The Sentencing Determinants of the International Criminal Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis

Leiden Journal of International Law

Volumn 16, Issue 4, 2003, Pages 717-750

  Meernik, James ^a   King, Kimi ^a  

^a UNIVERSITY OF NORTH TEXAS   (United States)

Author keywords

fairness; sentencing

Indexed keywords

EID: 17444403668     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156503001419     Document Type: Article

References (92)

1. Prosecutor v. Zejnil Delalić, ZdravkoMucić, HazimDelić, and Esad Landžo (čelebić i case), IT-96-21, Trial Chamber Judgement, 16 Nov. 1998, at para. 756.
2. J.Meernik, ‘Equality ofArms? The IndividualVersus the international communityinWarCrimesTribunals’, (2003) 86 Judicature 312; J. Meernik, ‘Victor's Justice or the Law’, (2003) 47 Journal of Conflict Resolution 140; J. Meernik and K. King, ‘The Effectiveness of International Law and the ICTY-Preliminary Results of an Empirical Study’, (2002) 1 International Criminal Law Review 343.
3. S. Johnson, ‘On the Road to Disaster: The Rights of the Accused and the International Criminal Tribunal for the FormerYugoslavia’, (1998) 10 InternationalLegalPerspectives 111; A.N.Keller, ‘PunishmentforViolations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR’, (2001) 12 Indiana International andComparative LawReview 53; M. M. Penrose, ‘LestWe Fail: The Importance of Enforcement in International Criminal Law’, (2000) 15 American University International Law Review 321.
4. C. B. Coan, ‘Rethinking the Spoils of War: Prosecuting Rape as a War Crime in the International Criminal Tribunal for the Former Yugoslavia’, (2000) 26 North Carolina Journal of International Law and Commercial Regulation 183; S. D. Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’, (1999) 93 AJIL 57, at 91-2; J. Green, ‘Affecting the Rules for the Prosecution of Rape and other Gender-Based Violence Before the International Criminal Tribunal for the Former Yugoslavia: A Feminist Proposal and Critique’, (1994) 5 HastingsWomen's Law Journal 171.
5. As a practical matter, the ICTY's standing authority really allows the victim to seek redress in the national courts, which thus far has proven ineffectual. While there are some provisions for the return of property, to date these have been inconsequential. Sentencing of convicted defendants is really the greatest power the ICTY has. M. Ellis and E.Hutton, ‘Policy Implications ofWorldWar II Reparations and Restitution asApplied to the Former Yugoslavia’, (2002) 20 Berkeley Journal of International Law 342.
6. When the Rules were amended, Rule 88 (public delivery and manner of the judgement) was moved to Rule 98 ter.
7. S. Beresford, ‘Redressing the Wrongs of the International Justice System: Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals’, (2002) 96 AJIL 628.
8. It is arguable that they did so in the Krstić case where he was 53 at the time of sentencing and received a sentence of 46 years. Prosecutor v. Radislav Krstić, IT-98-33, Trial Chamber Judgement, 2 Aug. 2001.
9. When both the ICTY and the ICTR were established the United States supported a position that the death penalty should be applicable for purposes of retribution and deterrence. While it continues to be a subject of debate, the death penalty has been abolished by a majority of UN members, and states within the former Yugoslavia have also moved that way. Slovenia (in 1989) and Croatia (1990) abolished the death penalty for all crimes prior to their independence from the Socialist Federal Republic of Yugoslavia, while Bosnia-Herzegovina abolished it for specified categories of crimes in 1997. Yugoslavia (Serbia and Montenegro) outlawed its usage for ordinary crimes only in 2002. Provisions for the death penalty were ultimately rejected, in part, due to principles of humanitarian law. See W. A. Schabas, ‘Sentencing by International Tribunals: A Human Rights Approach’, (1997) 7 Duke Journal of Comparative and International Law 461. Even so, one study found that about one in three persons surveyed in Zagreb and Sarajevo believe that the death penalty should be imposed for convicted war criminals. S. K. Ivkovic, ‘Justice by the International Criminal Tribunal for the Former Yugoslavia’, (2001) 37 Stanford Journal of International Law 255, at 323.
