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| Appeal Judgement - 30.06.2016 |
STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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109. The Appeals Chamber considers that Stanišić’s argument that the Trial Chamber failed to apply the correct legal standard to his “purported omissions”[1] is based on the premise that each failure to act assessed in the context of joint criminal enterprise liability must, per se, meet the legal conditions set out in the Tribunal’s case law in relation to commission by omission. In this respect, the Appeals Chamber recalls that although participation in a joint criminal enterprise – which is based on an accused’s significant contribution to the common criminal purpose – is a form of “commission” under Article 7(1) of the Statute, this is a mode of liability distinct from commission by omission and is characterised by different objective and subjective elements.[2] 110. In this respect, the Trial Chamber properly held that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, it is sufficient that he acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[3] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[4] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case‑by‑case basis.[5] Furthermore, the Appeals Chamber recalls that the relevant failures to act or acts carried out in furtherance of a joint criminal enterprise need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all.[6] That is, one’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as the accused performs acts (or fails to perform acts) that in some way contribute significantly to the furtherance of the common purpose.[7] In light of the above, contrary to Stanišić’s assertion, when establishing an accused’s participation in a joint criminal enterprise through his failure to act, the existence of a legal duty to act deriving from a rule of criminal law is not required.[8] The nature of the accused’s duty and the extent of his ability to act are simply questions of evidence and not determinative of joint criminal enterprise liability.[9] 111. In the present case, as part of its factual determination of Stanišić’s contribution to the JCE, the Trial Chamber considered, together with his other actions,[10] his failure to discipline the RS MUP personnel who had committed crimes and to protect the civilian population,[11] despite his duties to do so, together with his ability, as the highest authority, to investigate and punish those who had committed crimes.[12] The Appeals Chamber observes that in the jurisprudence of the Tribunal, a failure to intervene to prevent recurrence of crimes or to halt abuses has been taken into account in assessing an accused’s contribution to a joint criminal enterprise and his intent where the accused had some power and influence or authority over the perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.[13] Therefore, Stanišić has not shown that the Trial Chamber applied an erroneous legal standard when it considered instances of his failures to act in assessing whether he contributed to the JCE. […] 733. Turning to Župljanin’s arguments in relation to his capacity or ability to act, based on the same reasoning, the Appeals Chamber finds no merit in Župljanin’s attempt to conflate the Appeals Chamber’s statement that the objective element of commission by omission requires, at a minimum, an “elevated degree of ‘concrete influence’”,[14] with the significant contribution requirement of joint criminal enterprise liability.[15] For the same reason, the Appeals Chamber dismisses Župljanin’s argument that the Trial Chamber failed to make findings or particularised findings as to whether “he had such a high degree of control over his subordinates that his ‘omission’ could count as part of the actus reus of commission”.[16] See also paras 731-732, 734. [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). |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
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STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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138. The Appeals Chamber first turns to Stanišić’s submission that the Trial Chamber failed to indicate the evidence relied upon or excluded in the section of the Trial Judgement addressing Stanišić’s contribution and as such failed to provide a reasoned opinion. The Appeals Chamber notes that the section of the Trial Judgement on Stanišić’s contribution to the JCE indeed does not refer to the evidence relied upon by the Trial Chamber to support its findings. Neither does it include any cross references to its earlier findings where the Trial Chamber analysed the evidence.[1] The Appeals Chamber, however, recalls that a trial judgement must be read as a whole.[2] Furthermore, there is a presumption that a trial chamber has evaluated all the evidence presented to it, as long as there is no indication that the trial chamber completely disregarded any particular piece of evidence.[3] As Stanišić acknowledges in his own submission,[4] in the section of the Trial Judgement addressing his contribution to the JCE, the Trial Chamber summarised the evidence that it had relied on in other sections of the Trial Judgement. While the Appeals Chamber considers the Trial Chamber’s approach regrettable, [5] it does not, in its view, amount to a failure to provide a reasoned opinion in and of itself. The Appeals Chamber therefore dismisses Stanišić’s argument. [1] See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 2, paras 729-765. [2] Šainović et al. Appeal Judgement, paras 306, 321; Boškoski and Tarčulovski Appeal Judgement, para. 67; Orić Appeal Judgement, para. 38. [3] Popović et al. Appeal Judgement, para. 306; Đorđević Appeal Judgement, fn. 2527; Haradinaj et al. Appeal Judgement, para. 129; Kvočka et al. Appeal Judgement, para. 23. [4] See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 46, 240. [5] See supra [Stanišić and Župljanin Appeal Judgement]], para. 90. |
ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter | |
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STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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139. In relation to Stanišić’s submission that the Trial Chamber failed to provide a reasoned opinion as to whether and how his acts and conduct furthered the JCE, and whether his alleged contribution to the JCE was significant, the Appeals Chamber notes that the Trial Chamber indeed did not enter express findings in this regard. The Appeals Chamber recalls that these are legal requirements in order for joint criminal enterprise liability to be incurred[1] and that not every type of conduct will amount to a significant enough contribution to the crime to give rise to criminal liability.[2] A trial chamber’s determination of whether and to what extent an accused’s acts and conduct furthered the joint criminal enterprise, and whether the requisite threshold of significance is met, are therefore relevant legal findings essential to the determination of an accused’s guilt, and must be set out in a clear and articulate manner.[3] The lack of explicit findings in this regard falls short of what is required under Article 23(2) of the Statute and Rule 98ter(C) of the Rules.[4] Neither Stanišić nor the Appeals Chamber should be expected to engage in a speculative exercise to discern the Trial Chamber’s findings in this regard.[5] 140. In this context, the Appeals Chamber further considers that the absence of these essential legal findings and the accompanying reasoning have necessarily hindered Stanišić’s ability to appeal his conviction, as he would have been unable to identify exactly which underlying factual findings the Trial Chamber relied upon in its ultimate conclusion that he contributed significantly to the furtherance of the JCE. The Appeals Chamber therefore finds that the Trial Chamber’s failure to enter express findings as to whether and how Stanišić’s acts and conduct furthered the JCE, and whether his contribution was significant constitutes a failure to provide a reasoned opinion. [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”)). |
ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter | |
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STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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537. The Appeals Chamber recalls that a trial chamber’s failure to explicitly refer to particular evidence will not often amount to an error of law, especially where there is significant contrary evidence on the record.[1] This is because a trial chamber cannot be presumed to have ignored a particular piece of evidence simply because it did not mention it in its judgement.[2] Rather, it could be presumed, in the absence of particular circumstances suggesting otherwise, that a trial chamber chose not to rely on an unmentioned piece of evidence, meaning that it considered the evidence but was of the view that it was either not reliable or otherwise not worth citing in its judgement.[3] In the Appeals Chamber’s view, this reflects a corollary of the overarching principle of deference to the discretion of a trial chamber. The Appeals Chamber therefore concludes that only where it is shown within the substance of a trial chamber’s reasoning that clearly relevant evidence has been disregarded, should the Appeals Chamber intervene in order to assess whether that evidence would have changed the factual basis supporting the trial chamber’s conclusion. [1] Tolimir Appeal Judgement, para. 53; Perišić Appeal Judgement, para. 95, referring to Kvočka et al. Appeal Judgement, paras 23, 483-484, 487, 582-583, Simba Appeal Judgement, paras 143, 152, 155. [2] Kamuhanda Appeal Judgement, para. 32, referring to Musema Appeal Judgement, para. 118. [3] Kamuhanda Appeal Judgement, para. 32, referring to Musema Appeal Judgement, para. 118. |
ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter | |
