1 A.P.V. Rogers, Law on the Battlefield 130 (1996).

2 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 86(2) (in Roberts and Guelff, Documents on the Laws of War All (3d ed. 2000)).

3 In re Yamashita, 327 U.S. 1 (1946).

4 The Prosecutor v. Delalićet al. (Čelebiâ Case), Case No. IT-96-21-T, Judgement, ICTY TC, 16 November 1998 (Trial Chamber); The Prosecutor v. Delalić et al. (Čelebid Case), Case No. IT-96-21-A, Judgement, ICTY AC, 20 February 2001 (Appellate Chamber).

* This document was reproduced and reformatted from the text appearing at the ICTY website (visited March 9, 2004)<http://www.un.org/icty> Due to space limitations, Annexes A and B will not be reproduced in this ILM issue.

1 The Prosecutor v. Milorad Krnojelac, case no. IT-97-25-T, Trial Chamber, 15 March 2002, (“Judgment“). For a list of the main designations and abbreviations used in this Judgment, see Annex A.

2 This first ground of appeal includes four sub-grounds. According to Krnojelac, the Trial Chamber erred in holding that the duties and powers of prison warden scarcely changed with the outbreak of the armed conflict. The Trial Chamber erred in finding that Krnojelac had voluntarily accepted the position of prison warden. The Trial Chamber erred in holding that Krnojelac exercised supervisory responsibility over all subordinate personnel and detainees at the KP Dom and it also misevaluated the evidence given by some non-Serb Prosecution witnesses.

3 This seventh ground of appeal contains five sub-grounds that can be summarised as follows: the Trial Chamber erred in law by holding that displacement across national borders is a constituent element of deportation. The Trial Chamber erred in fact by ruling that 35 Muslim detainees transferred to Montenegro left of their own free will. The Trial Chamber erred in fact by ruling that the transfer of the 35 Muslim detainees to Montenegro was not based on discriminatory grounds. The Trial Chamber erred by not finding Krnojelac guilty of persecution (deportation) based on the transfer of a number of detainees to other locations in Bosnia. Lastly, the Trial Chamber erred by ruling that Krnojelac was not responsible under Article 7(1) of the Statute for deportation and expulsion constituting persecution.

4 The Appeals Chamber of the Tribunal ruled several times on the review criteria on appeal in the Erdemović (para. 16), Tadić (paras. 238 to 326), Aleksovski (para. 63), Furundžija (paras. 35 to 37), Čelebiâ (para. 435), Kupreškić (paras. 22 to 32) and Kunarac (paras. 35 to 47) Appeals Judgments. Moreover, the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR“) set out similar criteria in the Serushago (para. 22), Akayesu (paras. 18 to 28 and 232), Kayishema/Ruzindana (para. 143), Musema (paras. 16 to 19) and Rutaganda (paras. 17 to 24) Appeals Judgments.

5 Footnotes omitted.

6 Prosecution Response, paras. 1.1 to 1.22.

7 Ibid., para. 1.8.

8 T(A), 15 May 2003, p. 260.

9 Defence Notice of Appeal, p. 2.

10 See introduction to this Judgment.

11 Defence Brief, paras. 16 to 32.

12 Ibid., para. 29. These arguments were reiterated at the appeal hearing (T(A), 15 May 2003, p. 208).

13 Defence Brief, paras. 31 to 41.

14 Defence Notice of Appeal, p. 2.

15 Defence Brief, para. 58.

16 Ibid., para. 70.

17 T(A), 15 May 2003, p. 224.

18 Defence Brief, paras. 100 to 114.

19 Ibid., para. 100.

20 Defence Brief, paras. 154 to 175 (third ground of appeal).

21 Ibid., paras. 176 to 187 (fourth ground of appeal).

22 Ibid., para. 159.

23 In connection with this ground of appeal, the Prosecution stated that: “the findings of the Trial Chamber were based on all the evidence before it, and its findings cannot be said to be unreasonable merely because some items of evidence are inconsistent with the Trial Chamber's findings or are consistent with the Defence theory of the facts. It is submitted that in relation to this ground of appeal, the Defence has not discharged its burden of establishing that on all of the relevant evidence, no reasonable trier of fact could have reached the conclusion that the Trial Chamber did.” (Prosecution Response, para. 4.2).

24 The Defence asserts “that it was not established beyond reasonable doubt, either, that the beating of Dzemo Balic had been carried out upon discriminatory basis, in view of the fact that the Trial Chamber does not provide the reasons, concretely relating to this incident, as to why it is convinced that this beating had been performed for the purpose of discrimination.” (Defence Appeal, para. 185).

25 T(A), 14 May 2003, pp. 45 to 47.

26 T(A), 15 May 2003, pp. 223 and 224. See also, T(A), 15 May 2003, pp. 240 to 241.

27 T(A), 15 May 2003, pp. 230 to 232.

28 To reach this finding in the Tadic Appeals Judgment, the Appeals Chamber interpreted the Statute on the basis of its purpose as set out in the report of the United Nations Secretary-General to the Security Council. It also considered the specific characteristics of many crimes perpetrated in war. In order to determine the status of customary law in this area, it studied in detail the case-law relating to many war crimes cases tried after the Second World War. It also considered the relevant provisions of two international Conventions which reflect the views of a great many States in legal matters (Article 2(3)(c) of the International Convention for the Suppression of Terrorist Bombings, adopted by a consensus vote by the General Assembly in its resolution 52/164 of 15 December and opened for signature on 9 January 1998; Article 25 of the Statute of the International Criminal Court, adopted on 17 July by the Diplomatic Conference of Plenipotentiaries held in Rome). Moreover, the Appeals Chamber referred to national legislation and case-law stating that it was a matter of specifying that the notion of common purpose, established in international criminal law, has foundations in many national systems, while asserting that it was not established that most, if not all of the countries, have the same notion of common purpose.

29 It should be noted that the authoritative English version uses the term commission.

30 Tadić Appeals Judgment, para. 190, quoting paragraph 54 of the Secretary-General's Report.

31 Ojdanić'Decision.

32 Indictment, para. 16.

33 Indictment, para. 16.

34 Emphasis added.

35 Tadić Appeals Judgment, para. 196.

36 Trial of Martin Gottfried Weiss and Thirty-Nine Others, General Military Government Court of the United States Zone, Dachau, Germany, 15 November to 13 December 1945, Law Reports, vol. XI, p. 5.

37 Trial of Josef Kramer and 44 Others, British Military Court, Luneberg, 17 September to 17 November 1945, Law Reports, vol. II, p. 1.

38 See the Dachau Concentration Camp case, Law Reports, vol. XI, p. 14: “It seems, therefore, that what runs throughout the whole of this case, like a thread, is this: that there was in the camp a general system of cruelties and murders of the inmates (most of whom were allied nationals) and that this system was practised with the knowledge of the accused, who were members of the staff, and with their active participation. Such a course of conduct, then, was held by the court in this case to constitute acting in pursuance of a common design to violate the laws and usages of war. Everybody who took any part in such common design was held guilty of a war crime, though the nature and extent of the participation may vary.” In this case, the Judge Advocate summarised with approval the legal argument of the Prosecution in the following terms: “The case for the Prosecution is that all the accused employed on the staff at Auschwitz knew that a system and a course of conduct was in force. In one way or another, in furtherance of a common agreement to run the camp in a brutal way, all those people were taking part in that course of conduct. They asked the Court not to treat the individual acts which might be proved merely as offences committed by themselves, but also as evidence clearly indicating that the particular offender satisfied that they were doing so, then they must, each and every one of them, assume responsibility for what happened.” (Belsen case, Law Reports, vol. II, p. 121). In particular, the accused Kramer appears to have been convicted on that basis. See ibid., p. 121: “The Judge Advocate reminded the Court that when they considered the question of guilt and responsibility, the strongest case must surely be against Kramer, and then down the list of accused according to the positions they held” (emphasis added).

