25. In support of their second ground of appeal, the Appellants submit that the Referral Bench “misconstrued” the Defence’s argument that they needed access to findings and evidence from other proceedings before the International Tribunal “arising out of the same alleged criminal enterprise” since they are crucial for the preparation of their defence; they claim that if their case is referred to BiH they will have no access to such materials. [1] First, the Appeals Chamber notes that this argument is not relevant to the present ground of appeal and that no reference to the Appellants’ submissions before the Referral Bench on this issue is provided. If this issue was not raised before the Referral Bench, the Appellants cannot claim that their argument was “misconstrued” or that the Referral Bench failed to address a matter which was not brought before it, thereby committing an error of law or fact. Second, pursuant to Rule 11bis of the Rules, the Referral Bench was not required to consider the Appellants need to access materials from related proceedings before the International Tribunal (for the preparation of their defence) when reaching a determination concerning the assessment of the gravity of the crimes and the level of responsibility of the Appellants. Therefore, the Appellants have failed to show that the Referral Bench erred in law. [W]ith respect to access to confidential materials from related cases before the International Tribunal, defence counsel in a proceeding in BiH, like the BiH Prosecutor, may request that the Prosecutor of the International Tribunal applies to vary protective measures under Rule 75 of the Rules.[2] Thus, the relevant parties to the proceeding in the national jurisdiction – both the Prosecutor and the Appellants – are on equal footing in terms of their ability to gain access to confidential materials from other International Tribunal cases.[3]

At para. 24, the Appeals Chamber recalled its finding in the Janković case:

Nothing in Rule 11bis of the Rules indicates that [a] Referral Bench is obliged to consider the gravity of the crimes charged and the level of responsibility of accused in other cases in order to make its referral decision. Although the Referral Bench may be guided by a comparison with an indictment in another case, it does not commit an error of law if it bases its decision on referral merely on the individual circumstances of the case before it.[1]

32. […] The Referral Bench was entitled to secure the presence of an accused that had been provisionally released in order to deliver its decision on the referral of his case and make sure that the said decision could be implemented. As the Prosecution points out, pursuant to Rule 11bis(H) of the Rules — which states that a Referral Bench shall have the powers of a Trial Chamber under the Rules — the Referral Bench had the power to order the return of Momčilo Gruban.[1]

On the powers of the Referral Bench, see more generally Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras 50 ff (referred to at paras 94 ff. of the present Decision).

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

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).