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Volumn 4, Issue 3, 2006, Pages 539-558

Investigation and prosecution of large-scale crimes at the international level: The experience of the ICTY

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EID: 33750203132     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql032     Document Type: Article
Times cited : (42)

References (81)
  • 1
    • 84888851224 scopus 로고    scopus 로고
    • Article 18, ICTYSt
    • Article 18, ICTYSt.
  • 2
    • 84888842105 scopus 로고    scopus 로고
    • Judgement on Sentencing Appeal, (IT-94-2-S), Appeals Chamber, 4 February §39
    • Judgement on Sentencing Appeal, Dragan Nikolić (IT-94-2-S), Appeals Chamber, 4 February 2005, §39.
    • (2005)
    • Nikolić, D.1
  • 3
    • 84888851737 scopus 로고    scopus 로고
    • note
    • Article 7(1) ICTYSt. lists the modes of participation for crimes within the Statute as planning, instigating, ordering, committing or aiding and abetting. Notably, under Art. 4 there are other acts punishable, which apply to genocide, particularly conspiracy, attempts, complicity and direct and public incitement. A separate form of liability of a superior for criminal acts of subordinates is found within Art. 7(3).
  • 4
    • 84888829560 scopus 로고    scopus 로고
    • See Judgment, (IT-94-1-A), Appeals Chamber, 15 July
    • See Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999
    • (1999)
    • Tadić1
  • 5
    • 84888829481 scopus 로고    scopus 로고
    • Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, (IT-99-37-PT), Appeals Chamber, 21 May (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, Milutinović, Šainović and Ojdanić's (IT-99-37-PT), Appeals Chamber, 21 May 2003 (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • (2003)
    • Milutinović1    Šainović2    Ojdanić's3
  • 6
    • 84888856143 scopus 로고    scopus 로고
    • Judgment, (IT-97-24-A) Appeals Chamber, 22 March (hereafter 'Stakić Appeals Judgment')
    • Judgment, Stakić (IT-97-24-A) Appeals Chamber, 22 March 2006 (hereafter 'Stakić Appeals Judgment').
    • (2006)
    • Stakić1
  • 7
    • 84888847156 scopus 로고    scopus 로고
    • Judgment, (IT-96-21-A), Appeals Chamber, 20 February §602 (hereafter Delalić et al. Appeals Judgment')
    • Judgment, Delalić et al. (IT-96-21-A), Appeals Chamber, 20 February 2001, §602 (hereafter Delalić et al. Appeals Judgment').
    • (2001)
    • Delalić1
  • 8
    • 33750201650 scopus 로고    scopus 로고
    • Trial Chamber II of the Special Court of Sierra Leone
    • The Statute of the International Criminal Tribunal for Rwanda, Art. 1 uses the same language as the ICTY Statute, while the Statute of the Special Court for Sierra Leone Art. 1 states that the Special Court has the power to prosecute 'persons who bear the greatest responsibility for serious violations of international humanitarian law'. See the discussion of the 'greatest responsibility requirement' by in: Decision on Defence Motions for Judgement of Acquittal pursuant to Rule 98, (SCSL-04-16T-483), Trial Chamber, 31 March
    • The Statute of the International Criminal Tribunal for Rwanda, Art. 1 uses the same language as the ICTY Statute, while the Statute of the Special Court for Sierra Leone Art. 1 states that the Special Court has the power to prosecute 'persons who bear the greatest responsibility for serious violations of international humanitarian law'. See the discussion of the 'greatest responsibility requirement' by Trial Chamber II of the Special Court of Sierra Leone, in: Decision on Defence Motions for Judgement of Acquittal pursuant to Rule 98, Brima, Kamara and Kanu (SCSL-04-16T-483), Trial Chamber, 31 March 2006.
    • (2006)
    • Brima1    Kamara2    Kanu3
  • 9
    • 33750206771 scopus 로고
    • Both UN Security Council Resolution 827 establishing the Tribunal and Art. 1 ICTYSt. expressly limit the ICTY jurisdiction to serious violations of IHL committed in the former Yugoslavia since 1991
    • Both UN Security Council Resolution 827 (1993) establishing the Tribunal and Art. 1 ICTYSt. expressly limit the ICTY jurisdiction to serious violations of IHL committed in the former Yugoslavia since 1991.
