3449.            The Appeals Chamber observes that the gravity of the crime of direct and public incitement to commit genocide derives from that of the crime of genocide, a crime of the most serious gravity.[1] The Trial Chamber found that Nteziryayo committed direct and public incitement to commit genocide on three separate occasions.[2] Accordingly, the Appeals Chamber considers that, regardless of whether or not deaths resulted from his statements, the imposition of a sentence of 30 years of imprisonment was not beyond the Trial Chamber’s sentencing discretion.

The Appeals Chamber recalled: (i) its findings that the Trial Chamber erred in finding that Nyiramasuhuko, Ntahobali, and Ndayambaje’s right to be tried without undue delay had not been violated, and that these violations caused them prejudice; and (ii) that it had reversed some of their convictions. The Appeals Chamber then held as follows:

3523.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Nyiramasuhuko’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3526.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ntahobali’s sentence of life imprisonment to 47 years of imprisonment.

[…]

3538.            In light of the above, the Appeals Chamber, Judge Agius dissenting as to the number of years, reduces Ndayambaje’s sentence of life imprisonment to 47 years of imprisonment.

78. The Appeals Chamber further recalls that pursuant to Article 23(2) of the Statute and Rule 98ter(C) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), trial chambers are required to give a reasoned opinion in writing.[1] In order to provide a reasoned opinion, a trial chamber should set out in a clear and articulate manner “the legal and factual findings on the basis of which it reached the decision to convict or acquit an individual”.[2] In particular, a trial chamber is required to make findings on those facts which are essential to the determination of guilt on a particular count.[3] The absence of any relevant legal findings in a trial judgement also constitutes a manifest failure to provide a reasoned opinion.[4] A reasoned opinion in the trial judgement is essential, inter alia, for allowing a meaningful exercise of the right of appeal by the parties and enabling the Appeals Chamber to understand and review the trial chamber’s findings as well as its evaluation of the evidence.[5]

79. The Trial Chamber found neither Stanišić nor Simatović responsible for committing the crimes charged in the Indictment pursuant to JCE liability, on the ground that it was unable to conclude beyond reasonable doubt that Stanišić or Simatović shared the intent to further the common criminal purpose of the JCE.[6] Before arriving at this conclusion on their mens rea, the Trial Chamber did not first adjudicate whether the elements of the actus reus of JCE liability – namely, the existence of a common criminal purpose, a plurality of persons, and Stanišić’s and Simatović’s contribution – were fulfilled.[7]

80. For the reasons set out below, the Appeals Chamber, Judge Afanđe dissenting, finds that, in so doing, the Trial Chamber erred in law by failing to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability.

81. The Appeals Chamber observes that the Trial Chamber found that there was no direct evidence establishing Stanišić’s and Simatović’s intent.[8] However, the Appeals Chamber recalls that the requisite intent for a conviction under JCE liability can be inferred from circumstantial evidence, such as a person’s knowledge of the common criminal purpose or the crime(s) it involves, combined with his or her continuing participation in the crimes or in the implementation of the common criminal purpose.[9] In the circumstances of the present case, the Appeals Chamber, Judge Afanđe dissenting, is of the view that the Trial Chamber could only adjudicate, and provide a reasoned opinion on, Stanišić’s and Simatović’s mens rea under JCE liability after having established the existence and scope of the common criminal purpose shared by a plurality of persons and having assessed whether Stanišić’s and Simatović’s acts contributed to this common criminal purpose.

82. In the view of the Appeals Chamber, Judge Afanđe dissenting, determining the existence and scope of a common criminal purpose shared by a plurality of persons (including its geographical and temporal limits) was a necessary prerequisite to determining whether the acts performed by Stanišić and Simatović (including those not directly involving the commission of a crime) were related, and contributed, to the perpetration of the common criminal purpose. The Trial Chamber was therefore required to examine whether Stanišić’s and Simatović’s shared intent to further that common criminal purpose could be inferred from their knowledge combined with their acts as well as from their words and interactions with other individuals, after having established the existence and scope of the common criminal purpose shared by a plurality of persons. In other words, without making findings on the existence and scope of the common criminal purpose shared by a plurality of persons, the Trial Chamber could not assess Stanišić’s and Simatović’s words in the context of that purpose and whether their acts contributed to that purpose and, consequently, it could not properly adjudicate whether Stanišić’s and Simatović’s mens rea for JCE liability could be inferred from the circumstances.

[…]

87. In the absence of a thorough analysis and prior findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as on Stanišić’s and Simatović’s contribution to it, the Trial Chamber could not have properly adjudicated Stanišić’s and Simatović’s mens rea.

