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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1103. […] The Appeals Chamber considers that the component pieces of circumstantial evidence on the issue of identification are to be considered in relation to all other pieces of circumstantial evidence bearing on the issue, and not in isolation.[1] Whereas the assessment of an evidentiary factor in a vacuum might fail to establish an essential matter, the weight of all relevant evidence taken together can conclusively prove the same matter beyond reasonable doubt.[2] […]

See also para. 1150.

[1]           See Limaj et al. Appeal Judgement, para. 153.

[2]           See Limaj et al. Appeal Judgement, para. 153.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

79. […] The Appeals Chamber recalls that trial chambers have the discretion to bar the testimony of an expert witness called to give evidence on legal matters.[1] […]

[1]           Nahimana et al. Appeal Judgement, paras 292-294. See also Šainović et al. Appeal Judgement, para. 1295; Renzaho Appeal Judgement, para. 289.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

375. […] The Appeals Chamber recalls that the purpose of expert testimony is to supply specialised knowledge that might assist the trier of fact in understanding the evidence before it, and that in the ordinary case an expert witness offers a view based on specialised knowledge regarding a technical, scientific or otherwise discrete set of ideas or concepts that is expected to fall outside the lay person’s ken.[1] […]

[1]           Nahimana et al. Appeal Judgement, para. 198, citing Semanza Appeal Judgement, para. 303.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1307. […] The Appeals Chamber recalls that a trial chamber has the discretion to rely on hearsay evidence.[1] It is settled that the weight and probative value to be afforded to hearsay evidence will ultimately depend upon “the infinitely variable circumstances which surround hearsay evidence”.[2] […]

[1]           See supra, note 3687.

[2]           Karera Appeal Judgement, para. 39. See Kalimanzira Appeal Judgement, para. 96.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

382. The Appeals Chamber recalls that where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber needs to “carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence”.[1] The Appeals Chamber stresses that this is required only when a witness’s identification was made under difficult circumstances, such as in the dark or as a result of a fleeting glance.[2] […]

392. […] The Appeals Chamber recalls that identification hearsay evidence may, depending on the circumstances of the case, require other credible or reliable evidence in order to support a finding of fact beyond reasonable doubt.[3] […]

[1]           Lukić and Lukić Appeal Judgement, para. 136 (emphasis omitted); Haradinaj et al. Appeal Judgement, para. 152; Kupreškić et al. Appeal Judgement, para. 39.

[2]           Renzaho Appeal Judgement, para. 531, referring to Kupreškić et al. Appeal Judgement, paras 34, 39-40. See also Lukić and Lukić Appeal Judgement, para. 137; Gatete Appeal Judgement, para. 193.

[3]           See Renzaho Appeal Judgement, para. 534. See also Lukić and Lukić Appeal Judgement, paras 387, 577.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

90. […] “[T]he probative value of a document may be assessed differently in different cases, depending on the circumstances”.[1] […]

[1]           Simba Appeal Judgement, para. 132. See Bizimungu Appeal Judgement, para. 210.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1741. Finally, it is recalled that whether an act or omission had a substantial effect on the commission of a crime is a fact-based inquiry,[1] and further, this aspect of aiding and abetting by omission has been interpreted to mean that had the accused acted the commission of the crime would have been substantially less likely.[2]

[1]           Mrkšić and Šljivančanin Appeal Judgement, para. 200.

[2]           See Šainović et al. Appeal Judgement, paras 1679, 1682, fn. 5510; Mrkšić and Šljivančanin Appeal Judgement, paras 97, 100.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

228. […] Rule 85(C) of the Rules […] contains no restrictions with regard to when, during the defence case, the accused can choose to exercise this right. 

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ICTR Rule Rule 85(C) ICTY Rule Rule 85(C)
Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

430. In holding that the crime of genocide does not require the existence of a State policy, the Trial Chamber relied on, inter alia, the Krstić, Jelisić, and Kayishema and Ruzindana Appeal Judgements.[1] […] In the Jelisić Appeal Judgement, the Appeals Chamber held that “the existence of a plan or policy is not a legal ingredient of the crime”,[2] while in Kayishema and Ruzindana the ICTR Appeals Chamber stated that “a genocidal plan is not a constituent element of the crime of genocide”.[3] Although these judgements do not explicitly address the issue of State policy, the Appeals Chamber considers that if a policy is not a legal requirement, it follows that State policy cannot be a legal requirement. Thus, the question of whether the existence of a State policy is required for the crime of genocide has already been considered by the Tribunal.

[1]           [Popović et al.] Trial Judgement, paras 828-830.

[2]           Jelisić Appeal Judgement, para. 48.

[3]           Kayishema and Ruzindana Appeal Judgement, para. 138.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

422. […] Although the substantiality requirement is textually indicated in the provision describing the specific intent required for genocide, i.e. the requirement that there must exist an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”,[1] it is the objective, contextual characteristics of the targeted part of the group, including, inter alia, its numeric size relative to the total size of the group,[2] that form the basis for determining whether the targeted part of the group is substantial.[3] […]

[1]           Article 4(2) of the Statute (emphasis added). See Krstić Appeal Judgement, paras 6, 8-9. See also Article II of the Genocide Convention.

[2]           Krstić Appeal Judgement, para. 12.