    • (1993)
  • 10
    • 84888835117 scopus 로고    scopus 로고
    • A challenge to the application of the Prosecution policy was rejected by the Appeals Chamber in Appeals Judgment §212
    • A challenge to the application of the Prosecution policy was rejected by the Appeals Chamber in Delalić et al. Appeals Judgment, supra note 5, §212.
    • (2001)
    • Delalić1
  • 11
    • 84888833755 scopus 로고    scopus 로고
    • note
    • The decision of the Appeals Chamber resulted from a ground of appeal by one of the convicted persons, Landžo, that he was subject of a selective prosecution policy. The Prosecution indicated that Landžo was prosecuted as he fell within the category of persons responsible for exceptionally brutal or otherwise extremely serious offences. The Appeals Chamber found that 'in light of the unquestionably violent and extreme nature of these crimes [the crimes of which Landžo was convicted by the Trial Chamber], it is quite clear that the decision to continue the trial against Landžo was consistent with the stated policy of the Prosecutor 'to focus on persons holding higher levels of responsibility, or on those who have been personally responsible for such exceptionally brutal or otherwise extremely serious offences' (§ 614). The Chamber held further that such decision can in no way be described as a discriminatory or otherwise based on an impermissible motive.
  • 12
    • 84888832830 scopus 로고    scopus 로고
    • note
    • It is important to note that ICTY trials are not necessarily slower than similarly complex national trials in many national jurisdictions. The United States federal prosecution of the police officers accused of beating Rodney King in Los Angeles took two and one-half months of trial time for criminal conduct which lasted in essence 90 seconds and was captured on videotape. The Milošević prosecution, by contrast, involved years of conduct over extensive territory, involving a number of organs including a multitude of military and quasi-military organizations and the alleged commission of hundreds of incidents of serious crimes.
  • 13
    • 84888849513 scopus 로고    scopus 로고
    • Decision on Referral of Case Pursuant to Rule 11bis, (IT-98-29/1-PT), Trial Chamber, 8 July §20
    • Decision on Referral of Case Pursuant to Rule 11bis, Dragomir Milošvić (IT-98-29/1-PT), Trial Chamber, 8 July 2005, §20.
    • (2005)
    • Milošvić, D.1
  • 14
    • 84888828454 scopus 로고    scopus 로고
    • 'The Prosecutor's Toolbox: Investigating and Prosecuting Organized Crime in the United States'
    • supra in this Symposium
    • W.J. Nardini, 'The Prosecutor's Toolbox: Investigating and Prosecuting Organized Crime in the United States', supra in this Symposium.
    • Nardini, W.J.1
  • 15
    • 84888833614 scopus 로고    scopus 로고
    • note
    • The recent example of the Enron prosecution in the United States comes to mind where the government obtained a key insider and entered into a plea agreement. The defendant pled guilty to a single count of securities fraud and agreed to testify against his co-accused; the Prosecution agreed to seek a reduced sentence based on his cooperation.
  • 16
    • 84888849559 scopus 로고    scopus 로고
    • Appeal Judgment, (IT-95-16-A), 23 October
    • Appeal Judgment, Kupreškić et al. (IT-95-16-A), 23 October 2001
    • (2001)
    • Kupreškić1
  • 17
    • 84888817330 scopus 로고    scopus 로고
    • Judgment, (IT-95-14/2-A), Appeals Chamber, 17 December (hereafter Kordić and Čerkez Appeals Judgment')
    • Judgment, Kordić and Čerkez (IT-95-14/2-A), Appeals Chamber, 17 December 2004 (hereafter Kordić and Čerkez Appeals Judgment').
    • (2004)
    • Kordić1    Čerkez2
  • 18
    • 84888844522 scopus 로고    scopus 로고
    • §§ 2, 65-67, 73 74 Judgment, (IT-95-14/2-A), Appeals Chamber, 17 December (hereafter Kordić and Čerkez Appeals Judgment')
    • Ibid., §§ 2, 65-67, 73, 74.
    • (2004)
    • Kordić1    Čerkez2
  • 19
    • 84888832888 scopus 로고    scopus 로고
    • Judgment on Sentencing on Appeal, (IT-02-60/1-S), 8 March §83 citing the Trial Chamber Judgment
    • Judgment on Sentencing on Appeal, Momir Nikolić (IT-02-60/1-S), 8 March 2006, §83 citing the Trial Chamber Judgment.