39 TadićAppeals Judgment, paras. 202 and 203.

40 Tadić Appeals Judgment, para. 204.

41 Ibid., para. 227.

42 Ibid., para. 228.

43 Ibid., para. 229.

44 Defence Brief, para. 153.

45 See Tadic Appeals Judgment, para. 229.

46 Defence Brief, paras. 124 to 131.

47 Prosecution Response, paras. 3.5 to 3.11.

48 Ibid., paras. 3.12 to 3.16.

49 Judgment, para. 107.

50 Ibid., para. 97.

51 Ibid., paras. 99 and 100.

52 Ibid., para. 103. See also footnotes 308 to 310 which detail the steps taken by Krnojelac as warden of the KP Dom to obtain the appropriate authorities’ approval for his requests for food supplies, hygiene products, detainee transportation and additional security personnel. Of particular note is the reference to exhibit D107A, a request from Krnojelac dated 3 March 1993 sent to the Foca garrison in which he makes express reference to the presence of the Muslim detainees in addition to the Serb criminals in order to justify his request for food supplies.

53 Ibid., para. 126.

54 Ibid.

55 Ibid.

56 Ibid., para. 127. The merits of this finding are examined in the following paragraph of this Judgment.

57 Defence Brief, paras. 148 to 152.

58 Prosecution Response, para. 3.51.

59 Defence Brief, para. 148.

60 Prosecution Response, para. 3.51.

61 The merits of this finding, which appear in paragraph 169 of the Judgment, are examined in the following sub-section. Paragraph 169 states that a number of detainees gave evidence that they met with Krnojelac and told him about their suffering and, moreover, that Krnojelac admitted to habitually meeting with detainees and confirmed that, during these conversations, the detainees discussed their living conditions at the KP Dom. The Judgment also sets out the Trial Chamber's findings detailing the living conditions imposed upon the non-Serb detainees which resulted from a deliberately discriminatory policy (isolation (para. 134); overcrowding (para. 135); deplorable standards of hygiene (para. 136); lack of protection against the cold (para. 137); undernourishment (para. 139); lack or insufficiency of medical care (para. 141); psychological suffering (paras. 142 and 143) and effects of these conditions on the detainees’ physical and psychological state (paras. 146 to 168).

62 Judgment, para. 171.

63 Defence Brief, para. 122.

64 Ibid.

65 Ibid., para. 100.

66 Tadić Appeals Judgment, para. 64. See also Musema Appeals Judgment, para. 18 and Kunarac Appeals Judgment, para. 39.

67 Judgment, para. 169.

68 Judgment, para. 490.

69 Defence Brief, paras. 132 to 136. NB: The Kordic Judgment shares this view, although this is not always so in the case-law.

70 Ibid., paras. 137 to 147 and 150.

71 Prosecution Response, paras. 3.24 to 3.25 and 3.27 to 3.43.

72 Ibid., paras. 3.44 to 3.48.

73 See Tadić Appeals Judgment, para. 229.

74 Aleksovski Appeals Judgment, para. 162.

75 Ibid., para. 107. See also para. 109; “It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception. The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.“

76 Defence Brief, para. 188.

77 Ibid., para. 207.

78 See para. 4 and subsequent paragraphs of this Judgment.

79 Judgment, para. 309 (footnotes omitted).

80 Defence Brief, para. 193.

81 Ibid., para. 198.

82 Judgment, para. 96, footnote 262.

83 Defence Brief, para. 197.

84 Ibid., para. 198.

85 Ibid., para. 200.

86 Ibid., para. 201.

87 Judgment, para. 311 (emphasis added).

88 See, in particular, paragraph 318 of the Judgment.

89 On this point the Prosecution Notice of Appeal refers, in particular, to paragraphs 72 and 73 of the Judgment (Prosecution Notice of Appeal, p. 2).

90 Prosecution Notice of Appeal, p. 3.

91 Prosecution Brief, paras. 2.3 to 2.8.

92 Ibid., para. 2.9. The Prosecution specifically quotes The Prosecutor v. Brðjanin and Talk, Decision on Motion by Tihomir Talic for Provisional Release, case no. IT-99-36-T, Trial Chamber II, 28 March 2001, paras. 42 to 43.

93 Prosecution Brief, para. 2.4, referring to the Tadic Appeals Judgment and para. 2.10.

94 Ibid., para. 2.14.

95 Ibid., para. 2.11, referring to para. 73 of the Judgment, footnote 236 and para. 2.13.

96 Ibid., para. 2.11, referring to para. 73 of the Judgment, and para. 2.14.

97 Ibid., para. 2.13.

98 Emphasis added. The corresponding section of the French version of the Judgment reads as follows: “[…] En outre, la présente Chambre conteste la validité de la distinction que la Chambre de première instance I a tenté d'établir entre un co-auteur et uncomplice. Elle préfère suivre l'avis de la Chambre d'appel Tadić, pour laquelle le participantàune entreprise criminelle communequi n'était pas l'auteur principal est responsable au même titre qu'un complice. Cependant, par commodité, la Chambre de première instance adoptera le terme “coauteur” (au sens de accomplice) lorsqu'elle parlera d'un participant à une entreprise criminelle commune qui n'était pas l'auteur principal.“

99 Defence Response, para. 16.

100 Prosecution Reply, para. 2.3.

101 Thus, the Tadić Appeals Judgment concludes in paragraph 220 that: “[…] the notion of common design as a form of accomplice liability is firmly established in customary international law […].” This sentence was correctly translated in the French version of the Appeals Judgment as: “[…] la notion de dessein commun en tant que forme de responsibilité au titre de coauteur est fermement etablie en droit international coutumier […].” In fact, given the context of the passage, the Appeals Chamber is clearly referring to this notion in the sense of co-perpetrator. In contrast, in paragraph 229(ii) of the Appeals Judgment, the term “accomplice” is clearly used in the sense of aider and abettor and was translated as such: “in the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan. No plan, or agreement is required: indeed, the principal may not even know about the accomplice's contribution,” which, in the French version of the Appeals Judgment, is: “Dans le cas du complice, il n'est pas nécessaire de prouver l'existence d'un projet concerté et, a fortiori, la formulation préalable d'un tel plan. Aucun projet ou accord n'est nécessaire; d'ailleurs, il peut arriver que l'auteur principal ne sache rien de la contribution apportée par son complice.“

102 Footnote 230 also refers to Furundžija Judgment, paras. 245 and 249 and Kupreštdć Judgment, para. 772 and to Tadić Appeals Judgment, para. 229 and Furundžija Appeals Judgment, para. 118.

