The Appeals Chamber addressed in details the elements of the crime of deportation as a crime against humanity, and especially (1) the forced character of the displacement, (2) the cross border transfer, and (3) whether or not there is a requirement of an intent to permanently displace the victims of deportation. It held:

278. The Appeals Chamber is of the view that the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law. The Appeals Chamber considers that the mens rea of the offence does not require that the perpetrator intend to displace the individual across the border on a permanent basis.

The Appeals Chamber explained in details its reasoning to reach the above findings at paras 279-307 of the Judgement. Attention is however drawn to the following passages:

-          Forced character of the displacement (paras 279-287): see also above under “new law”, “Deportation/displacement for humanitarian reasons;

-          Cross-border transfer: “The Appeals Chamber also accepts that under certain circumstances displacement across a de facto border may be sufficient to amount to deportation. In general, the question whether a particular de facto border is sufficient for the purposes of the crime of deportation should be examined on a case by case basis in light of customary international law.” (Judgement, para. 300);

-          Intent to permanently displace the victims: paras 304-307 “[…] Trial Chambers will not require proof of intent to permanently displace deportees.” (Judgement, para. 307).

At para. 317, the Appeals Chamber held the following:

Forcible transfer has been defined in the jurisprudence of the Tribunal as the forcible displacement of persons which may take place within national boundaries.[1] The mens rea does not require the intent to transfer permanently. The Appeals Chamber notes that Article 2(g) of the Statute, Articles 49 and 147 of Geneva Convention IV, Article 85(4)(a) of Additional Protocol I, and Article 18 of the 1996 ILC Draft Code all condemn forcible transfer.[2] The notion of forcible transfer had therefore clearly been accepted as conduct criminalised at the time relevant to this case, such that it does not violate the principle of nullum crimen sine lege. Furthermore, acts of forcible transfer have been accepted in other cases before the Tribunal as specifically substantiating the notion of other inhumane acts pursuant to Article 5(i).[3] In view of the foregoing, the Appeals Chamber finds that acts of forcible transfer may be sufficiently serious as to amount to other inhumane acts.[4]

In the Trial Judgement, the Trial Chamber decided that the elements of genocide had to be considered separately in relation to each specific group targeted, in that case Bosnian Muslims and Bosnian Croats; it held that targeted group of genocide could not be defined negatively, in that case as the “non-Serbs”.[1] After considering inter alia the plain text of Article 4 of the Genocide Convention, its drafting history, commentaries thereof, and exploring the Prosecution’s arguments based on a subjective definition of genocide, the Appeals Chamber concluded that the targeted group of genocide can only be defined positively.[2] It held the following:

25. […] First, contrary to what the Prosecution argues, the Krstić and Rutaganda Trial Judgements do not suggest that target groups may only be defined subjectively, by reference to the way the perpetrator stigmatises victims. The Trial Judgement in Krstić found only that “stigmatisation … by the perpetrators” can be used as “a criterion” when defining target groups – not that stigmatisation can be used as the sole criterion. Similarly, while the Rutaganda Trial Chamber found national, ethnical, racial, and religious identity to be largely subjective concepts, suggesting that acts may constitute genocide so long as the perpetrator perceives the victim as belonging to the targeted national, ethnical, racial, or religious group, it also held that “a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention.”[3] Other Trial Judgements from the ICTR have also concluded that target groups cannot be only subjectively defined.[4]

26. Second, the Appeals Chamber notes that whether or not a group is subjectively defined is not relevant to whether a group is defined in a positive or a negative way, which is the issue now before the Chamber. Consequently, when a target group is defined in a negative manner (for example non-Serbs), whether the composition of the group is identified on the basis of objective criteria, or a combination of objective and subjective criteria, is immaterial as the group would not be protected under the Genocide Convention.