    • (2006)
    • Nikolić, M.1
  • 20
    • 84888844010 scopus 로고    scopus 로고
    • Sentencing Judgment, (IT-96-22-T), Trial Chamber I, 29 November §13
    • Sentencing Judgment, Erdemović (IT-96-22-T), Trial Chamber I, 29 November 1996, §13.
    • (1996)
    • Erdemović1
  • 21
    • 84888823566 scopus 로고    scopus 로고
    • Judgment and Sentence, (ICTR-97-32), Trial Chamber I, 1 June §55
    • Judgment and Sentence, Ruqgiu (ICTR-97-32), Trial Chamber I, 1 June 2000, §55.
    • (2000)
    • Ruqgiu1
  • 22
    • 84888850526 scopus 로고    scopus 로고
    • Sentencing Judgment, (IT-02-60/1-S), Trial Chamber I Section A, 2 December
    • Sentencing Judgment, Momir Nikolić (IT-02-60/1-S), Trial Chamber I Section A, 2 December 2003.
    • (2003)
    • Nikolić, M.1
  • 23
    • 84888849119 scopus 로고    scopus 로고
    • E.g. Sentencing Judgment, (IT-94-2-S), Trial Chamber II, 18 December
    • E.g. Sentencing Judgment, Dragan Nikolić (IT-94-2-S), Trial Chamber II, 18 December 2003
    • (2003)
    • Nikolić, D.1
  • 24
    • 84888831081 scopus 로고    scopus 로고
    • Judgment on Sentence Appeal, (IT-03-72-S), Appeals Chamber, 18 July §§ 29-33
    • Judgment on Sentence Appeal, Babić (IT-03-72-S), Appeals Chamber, 18 July 2005, §§ 29-33.
    • (2005)
    • Babić1
  • 25
    • 84888839039 scopus 로고    scopus 로고
    • 'Investigating and Prosecuting Large-Scale Corruption: The Italian Experience'
    • supra in this Symposium
    • G. Colombo, 'Investigating and Prosecuting Large-Scale Corruption: The Italian Experience', supra in this Symposium
    • Colombo, G.1
  • 26
    • 84888828454 scopus 로고    scopus 로고
    • 'The Prosecutor's Toolbox: Investigating and Prosecuting Organized Crime in the United States'
    • supra in this Symposium
    • Nardini, supra note 11.
    • Nardini, W.J.1
  • 27
    • 84888839913 scopus 로고    scopus 로고
    • Judgment, (IT-95-14-R77.2), Trial Chamber, 10 March Note that this Judgment has been appealed and at this time is pending before the Appeals Chamber
    • Judgment, Marijačić and Rebić (IT-95-14-R77.2), Trial Chamber, 10 March 2006. Note that this Judgment has been appealed and at this time is pending before the Appeals Chamber.
    • (2006)
    • Marijačić1    Rebić2
  • 28
    • 33750210140 scopus 로고    scopus 로고
    • Judgment on Contempt Allegations, (IT-03-66-R77), Trial Chamber I, 27 May
    • Judgment on Contempt Allegations, Beqa Beqaj (IT-03-66-R77), Trial Chamber I, 27 May 2005.
    • (2005)
    • Beqaj, B.1
  • 29
    • 84888826939 scopus 로고    scopus 로고
    • As indicated in footnotes immediately above, examples of findings of contempt include: Marijačić and Rebić Trial Chamber Judgment, supra note 22 Judgment on Contempt Allegations, (IT-03-66-R77), Trial Chamber I, 27 May
    • As indicated in footnotes immediately above, examples of findings of contempt include: Marijačić and Rebić Trial Chamber Judgment, supra note 22
    • (2005)
    • Beqaj, B.1
  • 30
    • 33750214401 scopus 로고    scopus 로고
    • Judgment on Contempt Allegations, supra note 23 Judgment on Contempt Allegations, (IT-03-66-R77), Trial Chamber I, 27 May
    • Beqa Beqaj Judgment on Contempt Allegations, supra note 23
    • (2005)
    • Beqaj, B.1
  • 31
    • 84888829522 scopus 로고    scopus 로고
    • and Tadić, where Duško Tadić's former defence counsel Milan Vujin was convicted for contempt in acting against the interests of his own client see Judgment on Allegations of Contempt against Prior Counsel, (IT-94-1-A-R77), Appeals Chamber, 31 January
    • and Tadić, where Duško Tadić's former defence counsel Milan Vujin was convicted for contempt in acting against the interests of his own client see Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, Yadić (IT-94-1-A-R77), Appeals Chamber, 31 January 2000.
