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Showing 2505 results (20 per page)
| Notion(s) | Filing | Case |
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| Appeal Judgement - 08.04.2015 |
TOLIMIR Zdravko (IT-05-88/2-A) |
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261. The Appeals Chamber first observes that the Trial Chamber correctly stated that the prominence of the targeted portion of the protected group is a relevant factor in determining whether the perpetrator intended to destroy at least a substantial part of the protected group.[1] Indeed, as the Trial Chamber held, “genocidal intent may […] consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such”.[2] This holding is consistent with other trial judgements of the Tribunal,[3] as well as the Appeals Chamber’s own jurisprudence. The Appeals Chamber recalls, in this respect, that “[i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4” of the Statute.[4] 262. The Commission of Experts Report, on which the Trial Chamber relied as support for its legal analysis vis-à-vis the killings of the three Žepa leaders,[5] states, in relevant part: [i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose.[6] 263. The Appeals Chamber finds no legal error in the Trial Chamber’s statement that the selective targeting of leading figures of a community may amount to genocide and may be indicative of genocidal intent.[7] The Appeals Chamber is not persuaded that the commission of genocide through the targeted killings of only the leaders of a group suggests that the leaders of the group are subject to special, stronger protection than the other members of the group, as Tolimir suggests. Recognising that genocide may be committed through the killings of only certain prominent members of the group “selected for the impact that their disappearance would have on the survival of the group as such”[8] aims at ensuring that the protective scope of the crime of genocide encompasses the entire group, not just its leaders. […] 264. […] For a finding of genocide it suffices that the leaders were “selected for the impact that their disappearance would have on the survival of the group as such”.[9] Genocide may be committed even if not all leaders of a group are killed – even though targeting “the totality [of the leadership] per se may be a strong indication of genocide regardless of the actual numbers killed”.[10] 265. […] The Appeals Chamber recalls that according to the Commission of Experts Report and as the Trial Chamber itself recognised, “[t]he character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group […] at the same time or in the wake of that” attack.[11] As the Trial Chamber found, the selective targeting of a protected group’s leadership may amount to genocide only if the leaders are selected because of “the impact that their disappearance would have on the survival of the group as such”.[12] The impact of the leaders’ disappearance may of course be assessed only after the leaders are attacked. Only by considering what happened to the rest of the protected group at the same time or in the wake of the attack on its leadership could “the impact that [the leaders’] disappearance would have on the survival of the group as such” be assessed.[13] […] 267. The Appeals Chamber has already established that the Trial Chamber did not err in finding that the only reasonable inference from the evidence was that the three Žepa leaders suffered a violent death at the hands of their Bosnian Serb captors.[14] However, the Trial Chamber failed to explain how their detention and killings – committed weeks after the entire Žepa population had been forcibly transferred from the enclave – had any impact “on the survival of the group as such”.[15] The Trial Chamber accepted in its conclusion that there was such an impact, but it did not consider or analyse whether or how the killings of the three Žepa leaders after the Bosnian Muslim civilian population of Žepa had been transferred to safe areas of BiH specifically affected the ability of those removed civilians to survive and reconstitute themselves as a group.