IN THE APPEALS CHAMBER

Transcription

1 UNITED NATIONS International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 Case No. IT A Date: 17 March 2009 Original: English IN THE APPEALS CHAMBER Before: Acting Registrar: Judge Fausto Pocar, Presiding Judge Mohamed Shahabuddeen Judge Mehmet Güney Judge Andrésia Vaz Judge Theodor Meron Mr. John Hocking Judgement of: 17 March 2009 PROSECUTOR v. MOMČILO KRAJIŠNIK PUBLIC JUDGEMENT The Office of the Prosecutor: Mr. Peter M. Kremer QC Ms. Shelagh McCall Ms. Barbara Goy Ms. Katharina Margetts Mr. Steffen Wirth Ms. Anna Kotzeva Mr. Matteo Costi Ms. Julia Thibord Momčilo Krajišnik pro se Counsel for Momčilo Krajišnik on JCE: Mr. Alan M. Dershowitz Mr. Nathan Z. Dershowitz Amicus Curiae: Mr. Colin Nicholls QC

2 CONTENTS I. INTRODUCTION 1 A. MOMČILO KRAJIŠNIK...1 B. TRIAL JUDGEMENT AND SENTENCE...1 C. THE APPEALS Krajišnik Amicus Curiae Prosecution...5 II. APPELLATE REVIEW 5 A. STANDARD FOR APPELLATE REVIEW...5 B. STANDARD FOR SUMMARY DISMISSAL Arguments that fail to identify the challenged factual findings, that misrepresent the factual findings or the evidence, or that ignore other relevant factual findings Mere assertions that the Trial Chamber must have failed to consider relevant evidence Challenges to factual findings on which a conviction does not rely, and arguments that are clearly irrelevant, that lend support to, or that are not inconsistent with the challenged finding Arguments that challenge a Trial Chamber s reliance or failure to rely on one piece of evidence Arguments contrary to common sense Challenges to factual findings where the relevance of the factual finding is unclear and has not been explained by the Appellant Mere repetition of arguments that were unsuccessful at trial Allegations based on material not on record Mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate error Mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner...11 III. GROUNDS OF APPEAL RAISED BY AMICUS CURIAE 12 A. ALLEGED VIOLATIONS OF THE RIGHT TO A FAIR TRIAL (GROUND 1) Relevant background Additional evidence on appeal Alleged ineffective assistance of counsel (sub-ground 1(A))...15 (a) Submissions (b) Analysis (i) Alleged failures of Counsel Brashich (ii) Alleged failures of the Stewart team a. Commencing a case when manifestly unprepared b. Failure to utilise the pre-trial resources allocation properly c. Failure to review disclosure materials adequately d. Failure to work full time on the case during the trial period e. Failure to develop or implement a defence strategy f. Failure to test Prosecution evidence adequately g. Failure to properly select witnesses to be called on behalf of Krajišnik h. Failure to appeal significant decisions i. Resignation of key Defence team members j. Conclusion Adequate time and facilities for the preparation of the Defence (sub-ground 1(B))...26 (a) Submissions (b) Analysis (i) Time for pre-trial preparation... 30

3 (ii) Rejection of First Motion for Adjournment (iii) Procedural decisions based on irrelevant considerations (iv) Failure to investigate fair trial issues raised by Defence Counsel (v) Time to prepare the final brief (vi) Conclusion Restrictions on the conduct of the Defence (sub-ground 1(C))...35 (a) Submissions (b) Analysis (i) Time to prepare for and to cross-examine Prosecution witnesses (ii) Insufficient time for the preparation of the Defence case (iii) Time to investigate properly the calling of experts (iv) Time allotted to call Defence witnesses (v) Cross-examination of Trial Chamber witnesses (vi) Krajišnik s participation in the proceedings a. Decision denying self-representation b. Krajišnik s participation in cross-examinations (vii) Conclusion Replacement of Judge El Mahdi by Judge Hanoteau (sub-ground 1(E))...45 (a) Submissions (b) Analysis Alleged failure to deliberate properly (sub-ground 1(F))...47 (a) Submissions (b) Analysis Concluding remark...49 B. ALLEGED FAILURE TO PROVIDE A REASONED OPINION (GROUND 2) Submissions Analysis...51 (a) The requirement to provide a reasoned opinion (b) Whether the Trial Chamber erred in using an illustrative approach (c) Whether the Trial Chamber failed to give sufficient reasons in relation to witnesses with adverse credibility issues C. ALLEGED ERRORS RELATING TO THE JOINT CRIMINAL ENTERPRISE (GROUND 3) Identification of members of JCE (sub-ground 3(A))...57 (a) Submissions (b) Analysis Beginning of Krajišnik s criminal liability (sub-ground 3(B))...59 (a) Submissions (b) Analysis (i) Whether the Trial Chamber made findings to the effect that Krajišnik s responsibility for the first commissions of expanded crimes arose under JCE Category (ii) Whether the Trial Chamber made findings as to how and when the expanded crimes were added to the common objective of the JCE Conclusion of the JCE (further sub-ground 3(B))...66 (a) Submissions (b) Analysis Type of JCE (sub-ground 3(C)) Common objective (sub-ground 3(D)(i))...67 (a) Submissions (b) Analysis Original objective (sub-ground 3(D)(ii))...69 (a) Submissions (b) Analysis Fluid concept of JCE (sub-ground 3(D)(iii)) Proof of common objective (sub-ground 3(D)(iv))...70 (a) Submissions (b) Analysis... 71

