109. The Trial Chamber held that:

Where the crime requires special intent, such as the crime of persecution charged in count 1 of the Amended Indictment, the accused must also satisfy the additional requirements imposed by the crime, such as the intent to discriminate on political, racial, or religious grounds if he is a co-perpetrator. However, if he is an aider or abettor, he need only have knowledge of the perpetrator’s shared intent. This shared knowledge too can be inferred from the circumstances. If the criminal enterprise entails random killing for financial profit, for instance, that would not necessarily demonstrate an intent to discriminate on “political, racial or religious grounds”. If the criminal enterprise entails killing members of a particular ethnic group, and members of that ethnic group were of a differing religion, race, or political group than the co-perpetrators, that would demonstrate an intent to discriminate on political, racial, or religious grounds. Thus, a knowing and continued participation in this enterprise could evince an intent to persecute members of the targeted ethnic group.[1]

110. The Appeals Chamber affirms the Trial Chamber’s conclusion that participants in a basic or systemic form of joint criminal enterprise must be shown to share the required intent of the principal perpetrators. Thus, for crimes of persecution, the Prosecution must demonstrate that the accused shared the common discriminatory intent of the joint criminal enterprise.[2] If the accused does not share the discriminatory intent, then he may still be liable as an aider and abettor if he knowingly makes a substantial contribution to the crime. […].

117. The jurisprudence on this issue is clear. Joint criminal enterprise requires the existence of a common purpose which amounts to or involves the commission of a crime. The common purpose need not be previously arranged or formulated; it may materialize extemporaneously.[1]

118. In the Krnojelac Appeal Judgement, the Appeals Chamber confirmed that the systemic form of joint criminal enterprise does not require proof of an agreement:

The Appeals Chamber considers that, by requiring proof of an agreement in relation to each of the crimes committed with a common purpose, when it assessed the intent to participate in a systemic form of joint criminal enterprise, the Trial Chamber went beyond the criterion set by the Appeals Chamber in the Tadić case. Since the Trial Chamber’s findings showed that the system in place at the KP Dom sought to subject non-Serb detainees to inhumane living conditions and ill-treatment on discriminatory grounds, the Trial Chamber should have examined whether or not Krnojelac knew of the system and agreed to it, without it being necessary to establish that he had entered into an agreement with the guards and soldiers – the principal perpetrators of the crimes committed under the system – to commit those crimes.[2]

262. In a joint criminal enterprise such as that conducted in Omarska camp, it is necessary to prove that the death of the victim is the result of implementing a joint criminal plan, i.e., of setting up a system of ill-treatment. In this case it has to be proved that the death of the victim was the result of what happened in Omarska camp, be it inhumane conditions, beatings or ill-treatment. On this point, Kvočka rightly argues that the Trial Chamber must first establish the existence of the crime of murder. In this regard, the Appeals Chamber notes that the Trial Chamber did not provide a specific section for the murders committed in Omarska camp and for the specific responsibility of each of the accused for these murders. The Trial Chamber made, however, a number of findings throughout the Trial Judgement on the charges of murder alleged in the Indictment. The Appeals Chamber refers to its previous discussion in this respect[1] and recalls that such a generic approach does not invalidate the Trial Judgement. The Appeals Chamber dismisses Kvočka's contention that the Trial Chamber failed to evaluate the evidence in its ruling on the charges of murder.

263. In addition, contrary to Kvočka's claim, to find an accused guilty of the crime of murder it is not necessary to establish his participation in each murder. For crimes committed as part of a joint criminal enterprise it is sufficient to prove not the participation of the accused in the commission of a specific crime but the responsibility of the accused in furthering the common criminal purpose.[2] […]

259. The Trial Chamber referred to the case-law of the ICTY and ICTR and adopted the following definition of the crime of murder:

The ICTY and the ICTR have consistently defined the crime of murder as requiring that the death of the victim result from an act or omission of the accused committed with the intent to kill, or with the intent to cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[1]

The Appeals Chamber cannot but agree with the Trial Chamber’s definition, but wishes to clarify the following.

260. In the Krnojelac case, the Trial Chamber rightly stated that proof beyond reasonable doubt that a person was murdered does not necessarily require proof that the dead body of that person has been recovered.[2] The fact of a victim’s death can be inferred circumstantially from all of the evidence presented to the Trial Chamber. All that is required to be established from that evidence is that the only reasonable inference from the evidence is that the victim is dead as a result of acts or omissions of the accused or of one or more persons for whom the accused is criminally responsible.[3]

261. Accordingly, for the crime of murder under Article 3 of the Statute to be established, the Prosecutor bears the onus of proving:

1) the death of a victim taking no active part in the hostilities;

2) that the death was the result of an act or omission of the accused or of one or more persons for whom the accused is criminally responsible;

3) the intent of the accused or of the person or persons for whom he is criminally responsible

    a) to kill the victim; or

    b) to wilfully cause serious bodily harm which the perpetrator should reasonably have known might lead to death.[4]