In sentencing the Appellant to life imprisonment, the Trial Chamber stated:

The then competent court (Rule 104 of the Rules) shall review this sentence and if appropriate suspend the execution of the remainder of the punishment of imprisonment for life and grant early release, if necessary on probation, if: (1) 20 years have been served calculated in accordance with Rule 101(C) from the date of Dr. Stakić’s deprivation of liberty for the purposes of these proceedings, this being the “date of review”[;] (2) In reaching a decision to suspend the sentence, the following considerations, inter alia, shall be taken into account: the importance of the legal interest threatened in case of recidivism; the conduct of the convicted person while serving his sentence; the personality of the convicted person, his previous history and the circumstances of his acts; the living conditions of the convicted person and the effects which can be expected as a result of the suspension[.][1]

The Appeals Chamber found that the Trial Chamber acted “ultra vires”[2] in imposing a review obligation on the Host State whereas Article 28 of the Statute, Rule 123 of the Rules, the Practice Direction on Pardon, Commutation of Sentence and Early Release,[3] and the Model Agreement for enforcing sentences[4] “each provide that eligibility of a convicted person for pardon, early release or commutation of sentence is determined by the law of the State in which the convicted person is serving his sentence”.[5] It also found that, by vesting the courts of the Host States with the power to suspend the sentence, the Trial Chamber removed the power of the President of the Tribunal[6] to make the final determination regarding the sentence.[7]

342. For Article 3 to apply, the crime charged must be committed in a time of armed conflict and an accused’s acts must be closely related to that conflict.[1] The latter requirement is known as the “nexus” requirement. The nexus need not be a causal link, “but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit [the crime], his decision to commit it, the manner in which it was committed or the purpose for which it was committed.”[2] The Appeals Chamber has thus held that “if it can be established … that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.”[3] To find a nexus, it is sufficient that the alleged crimes be closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.[4] For example, Article 3 crimes need not be committed in the area of armed conflict, but must at least be “substantially related” to this area, which at least includes the entire territory under control of the warring parties.[5] It is essential, however, that a Trial Chamber establish the existence of a geographical and temporal linkage between the crimes ascribed to the accused and the armed conflict.

2.         Paras 64-76:  the Appeals Chamber recognised that the delegation of authority to non-judicial entities is a necessary function of the Tribunal (paras. 64-65).  It identified the principles allowing delegation to non-judicial authorities as based in Tribunal-related Security Council Resolutions (para. 66), the inherent power of the Tribunal (para. 67) and the Statute of the Tribunal (paras 68-75).   

3.         Paras 76-80:  noting that the Statute and the Rules only discuss delegation to States, the Appeals Chamber addressed whether the Tribunal could delegate authority to UNMIK, a              non-State entity (para. 76).  The Appeals Chamber found: “In sum, there is nothing in UNMIK’s make-up or character that would prevent the Tribunal from delegating power to it, but the lack of explicit authorization suggests that the Tribunal should be cautious in such delegation and look at each case on the merits.” (para. 80).

4.         Paras 81-92:  the Appeals Chamber then addressed whether the Tribunal could delegate to UNMIK the specific authority to vary the conditions of the Accused’s provisional release pertaining to participation in political activities.  The Appeals Chamber considered four factors and determined that such delegation is permissible:

First, the decision-making entrusted to UNMIK is not central to the judicial process. Second, UNMIK does not have absolute discretion; the Trial Chamber has established certain criteria that it must follow in making its decision. Third, the Trial Chamber retains supervisory authority over UNMIK and the Accused. Fourth, there are significant practical advantages to letting UNMIK take day-to-day decisions about the Accused’s political activities.[1]                                                      

5.         In their joint dissenting opinion, Judge Shahabuddeen and Judge Schomburg argued that delegating to UNMIK the authority to modify the conditions of the Accused’s provisional release allows UNMIK unreasonably broad discretion, exceeds the Trial Chamber’s authority and is ultra vires (paras 6-10 of the joint dissenting opinion).  They also argued that the delegation was ultra vires because it required that UNMIK make judicial decisions which cannot be delegated to a non-judicial body (paras 11-16 of the joint dissenting opinion). 

The standard of review for discretionary decisions had been set in previous decisions. The Appeals Chamber, in the present case, re-stated it clearly and applied it to decisions on provisional release:

21. The Trial Chamber’s decision on provisional release is a discretionary one, so the Appeals  Chamber, on review, must ask not whether it agrees with the decision but whether the Trial Chamber “correctly exercised its discretion in reaching that opinion”.[1]