4 9. Mens rea (sub-ground 3(E) and Ground 7)...72 (a) Submissions (b) Analysis Material contribution to the JCE (sub-ground 3(F))...77 (a) Submissions (b) Analysis Use of principal perpetrators as tools by a member of the JCE (sub-ground 3(G))...81 (a) Submissions (b) Analysis (i) Applicable law (ii) Findings of the Trial Chamber (iii) Findings on crimes committed by JCE members without having used principal perpetrators (iv) Findings on crimes committed by principal perpetrators used by JCE members a. Did the Trial Chamber use an erroneous legal standard of JCE liability? b. Did the Trial Chamber fail to make findings on JCE members use of non-jce members committing crimes? c. The Trial Chamber s general findings regarding the Bosnian-Serb leadership s relation to the VRS, crisis staffs, war presidencies, war commissions and paramilitary groups d. The Trial Chamber s findings regarding the use of principal perpetrators by individual JCE members i. General Ratko Mladi} (a) Findings on Ratko Mladić s responsibilities and role as VRS commander (b) Findings on Ratko Mladi} s general involvement in crimes (c) Crimes committed by VRS troops ii. Gojko Kličković iii. Jovan Mijatović iv. Vojin (Žu}o) Vučković v. Vojo Kupre{anin vi. Radoslav Brđanin vii. Ljubiša (Mauzer) Savić viii. Veljko Milanković (c) Conclusion Sufficient notice of JCE (sub-ground 3(H)) (a) Submissions (b) Analysis D. DEPORTATION (GROUND 4) Submissions Analysis (a) Displacements not authorised under international law (b) Displacements across a border (c) Alleged failure to make the relevant findings in relation to each municipality (d) Alleged errors of the Trial Chamber in finding that the elements of deportation had been found beyond reasonable doubt (i) Review of the findings for each municipality (ii) Were the displacements forced? (e) Alleged errors of fact Conclusion E. FORCIBLE TRANSFER (GROUND 5) Submissions Analysis (a) Alleged error regarding the threshold of seriousness required for forcible transfer as other inhumane acts (b) Alleged error regarding the failure of the Trial Chamber to make the predicate findings for the crime of forcible transfer

5 (c) Alleged error of fact Conclusion F. KRAJI{NIK S HIERARCHICAL POSITION (GROUND 6) Submissions Analysis (a) Alleged dearth and unreliability of evidence (b) Whether the impugned conclusions contradict other findings of the Trial Chamber (c) Alleged failure to explain contradictory evidence (d) Alleged vagueness and generalisation of terms Conclusion G. ALLEGED BREACH OF RULE 90(H)(II) (GROUND 8) Submissions Analysis (a) General (b) Application of Rule 90(H)(ii) to Kraji{nik as a witness (c) Parts of Kraji{nik s testimony that were not specifically challenged in cross-examination 126 H. ASSESSMENT OF KRAJI{NIK S EVIDENCE (GROUND 9) Submissions Analysis I. CUMULATIVE CONVICTIONS (GROUND 10) Submissions Analysis IV. THE APPEAL OF MOMČILO KRAJIŠNIK 133 A. ARGUMENT RAISED IN THE INTRODUCTION OF KRAJI{NIK S APPEAL BRIEF B. ALLEGED VIOLATION OF THE RIGHT TO A FAIR TRIAL Counsel s preparedness Counsel s management of the case Counsel s alleged failure to secure information from his team and from Kraji{nik Counsel s alleged disinterest in the case Counsel s alleged lack of knowledge of the case Counsel s alleged failure to test Prosecution evidence Counsel s alleged failure to conduct an effective defence case Conclusion C. ALLEGED ERROR IN FINDING THAT KRAJI{NIK WAS A JCE MEMBER AND ALLEGED FAILURE TO PROPERLY IMPUTE CRIMES BY NON-JCE MEMBERS D. ALLEGED ERRORS OF FACT Challenges to findings on events preceding the crimes (mainly Part 2 of the Trial Judgement) (a) Political precursors (i) Creation of Serb autonomous regions and districts (Section 2.4) (ii) Creation of Bosnian-Serb Assembly (Section 2.5) (iii) SDS Instructions of 19 December 1991 ( Variant A and B Instructions ) (iv) Proclamation of Bosnian-Serb Republic (v) Establishment of Bosnian-Serb Republic (b) Kraji{nik s participation in the establishment of Bosnian-Serb organs (i) State, party, regional and local structures (ii) Crisis staffs (iii) War presidencies and war commissions (iv) Ministry of Internal Affairs ( MUP ) (c) Preparations leading up to the take-over of municipalities (i) Consolidation of Bosnian-Serb central authority (ii) Expansionism and the pursuit of ethnically recomposed territories (iii) Knowledge of and support for arming activities (d) Conclusion

