* This document was reproduced and reformatted from the text appearing at the ICTY website (visited November 1, 2001)<http://www.un.org/icty>.Due to the substantial length of the original document and ILM space limitations, the ILM Office decided to reproduce Chapters III-V of the judgment.Please note that the included table of contents only covers the chapters that are reproduced in this ILM issue.

1111 Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995(Jadic Appeal I).

1112 Judgement,The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, IT-96-23T and IT-96-23/1-T, 22 February 2001, para.410.

1113 Appeals Judgement,The Prosecutor v.Tadić, IT-94-1-A, 15 July 1999, para. 251.

1114 Ibid., para. 248.

1115 Article 5 of the Statute.

1116 See note 1114 above, para. 248.

1117 Ibid.

1118 Part II.

1119 Different terminology is used in the English and French versions of the Statute. The French version specifies “meurtre” whereas the English version uses the term “killing.” The term “killing” refers to any act causing death without specifying the perpetrator's degree of intention. TheAkayesu Judgement observed that the notion of “meurtre” or “murder” should be preferred to that of “killings” in accordance with the general principles of criminal law which provide that where there are two possible interpretations the one which is more favourable to the accused must be used(Akayesu Judgement, par. 501). It also noted (at para. 588) that the term “murder” is translated in French into “assassinat” (which supposes premeditation and may involve, if proven, a higher sentence) and stated that the term “meurtre” in French should be preferred, in keeping with customary international law. The Chamber subscribes to the position previously adopted by the ICTR in theAkayesu Judgement.

1120 Prosecutor's pre-trial brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 104, p. 38.

1121 See in particular theAkayesu Judgement, para.589; theČelebići Judgement, para. 439; the Blaštić Judgement, paras. 153, 181, and 217; and theJelisić Judgement, paras. 35 and 63 (in the latter case, the Trial Chamber ruled that a perpetrator of murder must have had the intention to cause death; the foreseeable consequence theory was not pheld).

1122 The indictment covers a period from 12 July to 1 November 1995. The Prosecution, however, offered no evidence of killings occurring after approximately 19 July 1995.

1123 See in particular the cross-examination of the accused, T. 6489.

1124 Supra, paras. 80-84.

1125 Supra, para. 44-45.

1126 Supra, para. 44.

1127 Supra, para. 45.

1128 Supra, para. 66.

1129 Article 6(c) of the Statute of the Nuremberg Tribunal; Article II(c) of Control Council Law No. 10, Principle VI of the Nuremberg Principles; Article 5(b) of the Statute of the ICTY; Article 3(b)of the Statute of the ICTR; Article 18(b)of the Draft Code of Crimes against the Peace and Security of Mankind adopted by the ILC at its 48th session in 1996;and Articles 7(l)(b)and 7(2)(b) of the Statute of the International Criminal Cour

1130 See especially section 7 (3.76) of the Canadian Criminal Code and Article 212-1, paragraph 1 of the French Penal Code (adopted by Act no. 92-1336 of 16 December 1992, amended by Act no. 93-913 of 19 July 1993, entered into force on 1 March 1994) which uses the term “widespread and systematic practice of summary executions.” Yet, the definition used in French law differs from that used in the international texts because a discriminatory element is required for all crimes against humanity.

1131 See the District Court of Jerusalem which found Adolf Eichmann guilty of the crime against humanity of extermination although no definition was expressly provided. Attorney-General of the Government ofIsrael v. Adolf Eichmann, Israel, District Court of Jerusalem, 12 December 1961, 36 ILR, (1968), Part IV, p. 239,see Barbie case, Cour de Cassation, 3 June 1988, 78 ILR, pp. 332 and 336.

1132 Seethe following judgements.Josef Altstotter and others, US Military Tribunal, Nuremberg (1947), Law Reports of Trials of War Criminals by the UN War Crimes Commission, Vol VI. The accused were found guilty of crimes against humanity. The expression “racial extermination of the Poles” is used in the judgement to define the programme implemented nation-wide, p. 75;Amon Leopold Goeth (Hauptsturmfuhrer), Supreme National Tribunal of Poland (1946), Law Reports of Trials of War Criminals, Vol. VII. The judgement uses the term “extermination” broadly to justify genocide. The Tribunal notes that a policy of extermination was applied in order to destroy the Jewish and Polish nations (unofficial translation), p. 9.1.G. Farben Trial: Carl Krauch and 22 others, US Military Tribunal, Nuremberg (1947-1948), Law Reports of Trials of War Criminals, Vol. X.The Krupp Case: Alfried Felix Alwyn Krupp Von Bohlen und Halbach ' 11 others, US Military Tribunal, Nuremberg, (1947-1948), Law Reports of Trials of War Criminals, Vol. X.The High Command Case: Wilhelm Von Leeb and 13 others, US Military Tribunal (1947-1948), Law Reports of Trials of War Criminals, Vol. XII.The Rusha Case: Ulrich Greifelt ' others, US Military Tribunal, Nuremberg, (1947-1948), Law Reports of Trials of War Criminals, Vol. XIII. The Tribunal notes that the programme implemented by the Nazis corresponded to a systematic programme of genocide which involvedinter alia the extermination of national and racial groups.Gauleiter Artur Greiser, Supreme National Tribunal of Poland (1946), Law Reports of Trials of War Criminals. Vol. XIII.

1133 Judgement,The Prosecutor v.Jean-Paul Akayesu, case no. ICTR-96-4-T, 2 September 1998, paras. 591-592; Judgement,The Prosecutor v. Kambanda, case no. ICTR-97-23, 4 September 1998; Judgement,The Prosecutor v. Kayishema/Ruzindana, case no. ICTR-95-1-T, 21 May 1999, paras. 141-147; Judgement,The Prosecutor v. Rutaganda, case no. ICTR-96-3-T, 6 December 1999, paras. 82-84; Judgement,The Prosecutor v.Musema, case no. ICTR-96-13-T, 27 January 2000.

1134 Akayesu Judgement, para. 592. This Judgement further refers to the conditions required for a crime against humanity pursuant to the ICTR Statute, which also involve that the attack “be on discriminatory grounds, namely: national, political, ethnic, racial, or religious grounds.” There is no such requirement in Article 5 of the ICTY Statute regarding crimes against humanity other than persecution.

1135 Prosecutor's pre-trial Brief pursuant to Rule 65ter (E)(i), 25 February 2001.

1136 Ibid., para. 129.

1137 In accordance with theTadić I Appeals Judgement, paras. 273-305. Conversely,see Akayesu Judgement, para. 592,Kayishema/Ruzindana Judgement, para. 144,Rutaganda Judgement, paras. 83-84, andMusema Judgement, paras. 218-219.

1138 The Prosecutor v.Radislav Krstić, case no. IT-98-33-PT, Pre-trial Brief of the Defence pursuant to Rule 65ter (E)(i), 29 February 2000.

1139 Ibid., paras. 35-36.

1140 Akayesu Judgement, para. 589;Blaškić Judgement, para. 217;Jelisić Judgement, para. 35;Kupreškić Judgement, paras. 560-561.

1141 The term appeared in the Christian Latin language in the twelfth century but was hardly used before the sixteenth.See The Oxford English Dictionary (2nd Edition) Vol. V, p. 601.Le Nouveau Petit Robert, French language dictionary (Dictionnaires Le Robert-Paris, 1994), p. 871.