    • (2000)
    • Yadić, M.V.1
  • 32
    • 84888850504 scopus 로고    scopus 로고
    • Article 25(3)(a) ICCSt
    • Article 25(3)(a) ICCSt.
  • 33
    • 84888844264 scopus 로고    scopus 로고
    • note
    • For example, in the United States see the Racketeer Influence and Corrupt Organizations Act of 1970 (RICO), 18 U.S.C.A. §1961. In Italy see the Criminal Code, Arts 416 and 416bis, as noted by G. Colombo, supra note 20. In Germany, see Section 129 of the German Criminal Code (Strafgesetzbuch, StGB), promulgated 13 November 1998 (Federal Law Gazette I, at 945, 3322).
  • 34
    • 84888838866 scopus 로고    scopus 로고
    • The Appeals Chamber has found error in a Judgment of a Trial Chamber where a mode of liability was employed that was not valid law within the jurisdiction of the Tribunal: Appeals Chamber Judgment, Judgment, (IT-97-24-A) Appeals Chamber, 22 March (hereafter 'Stakić Appeals Judgment')
    • The Appeals Chamber has found error in a Judgment of a Trial Chamber where a mode of liability was employed that was not valid law within the jurisdiction of the Tribunal: Stakić Appeals Chamber Judgment, supra note 4.
    • (2006)
    • Stakić1
  • 35
    • 84888828850 scopus 로고    scopus 로고
    • §§ 18 Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, (IT-99-37-PT), Appeals Chamber, 21 May (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • Milutinović, Šainović and Ojdanić Decision, supra note 4, §§ 18, 38.
    • (2003) , pp. 38
    • Milutinović1    Šainović2    Ojdanić's3
  • 36
    • 84888843125 scopus 로고    scopus 로고
    • §§ 18 Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, (IT-99-37-PT), Appeals Chamber, 21 May (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • Ibid., §18.
    • (2003) , pp. 38
    • Milutinović1    Šainović2    Ojdanić's3
  • 37
    • 84888819388 scopus 로고    scopus 로고
    • §38. Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, (IT-99-37-PT), Appeals Chamber, 21 May (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • Ibid., §38.
    • (2003) , pp. 38
    • Milutinović1    Šainović2    Ojdanić's3
  • 38
    • 84888826506 scopus 로고    scopus 로고
    • Though the Prosecution has set forth the term 'joint criminal enterprise' to describe a manner of joint commission, this falls within 'commits' in Art. 7(1)
    • Though the Prosecution has set forth the term 'joint criminal enterprise' to describe a manner of joint commission, this falls within 'commits' in Art. 7(1).
  • 39
    • 84888826753 scopus 로고    scopus 로고
    • §19. Though the Appeals Chamber indicated that it appeared that Art. 7(1) was not exhaustive in nature, the Chamber did not need to consider this for its decision and made no determination in this respect
    • Milutinović, Šainović and Ojdanić Decision, supra note 4, §19. Though the Appeals Chamber indicated that it appeared that Art. 7(1) was not exhaustive in nature, the Chamber did not need to consider this for its decision and made no determination in this respect.
    • (2003)
    • Milutinović1    Šainović2    Ojdanić3
  • 40
    • 84888853719 scopus 로고    scopus 로고
    • Decision on Jurisdictional Appeals: Joint Criminal Enterprise
    • The Tribunal has jurisdiction to consider modes of participation that are contemplated by the Statute and existed in customary international law or were proscribed by treaties forming part of the law applicable at the time: see e.g. (ICTR-98-44), Appeals Chamber, 12 April §§ 12-13
    • The Tribunal has jurisdiction to consider modes of participation that are contemplated by the Statute and existed in customary international law or were proscribed by treaties forming part of the law applicable at the time: See e.g. Decision on Jurisdictional Appeals: Joint Criminal Enterprise, Karemera (ICTR-98-44), Appeals Chamber, 12 April 2006, §§ 12-13.