6 2. Challenges to factual findings regarding the Bosnian-Serb leadership (a) Introduction (b) Arguments related to the administration of the Bosnian-Serb Republic (Part 3 of the Trial Judgement) (i) Alleged errors in the findings on the Bosnian-Serb Assembly (Section 3.1) (ii) Alleged errors in the findings on the Bosnian-Serb government and judiciary (Section 3.2) (iii) Alleged errors in the findings regarding the Bosnian-Serb Presidency (Section 3.3) (iv) Alleged errors in the findings regarding the armed forces (Section 3.4) (v) Alleged errors in the findings regarding the Ministry of Internal Affairs (MUP) (Section 3.5) (vi) Alleged errors in the findings regarding crisis staffs, war presidencies and war commissions (c) Arguments related to Kraji{nik s responsibility (Part 6 of the Trial Judgement) (i) Alleged errors in the findings on Kraji{nik s support for armed forces (Section 6.10) (ii) Alleged errors in the findings regarding Kraji{nik s style of leadership (Section 6.11). 196 (iii) Alleged errors in the findings regarding information flows (Section 6.12) (iv) Alleged errors in the findings regarding Kraji{nik s knowledge of and support of detention of civilians (Section 6.14) (v) Alleged errors in the findings regarding Kraji{nik s responsibility (Section 6.17) (d) Other summary dismissals (e) Conclusion Challenges to findings concerning Kraji{nik s knowledge of crimes committed Challenges to findings concerning JCE liability (a) Membership in the JCE (b) Common objective (i) Submissions related to the taking over of territory (ii) The crimes committed were allegedly not part of any common objective (iii) Submissions that crimes were either not committed, or that they were investigated (iv) Statements were allegedly not indicative of the existence of a common objective (v) Kraji{nik s support for ethnic recomposition (vi) Statements regarding Muslim nationhood (c) Connection between Kraji{nik and the crimes/physical perpetrators of the crimes (i) Challenges related to specific instances of involvement (ii) Challenges related to activities of paramilitary groups (d) Challenges to findings concerning Kraji{nik s contribution to the JCE (e) Other assertions dismissed summarily E. SUPPLEMENTARY LEGAL CHALLENGES RELATING TO JCE Legitimacy of JCE liability (Ground 1) (a) Statutory basis for JCE (sub-ground 1(A)) (i) Submissions (ii) Analysis (b) Basis for JCE in customary international law (sub-ground 1(B)) (i) Submissions (ii) Analysis (c) JCE as a form of commission (sub-ground 1(C)) (i) Submissions (ii) Analysis (d) JCE and the nullum crimen sine lege principle (sub-ground 1(D)) (i) Submissions (ii) Analysis Kraji{nik s contribution to the JCE (Ground 2) (a) Allegation that the contribution must be substantial (sub-ground 2(A)) (i) Submissions (ii) Analysis (b) Alleged failure to consider the contribution in assessing mens rea (sub-ground 2(B))

7 (i) Submissions (ii) Analysis (iii) Did the Trial Chamber err in finding that Kraji{nik s political activity formed part of his contribution to the JCE? Consistency and coherence of JCE as applied to Kraji{nik (Ground 3) (a) Alleged vagueness of the Indictment and the Trial Judgement with respect to JCE (subground 3(A)) (i) Submissions (ii) Analysis a. Common objective b. Actus reus and mens rea c. Members of the JCE and principal perpetrators (b) Alleged inconsistencies in the Trial Chamber s application of JCE (sub-ground 3(B)) (i) Submissions (ii) Analysis (c) Arguments related to the Prosecution s presentation of JCE (sub-ground 3(C)) (i) Submissions (ii) Analysis Conclusion V. APPEALS AGAINST SENTENCE 252 A. APPLICABLE LAW AND STANDARD OF REVIEW B. AMICUS CURIAE S APPEAL AGAINST SENTENCE (GROUND 11) C. KRAJIŠNIK S APPEAL AGAINST SENTENCE Introduction Submissions Analysis Conclusion D. PROSECUTION S APPEAL AGAINST SENTENCE Sub-ground 1: Sentencing principles, gravity of the criminal conduct (a) Submissions (b) Analysis (i) Findings of the Trial Chamber a. Gravity of the crimes b. Kraji{nik s role in the commission of the crimes (ii) Discussion Sub-ground (a) Alleged error in failing to consider aggravating circumstances separately from the gravity of the offence (i) Submissions (ii) Analysis (b) Alleged error in considering irrelevant and extraneous factors in mitigation (i) Submissions (ii) Analysis Conclusion E. CONSIDERATIONS OF THE APPEALS CHAMBER The adequate sentence for Kraji{nik (a) The applicable purposes of sentencing (i) Retribution (ii) Deterrence (iii) Rehabilitation (iv) Individual and general affirmative prevention (b) Article 24 of the Statute and Rule 101 of the Rules (i) The general practice regarding prison sentences in the courts of the former Yugoslavia 276 (ii) The gravity of the crime(s) of the totality of an accused s conduct

8 (iii) The individual circumstances of an accused, including aggravating and mitigating circumstances (iv) Credit to be given for any time spent in detention pending transfer to the International Tribunal, trial, or appeal Conclusion VI. DISPOSITION 279 VII. SEPARATE OPINION OF JUDGE SHAHABUDDEEN 281 A. PRELIMINARY B. THE GENERAL DOCTRINE OF JCE The Appellant s general attack on JCE JCE is not an additional mode of liability but is part of an existing mode of liability The fact that the Statute does not mention JCE does not show that JCE is not permitted as a form of commission JCE does not render nugatory the other prescribed modes of liability JCE is not a crime of membership of a designated criminal organisation JCE is distinguishable from conspiracy The arguments of counsel in another case are admissible in proving what is customary international law The size of victim groups is not determinative of what was customary international law The control test makes no difference Commingling of civil law and common law concepts does not detract from the soundness of JCE Cassese did not later resile from his support for JCE C. CATEGORY III OF JCE Assuming that proof of intent is required, the secondary offender may acquire the intent of the primary offender to commit the additional crime and be convicted for it In the alternative, the normal requirement to prove intent is removed by the law relating to accessories or by the objects of the criminal law D. CONCLUSION VIII. ANNEX A: PROCEDURAL BACKGROUND 298 A. COMPOSITION OF THE APPEALS CHAMBER B. REPRESENTATION OF KRAJI{NIK C. NOTICES OF APPEAL AND BRIEFS Prosecution s Appeal Kraji{nik s Appeal and Amicus Curiae s Appeal (a) Appeal of Amicus Curiae (b) Appeal of Kraji{nik D. MOTIONS RELATED TO CONDITIONS OF SELF-REPRESENTATION AND MODALITIES OF AMICUS CURIAE S ROLE E. IMPORTANT FILINGS PURSUANT TO RULE 115 OF THE RULES F. OTHER MOTIONS RELATING TO EVIDENCE G. STATUS CONFERENCES H. HEARING OF THE APPEALS I. EVIDENTIARY HEARINGS IX. ANNEX B: GLOSSARY AND LISTS OF REFERENCES 320 A. LIST OF CITED COURT DECISIONS ICTY ICTR B. ARTICLES C. LIST OF ABBREVIATIONS...326