103 Judgment, para. 75.

104 Given the context, the French version of this extract from the Judgment incorrectly translated the term “accomplice liability” by “responsabilitédu complice”. This version reads as follows: “L'Accusation a essayé de relier la responsabilité pénale d'un participant à l'entreprise criminelle commune qui n'a pas commis personnellement et matériellement le crime en question au terme ‘commis’ figurant à l'article 7 1) du Statut; cette approche semblerait toutefois en contradiction avec l'analyse de la Chambre d'appel, qui voit dans cette responsabilité une variante de la responsabilité du complice, ainsi qu'avec la définition du terme ‘commis’ ('d'abord et avant tout la perpétration physique d'un crime par l'auteur lui-même’). Par commodité la Chambre de premiere instance se propose d'appeler ‘auteur principal’ la personne qui a matériellement commis le crime en question.“

105 It should be noted that the authoritative English version uses the term “commission”.

106 See paras. 28 to 32 of this Judgment.

107 Judgment, paras. 74 and 75.

108 Ibid., paras. 75 to 77.

109 Prosecution Brief, para. 2.15.

110 It should be noted that the English version uses the term “commission”.

111 It should be noted that the English version uses the term “to commit”.

112 Defence Response, paras. 17 to 25.

113 Prosecution Reply, para. 2.4.

114 See, in particular, the Trial Chamber's explanations in paragraph 78 of the Judgment.

115 Emphasis added.

116 Prosecution Brief, paras. 2.22 and 2.23.

117 This form was identified in the Tadić Appeals Judgment as the third category of joint criminal enterprise.

118 Prosecution Brief, paras. 2.24 and 2.25.

119 Defence Response, para. 40.

120 Ibid., para. 127.

121 Initial indictment, para. 5.2. “Milorad Krnojelac persecuted the Muslim and other non-Serb males by subjecting them to prolonged and routine imprisonment and confinement, repeated torture and beatings, countless killings […].“

122 Prosecution Pre-Trial Brief, para. 49: “Where the common design involved the confinement and enslavement of Muslim and other non-Serb detainees from the Foca area, the Accused participated by administering the venue where such acts took place. As camp commander, Krnojelac was personally responsible for the maintenance of the inhumane conditions at the facility. Krnojelac ordered and supervised the actions of his guards and did nothing to restrain their misconduct. Nor did he do anything to prevent access to detainees by Serb military personnel who would beat and kill detainees. Such omissions encouraged the abuse of detainees. Furthermore, Krnojelac, during his time as a commander, formed and supervised workers’ groups made up of detainees who were used for forced labour and selected detainees for deportation to Montenegro [.. .].” See also para. 50: “Thus the Accused's active participation in crimes which made up the persecution, unlawful confinement, inhumane conditions, and enslavement, and his failure to prevent or stop the abuses carried out under the common plan demonstrate that he intended these crimes to take place.“

123 Ibid., para. 52: “The Accused Krnojelac actively participated in a system of repression against non-Serb civilians through his position as camp commander of KP Dom. Krnojelac prepared or approved lists of detainees to be tortured and beaten and established a daily routine for these beating and torture. He ordered guards to beat detainees for even minor violations of prisons rules, which he himself was responsible for establishing. He subjected non-Serb detainees to collective punishment.” See also para. 56: “Therefore, under the second theory of common purpose liability, criminal responsibility must also attach to the Accused for his involvement in, persecution […].“

124 See, in particular, ibid. para. 60: “In the present case, the Prosecution contends that the KP Dom functioned as a prison-camp in order to carry out the brutal confinement of Muslims and other non-Serb male civilians as part of the broader criminal purpose of ethnically cleansing Foča municipality and the surrounding areas. The Accused Krnojelac participated in this common criminal design by acting as a warden of KP Dom. The evidence will show that during the relevant period time periods described in the Indictment, while the Accused Krnojelac was supervising operations at KP Dom, outsiders frequently entered the camp and harassed, tortured and killed detainees. The crimes committed by these outsiders, even if outside the original common scheme established at KP Dom, were a natural and foreseeable consequence of the execution of this common plan.” See also para. 61: “[…] Even if the very first incidents were not anticipated, over the course of weeks and months, these crimes certainly became foreseeable consequences of the common plan and, indeed, of the Accused's actions in permitting access […].“

125 See para. 28 et seq. of this Judgment.

126 Judgment, para. 170.

127 Ibid., para. 487.

128 Belsen Case, Law Reports, vol. II, p.121, quoted in the Tadic Appeals Judgment, footnote 251.

129 Prosecution Brief, paras. 2.36 to 2.38.

130 Ibid., para. 2.42.

131 Defence Response, paras. 51 to 54.

132 Prosecution Brief, para. 2.38.

133 Judgment, para. 127.

134 Tadić Appeals Judgment, para. 270.

135 Jelisić Appeals Judgment, para. 49. See also the Kunarac Appeals Judgment, paras. 103 and 153.

136 Prosecution Brief, para. 2.32, referring to paras. 116 to 124, 128 to 168, 308 to 311 and 488 to 492 of the Judgment.

137 Prosecution Brief, para. 2.43. The Prosecution further submits that if its sixth and seventh grounds are upheld, Krnojelac should also be found guilty as a co-perpetrator of persecution, namely forced labour and deportations.

138 Prosecution Brief, para. 2.33.

139 Ibid., para. 2.34.

140 Defence Brief, paras. 44 to 48.

141 Ibid., para. 49.

142 Judgment, para. 443.

143 Ibid., para. 465.

144 Judgment, para. 487, referring to para. 170.

145 Ibid, para. 487, referring to paras. 313 to 314 and 346. It appears however that the relevant paragraph is para. 315.

146 Ibid., paras. 316 to 320.

147 Ibid., para. 124.

148 Ibid., para. 96.

149 Ibid., para. 99.

150 Ibid., para. 103. Moreover, the Trial Chamber concluded that Krnojelac had authority over all the subordinate personnel and detainees at the KP Dom and that, while he could exercise only limited control over the activity of the investigators and paramilitaries entering the camp, he was in a position to instruct the investigators to interview detainees of his choosing with a view to their exchange or release and to ensure that the paramilitaries did not remove detainees without the authorisation of their superiors (paras. 105 to 107).

151 The Appeals Chamber holds that this is the necessary conclusion even supposing that, as the Trial Chamber found, the Prosecution's allegation according to which Kmojelac's membership of the SDS and support of Serb nationalistic policy was direct evidence of his intent to discriminate against the non-Serb civilian detainees, had not been established (Judgment, para. 487).

152 Judgment, para. 487.

153 The Appeals Chamber refers, in particular, to the following findings of fact: Judgment, para. 36: “Non-Serbs were arrested throughout the municipality of Foca. […]“; para. 40: “On 17 April 1992, all the male Muslim civilians detained at Livade [at the Territorial Defence's warehouses] were transferred to the KP Dom, which had served as a prison prior to the conflict. At this time, soldiers from the Uzice Corps in Serbia were running the facility, the control of which was transferred to local Serbs during the course of the following few weeks“; para. 41: “The illegal arrest and imprisonment of non-Serb civilian males was carried out on a massive scale and in a systematic way. Hundreds of Muslim men, as well as a few other non-Serb civilians, were detained at the KP Dom without being charged with any crime. At all times from the end of the fighting until the end of 1994, up to several hundred Muslim civilian men were thus arbitrarily interned at the KP Dom. They were detained there for periods lasting from four months to more than two and a half years“; para. 43: “The conditions under which non-Serbs were detained were below any legal standard regulating the treatment of civilians in times of armed conflict [insufficient food causing weight loss of up to a third of their weight, extremely cold solitary confinement cells during the winter of 1992, and confiscation by the guards of the clothes they made]“; para. 44: “Hygienic conditions were deplorable and washing facilities minimal. […] At least one detainee died as a result of the lack of or late medical care“; para. 45: “Non-Serb detainees were locked up in their rooms for most of the day, being allowed out only to go to the canteen and back. Some, however, were taken out to work knowing that they would receive additional and much needed food if they did“; para. 46: “Many of the detainees were subjected to beatings and other forms of mistreatment, sometimes randomly, sometimes as a punishment for minor breaches of the prison regulations or in order to obtain information or a confession from them. The screams and moans of those being beaten could be heard by other detainees, instilling fear among all detainees. Many were returned to their rooms with visible wounds and bruises resulting from the beating. Some were unable to walk or talk for days“; para. 47: “The few Serb convicts who were detained at the KP Dom were kept in a different part of the building from the non-Serbs. They were not mistreated like the non-Serb detainees. The quality and quantity of their food was somewhat better, sometimes including additional servings. They were not beaten or otherwise abused, they were not locked up in their rooms, they were released once they had served their time, they had access to hygienic facilities and enjoyed other benefits which were denied to non-Serb detainees.“