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STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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917. Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts to find that he possessed the requisite intent pursuant to the first category of joint criminal enterprise is based on a misunderstanding of the applicable law. The Trial Chamber was not required to establish that Župljanin intended the specific coercive acts by which the JCE I Crimes were to be achieved. The Appeals Chamber recalls that the Trial Chamber was required to find that Župljanin shared with the other members of the JCE the intent to commit the JCE I Crimes and the intent to participate in a common plan aimed at their commission.[1] Therefore, it was necessary for the Trial Chamber to find that Župljanin shared the intent for the JCE I Crimes, and especially that he intended to forcibly displace, permanently or otherwise, the victims across the relevant de facto or de jure border to another country (as in deportation) or within a relevant border (as in forcible transfer).[2] In the view of the Appeals Chamber, it is not required that members of the JCE agreed upon a particular form through which the forcible displacement of non‑Serbs was to be effectuated or that Župljanin intended specific acts of coercion causing the displacement of individuals, so long as it is established that Župljanin intended to forcibly displace the victims. [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). |
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STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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958. The Appeals Chamber recalls that an accused can only be held responsible for crimes pursuant to the third category of joint criminal enterprise, when the elements of the first category of joint criminal enterprise have been satisfied.[1] Thus, the extended form of joint criminal enterprise attaches only where a trial chamber is satisfied that an accused already possessed the intent to participate in and further the common criminal purpose of a group.[2] The Appeals Chamber recalls further that the subjective element of the first category of joint criminal enterprise is that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and the intent to participate in a common plan aimed at their commission.[3] For liability pursuant to the third category of joint criminal enterprise, a trial chamber must be satisfied in addition that: (i) it was foreseeable to the accused that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by any other member of the joint criminal enterprise) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[4] […] […] 966. The Appeals Chamber understands Župljanin to argue that the Trial Chamber erred by convicting him pursuant to the third category of joint criminal enterprise for Župljanin’s JCE III Crimes because these crimes are more serious than the JCE I Crimes.[5] The Appeals Chamber, however, observes that this contention is essentially premised on his suggestion to depart from the existing jurisprudence on the basis of his misconstruction of the law. More specifically, Župljanin argues that the Appeals Chamber should depart from its jurisprudence and establish an additional requirement within the subjective element of the third category of joint criminal enterprise, namely that in cases involving “violent foreseeable crimes” the accused must have “intended recourse to violent means” to implement the joint criminal enterprise.[6] However, the Appeals Chamber is not persuaded by this contention for the following reasons. See also paras 967-976. [1] See Blaškić Appeal Judgement, para. 33; Vasiljević Appeal Judgement, para. 99; Tadić Appeal Judgement, para. 228. [2] See e.g. Blaškić Appeal Judgement, para. 33, referring to Vasiljević Appeal Judgement, para. 101 (quoting Tadić Appeal Judgement, para. 228); Brđanin Appeal Judgement, para. 411; Stakić Appeal Judgement, para. 65; Kvoćka et al. Appeal Judgement, para. 83. [3] Popović et al. Appeal Judgement, para. 1369. See Đorđević Appeal Judgement, para. 468. [4] Tolimir Appeal Judgement, para. 514; Đorđević Appeal Judgement, para. 906; Šainović et al. Appeal Judgement, paras 1061, 1557; Brđanin Appeal Judgement, paras 365, 411. [5] 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. 219. [6] Župljanin Appeal Brief, paras 223, 225. |
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998. […] Contrary to Župljanin’s argument,[1] the Trial Chamber was not required to establish whether it was foreseeable that a specific group would commit the specific crime, as long as it found that it was foreseeable to Župljanin that a crime outside the common purpose might be perpetrated by one or more of the persons used by him (or by another member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose and he willingly took the risk that the crime might be committed by joining or continuing to participate in the JCE.[2] [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. |