[16] A finding that Žepa’s Bosnian Muslims lost three of their leaders[17] does not suffice to infer that those civilians were affected by the loss of their leaders in a way that would threaten or tend to contribute to their physical destruction as a group. […] 269. In this context, particularly in light of the fact that the forcible transfer operation of Žepa’s Bosnian Muslims had been completed before the three Žepa leaders were detained and killed and in the absence of any findings as to whether or how the loss of these three prominent figures affected the ability of the Bosnian Muslims from Žepa to survive in the post-transfer period, the inference of genocidal intent was not the only reasonable inference that could be drawn from the record. In the view of the Appeals Chamber, the evidence does not allow for the conclusion that the murders of the three Žepa leaders had a significant impact on the physical survival of the group as such so as to amount to genocide. There is, in sum, no sufficient evidentiary support for the finding that Hajrić, Palić, and Imamović were killed “with the specific genocidal intent of destroying part of the Bosnian Muslim population as such”.[18] […] [1] Trial Judgement, para. 749. [2] Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82. [3] See Sikirica et al. Judgement on Motions to Acquit, para. 77; Jelisić Trial Judgement, para. 82. [4] Krstić Appeal Judgement, para. 12 (cited in Trial Judgement, para. 749). [5] Trial Judgement, paras 749, 777. The Jelisić Trial Judgement also relied on this report as the basis for its holding that genocidal intent may consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such. See Jelisić Trial Judgement, para. 82. [6] Commission of Experts Report, para. 94 (emphasis added). [7] Trial Judgement, paras 749, 777, and authorities cited therein. The Appeals Chamber notes that this statement correctly stated the applicable law, even though, with the exception of the present case, no conviction for genocide has ever been entered by the Tribunal, or other international criminal tribunals, on the basis of the selective targeting of a protected group’s leadership. See, e.g., Sikirica et al. Judgement on Motions to Acquit, paras 84-85; Jelisić Trial Judgement, paras 82-83. [8] Trial Judgement, para. 777, and authorities cited therein. [9] Trial Judgement, para. 777, and authorities cited therein. [10] Commission of Experts Report, para. 94 (cited in Trial Judgement, para. 777). [11] Commission of Experts Report, para. 94. The Trial Chamber also stated that the killings of the three Žepa leaders must not be seen in isolation, but in conjunction with “the fate of the remaining population of Žepa”. Trial Judgement, para. 781. [12] Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82. [13] Trial Judgement, para. 749, citing Jelisić Trial Judgement, para. 82. [14] See supra, para. 144. [15] Trial Judgement, para. 782. [16] Trial Judgement, paras 780-782. [17] Trial Judgement, para. 782. [18] Trial Judgement, para. 782. |
ICTR Statute Article 2 ICTY Statute Article 4 | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 08.04.2015 |
TOLIMIR Zdravko (IT-05-88/2-A) |
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201. Article 4(2)(b) of the Statute provides that genocide can be committed by “causing serious bodily or mental harm to members of the [protected] group” with intent to destroy, in whole or in part, the group as such.[1] “Serious bodily or mental harm” is not defined in the Statute. Drawing on the case law of the ICTY and the ICTR, the Trial Chamber held that serious bodily or mental harm: must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group; although it need not be permanent or irreversible, it must go “beyond temporary unhappiness, embarrassment or humiliation” and inflict “grave and long-term disadvantage to a person’s ability to lead a normal and constructive life”.[2] The Trial Chamber also stated that the determination of the seriousness of the harm in question “must be made on a case-by-case basis”.[3] 202. The Appeals Chamber recalls that it has not directly addressed what constitutes serious mental harm as an act of genocide. Nonetheless, it is satisfied that the definition of serious mental harm adopted in the Trial Judgement is consistent with the case law of the ICTY and the ICTR and aligns with the letter and spirit of the Genocide Convention. […] 203. As correctly stated by the Trial Chamber, serious mental harm must be of such a serious nature as to contribute or tend to contribute to the destruction of all or part of the group.[4] The ICTR Appeals Chamber in the Seromba case has held in this regard that: serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”. Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings. To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5] Contrary to Tolimir’s argument, serious mental harm must be lasting[6] but need not be permanent and irremediable.[7] Tolimir fails to show that these articulations of serious mental harm are “too general and imprecise”.