[3]           See Krstić Appeal Judgement, paras 12-17 (where substantiality is discussed by reference to various contextual and objective characteristics of the targeted part of the group, the Bosnian Muslims of Srebrenica); Benjamin Whitaker, Revised and Updated Report on the Question of Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 (“‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership.”).

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1615. The Appeals Chamber recalls that it has previously held that the participation of an accused in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] Moreover, it has previously held that “the fact that [the] participation [of an accused] amounted to no more than his or her ‘routine duties’ will not exculpate the accused”.[2] […]

[1]           Krajišnik Appeal Judgement, paras 215, 695-696; Kvočka et al. Appeal Judgement, para. 263. See also Šainović et al. Appeal Judgement, para. 985.

[2]           See Blagojević and Jokić Appeal Judgement, para. 189 making this statement in the context of aiding and abetting liability.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1696. […] [T]he Appeals Chamber considers that […] there is no express time frame included in the foreseeability standard […][1] […]

[1]           See [ainović et al. Appeal Judgement, paras 1061, 1557.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

The Trial Chamber found that the Appellant was liable under JCE III for murder as a crime against humanity. At the same time, the Trial Chamber, without providing any further reasons, held that “in the circumstances of [the] killings arising from a JCE to Forcibly Remove – encompassing forcible transfer as other inhumane acts constituting a crime against humanity – his criminal responsibility is for murder as a crime against humanity and not as a war crime”. See para. 1710. The Appeals Chamber considered that the Trial Chamber’s scant reasoning as to why it acquitted the Appellant for war crimes suggests that the Trial Chamber required that the category of the JCE III crime must match that of the JCE I crime. See para. 1713.

1713. […] [T]he jurisprudence of the Tribunal does not require the category of the JCE I crime and the JCE III crime to match.[1] […]

[1]           See, e.g., Martić Appeal Judgement, para. 183, referring to Martić Trial Judgement, paras 454-455.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

622. […] The Appeals Chamber considers that a trial chamber may exercise its discretionary power to determine whether to take judicial notice of an adjudicated fact,[1] even if the fact may have been less central to the charges in the previous proceedings of the Tribunal than in the current proceedings,[2] so long as the adjudicated fact has been “established by the Trial Chamber [in the previous proceedings] on the basis of evidence”.[3] […]

[1]           See supra, para. 620.

[2]           See Blagojević and Jokić Appeal Judgement, para. 34.

[3]           The Prosecutor v. Théoneste Bagosora and Anatole Nsengiyumva, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010, para. 11 (emphasis omitted).

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

762. To establish the actus reus of persecution in the present case, the Trial Chamber was required to establish that the underlying acts of terrorising civilians: discriminated in fact, denied or infringed upon a fundamental right laid down in international customary or treaty law,[1] and were “of equal gravity to the crimes listed in Article 5 whether considered in isolation or in conjunction with other acts.”[2] […]

[1]           Nahimana et al. Appeal Judgement, para. 985.

[2]           Nahimana et al. Appeal Judgement, paras 985-988; Brđanin Appeal Judgement, para. 296; Simić Appeal Judgement, para. 177; Blaškić Appeal Judgement, paras 135, 139, 154-155, 160.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1812. […] [T]he criminal responsibility of an aider and abettor does not require the contribution to the crime of persecution to go to the discriminatory nature of this crime […][1]

[1]           See supra, para. 1808.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

766. […] The Appeals Chamber reiterates that “it is not necessary that every individual act underlying the crime of persecution […] be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together”.[1] […]

[1]           Nahimana et al. Appeal Judgement, para. 987.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

713. […] [T]he Appeals Chamber observes that when considering whether an accused has the required intent for the crime of persecution, trial chambers are allowed to consider “the general attitude of the alleged perpetrator as demonstrated by his behaviour”.[1] The use of derogatory language in relation to a particular group – even where such usage is commonplace – is one aspect of an accused’s behaviour that may be taken into account, together with other evidence, to determine the existence of discriminatory intent.[2] […]

[1]           Kvočka et al. Appeal Judgement, para. 460.

[2]           See, e.g., Kvočka et al. Appeal Judgement, para. 461, finding that the Trial Chamber correctly found that the use of the word “balijas” by the accused Zoran Žigić towards Muslim detainees in the Omarska, Keraterm, and Trnopolje camps supported its conclusion that he had discriminatory intent in maltreating the detainees.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

738. The Appeals Chamber reiterates that persecution as a crime against humanity does not require that the underlying acts are crimes under international law.[1] A trial chamber does not need to establish the elements of the underlying acts, including the mens rea, even when the underlying act also constitutes a crime under international law. With respect to the mens rea, all that is required is establishing that the underlying act was deliberately carried out with discriminatory intent. […]

[1]           Nahimana et al. Appeal Judgement, para. 985; Brđanin Appeal Judgement, para. 296; Kvočka et al. Appeal Judgement, para. 323.

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Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

1998. […] [T]he Appeals Chamber notes that, although sentences received by subordinates may be a factor to be considered when determining the sentence of a commander,[1] this should not derogate from the Trial Chamber’s primary responsibility concerning sentencing – that is, tailoring the penalties to fit the individual circumstances of the accused.[2] […]

[1]           See Strugar Appeal Judgement, paras 350-351.

[2]           [ainović et al. Appeal Judgement, para. 1837; Mrkšić and [ljivančanin Appeal Judgement, para. 415; D. Nikolić Judgement on Sentencing Appeal, paras 45-46. 

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