1142 Ibid. Meaning which appeared first in Vulgate and then in French.

1143 See in particular the commentary on the ILC Draft Code of Crimes against the Peace and Security of Mankind (hereinafter, “ILC Draft Code“),Report of the International Law Commission on the work of its 48th session, 6 May-26 July 1996, Official Documents of the United Nations General Assembly's 51s1 session, Supplement no. 10 (A/51/10), Article 18, p. 118.

1144 Cherif Bassiouni,Crimes against Humanity in International Criminal Law (2“d edition, 1999), p. 295.

1145 Report of the Preparatory Commission for the International Criminal Court, Finalized draft text of the Elements of Crimes, PCNICC/2000/l/Add.2, 2 November 2000 (footnotes omitted).

1146 TadićI Appeals Judgement, paras. 281-305.

1147 See note 1143 above

1148 In para. 207, theBlaškić Judgement provides: “in practice, these two criteria [widespread and systematic attack] will often be difficult to separate since a widespread attack targeting a large number of victims generally relies on some form of planning or organisation. The quantitative criterion is not objectively definable as witnessed by the fact that neither international texts nor international and national case-law set any threshold starting with which a crime against humanity is constituted.“

1149 One witness testified about the slaughtering of a baby. Expert reports on the exhumations show that a small number of the victims were under the age of fifteen of over sixty-five year old. Although those victims may not legally qualify as “military aged men,” there were obviously treated by the Bosnian Serb forces as if of military age.

1150 Indictment, para. 21(b).

1151 Indictment, para. 31 (b).

1152 Akayesu Judgement, para. 504, cited in Prosecutor's pre-trial brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 105, p. 39.

1153 The Israeli Government Prosecutor General v. Adolph Eichmann, Jerusalem District Court, 12 December 1961 (hereinafter “theEichmann District Court Judgement“), inInternational Law Reports (ILR), vol. 36, 1968, p. 340, cited in the Prosecutor's pre-trial Brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 105, p. 39.

1154 The Prosecutor v.Radovan Karadžić and Ratko Mladić, Review of the Indictments pursuant to Rule 61 of the Rules of Procedure and Evidence, IT-95-5-R61 and IT-95-18-R61, 11 July 1996 (hereinafter “theKaradzic md Mladić case“), para. 93.

1155 Report of the Preparatory Commission for the International Criminal Court. Finalised draft text of the elements of crimes, UN Doc. PCNICC/2000/INF/3/Add.2, 6 July 2000, p. 6.

1156 The Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1-T, 21 May 1999, para. 109 (hereinafter “theKayishema andRuzindana Judgement“).

1157 Kayishema andRuzindana Judgement, para. 113.

1158 Reference to serious mental harm for this purpose was first proposed by China (UN Doc. E/AC.25/SR.5, p. 9; UN Doc. A/C.6/211; UN Doc. A/C.6/232/Rev. 1; UN Doc. A/C.6/SR.81). Though at first rejected, the proposition was ultimately adopted at the initiative of India (UN Doc. A/C.6/SR.81).See also Nehemia Robinson'sThe Genocide Convention; A commentary, New York, 1960, p. ix.

1159 132:15 CONG. REC. S1378.See also the Genocide Convention Implementing Act of 1987, s. 1091(a)(3).

1160 Report of the Preparatory Committee on the Establishment of an International Criminal Court. Part 2. Jurisdiction, Admissibility and Applicable Law, UN Doc. A/CONF. 183/2/Add1, 14 April 1998, p. 11.

1161 Akayesu Judgement, para. 502.

1162 The Prosecutor v. Zejnil Delalić, Zdravko Mucić a/k/a “Pavo,” Hazim Delic and Esad Landžo a/k/a “Zenga,” IT-96-21-T, 16 November 1998 (hereinafter “theCelebić Judgement“), para. 511.

1163 Blaškić Judgement, para. 243.

1164 Akayesu Judgement, para. 502.

1165 Eichmann Disctrict Court Judgement, para. 199: “there is no doubt that causing serious bodily harm to Jews was a direct and unavoidable result of the activities which were carried out with the intention of exterminating those Jews who remained alive.“

1166 Indictment, para. 31 (b).

1167 Čelebić Judgement, para. 552;Blaškić Judgement, para. 186.

1168 Witness DD.

1169 Prosecutor's pre-trial Brief pursuant to Rule 65ter (E)(i), para. 131.

1170 Final Submissions of the Accused, para. 375-377.

1171 Final Submisisons of the Accused, para. 386.

1172 See in particular the commentary on the ILC Draft Code, p. 122 “Whereas deportation implies expulsion from the national territory, the forcible transfer of population could occur wholly within the frontiers of one and the same State.“

1173 According to Article 49 of the Fourth Geneva Convention: “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.[…]” Article 85(4) of Protocol I characterises “[…] the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory […]” as a grave breach of the Protocol. Article 18 of the ILC Draft Code and Article 7(l)(d) of the Statute of the International Criminal Court specify under the same heading “deportation or forcible transfer of population” as acts liable to constitute crimes against humanity.

1174 Kupreškić Judgement, para. 566.

1175 Article 49 of the Fourth Geneva Convention reads as follows: “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. […] Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.” Security of the population and imperative military reasons are also listed in Article 17 of Protocol II as the only reasons that could justify the evacuation of the civilian population.

1176 Wilhelm List and others, US military Tribunal, Nuremberg (“the Hostages Trial“), Law Reports of Trials of War Criminals, Vol. VIII, case No. 47, p. 69 (1948): “It is our considered opinion that the conditions as they appeared to the defendant at the time were sufficient, upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgement but he was guilty of no criminal act.“

1177 Von Lewinski (called von Mansteiri), British Military Court at Hamburg (Germany), Dec. 19, 1949,in 16 Annual Dig. and Reports of Public International Law Cases 509,521 (1949):” In a country so thickly populated as the Ukraine it was necessary for the security of the troops to remove the population from the battle or the combat zone. To do otherwise would have been to invite espionage. The evacuation of this zone was therefore mere military security. Further, it was necessary to deprive the enemy of labour potential as the enemy put every able-bodied man into the army and utilised women and even small children. They could not allow them to fall into the hands of the enemy.“

1178 Id. at 522-23. Indeed, the judge advocate went so far as to suggest that deportation of civilians could never be justified by military necessity, but only by concern for the safety of the population.Id. at 523. This position, however, is contradicted by the text of the later Geneva Convention IV, which does include “imperative military reasons,” and the Geneva Convention is more authoritative than the views of one judge advocate.

1179 The British military tribunals did not issue reasoned opinions, so the law reports contain the submissions of the judge advocates, who advised the court on the law after the presentation of the prosecution and defence.

1180 Von Lewinski (von Manstein), op. cit. p. 522-23.

1181 Commentary to Geneva Convention IV, at 279.

1182 Report of the Preparatory Commission for the International Criminal Court, Finalised Draft Text of the Elements of the Crimes, UN Doc. PCNICC/2000/INF/3/Add.2, 6 July 2000, p. 11.

1183 Supra, paras. 128-130.

1184 Supra, paras. 145 to 149.

1185 Indictment, para. 31.

1186 Kupreškić Judgement, para. 621.

1187 Kupreškić Judgement, para. 605

1188 Kordić andČerkez Judgement, para. 193.

1189 Kupreškić Judgement, para. 619;Kordićand Čerkez Judgement, para. 195.

1190 Kupreškić Judgement, para. 622.

1191 Counts land 2.

1192 Indictment, para. 21.

1193 Articles II and III.

1194 Entered into force on 12 January 1951.

1195 Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports (1951), p. 23.