[8] 204. The Appeals Chamber is also not persuaded that the United States of America’s “understanding” of serious mental harm as “the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques”, expressed in its instrument of accession to the Genocide Convention,[9] is correct under customary international law […] […] 207. […] The Appeals Chamber notes that there is ICTY and other international jurisprudence for the proposition that survivors of killing operations may suffer serious mental harm amounting to an act of genocide.[10] The Appeals Chamber finds no error in the Trial Chamber’s conclusion that the mental harm suffered by the survivors of the killings qualified as an act of genocide under Article 4 of the Statute. […] […] 209. […] The Appeals Chamber recalls that while “forcible transfer does not in and of itself constitute a genocidal act […] it is […] a relevant consideration as part of the overall factual assessment”[11] and “could be an additional means by which to ensure the physical destruction” of the protected group.[12] Nothing in the Tribunal’s jurisprudence or in the Genocide Convention provides that a forcible transfer operation may only support a finding of genocide if the displaced population is transferred to concentration camps or places of execution. Tolimir cites no authority suggesting the existence of such a requirement. A forcible transfer operation may still “ensure the physical destruction” of the protected group[13] by causing serious mental harm or leading to conditions of life calculated to bring about the group’s physical destruction, even if the group members are not transferred to places of execution. […] […] 211. Further, the Appeals Chamber is not persuaded that the Trial Chamber was not entitled to take into account the inability and fears of the group to return to their former homes, or the post-transfer quality of their life in making such an assessment. […] The Appeals Chamber notes that these factors are particularly relevant to considering whether the harm caused grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life.[14] 212. […] As noted above, serious mental harm need not result from acts causing permanent or irremediable mental impairment. It suffices that the harmful conduct caused grave and long-term disadvantage to the ability of the members of the protected group to lead a normal and constructive life[15] so as to threaten the physical destruction of the group in whole or in part.[16] […] […] 215. On the other hand, the Appeals Chamber recalls that serious mental harm results only from acts causing grave and long-term disadvantage to the ability of members of the protected group to lead a normal and constructive life[17] and threatening the physical destruction of the group as such.[18] […] 216. […] [S]erious mental harm must be “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[19] The Appeals Chamber further recalls that acts falling under Article 4(2)(b) of the Statute require proof of a result, i.e., that serious mental harm was inflicted.[20] 217. The Trial Chamber did not find that Žepa’s Bosnian Muslim population suffered a mass violent separation of families and the ongoing trauma of having lost their family members, like the Bosnian Muslims from Srebrenica,[21] and failed to point to any evidence on the record establishing that the mental harm suffered by that group tended to contribute to the destruction of the Muslims of Eastern BiH as such.[22] Even if all the factors considered by the Trial Chamber were established, in the absence of findings or references to evidence of any long-term consequences of the forcible transfer operation on the Žepa population and the Bosnian Muslim population of Eastern BiH in general and of a link between the circumstances of the transfer operation in Žepa and the physical destruction of the protected group as a whole, no reasonable trial chamber could have found that the Bosnian Muslims forcibly transferred from Žepa suffered serious mental harm within the meaning of Article 4(2)(b) of the Statute. The Appeals Chamber, Judges Sekule and Güney dissenting, thus reverses the Trial Chamber’s findings in this regard and Tolimir’s remaining arguments are rendered moot and need not be addressed. [1] The same language is used in Article II(b) of the Genocide Convention. [2] Trial Judgement, para. 738, citing Krajišnik Trial Judgement, para. 862; Seromba Appeal Judgement, para. 46; Gatete Trial Judgement, para. 584, Brđanin Trial Judgement, para. 690; Stakić Trial Judgement, para. 516; Akayesu Trial Judgement, paras 502–504; Kayishema and Ruzindana Trial Judgement, para. 108; Bagosora et al. Trial Judgement, para. 2117; Krstić Trial Judgement, para. 513; Blagojević and Jokić Trial Judgement, para. 645. [3] Trial Judgement, para. 738. [4] Trial Judgement, para. 738, and authorities