[1] Kunarac et al. Appeal Judgement, para. 174. See also Stakić Appeal Judgement, para. 356; Kordić and Čerkez Appeal Judgement, para. 1032.

[2] Stakić Appeal Judgement, para. 356.

[3] Trial Judgement, para. 447.

[4] Ibid., para. 452.

[5] Ibid., para. 454 (emphasis added).

[6] Ibid., para. 454.

[7] Stakić Appeal Judgement, para. 358.

[1] Decision of 26 May 2004, para. 38; see supra, para. 43.

[2] R. v. Podola [1959] 3 W.L.R. 718.

The Appeals Chamber also takes note of the aforementioned Nahak Decision in which the SPSC determined that the preponderance standard governs determinations of an accused’s fitness to stand trial (Nahak Decision, paras 57-59 referring to the Decision of 26 May 2004, para. 38: “[…] competence to stand trial is not an element of the offence with which the Defendant is charged” and, consequently, “it is not required that a defendant’s competence be proved by 'a higher standard as is required of the prosecutor when proving guilt in criminal cases’”; and paras 59-60, 67, 152 referring to the requirement that “proof that it is more probable than not […] has been demonstrated.”). The Appeals Chamber finally notes that the SPSC declined to define who bears the burden of proof and decided to evaluate the evidence on the matter “without depending on any 'onus of proof’ that might otherwise be imposed on the Defendant.” (ibid., paras 61-67).

[1] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Motion Re Fitness to Stand Trial, 10 March 2008 (confidential and ex parte); Prosecutor v. Milorad Trbić, Case No. IT-05-88/1-PT, Order in Regard to the Preparation for Trial, 21 March 2007 (confidential), p. 3; Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Stanišić Defence’s Motion on the Fitness of the Accused to Stand Trial with Confidential Annexes, 27 April 2006, pp. 3-5; Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-I, Public Version of the Decision on Accused’s Fitness to Enter a Plea and Stand Trial, 12 April 2006, paras 21-29; Prosecutor v. Momir Talić, Case No. IT-99-36/1-T, Decision regarding Fitness of the Accused to Stand Trial, 29 April 2003 (confidential); Prosecutor v. Žejnil Delalić et al., Case No. IT-96-21-T, Order on the Prosecution’s Request for a Formal Finding of the Trial Chamber that the Accused Landžo Is Fit to Stand Trial, 23 June 1997; Nahimana et al. Trial Judgement, para. 52, referring to Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, [Decision on] Motion by the Defence in Accordance with Rule 74 bis, 20 February 2001 (confidential).

[2] The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics against Hermann Wilhelm Göring et al., Order of the Tribunal Granting Postponement of Proceedings Against Gustav Krupp Von Bohlen, 15 November 1945, 1 Trial of the Major War Criminals, p. 143; Order of the Tribunal Regarding a Psychiatric Examination of Defendant Streicher, 17 November 1945, 1 Trial of the Major War Criminals, p. 153 and Proceedings, Third Day, 22 November 1945, 2 Trial of the Major War Criminals, p. 156; Order of the Tribunal Rejecting the Motion on Behalf of Defendant Hess and Designating a Commission to Examine Defendant Hess with Reference to his Mental Competence and Capacity to Stand Trial, 24 November 1945, 1 Trial of the Major War Criminals, pp. 166-167 and Proceedings, Ninth Day, 30 November 1945, 2 Trial of the Major War Criminals, pp. 478-496, Proceedings, Tenth Day, 1 December 1945, 3 Trial of the Major War Criminals, p. 1; The United States of America, the Republic of China, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, the Commonwealth of Australia, Canada, the Republic of France, the Kingdom of the Netherlands, New Zeland, India, and the Commonwealth of the Philippines against Sadao Araki et al., 42 Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East 19637-19638 (R. John Pritchard ed., 1998).

[3] S.C. v. the United Kingdom, no. 60958/00, para. 29, ECHR 2004-IV; T. v. the United Kingdom [GC], no. 24724/94, para. 83, 16 December 1999; V. v. the United Kingdom [GC], no. 24888/94, para. 90, ECHR 1999-IX; Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, para. 26.

[4] Rules 133 and 135 of the Rules of Procedure and Evidence (ICC-ASP/1/3).

[5] Rule 32 of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia, adopted on 12 June 2007.