88. Accordingly, the Appeals Chamber, Judge Afanđe dissenting, finds that the Trial Chamber erroneously failed to make findings on the existence and scope of a common criminal purpose shared by a plurality of persons, prior to finding that the mens rea of Stanišić and Simatović for JCE liability was not met. In so doing, the Trial Chamber failed to adjudicate, and to provide a reasoned opinion on, essential elements of JCE liability. Without the circumstances provided by the findings on the existence and scope of a common criminal purpose shared by a plurality of persons as well as the assessment of Stanišić’s and Simatović’s words and acts in light of this purpose, the Trial Chamber could not have determined whether it was able to infer beyond reasonable doubt Stanišić’s and Simatović’s mens rea from these circumstances and whether it should ultimately convict or acquit them.

122. The Appeals Chamber recalls that it has found, Judge Afanđe dissenting, that the Trial Chamber erred in law in failing to make the necessary findings on the existence and scope of a common criminal purpose shared by a plurality of persons.[1] The Appeals Chamber further recalls that it has found, Judge Agius and Judge Afanđe dissenting, that the Trial Chamber erred in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[2] In accordance with the well-established standard of appellate review, where the Appeals Chamber finds an error of law in the trial judgement arising from the application of a wrong legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.[3]

123. In light of the nature and scale of the errors of law identified by the Appeals Chamber in this case, Judge Agius dissenting with respect to the Error on Aiding and Abetting Liability and Judge Afanđe dissenting with respect to the Error on JCE Liability and the Error on Aiding and Abetting Liability, were the Appeals Chamber to conduct its own review of the relevant factual findings of the Trial Chamber, applying the correct legal standards, it would first have to turn to the Error on JCE Liability and make findings on the existence and scope of a common criminal purpose shared by a plurality of persons and then proceed to assess Stanišić’s and Simatović’s contribution and intent for JCE liability. Depending on the result of such an analysis, the Appeals Chamber might then have to turn to the Error on Aiding and Abetting Liability.

124. However, the Appeals Chamber, Judge Afanđe dissenting, is of the view that it would be inappropriate to conduct this analysis as it would have to analyse the entire trial record without the benefit of having directly heard the witnesses in order to determine whether it is itself satisfied with respect to the requirements of JCE liability and, depending on the result of such an analysis, with respect to the requirements of aiding and abetting liability. Indeed, the evidence on which the Prosecution relies to establish the common criminal purpose and the mens rea for JCE liability is of a circumstantial nature[4] and it would not be sufficient for the Appeals Chamber to focus on limited pieces of evidence or the existent findings in the Trial Judgement, which do not thoroughly address the evidence relevant to the common criminal purpose or the plurality of persons.[5] In this regard, the Appeals Chamber also notes the scale and complexity of the case, with a trial record containing 4,843 exhibits[6] and the testimony and/or written statements of 133 witnesses,[7] the contents of which span wide swaths of Croatia and Bosnia and Herzegovina over a four and a half year time period (April 1991 – 31 December 1995) and pertain to multiple statutory crimes, numerous armed groups, and various high-ranking alleged JCE members.[8] Assessing this trial record in its entirety without having directly heard the witnesses would not allow the Appeals Chamber to fairly and accurately determine Stanišić’s and Simatović’s criminal responsibility.

125. In light of the above, in determining the subsequent course of action, the Appeals Chamber may exercise a certain discretion.[9] In accordance with Rule 117(C) of the Rules, the Appeals Chamber may order a retrial in appropriate circumstances.[10] In addition, the Appeals Chamber also has an inherent power to control its proceedings in such a way as to ensure that justice is done by remitting limited issues to be determined by either the original or a newly composed trial chamber.[11]

126. The Appeals Chamber notes that, of the three judges of the original Trial Chamber, who directly heard the witnesses at trial, Judge Picard and Judge Gwaunza no longer hold office at the Tribunal. Therefore, it is impractical to remit the case to the original Trial Chamber composed of the same three Judges, who would have been best placed to make the necessary findings on the basis of the original trial record. Should the case be remitted to a newly composed trial chamber to do this exercise solely on the basis of the original trial record, it would encounter similar difficulties to those which would be encountered by the Appeals Chamber as a result of not having directly heard the witnesses.

127. Accordingly, and recalling that an appeal is not a trial de novo,[12] the Appeals Chamber, Judge Afanđe dissenting, finds that this case gives rise to appropriate circumstances for a retrial pursuant to Rule 117(C) of the Rules. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. While the Appeals Chamber is well aware that Stanišić and Simatović have spent nearly five years and four years and eight months, respectively, in detention, it is of the view that the alleged offences are of the utmost gravity and considers, Judge Afanđe dissenting, that, in the circumstances of this case, the interests of justice would not be well served if a retrial were not ordered.