9 I. INTRODUCTION 1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ( Appeals Chamber and Tribunal, respectively) is seized of appeals against the judgement rendered by Trial Chamber I ( Trial Chamber ) on 27 September 2006 in the case of Prosecutor v. Mom~ilo Kraji{nik, Case No. IT T ( Trial Judgement ). A. Momčilo Krajišnik 2. Momčilo Krajišnik ( Krajišnik ) was born in Zabrđe, Novi Grad municipality, Sarajevo, Bosnia and Herzegovina, in He studied economics and worked in various companies in Sarajevo. 1 Krajišnik, who had become a member of the Serbian Democratic Party ( SDS ) at its founding in July 1990, was elected to the Bosnia and Herzegovina Assembly on 20 September 1990 and became the President of this Assembly on 20 December On 12 July 1991, he was elected to the SDS Main Board. 2 When the Bosnian-Serb Republic was created, Krajišnik held several high-ranking positions in its institutions. From 24 October 1991 through November 1995, Krajišnik was President of the Bosnian-Serb Assembly. He was also a member of the National Security Council. The Trial Chamber found that from 12 May until 17 December 1992 Krajišnik was an active member of the Presidency of the Bosnian-Serb Republic. 3 B. Trial Judgement and Sentence 3. Krajišnik was tried on the basis of an indictment dated 7 March 2002 ( Indictment ). 4 The Office of the Prosecutor ( Prosecution ) charged Krajišnik with individual criminal responsibility for crimes committed in 35 municipalities between 1 July 1991 and 30 December The Trial Chamber found Krajišnik responsible, pursuant to Article 7(1) of the Statute of the Tribunal ( Statute ), for persecution as a crime against humanity (Count 3); extermination as a crime against humanity (Count 4); murder as a crime against humanity (Count 5); deportation as a crime against humanity (Count 7); and inhumane acts (forced transfer) as a crime against humanity (Count 8). 6 The Trial Chamber found Krajišnik not guilty of the crimes of genocide (Count 1), complicity in 1 Trial Judgement, para Trial Judgement, para Trial Judgement, para Prosecutor v. Mom~ilo Kraji{nik and Biljana Plav{i}, Case No. IT-00-39&40-PT, Amended Consolidated Indictment, 7 March See Trial Judgement, paras 11 and Indictment, paras Trial Judgement, para

10 genocide (Count 2) and murder as a violation of the laws or customs of war (Count 6). 7 Chamber imposed a single sentence of 27 years of imprisonment. 8 The Trial 4. The Trial Chamber, in reaching its verdict and sentence, found that Krajišnik participated in a joint criminal enterprise whose objective was to ethnically recompose the territories under the control of the Bosnian-Serb Republic by drastically reducing the proportion of Bosnian Muslims and Bosnian Croats through the commission of various crimes. 9 It considered that there was a leadership component of the group, based in the Bosnian-Serb capital of Pale, which included Krajišnik, Radovan Karad`i} and other Bosnian-Serb leaders; the rank and file of this joint criminal enterprise was based in the regions and municipalities of the Bosnian-Serb Republic and maintained close links with the Pale-based leadership. 10 C. The Appeals 1. Krajišnik 5. Krajišnik, who chose and was authorised to represent himself, 11 seeks a reversal of the Trial Judgement and argues that he should be acquitted of all charges, or alternatively that there be a retrial. 12 In his Notice of Appeal, Krajišnik claims that his right to a fair trial was infringed by the Trial Chamber and by the Registry, 13 that he was not represented by competent counsel at trial, 14 and that the Trial Chamber was biased. 15 Moreover, he raises numerous challenges to the factual findings of the Trial Chamber, denying in particular that (1) he possessed and abused de facto 7 Trial Judgement, para With respect to murder as a violation of the laws or customs of war (Count 6), the Trial Chamber explained (Trial Judgement, para. 849): All incidents of killings have been found to constitute either murder or extermination as crimes against humanity (see part 5.2.2, above). As murder as a violation of the laws or customs of war was charged in the alternative to these crimes, the Chamber will not make any legal findings on the former. The Chamber has classified all proven killings under Article 5 of the Statute, so the allegation regarding Article 3 of the Statute (violations of the laws or customs of war), which was charged in the alternative to murder as a crime against humanity, is rendered moot. 8 Trial Judgement, para See Trial Judgement, paras Trial Judgement, para Decision on Mom~ilo Kraji{nik s Request to Self-Represent, on Counsel s Motions in relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007 ( Decision on Self-Representation ), paras 13 and Notice of Appeal, the original version being dated 12 February 2007 and the English translation having been filed on 20 February 2007 ( Kraji{nik s Notice of Appeal ), p. 13; Appeal by Momčilo Kraji{nik to the ICTY Judgement of 27 September 2006, further redacted version filed in English on 28 February 2008 ( Kraji{nik s Appeal Brief ), p. 84; Appeal by Momčilo Kraji{nik to the ICTY Judgement of 27 September 2006 (Confidential), the original version being dated 15 January 2008 and the English translation having been filed on 1 February 2008 ( Kraji{nik s Appeal Brief (Confidential) ), p. 84. See also Reply to Prosecution Response to Appeal by Momčilo Kraji{nik to the ICTY Judgement of 27 September 2006, dated 14 May 2008, the English translation having been filed on 26 May 2008 ( Kraji{nik s Reply ). 13 Kraji{nik s Notice of Appeal, paras 1-8, Kraji{nik s Notice of Appeal, paras Kraji{nik s Notice of Appeal, para

