).

[4] See Delalić et al. Disqualification and Recusal Decision, paras 9-10. See also Prosecutor v. Chea Nuon et al., Case No. 002/19-09-2007/ECCC/TC, Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests, 28 January 2011, para. 7 (“It follows that a finding of bias in a case does not by itself require the judge’s disqualification from other, unrelated cases.”).

[5] See Furundžija Appeal Judgement, paras 197 (“It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that Judge Mumba was not impartial in his case”), 200 (“even if it were established that Judge Mumba expressly shared the goals and objectives […]] in promoting and protecting the human rights of women, that inclination, being of a general nature, is distinguishable from an inclination to implement those goals and objectives as a Judge in a particular case”).

[6] See Decision on Mićo Stanišić’s Motion requesting a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement, 2 April 2014 (“Mistrial Decision”), para. 25.

[7] Decision on Mićo Stanišić’s Motion Seeking Reconsideration of Decision on Stanišić’s Motion for Declaration of Mistrial and Župljanin’s Motion to Vacate Trial Judgement, 24 July 2014, para. 15, referring to Mistrial Decision, para. 25.

[8] See Mistrial Decision, para. 25 (with references cited therein).

[9] See supra [Stanišić and Župljanin Appeal Judgement]], para. 30.

[10] See Furundžija Appeal Judgement, para. 197; supra [Stanišić and Župljanin Appeal Judgement]], para. 44.

[11] See e.g. Šešelj Decision on Disqualification [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Defence Motion for Disqualification of Judge Frederik Harhoff and Report to the Vice-President, 28 August 2013]], paras 2 (the Šešelj Defence argued that Judge Harhoff had a strong inclination to convict accused persons of Serbian ethnicity, and contended that contempt proceedings should be initiated), 8-14 (no consideration in the Šešelj case of the Rebuttal Material); Šešelj Reconsideration Decision [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration of Decision on Disqualification, Requests for Clarification, and Motion on Behalf of Stanišić and Župljanin, 7 October 2013]], paras 12‑20 (no consideration in the Šešelj case of the Media Articles, but the Special Chamber found that the Memorandum was immaterial and not probative).

[12] See supra [Stanišić and Župljanin Appeal Judgement]], para. 30; Šešelj Order Replacing Judge Harhoff [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013]].

[13] Šešelj Order Replacing Judge Harhoff, p. 1.

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

45. As a preliminary matter, insofar as Župljanin argues that the reasonable apprehension of bias test should be applied with “reference to a reasonable observer properly informed from any of the ethnic groups affected by Judgements of the Tribunal”,[1] the Appeals Chamber first observes that the references cited by Župljanin do not support his assertion.[2] Second, the Appeals Chamber recalls that the “reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold”.[3] Župljanin’s argument, suggesting a departure from this principle and asserting that the reasonable observer must come from the region, is thus dismissed.

[…]

47. Another preliminary issue concerns the Prosecution’s submission that Judge Harhoff’s numerous rulings against it in this case demonstrate a lack of bias. The Appeals Chamber observes that, although Judge Harhoff took decisions that resulted favourably for Stanišić and Župljanin, his judicial record in this case is not instructive as to whether a reasonable observer properly informed could apprehend bias.[4] The Appeals Chamber notes, in particular, that Judge Harhoff’s judicial record does not take into account that procedural decisions have limited impact on the substantive issues to be decided in a final trial judgement.

[…]

55. The Appeals Chamber further considers that the Letter contains no language which would suggest to a reasonable observer that Judge Harhoff believed that a finding of guilt could be made without reviewing the particular evidence of a case or that he had difficulty applying the Tribunal’s jurisprudence. A reasonable observer properly informed of all the circumstances would have regard for the fact that Judges are presumed to be impartial, and that before taking up his duties, Judge Harhoff made a solemn declaration to perform his duties “honourably, faithfully, impartially and conscientiously”.[5] The Appeals Chamber considers that a fair‑minded and informed observer would regard this judicial oath as an important protection against the appearance of bias. Additionally, the reasonable observer would consider Judge Harhoff’s role as a Judge of the Tribunal and his professional experience. While Judge Harhoff’s views on the law as expressed in the Letter do not align with the current case law of the Tribunal, Judge Harhoff was (at the time of writing the Letter) a Judge of the Tribunal and a legal professional who was to be relied upon to bring an impartial mind to the evidence and issues before him.[6] The Appeals Chamber considers that, in the absence of evidence to the contrary, a reasonable observer properly informed of these circumstances would presume that Judge Harhoff as a Judge of the Tribunal could disabuse his mind of any irrelevant personal beliefs or predispositions.[7]