1196 ILC Draft Code, in particular, pp. 106-114.

1197 Nicodeme Ruhashyankiko,Study on the Question of the Prevention and Punishment of the Crime of Genocide, United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN. 4/Sub. 2/416,4 July 1978; Benjamin Whitaker,Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide, United Nations, Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub. 2/1985/6, 2 July 1985.

1198 PCNICC/2000/INF/3/Add. 2, 6 July 2000.

1199 Prosecution Opening Statement, T. 461.

1200 Supra, paras. 43-47, 58.

1201 Supra, para. 59, 66.

1202 An intercept submitted into evidence indicates that the Bosnian Serbs were aware of the column as of 12 July at 0300 hours.Supra, para. 162.

1203 Supra, para. 62.

1204 Supra, para. 65.

1205 Supra, para. 65.

1206 Supra, para. 85.

1207 Supra, para. 83.

1208 A list of criminals of war was drawn upon Zivanovic's order dated 13 July; an intercepted conversation between Cerovič and Beara on 16 July (P335) also indicates that the prisoners should be screened.

1209 Supra, paras. 77, 80.

1210 Supra, para. 171.

1211 Supra, para. 216. The screening of the men probably took place on 12 July and in the earlier hours of 13 July.

1212 Para. 106.

1213 P459,supra para. 86.

1214 Execution in Kravica on 13 July, Pilica cultural Dom on 16 July.

1215 Supra, para. 68.

1216 Orahovac, 14 July.

1217 See esp. Witnesses J and K's testimony who are survivors of the execution carried out at the Kravica warehouse,supra para. 207.

1218 Indictment, para. 21.

1219 Jelisić Judgement, para. 66.

1220 Prosecutor's Submissions of agreed matters of law presented during the pre-trial conference of 7 March 2000, 8 March 2000, paras. 92 and 93.

1221 UN Doc. A/ 96(1) (1946), 11 December 1946.

1222 “Relations Between the Convention on Genocide on the One Hand and the Formulation of the Nurnberg Principles and the Preparation of a Draft Code of Offences Against Peace and Security on the Other,” U.N. Doc. E/AC.25/3/Rev.l, 12 April 1948, p. 6. Nehemia Robinson set forth this essential characteristic of genocide very explicitly in his commentary on the Convention: “The main characteristic of Genocide is its object: the act must be directed toward the destruction of agroup. Groups consist of individuals, and therefore, destructive action must, in the last analysis, be taken against individuals. However, these individuals are important not per se but only as members of the group to which they belong”(op.cit. p. 63).

1223 Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Reports (1951), p. 23.

1224 ILC Draft Code, p. 88.

1225 Akayesu Judgement, para. 522: “The perpetration of the act charged therefore extends beyond its actual commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to destroy, in whole or in part, the group of which the individual is just one element.“

1226 Kayishema, Ruzindana Judgement, para. 99: “'Destroying’ has to be directed at the group assuch, that is,qua group.“

1227 See in particular theKupreškić Judgement, para. 636 and theJelisić Judgement, para. 79.

1228 See in particular Article 14 of the European Convention on Human Rights: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as […] association with a national minority. […]” See also the Framework Convention for the Protection of National Minorities, ETS 157, or principle VII of the Final Act of the Conference on Security and Co-operation in Europe (1975), point 105, para. 2.

1229 See in particular Article 27 of the International Covenant on Civil and Political Rights: “In those States in whichethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.“

1230 See in particular the definition suggested by the European Commission for Democracy through Law,The Protection of Minorities, Strasbourg: Council of Europe Press, 1994, p. 12: a national minority is “a group which is smaller in number than the rest of a population of a State, whose members, who are nationals of that State, have ethnical, religious or linguistic features different from those of the rest of the population, and are guided by the will to safeguard their culture, traditions, religion or language.“

1231 F. Capotorti,Study on the Rights of the Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.l (1979), paras. 197, referring to the debates held on a draft resolution on the definition of minorities (E/CN. 4/Sub. 2/103).

1232 UNTS, vol. 660, no. 9646.

1233 Article 1.

1234 UN Doc. A/C.6/SR.73 (Petren, Sweden); UN Doc. A/C.6/SR.74 (Petren, Sweden).

1235 The Prosecutor v. Nikolić, Review of the indictment pursuant to Rule 61, Decision of Trial Chamber I, 20 October 1995, case no. IT-94-2-R61 (hereinafter “theNikolićDecision“), para. 27.

1236 Jelisić Judgement, para. 70.

1237 Prosecutor's pre-trial brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 12.

1238 Prosecution Final Trial Brief, para. 412.

1239 Closing argument, T. 9983.

1240 Final Submissions of the Accused, para. 104.

1241 Final Submissions of the Accused, paras. 102-107.

1242 Prosecutor's pre-trial brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 92, p. 33.

1243 ILC Draft Code, p. 109.See also Pieter Drost,The Crime of State, Genocide, p. 124, for a commentary on the Convention: “It is an externally perceptible quality or characteristic which the victim has in common with the other members of the group, which makes him distinct from the rest of society in the criminal mind of his attacker and which for that very reason causes the attacker to commit the crime against such marked and indicated individual.“

1244 Para. 19.

1245 P746/a.

1246 P743, p. 2.

1247 Radinović, T. 7812.supra, para. 12.

1248 See para. 11, referring to the Report of the Secretary-General, para. 33.

1249 The Report of the Secretary-General, para. 33, lists the crimes committed by the Bosnian Serb forces against the Bosnian Muslim population from the very outset of the conflict.

1250 Report of the Secretary-General, paras. 34 to 37.

1251 Supra, para. 13-14.

1252 Statement of General Hadžihasanović made on 24 January 2001, para. 4, corroborated by General Krstićs statement in a press article published in November 1995 (P744/c, p. 1).

1253 Resolution 819 (1993), 16 April 1993.

1254 P 126: Report of the Security Council Mission set up pursuant to resolution 819 (1993), UN Doc. S/25700 (30 April 1993), para. 18.

1255 Ibid, para. 10 and 11.

1256 Supra, para. 15.

1257 Supra, para. 26.

1258 Supra, para. 28.

1259 P 901, p. 2.

1260 Supra, para. 120.

1261 Supra, p ara. 24. First agreement signed on 18 April 1993, followed by the agreement of 8 May 1993.

1262 Report of the Secretary-General, para. 225.

1263 Supra, para. 33.

1264 Prosecutor's pre-trial brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 90.

1265 Ibid,para. 91, p. 33.

1266 Final Submissions of the Accused, 21 June 2001, para. 94.

1267 UN Doc. A/96 (I), 11 December 1946 (Emphasis added).

1268 UN Doc. E/447 (1947), p. 20 “the word genocide means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development.“

1269 UN Doc. E/447 (1947), p. 23.See also “Relations Between the Convention on Genocide on the One Hand and the Formulation of the Nurnberg Principles and the Preparation of a Draft Code of Offences Against Peace and Security on the Other,” UN Doc. E/AC.25/3/Rev.1, 12 April 1948, p. 6: “The destruction of the human group is the actual aim in view. In the case of foreign or civil war, one side may inflict extremely heavy losses on the other but its purpose is to impose its will on the other side and not to destroy it.“

1270 ILC Draft Code,p.88(emphasis added).

1271 ICJ Repors (1996), p. 240.

1272 Para. 26. The Chamber notes however that several dissenting opinions criticised the Opinion on the issue by holding that an act whose foreseeable result was the destruction of a group as such and which did indeed cause the destruction of the group did constitute genocide. In particular, Judge Weeramantry observes that the use of nuclear weapons inevitably brings about the destruction of entire populations and constitutes, as such, genocide. He thus challenges the interpretation that “there must be an intention to target a particular national, ethnical, racial or religious group qua such group, and not incidentally to some other act” (Reports p. 502). In the same vein, Judge Koroma comments on “the abhorrent shocking consequences that a whole population could be wiped out by the use of nuclear weapons during an armed conflict.” He claims that such a situation constitutes genocide “if the consequences of the act could have been foreseen” (Reports, p. 577).