154 The Appeals Chamber refers to this point in para. 44 of the Prosecution Pre-Trial Brief and notes that the Trial Chamber accepted this analysis as demonstrating the following finding of fact: “The detention of non-Serbs in the KP Dom, and the acts or omissions which took place therein, were clearly related to the widespread and systematic attack against the non-Serb civilian population in the Foča municipality.” (Judgment, para. 50). Moreover, the Trial Chamber unmistakably linked the expulsion, exchange or deportation of the non-Serbs detained at the KP Dom to the ethnic cleansing operation: “The expulsion, exchange or deportation of non-Serbs, both detainees at the KP Dom and those who had not been detained, was the final stage of the Serb attack upon the non-Serb civilian population in Foča municipality. Initially there was a military order preventing citizens from leaving Foča. However, most of the non-Serb civilian population was eventually forced to leave Foča. In May 1992, buses were organised to take civilians out of town, and around 13 August 1992 the remaining Muslims in Foča, mostly women and children, were taken away to Rozaje, Montenegro. […] In late 1994, the last remaining Muslim detainees at the KP Dom were exchanged, marking the end of the attack upon those civilians and the achievement of a Serbian region ethnically cleansed of Muslims. By the end of the war in 1995, Foca had become an almost purely Serb town. Foča was renamed ‘Srbinje’ after the conflict, meaning ‘Serb town.” (Judgment para. 49).

155 While some of the principal offenders responsible for the alleged beatings and acts of torture were military personnel supposed to have closer links with the military authorities, others were guards or other administrative personnel from the camp.

156 See the section in this Judgment dealing with the second ground of appeal.

157 Prosecution Brief, paras. 3.1 to 3.15.

158 Ibid., para. 3.1.

159 The Prosecution adds that the international crimes most frequently committed in wartime situations are “manifestations of collective criminality” and any allegation of “perpetrating” a crime in an indictment can impute liability to an individual for his participation in any of the categories of joint criminal enterprise described in the Tadić Appeals Judgment (Prosecution Brief, para. 3.5).

160 Defence Response, paras. 57 to 61.

161 Ibid., para. 62.

162 Ibid., paras. 64 and 65.

163 Prosecution Reply, para. 3.6.

164 Kupreškić Appeals Judgment quoting the Furundžija Appeals Judgment, para. 147.

165 Kupreškić Appeals Judgment, paras. 89 to 114.

166 Rutaganda Appeals Judgment, para. 303.

167 Ibid., the ICTR Appeals Chamber quoting the Furundžija Appeals Judgment, para. 61.

168 Aleksovski Appeals Judgment, footnote 319.

169 Decision on Form of Second Amended Indictment, 11 May 2000.

170 In its Pre-Trial Brief, the Prosecution refers to the fact that even if it had not been established that the Accused participated in a joint criminal enterprise of persecution, beatings, torture and killings, these crimes were “natural and foreseeable consequences” of his participation in an enterprise consisting of the illegal imprisonment of the non-Serbs and, in particular, of the Accused's actions in permitting outsiders access to the camp. (Ibid., paras. 61 to 62).

171 See the introduction to this Judgment.

172 Moreover, Rule 47(C) of the Rules provides that the indictment shall set out not only the name and particulars of the suspect but also “a concise statement of the facts of the case.“

173 Regarding more specifically the alleged common plan.

174 Decision on Form of Second Amended Indictment, para. 9.

175 Krnojelac's Final Trial Brief, paras. 103 to 109.

176 Prosecution Brief, paras. 4.41 and 5.21; T(A), 14 May 2003, p. 74.

177 Prosecution Brief, para. 4.11.

178 Judgment, para. 94 (footnotes omitted).

179 The Prosecution refers to paragraphs 107 and 318 of the Judgment (See Prosecution Brief, for the third ground of appeal, paras. 4.8 and 4.9 and, for the fourth ground of appeal, paras. 5.5 and 5.6). As regards Krnojelac's superior responsibility, the Trial Chamber reached the following conclusions in the aforementioned paragraphs of the Judgment: regarding Krnojelac's position as warden, ” [T]he Prosecution has established that the Accused held the position of warden, as that term is generally understood, at the KP Dom, that the lease agreement by which the Accused leased part of the KP Dom to the military had little impact upon the single hierarchy within the KP Dom or the Accused's position as warden within that hierarchy, and that the Accused exercised supervisory responsibility over all subordinate personnel and detainees at the KP Dom” (para. 107). In respect of the actions of the KP Dom guards, “the Accused is responsible as their superior under Article 7(3) of the Statute. As warden of the KP Dom, the Accused was the de jure superior of the guards, and he knew […] that they were involved in the beating of non-Serb detainees. Not only did the Accused personally see one of his subordinates beat a detainee, he also heard about such incidents, and it must have been clear that, considering that the guards were in direct contact with and controlled the detainees, some of them were involved. The Trial Chamber considers that the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principle offenders […]” (para. 318, footnotes omitted).

180 Prosecution Brief, para. 4.12. According to the Prosecution: “[…] he can be said to have reason to know that his subordinates may commit crimes and will be responsible for those crimes on that basis. Nor does the superior need to be in actual possession of the information about the crimes committed by the subordinates. It's sufficient if he was provided with the relevant information. Even if the information was made available to him. If the information is objectively alarming, his duty to inquire or to investigate, thereby, is triggered” (T(A), 14 May 2003, p. 73). Thus “in the Čelebiâ case, it was held that the information available to the superior does not have to be information as to the exact nature of a crime. It's enough — it has to be enough to put the superior on notice. It doesn't actually have to say, ‘There's torture going on out there, and it's on this prohibited purpose.’ It has to be enough to place him on notice that he's got to do something further” (T(A), 14 May 2003, p. 192).

181 T(A), 14 May 2003, pp. 164 and 165. See also Defence Response, para. 101.

182 Defence Response, para. 112.

183 Without it being very explicit, the Prosecution sometimes seems to support this argument. As for the alleged error regarding torture, the Prosecution made the following submissions at the appeal hearing: “Our proposition is a very simple one. Applying Celebia to the facts of this case can lead to only one reasonable conclusion, and that is that by actually knowing of the beatings going on within KP Dom, he was on notice of the risk that at least some of them may have resulted in torture. His knowledge of the beatings in this KP Dom environment was enough to alert him to the need for additional information or to conduct an investigation to ascertain whether torture by beatings was being committed by his subordinates.” (T(A), 14 May 2003, p. 72). Regarding the murders, the Prosecution stated at the appeal hearing: “when one looks at the peculiarities of these beatings, the peculiarities of the harsh treatment meted out against these individuals, the only difference between the beatings as found and the murders has to do in terms of what was the inevitable effect. In one case it was a case of beatings that resulted in incapacitation. In another, it was a case of certain beatings that resulted in death. In other words, a level of behaviour, a level of deportment, if I may so describe it, that is of the same genus and of the same type. And significantly, one would consider that when one looks at what in fact is the definition of murder, isn't murder dealing with in fact acts with intent to cause grievous bodily harm? Isn't that what murder is? So does it mean that because, for example, that final step is not reached, that you are not put on inquiry […]” (T(A), 14 May 2003, pp. 116 and 117).