11 executive power and authority; 16 (2) he was informed about the committed crimes but did not punish them; 17 (3) he was a member of a joint criminal enterprise; 18 (4) he supported and advocated the commission of crimes against Muslims and Croats. 19 He also challenges the Trial Chamber s reliance on certain testimonies 20 and its findings pertaining to the creation, objectives and functioning of the Bosnian-Serb authorities. 21 His Appeal Brief does not follow this order, 22 but rather presents contentions under five titles: (1) Introduction, 23 (2) Legal and Procedural Errors During Trial, 24 (3) Erroneous conclusion on the part of the Chamber that the Accused was a member of JCE, 25 (4) Errors of fact, 26 and (5) Relief sought In response, the Prosecution requests that the Appeals Chamber dismiss Kraji{nik s appeal and affirm his convictions On 28 February 2008, the Appeals Chamber authorised Krajišnik to retain the services of attorney Alan Dershowitz ( JCE counsel ) to prepare on his behalf a supplementary brief on the subject of joint criminal enterprise. 29 It is argued in this supplementary brief that (1) joint criminal enterprise is not a legitimate theory of liability; (2) the Trial Chamber erred in not requiring a substantial contribution of Krajišnik to the joint criminal enterprise; and (3) joint criminal enterprise, as applied to Krajišnik, is an inconsistent and incoherent theory of liability. 30 The Prosecution responds that these three grounds of appeal should be dismissed Kraji{nik s Notice of Appeal, para Kraji{nik s Notice of Appeal, paras 13, 22 and Kraji{nik s Notice of Appeal, paras Kraji{nik s Notice of Appeal, para Kraji{nik s Notice of Appeal, para Kraji{nik s Notice of Appeal, paras 22-23, In violation of the Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, para. 4 in fine. 23 Kraji{nik s Appeal Brief, p Kraji{nik s Appeal Brief, paras Kraji{nik s Appeal Brief, paras Kraji{nik s Appeal Brief, paras Kraji{nik s Appeal Brief, pp Prosecution Response to Appeal by Momčilo Kraji{nik to the ICTY Judgement of 27 September 2006, filed confidentially on 12 March 2008 ( Prosecution s Response to Kraji{nik (Confidential) ), para A public version of this response ( Prosecution s Response to Kraji{nik ) was filed on 18 March 2008: Notice of Filing of Public Redacted Version of Prosecution Response to Appeal by Momčilo Krajišnik to the ICTY Judgement of 27 September Decision on Momčilo Krajišnik s Motion to Reschedule Status Conference and Permit Alan Dershowitz to Appear, 28 February See also Decision on Prosecution s Motion for Clarification and Reconsideration of the Decision of 28 February 2008, 11 March Brief on Joint Criminal Enterprise on behalf of Momčilo Kraji{nik, dated 4 April 2008 but filed on 7 April 2008 ( Dershowitz Brief ). See also Addendum to the Brief on Joint Criminal Enterprise of Alan M. Dershowitz, Submitted Pursuant to the Decision and Order Dated 11 April 2008, 16 April Response to Brief on Joint Criminal Enterprise on behalf of Momčilo Kraji{nik, 25 April 2008 ( Prosecution s Response to Dershowitz ). 3

12 2. Amicus Curiae 8. On 11 May 2007, the Appeals Chamber authorised self-representation by Krajišnik and invited the participation of an amicus curiae to assist the Appeals Chamber by arguing in favour of Krajišnik s interests. 32 More specifically, the amicus curiae was asked to make submissions to the Appeals Chamber similar to those which a party would make. 33 Mr. Colin Nicholls, who had previously acted as lead counsel in this appeal, was appointed as amicus curiae 34 ( Amicus Curiae ) and, in accordance with the instructions of the Appeals Chamber, he filed a notice of appeal and an appeal brief in which he requested Krajišnik s convictions to be quashed or alternatively that the Appeals Chamber orders a re-trial. 35 The grounds raised by the Amicus Curiae are the following: (1) Krajišnik was not accorded a fair trial; (2) the Trial Chamber failed to provide a reasoned opinion; (3) the Trial Chamber s conclusions on joint criminal enterprise were erroneous in law and in fact; (4) and (5) the Trial Chamber erred in law and in fact in its findings on the crimes of deportation and of forcible transfer; (6) the Trial Chamber erred in fact in its assessment of Krajišnik s hierarchical position; (7) the Trial Chamber erred in fact in concluding that Krajišnik possessed the requisite mens rea to be convicted; (8) the Trial Chamber erred in law by allowing the Prosecution to breach Rule 90(H)(ii) of the Rules of Procedure and Evidence ( Rules ) with impunity; (9) the Trial Chamber s approach to Krajišnik s evidence was wholly unreasonable; (10) the Trial Chamber impermissibly cumulated convictions; (11) the sentence of 27 years imprisonment imposed by the Trial Chamber is excessive and disproportionate. 32 Decision on Self-Representation, para Decision on Self-Representation, para Decision of the Deputy Registrar, 8 June Public and Redacted Amicus Curiae s Notice of Appeal, 8 June 2007 ( Amicus Curiae s Notice of Appeal ), para. 88; Public and Redacted Amicus Curiae s Appellate Brief, 31 August 2007 ( Amicus Curiae s Appeal Brief ), para The Amicus Curiae also filed confidential versions of these documents: Confidential Amicus Curiae s Notice of Appeal, 8 June 2007, as corrected on 14 January 2008 ( Amicus Curiae s Notice of Appeal (Confidential) ); Amicus Curiae s Appellate Brief, 3 August 2007 ( Amicus Curiae s Appeal Brief (Confidential) ). See also Confidential Amicus Curiae s Reply to the Prosecution s Response to Amicus Curiae s Appellate Brief, 26 September 2007 ( Amicus Curiae s Reply (Confidential) ), a public version of this reply having been filed on 24 June 2008 ( Amicus Curiae s Reply ). 4