1273 ICTR 97-23-S, 4 September 1998 (hereinafter The “Kambanda Judgement“), para. 16.

1274 21 May 1999, para. 89.

1275 Article 211-1 of the French Criminal Code states that the crime must be committed “ in the execution of a concerted plan to destroy wholly or partially a group.“

1276 See in particular Eric David,Droit des conflits armes, p. 615; Alexander K.A. Greenawalt, “Rethinking genocidal intent: the case for a knowledge-based interpretation,”Columbia Law Review, December 1999, pp. 2259-2294;Gil Gil Derechopenal international, especial consideration del delito de genicidio, 1999.

1277 The element of premeditation was dismissed at the proposal of Belgium (UN Doc. A/C.6/217) on the ground that such a provision was superfluous in light of the special intent already incorporated into the definition of the crime (UN Doc. A/C.6/SR.72, p. 8).

1278 Jelisić Appeal Judgement, para. 48.

1279 Supra, para. 85-87.

1280 Axis Rule in Occupied Europe, p. 79, pp. 87-89.

1281 ILC Draft Code,op. tit., commentary of article 17, p. 106.

1282 USA v. Ulrich Greifelt et al, Trials of War Criminals, vol. XIV (1948), p. 2: “The acts, conduct, plans and enterprises charged in Paragraph 1 of this Count were carried out as part of a systematic program of genocide, aimed at the destruction of foreign nations and ethnic groups, in part by murderous extermination, and in part by elimination and suppression of national characteristics.”See also the judgements rendered by the Polish Supreme Court against Amon Leopold Goeth (Trials of War Criminals, vol. VII, no.37, p.8) and Rudolf Franz Ferdinand Hoess (Trials of War Criminals, vol. VII, no. 38, p. 24).

1283 Violations of Human Rights in Southern Africa: Report of the Ad Hoc Working Group of Experts, UN Doc. E/CN.4/1985/14, 28 January 1985, paras. 56 and 57.

1284 The notion of a cultural genocide was rejected by the General Assembly Sixth Committee by 25 votes to 6, with 4 abstentions and 13 delegations absent.

1285 ILC Draft Code, pp. 90-91.

1286 UN Doc. AG/Res./47/121 of 18 December 1992.

1287 Federal Constitutional Court, 2 BvR 1290/99, 12 December 2000, para. (III)(4)(a)(aa). Emphasis added.

1288 Prosecutor's pre-trial brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 100.

1289 Prosecutor's pre-trial brief pursuant to Rule 65ter (E)(i), 25 February 2000, para. 101.

1290 Review of the Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, Decision of Trial Chamber I, 20 October 1995, IT-94-2-R61, para. 34.

1291 Jelisić Judgement, para. 83.

1292 Final Submissions of the Accused, paras. 96-101.

1293 Letter of Raphael Lemkin published in “Executive Sessions of the U.S. Senate Foreign Relations Committee,” Historical Series 781-805 (1976), p. 370, quoted in the Defence Final Trial Brief, para. 97. Raphael Lemkin explained that partial destruction must target a substantial part in such a way that it affects the group as a whole.

1294 Senate Executive Report No. 23, 94th Cong., 2nd Session (1976), pp. 34-35.

1295 In this regard,see especially the commentary of the representative of the United Kingdom, Fitzmaurice, UN Doc. A/C.6/SR. 73. The preparatory work is unclear on the issue. It does indeed seem that there was confusion between theactus reus and themens rea in this respect.

1296 Draft Convention for the Prevention and Punishment of Genocide presented by the Secretary-General, 26 June 1947, UN Doc. E/447, p. 24.

1297 Nehemia Robinson,The Genocide Convention, p. 63: “the intent to destroy a multitude of persons of the same group must be classified as genocide even if these persons constitute only part of a group either within a country or within a region orwithin a single community, provided the number is substantial.” The writer also noted before the Foreign Relations Commission of the American Senate: “the intent to destroy a multitude of persons of the same group must be classified as genocide even if these persons constitute only part of a group either within a country or within a single community, provided the number is substantial because the aim of the convention is to deal with action against large numbers, not individual events if they happen to possess the same characteristics.It will be up to the court to decide in every case whether such intent existed”(The Genocide Convention—Its Origin and Interpretation, reprinted in Hearings on the Genocide Convention Before a Subcomm. of the Senate Comm. on Foreign Relations, 81” Cong., 2nd Sess., 487, 498 (1950)).

1298 Pieter Drost,The Crime of State, Book II, Genocide, Sythoff, Leyden, p. 85: “Acts perpetrated with the intended purpose to destroy various people as members of the same group are to be classified as genocidal crimes although the victims amount to only a small part of the entire group present within the national, regional or local community.“

1299 Ibid., p. 89.

1300 Kayishema andRuzindana case, para. 97: ‘“in part’ requires the intention to destroy a considerable number of individuals who are part of the group.“

1301 The Prosecutor v.Ignace Bagilishema, case no. ICTR-95-1A-T, 7 June 2001 (hereinafter “Bagilishema Judgement“) para. 64: “Although the destruction sought need not be directed at every member of the targeted group, the Chamber considers that the intention to destroy must target at least a substantial part of the group.“

1302 Para. 29.

1303 Report of the Commission of Experts, UN Doc. S/1994/674, para. 94 (emphasis added).

1304 Application of the Convention of the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro), Order on further Requests for the Indication of Provisional Measures, ICJ Reports (1993), pp. 325- 795.

1305 Separate Opinion of Judge Lauterpacht, ICJ Reports (1993), p. 431.

1306 There are varying estimates as to the number of victims. The Israeli commission of inquiry put the number of victims at 800. However, according to the ICRC, no less than 2,400 people were massacred. The massacre was perpetrated over two days, on 16 and 17 September 1982.

1307 UN Doc. AG/Res.37/123D (16 December 1982), para.2. It should however be noted that the resolution was not adopted unanimously, notably, the paragraph characterising the massacre as an act of genocide was approved by 98 votes to 19, with 23 abstentions. See UN Doc. A/37/PV.108, para. 151.