    • (2006)
    • Karemera1
  • 41
    • 33750202143 scopus 로고    scopus 로고
    • Judgment, (ICTR-96-4-T), Trial Chamber I, 2 September
    • Judgment, Akayesu (ICTR-96-4-T), Trial Chamber I, 2 September 1998
    • (1998)
    • Akayesu1
  • 42
    • 33750212233 scopus 로고    scopus 로고
    • Judgment and Sentence, (ICTR-96-13-A), Trial Chamber I, 27 January
    • Judgment and Sentence, Musema (ICTR-96-13-A), Trial Chamber I, 27 January 2000
    • (2000)
    • Musema1
  • 43
    • 33750217495 scopus 로고    scopus 로고
    • Judgment and Sentence, (ICTR-96-14-T), Trial Chamber I, 16 May
    • Judgment and Sentence, Niyitegeka (ICTR-96-14-T), Trial Chamber I, 16 May 2003.
    • (2003)
    • Niyitegeka1
  • 44
    • 84888854679 scopus 로고    scopus 로고
    • Judgment, (IT-95-14/2), Trial Chamber, 26 February §28 (hereafter 'Kordić and Čerkez Judgment'). An accused may also be liable if they order an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order
    • Judgment, Kordić and Čerkez (IT-95-14/2), Trial Chamber, 26 February 2001, §28 (hereafter 'Kordić and Čerkez Judgment'). An accused may also be liable if they order an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order.
    • (2001)
    • Kordić1    Čerkez2
  • 45
    • 84888824465 scopus 로고    scopus 로고
    • For example, in Kordić and Čerkez, the Trial Chamber found that though Mr Kordić, a politician, did not have a precise position in the chain of command and did not have the power to punish or discipline troops, he exerted both political and military authority in some instances: see §§ 556, 586 687 Judgment, (IT-95-14/2-A), Appeals Chamber, 17 December (hereafter Kordić and Čerkez Appeals Judgment')
    • For example, in Kordić and Čerkez, the Trial Chamber found that though Mr Kordić, a politician, did not have a precise position in the chain of command and did not have the power to punish or discipline troops, he exerted both political and military authority in some instances: See Kordić and Čerkez Judgment, §§ 556, 586, 687.
    • (2004)
    • Kordić1    Čerkez2
  • 46
    • 84888852553 scopus 로고    scopus 로고
    • See similar findings by Appeals Chamber, in Judgment, (IT-95-14/2-A), Appeals Chamber, 17 December §969
    • See similar findings by Appeals Chamber, in Judgment, Kordić and Čerkez (IT-95-14/2-A), Appeals Chamber, 17 December 2004, §969.
    • (2004)
    • Kordić1    Čerkez2
  • 47
    • 84888854372 scopus 로고    scopus 로고
    • Judgment, (IT-97-24-A) Appeals Chamber, 22 March (hereafter 'Stakić Appeals Judgment')
    • Stakić Appeals Judgment, supra note 4.
    • (2006)
    • Stakić1
  • 48
    • 84888823140 scopus 로고    scopus 로고
    • As is evident from the findings in Stakić, the contribution is not limited to the forms of participation set out in Art. 7(1) of the Statute. There may be infinite ways in which a member may contribute to a criminal enterprise such as 'coordination', 'setting up' prison camps to be used as part of the enterprise or playing an 'active role in the organisation of the massive displacement' (Appeals Judgment, §75) Judgment, (IT-97-24-A) Appeals Chamber, 22 March (hereafter 'Stakić Appeals Judgment')
    • As is evident from the findings in Stakić, the contribution is not limited to the forms of participation set out in Art. 7(1) of the Statute. There may be infinite ways in which a member may contribute to a criminal enterprise such as 'coordination', 'setting up' prison camps to be used as part of the enterprise or playing an 'active role in the organisation of the massive displacement' (Stakić Appeals Judgment, Supra note 4, §75)
    • (2006)
    • Stakić1
  • 49
    • 84888832170 scopus 로고    scopus 로고
    • Judgment, (IT-98-30/1-A), Appeals Chamber, 28 February §§ 95-99 regarding the contribution to the joint criminal enterprise
    • Judgment, Kvočka et al. (IT-98-30/1-A), Appeals Chamber, 28 February 2005, §§ 95-99 regarding the contribution to the joint criminal enterprise.
    • (2005)
    • Kvočka1
  • 51
    • 84888839639 scopus 로고    scopus 로고
    • note
    • For example, where the physical perpetrators of one military unit are not informed of the specific acts of another unit also being used to carry out a part of the overall criminal design.