[1] Župljanin Additional Appeal Brief, paras 16-17, referring to Piersack v. Belgium [Piersack v. Belgium, Application No. 8692/79, ECtHR, Judgement, 1 October 1982]], para. 30, Hoekstra v. HM Advocate [Hoekstra v. HM Advocate (No. 2) (Scottish High Court of Justiciary), 2000 J.C. 391]], paras 18, 22.

[2] See Župljanin Additional Appeal Brief [Stojan Župljanin’s Supplement to Appeal Brief (Ground Six), 26 June 2014]], para. 16, referring to Piersack v. Belgium, para. 30 (discussing generally the objective test but not the attributes of the reasonable observer); Hoekstra v. HM Advocate, paras 18, 22 (considering that the Judge in question could not be seen to have been impartial, especially on the part of the Dutch appellants).

[3] Šainović et al. Appeal Judgement, para. 181; Furundžija Appeal Judgement, para. 190. See Karadžić Disqualification Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-05/18-PT, Decision on Motion to Disqualify Judge Picard and Report to the Vice-President Pursuant to Rule 15(B)(ii), 22 July 2009]], para. 18 (referring to the perception of the hypothetical fair-minded observer with sufficient knowledge of the circumstances to make a reasonable judgement), fn. 55.

[4] See Karemera et al. Disqualification Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion for Disqualification of Judge Byron and Stay of the Proceedings, 20 February 2009]], para. 15 (considering that a comparison of decisions to detect a pattern “is troublesome” as all decisions are made on an individual basis as a result of particular request, and also that the decisions in question were decided by a three Judge panel and not by a particular Judge).

[5] Rule 14(A) of the Rules (emphasis added).

[6] See Article 13 of the Statute (Judges are required to be “persons of high moral character, impartiality and integrity”); Rule 14 of the Rules (Judges are required to take an oath to exercise their powers “honourably, faithfully, impartially and conscientiously”).

[7] See Šainović et al. Appeal Judgement, para. 181; Furundžija Appeal Judgement, paras 196-197.

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109. The Appeals Chamber considers that Stanišić’s argument that the Trial Chamber failed to apply the correct legal standard to his “purported omissions”[1] is based on the premise that each failure to act assessed in the context of joint criminal enterprise liability must, per se, meet the legal conditions set out in the Tribunal’s case law in relation to commission by omission. In this respect, the Appeals Chamber recalls that although participation in a joint criminal enterprise – which is based on an accused’s significant contribution to the common criminal purpose – is a form of “commission” under Article 7(1) of the Statute, this is a mode of liability distinct from commission by omission and is characterised by different objective and subjective elements.[2]

110. In this respect, the Trial Chamber properly held that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, it is sufficient that he acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[3] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[4] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case‑by‑case basis.[5] Furthermore, the Appeals Chamber recalls that the relevant failures to act or acts carried out in furtherance of a joint criminal enterprise need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all.[6] That is, one’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as the accused performs acts (or fails to perform acts) that in some way contribute significantly to the furtherance of the common purpose.[7] In light of the above, contrary to Stanišić’s assertion, when establishing an accused’s participation in a joint criminal enterprise through his failure to act, the existence of a legal duty to act deriving from a rule of criminal law is not required.[8] The nature of the accused’s duty and the extent of his ability to act are simply questions of evidence and not determinative of joint criminal enterprise liability.[9]

111. In the present case, as part of its factual determination of Stanišić’s contribution to the JCE, the Trial Chamber considered, together with his other actions,[10] his failure to discipline the RS MUP personnel who had committed crimes and to protect the civilian population,[11] despite his duties to do so, together with his ability, as the highest authority, to investigate and punish those who had committed crimes.[12] The Appeals Chamber observes that in the jurisprudence of the Tribunal, a failure to intervene to prevent recurrence of crimes or to halt abuses has been taken into account in assessing an accused’s contribution to a joint criminal enterprise and his intent where the accused had some power and influence or authority over the perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.[13] Therefore, Stanišić has not shown that the Trial Chamber applied an erroneous legal standard when it considered instances of his failures to act in assessing whether he contributed to the JCE.