1308 Jelistić Judgement, para. 83.

1309 Düsseldorf Supreme Court,Nikola Jorgić case, 30 April 1999, 3StR 215/98.

1310 Federal Constitutional Court, 2BvR 1290/99, 12 December 2000, par. 23: “The courts also do not go beyond the possible meaning of the text by accepting that the intent to destroy may relate to a geographically limited part of the group. There is support for that interpretation in the fact that STGB para. 220a [the national law integrating the Convention] penalises the intent to destroy partially as well as entirely.“

1311 Bavarian Appeals Court,Novislav Djajić case, 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation.

1312 Prosecutor's final Trial Brief, para. 412.

1313 Prosecutor's final Trial Brief, para. 420.

1314 Prosecutor's final Trial Brief, para. 423.

1315 P425.

1316 Cited in the Prosecutor's final Trial Brief, para. 425.

1317 P750, cited in the Prosecutor's final Trial Brief, para. 416.

1318 Prosecutor's final Trial Brief, para. 438.

1319 T. 10004-10005.

1320 Closing arguments, T. 10009.

1321 Final Submissions of the Accused, para. 131.

1322 Closing arguments, T. 10113.

1323 Final Submissions of the Accused, para. 133.

1324 Closing arguments, T. 10118.

1325 Closing arguments, T. 10118.

1326 Closing arguments, T. 10118-10119.

1327 Final Submissions of the Accused, paras. 141-145.

1328 Final Submissions of the Accused, para. 156.

1329 Final Submissions of the Accused, para. 161, Closing arguments, T. 10129.

1330 Final Submissions of the Accused, para. 157, 166.

1331 Closing arguments, T. 10120.

1332 Final Submissions of the Accused, paras. 146-147.

1333 Closing arguments, T. 10139.

1334 Closing arguments, T. 10140.

1335 Supra, paras. 90-94.

1336 Supra, paras. 41, 123, 153.

1337 It was eventually turned into a parking lot. P4/4 to P4/6; Ruez, T. 542-543.

1338 See Witness Halilović,supra para. 94.

1339 Para. 18 of the Indictment. In its Final Trial Brief (para. 27), the Prosecution makes reference to each head — except “committing” — mentioned in Article 7(1) as well as the “common purpose doctrine” (discussed below) as a basis for General Krstić's guilt.

1340 Cf. Article 6(1) of the Statute of the ICTR. In its Final Trial Brief (para. 3), the Prosecution incorporates by reference its submissions on Article 7 in its Pre-Trial Brief (paras 13-86). Likewise, the Defence's submissions on Article 7 in its Pre-Trial Brief (paras 13-29) are incorporated in its Final Trial Brief (para. 2).

1341 Akayesu Judgement, para. 480;Blaškić Judgement, para. 279;KordićandČerkez Judgement, para. 386.

1342 Akayesu Judgement, para. 482;Blaškić Judgement, para. 280;Kordićand Čerkez Judgement, para. 387.

1343 Akayesu Judgement, para. 483;Blaškić Judgement, para. 281;Kordićsmd Čerkez Judgement, para. 388.

1344 Tadić Appeal Judgement, para. 188;Kunarac et al. Judgement, para. 390.

1345 Aleksovski Appeal Judgement, paras. 162-164.

1346 Tadić Appeal Judgement, paras. 185-229. The Appeals Chamber in theTadić Appeal Judgement interchangeably used several other terms, such as “common purpose” liability(Tadić Appeal Judgement, para. 220), to denote the same form of participation. For reasons discussed below, the Trial Chamber proposes to apply the label “joint criminal enterprise”throughout this Judgement. Trial Chamber II recently discussed joint criminal enterprise liability in detail inProsecutor v. Radoslav Brdanin and Momir Talić, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, Case No. IT-99-36-PT, 26 June 2001 (the ‘Ta/ic'Decision“).

1347 The Trial Chamber notes in this regard that the Appeals Chamber held that: “Although greater specificity in drafting indictments is desirable, failure to identify expressly the exact mode of participation is not necessarily fatal to an indictment if it nevertheless makes clear to the accused the ‘nature and cause of the charge against him.'”Celebić Appeal Judgement, para. 351.

1348 Furundžija Judgement, para. 189;Kupreškić Judgement, para. 746;Kunarac et al. Judgement, para. 388.

1349 Prosecutor's Pre-trial Brief, paras. 21-27. The Prosecution refers to joint criminal enterprise liability as “co-perpetration;” the Appeais Chamber has in fact employed this term in this sense(Tadić Appeal Judgement, paras. 196, 228;Furundžija Appeal Judgement, para. 118). The Prosecution further considers “co-perpetration” to be a form of “committing.“

1350 Defence's Pre-trial Brief, paras. 18-19.See also para. 21 of the Prosecutor's Pre-trial Brief annexed to the Prosecutor's Submission of Agreed Matters of Law Presented During the Pre-trial Conference of 7 March 2000, dated 8 March 2000. On the Defence's objection to the joint criminal enterprise doctrine,see para,supra.

1351 See Indictment,e.g., paras. 6-11.

1352 Para. 19 of the Indictment.

1353 See, e.g., BlaškićJudgement, para. 294;Kunarac et al. Judgement, para. 395.

1354 Likewise,Kayishema andRuzindana Judgement, para. 223;Blaškić Judgement, para. 337.

1355 Paras. 38-51,337.

1356 Murder, cruel and inhumane treatment (including terrorisation, destruction of personal property and forcible transfer) — count 6.

1357 Forcible transfer — count 8.

1358 Supra paras. 340, 344.

1359 Supra paras. 340, 354.

1360 Tadić Appeal Judgement, para. 227.

1361 Tadić Appeal Judgement, para. 227(ii). The Appeals Chamber reaffirmed this statement in theFurundžija Appeal Judgement, para. 119.

1362 The Prosecution submits that it is not required that each participant fulfils different elements of theactus reus of the crime; it suffices that each participant makes an essential contribution to the execution of the crime (Prosecutor's Pre-Trial Brief, para. 23). In this respect, the Defence formulates its reservation to the joint criminal enterprise doctrine as follows: “it is necessary [… ] to specify among theactus rei each individual act committed by each perpetrator.” (Defence's Pre-Trial Brief, para. 18).

1363 Tadić Decision, para. 43.

1364 Supra para. 344.

1365 Tadić Appeal Judgement, para. 228.

1366 Talić Decision, para. 31 (emphasis in original). Since members of the joint criminal enterprise may incur liability for crimes committed by other members which falloutside the object of the common plan, the Trial Chamber agrees that the doctrine is best referred to as “joint criminal enterprise,” rather than “common purpose” liability(Talić Decision, para. 37). Furthermore, it is noteworthy that in regard to responsibility for a crime falling outside the object of the joint enterprise, theTalić Decision explains that the requirement that such a crime be a “natural and foreseeable” consequence of the execution of the enterprise, “is anobjective element of the crime, and does not depend upon the state of mind on the part of the accused.” The requirement that the accused was aware that the commission of such a crime was a possible consequence of the execution of the enterprise, “is thesubjective state of mind on the part of the accused which the prosecution must establish.”Talić decision, para. 30 (emphasis in original).

1367 Forcible transfer — count 8.

1368 Murder, and cruel and inhumane treatment (including terrorisation, destruction of personal property and forcible transfer) — count 6.

1369 Count 1 of the Indictment.

1370 Count 2 of the Indictment.

1371 Count 6 of the Indictment.

1372 Count 3 of the Indictment.

1373 Count 4 of the Indictment.

1374 Count 5 of the Indictment.

1375 Supra, para. 470.

1376 Richard Butler, VRS Corps Command Responsibility Report, Section Two, para. 2.6 (P401). In his Report, Prosecution military expert Mr Butler refers to, amongst others, para. 66 of the JNA Rules for Land Forces Corps (Provisional) (P402/4) and Article 11 of the JNA Regulations on the Responsibilities of the Land Army Corps Command in Peacetime (P402/10). On the applicability of these instruments of the former Yugoslav National Army to the Army of Republika Srpska,see infra. On the responsibilities of the VRS Corps Chief of Staff,see also the testimony of Prosecution military expert General Dannatt, T. 5578.