cited therein. See also ICJ Croatia v. Serbia Judgment, para. 157 (“in light of the [Genocide] Convention’s object and purpose, the ordinary meaning of 'serious’ is that the bodily or mental harm referred to in subparagraph (b) of that Article must be such as to contribute to the physical or biological destruction of the group, in whole or in part.”). The Appeals Chamber notes that, significantly, under Article IX of the Genocide Convention, the International Court of Justice (“ICJ”) is the competent organ to resolve disputes relating to the interpretation of that Convention. It is also the principal judicial organ of the United Nations and the community of nations at large. See Charter of the United Nations, Art. 92. [5] Seromba Appeal Judgement, para. 46 (internal citations omitted). See also Krajišnik Trial Judgement, paras 862-863 (“‘failure to provide adequate accommodation, shelter, food, water, medical care, or hygienic sanitation facilities’ will not amount to the actus reus of genocide if the deprivation is not so severe as to contribute to the destruction of the group, or tend to do so. Living conditions, which may be inadequate by any number of standards, may nevertheless be adequate for the survival of the group”); International Criminal Court, Elements of Crimes (2011), Art. 6(b), n. 3 (specifying that an act of serious bodily or mental harm “may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment”.). [6] Judge Sekule dissents on the Majority’s interpretation of the jurisprudence in that “harm must be lasting” for reasons set out in his partly dissenting opinion appended to the present Judgement. [7] See Trial Judgement, para. 738; Blagojević and Jokić Trial Judgement, paras 645-646; Brđanin Trial Judgement, para. 690; Stakić Trial Judgement, para. 516; Krstić Trial Judgement, para. 513 (holding that serious mental harm “must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation” and result “in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.”); Bagosora et al. Trial Judgement, para. 2117; Kayishema and Ruzindana Trial Judgement, para. 108; Akayesu Trial Judgement, paras 502–504. See also Bosnia Genocide Judgment, para. 300 (quoting with approval Stakić Trial Judgement in this regard). [8] See Appeal Brief, para. 73. [9] See Genocide Convention Implementation Act of 1987, Pub. L. No. 100-606, 102 Stat. 3045, 18 U.S.C. §1091(a)(3) (1988), also available at 28 I.L.M. 754 (1989). [10] See Popović et al. Trial Judgement, para. 845; Blagojević and Jokić Trial Judgement, para. 647; Krstić Trial Judgement, para. 514; Bosnia Genocide Judgment, paras 290-291. [11] Blagojević and Jokić Appeal Judgement, para. 123. See also Krstić Appeal Judgement, para. 33. [12] Krstić Appeal Judgement, para. 31. [13] Krstić Appeal Judgement, para. 31. [14] See supra, para. 201. [15] See supra, para. 201. [16] Seromba Appeal Judgement, para. 46. [17] See supra, paras 203-204, 209. [18] Seromba Appeal Judgement, para. 46. [19] Seromba Appeal Judgement, para. 46. [20] Trial Judgement, para. 737; Brđanin Trial Judgement, para. 688; Stakić Trial Judgement, para. 514. See also Popović et al. Trial Judgement, para. 811. [21] The Appeals Chamber acknowledges the Trial Chamber’s finding that, “[i]n the period leading up to the fall of the Žepa enclave, the population of Žepa, including the able-bodied men and some wounded, had fled to the surrounding mountains”. See Trial Judgement, para. 639. The Trial Chamber also found that, even though Žepa’s Muslim civilians “started returning to the centre of Žepa in order to be evacuated” once news about the 24 July 1995 evacuation agreement began to spread (Trial Judgement, para. 639), “[m]ost of the able-bodied men, including members of the ABiH, remained in the mountains at this time”. Trial Judgement, n. 2737, and authorities cited therein. In analysing whether the genocidal act of Article 4(2)(b) of the Statute had been committed, however, the Trial Chamber did not list the de facto separation of families in Žepa among the factors causing serious mental harm to the Bosnian Muslims of Žepa (Trial Judgement, para. 758), even though it did hold that serious mental harm was caused as a result of, inter alia, the forced, violent separation of Srebrenica’s Muslim families in Potočari, which resulted in the detention of men and boys from Srebrenica and their subsequent murders by the Bosnian Serb Forces. See Trial Judgement, para. 756. [22] Cf. Seromba Appeal Judgement, para. 48 (“the Appeals Chamber cannot equate nebulous invocations of 'weakening’ and 'anxiety’ with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.”). |