10. For an in-depth discussion of sentencing and its goals see N. N. Kittrie, E. H. Zenhoff, V. A. Eng, Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2002). For an analysis of sanctions and punishment in international law, see The Rights International Companion to Criminal Law and Procedure: An International Human Rights and Humanitarian Law Supplement (1999).
11. M. J. Aukerman, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’, (2002) 15 Harvard Human Rights Journal 39, at 77-8.
12. For an excellent summary of the background materials and drafting of the Statute, see V. Morris and M. P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vols. I and II (1995).
13. The full title,while not commonly known or referred to, is ‘The 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’. For a summary discussion of the goals and tools of the institution for carrying out the UN mandate, seeM. P. Scharf, ‘The Tools for Enforcing International Criminal Justice in the NewMillennium: Lessons from the Yugoslavia Tribunal’, (2000) 49 DePaul Law Review 925.
14. UN Security Council Resolution 827, 25 May 1993, online at http://www.un.org/Docs/scres/1993/scres93.htm.
15. Statement of UN Under-Secretary for Legal Affairs Carl-Aug. Fleischhauer, cited in G. de Bruin, ‘Yugoslavia: War Crimes Tribunal Inaugurated in The Hague’, Inter Press Service, 17 Nov. 1993, available at 1993 WL 2532943.
16. W. G. Sharp, ‘The International CriminalTribunal for theFormerYugoslavia:Defining theOffenses’, (1999)23 Maryland Journal of International Lawand Trade 15, at 20-6. For information about sentencing in international humanitarian law, see D. B. Pickard, ‘Proposed Sentencing Guidelines for the International Criminal Court’, (1997) 20 Loy. L. A. International and Comparative Law Journal 123.
17. Prosecutor v. Duško Tadić, IT-94-1, Trial Chamber Judgement, 7May 1997.
18. Prosecutor v. Drazen Erdemović, IT-96-22, Trial Chamber Judgement, 29 Nov. 1996, at para. 64.
19. Prosecutor v. Zoran Kupreskić, Mirjan Kupreskić, Vlatko Kupreskić, Drago Josipović, Dragan Papić, Vladimir Santić, IT-95-16, Trial Chamber Judgement, 14 Jan. 2000, at para. 848; Prosecutor v.Dragoljub Kunarać, Radomir Kovac, and Zoran Vuković, IT-96-23 and 96-23/1, Trial Chamber Judgement, 22 Feb. 2001, at para. 838.
20. Aukerman, Trial Chamber Judgement note 14, at 54.
21. In at least one case the trial chamber argues that retribution focuses onplacating the victim, but the Chamber also found that retribution is not reason enough to punish or by itself a ‘desirable basis for sentencing in offences’. Prosecutor v. Delalić et al., Aukerman note 1, at para. 1252.
22. Prosecutor v. Goran Jelisić, IT-95-10, Trial Chamber Judgement, 14 Dec. 1999, at para. 116.
23. The Blaškić opinion points out that in the Tadić, čelebić i, and Furundžija cases, the chambers emphasized the victims’ suffering as an aggravating factor. Prosecutor v. Tihomir Blaskić, IT-95-14, Trial Chamber Judgement of 3March 2000, at para. 787.
24. Judges have been reluctant to focus on whether the actual individual would be likely to re-offend. In most instances, the defendants have had no prior criminal record, and the circumstances surrounding their behaviour are unlikely to be repeated. Prosecutor v. Kunarać et al., The Blaškić opinion points out that in the Tadić note 23, at para. 840.
25. See M. Simons, ‘UN.War Crimes Tribunal Steps Up its Inquiry into Kosovo’,NewYork Times, 26 Aug. 1998, at A4; P. Shenon, ‘Kosovo's Crisis Is Bad, and GettingWorse’, New York Times, 16 Sept. 1998, at A8.