1377 Supra paras. 363-379, 465-472.

1378 Supra paras. 220-225.

1379 Supra para. 449.

1380 Supra para. 450.

1381 Supra para. 451.

1382 Supra para. 452.

1383 Supra para. 453.

1384 Supra para. 266.

1385 Supra para. 330.

1386 Butler Report; Statement of Major General F.R. Dannatt, Military Expert (P385 A).

1387 Prof. Dr. Radovan Radinović, Retired General, Military Expert Testimony of Srebrenica (D160).

1388 The Trial Chamber accepts that these JNA documents were the regulatory foundation of the VRS; it understands this to be the position of General Radinović.See Butler Report, para. 1.4; Radinović, T. 7997-7998.

1389 Krstić, T. 6341.

1390 Krstić, T. 6342.

1391 Radinović, T. 7809, 7999. P402/7 contains The Instructions on How the 4tK Corps Command is to Operate When Carrying out Priority Assignments in Peacetime and Wartime.

1392 Butler Report, para. 2.0, referring to page 14 of the Instructions on How the 4th Corps Command is to Operate When Carrying out Priority Assignments in Peacetime and Wartime; Radinović, T. 8011.

1393 P142/40.

1394 Signed into effect by the President of Republika Srpska on 18 August 1992. P142/24.

1395 See Radinović Report, Chapter III, para. 3.7. General Radinović testified that “the [… ] Corps Commander [… ] does not share his command responsibility with anybody at all.” (T. 8019). Mr Butler testified that “[the Commander] is legally empowered with the authorities and the responsibilities to command and direct the activities of his, in this case, corps.” (T. 4754-4755).See also Dannatt Report, para. 26. The evidence does not establish that the 10th Sabotage Detachment and the MUP were re-subordinated to the Drina Corps, however, and General Krstić's formal powers therefore did not extend to these troops(supra paras. 278-290).

1396 Supra, para. 312.

1397 Supra, para. 318.

1398 Supra, para. 312.

1399 Supra, para. 322.

1400 Supra, para. 322.

1401 Witness JJ was told by General Zivanovic that General Mladić had informed him between 15 and 20 June 1995 that General Krstić was going to replace him as Corps Commander. General Zivanovic also told the witness that General Krstić was anxious to be in command. T. 9683, 9708.

1402 Supra, para. 323.

1403 Supra, para. 380.

1404 Supra, paras. 386 and 401.

1405 Prosecutor's Pre-Trial Brief, .06-107. During closing argument, the Prosecution submitted that General Krstić “had the genocidal intent from the beginning, he maintained it throughout, and that complicity for genocide would require some leaps of faith based principally on General Krstić's testimony. We don't think that the interpretation should be given to the facts in this case that he is culpable of only complicity.” T. 10020.

1406 Defence's Final Trial Brief, para. 123.

1407 Defence's Final Trial Brief, paras. 124-128.

1408 In this respect, it is noteworthy that the ICC Statute includes asingle provision on individual criminal responsibility — Article 25 — which is applicable to all crimes within the jurisdiction of the ICC, including genocide.

1409 The Report of the Secretary-General states that “the [Genocide] Convention is today considered part of international customary law as evidenced by the International Court of Justice in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951.” Report of the Secretary-General, para. 45 (footnote omitted).

1410 The Trial Chamber notes that inAkayesu andMusema ICTR Trial Chamber I pronounced on the elements of “complicity in genocide.” However, the Trial Chamber interpreted “complicity” in accordance with the Rwandan Penal Code, which is why this jurisprudence is only of limited value to the present case.See Akayesu Judgement, paras. 537, 540;Musema Judgement, paras. 179, 183.

1411 Tadić Appeal Judgement, paras. 220, 223 (emphasis provided).

1412 Prosecutor v.Radoslav Brdanin and Momir Talić, Decision on Motion by MomirTalić for Provisional Release, Case No. IT-99-36- PT, 28 March 2001, paras. 40-45.

1413 According to the Appeals Chamber: “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers.”Aleksovski Appeal Judgement, para. 113.

1414 Celebici Appeal Judgement, para. 338.

1415 Kordić and Čerkez Judgement, para. 373.

1416 The Trial Chamber notes in this respect that Article 141 of the Criminal Code of Republika Srpska (P402/98) provides with regard to genocide that he whoorders the commission of genocidal acts orcommits such acts shall be punished by imprisonment of at least five years or by the death penalty. This supports the finding that the category of principle perpetrators of genocide is not limited to thosephysically committing acts of genocide. On 21 July 1993, the National Assembly of Republika Srpska adopted — with minor amendments unrelated to the above provision — the Criminal Code of the Socialist Federative Republic of Yugoslavia and renamed it the “Criminal Code of Republika Srpska.”See Law on Amendments to the Criminal Code of the Socialist Federative Republic of Yugoslavia (P402/58).

1417 Since it cannot be concluded beyond reasonable doubt that Drina Corps troops — or other troops under the effective control of General Krstić — were responsible for the terror crimes at Potocari (FM, para. 155), the Trial Chamber cannot conclude that General Krstić incurs liability for these crimes under Article 7(3).

1418 This is the first test under Article 7(3)(Celebić Appeal Judgement, paras 186-198, 266). In the case in point, there is no evidence to rebut the presumption that as Commander of the Drina Corps, General Krstić's de jure powers amounted to his effective control over subordinate troops(Celebić Appeal Judgement, para. 197). To the contrary, the evidence on the record confirms that as Corps Commander General Krstić was firmly in charge of his troops. Conversely, it has not been established that General Krstić exercised formal powers over the 10 th Sabotage Detachment and the MUP. In the absence of other conclusive evidence that he in reality did exercise effective control over these troops, General Krstić cannot be said to incur command responsibility for their participation in the crimes.

1419 P402/76

1420 Krstić, T. 6346-6347.

1421 Exhibit 402/68; Guidelines, p. 8.

1422 Radinović, T. 8057.

1423 Radinović, T. 8466.

1424 Supra, para. 477.

1425 Krstić, T. 6350-6351, 6358, 7422.

1426 Krstić, T. 6347..

1427 Butler, T. 5474-5. General Dannatt testified likewise, stating that: “I don't believe I have come across an incident in the Balkans whereby a general who refused to follow orders has been shot. […] I think there are cases of people being removed or dismissed from their position, which is quite common in military matters.” Dannatt, T. 5685.

1428 Supra, paras. 334, 417.

1429 Rule 87(B).

1430 The Rule was last amended at the Twenty Third Plenary Session in December 2000 and, since it may be construed as more favourable to the accused than the previous one, is applicable in this case.

1431 Rule87(D).

1432 Celebić Appeal Judgement, paras. 400et seq.

1433 Jelisić Appeal Judgement, para. 82.

1434 The submissions were filed before theJelisić Appeals Judgement was rendered.

1435 Prosecution Final Trial Brief, para. 472.

1436 The Prosecutor v. Krstić, Decision on Defence Preliminary Motion on the form of the Amended Indictment, Case No. IT-98-33-PT, 28 January 2000, pp. 400.

1437 Celebić Appeal Judgement, para. 400.

1438 The genocide is perpetrated through the killings of the group and through serious bodily to mental harm caused to members of the group.