22. The party challenging a provisional release decision bears the burden of showing that the Trial Chamber committed a “discernible error”.[2] In order to do so, it must show either that  the Trial Chamber (1)  “misdirected itself […] as to the principle to be applied”; (2) misdirected itself “as to the law which is relevant to the exercise of discretion”; (3) “gave weight to extraneous or irrelevant considerations”; (4) “failed to give weight or sufficient weight to relevant considerations”; (5)  “made an error as to the facts upon which it has exercised its discretion”; [3] or (6) rendered a decision “so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly”.[4]

23. The Appeals Chamber has also ruled that a Trial Chamber must provide a reasoned opinion in rendering a decision on provisional release.[5] The Trial Chamber must therefore “indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision”, in light of circumstances obtaining both at the time of the provisional release decision and “at the time the case is due for trial and the accused is expected to return to the International Tribunal”.[6]

The Appellant was arguing that the Trial Chamber erred in law in taking into account the length of his pre-trial detention to determine whether, under the terms of Rule 65(B) of the Rules, he would appear for trial if released. The Appeals Chamber held the following:

23. Undisputedly, a Trial Chamber may determine whether the particular circumstances of a case[1] warrant that provisional release be granted to an accused based on the actual or likely excessive length of his pre-trial detention. However, such determination is an additional discretionary consideration which has no bearing upon the assessment as to whether an accused will appear for trial if released.[2] Therefore, the Trial Chamber erred by taking this factor into account in determining that the Appellant had not satisfied the first requirement of Rule 65(B). For the foregoing reasons this ground of appeals is allowed.

Momir Nikolić argued that the Trial Chamber is not allowed to substitute the Prosecution’s assessment of his co-operation with its own. The Prosecution submitted that Momir Nikolić had co-operated fully; the Trial Chamber had some reservations.

On the law, the Appeals Chamber disagreed with Momir Nikolić’s claim. It held: “The Appeals Chamber acknowledges that the Prosecution is in a position to accurately assess the co-operation of an accused. However, the evaluation of the extent and nature of the Appellant’s co-operation, and thus the weight, if any, to be given to this mitigating circumstance, is within the discretion of the Trial Chamber.” (para. 91).

However, the Appeals Chamber also held that if the Trial Chamber does not accept the evaluation of the Prosecution regarding the accused’s co-operation, it has to give sufficient reason why it does so, because of its obligation to provide a reasoned opinion under Article 23(2) of the Statute (para. 96). The Appeals Chamber therefore looked at whether the Trial Chamber gave sufficient reasons for its reservations regarding Momir Nikolić’s co-operation with the Prosecution.

The Appeals Chamber found several errors: the Trial Chamber stated that there were “numerous instances” where Momir Nikolić had been evasive in his testimony, but cited only to one such instance (para. 103); the Trial Chamber stated that he had told lies to the Prosecution before entering a plea agreement, but disregarded the fact that Momir Nikolić went back to the Prosecution on his own initiative, apologised, corrected his statement, and openly admitted to having rendered false confessions (para. 107); the Trial Chamber stated that Momir Nikolić’s testimony was not very detailed and that he should generally have been more open, but it had never asked for more details and it did not cite to any instance where the accused had failed to be more detailed or open (para. 113).

The Appeals Chamber concluded that these errors led the Trial Chamber to attach insufficient weight to the mitigating circumstance of his co-operation with the Prosecution (para. 114). 

The Tribunal’s case-law indicates that although a previous decision on sentence may provide guidance if the case at hand relates to the same offence and was committed in similar circumstances, the guidance is only limited because of the overriding obligation to individualise the guilt (see Momir Nikolić Judgement on Sentencing Appeal, para. 38). So far, the Appeals Chamber has never engaged in an actual comparison but has simply highlighted the major differences (see, e.g., Kvočka Appeal Judgement, para. 696). In the present case, however, the similarities to the Obrenović case are striking (both cases are related to the crimes committed after the fall of the Srebrenica enclave, and both accused pleaded guilty to the crime of persecutions). Therefore, the Appeals Chamber scrutinised in detail the differences with respect to the number and type of crimes, the level of participation, as well as the aggravating and mitigating circumstances (paras 42-46). It held that the difference between the sentence of Momir Nikolić and Obrenović is justified (para. 47).

Momir Nikolić also compared his sentence to that of Vidoje Blagojević. As the latter case is on appeal, the Appeals Chamber decided that a comparison of sentences is not possible (para. 51).

See also Dragan Nikolić Judgement on Sentencing Appeal, para. 19.