11.     Pursuant to Rule 90(J) of the Rules of Procedure and Evidence of the Mechanism (“Rules”), a decision disposing of a contempt case rendered by a Single Judge is subject to appeal as of right. The Appeals Chamber notes that in the Impugned Decision, the Single Judge dismissed Kamuhanda’s request for the appointment of an amicus curiae Prosecutor to complete the investigations into contempt identified in the ICTR Oral Decision, thus effectively disposing of the contempt case before the Mechanism. Accordingly, the Appeals Chamber finds that an appeal as of right lies from the Impugned Decision under Rule 90(J) of the Rules, and recognizes the Appeal as validly filed.

NOTING that the contested paragraphs of the Prlić Response Brief make submissions on the merits of certain arguments advanced in the ]orić Appeal Brief and the Stojić Appeal Brief;[1]

RECALLING that paragraph 5 of the Practice Direction^[[2]]] provides that the “opposite party” shall file a “Respondent’s Brief”, the content of which “shall be limited to arguments made in response to [the Appellant’s Brief]”;

CONSIDERING that the “opposite party” means the Prosecution when the appellant is a convicted person, and a defendant when the appellant is the Prosecution, and that arguments made in response must be limited to those raised by the relevant opposite party;

CONSIDERING that the Appeals Chamber will only consider the arguments raised in the Prlić Response Brief to the extent that they respond to the arguments raised by the Prosecution in its appeal against Prlić;

FINDING that to the extent that the Prlić Response Brief contains submissions on the merits of the ]orić Appeal Brief and the Stojić Appeal Brief, the Appeals Chamber will disregard these submissions for the purposes of adjudicating the Prosecution’s appeal against ]orić and Stojić, without prejudice to any possible similar arguments advanced by the Prosecution in its appeal against ]orić and Stojić;

11. The Appeals Chamber observes that Lukić’s condition was in issue at trial and on appeal, and the reports he relies upon for the purposes of his request are merely additional evidence going to proof of matters considered in the original proceedings.[1] Accordingly, the material submitted that relates to Lukić’s health condition does not amount to a “new fact” for the purposes of review under Rule 146 of the Rules. In any case, Lukić’s request for reduction of his sentence, and release on grounds of the recent deterioration of his health and diminished life expectancy, are more appropriately characterized as grounds in support of a request for early release. The Statute and Rules provide that the supervision of enforcement of sentences pronounced by the ICTY, and competence over requests for early release, lie within the powers of the President of the Mechanism.[2]

14.     The Appeals Chamber recalls the critical distinction between material submitted in support of a fact, which was not in issue or considered in the original proceedings, and material, which consists of additional evidence relating to a fact that was in issue or considered in the original proceedings.[1] Review will not be available where a fact was previously in issue.[2] Therefore, it is the definition of the fact in issue in the original proceedings, which will determine the availability of the review procedure.[3] The burden for showing that the information in the tendered material amounts to a “new fact” lies with the moving party.[4] […]

616. The Appeals Chamber notes that there is no appellate jurisprudence which addresses the specific cumulative convictions for genocide and murder as a violation of the laws or customs of war. However, the ICTR Appeals Chamber has upheld cumulative convictions for war crimes, as a broad category, and genocide based on the materially distinct elements of genocide and war crimes.[1] Relevantly, genocide requires proof of specific intent while war crimes require proof of the existence of a nexus between the alleged crimes and the armed conflict.[2]

See also para. 617.

225. Article 4(2)(c) of the Statute provides that genocide can be committed by “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”.[1] This provision has been analysed and interpreted by a number of trial chambers of the ICTY and the ICTR. The Trial Chamber in this case correctly summarised this jurisprudence as:

The underlying acts covered by Article 4(2)(c) are methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction. Examples of such acts punishable under Article 4(2)(c) include, inter alia, subjecting the group to a subsistence diet; failing to provide adequate medical care; systematically expelling members of the group from their homes; and generally creating circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion.[2]

Unlike Articles 4(2)(a) and (b), Article 4(2)(c) does not require proof of a result such as the ultimate physical destruction of the group in whole or in part. However, Article 4(2)(c) applies only to acts calculated to cause a group’s physical or biological destruction deliberately and, as such, these acts must be clearly distinguished from those acts designed to bring about the mere dissolution of the group. Such acts, which have been referred to as “cultural genocide”, were excluded from the Genocide Convention. For example, the forcible transfer of a group or part of a group does not, by itself, constitute a genocidal act, although it can be an additional means by which to ensure the physical destruction of a group.[3]