[…]

733. Turning to Župljanin’s arguments in relation to his capacity or ability to act, based on the same reasoning, the Appeals Chamber finds no merit in Župljanin’s attempt to conflate the Appeals Chamber’s statement that the objective element of commission by omission requires, at a minimum, an “elevated degree of ‘concrete influence’”,[14] with the significant contribution requirement of joint criminal enterprise liability.[15] For the same reason, the Appeals Chamber dismisses Župljanin’s argument that the Trial Chamber failed to make findings or particularised findings as to whether “he had such a high degree of control over his subordinates that his ‘omission’ could count as part of the actus reus of commission”.[16]

See also paras 731-732, 734.

[1] Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 190, 207.

[2] See Tadić Appeal Judgement, paras 188, 227-228. See also Krajišnik Appeal Judgement, para. 662. As for the elements of joint criminal enterprise liability, see further Brđanin Appeal Judgement, paras 364-365, 429-430; Stakić Appeal Judgement, paras 64-65. As for the elements of commission by omission, see further Orić Appeal Judgement, para. 43, Brđanin Appeal Judgement, para. 274, Galić Appeal Judgement, para. 175, Ntagerura et al. Appeal Judgement, para. 334, Blaškić Appeal Judgement, para. 663.

[3] Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 103, referring to Brđanin Appeal Judgement, para. 430. See Krajišnik Appeal Judgement, paras 215, 696. See also Popović et al. Appeal Judgement, para. 1378.

[4] Krajišnik Appeal Judgement, para. 696.

[5] See Šainović et al. Appeal Judgement, paras 1233, 1242. Cf. Krajišnik Appeal Judgement, para. 696.

[6] Krajišnik Appeal Judgement, para. 215; Brđanin Appeal Judgement, para. 427; Stakić Appeal Judgement, para. 64; Kvočka et al. Appeal Judgement, para. 99; Tadić Appeal Judgement, para. 227. The Appeals Chamber observes that the Trial Chamber correctly recalled the jurisprudence in this regard (see Trial Judgement, vol. 1, para. 103).

[7] Popović et al. Appeal Judgement, para. 1653; Šainović et al. Appeal Judgement, para. 985; Krajišnik Appeal Judgement, paras 215, 695-696. See Šainović et al. Appeal Judgement, paras 1233, 1242.

[8] The Appeals Chamber considers Stanišić’s reliance on the Tolimir Trial Judgement inapposite as, in the reference cited by Stanišić, the Tolimir Trial Chamber recalled in general terms the well-established jurisprudence on liability by omission pursuant to Article 7(1) of the Statute, which does require proof of a legal duty to act, without addressing the specific issue at stake in the present case (see Tolimir Trial Judgement, para. 894, fn. 3528).

[9] See Šainović et al. Appeal Judgement, para. 1233, 1242. See also Šainović et al. Appeal Judgement, para. 1045; Martić Appeal Judgement, para. 28; Krajišnik Appeal Judgement, paras 193-194, 204.

[10] See, e.g. Trial Judgement, vol. 2, para. 734, 737-744. See also Trial Judgement, vol. 2, paras 58, 588, 591-595, 729‑736.

[11] Trial Judgement, vol. 2, paras 695, 698, 754. See Trial Judgement, vol. 2, paras 18, 37-43.

[12] Trial Judgement, vol. 2, para. 755.

[13] See Šainović et al. Appeal Judgement, paras 1233, 1242 (The Appeals Chamber found that the accused’s duty to prevent or punish his subordinates’ crimes and failure to do so was “not determinative of his criminal responsibility” for joint criminal enterprise liability but “was part of the circumstantial evidence from which his intent and contribution to the JCE could be inferred” (Šainović et al. Appeal Judgement, para. 1242)); Krajišnik Appeal Judgement, para. 194 (the Appeals Chamber found that the accused had “some power and influence” and “the power to intervene” and that the Krajišnik Trial Chamber could rightfully consider his failure to intervene “as one of the elements tending to prove [his]] acceptance of certain crimes” (Krajišnik Appeal Judgement, para. 194)); Kvočka et al. Appeal Judgement, paras 195-196 (The Appeals Chamber observed that in concluding that the accused’s participation in the functioning of the camp had furthered the criminal purpose, the Trial Chamber had considered inter alia its findings “that he held a high‑ranking position in the camp and had some degree of authority over the guards; that he had sufficient influence to prevent or halt some of the abuses but that he made use of that influence only very rarely” (Kvočka et al. Appeal Judgement, para. 195 (internal citations omitted)). See also Krajišnik Appeal Judgement, paras 216(e), 217. For further factual background of the jurisprudence cited in the current footnote, see Milutinović et al. Trial Judgement, paras 773, 777, 782; Krajišnik Trial Judgement, paras 1118-1119, 1121(e), 1121(j); Kvočka et al. Trial Judgement, paras 372, 395-396. See further infra [Stanišić and Župljanin Appeal Judgement]], para. 734.