[6] Rule 74 bis of the Rules of Procedure and Evidence of the Special Court for Sierra Leone, adopted on 16 January 2002 (last amended on 19 November 2007).

[7] The Prosecutor against Foday Saybana Sankoh a.k.a Popay a.k.a. Papa a.k.a. Pa, Case No. SCSL-2003-02-I, Order for Further Physiological and Psychiatric Examination, 21 March 2003, p. 1; The Prosecutor against Foday Saybana Sankoh a.k.a Popay a.k.a. Papa a.k.a. Pa, Case No. SCSL-2003-02-I, Ruling on the Motion for a Stay of Proceedings Filed by the Applicant, 22 July 2003 (“Sankoh Decision of 22 July 2003”), p. 5.

[8] Deputy General Prosecutor for Serious Crimes v. Joseph Nahak, Case No. 01A/2004, Findings and Order on Defendant Nahak’s Competence to Stand Trial, 1 March 2005 (“Nahak Decision”), paras 54-56, 135.

[9] See supra, para. 41 [to plead, to understand the nature of the charges, to understand the course of the proceedings, to understand the details of the evidence, to instruct counsel, to understand the consequences of the proceedings, and to testify].

[10] Decision of 26 May 2004 [Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Decision re Strugar Motion to Terminate Proceedings, 24 May 2004], para. 37.

[11] See Stanišić Decision of 10 March 2008, para. 60. Cf. also, see also Hansard 2 March 2000 col 665-667; R. v. Secretary of State for the Home Department, ex parte The Kingdom of Belgium; R. v. Secretary of State for the Home Department, ex parte Amnesty International Limited and others, Queen’s Bench Division, CO/236/2000, CO/238/2000, 15 February 2000, 2000 WL 461 (QBD) (“Pinochet Decision of 15 February 2000”), para. 20: “In referring to Senator Pinochet's fitness to stand trial, the Secretary of State is referring to his capacity to participate meaningfully in a trial. The Home Secretary has proceeded on the footing that the decisive criteria are the quality of his memory, his ability to process verbal information and to follow the proceedings, his ability to understand the content and implications of questions put to him, his ability to express himself coherently and comprehensibly, and his ability to instruct his legal representatives” (emphasis added); Dusky v. United States, 362 U.S. 402 (1960),pp. 402-403: “the 'test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as factual understanding of the proceedings against him’”; R. v. Presser [1958] VR 45, p. 48: “[…] [the accused] need not, of course, understand the purpose of all the various court formalities”; “[h]e need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence […] The question is whether "the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him". See also supra, paras 47, 52 (fn. 140) and infra, para. 60.

[12] See supra, paras 41-42.

[13] Decision of 26 May 2004, para 48, citing Lečić-Toševski Report, p. 14, as well as the relevant passage of the New Oxford Textbook of Psychiatry referred to therein, which in reality reads as follows: “In its traditional formulation the test of unfitness to plead is whether the defendant is of sufficient intellect to comprehend the course of the proceedings in the trial, so as to make a proper defence, to know that he might challenge jurors, and to comprehend detail of the evidence”.

[14] Cf. Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Order Concerning Further Medical Report, 11 November 2005 (confidential), p. 2: “[A]ny further report should […] distinguish between the degree of fitness necessary to attend courts as an Accused person, and that required to additionally conduct one’s own case.” See also, Milošević Decision of 1 November 2004, para 14: “How should the Tribunal treat a defendant whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work – the late nights, the stressful cross-examinations, the courtroom confrontations – unless the hearing schedule is reduced to one day a week, or even one day a month? Must the Trial Chamber be forced to choose between setting that defendant free and allowing the case to grind to an effective halt? In the Appeals Chamber’s view, to ask that question is to answer it.” (footnotes omitted).

[15] See supra, para. 52 (fn. 140).

