[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.

[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”).

[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.

[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.

[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).

[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”)).

[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).

[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.

[1] Đorđević Appeal Judgement, para. 83, referring to Čelebići Appeal Judgement, para. 24. See Tolimir Appeal Judgement, para. 226; Popović et al. Appeal Judgement, para. 1674.

[2] See Popović et al Appeal Judgement, para. 1674, referring to Đorđević Appeal Judgement, para. 24, Aleksovski Appeal Judgement, para. 108.

[1] See Jelisić Appeal Judgement, para. 73. Article 25(2) of the Statute provides that “[t]]he Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers”. See also Šainović et al. Appeal Judgement, para. 1604, fn. 5269 (with references).

[2] See Jelisić Appeal Judgement, paras 73, 77; Aleksovski Appeal Judgement, paras 153-154, 192; Krstić Appeal Judgement, paras 220-227, 229, p. 87; Stakić Appeal Judgement, paras 359-367, pp 141-142; Naletilić and Martinović Appeal Judgement, paras 588-591, p. 207. See also Šainović et al. Appeal Judgement, paras 1604, 1766.