184 Čklebiâ Appeals Judgment, para. 238.

185 Judgment, para. 314.

186 Čelebiâ Appeals Judgment, para. 239.

187 As stated previously, the Prosecution refers to paragraphs 107 and 318 of the Judgment.

188 Prosecution's Notice of Appeal, p. 3.

189 The Prosecution refers to paragraphs 226 to 236, 239 to 242, 249 to 253, 254 to 255, 256 to 258, 262, 268, 277, 282, 300 and 305 of the Judgment. See Prosecution Brief, para. 4.2.

190 The Prosecution refers to paragraphs 308 to 312 of the Judgment. See Prosecution Brief, para. 4.3.

191 The Prosecution refers to paragraph 312 of the Judgment. See Prosecution Brief, para. 4.7.

192 Prosecution Brief, para. 4.11; Prosecution Reply, para. 4.4; T(A), 14 May 2003, pp. 191 and 192.

193 Prosecution Brief, paras. 4.25 and 4.39.

194 T(A), 14 May 2003, pp. 73 and 74.

195 Judgment, para. 50.

196 Ibid., para. 133.

197 Ibid., para. 134.

198 Ibid., para. 135.

199 Ibid., para. 169.

200 Ibid., para. 171.

201 Ibid., para. 172.

202 Ibid., para. 217.

203 Ibid., para. 248.

204 Ibid., para. 273.

205 Ibid., para. 308.

206 Ibid., para. 310.

207 Ibid., para. 311.

208 Ibid., para. 312.

209 Ibid., para. 318.

210 Ibid., para. 97.

211 Ibid., paras. 96, 99 and 311.

212 Ibid., para. 100.

213 Ibid., para. 124.

214 Ibid., para. 102.

215 Ibid., para. 311.

216 Ibid., para. 120.

217 Ibid., para. 138.

218 Ibid., para. 141.

219 Ibid., para. 142.

220 Ibid., para. 143.

221 Ibid., paras. 231, 309 and 312.

222 Ibid., para. 233.

223 Ibid., para. 234.

224 Ibid., para. 238.

225 Ibid., para. 134.

226 Ibid.

227 Ibid., para. 142.

228 Ibid., para. 46.

229 Ibid., para. 312.

230 Ibid, para. 230.

231 Ibid., para. 313.

232 Ibid., para. 233.

233 Ibid., para. 235.

234 As regards beatings, the Trial Chamber held that: “the Accused failed in his duty as warden to take the necessary and reasonable measures to prevent such acts or to punish the principal offenders for the following reasons: (i) He failed to investigate the allegations of beatings, when he would inevitably have ascertained the identity of those responsible for many of those beatings (including those individuals from outside the KP Dom). (ii) He failed to take any appropriate measures to stop the guards from beating and mistreating detainees when, as the warden and their superior, he was obliged to do so. In particular, the Accused failed to order the guards to stop beating detainees and to take appropriate measures so that other individuals from outside the KP Dom would not be in a position to mistreat detainees, (iii) He failed to speak to his subordinates about the mistreatment of detainees, (iv) He failed to punish those guards who would have been identified, had he carried out an investigation, as being responsible for the beatings or to take steps to have them punished, (v) He failed to report their abuses to a higher authority.” (See the Judgment, para. 318).

235 Rutaganda Appeals Judgment, para. 580.

236 As, moreover, the Trial Chamber acknowledged in paragraph 314 of the Judgment.

237 Footnotes omitted.

238 Prosecution Brief, paras. 5.11 and 5.13; T(A), 14 May 2003, p. 120.

239 Prosecution Brief, para. 5.14.

240 The Prosecution cites paragraphs 46, 334 and 335 of the Judgment.

241 Prosecution Brief, para. 5.17; Prosecution Reply, para. 5.7. The Prosecution argued:” [i]t is a case of looking at the entire information that is available and coming to the conclusion that there was a sufficiency of information that would have in fact activated and triggered a need for further investigation.” See T(A), 14 May 2003, p. 119. These different indicators cannot be considered in isolation, rather the cumulative effect of the different indicators must be examined. See Prosecution Reply, para. 5.4. The Defence submitted that: “[…] all these things that the Prosecution relies on cannot be interpreted as information that was adequate and necessary to start an investigation for crimes […].” See T(A), 14 May 2003, p. 167.

242 Prosecution Brief, para. 5.12.

243 Ibid., para. 5.7.

244 Ibid., para. 5.15; T(A), 14 May 2003, pp. 119 and 120.

245 The Trial Chamber considered that it had only been established that the murders were committed between June and July 1992. See Judgment, para. 331.

246 Judgment, para. 330.

247 Ibid., para. 336.

248 Ibid., para. 332.

249 Ibid., para. 333.

250 Ibid., para. 334.

251 Ibid., para. 335.

252 Ibid., para. 339.

253 Ibid., paras. 344 and 348.

254 The Trial Chamber stated as follows regarding his death: “Juso Džamalija (C 6) committed suicide in an isolation cell of the KP Dom after a severe beating. The evidence concerning his death was equivocal. Some witnesses gave evidence that he was depressed about his family situation and committed suicide for that reason. The Trial Chamber is not satisfied that the Prosecution has established beyond reasonable doubt that the beating inflicted on the victim at the KP Dom was the cause of the victim's suicide.” See Judgment, para. 342.

255 Judgment, paras. 345 and 348.

256 See paragraphs 163 ff. of this Judgment.

257 See para. 172 of this Judgment.

258 Prosecution Notice of Appeal, pp. 4 and 5; Prosecution Brief, para. 6.1. It should be noted that, in the Judgment, the Trial Chamber held that only “the following acts of torture, inhumane acts or cruel treatment were carried out on discriminatory grounds: Indictment paras. 5.15 and 5.23 (FWS-03 only).” See Judgment, para. 465.

259 Prosecution Brief, para. 6.4. The Prosecution maintains that the Trial Chamber disregarded the systematic nature of the discrimination against the non-Serbs at the KP Dom. It recalls that, in order to assess whether a particular act was committed with discriminatory intent, the Trial Chamber compared the treatment accorded to the non-Serb detainees with the treatment accorded to the Serb detainees. Where the Trial Chamber found a difference in the treatment of those two groups, it concluded that there was discrimination on political or religious grounds. In order to determine whether or not there was discrimination, the Chamber apparently adopted the principle of formal equality (according to which similarly situated persons should be treated the same) discussed in the Andrews v. Law Society of British Columbia case brought before the Supreme Court of Canada ([1989] 1 S.C.R., pp. 163 to 172). The Prosecution cites paragraphs 438 and 441 to 443 of the Judgment (See Prosecution Brief, para. 6.5). It states that, in this case, there was, coincidentally, a group of Serb detainees in the KP Dom against which the Trial Chamber could, and to some degree did, compare the treatment of the non-Serb detainees at the KP Dom. However, had there not been such a group, the Trial Chamber would have had difficulty concluding that the non-Serbs were subjected to grossly inadequate living conditions on discriminatory grounds. However, the comparison is not possible in all of the cases brought before the Tribunal, which illustrates the inadequacy of the restrictive approach. See Prosecution Brief, para. 6.8.