13 9. The Prosecution responds that all grounds of appeal raised by Amicus Curiae should be dismissed, with the partial exception of Ground 4, for which the Prosecution concedes that the intervention of the Appeals Chamber is required Prosecution 10. The Prosecution raises a single ground of appeal, arguing that the Trial Chamber abused its discretion and imposed a manifestly inadequate sentence, and asks that the sentence of 27 years imprisonment imposed on Krajišnik be substituted by a sentence of life imprisonment. 37 Krajišnik and the Amicus Curiae respond that the Prosecution s appeal should be dismissed. 38 II. APPELLATE REVIEW A. Standard for Appellate Review 11. On appeal, the parties must limit their arguments to legal errors that invalidate the decision of the Trial Chamber and to factual errors that result in a miscarriage of justice. These criteria are set forth in Article 25 of the Statute and are well established in the jurisprudence of the ad hoc Tribunals. 39 In exceptional circumstances, the Appeals Chamber will also hear appeals where a party has raised a legal issue that would not lead to the invalidation of the Trial Judgement but that is nevertheless of general significance to the Tribunal s jurisprudence Any party alleging an error of law must identify the alleged error, present arguments in support of its claim and explain how the error invalidates the decision. An allegation of an error of law which has no chance of changing the outcome of a decision may be rejected on that ground. However, even if the party s arguments are insufficient to support the contention of an error, the Appeals Chamber may still conclude for other reasons that there is an error of law. 41 It is necessary 36 Notice of Filing of Public Redacted Version of the Prosecution s Response to Amicus Curiae s Appellate Brief, 14 September 2007 ( Prosecution s Response to Amicus Curiae ), paras 1, 127, 197. A confidential version had been filed on 12 September 2007: The Prosecution s Response to Amicus Curiae s Appellate Brief ( Prosecution s Response to Amicus Curiae (Confidential) ). 37 Prosecution s Notice of Appeal, 26 October 2006 ( Prosecution s Notice of Appeal ); Prosecution s Appeal Brief, 27 November 2006 ( Prosecution s Appeal Brief ), para. 72. See also The Prosecution s Reply Brief, 22 February 2007 ( Prosecution s Reply to Amicus Curiae ); The Prosecution s Second Reply Brief, 27 February 2007 ( Prosecution s Reply to Kraji{nik ). 38 Counsel s Response to the Prosecution s Appeal Brief, 12 February 2007 ( Amicus Curiae s Response ); Response to the Prosecution s Appeal Brief, the original version being dated 12 February 2007 and the English translation having been filed on 20 February 2007 ( Kraji{nik s Response ). 39 Martić Appeal Judgement, para. 8; Had`ihasanovi} and Kubura Appeal Judgement, para. 7; Halilović Appeal Judgement, para Martić Appeal Judgement, para. 8; Orić Appeal Judgement, para. 7; Had`ihasanovi} and Kubura Appeal Judgement, para Martić Appeal Judgement, para. 9; Strugar Appeal Judgement, para. 11; Had`ihasanovi} and Kubura Appeal Judgement, para. 8. See also Ntagerura et al. Appeal Judgement, para

14 for any appellant claiming an error of law on the basis of the lack of a reasoned opinion to identify the specific issues, factual findings, or arguments which an appellant submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision The Appeals Chamber reviews the Trial Chamber s findings of law to determine whether or not they are correct. 43 Where the Appeals Chamber finds an error of law in the Trial Judgement arising from the application of the wrong legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the Trial Chamber accordingly. 44 In so doing, the Appeals Chamber not only corrects the legal error, but, when necessary, applies the correct legal standard to the evidence contained in the trial record and determines whether it is itself convinced beyond reasonable doubt as to the factual finding challenged by an appellant before the finding is confirmed on appeal. 45 The Appeals Chamber will not review the entire trial record de novo. Rather, it will in principle only take into account evidence referred to by the Trial Chamber in the body of the judgement or in a related footnote, evidence contained in the trial record and referred to by the parties, and additional evidence admitted on appeal When considering alleged errors of fact, the Appeals Chamber will apply a standard of reasonableness. In reviewing the findings of the Trial Chamber, the Appeals Chamber will only substitute its own findings for that of the Trial Chamber when no reasonable trier of fact could have reached the original decision. 47 The Appeals Chamber applies the same reasonableness standard to alleged errors of fact regardless of whether the finding of fact was based on direct or circumstantial evidence. 48 Further, only an error of fact which has occasioned a miscarriage of justice will cause the Appeals Chamber to overturn a decision by the Trial Chamber Furthermore, when factual errors are alleged on the basis of additional evidence proffered during the appellate proceedings, Rule 117 of the Rules provides that the Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it. The Appeals Chamber recalls the standard of review to be applied on appeal in relation to findings challenged only by the Defence, in the absence of a Prosecution 42 Martić Appeal Judgement, para. 9; Halilović Appeal Judgement, para. 7; Brđanin Appeal Judgement, para Martić Appeal Judgement, para. 10; Strugar Appeal Judgement, para. 12; Halilović Appeal Judgement, para Martić Appeal Judgement, para. 10; Orić Appeal Judgement, para. 9; Had`ihasanovi} and Kubura Appeal Judgement, para Martić Appeal Judgement, para. 10; Strugar Appeal Judgement, para. 12; Orić Appeal Judgement, para Had`ihasanovi} and Kubura Appeal Judgement, para. 9; Brđanin Appeal Judgement, para. 15; Galić Appeal Judgement, para Had`ihasanovi} and Kubura Appeal Judgement, para. 10; Halilović Appeal Judgement, para. 9; Limaj et al. Appeal Judgement, para Martić Appeal Judgement, para. 11; Strugar Appeal Judgement, para. 13; Had`ihasanovi} and Kubura Appeal Judgement, para Martić Appeal Judgement, para. 11; Strugar Appeal Judgement, para. 13; Orić Appeal Judgement, para