[16] See supra, para. 55. Cf. S.C. v. the United Kingdom, no. 60958/00, para. 29, ECHR 2004-IV: “Given the sophistication of modern legal systems, many adults of normal intelligence are unable fully to comprehend all the intricacies and exchanges which take place in the courtroom.” The representation by skilled and experience lawyers can however be found insufficient to guarantee effective participation of an accused in the proceedings against him where he or she is incapable to cooperate with his or her lawyers for the purposes of his or her defence due to, for example, his or her immaturity and/or disturbed emotional state (T. v. the United Kingdom [GC], no. 24724/94, para. 83, 16 December 1999; V. v. the United Kingdom [GC], no. 24888/94, para. 90, ECHR 1999-IX); German Federal Constitutional Court holding that the impact of psychological or physical shortcomings on the actual exercise of the accused’s procedural rights can be sufficiently compensated by counsel support (NJW 1995, p. 1952); Japanese Supreme Court holding that even if the relevant abilities of the accused are considerably limited he may not be considered to lack them if he enjoys the appropriate assistance of his counsel and/or interpreters who play the role of his guardians (Japanese Supreme Court Judgement 1996(A)No.204, pp. 23-24).

[17] See supra, paras 52, 55; cf. R. v. Whittle, [1994] 2 S.C.R. 914; Wilson v. United States, 391 F.2d 460 (1968); see also Missouri Institute of Mental Health Policy Brief, June 2003, p. 1: “no psychological symptoms (e.g., sensory hallucinations, dementia, or amnesia) can be considered an automatic bar to competency”; Steele c. R. Cour d’appel du Québec, No. 500-10-0004418-853, 12 February 1991, p. 59.

[18] Decision of 26 May 2004, para. 46; See also Pinochet Decision of 15 February 2000, paras 20-21 stating with approval that the criteria set by the Home Secretary for determination of Augusto Pinochet’s fitness to stand trial were not used in the sense of “general physical debility”.

[1] See Jokić Judgement on Sentencing Appeal, para. 89 (and sources cited therein).

[2] Vasiljević Appeal Judgement, para. 177.

[3] The Oxford English Dictionary defines remorse as “a feeling of compunction, or of deep regret and repentance, for a sin or wrong committed.”

[4] Blaškić Appeal Judgement, para. 705 (finding that “the integrity of the Trial Chamber’s conclusion that the Appellant has demonstrated remorse is in fact unchallenged by the contradiction putatively identified by the Trial Chamber.”); Blaškić Trial Judgement, para. 775 (“The Trial Chamber points out that, from the very first day of his testimony, Tihomir Blaškić expressed profound regret and avowed that he had done his best to improve the situation although this proved insufficient.”); Kunarac et al. Trial Judgement, para. 869 (“his statement that he felt guilty about the fact that FWS-75 was gang-raped while he was raping D.B. in an adjoining room may be interpreted as a statement of remorse, and is considered in mitigation.”); Čelebići Trial Judgement, para. 1279 (“The Trial Chamber does not consider Mr. Landžo’s belated partial admissions of guilt, or any expressions of remorse, to significantly mitigate, in the circumstances, the crimes committed by him. […] Mr. Landžo did address a written statement to the Trial Chamber after the end of his trial, stating that he was sorry for his conduct in the Čelebići prison-camp and that he wished to express his regrets to his victims and their families. Such expression of remorse would have been more appropriately made in open court, with these victims and witnesses present, and thus this ostensible, belated contrition seems to merely have been an attempt to seek concession in the matter of sentence.”).

[5] Brđanin Trial Judgement, para. 1139 (“throughout the trial there were a few instances when, through Defence counsel, he told witnesses that he felt sorry for what they had suffered. The Trial Chamber has no reason to doubt the sincerity of the Accused in offering his regret, and will take these instances into consideration as a mitigating factor for the purpose of sentencing the Accused.”); Orić Trial Judgement, para. 752 (“throughout the trial, there were a few instances when Defence counsel on his behalf expressed compassion to witnesses for their loss and suffering. The Trial Chamber does not doubt the sincerity of the Accused in expressing empathy with the victims for their loss and suffering, and has taken this sincerity into consideration as a mitigating factor.”); Stakić Trial Judgement, para. 922 (“The Trial Chamber considers as a mitigating factor Dr. Stakić’s behaviour towards certain witnesses. For example, on 27 June 2002, he directed his counsel not to cross-examine Nermin Karagić 'because of the suffering of this witness and his pretty bad mental state.’”); Akayesu Trial Judgement, para. 45 (“Akayesu expressed sympathy for the many victims of the genocide and of the war and he identified with the survival of the events of 1994.”); Musema Trial Judgement, para. 1005 (“The Chamber, amongst the mitigating circumstances, takes into consideration that Musema admitted the genocide against the Tutsi people in Rwanda in 1994, expressed his distress about the deaths of so many innocent people, and paid tribute to all victims of the tragic events in Rwanda.”); Musema Appeal Judgement, para. 396 (accepting the Trial Chamber’s findings on mitigating circumstances). 