260 The Prosecution refers to paragraphs 27 to 33, 34, 39, 41, 42, 116, 118 to 124, 134, 135, 138, 139, 141, 142, 143, 330 to 342, 438, 440, 441 and 443 of the Judgment. See Prosecution Brief, paras. 6.9 to 6.19.

261 Prosecution Brief, paras. 6.21 to 6.23.

262 Ibid., para. 6.22.

263 Ibid., para. 6.23.

264 Ibid., para. 6.34.

265 The Prosecution's submissions as they are set out in its Brief are somewhat equivocal on this point. In paragraphs 6.3 to 6.8 of its Brief, the Prosecution essentially alleges that the Trial Chamber “took an unduly […] restrictive approach to the question of what constitutes discrimination and failed to consider adequately the broader context in which the underlying acts took place.” (See para. 6.4, emphasis added). The remainder of the Brief, though, appears to address the issue of the discriminatory intent behind the acts committed (See paras. 6.20 to 6.35). It should moreover be noted that the findings of the Trial Chamber challenged by the Prosecution all relate to the issue of discriminatory intent.

266 Judgment, para. 465.

267 It should be noted that not every attack against a civilian population is necessarily discriminatory. Moreover, the discriminatory character is not an constituent element of an attack against a civilian population.

268 Footnotes omitted.

269 Judgment, para. 50.

270 Ibid., para. 438.

271 Footnotes omitted (emphasis added).

272 Prosecution Brief, paras. 6.38 and 6.40.

273 Judgment, para. 100.

274 Ibid., para. 124.

275 Ibid., para. 308.

276 Ibid., para. 62.

277 Ibid., para. 102.

278 See the findings regarding miscarriages of justice recapitulated above. See para. 172 of this Judgment.

279 Prosecution Brief, paras. 6.2 and 6.36. The Prosecution requests that the sentence be revised upwards commensurably (See Prosecution Brief, paras. 6.36 to 6.40).

280 Judgment, para. 320.

281 Ibid., para. 10.

282 Ibid., para 471.

283 Ibid., paras. 361 to 424.

284 Ibid., paras. 428 and 429.

285 Ibid., paras. 425 to 430. In paragraph 471 of the Judgment, the Trial Chamber stated in connection with the allegation of persecution: “The Prosecution charges ‘the prolonged and frequent forced labour of Muslim and other non-Serb male civilian detainees at KP Dom’ as persecution. Although forced labour is not separately charged as such, it forms the basis of the charges of enslavement and slavery and has already been considered by the Trial Chamber in that context. In two instances, the Trial Chamber was satisfied that there was forced labour (the mine clearing by FWS-109 and Goran Kukavica). However, no criminal responsibility for that forced labour was attributed to the Accused. With respect to the other alleged incidents, no instances of forced labour were established. As a result, the Trial Chamber is not satisfied that there are any instances of forced labour which could support a charge of persecution.“

286 Prosecution Brief, para. 7.1.

287 The Prosecution challenges the Trial Chamber's findings in respect of witnesses FWS-249, FWS-144, Rasim Taranin, FWS-66, FWS-198, Ekrem Zeković, Muhamed Lisica and FWS-71.

288 Prosecution Brief, paras. 7.2 and 7.9.

289 The Prosecution refers to paragraph 359 of the Judgment.

290 Prosecution Brief, paras. 7.3 to 7.8. The Prosecution “does not challenge the Trial Chamber's articulation of the test of voluntariness, adopted from the context of sexual offences.” See Prosecution Brief, para. 7.5.

291 Ibid., para. 7.10, citing paragraph 380 of the Judgment.

292 Ibid., para. 7.10, citing paragraphs 385 and 386 of the Judgment.

293 Ibid., para. 7.11. The Prosecution adds that: “In ascertaining real choice, the Trial Chamber should have gone beyond what the detainees said, what they did, and examined the detainees’ motivations which in this case — in this case the motivations are also corroborated by the objective coercive circumstances.” See T(A), 14 May 2003, p. 110.

294 Prosecution Brief, paras. 7.11 and 7.12.

295 Judgment, para. 373.

296 Ibid., para. 372.

297 Prosecution Brief, para. 7.18.

298 Judgment, para. 40.

299 Ibid., para. 135.

300 Ibid., para. 43.

301 Ibid., para. 139.

302 Ibid., para. 44.

303 Ibid., para. 45.

304 Ibid., para. 46.

305 Ibid., para. 48.

306 Ibid., para. 133.

307 Ibid., para. 134.

308 Ibid., para. 136.

309 Ibid., para. 142.

310 Ibid., para. 143.

311 Ibid., para. 365.

312 Ibid., para. 380.

313 Ibid., para. 384.

314 Ibid., para. 375.

315 Ibid., para. 376.

316 That paragraph reads as follows: “The Prosecution charges ‘the prolonged and frequent forced labour of Muslim and other non-Serb male civilian detainees at KP Dom’ as persecution. Although forced labour is not separately charged as such, it forms the basis of the charges of enslavement and slavery and has already been considered by the Trial Chamber in that context. In two instances, the Trial Chamber was satisfied that there was forced labour (the mine clearing by FWS-109 and Goran Kukavica). However, no criminal responsibility for that forced labour was attributed to the Accused. With respect to the other alleged incidents, no instances of forced labour were established. As a result, the Trial Chamber is not satisfied that there are any instances of forced labour which could support a charge of persecution.“

317 Prosecution Brief, para. 7.76. The Prosecution refers to paragraph 434 of the Judgment which reads as follows: “Not every act or omission denying a fundamental human right is serious enough to constitute a crime against humanity. While acts or omissions listed under other sub-paragraphs of Article 5 of the Statute are by definition serious enough, others (either listed under other articles of the Statute or not listed in the Statute at all) must meet an additional test. Such acts or omissions must reach the same level of gravity as the other crimes against humanity enumerated in Article 5 of the Statute. This test will only be met by gross or blatant denials of fundamental human rights. When invoking this test, acts should not be considered in isolation but rather should be examined in their context and with consideration of their cumulative effect. Separately or combined, the acts must amount to persecution, though it is not required that each alleged underlying act be regarded as a violation of international law.” (footnotes omitted).

318 Defence Response, para. 438.

319 See also the Judgment, paras. 100 and 127.

320 Judgment, para. 50.

321 Ibid., para. 47 (footnotes omitted).

322 Prosecution Brief, paras. 7.85 to 7.94.

323 Judgment, para. 364.

324 Ibid., para. 97.

325 Ibid., para. 100.

326 Ibid., para. 103.

327 Indictment, para. 5.2.

328 Prosecution Brief, para. 8.1. The Appeals Chamber notes that the terms deportation and expulsion in English were translated in the French version of the Judgment as “déportation” and “expulsion” respectively (See, for example, Judgment, paras. 474 to 477). The Appeals Chamber points out that contrary to the French wording of Article 49 of the Fourth Geneva Convention which translates the English term deportation as “déportation”, the French wording of Articles 2(g) and 5(d) of the Tribunal's Statute use the term “expulsion” as a translation of the term deportation. For reasons of convenience, the Appeals Chamber has decided to follow the French translation of the terms deportation and expulsion used both in the Indictment and the Judgment, namely “déportation” and “expulsion” respectively. It should nevertheless be pointed out that when it refers to the crime of deportation mentioned under Article 5 (d) of the English version of the Statute, the Appeals Chamber will depart from the above-mentioned convention and will use the term “expulsion” used in the French version of the Statute.