1439 The offence of persecutions is perpetrated through murder of thousands of bosnian Muslim civilians, including men, women, children and elderly persons, the cruel and inhumane treatment (including severe beatings) of Bosnian Muslim civilians, the terrorising, the destruction of personal property of Bosnian Muslim civilians and the deportation or forcible transfer of Bosnian Muslims from Srebrenica.

1440 Prosecution Final Trial Brief, para. 473. It should be noted that the Prosecution seems to have misread theCelebić Test, which is detailedinfra in (ii) “the Test laid down by the Appeals Chamber in theCelebić case.“

1441 Final Submission of the Accused, para. 399.

1442 Final Submission of the Accused, para. 400, p. 124.

1443 Final Submission of the Accused, para. 400, p. 124.

1444 Final Submission of the Accused, paras. 397, 398.

1445 Celebić Appeal Judgement, para. 412.

1446 Celebić Appeal Judgement, para. 413.

1447 Celebić Appeal Judgement, para. 424. Also, on the question of whether entering cumulative convictions under Articles 2 and 3 is permissible, the Appeals Chamber in theCelebić case stated that “It should also be borne in mind that Article 2 applies to international conflicts, while Article 3 applies to both internal and international conflicts. However, this potentially distinguishing element does not come into play here, because the conflict at issue has been characterised as international as well.” Footnote 652.

1488 The armed conflict requirement in Article 5's chapeau has been characterised by the jurisprudence of the Tribunal as not a substantive requirement for cumulative convictions purposes. It is however a jurisdictional requirement for the application of Article 3 of the Statute.Jelisić Appeal Judgement, para. 82. See alsoTadić Jurisdiction Decision andTadić Appeal Judgement, para. 249.

1449 The Trial Chamber has found that the transfer of the Bosnian Muslim civilians from Potocari to areas controlled by Muslim forces is to be characterised as forcible transfer and not as deportation.See supra, para. XX (genocide part).

1450 Tadić Judgement, para. 729 (citing the ILC Draft Code, p. 103).

1451 Supra, para. 670.

1452 Jelisić Appeal Judgement, para. 82.

1453 Tadić Jurisdiction Decision, para. 141: “It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed, as the Prosecutor points out, customary international law may not require a connection between crimes against humanity and armed conflict at all…“

1454 Prosecutor v. Tadić, Decision on Defence Motion on the Form of the Indictment, Case No IT-94-1-PT, 14 November 1995, para. 11,

1455 The question of whether genocide is an autonomous crime or an aspect of a crime against humanity was discussed during the drafting of the genocide Convention. Many delegates were firm in their views that the two concepts of genocide and crimes against humanity should be kept separate and theAd hoc Committee rejected the proposition to have the preamble describe genocide as “a crime against humanity.” The Polish delegate expressed the view held by representatives of theAd hoc Committee that while it is true that genocide is a crime against humanity, to state that in the Genocide Convention would overreach the provisions of General Assembly Resolution 180(11).See, W. Schabas, Genocide in International Law, p 64. Similarly, the ICTY in theKaradzic and Mladić case held that the genocidal “intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group — acts which are not in themselves covered by the list in Article 4 (2) but which are committed as part of the same pattern of conduct.” Consideration of the Indictment within the framework of Rule 61, para. 94. The ICC Statute indicates clearly that genocide requires that “the conduct took place in the context of a manifest pattern of similar conduct,” repeating the requirement that crimes against humanity are not perpetrated as isolated or random acts but are part of pattern of similar acts. Report of the Preparatory Commission for the ICC.

1456 Supra, para. 498.

1457 In theKaradzic and Mladić case, the Trial Chamber considered that the definition of genocide requires “a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership” transcript on hearing on 27 June 1996, p. 15.

1458 Prosecution Final Trial Brief, para. 467.

1459 Defence Closing Argument, T. 10148.

1460 Aleksovski Appeal Judgement, para. 107.

1461 See in particular,Kunarac judgement, paras 836et seq.; Kordić Judgement, para. 847.

1462 Rule 101 defines the weight to be placed upon the provisions of Article 24 when determining the appropriate sentence. Rule 101 provides in full that: (A)A convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person's life. (B)In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 24, paragraph 2, of the Statute, as well as such factors as: (i)any aggravating circumstances; (ii)any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; (iii)the general practice regarding prison sentences in the courts of the former Yugoslavia;(iv)the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 10, paragraph 3, of the Statute. (C)The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.(D)Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal.

1463 In particular, as to the sentence to be imposed for cumulative convictions, the Appeals Chamber in theCelebia case held that ”… the overarching goal in sentencing must be to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender […]. The decision as to how this should be achieved lies within the discretion of the Trial Chamber,”Celebia Appeal Judgement, para. 430.

1464 Most of the Trial Chambers of the ICTY have rendered judgements imposing multiple sentences, but theJelisić, Blaškić, Kordić, Kunarac, Kambanda andSerushago Judgements imposed single sentences as in the cases before the Nuremberg and Tokyo Military Tribunals.

1465 Tadić Sentencing Judgement II, para. 12;Furudžija Judgement, para. 285;Aleksovski Judgement, para. 242;Kordić Judgement, para. 849;Kunarac Judgement, para. 859. The ICTR adopts,mutatis mutandis, a similar position:Kambanda Judgement, para. 23;Akayesu Sentence para. 12-14;Kayishema Sentence, paras. 5-7.

1466 See Chapter XVI of the criminal code of the former Yugoslavia “Crimes Against Humanity and International Law: Articles 141 and 142(1) dealt with the crimes of genocide and other war crimes committed against civilians.See also Articles 142-156 and Articles 38 “Imprisonment,” 41 “Sentences,” and 48 “Coincidence of several offences.” Crimes against peace and international law, including the crime of genocide and war crimes against a civilian population, were punishable by a sentence of 5-15 years in prison, by the death penalty or by 20 years in prison if a prison sentence was substituted for the death penalty, or in cases of aggravated homicide.

1467 Article 41(1) of the criminal code of the SFRY states: “The court shall determine the sentence for the perpetrator of a given crime within the limits prescribed by the law for this crime, bearing in mind the purpose of the punishment and taking into account all the circumstances that could lead to this sentence being more or less severe, in particular: the degree of criminal responsibility, the motives of the crime, the degree of the threat or damage to protected property, the circumstances under which the crime was committed, the background of the perpetrator, his personal circumstance and behaviour after the commission of the crime as well as other circumstances which relate to the character of the perpetrator.“

1468 KordićJudgement, para. 849.

1469 TadićSentencing Judgement II, para.12. 1470.Report of the Secretary General, paras 111-112.

1471 CelebiaJudgement, para. 1225.

1472 CelebiaAppeal Judgement, para. 741.

1473 CelebiaAppeal Judgement, paras. 756-758.

1474 Prosecution Final Trial Brief, para. 468 (citingBlaškic Judgement, para. 800, itself citingKambanda judgement, para. 9, 16).

1475 Tadić Sentencing Judgement III, para. 69 and the Separate Opinion of Judge Shahabuddeen. The Appeals Chamber, and subsequently Trial Chambers confirmed this assertion.Furundžja Judgement, paras 240 to 243;Kunarac Judgement, para. 851. In the opposite sense,see Separate Opinion of Judge Cassese appended to theTadić Sentencing Judgement III, para.14, where it is stated that crimes against humanity are more serious than war crimes because of “a whole pattern of criminality” within which they are committed and the intent of the perpetrator of the crime who must be aware of the said pattern. Also see the Joint Separate Opinions of Judge McDonald and Judge Vohrah appended toErdemović Appeal Judgement, paras 20et seq. and Separate and Dissenting Opinion of Judge Li appended to theErdemović Appeal Judgement, paras 19et seq. See also the Declaration of Judge Vohrah appended to theFurundžja Appeal Judgement, in particular paras. 5et seq.