ICTR Statute Article 2(2)(b) ICTY Statute Article 4(2)(b) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 08.04.2015 |
TOLIMIR Zdravko (IT-05-88/2-A) |
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218. This conclusion, of course, does not amount to a conclusion that the Bosnian Muslims of Žepa were not the victims of genocide. The Appeals Chamber emphasises that the only question addressed here is whether the Trial Chamber erred in finding that the forcible transfer operation in Žepa – which the Trial Chamber distinguished from the transfer operation in Srebrenica and analysed separately vis-à-vis the actus reus of Article 4(2)(b) of the Statute – inflicted on the transferred Muslim population serious mental harm, as that term is used in Article 4(2)(b) of the Statute and the Genocide Convention. This question does not involve the definition of the protected group. In this sense, the Appeals Chamber recalls its earlier conclusion that the Trial Chamber did not err in holding that the Bosnian Muslims of Žepa are, along with the Muslims of Srebrenica and Eastern BiH in general, members of the protected group.[1] By virtue of being “within the targeted part of the protected group”, the Bosnian Muslims of Žepa were among the ultimate victims of the genocidal enterprise against the Muslims of Eastern BiH.[2] […] 236. As clarified above, and consistent with the Appeals Chamber’s recent case law, all members of the protected group as defined by the Trial Chamber – i.e., “the Bosnian Muslim population of Eastern Bosnia and in particular, of the enclaves of Srebrenica, Žepa and Goražde”[3] – were the victims of the genocidal acts of Article 4(2)(a) and 4(2)(b) of the Statute (killings and acts causing serious mental harm), by virtue of being “within the targeted part of the protected group”.[4] In this and the previous subsections, the Appeals Chamber only finds that the displaced Bosnian Muslims of Žepa were not the direct victims of the specific genocidal act defined in Article 4(2)(b) and Article 4(2)(c) of the Statute – acts causing serious mental harm and acts deliberately inflicting conditions of life calculated to bring about the protected group’s physical destruction in whole or in part. The Appeals Chamber’s conclusions do not diminish the status of Žepa’s Muslim populations as victims of the genocide committed against the entire protected group by means of (i) the killings of Srebrenica’s male population (which qualifies as a genocidal act under both Article 4(2)(a) and 4(2)(b) of the Statute) and (ii) the forcible transfer operation of Srebrenica’s women, children, and elderly (which qualifies as a genocidal act under Article 4(2)(b) of the Statute).[5] [1] See supra, paras 185-188. It is this group that is the victim of the crime of genocide – and each underlying act meeting the threshold of Article 4 of the Statute and committed with genocidal intent – and not the individual members of the group. See Trial Judgement, para. 747, citing Akayesu Trial Judgement, para. 521. [2] See also Popović et al. Appeal Judgement, para. 458. The Appeals Chamber refers, in this respect, to its relevant findings in the Popović et al. case, which involved facts and charges almost identical to the present case. The Popović et al. Appeal Judgement affirmed that “the Muslims of Eastern Bosnia including the inhabitants of Žepa were found to be victims of the genocidal enterprise” (Popović et al. Appeal Judgement, para. 458), even though the Popović et al. Trial Chamber had confined its analysis of genocidal acts falling under Article 4(2)(b) of the Statute “to an analysis of the serious bodily and mental harm caused by the killing operation” of the Bosnian Muslim men and boys from Srebrenica. Popović et al. Trial Judgement, para. 843. See also Popović et al. Trial Judgement, paras 844-847. In the Popović et al. case, the Appeals Chamber did not address the Trial Chamber’s holding that the Bosnian Muslim of Žepa were victims of genocide, even though serious bodily or mental harm had only been caused by the killing operation of the Bosnian Muslim men and boys from Srebrenica, not the forcible transfer operations in either Srebrenica or Žepa and this issue was not challenged on appeal. In the view of the Appeals Chamber, the same distinction between victims of genocide (which include all members of the protected group) and direct targets of each act that constitutes the actus reus of genocide applies to the present case. [3] Trial Judgement, para. 775, citing Indictment, para. 10. [4] Popović et al. Appeal Judgement, para. 458. See also supra, para. 218. [5] See supra, paras 208-212. |
ICTR Statute Article 2 ICTY Statute Article 4 | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 08.04.2015 |