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STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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597. With respect to Stanišić’s argument that the Tribunal’s case law gives rise to cogent reasons to depart from the Tribunal’s case law for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise, the Appeals Chamber considers that Stanišić conflates the mens rea requirement for the crime of persecutions with the subjective element of a mode of liability by which criminal responsibility may attach to an accused. It recalls that for a conviction for persecutions pursuant to the third category of joint criminal enterprise, it is sufficient that it was foreseeable to the accused that an act of persecutions could be committed and that it could be committed with discriminatory intent.[1] […] […] 599. With respect to Stanišić’s argument that customary international law does not permit convictions for specific intent crimes pursuant to the third category of joint criminal enterprise, the Appeals Chamber observes that in its analysis of customary international law in the Tadić case, it specifically considered the provisions of the Convention for the Suppression of Terrorist Bombings and the ICC Statute cited by Stanišić.[2] It found, on the basis on numerous sources from both civil and common law jurisdictions, including post‑World War II cases, that the third category of joint criminal enterprise has existed as a mode of liability in customary international law since at least 1992 and that it applies to all crimes.[3] While Stanišić asserts that the Convention for the Suppression of Terrorist Bombings, the ICC Statute, and the post‑World War II cases on which he relies do not expressly provide for convictions for specific intent crimes on the basis of the third category of joint criminal enterprise or even the third category of joint criminal enterprise itself,[4] this does not undermine the Appeals Chamber’s analysis of customary international law and conclusion in the Tadić case, which has been consistently confirmed in the Tribunal’s subsequent jurisprudence.[5] In the Appeals Chamber’s view, Stanišić merely relies upon the absence of express support in the sources he identifies, without showing that they give rise to cogent reasons to depart from the Tribunal’s existing jurisprudence. [1] Đorđević Appeal Judgement, para. 919; Brđanin Appeal Decision of 19 March 2004, para. 6. It must further be shown that the accused willingly took the risk that the crime might be committed (see supra [Stanišić and Župljanin Appeal Judgement]], para. 595). [2] Tadić Appeal Judgement, paras 221‑223, referring to Convention for the Suppression of Terrorist Bombings [International Convention for the Suppression of Terrorist Bombing, U.N. Doc. A/RES/52/164; 37 ILM 249 (1998); 2149 UNTS 284, entered into force 23 May 2001]], art. 2(3)(c), ICC Statute [Statute of the International Criminal Court, adopted by a Diplomatic Conference in Rome on 17 July 1998]], art. 25(3). See Stanišić Appeal Brief [Appellant’s Brief on behalf of Mićo Stanišić, 19 August 2013]], paras 355-363. [3] Tadić Appeal Judgement, paras 194‑226. See Đorđević Appeal Judgement, para. 81; Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004 [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004]], paras 10, 17, referring to Tadić Appeal Judgement, paras 188, 193. [4] See Stanišić Appeal Brief, paras 356-358, 361-366. [5] Popović et al. Appeal Judgement, para. 1672, referring to Đorđević Appeal Judgement, para. 81; Martić Appeal Judgement, para. 80; Brđanin Appeal Judgement, para. 405. See Rwamakuba Appeal Decision on Joint Criminal Enterprise of 22 October 2004, paras 14-25. In this regard, the Appeals Chamber also recalls that “it is not required to demonstrate that every possible combination between crime and mode of liability be explicitly allowed by, or have precedents in, customary international law” (Đorđević Appeal Judgement, para. 81 (emphasis omitted)). |
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598. […] [T]he Appeals Chamber recalls that it is not bound by the findings of other courts – domestic, international, or hybrid – and that, even though it will consider such jurisprudence, it may nonetheless come to a different conclusion on a matter than that reached by another judicial body.[1] The Appeals Chamber considers that in order to constitute a cogent reason for departing from its established jurisprudence on a matter, the party advocating a departure would need to show that a non‑binding opinion of another court is the correct law and demonstrate that there is a clear mistake in the Appeals Chamber’s approach.[2] […] [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. |
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918. In addition, Župljanin’s argument that the Trial Chamber was required to find that he intended coercive acts under the first category of joint criminal enterprise because the actus reus of the JCE I Crimes requires that the act inducing the departure be criminal, finds no support in the jurisprudence of the Tribunal. […] Contrary to Župljanin’s unreferenced assertion, the jurisprudence of the Tribunal does not require that persons be displaced as a result of criminal acts.[1] [1] In relation to Župljanin’s argument that measures authorised or permitted under the law of armed conflict, such as a lawful and legitimate attack on a village, do not satisfy the actus reus of forcible transfer (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. 8.), the Appeals Chamber observes that Župljanin does not point to any evidence to suggest that the displacements in this case were justified under international humanitarian law. The Appeals Chamber therefore dismisses Župljanin’s argument as undeveloped and demonstrating no error. |
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| Appeal Judgement - 30.06.2016 |
STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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1096. The Appeals Chamber recalls that the choice of remedy lies within its discretion, in light of Article 25 of the Statute.[1] Accordingly, in the interests of fairness to Stanišić and Župljanin, balanced with considerations of public interest and the administration of justice, and taking into account the nature of the offences and the circumstances of the case at hand, the Appeals Chamber finds it appropriate to refrain from entering new convictions on appeal for these crimes.[2] [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. |
ICTR Statute Article 25 ICTY Statute Article 25 | |
| Notion(s) | Filing | Case |
| Decision on Indigence - 24.06.2016 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Page 3: RECALLING that judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which the decision was made and that the decision may be quashed if the Registrar: (i) has failed to comply with the relevant legal requirements; (ii) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (iii) took into account irrelevant material or failed to take into account relevant material; or (iv) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached;[1] RECALLING FURTHER that the party contesting the administrative decision bears the onus to show an error in the decision and that the error has significantly affected the decision to his detriment;[2] [1] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016 (“Nyiramasuhuko et al. Decision”), para. 16; Karadžić ICTY Appeals Chamber Decision of 25 July 2014 [Prosecutor v. Radovan Karadžić, Case No. IT-95-5-5/18-AR73.13, Decision on Appeal from Decision on Indigence, 25 July 2014 (confidential and ex parte), public redacted version issued on 2 December 2014], para. 4; Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013 (“Prlić et al. Decision”), paras. 6, 30; Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013 (“Tolimir Decision”), para. 8; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003 (“Kvočka et al. Decision”), para. 13. [2] Tolimir Decision, para. 9 and references cited therein. |
Other instruments MICT Directive on the Assignment of Defence Counsel | |
| Notion(s) | Filing | Case |
| Decision on Indigence - 24.06.2016 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Page 4: RECALLING the Remuneration Policy, which provides that “[f]or the purpose of this Policy, the [Mechanism] shall recognise the determination of indigency of an Accused made by the ICTR and the ICTY, unless new information is obtained which establishes that the Accused has sufficient means to remunerate Counsel”;[1] NOTING that this provision of the Remuneration Policy addresses only a situation where a determination was made that an accused person is indigent, as is clear from the last part of the provision which refers to “new information” establishing that the accused person “has sufficient means” to remunerate counsel, not a situation where the determination was that an accused person is not indigent; CONSIDERING, therefore, that the Remuneration Policy does not require the Registry to recognise a determination made by the ICTY that an accused is able to contribute to the costs of his defence in part; [1] Remuneration Policy [Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, 21 March 2016], para. 7. |
Other instruments Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, para. 7 | |
| Notion(s) | Filing | Case |
| Decision on Indigence - 24.06.2016 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Pages 4-5: RECALLING that the Registry has the primary responsibility for matters relating to remuneration of counsel in respect of which it enjoys a margin of appreciation;[1] REITERATING, however, that the Appeals Chamber has the inherent power to review matters affecting the rights of persons in proceedings before it, including the right to have adequate time and facilities for the preparation of defence, pursuant to its statutory obligation to ensure the fairness of the proceedings;[2] CONSIDERING that the inherent power to review such matters encompasses the power to make determinations concerning such matters where necessary to give full effect to statutory rights;[3] RECALLING the statutory right of an accused to have legal assistance assigned to him where the interests of justice so require and without payment if he does not have sufficient means to pay for it;[4] RECALLING that the Directive was established to ensure legal assistance to indigent accused in the most efficient, economical, and equitable manner in order to safeguard the rights afforded under the Statute and the Rules;[5] CONSIDERING the UN Guidelines on Access to Legal Aid, which provide that “[a] court may, having regard to the particular circumstances of a person and after considering the reasons for denial of legal aid, direct that that person be provided with legal aid, with or without his or her contribution, when the interests of justice so require”;[6] […] CONSIDERING that the burden of proof is on the applicant for legal aid to demonstrate his inability to remunerate counsel and that once the applicant has provided information regarding his inability to do so the burden of proof shifts to the Registry to prove otherwise based on the balance of probablities;[7] [1] Decision on the Registry’s Request for Observations Regarding Preparation of the Notice of Appeal, 4 May 2016, p. 1 (“the Registry has the primary responsibility in the determination of matters relating to remuneration of counsel”); Nyiramasuhuko et al. Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016], para. 17; Tolimir Decision [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013], paras. 8, 9 and referenced cited therein. [2] See Article 19 of the Statute of the Mechanism (“Statute”). See also Nyiramasuhuko et al. Decision, para. 14; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Nebojša Pavković’s Motion for Stay of Proceedings, 2 March 2010, para. 12; In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12. [3] Nyiramasuhuko et al. Decision, para. 21 (“[t]he Appeals Chamber is of the view that judicial economy is best served in the particular circumstances of this case by disposing of the merits of this part of the Request for Review rather than remitting the matter to the Registrar”). [4] Article 19(4)(d) of the Statute. See also Rule 43 of the Rules of Procedure and Evidence of the Mechanism. [5] Directive [Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012], Article 1. The Appeals Chamber also recalls that, under Articles 6(B) and 6(C) of the Directive, an accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him and paid for by the Mechanism and that, for an accused who has the means to partially remunerate counsel, the Mechanism shall pay that portion of his defence costs which the accused does not have sufficient means to cover, as determined in accordance with the Registry Policy for Determining the Extent to which an Accused is able to Remunerate Counsel. [6] UN Guidelines on Access to Legal Aid, para. 41(e). [7] Prlić et al Decision [Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013], para. 35; Kvočka et al. Decision [Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003], para. 12. |
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| Decision on Extension of Assignment of Counsel - 27.05.2016 |
NIYITEGEKA Eliézer (MICT-12-16-R) |
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8. […] [A] general allotment of funds under the Mechanism’s legal aid system does not itself set an outer limit on the time frame that an assigned counsel has to prepare a request for review.[1] […] See also para. 5 [1] See supra para. 5. |
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| Notion(s) | Filing | Case |
| Decision on Extension of Assignment of Counsel - 27.05.2016 |
NIYITEGEKA Eliézer (MICT-12-16-R) |
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9. […] It follows from the jurisprudence that review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[1] […] [1] See Review Decision of 23 January 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008], para. 13 and references cited therein. |
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| Notion(s) | Filing | Case |
| Decision on Extension of Assignment of Counsel - 27.05.2016 |
NIYITEGEKA Eliézer (MICT-12-16-R) |
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11. […] The Appeals Chamber considers that counsel, once appointed, is, at a minimum, expected to familiarize himself with the case. […] |
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| Decision on Disclosure - 25.05.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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RECALLING that Rule 71(B) of the Rules provides, inter alia, that the Prosecutor shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence;[1] CONSIDERING that Rule 71(B) of the Rules applies to appeal proceedings;[2] CONSIDERING that the obligation to provide access pursuant to Rule 71(B) of the Rules is only triggered by a sufficiently specific request by the Defence;[3] CONSIDERING FURTHER that, prior to obtaining a judicial order for the inspection of any item material the preparation of the defence, the applicant must: (i) demonstrate that the material sought is in the custody or control of the Prosecution; (ii) establish the prima facie materiality of the document sought to the preparation of the defence case; and (iii) specifically identify the requested material;[4] […] CONSIDERING that, in relation to appellate proceedings, the Prosecution should consider the following criteria to determine if material in its possession is material to the preparation of the defence in accordance with Rule 71(B) of the Rules: (i) whether the issue to which the material relates is the subject of a ground of appeal; or (ii) whether the material could reasonably lead to further investigation by the Defence and the discovery of additional evidence admissible on appeal;[5] […] CONSIDERING that the Prosecution should not disclose the Report, which was provided confidentially, without first obtaining consent to disclose it from its author;[6] [1] The Appeals Chamber observes that, in material respects, Rule 71(B) of the Rules tracks the language of Rules 66(B) of the Rules of Procedure and Evidence of the International Tribunal for the former Yugoslavia (“ICTY”) and for the International Criminal Tribunal for Rwanda (“ICTR”) (collectively, “ad