[14] Mrkšić and [ljivančanin Appeal Judgement, para. 156; Orić Appeal Judgement, para. 41; Blaškić Appeal Judgement, para. 664.

[15] Cf. Mrkšić and [ljivančanin Appeal Judgement, para. 156, where the Appeals Chamber rejected Veselin Šljivančanin’s attempt to conflate the substantial contribution requirement of the objective element of aiding and abetting with the elevated degree of concrete influence. The Appeals Chamber further considers inapposite Župljanin’s contention that “anyone’s failure to prevent crimes” would satisfy the objective element of joint criminal enterprise in the absence of a threshold of concrete influence over subordinates (Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 132). His argument in this respect once more ignores the requirements for joint criminal enterprise liability, that an accused must make at least a significant contribution to the execution of the common plan (Popović et al. Appeal Judgement, para. 1378; Kvočka et al. Appeal Judgement, paras 97-98; supra [Stanišić and Župljanin Appeal Judgement]], para. 110. See Šainović et al. Appeal Judgement, paras 954, 987).

[16] Župljanin Appeal Brief, para. 135.The Appeals Chamber further notes thatŽupljanin’s submissions that the Trial Chamber failed to make particularised findings regarding his control and authority over his subordinates is based on the unsupported statement that the Trial Chamber relied upon his failure to fulfil his duties with respect to every Indictment crime it evaluated, and considered his every inaction in assessing his contribution to the JCE. As explained below, the Appeals Chamber considers that Župljanin’s assertion misinterprets the Trial Judgement (see Župljanin Appeal Brief, para. 135. See infra [Stanišić and Župljanin Appeal Judgement]], paras 736-813).

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138.    The Appeals Chamber first turns to Stanišić’s submission that the Trial Chamber failed to indicate the evidence relied upon or excluded in the section of the Trial Judgement addressing Stanišić’s contribution and as such failed to provide a reasoned opinion. The Appeals Chamber notes that the section of the Trial Judgement on Stanišić’s contribution to the JCE indeed does not refer to the evidence relied upon by the Trial Chamber to support its findings. Neither does it include any cross references to its earlier findings where the Trial Chamber analysed the evidence.[1] The Appeals Chamber, however, recalls that a trial judgement must be read as a whole.[2] Furthermore, there is a presumption that a trial chamber has evaluated all the evidence presented to it, as long as there is no indication that the trial chamber completely disregarded any particular piece of evidence.[3] As Stanišić acknowledges in his own submission,[4]  in the section of the Trial Judgement addressing his contribution to the JCE, the Trial Chamber summarised the evidence that it had relied on in other sections of the Trial Judgement. While the Appeals Chamber considers the Trial Chamber’s approach regrettable, [5] it does not, in its view, amount to a failure to provide a reasoned opinion in and of itself. The Appeals Chamber therefore dismisses Stanišić’s argument.

[1] See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 2, paras 729-765.

[2] Šainović et al. Appeal Judgement, paras 306, 321; Boškoski and Tarčulovski Appeal Judgement, para. 67; Orić Appeal Judgement, para. 38.

[3] Popović et al. Appeal Judgement, para. 306; Đorđević Appeal Judgement, fn. 2527; Haradinaj et al. Appeal Judgement, para. 129; Kvočka et al. Appeal Judgement, para. 23.

[4] See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 46, 240.

[5] See supra [Stanišić and Župljanin Appeal Judgement]], para. 90.