TOLIMIR Zdravko (IT-05-88/2-A) |
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Fn. 587. The Appeals Chamber notes that views of a single signatory on the meaning of a particular term used in a treaty only bind that State for the purpose of domestic implementing legislation and do not necessarily suggest a universal consensus on this issue. Even if the United States of America had submitted an official reservation as to the use of the term “mental harm” in Article II of the Genocide Convention – which it did not – such a reservation would not have modified the Convention for other signatories in that respect. See VCLT, Art. 21(2) (“The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.”). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 08.04.2015 |
TOLIMIR Zdravko (IT-05-88/2-A) |
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644. As to Tolimir’s argument that it was the Trial Chamber’s duty to consider mitigating circumstances proprio motu […] Rule 86(C) of the Rules provides that sentencing submissions shall be addressed during closing arguments. Rule 85(A)(vi) of the Rules provides that a trial chamber will consider any relevant information that may assist it in determining an appropriate sentence.[1] Appeal proceedings are not the appropriate forum to raise such matters for the first time.[2] Therefore, it was incumbent on Tolimir to identify mitigating circumstances on the trial record in his final brief or during closing arguments.[3] Tolimir’s arguments in this regard are therefore dismissed. [1] Rule 85(A)(vi) of the Rules. [2] See Đorđević Appeal Judgement, para. 945. See also Kvočka et al. Appeal Judgement, para. 674. [3] See Đorđević Appeal Judgement, paras 945-946. See also Bikindi Appeal Judgement, para. 165. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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529. […] The Appeals Chamber recalls that the crimes of genocide and conspiracy to commit genocide both require genocidal intent as a part of the mens rea element[…] [1] […]. [1] In order for the mens rea for conspiracy to commit genocide to be satisfied “the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea)”. Nahimana et al. Appeal Judgement, para. 894. Likewise, for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. Munyakazi Appeal Judgement, para. 141. |
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| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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544. The Appeals Chamber recalls that “a concerted agreement to commit genocide may be inferred from the conduct of the conspirators” and can be based on circumstantial evidence.[1] Further, the concerted or co-ordinated action of a group of individuals can constitute evidence of an agreement.[2] […] 553. […] In this respect, the Appeals Chamber recalls that “[w]hile [the] actus reus [of conspiracy to commit genocide] can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence. In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators”.[3] [1] Nahimana et al. Appeal Judgement, para. 896. See Karemera and Ngirumpatse Appeal Judgement, para. 740; Nzabonimana Appeal Judgement, paras 392, 448; Seromba Appeal Judgement, para. 221. [2] Nahimana et al. Appeal Judgement, para. 897. See Nzabonimana Appeal Judgement, para. 391. [3] Nahimana et al. Appeal Judgement, para. 896. See Seromba Appeal Judgement, para. 221. |
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| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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567. […] [T]he Appeals Chamber notes that it is well-established that “the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character”.[1] The Appeals Chamber further recalls that “the civilian population need only be predominantly civilian”.[2] […] 569. […] [T]he Appeals Chamber reiterates that “there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be ‘civilians’”,[3] or even be predominantly civilians,[4] provided the acts form part of a widespread or systematic attack directed against a civilian population (the nexus requirement). The population targeted by the attack must be predominantly civilian,[5] but there is no legal requirement that a certain proportion of the victims of the underlying crime be civilians.[6] […] [1] Šainović et al. Appeal Judgement, para. 549; Mrkšić and [ljivančanin Appeal Judgement, para. 31, citing Kordić and Čerkez Appeal Judgement, para. 50. See also Blaškić Appeal Judgement, para. 113. [2] Mrkšić and [ljivančanin Appeal Judgement, para. 25, affirming Mrkšić et al. Trial Judgement, para. 442. [3] Mrkšić and [ljivančanin Appeal Judgement, para. 32. [4] See Mrkšić and [ljivančanin Appeal Judgement, paras 36-37. [5] See supra, para. 567. [6] See Martić Appeal Judgement, para. 307; Kunarac et al. Appeal Judgement, paras 85, 91. |