26. C. Bassiouni, ‘Searching for Peace and Achieving Justice: The Need for Accountability’, (1996) 59 Law and Contemporary Problems 9, at 11-12. See also D. S. Bloch and E.Weinstein, ‘Velvet Glove and Iron Fist: A New Paradigm for the PermanentWar Crimes Court’, (1998) 22Hastings International and Comparative Law Review 1 (accusing the trials of being a ‘farce’ and ‘attempts to salve guilty Western consciences'). The Security Council and the General Assembly have questioned the length of trials and the limited number of persons to have been put on trial. Report of the Advisory Committee on Administrative and Budgetary Questions, UN Doc. A/54/874 (2000) (questioning delays and costs). Strong criticism has come from women's groups regarding the treatment of rape prosecutions and sexual assault cases. See K. D. Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslavia and Rwandan Tribunals: Current Status’, (1999) 93 AJIL 33; C. Niarchos, ‘Women,War and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia’, (1995) 17 HRQ 649; A. M. Hoefgen, ‘ThereWill Be No Justice UnlessWomen Are Part of That Justice: Rape in Bosnia, the ICTY and “Gender Sensitive” Prosecution’, (2000) 14Wisc.Womens’ Law Journal 155; and P. H. Davis, ‘The Politics of Prosecuting Rape as aWar Crime’, (2000) 34 International Lawyer 1223.
27. V. M. Creta, ‘Comment: The Search for Justice in the FormerYugoslavia and Beyond’, (1998) 30 Houston Journal of International Law 381.
28. University of California Berkeley InternationalHuman Rights Law Clinic andUniversity of SarajevoHuman Rights Centre, ‘Justice, Accountability, and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors’, (2000), at 34 (hereafter Berkeley-Sarajevo 2000 study). Available online at http://www. law. berkeley. edu/cenpro/clinical/JUDICIAL%20REPORT%20ENGLISH.pdf. Note that because the research is part of an ongoing project, it also appeared as a law review article. See University of California Berkeley International Human Rights Law Clinic and University of Sarajevo Human Rights Centre, ‘Report: Justice, Accountability, and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors’, (2000) 18 Berkeley Journal of International Law 102.
29. P.M.Wald, ‘TheInternational CriminalTribunal for the FormerYugoslaviaComesofAge: SomeObservations on Day-to-Day Dilemmas of an International Court’, (2001) 5Washington University Journal of Law and Policy 87; G. K.McDonald, ‘Reflections on the Contributions of the International Criminal Tribunal for the Former Yugoslavia’, (2001) 24 Hastings International and Comparative Law Review 155; M. P. Scharf, ‘A Critique of the YugoslaviaWar Crimes Tribunal’, (1997) 25 Denver Journal of International Law and Policy 305; D. Tolbert, ‘The Evolving Architecture of International Law: The International CriminalTribunal for the FormerYugoslavia-Unforeseen Successes and Foreseeable Shortcomings’, (2002) 26 Fletcher Forum ofWorld Affairs 7; J. L. Falvey, Jr., ‘UnitedNations Justice orMilitary Justice:Which is theOxymoron?AnAnalysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’, (1995) 19 Fordham International Law Journal 475 (1995); L. Arbour, ‘The Status of the International Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results’, (1999) 3 Hofstra Law and Policy Symposium 37.
30. Cf. Meernik, and Meernik and King, ‘TheInternational CriminalTribunal for the FormerYugoslaviaComesofAge: SomeObservations on Day-to-Day Dilemmas of an International Court’ note 2.
31. Quoting former UN Human Rights Commissioner José Anala Lassa as cited in M. P. Scharf, Balkan Justice (1997), at xiv.
32. For criticisms relating to the ICTR see Penrose, Quoting former UN Human Rights Commissioner José Anala Lassa as cited in M. P. Scharf note 3. For criticisms about sexual assault cases, see Green, Quoting former UN Human Rights Commissioner José Anala Lassa as cited in M. P. Scharf note 7.
33. Berkeley-Sarajevo 2000 study, For criticisms relating to the ICTR see Penrose note 35; and Ivkovic, For criticisms relating to the ICTR see Penrose note 12.
34. Coan, Ivkovic note 7, at 227-230.
35. Prosecutor v. Blaskić, Coan note 29, at para. 75.
36. The Socialist Federal Republic of Yugoslavia Penal Code, Ch. 16 contains 16 provisions that address war crimes and crimes against humanity. Arts. 141-4 contain the relevant provisions applicable in the Erdemović case (http://pbosnia.kentlaw.edu/resources/legal/bosnia/criminalcode_fry.htm).