hoc Tribunals”). Consequently, the Appeals Chamber finds the Appeals Chamber jurisprudence of the ad hoc Tribunals interpreting Rule 66(B) of the ICTY and ICTR Rules of Procedure and Evidence highly relevant in its interpretation of Rule 71(B) of the Rules. See Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 6. [2] See Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Miroslav Bralo’s Motion for Admission of Additional Evidence (confidential), 12 January 2007 (“Bralo Decision of 12 January 2007”), para. 25; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Motions Relating to the Appellant Hassan Ngeze’s and the Prosecution’s Requests for Leave to Present Additional Evidence of Witnesses ABC1 and EB (public redacted version), 1 December 2006 (“Nahimana et al. Decision of 1 December 2006”), para. 16; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 26 September 2006 (“Bagosora et al. Decision of 26 September 2006”), para. 9, n. 35; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on the Prosecution’s Motion to be Relieved of Obligation to Disclose Sensitive Information Pursuant to Rule 66(C) (confidential), 27 March 2003 (“Krstić Decision of 27 March 2003”), p. 4. [3] Bagosora et al. Decision of 26 September 2006, para. 10. [4] Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations (public redacted version), 23 January 2008, para. 12. See also Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 18 May 2010, para. 13. [5] See Bralo Decision of 12 January 2007, para. 25; Nahimana et al. Decision of 1 December 2006, para. 16; Krstić Decision of 27 March 2003, p. 4. [6] Cf. Rule 76(B) of the Rules. |
ICTR Statute Rule 66(B) ICTY Statute Rule 66(B) IRMCT Statute Rule 71(B) | |
| Notion(s) | Filing | Case |
| Decision on Access to Ex Parte Filings - 10.05.2016 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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CONSIDERING that, with regard to confidential material, the Mechanism must “find a balance between the right of a party to have access to material to prepare its case and the need to guarantee the protection of witnesses”;[1] RECALLING that a request for access to confidential material from another case can only be granted if the material sought has been identified or described by its general nature and a legitimate forensic purpose for gaining such access is shown;[2] RECALLING ALSO that the party seeking access to confidential material bears the burden to justify its request;[3] RECALLING FURTHER that the requesting party must establish that such material is likely to assist its case materially, or that there is at least a good chance that it would, and that this standard may be met by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought;[4] [1] Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007 (“Brđanin Decision of 24 January 2007”), para. 10. See Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vlastimir Đorđević’s Motion for Access to Transcripts, Exhibits and Documents, 16 February 2010 (“Šainović Decision of 16 February 2010”), para. 19. [2] See, e.g., Prosecutor v. Vujadin Popović et al., Case Nos. IT-05-88-A & IT-09-92-T, Decision on Motion by Ratko Mladić for Access to Confidential Material, 20 February 2013 (“Popović Decision of 20 February 2013”), p. 2; Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Decision on Ildephonse Nizeyimana’s Request for Access to Closed Session Transcripts, 31 March 2011 (“Muvunyi Decision of 31 March 2011”), para. 3; Šainović Decision of 16 February 2010, para. 9. See also Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16, Decision on Niyitegeka’s Urgent Request for Orders Relating to Prosecution Witnesses, 29 January 2016, para. 8; Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-R86.2, Second Decision on Motion for Access to Confidential Material from the Nshogoza Case, 9 November 2015, para. 4. [3] See Brđanin Decision of 24 January 2007, para. 14. [4] See Popović Decision of 20 February 2013, p. 2; Muvunyi Decision of 31 March 2011, para. 3; Brđanin Decision of 24 January 2007, para. 12. |
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| Notion(s) | Filing | Case |
| Decision on Access to Ex Parte Filings - 10.05.2016 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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EMPHASIZING that, with regard to ex parte confidential material, the requesting party must meet a higher standard in order to establish a legitimate forensic purpose for accessing such material[1] as it by its nature contains information that has not been disclosed inter partes because of, inter alia, “privacy interests of a person” and that, therefore, “the party on whose behalf the ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2] [1] Brđanin Decision of 24 January 2007 [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Mićo Stanišić’s Motion for Access to All Confidential Materials in the Brđanin Case, 24 January 2007], para. 14. [2] Šainović Decision of 16 February 2010 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vlastimir Đorđević’s Motion for Access to Transcripts, Exhibits and Documents, 16 February 2010], para. 10 and references cited therein. |
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