15 appeal, in situations where (i) an alleged error of fact is raised, (ii) additional evidence has been admitted on appeal and (iii) there is no error in the legal standard applied in relation to the factual finding: - The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law. - If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt. 50 In situations in which the Appeals Chamber is confronted with an error in the legal standard applied in relation to the factual finding and an alleged error of fact, and additional evidence has been admitted on appeal, two steps are involved: - The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt, on the basis of the trial record. If it is not convinced, then no further examination of the matter is necessary as a matter of law. - If, however, the Appeals Chamber, applying the correct legal standard to the evidence contained in the trial record, is itself convinced beyond reasonable doubt as to the finding of guilt, it will then proceed to determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself still convinced beyond reasonable doubt as to the finding of guilt. 51 B. Standard for Summary Dismissal 16. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing. Indeed, the Appeals Chamber s mandate cannot be effectively and efficiently carried out without focused contributions by the parties. In order for the Appeals Chamber to assess a party s arguments on appeal, the party 50 Blaškić Appeal Judgement, para. 24(c). 51 Blaškić Appeal Judgement, para. 24(d). 7

16 is expected to present its case clearly, logically and exhaustively. As well, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies When applying these basic principles, the Appeals Chamber recalls that it has identified deficient submissions on appeal which were liable to be summarily dismissed. 53 The Appeals Chamber in the present case has identified the following types of arguments as warranting summary dismissal. 1. Arguments that fail to identify the challenged factual findings, that misrepresent the factual findings or the evidence, or that ignore other relevant factual findings 18. The Appeals Chamber recalls that an appellant is expected to identify the challenged factual finding and put forward its factual arguments with specific reference to the page number and paragraph number. 54 Similarly, submissions which either misrepresent the Trial Chamber s factual findings or the evidence on which the Trial Chamber relies, or ignore other relevant factual findings made by the Trial Chamber will not be considered in detail. 55 As a general rule, where an appellant s references to the Trial Judgement are missing, vague or incorrect, the Appeals Chamber will summarily dismiss that alleged error or argument Mere assertions that the Trial Chamber must have failed to consider relevant evidence 19. A Trial Chamber does not necessarily have to refer to the testimony of every witness and to every piece of evidence on the record and failure to do so does not necessarily indicate lack of consideration. 57 This holds true as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. Such disregard is shown when evidence which is clearly relevant to the findings is not addressed by the Trial Chamber s reasoning. 58 Where the Appeals Chamber finds that an appellant merely asserts that the Trial Chamber failed to consider relevant evidence, without showing that no reasonable trier of fact, based on the evidence, could 52 Marti} Appeal Judgement, para. 14; Strugar Appeal Judgement, para. 16; Ori} Appeal Judgement, paras 13 and 14 (with further references). 53 Marti} Appeal Judgement, para. 15; Strugar Appeal Judgement, para. 17; Brđanin Appeal Judgement, paras 17-31; Galić Appeal Judgement, paras Marti} Appeal Judgement, para. 18; Strugar Appeal Judgement, para. 20; see Practice Direction on Formal Requirements for Appeals from Judgement (IT/201) of 7 March 2002 ( Practice Direction on Formal Requirements for Appeals from Judgement ), paras 1(c)(iii), 1(c)(iv), 4(b)(ii). See also Halilović Appeal Judgement para. 13; Blagojević and Jokić Appeal Judgement, para. 11; Brđanin Appeal Judgement, para. 15; Gacumbitsi Appeal Judgement, para Marti} Appeal Judgement, para. 18; Strugar Appeal Judgement, para. 20; Brđanin Appeal Judgement, para Marti} Appeal Judgement, para. 18; Strugar Appeal Judgement, para Strugar Appeal Judgement, para. 24; Kvo~ka et al. Appeal Judgement, para. 23; Kupre{ki} et al. Appeal Judgement, para