329 Prosecution Brief, para. 8.3.

330 Ibid.

331 Ibid., para. 8.7.

332 As the term is used in the Judgment, para. 476.

333 Prosecution Brief, para. 8.24.

334 Within the meaning of Article 5(d) of the Statute.

335 Indictment, para. 5.2.

336 Pre-Trial Brief, para. 342 (footnotes omitted).

337 Judgment, para. 477.

338 Ibid., para. 474.

339 Ibid., footnote 1437.

340 Ibid., para. 476 (footnotes omitted).

341 Ibid., para. 476.

342 Ibid., para. 483.

343 Ibid., para. 480 (footnotes omitted).

344 Ibid., para. 482 (footnotes omitted).

345 Prosecution Brief, para. 8.7.

346 Kupreškić Judgment, paras. 608 to 615; see also Krstić Judgment, para. 535, and KordićJudgment, paras. 197 and 198.

347 Kordić Judgment, para. 193; /krstić'Judgment, para. 535.

348 OjdanićDecision, paras. 37 to 39.

349 Čelebiâ Appeals Judgment, para. 113; Tadić Decision (Motion on Jurisdiction), paras. 79 to 85. In paragraph 35 of his report, the Secretary-General declared that: “The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict embodied in: the Geneva Conventions of 12 August 1949.”

350 Article 49 of the Fourth Geneva Convention provides that: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.”

351 Article 85 of Additional Protocol I provides that “[i]n addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions of the Protocol: (a) The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention.” The Commentary on the Additional Protocols states that “[t]he part of the sub- paragraph dealing with the transfer or deportation of the population of the occupied territory is merely a repetition of Article 147 of the Fourth Convention, and Article 49 of that Convention, to which reference is made, continues to apply unchanged. Thus the new element in this sub-paragraph concerns the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies.” (See Commentary to the Additional Protocols, p. 1000).

352 The Commentary to Additional Protocol II states that paragraph 2 refers to forced movements across national borders and asks the following question with regard to this paragraph: “What is the position as regards deportation measures obliging an individual lo leave his country? If such a measure arises from the situation of conflict, it constitutes forced movement within the meaning of this article […],” paras. 4863 and 4864.

353 Commentary to Additional Protocols, paras. 4863 and 4864.

354 Blaškić Judgment, in which acts of displacement within Bosnia and Herzegovina within the context of an armed international conflict were described as forcible transfer which constituted persecution, paras. 75 to 130, 234, 366, 380, 575 and 631. In the Naletilić and Martinović Judgment, the Trial Chamber found that there had been forcible transfer pursuant to Article 2(g) of the Statute in the case of displacements within Bosnia and Herzegovina and concluded that the same acts constituted persecution by way of forcible transfer and not by way of deportation, paras. 512 to 571 and 669 to 672. See also Plavšić Sentencing Judgment, paras. 31 to 40, and KrstićJudgment, paras. 537 to 538. In paragraph 629 of the Kupreškić Judgment, the Trial Chamber stated that “the organised detention and expulsion from Ahmici can constitute persecution.“

355 Resolution 827 (1993).

356 Secretary-General's Report, para. 47.

357 Ibid., para. 48.

358 The Tadić Appeals Judgment states that the Statute “was adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and was substantially endorsed by the Sixth Committee of the United Nations General Assembly. This shows that that text is supported by a great number of States and may be taken to express the legal position i.e. opinio iuris of those States,“ para. 223. “Deportation or forcible transfer of population” is punishable under Article 7(1 )(d) of the Rome Statue. Paragraph 2 states that: “Deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.“ Article 8(2)(a)(vii) of the Rome Statute also provides that unlawful deportation and transfer constitute war crimes.

359 Paragraph 37 of the Ojdanić Decision states that: “The principle nullum crimen sine lege is, as noted by the International Military Tribunal in Nuremberg, first and foremost a principle of justice. It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is being charged were committed.“ (footnotes omitted).

360 Prosecution Brief, paras. 8.24 to 8.30.

361 Ibid., paras. 8.31 to 8.42.

362 Defence Response, paras. 225 to 227.

363 Judgment, para. 483 (footnotes omitted).

364 Ibid., para. 477. In the English version of the Judgment, which is authoritative, the paragraph in fine reads as follows: “These incidents may be divided into three types: transfer of detainees to other prison camps, so-called exchanges and so-called work duty.“ In the French version, the paragraph in question reads as follows in fine: “Ces faits peuvent être répartis en trois catégories: le transfert de détenus vers d'autres camps de détention, les échanges et les réquisitions.” The Appeals Chamber freely modified the paragraph by following the English version of the Judgment.

365 Ibid., para. 483. The translation problem in paragraph 477 reappears in paragraph 483 of the Judgment.

366 T, p. 774.

367 T, p. 523.

368 T, p. 4483.

369 T, p. 2399.

370 T, pp. 1725 and 1726.

371 T, p. 3868.

372 Witnesses FWS-54, T, p. 774; FWS-65, T, p. 523; Rasim Taranin, T, p. 1725; FWS-109, T, p. 2399; FWS-249, T, p. 4483; RJ, T, p. 3868.

373 In the Final Record of the Diplomatic Conference of Geneva 1949, convened by the Swiss Federal Council for the Establishment of International Conventions for the Protection of War Victims, volume II, section A, held at Geneva from 21 April to 12 August 1949, it is stated that the words “against their will” which occurred in the previous draft (the so-called Stockholm text) were omitted as the Drafting Committee considered that they were valueless in view of the pressure that could be brought to bear on internees, p. 759. The Commentary to the Fourth Geneva Convention states that “the Diplomatic Conference preferred not to place an absolute prohibition on transfers of all kinds, as some might up to a certain point have the consent of those being transferred. The Conference had particularly in mind the case of protected persons belonging to ethic or political minorities who might have suffered discrimination or persecution on that account and might therefore wish to leave the country. In order to make due allowances for that legitimate desire the Conference decided to authorise voluntary transfers by implication, and only to prohibit ‘forcible’ transfers,“ Commentary to the Fourth Geneva Convention, p. 279.

374 Judgment, para. 46.

375 Judgment, para. 124.

376 Judgment, para. 219, footnotes omitted.

377 Ibid., para. 274.

378 Ibid., para. 274.

379 Ibid., para. 274.

380 Prosecution Brief, para. 8.43.

381 See paragraph 181 and the following paragraphs of this Judgment.

382 Prosecution Brief, para. 8.43.

383 Judgment, para. 483 (footnotes omitted).

384 See para. 184 of this Judgment.

385 Judgment, para. 49 (the Trial Chamber uses the term “deportation” here to mean displacement within the borders of Bosnia and Herzegovina).

386 See, for example, paragraph 193 of this Judgment.

387 Prosecution Brief, para. 8.48.

388 Defence Response, para. 230.

389 Prosecution Brief, para. 8.50.

390 Ibid.

391 Quotation marks and italics added.

392 Judgment, para. 479.

393 Prosecution Reply, para. 8.15.

394 Prosecution Brief, para. 8.52.

395 Pre-Trial Brief, para. 193, referring to the testimony of Safet Avdić, T, p. 522; FWS-215, T, p. 899; Ahmet Hadžmusić, T, p. 1970, FWS-159, T, pp. 2472 and 2473; FWS-146, T, p. 3078; Ekrem Zeković, T, p. 3490; RJ, T, p. 3899; FWS-69, T, pp. 4095 and 4121; FWS-172, T, p. 4574; FWS-137, T, pp. 4746 and 4750.