[1] The Appeals Chamber notes that the Trial Chamber made legal and factual findings with respect to Count 3 (attacks on civilians) and Count 5 (attacks on civilian objects) simultaneously (Trial Judgement, paras 277 et seq.). Strugar has not presented any argument concerning the Trial Chamber’s findings in relation the mens rea element of the crime of attack on civilian objects, given that, in light of its conlusion on cumulation, the Trial Chamber did not enter a conviction under Count 5. Both parties clarified that, in their views, the mens rea requirement of the crime of attack on civilians and the crime of attack on civilian objects are identical (AT. 137; AT. 212). 

[1] Ibid. [Trial Judgement], paras 347, 416-417, 420.

[2] Ibid., paras 347, 416-417, 420.

[3] Ibid., para. 417 (emphasis original).

[4] Ibid., para. 417 (emphasis added).

[5] Ibid., para. 420 (emphasis added).

[6] Ibid., para. 417.

[7] Ibid., para. 418.

[8] Ibid., para. 422.

[9] See supra, paras 297-301.

[1] Galić Appeal Judgement, para. 140, citing Galić Trial Judgement, para. 54.

[2] Cf. Commentary AP I, para. 3474 which defines the term “wilfully” in the following way: “the accused must have acted consciously and with intent, i.e., with his mind on the act and its consequences, and willing them ('criminal intent’ or 'malice aforethought’); this encompasses the concepts of 'wrongful intent’ or 'recklessness’, viz., the attitude of an agent who, without being certain of a particular result, accepts the possibility of it happening; on the other hand, ordinary negligence or lack of foresight is not covered, i.e., when a man acts without having his mind on the act or its consequences.”

[3] Galić Trial Judgement, para. 55; see also Kordić and Čerkez Appeal Judgement, para. 48; Blaškić Appeal Judgement, para. 111.

[4] Galić Appeal Judgement, fn. 707.

[5] Ibid., fn. 709, citing Additional Protocol I, Article 52 (2).

[6] Galić Appeal Judgement, para. 132, citing Kunarac et al. Appeal Judgement, para. 91; Blaškić Appeal Judgement, para. 106; Galić Appeal Judgement, para. 133. Cf. Kordić and Čerkez Appeal Judgement, para. 438.

[7] Galić Appeal Judgement, para. 130 citing Blaškić Appeal Judgement, para. 109, and Kordić and Čerkez Appeal Judgement, para. 54. In this sense, the fighting on both sides affects the determination of what is an unlawful attack and what is acceptable collateral damage, but not the prohibition itself (Galić Appeal Judgement, fn. 704). It has also been held that even the presence of individual combatants within the population attacked does not necessarily change the legal qualification of this population as civilian in nature (Galić Appeal Judgement, para. 136).

[8] Galić Appeal Judgement, para. 132 and fn. 706. In that case, the Appeals Chamber upheld the Trial Chamber’s finding that attacks which employ certain means of combat which cannot discriminate between civilians and civilian objects and military objectives were “tantamount to direct targeting of civilians” (Galić Trial Judgement, fn. 101). See also Galić Appeal Judgement, fn. 706: “Attacking anything that moves in a residential building, before determining whether the mover is a civilian or a combatant, is a paradigmatic example of not differentiating between targets.”

[1] Tadić Trial Judgement, para. 616; Halilović Trial Judgement, para. 34. See, e.g., in relation to the direct participation in the hostilities of a member of the armed forces, Commentary GC III, p. 39: “The discussions at the Conference brought out clearly that it is not necessary for an armed force as a whole to have laid down its arms for its members to be entitled to protection under [Article 3]. The Convention refers to individuals and not to units of troops, and a man who has surrendered individually is entitled to the same humane treatment as he would receive if the whole army to which he belongs had capitulated. The important thing is that the man in question will be taking no further part in the fighting.”

[2] Cf. United States of America v. Salim Ahmed Hamdan, U.S. Military Commission, 19 December 2007, p. 6: “The Commission also finds that the accused directly participated in those hostilities by driving a vehicle containing two surface-to-air missiles in both temporal and spatial proximity to both ongoing combat operations. [...] Although Kandahar was a short distance away, the accused’s past history of delivering munitions to Taliban and al-Qaeda fighters, his possession of a vehicle containing surface to air missiles, and his capture while driving in the direction of a battle already underway, satisfies the requirement of 'direct participation’.”