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139.    In relation to Stanišić’s submission that the Trial Chamber failed to provide a reasoned opinion as to whether and how his acts and conduct furthered the JCE, and whether his alleged contribution to the JCE was significant, the Appeals Chamber notes that the Trial Chamber indeed did not enter express findings in this regard. The Appeals Chamber recalls that these are legal requirements in order for joint criminal enterprise liability to be incurred[1] and that not every type of conduct will amount to a significant enough contribution to the crime to give rise to criminal liability.[2] A trial chamber’s determination of whether and to what extent an accused’s acts and conduct furthered the joint criminal enterprise, and whether the requisite threshold of significance is met, are therefore relevant legal findings essential to the determination of an accused’s guilt, and must be set out in a clear and articulate manner.[3] The lack of explicit findings in this regard falls short of what is required under Article 23(2) of the Statute and Rule 98ter(C) of the Rules.[4] Neither Stanišić nor the Appeals Chamber should be expected to engage in a speculative exercise to discern the Trial Chamber’s findings in this regard.[5]

140.    In this context, the Appeals Chamber further considers that the absence of these essential legal findings and the accompanying reasoning have necessarily hindered Stanišić’s ability to appeal his conviction, as he would have been unable to identify exactly which underlying factual findings the Trial Chamber relied upon in its ultimate conclusion that he contributed significantly to the furtherance of the JCE. The Appeals Chamber therefore finds that the Trial Chamber’s failure to enter express findings as to whether and how Stanišić’s acts and conduct furthered the JCE, and whether his contribution was significant constitutes a failure to provide a reasoned opinion.

[1] Popović et al. Appeal Judgement, para. 1378; Krajišnik Appeal Judgement, paras 215, 218, 695; Brđanin Appeal Judgement, paras 427, 430. See supra [Stanišić and Župljanin Appeal Judgement]], para. 136.

[2] Šainović et al. Appeal Judgement, para. 988; Brđanin Appeal Judgement, para. 427.

[3] Stanišić and Simatović Appeal Judgement, para. 78; Popović et al. Appeal Judgement, para. 1906; Bizimungu Appeal Judgement, paras 18-19.

[4] See Kordić and Čerkez Appeal Judgement, paras 384-385; Bizimungu Appeal Judgement, paras 18-19.

[5] Cf. Orić Appeal Judgement, para. 56. The Trial Judgement must enable the Appeals Chamber to discharge its task pursuant to Article 25 of the Statute based on a sufficient determination as to what evidence has been accepted as proof of all elements of the mode of liability charged (Cf. Kordić and Čerkez Appeal Judgement, para. 385). The Appeals Chamber notes that, by contrast, after analysing Župljanin’s conduct, the Trial Chamber concluded that “during the Indictment period, Stojan Župljanin significantly contributed to the common objective to permanently remove Bosnian Muslims and Bosnian Croats from the territory of the planned Serbian state” (Trial Judgement, vol. 2, para. 518. See Trial Judgement, vol. 2, para. 510 (holding that Župljanin’s “omission to take adequate measures to stop the mass arrest of non-Serbs and his policemen’s involvement therein constituted at least a significant contribution to the unlawful arrests, if not a substantial one”)). The Appeals Chamber considers that the different approach taken with respect to Župljanin further highlights the Trial Chamber’s failure to enter the requisite findings with respect to Stanišić (see Bizimungu Appeal Judgement, para. 19 and fn. 52 (wherein the Appeals Chamber noted that “[b]]y contrast, the Trial Chamber did enter relevant legal findings with respect to other convictions”, specifying that the trial chamber made “legal findings on the crime of genocide in relation to Ndindiliyamana”)).

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537.    The Appeals Chamber recalls that a trial chamber’s failure to explicitly refer to particular evidence will not often amount to an error of law, especially where there is significant contrary evidence on the record.[1] This is because a trial chamber cannot be presumed to have ignored a particular piece of evidence simply because it did not mention it in its judgement.[2] Rather, it could be presumed, in the absence of particular circumstances suggesting otherwise, that a trial chamber chose not to rely on an unmentioned piece of evidence, meaning that it considered the evidence but was of the view that it was either not reliable or otherwise not worth citing in its judgement.[3] In the Appeals Chamber’s view, this reflects a corollary of the overarching principle of deference to the discretion of a trial chamber. The Appeals Chamber therefore concludes that only where it is shown within the substance of a trial chamber’s reasoning that clearly relevant evidence has been disregarded, should the Appeals Chamber intervene in order to assess whether that evidence would have changed the factual basis supporting the trial chamber’s conclusion.