1476 In this regard, the Trial Chamber in theTadić case held that ”… What is to be punished by penalty is the proven criminal conduct…”Prosecutorv.Tadić, Decision on Defence Motion on the Form of the Indictment, iT-94-l-PT, 14 November 1995.

1477 Tadić Sentencing Judgement III, para. 69.

1478 CelebiaJudgement,para.1226.

1479 Prosecutor's Final Brief, para. 469;see also Erdemović Appeal Judgement, para.15,theKambanda Judgement, para.42,Kayishema Sentence, para. 26;Kordić Judgement, para. 852.

1480 Furundžija Judgement, para. 283.

1481 Prosecution Final Trial Brief, para. 471.

1482 Celebić Judgement, para. 1268.

1483 Jelisić Judgement, para. 132.

1484 Kayishema Sentence, para. 18;Blaškić Judgement, para. 787;Kordić Judgement, para. 852.

1485 In the opposite sense,Kunarac judgement, which refers to the fact that some crimes stretch over a long period or are committed repeatedly as an aggravating circumstance, para. 865. This fact seems to enter in the quantitative assessment of the crimes.

1486 TarficJudgement; theCelebić (paras.1226, 1260, 1273),Furundžija (paras 281etseq.) and Blaškić (para. 787) Judgements.

1487 Blaškić Judgement, paras. 779 and 780.

1488 Erdemović Sentencing Judgement, para. 110, andErdemović Sentencing Judgement II, para. 16(1).

1489 In many national jurisdictions, the law specifically identifies those aggravating circumstances,e.g. Criminal Law (Sentencing) Act of South Australia, (1988), Section 10; United States of America Federal Sentencing Guidelines. In some jurisdictions, the judge cannot consider any other aggravating circumstances than those provided by the law,e.g. French Criminal Code, articles 132.71et seq. (in general) for instance; Dutch Criminal Code, Articles 10, 57, 421-423 for instance.

1490 Prosecution Final Trial Brief, para. 471.

1491 Kambanda Judgement, para. 44,Kupreškić Judgement, para. 862;Rutaganda Judgement, para. 470 andAkayesu Judgement, para. 36.

1492 Rutaganda Judgement, para. 469: “the fact that a person in a high position abused his authority and committed crimes is to be viewed as an aggravating factor.”Kambanda Judgement, para. 44. In this regard, the Appeals Chamber reduced the sentence imposed on Dusko Tadić from 25 to 20 years stating that “there is a need for sentences to reflect the relative significance of the role of the [accused] and [… to take into account] his level in the command structure, [which] was law,”Tadić Sentencing Judgement 111, paras 55-57.

1493 Sentences imposed by the ICTY on subordinates are of an average of 15 years imprisonment as opposed to sentences imposed on superiors, which are of an average of 17 years imprisonment.

1494 Prosecution Final Trial Brief, para. 471.

1495 The Defense submits that the true motive for the murders of the Bosnian Muslim men, were vengeance and punishment, for failing to surrender following General Mladić's invitation to do so. Defence Closing Arguments, T. 10157.

1496 Blaštić Judgement, para. 785.

1497 Serushago Sentence, para. 30.

1498 Jelisić Judgement, paras 130-131; see also theTadić Sentencing Judgement, para. 57 and theTadić Sentencing Judgement II, para. 20: the enthusiastic support for the attack launched against the non-Serbian civilian population.

1499 Kordić Judgement, para. 848.

1500 Prosecution Closing Arguments, T. 10011.

1501 Furundžija Judgement, para. 282. For instance, participation as an aider or abettor,e.g. in the crime of genocide, may range from providing information, resources, or covering-up the crimes, to leading the execution squads.

1502 Defined as: “imminent threats to the life of an accused if he refuses to commit a crime,” Joint Separate Opinion of Judges McDonald and Vohrah appended to theErdemović Appeal Judgement, para. 66.

1503 Joint Separate Opinion of Judges McDonald and Vohrah appended to theErdemovićAppeal Judgement, para. 88.

1504 Jelistić Judgement, para. 124,Furundžija, para. 284.

1505 Jelistić Judgement, para. 125.

1506 Rules of Procedure and Evidence, Rule 67(A)(ii)(b): “diminished or lack of mental responsibility.“

1507 Erdemović Judgement, para. 16(i);Akayesu Sentencing Judgement, para. 35 (iii), but not in theCelebia Judgement, para. 1256.

1508 Celebić Judgement, para. 1283.

1509 Kupreškić Judgement, para. 853;Serushago Sentence, para. 35;see also theMusema Judgement, para. 1007;see also on contraryKambanda Judgement, para. 51;Akayesu Sentencing Judgement, para. 35 (i),Serushago Sentence, paras 40 and 41,Ruggiu Judgement, paras 69-72,Kunarac Judgement, para. 869; fi/asfcic'Judgement, para. 780.

1510 Blaškić Judgement, para. 774.

1511 Blaškić Judgement, para. 774, theErdemović Sentencing Judgement, paras 99-101 and theErdemović Sentencing Judgement II, para. 16(iv), and theKambanda Judgement, para. 47.

1512 Kunarac Judgement, para. 868.

1513 Musema Judgement, para. 1007. Idem in theRuggiu Judgement, para. 53: a guilty plea accelerates the proceedings and makes it possible to save resources.

1514 Idem and in the contrary sense,Celebić Judgement, para. 1244:Mucic?s lack of respect for the judicial process, attempts to fabricate evidence and influence witnesses are taken to be aggravating circumstances.

1515 Prosecution Closing Arguments, T. 10011.

1516 Celebić Judgement, para. 1270.

1517 Supra, paras. 90-94.See also Witness I, T. 2420-22: “And 8.000 Srebrenica inhabitants are missing, and we must all know that. We must all know that there must have been children, poor people, between 16.000 and 20.000, and one needs to feed them all, to bring them up. There are so many fathers without sons and sons without fathers. I had two sons, and I don't have them any more. Why is that? And I lived and I worked in my own home, nobody else's, and that was — that same held true for my father and my grandfather, but what they seized, what they took away, what they grabbed. I had two houses. One they burnt down. It could burn. They burnt it down, but the other one they couldn't burn, so they came and put a mine to it because the house was new and I hadn't finished it yet. The roof was still missing, but it was all made of concrete and bricks, so it wouldn't burn. And I thought. Well, it will survive at least. But no, they came and planted mines, and it just went down; nothing but bust. But, right. Never mind that.I had it, so it's gone. They took it. They seized it. But why did they have to kill my sons? “And I stand today as dried as that tree in the forest. I could have lived with my sons and with my own land, and now I don't have either. And how am I supposed to live today? I don't have a pension or anything. Before that, I relied on my sons. They wouldn't have left me. They wouldn't have let me go hungry. And today, without my sons, without land, I'm slowly starving.“

1518 In late December 1994, General Krstić was seriously injured when he stepped on a landmine. He was evacuated to a military hospital in Sokolac, and subsequently transferred to the Military Medical Academy in Belgrade. As a result of the injuries he sustained from the landmine, part of his leg was amputated and he remained in rehabilitation and on leave until mid May 1995.

1519 Rule 101 (D).