17 have reached the same conclusion as the Trial Chamber did, it will, as a general rule, summarily dismiss that alleged error or argument Challenges to factual findings on which a conviction does not rely, and arguments that are clearly irrelevant, that lend support to, or that are not inconsistent with the challenged finding 20. The Appeals Chamber recalls that as long as the factual findings supporting the conviction and sentence are sound, errors related to other factual conclusions do not have any impact on the Trial Judgement. Accordingly, the Appeals Chamber declines, as a general rule, to discuss those alleged errors which have no impact on the conviction or sentence. 60 Similarly, the Appeals Chamber will summarily dismiss arguments or alleged errors that are clearly irrelevant to the Trial Chamber s convictions or sentence, or which would actually lend support to the challenged finding or would not be inconsistent with it Arguments that challenge a Trial Chamber s reliance or failure to rely on one piece of evidence 21. Submissions will usually be dismissed without detailed reasoning where an appellant merely disputes the Trial Chamber s reliance on one of several pieces of evidence to establish a certain fact, but fails to explain why the convictions should not stand on the basis of the remaining evidence. 62 The Appeals Chamber will also usually summarily dismiss mere assertions that the Trial Chamber s findings were contrary to the testimony of a specific witness or a particular piece of other evidence, or that the Trial Chamber should or should not have relied on the testimony of a specific witness or a particular piece of other evidence, unless the appellant shows that an alleged error of fact occurred that occasioned a miscarriage of justice. 63 Similarly, as a general rule, submissions will be dismissed without detailed reasoning where an appellant merely argues that the testimony of a witness is uncorroborated. 64 Where the Appeals Chamber considers that an appellant makes such assertions without substantiating them, it will usually summarily dismiss that alleged error or argument Strugar Appeal Judgement, para. 24; Limaj Appeal Judgement, para Brđanin Appeal Judgement, para. 24; Galić Appeal Judgement, paras Marti} Appeal Judgement, para. 17; Brđanin Appeal Judgement, para. 26; Galić Appeal Judgement, paras See Marti} Appeal Judgement, para. 17; Brđanin Appeal Judgement, para. 26; Galić Appeal Judgement, paras Marti} Appeal Judgement, para. 21; Strugar Appeal Judgement, para. 23; Brđanin Appeal Judgement, paras 27-28; Galić Appeal Judgement, paras 300, 302, See Marti} Appeal Judgement, para. 21; Strugar Appeal Judgement, para. 23; Brđanin Appeal Judgement, paras Marti} Appeal Judgement, para. 21; The Appeals Chamber recalls that there is no legal requirement that the testimony of a single witness on a material fact be corroborated before it can be accepted as evidence: Limaj et al. Appeal Judgement, para. 203; Kordi} and ^erkez Appeal Judgement, para. 274; Čelebići Appeal Judgement, para Marti} Appeal Judgement, para

18 5. Arguments contrary to common sense 22. The Appeals Chamber will, as a general rule, summarily dismiss arguments and allegations that are contrary to common sense Challenges to factual findings where the relevance of the factual finding is unclear and has not been explained by the Appellant 23. When an appellant raises arguments against factual findings by the Trial Chamber without elaborating on how the alleged error of fact had any impact on the findings of the Trial Chamber, so as to amount to a miscarriage of justice, the Appeals Chamber will, as a general rule, summarily dismiss the alleged error or argument Mere repetition of arguments that were unsuccessful at trial 24. The Appeals Chamber will, as a general rule, summarily dismiss submissions that merely repeat arguments that did not succeed at trial without any demonstration that the Trial Chamber s rejection of them constituted an error warranting the intervention of the Appeals Chamber Allegations based on material not on record 25. The Appeals Chamber will summarily dismiss arguments and allegations based on material that is not part of the trial record and that has not been admitted on appeal pursuant to Rule 115 of the Rules Mere assertions unsupported by any evidence, undeveloped assertions, failure to articulate error 26. Submissions will be dismissed without detailed reasoning where an appellant makes factual claims or presents arguments that the Trial Chamber should have reached a particular conclusion without advancing any evidence in support. Indeed, an appellant is expected to provide the Appeals Chamber with an exact reference to the parts of the trial record invoked in support of its arguments. 70 As a general rule, in instances where this is not done, the Appeals Chamber will 66 Brđanin Appeal Judgement, para. 30; Galić Appeal Judgement, paras 308 and Brđanin Appeal Judgement, para Marti} Appeal Judgement, para. 14; Strugar Appeal Judgement, para. 16; Halilović Appeal Judgement para. 12; Blagojević and Jokić Appeal Judgement, para. 10; Brđanin Appeal Judgement, para. 16; Gali} Appeal Judgement, paras 10 and 303; Simi} Appeal Judgement, para. 12; Gacumbitsi Appeal Judgement, para Galić Appeal Judgement, paras Marti} Appeal Judgement, para. 20; Strugar Appeal Judgement, para. 22. See Practice Direction on Formal Requirements for Appeals from Judgement (IT/201) of 7 March 2002 ( Practice Direction on Formal Requirements for Appeals from Judgement ), paras 1(c)(iii), 1(c)(iv), 4(b)(ii). See also Halilović Appeal Judgement, para. 13; Blagojević and Jokić Appeal Judgement, para. 11; Brđanin Appeal Judgement, para. 15; Gacumbitsi Appeal Judgement, para

19 summarily dismiss the alleged error or argument. 71 Similarly, the Appeals Chamber will, as a general rule, summarily dismiss undeveloped arguments and alleged errors, as well as submissions where the appellant fails to articulate the precise error committed by the Trial Chamber Mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner 27. As a general rule, mere assertions that the Trial Chamber failed to give sufficient weight to certain evidence, or should have interpreted evidence in a particular manner, are liable to be summarily dismissed. 73 Similarly, where an appellant merely seeks to substitute its own evaluation of the evidence for that of the Trial Chamber, such submissions may be dismissed without detailed reasoning. The same applies to claims that the Trial Chamber could not have inferred a certain conclusion from circumstantial evidence without further explanation Marti} Appeal Judgement, para Galić Appeal Judgement, para Marti} Appeal Judgement, para. 19; Strugar Appeal Judgement, para. 21; Brđanin Appeal Judgement, para Marti} Appeal Judgement, para. 19; Strugar Appeal Judgement, para