[1] Tolimir Appeal Judgement, para. 53; Perišić Appeal Judgement, para. 95, referring to Kvočka et al. Appeal Judgement, paras 23, 483-484, 487, 582-583, Simba Appeal Judgement, paras 143, 152, 155.

[2] Kamuhanda Appeal Judgement, para. 32, referring to Musema Appeal Judgement, para. 118.

[3] Kamuhanda Appeal Judgement, para. 32, referring to Musema Appeal Judgement, para. 118.

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917. Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts to find that he possessed the requisite intent pursuant to the first category of joint criminal enterprise is based on a misunderstanding of the applicable law. The Trial Chamber was not required to establish that Župljanin intended the specific coercive acts by which the JCE I Crimes were to be achieved. The Appeals Chamber recalls that the Trial Chamber was required to find that Župljanin shared with the other members of the JCE the intent to commit the JCE I Crimes and the intent to participate in a common plan aimed at their commission.[1] Therefore, it was necessary for the Trial Chamber to find that Župljanin shared the intent for the JCE I Crimes, and especially that he intended to forcibly displace, permanently or otherwise, the victims across the relevant de facto or de jure border to another country (as in deportation) or within a relevant border (as in forcible transfer).[2] In the view of the Appeals Chamber, it is not required that members of the JCE agreed upon a particular form through which the forcible displacement of non‑Serbs was to be effectuated or that Župljanin intended specific acts of coercion causing the displacement of individuals, so long as it is established that Župljanin intended to forcibly displace the victims.

[1] Popović et al. Appeal Judgement, para. 1369. See Đorđević Appeal Judgement, para. 468; Brđanin Appeal Judgement, para. 365. It is noted that Župljanin does not contest this standard (see Župljanin Reply Brief [Stojan [Ž]]upljanin’s Reply to Prosecution’s response Brief, 11 November 2013 (confidential; public redacted version filed on 13 November 2013)]], para. 12).

[2] See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, paras 61, 105. See also Stakić Appeal Judgement, paras 278, 307, 317. In this regard, the Appeals Chamber notes that the Trial Chamber correctly recounted the mens rea required for the JCE I Crimes (see Trial Judgement, vol. 1, para. 61).

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958. The Appeals Chamber recalls that an accused can only be held responsible for crimes pursuant to the third category of joint criminal enterprise, when the elements of the first category of joint criminal enterprise have been satisfied.[1] Thus, the extended form of joint criminal enterprise attaches only where a trial chamber is satisfied that an accused already possessed the intent to participate in and further the common criminal purpose of a group.[2] The Appeals Chamber recalls further that the subjective element of the first category of joint criminal enterprise is that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and the intent to participate in a common plan aimed at their commission.[3] For liability pursuant to the third category of joint criminal enterprise, a trial chamber must be satisfied in addition that: (i) it was foreseeable to the accused that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by any other member of the joint criminal enterprise) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[4] […]

[…]

966. The Appeals Chamber understands Župljanin to argue that the Trial Chamber erred by convicting him pursuant to the third category of joint criminal enterprise for Župljanin’s JCE III Crimes because these crimes are more serious than the JCE I Crimes.[5] The Appeals Chamber, however, observes that this contention is essentially premised on his suggestion to depart from the existing jurisprudence on the basis of his misconstruction of the law. More specifically, Župljanin argues that the Appeals Chamber should depart from its jurisprudence and establish an additional requirement within the subjective element of the third category of joint criminal enterprise, namely that in cases involving “violent foreseeable crimes” the accused must have “intended recourse to violent means” to implement the joint criminal enterprise.[6] However, the Appeals Chamber is not persuaded by this contention for the following reasons. 

See also paras 967-976.

[1] See Blaškić Appeal Judgement, para. 33; Vasiljević Appeal Judgement, para. 99; Tadić Appeal Judgement, para. 228.

[2] See e.g. Blaškić Appeal Judgement, para. 33, referring to Vasiljević Appeal Judgement, para. 101 (quoting Tadić Appeal Judgement, para. 228); Brđanin Appeal Judgement, para. 411; Stakić Appeal Judgement, para. 65; Kvoćka et al. Appeal Judgement, para. 83.

[3] Popović et al. Appeal Judgement, para. 1369. See Đorđević Appeal Judgement, para. 468.