226. The Appeals Chamber has not previously been called upon to address the issue of what acts qualify as the actus reus of genocide under Article 4(2)(c) of the Statute. However, it is satisfied that the legal principles stated by the Trial Chamber are consistent with the existing case law of the ICTY and the ICTR, as well as the letter and spirit of the Genocide Convention. The Appeals Chamber recalls, in this respect the relevant findings of the ICJ in the recent Croatia v. Serbia case. Citing ICTY jurisprudence, the ICJ held that:

[d]eliberate infliction on the [protected] group of conditions of life calculated to bring about its physical destruction in whole or in part, within the meaning of Article II(c) of the Convention, covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group. Such methods of destruction include notably deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion.[4]

The Appeals Chamber recalls that it is not bound by the legal determinations reached by trial chambers of this Tribunal or by the ICJ.[5] The Appeals Chamber notes, however, that the ICJ is the principal organ of the United Nations and the competent organ to resolve disputes relating to the interpretation of the Genocide Convention.[6] The Appeals Chamber further notes that the ICJ’s interpretation of Article II(c) of the Genocide Convention cited above was based on ICTY trial jurisprudence and is consistent with it. The Appeals Chamber is therefore satisfied that the jurisprudence set out by the Trial Chamber accurately reflects the applicable law.

227. […] The Appeals Chamber recalls that Article 4(2)(c) of the Statute covers “methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction”.[7] It is clear from the Tribunal’s case law, explicitly relied upon by the ICJ, that killings may not be considered, under Article 4(2)(c) of the Statute, as acts resulting in the deliberate infliction of conditions of life calculated to bring about the protected group’s physical destruction.

228. The Appeals Chamber recalls that the different categories of genocidal acts proscribed in Article 4(2) of the Statute correspond to and aim to capture different methods of physical destruction of a protected group: subparagraphs (a) and (b) of Article 4(2) of the Statute proscribe acts causing a specific result, which must be established by the evidence, i.e., killings and serious bodily or mental harm respectively;[8] on the other hand, subparagraph (c) of the same Article purports to capture those methods of destruction that do not immediately kill the members of the group, but which, ultimately, seek their physical destruction.[9] The chambers of the Tribunal and the ICJ have listed several acts as examples of such methods of destruction that could potentially meet the threshold of Article 4(2)(c) of the Statute and Article II(c) of the Genocide Convention, including deprivation of food, medical care, shelter or clothing, lack of hygiene, systematic expulsion from homes, or subjecting members of the group to excessive work or physical exertion.[10] Notably, killings, which are explicitly mentioned as a separate genocidal act under Article 4(2)(a) of the Statute, may not be considered as a method of inflicting upon the protected group conditions of life calculated to bring about its destruction under Article 4(2)(c) of the Statute.

229. The Appeals Chamber, therefore, finds merit in Tolimir’s contention that the Trial Chamber was legally barred from considering the combined effect of the killing and the forcible transfer operations under Article 4(2)(c) of the Statute. The Appeals Chamber recognises that in the Indictment, this actus reus of genocide was alleged to have been perpetrated through “the forcible transfer of the women and children from Srebrenica and Žepa, the separation of the men in Potočari and the execution of the men from Srebrenica”, all of which operations were to be considered together.[11] Such combined consideration, however, was contrary to the legal principles governing the application of Article 4(2)(c) of the Statute, which limit the scope of the provision to “methods of physical destruction, other than killing”.[12]

230. Another error committed by the Trial Chamber in its application of Article 4(2)(c) of the Statute was its consideration of the destruction of mosques in Srebrenica and Žepa as an additional act through which the Bosnian Serb Forces inflicted on the protected group conditions of life calculated to bring about its destruction.[13] […] [A]cts amounting to “cultural genocide” are excluded from the scope of the Genocide Convention.[14] Notably, the ICJ also held that “the destruction of historical, cultural and religious heritage cannot be considered to constitute the deliberate infliction of conditions of life calculated to bring about the physical destruction of the group”.[15] The Trial Chamber, therefore, committed a legal error in considering the destruction of mosques in Srebrenica and Žepa under Article 4(2)(c) of the Statute.

[…]

234. The Appeals Chamber recalls again that the forced displacement of a population “does not constitute in and of itself a genocidal act”[16] and that acts meeting the threshold of Article 4(2)(c) of the Statute typically relate to the deliberate withholding or taking away of the basic necessities of life over an extended period of time.[17] […]