396 RJ, T, pp. 3848 and 3849; Krnojelac, T, pp. 7030 to 7032.

397 Prosecution Brief, para. 8.52.

398 Judgment, paras. 477 to 485.

399 Krnojelac, T, p. 7930.

400 Judgment, para. 100.

401 See the summary of the grounds of appeal in the introduction to this Judgment.

402 “[A]s a general rule, the Appeals Chamber will not substitute its sentence for that of a Trial Chamber unless ‘it believes that the Trial Chamber has committed an error in exercising its discretion, or has failed to follow applicable law.’ The Appeals Chamber will only intervene if it finds that the error was ‘discernible'. As long as a Trial Chamber does not venture outside its “discretionary framework“ in imposing sentence, the Appeals Chamber will not intervene. It therefore falls on each appellant […] to demonstrate how the Trial Chamber ventured outside its discretionary framework in imposing the sentence it did.” See Čelebiâ Appeals Judgment, para. 725 (footnotes omitted).

403 Defence Brief, paras. 212 to 216.

404 Judgment, para. 519.

405 Defence Brief, para. 218.

406 The Appeals Chamber reiterates the finding it made in the Čelebiâ Appeals Judgment, that is: when imposing a sentence upon a superior whose criminal responsibility is based upon the crimes committed by his subordinates, “[a]s a practical matter, the seriousness of a superior's conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates.” (Čelebiâ Appeals Judgment, para. 259). Furthermore, “a consideration of the gravity of offences committed under Article 7(3) of the Statute involves, in addition to a consideration of the gravity of the conduct of the superior, a consideration of the seriousness of the underlying crimes.” (Ibid., para. 263).

407 Judgment, para. 516.

408 Defence Brief, paras. 224 to 228.

409 Defence Brief, paras. 229 and 230.

410 Ibid., para. 513.

411 Prosecution Brief, para. 9.1.

412 Prosecution Brief, para. 9.26.

413 Prosecution Brief, paras. 9.7 to 9.13; T(A), 14 May 2003, pp. 135 and 136.

414 Footnotes omitted.

415 See, for example, in the United States, Payne v. Tennessee, 111 S. Ct. 2597, 2615-2616 (1991); 18 U.S.C. § 3593. See also, in the United Kingdom, R. v. Cooksley [2003] 2 Cr. App. R. 18; R. v. Delaney, 2003 WL 033375 (CA (Crim. Div.)); R. v. McSween, 2002 WL 31452147 (CA (Crim. Div.)); R. v. Kelly & Donelly, [2001] 2 Cr. App. R. (S.) 73. See also, in Canada, R. v. Jack, 2001 Yuk. S. Ct., 542; R. v. Duffus, 40 CR. (5th) 350 (Ont. Sup. Ct. 2000); R. v. Emard [1999] B.C.J. no. 463 (British Columbia Supreme Court). See also, in Australia, R. v. Heblos, [2000] VSCA 229; R. v. Willis, [2000] VSC 297; R. v. Birmingham, 96 A. Crim. R. 545 (S. Ct. S.A. 1997); Mitchell v. R., 104 A. Crim. R. 523 (Crim. App. W.A. 1998); R. v. P., 39 FCR 276 (1992); cf. R. v. Previtera, 94, A. Crim. R. 76 (S. Ct. N.S.W. 1997).

416 Prosecution Brief, para. 9.14.

417 Prosecution Brief, para. 9.14, emphasis in original text.

418 Footnotes omitted.

419 Prosecution Brief, para. 9.27.

420 Prosecution Brief, para. 9.28.

421 The effects of the Appeals Chamber allowing the Prosecution's fifth ground of appeal are set out in the seventh paragraph on page 114 of this Judgment.

422 The Trial Chamber found Krnojelac guilty of persecution as a crime against humanity pursuant to Article 7(3) of the Statute based on the beatings inflicted upon FWS-03. See footnotes 1590 and 1591 of the Judgment.

423 On the ground that there would be unacceptable multiple convictions if the Accused were to be found guilty of these counts. See paragraphs 172 and 188 of this Judgment.

1 Judgment para. 224.

2 Judgment para. 210.

3 Judgment para. 217.

4 KrstićTrial Judgment, paras 520-532, 537-538.

5 Stakić7na\ Judgment, paras 671-724.

6 Blaškić Trial Judgment, paras 75-130, 218, 234, 366, 380, 575, 631.

7 NaletilićandMartinovićTridX Judgment, paras 512-571, 669-672.

8 KupreškićTrial Judgment, paras 628-631.

9 KupreškićTrial Judgment, para. 629.

10 Krnojelać Trial Judgment, para. 474.

11 Ibid.

12 Krnojelac Trial Judgment, para. 476.

13 Prosecution Brief, 5 August 2002, para. 8.7. C.f. para. 217 of the Judgment.

14 14ay 2003, T.85.

15 14 2003, T.89.

16 14 2003, T.89.

17 Indictment, para. 5.2(f).

18 Para. 5.2(f) and related paragraphs of the Indictment. The Indictment refers to “deportation or transfer to Montenegro” and states that detainees in the KP Dom were “deported and transferred to unknown places.” Emphasis added.

19 Krnojelac Trial Judgment, para. 476.

20 Rome Statute of the International Criminal Court of 17 July 1998, Article 7(1 )d:<http://www.un.or/law/icc/statute/99_corr/cstatute.htm>

21 Ibid., Article 7(2)(d).

22 Blacks Law Dictionary, 7th ed, p. 450.

23 See for further details, A. Berger, Encyclopaedic Dictionary of Roman Law 432 (1953), as quoted in Blacks Law Dictionary, 7th ed, p. 450.

24 Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 1 (1896), as quoted in Blacks Law Dictionary, 7th ed, p. 824.

25 Report of the Secretary-General pursuant to Paragraph 2 of Security Council resolution 808 (1993), UNSC, UN Doc. S/25704 (1993), para. 47.

26 Report of the Secretary-General pursuant to Paragraph 2 of Security Council resolution 808 (1993), UNSC, UN Doc. S/25704 (1993), para. 48.

27 Of course not necessarily under the same norm of a written code of criminal law.

28 See supra para. 4.

29 Judgment, paras 221-223 and footnote 355.

30 StakićTrial Judgment, para. 679.

31 International Military Tribunal, The Trial of German Major War Criminals, Judgment: 30 September 1946— 1 October 1946, p. 65.

32 Attorney-General v. Adolf Eichmann, District Court of Jerusalem, Case No. 40/61, paras 200-206.

1 For general discussion see Tadić, IT-94-1-T, of 7 May 1997, paras. 699-710; Kupreškić, IT-95-16-T, of 14 January 2000, paras. 616- 627; and Kordić and Čerkez, IT-95-14/2- T, 26 February 2001, paras. 191-199.

2 U.S. v. Ernst von Weizsaecker, Trials of War Criminals before the Nuerenberg Military Tribunals under Control Council Law No. 10, Vol. XIV, p. 471.

3 IT-98-30/1-T, of 2 November 2001, para. 186.

4 IITWC 359 at 789. 5Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 — 1 October 1946 (Nuremberg, 1947), Vol. 1, p. 246.

6 IT-96-23-T & IT-96-23-/1-T, of 22 February 2001, paras. 644-645. See also the appeal judgment in IT-96-23 & IT-96-23/1-A, of 12 June 2002, para. 133, agreeing “with the Trial Chamber's determination that the coercive circumstances present in this case made consent to the instant sexual acts by the Appellants impossible“; see also, para. 218.