[4] Tolimir Appeal Judgement, para. 514; Đorđević Appeal Judgement, para. 906; Šainović et al. Appeal Judgement, paras 1061, 1557; Brđanin Appeal Judgement, paras 365, 411.

[5] Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 219.

[6] Župljanin Appeal Brief, paras 223, 225.

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998. […] Contrary to Župljanin’s argument,[1] the Trial Chamber was not required to establish whether it was foreseeable that a specific group would commit the specific crime, as long as it found that it was foreseeable to Župljanin that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by another member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose and he willingly took the risk that the crime might be committed by joining or continuing to participate in the JCE.[2]

[1] Župljanin Appeal Brief [Stojan [Ž]]upljanin’s Appeal Brief, 19 August 2013 (confidential; public redacted version filed on 23 August 2013, re-filed on 21 April 2016)]], para. 205.

[2] See Tolimir Appeal Judgement, para. 514; Đorđević Appeal Judgement, para. 906; Šainović et al. Appeal Judgement, paras 1061, 1557; Brđanin Appeal Judgement, paras 365, 411.

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597. With respect to Stanišić’s argument that the Tribunal’s case law gives rise to cogent reasons to depart from the Tribunal’s case law for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise, the Appeals Chamber considers that Stanišić conflates the mens rea requirement for the crime of persecutions with the subjective element of a mode of liability by which criminal responsibility may attach to an accused. It recalls that for a conviction for persecutions pursuant to the third category of joint criminal enterprise, it is sufficient that it was foreseeable to the accused that an act of persecutions could be committed and that it could be committed with discriminatory intent.[1] […]

[…]

599. With respect to Stanišić’s argument that customary international law does not permit convictions for specific intent crimes pursuant to the third category of joint criminal enterprise, the Appeals Chamber observes that in its analysis of customary international law in the Tadić case, it specifically considered the provisions of the Convention for the Suppression of Terrorist Bombings and the ICC Statute cited by Stanišić.[2] It found, on the basis on numerous sources from both civil and common law jurisdictions, including post‑World War II cases, that the third category of joint criminal enterprise has existed as a mode of liability in customary international law since at least 1992 and that it applies to all crimes.[3] While Stanišić asserts that the Convention for the Suppression of Terrorist Bombings, the ICC Statute, and the post‑World War II cases on which he relies do not expressly provide for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise or even the third category of joint criminal enterprise itself,[4] this does not undermine the Appeals Chamber’s analysis of customary international law and conclusion in the Tadić case, which has been consistently confirmed in the Tribunal’s subsequent jurisprudence.[5] In the Appeals Chamber’s view, Stanišić merely relies upon the absence of express support in the sources he identifies, without showing that they give rise to cogent reasons to depart from the Tribunal’s existing jurisprudence.

[1] Đorđević Appeal Judgement, para. 919; Brđanin Appeal Decision of 19 March 2004, para. 6. It must further be shown that the accused willingly took the risk that the crime might be committed (see supra [Stanišić and Župljanin Appeal Judgement]], para. 595).

[2] Tadić Appeal Judgement, paras 221‑223, referring to Convention for the Suppression of Terrorist Bombings [International Convention for the Suppression of Terrorist Bombing, U.N. Doc. A/RES/52/164; 37 ILM 249 (1998); 2149 UNTS 284, entered into force 23 May 2001]], art. 2(3)(c), ICC Statute [Statute of the International Criminal Court, adopted by a Diplomatic Conference in Rome on 17 July 1998]], art. 25(3). See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 355-363.

[3] Tadić Appeal Judgement, paras 194‑226. See Đorđević Appeal Judgement, para. 81; Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004 [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004]], paras 10, 17, referring to Tadić Appeal Judgement, paras 188, 193.

[4] See Stanišić Appeal Brief, paras 356-358, 361-366.

[5] Popović et al. Appeal Judgement, para. 1672, referring to Đorđević Appeal Judgement, para. 81; Martić Appeal Judgement, para. 80; Brđanin Appeal Judgement, para. 405. See Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004, paras 14-25. In this regard, the Appeals Chamber also recalls that “it is not required to demonstrate that every possible combination between crime and mode of liability be explicitly allowed by, or have precedents in, customary international law” (Đorđević Appeal Judgement, para. 81 (emphasis omitted)).

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