[3] The Appeals Chamber notes that for the purposes of establishing an accused’s criminal responsibility, the burden of proof of whether a victim was not taking active part in the hostilities rests with the Prosecution. Cf. Blaškić Appeal Judgement, para. 111.

[4] The Appeals Chamber observes that this is in line with the jurisprudence of the ad hoc Tribunals in relation to Common Article 3 crimes. In the Čelebići Appeal Judgement, the Appeals Chamber merely set out a non-exhaustive list of the elements of the crime “cruel treatment” under Article 3 of the Statute for the purpose of comparing it with the crime of torture under Article 2 of the Statute in application of the test on cumulative convictions (Čelebići Appeal Judgement, para. 424). The Appeals Chamber moreover observes that Trial Chambers have made a finding on the civilian status of victims of Common Article 3 crimes or found that this was not necessary given the facts of the respective case. In the Tadić Trial Judgement, the Trial Chamber found that all of the victims were detained by the accused and as such the issue of whether they were combatants or civilians did not arise because even if they were combatants, they had been placed hors de combat by detention (Tadić Trial Judgement, para. 616). In the Stakić Trial Judgement, the Trial Chamber found that the victims were hors de combat or civilians (Stakić Trial Judgement, para. 589). In the Naletilić and Martinović Trial Judgement, the Trial Chamber found that the victims were all civilians or prisoners of war (Naletilić and Martinović Trial Judgement, para. 229). In the Akayesu Trial Judgement, the Trial Chamber found that the victims were civilians (Akayesu Trial Judgement, para. 175).

[5] The scope of application of international humanitarian law primarily depends on the nature of the armed conflict, the customary or conventional status of a given rule or set of rules and the status of the victim. In conflicts where Common Article 3 is the only applicable provision, the more elaborate rules regarding civilian and combatant status outlined in the Geneva Conventions and Additional Protocol I would not be applicable. See Čelebići Appeal Judgement, para. 420; Tadić Jurisdiction Decision, para. 91; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment, ICJ Reports (1986), para. 218.

[6] For instance, if a victim was found to be detained by an adverse party at the time of the alleged offence against him, his status as either a civilian or combatant would no longer be relevant because a detained person cannot, by definition, directly participate in hostilities. Therefore, an attack against such person would automatically be unlawful.

[7] Combatants constitute lawful military objectives unless they are hors de combat. On the definition of combatant, see: Additional Protocol I, Articles 43, 44, 50(1); Geneva Convention III, Article 4; Kordić and Čerkez Appeal Judgement, paras 50-51. On the definition of military objectives, see: Additional Protocol I, Article 52; Kordić and Čerkez Appeal Judgement, para. 53. On the definition of hors de combat, see: Additional Protocol I, Article 41(2). See also Blaškić Appeal Judgement, para. 114: “As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.”

[8] Additional Protocol I, Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b). See Galić Trial Judgement, para. 58 (and sources cited therein) and Galić Appeal Judgement, paras 191-192. 

[1] Prosecution Response Brief, para. 126, 151; Prosecution Written Submissions of 25 March 2008, paras. 1-4; AT. 1 April 2008, pp. 9-11. Orić disputes the existence of a notion of aiding and abetting by “pure omission” in international humanitarian law and that a superior can be held responsible for subordinates who aid and abet by omission: AT. 1 April, pp. 60-62, 131-136.

[2] Brđanin Appeal Judgement, para. 274; Galić Appeal Judgement, para. 175; Ntagerura et al. Appeal Judgement, paras. 334, 370; Blaškić Appeal Judgement, para. 663.

[3] Cf. Simić Appeal Judgement, para. 85, fn. 259; Blaškić Appeal Judgement, para. 47.

[4] See, e.g., Nahimana et al. Appeal Judgement, para. 482; Simić Appeal Judgement, para. 85.  

[5] See for the general definition of aiding and abetting, e.g., Seromba Appeal Judgement, para. 56; Nahimana et al. Appeal Judgement, para. 482; Blagojević and Jokić Appeal Judgement, para. 127.

[6] Cf. Simić Appeal Judgement, para. 86; Aleksovski Appeal Judgement, para. 162.