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| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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537. In relation to crimes under different statutory provisions, as the Trial Chamber recalled, cumulative convictions for the same conduct are permissible if each statutory provision involved has a materially distinct element not contained in the other.[1] Further, the Appeals Chamber notes that the Trial Chamber correctly held that conspiracy to commit genocide and genocide involve different underlying acts or omissions and a materially distinct actus reus.[2] 538. In this case, the Trial Chamber reasoned that – as Popović’s and Beara’s participation in the JCE to Murder with genocidal intent was the basis of the convictions for genocide as well as for inferring an agreement to commit genocide – “entering a conviction for the substantive offence of genocide renders redundant a conviction for conspiracy”.[3] The Trial Chamber also concluded that “the full criminality of the Accused is accounted for by a conviction for genocide”.[4] The Appeals Chamber, however, recalls “that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[5] As conspiracy to commit genocide and genocide are distinct crimes, it was necessary to enter convictions against Popović and Beara for conspiracy to commit genocide in order to reflect their full culpability.[6] […] [1] Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 259 & fn. 630. See [Popović et al.] Trial Judgement, para. 2111 & fns 6103-6104. [2] [Popović et al.] Trial Judgement, para. 2118 & fns 6115-6116. See Karemera and Ngirumpatse Appeal Judgement, para. 710; Gatete Appeal Judgement, para. 260 & fns 632-633. [3] Trial Judgement, paras 2124-2126. [4] Trial Judgement, para. 2127. [5] Gatete Appeal Judgement, para. 261. See Karemera and Ngirumpatse Appeal Judgement, para. 711. [6] See Gatete Appeal Judgement, para. 261. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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1103. […] The Appeals Chamber considers that the component pieces of circumstantial evidence on the issue of identification are to be considered in relation to all other pieces of circumstantial evidence bearing on the issue, and not in isolation.[1] Whereas the assessment of an evidentiary factor in a vacuum might fail to establish an essential matter, the weight of all relevant evidence taken together can conclusively prove the same matter beyond reasonable doubt.[2] […] See also para. 1150. [1] See Limaj et al. Appeal Judgement, para. 153. [2] See Limaj et al. Appeal Judgement, para. 153. |
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79. […] The Appeals Chamber recalls that trial chambers have the discretion to bar the testimony of an expert witness called to give evidence on legal matters.[1] […] [1] Nahimana et al. Appeal Judgement, paras 292-294. See also Šainović et al. Appeal Judgement, para. 1295; Renzaho Appeal Judgement, para. 289. |
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375. […] The Appeals Chamber recalls that the purpose of expert testimony is to supply specialised knowledge that might assist the trier of fact in understanding the evidence before it, and that in the ordinary case an expert witness offers a view based on specialised knowledge regarding a technical, scientific or otherwise discrete set of ideas or concepts that is expected to fall outside the lay person’s ken.[1] […] [1] Nahimana et al. Appeal Judgement, para. 198, citing Semanza Appeal Judgement, para. 303. |
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1307. […] The Appeals Chamber recalls that a trial chamber has the discretion to rely on hearsay evidence.[1] It is settled that the weight and probative value to be afforded to hearsay evidence will ultimately depend upon “the infinitely variable circumstances which surround hearsay evidence”.[2] […] [1] See supra, note 3687. [2] Karera Appeal Judgement, para. 39. See Kalimanzira Appeal Judgement, para. 96. |