37. This problem is aggravated by practices of the former Yugoslavia which arguably allowed victims greater participation in the process than has been allowed by the ICTY. These practices did not allow for the use of plea-bargaining typical of common law systems. Arts. 52-66 of the Yugoslav Criminal Procedure Code allow victims to be active in the prosecution of criminal cases. There are also issues regarding the impact of compensation for victims, given their more active participation (see Arts. 103-14). See Ivkovic, The Socialist Federal Republic of Yugoslavia Penal Code note 12, at 287, and Schabas, The Socialist Federal Republic of Yugoslavia Penal Code note 12, at 495-96. Beresford, The Socialist Federal Republic of Yugoslavia Penal Code note 10. Plea-bargaining is discussed infra, notes 56-65 and accompanying text.
38. D. Cors and S. Fisher, ‘National Law in International Criminal Punishment: Yugoslavia's Maximum Prison Sentences and the UNWar Crimes Tribunal’, (1997) 3 Parker School Journal of East European Law 367.
39. I. Jankovic and V. Vasilijevic, Sentencing Policies and Practise in the Former Yugoslavia (1994), cited in Schabas, ‘National Law in International Criminal Punishment: Yugoslavia's Maximum Prison Sentences and the UNWar Crimes Tribunal’ note 12, at 477. Schabas argues that one cannot compare national and international criminal punishment because of the distinctive differences between the two.
40. Both the UN Commission of Experts and the UN Secretary-General indicated concerns about command and control responsibility. The relevant language that was provided by the Commission indicated that even if crimes were committed by a subordinate, it ‘doesnot relieve his superior of criminal responsibility ifhe knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonablemeasures to prevent such acts or to punish the perpetrators’. Final Report of the United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 55-60, UN Doc. S/1994/674 (1994).
41. M. Stryszak, ‘Command Responsibility: How Much Should a Commander Be Expected to Know?’, (2000-2001) 11 USAFA Journal of Legal Studies 27.
42. These were two of the claims levelled by Milošević and rejected by the Tribunal after his capture by Yugoslavian Special Forces and transfer to The Hague. Prosecutor v. Milošević, IT-99-37-PT, Decision on PreliminaryMotion, 8 Nov. 2001.
43. W. J. Aceves, ‘Liberalism and International Legal Scholarship: The Pinochet Case and the Move Towards a Universal System of Transnational Law Litigation’, (2000) 41 Harvard International Law Journal 129, 160-1; A.I.Hasson,'Extraterritorial JurisdictionandSovereignImmunityonTrial:Noriega,Pinochet,andMilosevic-Trends in Political Accountability and Transnational Criminal Law’, 25 British Columbia International and Comparative Law Review 125.
44. S. Arslanagic, ‘Mixed Emotions in Bosnia at Plavsic's Verdict’, Agence France-Presse, 27 Feb. 2003.
45. In Erdemović the defendant pleaded guilty to specific counts at the trial level, but the Appeals Chamber remitted for reconsideration the original sentence, and he ultimately accepted a sentence of five years. Prosecutor v. Erdemović, ‘Mixed Emotions in Bosnia at Plavsic's Verdict’ note 22. For criticismabout Rule 62 and an interpretation that the UN Security Council never intended such procedures see G. P. Lombardi, ‘The ICTY at Ten: A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over the Past Decade: Legitimacy and the Expanding Power of the ICTY’, (2003) 37 New England Law Review 887.
46. M. Bohlander, ‘Plea Bargaining Before the ICTY’, in R.May et al. (eds.), Essays on ICTY Procedure and Evidence in Honour of Gabrielle KirkMcDonald (2001), at 151. Rule 62 ter, which formalized the plea process, was adopted at the 25th Plenary Session on 12-13 Dec. 2001.
47. Prosecutor v. Erdemović, ‘Plea Bargaining Before the ICTY’ note 22, Trial Chamber, Dissenting Opinion of Judge Antonio Cassese.
48. Bohlander, Dissenting Opinion of Judge Antonio Cassese note 56.
49. M.Morris, ‘The Trials of Concurrent Jurisdiction: The Case of Rwanda’, (1997) 7 Duke Journal of Comparative and International Law 349.