323. Harassment, humiliation and psychological abuse are not listed as such under Article 5 of the Statute nor do they constitute specific offences under other articles of the Statute. The Appeals Chamber notes however that Common Article 3(1)(c) of the Geneva Conventions prohibits “outrages upon personal dignity, in particular humiliating and degrading treatment”. The specific offence of outrages upon personal dignity also appears in Article 75(2)(b) of Additional Protocol I.[1] The Appeals Chamber also considers that acts of harassment and other psychological abuse, depending on the circumstances, can clearly be assimilated to violations of the “mental well-being of persons” prohibited under Article 75(2)(a) of Additional Protocol I.[2] The Appeals Chamber recalls incidentally that acts underlying persecution under Article 5(h) of the Statute need not be considered a crime in international law.

See also paras 324-325.

284. The Appeals Chamber will next consider whether or not the Trial Chamber committed an error of law in not requiring that the crime of torture be committed by a public official or, in the case of a plurality of perpetrators, that at least one of the persons involved in the torture process be a public official. This question was resolved by the Appeals Chamber in the Kunarac Appeal Judgement. In that case, the Appeals Chamber concluded that the Kunarac Trial Chamber was correct to take the position that the public official requirement was not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.[1] The Appeals Chamber in the present case reaffirms that conclusion. […].

23. The Appeals Chamber recalls that every accused has the right to a reasoned opinion under Article 23 of the Statute and Rule 98ter(C) of the Rules.[1]  However, this requirement relates to the Trial Chamber’s Judgement; the Trial Chamber is not under the obligation to justify its findings in relation to every submission made during the trial. The Appeals Chamber recalls that it is in the discretion of the Trial Chamber as to which legal arguments to address. With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.[2] It is to be presumed that the Trial Chamber 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. There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.[3] If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings. It is therefore not possible to draw any inferences about the quality of a judgement from the length of particular parts of a judgement in relation to other judgements or parts of the same judgement.

24. The Appeals Chamber notes that, in certain cases, the requirements to be met by the Trial Chamber are higher. As an example of a complex issue, the Appeals Chamber considered the appraisal of witness testimony with regard to the identity of the accused:

While a Trial Chamber is not obliged to refer to every piece of evidence on the trial record in its judgement, where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a “reasoned opinion”. In particular, a reasoned opinion must carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence. [4]

But even in those cases, the Trial Chamber is only expected to identify the relevant factors, and to address the significant negative factors. If the Defence adduced the evidence of several other witnesses, who were unable to make any meaningful contribution to the facts of the case, even if the conviction of the accused rested on the testimony of only one witness, the Trial Chamber is not required to state that it found the evidence of each Defence witness irrelevant. On the contrary, it is to be presumed that the Trial Chamber took notice of this evidence and duly disregarded it because of its irrelevance. In general, as the Furundžija Appeals Chamber stated:

The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty ... applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case”.[5]

25. The Appeals Chamber therefore emphasizes that it is necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.[6] General observations on the length of the Judgement, or of particular parts of the Judgement, or of the discussion of certain parts of the evidence, do not qualify, except in particularly complex cases, as the basis of a valid ground of appeal.[7]

681. Sentences of like individuals in like cases should be comparable and, in this regard, the Appeals Chamber “does not discount the assistance that may be drawn from previous decisions rendered”.[1] Indeed, the Appeals Chamber has observed that a sentence may be considered “capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences”.[2] The underlying question is whether the particular offences, the circumstances in which they were committed, and the individuals concerned can truly be considered “like”. Any given case contains a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual. Often, too many variables exist to be able to transpose the sentence in one case mutatis mutandis to another. Hence the Appeals Chamber has previously stated that:

While it does not disagree with a contention that it is to be expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant that the similarities, and the mitigating and aggravating factors dictate different results.[3]

Thus, while comparison with other sentences may be of assistance, such assistance is often limited.[4] For these reasons, previous sentences imposed by the Tribunal and the ICTR are but one factor to be taken into account when determining the sentence.[5]

707. The Appeals Chamber now turns to Žigić’s submission that his extreme consumption of alcohol should be considered a mitigating circumstance. The jurisprudence of this Tribunal is clear that voluntary intoxication is not a mitigating factor.[1] In this regard, the Trial Chamber correctly stated:

[W]hen mental capacity is diminished due to use of alcohol or drugs, account must be taken of whether the person subjected himself voluntarily or consciously to such a diminished mental state. While a state of intoxication could constitute a mitigating circumstance if it is forced or coerced, the Trial Chamber cannot accept Zigic’s contention that an intentionally procured diminished mental state could result in a mitigated sentence.[2]

FINDING that no explanation has been provided which would justify an extension of time or page limits to the Appellant for the filing of his reply, and that a request by a party for extension of time does not automatically amount to a showing of good cause by the opposing party;