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382. The Appeals Chamber recalls that where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber needs to “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”.[1] The Appeals Chamber stresses that this is required only when a witness’s identification was made under difficult circumstances, such as in the dark or as a result of a fleeting glance.[2] […] 392. […] The Appeals Chamber recalls that identification hearsay evidence may, depending on the circumstances of the case, require other credible or reliable evidence in order to support a finding of fact beyond reasonable doubt.[3] […] [1] Lukić and Lukić Appeal Judgement, para. 136 (emphasis omitted); Haradinaj et al. Appeal Judgement, para. 152; Kupreškić et al. Appeal Judgement, para. 39. [2] Renzaho Appeal Judgement, para. 531, referring to Kupreškić et al. Appeal Judgement, paras 34, 39-40. See also Lukić and Lukić Appeal Judgement, para. 137; Gatete Appeal Judgement, para. 193. [3] See Renzaho Appeal Judgement, para. 534. See also Lukić and Lukić Appeal Judgement, paras 387, 577. |
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90. […] “[T]he probative value of a document may be assessed differently in different cases, depending on the circumstances”.[1] […] [1] Simba Appeal Judgement, para. 132. See Bizimungu Appeal Judgement, para. 210. |
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1741. Finally, it is recalled that whether an act or omission had a substantial effect on the commission of a crime is a fact-based inquiry,[1] and further, this aspect of aiding and abetting by omission has been interpreted to mean that had the accused acted the commission of the crime would have been substantially less likely.[2] [1] Mrkšić and Šljivančanin Appeal Judgement, para. 200. [2] See Šainović et al. Appeal Judgement, paras 1679, 1682, fn. 5510; Mrkšić and Šljivančanin Appeal Judgement, paras 97, 100. |
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228. […] Rule 85(C) of the Rules […] contains no restrictions with regard to when, during the defence case, the accused can choose to exercise this right. |
ICTR Rule Rule 85(C) ICTY Rule Rule 85(C) | |
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430. In holding that the crime of genocide does not require the existence of a State policy, the Trial Chamber relied on, inter alia, the Krstić, Jelisić, and Kayishema and Ruzindana Appeal Judgements.[1] […] In the Jelisić Appeal Judgement, the Appeals Chamber held that “the existence of a plan or policy is not a legal ingredient of the crime”,[2] while in Kayishema and Ruzindana the ICTR Appeals Chamber stated that “a genocidal plan is not a constituent element of the crime of genocide”.[3] Although these judgements do not explicitly address the issue of State policy, the Appeals Chamber considers that if a policy is not a legal requirement, it follows that State policy cannot be a legal requirement. Thus, the question of whether the existence of a State policy is required for the crime of genocide has already been considered by the Tribunal. [1] [Popović et al.] Trial Judgement, paras 828-830. [2] Jelisić Appeal Judgement, para. 48. [3] Kayishema and Ruzindana Appeal Judgement, para. 138. |
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422. […] Although the substantiality requirement is textually indicated in the provision describing the specific intent required for genocide, i.e. the requirement that there must exist an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”,[1] it is the objective, contextual characteristics of the targeted part of the group, including, inter alia, its numeric size relative to the total size of the group,[2] that form the basis for determining whether the targeted part of the group is substantial.[3] […] [1] Article 4(2) of the Statute (emphasis added). See Krstić Appeal Judgement, paras 6, 8-9. See also Article II of the Genocide Convention. [2] Krstić Appeal Judgement, para. 12. [3] See Krstić Appeal Judgement, paras 12-17 (where substantiality is discussed by reference to various contextual and objective characteristics of the targeted part of the group, the Bosnian Muslims of Srebrenica); Benjamin Whitaker, Revised and Updated Report on the Question of Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 (“‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership.”). |
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1615. The Appeals Chamber recalls that it has previously held that the participation of an accused in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] Moreover, it has previously held that “the fact that [the] participation [of an accused] amounted to no more than his or her ‘routine duties’ will not exculpate the accused”.[2] […] [1] Krajišnik Appeal Judgement, paras 215, 695-696; Kvočka et al. Appeal Judgement, para. 263. See also Šainović et al. Appeal Judgement, para. 985. [2] See Blagojević and Jokić Appeal Judgement, para. 189 making this statement in the context of aiding and abetting liability. |
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