50. N. A. Combs, ‘Copping a Plea toGenocide: The Plea Bargaining of International Crimes’, (2002) 151 University of Pennsylvania Law Review 1, at 9-49.
51. P.M.Wald, ‘Establishing IncredibleEventsbyCredibleEvidence:TheUseofAffidavitTestimonyinYugoslavia War Crimes Tribunal Proceedings’, 42 Harvard International Law Journal 535, at 550 and n. 64.
52. Combs, ‘Establishing IncredibleEventsbyCredibleEvidence:TheUseofAffidavitTestimonyinYugoslavia War Crimes Tribunal Proceedings’ note 60, at 97-102.
53. For an argument that the ICTY has followed Yugoslavian sentencing practices too closely, hence undermining justice, see Penrose, Combs note 3, at 374-9.
54. Keller, For an argument that the ICTY has followed Yugoslavian sentencing practices too closely, hence undermining justice note 3, at 59.
55. Schabas, Keller note 12, at 479; and Ivkovic, Keller note 12, note 262.
56. Combs, Schabas note 60; and Keller Schabas note 3.
57. Residents in the former Yugoslavia have highlighted this in surveys about justice at the ICTY that have focused on the sentences handed down to specific defendants. Berkeley-Sarajevo 2000 study, Combs note 35. See also Ivkovic, Combs note 12. This has also been true for comparisons made between the ICTR and the ICTY. The Kambanda decision imposed a life sentence on a defendant who pleaded guilty and co-operatedwith the prosecution-something thatwas viewed as a highly importantmitigating factor for the ICTY in the Plavšić case. Prosecutor v. Biljana Plavšić, IT-00-39 and 40/1, Trial Chamber Judgement, 27 Feb. 2003, at para. 7. See also Keller, Combs note 3.
58. P. Krug, ‘The EmergingMental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation’, (2000) 94 AJIL 317, at 328-33.
59. One study found universally ‘vehement’ attitudes among Serbian legal elites, who believed that the ICTY selectively prosecuted and punished Serbs, and was hypocritical in its treatment of NATO violations in the 1999 Kosovo war. One interviewee even suggested that the ICTY process might be doing more harm than good to the reconciliation process. While all of those interviewed for the Berkeley-Sarajevo study criticized the Tribunal, only two of those interviewed believed that it should be abolished. Berkeley-Sarajevo 2000 study, ‘The EmergingMental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation’ note 35, at 27-31.
60. Amra Hadziosmanovic,'MassacreSurvivorsBitteratArrest ofWartimeMuslimLeader’,AgenceFrance-Presse, 11 April 2003.
61. Berkeley-Sarajevo 2000 study, 'MassacreSurvivorsBitteratArrest ofWartimeMuslimLeader’ note 35; Ellis and Hutton, 'MassacreSurvivorsBitteratArrest ofWartimeMuslimLeader’ note 8, at 342.
62. Berkeley-Sarajevo 2000 study, Ellis and Hutton note 35.
63. Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Santić, IT-95-16, Appeal Chamber Judgement, 23 Oct. 2001, at para. 442.
64. Prosecutor v. Anto Furundžija, IT-95-17/1, Appeals Chamber Judgement, 21 July 2001, at para. 227.
65. For an excellent analysis of the distinctions between all the elements, see G. Mettraux, ‘Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, (2002) 43 Harvard International Law Journal 237.
66. Attorney-General v. Eichmann, (1961) 36 ILR 5, affirmed, (Supreme Court of Israel 1962) 36 ILR 277; T.Meron, ‘The Humanization of Humanitarian Law’, (2000) 94 AJIL 239.
67. ‘The Trial Chamber considers it wrong to resort to some abstract comparison of the “per se gravity of the crimes”, comparing the severity of crimes against humanity and violations of the laws or customs of war as suggested by the Prosecutor. In [Tadić ], the Trial Chamber, solely on the basis that a crime against humanity, all else being equal, is amore serious offence than a war crime, considered that a heavier penalty should be imposed for the former crime.However, the Appeals Chamber in that case concluded that there is “in law no distinction between the seriousness of a crime against humanity and that of awar crime”, finding that the Trial Chamber committed an error in determining that crimes against humanity should attract a higher sentence than war crimes. The Appeals Chamber in the Aleksovski case also held that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The authorised penalties for these crimes are also the same, “the level in any particular case being fixed by reference to the circumstances of the case”. The Appeals Chamber in the Furundžija case followed the pronouncements in the Tadić and Aleksovski cases on the same issue. This submission by the Prosecutor is therefore rejected.’ Prosecutor v. Kunarać et al., ‘The Humanization of Humanitarian Law’ note 23, at para. 823.
68. For doctrinal analyses of the four categories seeW. J. Fenrick, ‘Should CrimesAgainstHumanity ReplaceWar Crimes?’, (1999) 37 Columbia Journal of Transnational Law 767; L. C. Green, ‘Grave Breaches or Crimes Against Humanity?’, (1997-98) 8 USAFA Journal of Legal Studies 19; and M. Lippman, ‘Crimes Against Humanity’, (1997) 17 B. C. Third World Law Journal 171. For an excellent systematic analysis of these issues, see A. M. Danner, ‘Constructing a Hierarchy of Crimes in International Criminal Law Sentencing’, (2001) 87 Virginia Law Review 415.
69. Danner, ‘Should CrimesAgainstHumanity ReplaceWar Crimes?’ note 81;Meernik, andMeernik and King, ‘Should CrimesAgainstHumanity ReplaceWar Crimes?’ note 2.
70. Meernik (2003) and Meernik and King, ‘Should CrimesAgainstHumanity ReplaceWar Crimes?’ note 2.
71. Prosecutor v. Blaskić, Meernik and King note 29, at para. 789.
72. Prosecutor v. Duško Tadić, IT-94-1, Appeals Chamber Judgement, 26 Jan. 2000, 56-7.
73. Prosecutor v. Aleksovski, Prosecutor v. Duško Tadić note 24, at para. 187.
74. Prosecutor v.Milan Simić, IT-95-9/2-S, Trial Chamber Judgement, 17 Oct. 2002, 66-7.
75. Prosecutor v. Krstić, Trial Chamber Judgement note 11, at para. 708.
76. Prosecutor v. ZejnilDelalić, ZdravkoMucić, HazimDelić, and Esad Landžo, IT-96-21,AppealsChamber Judgement, 20 Feb. 2001, at para. 847.
77. Prosecutor v. Krstić, AppealsChamber Judgement note 11, at para. 709.
78. See Prosecutor v. Simić, Prosecutor v. Krstić note 88, at para. 10.
79. Prosecutor v. Erdemović, Prosecutor v. Simić note 22, at para. 45.
80. Prosecutor v. Duško Sikirica, Damir Dosen and Dragan Kolundzija, IT-95-8, Trial Chamber Judgement, 13 Nov. 2001, at para. 108.
81. Prosecutor v. Simić, Trial Chamber Judgement note 88, at para. 13.
82. Prosecutor v. Simić., at para. 111.
83. Prosecutor v. Plavšić, Prosecutor v. Simić note 67, at para. 7.
84. Prosecutor v. Blaškić, Prosecutor v. Plavšić note 29, at para. 774.
85. Prosecutor v. Jelisić, Prosecutor v. Blaškić note 28, at para. 127.
86. Ethnicity is not entirely absent from the RPE, for Rule 92 bis (c) provides that the use of expert testimony regarding the ethnic composition of places involved in ICTY cases is permissible. It is also, of course, part of the definition of genocide as a crime committed against a ‘national, ethnical, racial or religious group’.
87. Ethnicity is not entirely absent from the RPE., at para. 611.
88. Ethnicity is not entirely absent from the RPE., at paras. 614-619.
89. See Penrose, Ethnicity is not entirely absent from the RPE note 3, at 374; and Danner, Ethnicity is not entirely absent from the RPE note 81, at 442.
90. Keller, Penrose note 3, at 66.
91. Prosecutor v.Milorad Krnojelać, IT-97-25, Trial Chamber Judgement, 15March 2002, at para. 231.
92. Prosecutor v. Aleksovski, Prosecutor v.Milorad Krnojelać note 24, at para. 243.