  • 52
    • 84888840021 scopus 로고    scopus 로고
    • Two scenarios demonstrate that the crime which is jointly committed through others is more accurately described as being committed by the members of the joint criminal enterprise and not necessarily by the physical perpetrators: first, in circumstances where the members of the joint criminal enterprise have a specific intent (e.g. persecution) which is not known by the physical perpetrators carrying out the crimes (e.g. plunder); or second, where the physical perpetrators do not have the requisite intent at all, such as when they are ordered to shell a civilian village but are told only the coordinates and that they relate to a legitimate military objective. For a useful factual scenario articulating this point and others related to joint commission see: Decision on Ojdanić's Motion Challenging Jurisdiction: Indirect Co-perpetration, (IT-05-87-PT), Trial Chamber, 22 March Separate Opinion of Judge lain Bonomy, §4
    • Two scenarios demonstrate that the crime which is jointly committed through others is more accurately described as being committed by the members of the joint criminal enterprise and not necessarily by the physical perpetrators: First, in circumstances where the members of the joint criminal enterprise have a specific intent (e.g. persecution) which is not known by the physical perpetrators carrying out the crimes (e.g. plunder); or second, where the physical perpetrators do not have the requisite intent at all, such as when they are ordered to shell a civilian village but are told only the coordinates and that they relate to a legitimate military objective. For a useful factual scenario articulating this point and others related to joint commission see: Decision on Ojdanić's Motion Challenging Jurisdiction: Indirect Co-perpetration, Milutinović et al. (IT-05-87-PT), Trial Chamber, 22 March 2003, Separate Opinion of Judge lain Bonomy, §4.
    • (2003)
    • Milutinović1
  • 53
    • 84888852180 scopus 로고    scopus 로고
    • As stated by the Appeals Chamber in the Decision, §20. Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, (IT-99-37-PT), Appeals Chamber, 21 May (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • As stated by the Appeals Chamber in the Milutinović, Šainović and Ojdanić Decision, supra note 4, §20.
    • (2003) , pp. 38
    • Milutinović1    Šainović2    Ojdanić3
  • 54
    • 33750205586 scopus 로고    scopus 로고
    • Prosecution's Notice of Appeal, (IT-99-36), 30 September and Prosecution's Brief on Appeal, 28 January 2005
    • Prosecution's Notice of Appeal, Brdjanin (IT-99-36), 30 September 2004 and Prosecution's Brief on Appeal, 28 January 2005.
    • (2004)
    • Brdjanin1
  • 55
    • 84888842698 scopus 로고    scopus 로고
    • See Defence arguments referenced in §24
    • Ibid. See Defence arguments referenced in §24.
    • (2004)
    • Brdjanin1
  • 56
    • 84888851914 scopus 로고
    • Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 3 May 1993 (S/25704), §§ 50, 51. See also: Decision, §25. Appeals Chamber, 21 May (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), 3 May 1993 (S/25704), §§ 50, 51. See also: Milutinović, Šainović and Ojdanić Decision, supra note 4, §25.
    • (1993) , pp. 38
    • Milutinović1    Šainović2    Ojdanić3
  • 57
    • 84888835007 scopus 로고    scopus 로고
    • Articles 6, 9 and 10 Charter of the International Military Tribunal
    • Articles 6, 9 and 10 Charter of the International Military Tribunal.
  • 58
    • 84888841830 scopus 로고    scopus 로고
    • Article II(1)(d) stated that membership in categories of a criminal group or organization declared criminal by the International Military Tribunal was recognized as a crime
    • Article II(1)(d) stated that membership in categories of a criminal group or organization declared criminal by the International Military Tribunal was recognized as a crime.
  • 59
    • 4344658597 scopus 로고    scopus 로고
    • Arguably the interpretation and application of these provisions under the IMT Charter and Control Council Law no. 10 resulted in criminal liability being narrowed to voluntary membership with knowledge of the criminal purpose or acts. See (Oxford: OUP)
    • Arguably the interpretation and application of these provisions under the IMT Charter and Control Council Law no. 10 resulted in criminal liability being narrowed to voluntary membership with knowledge of the criminal purpose or acts. See A. Cassese, International Criminal Law (Oxford: OUP, 2003), at 136-139
    • (2003) International Criminal Law , pp. 136-139
    • Cassese, A.1
  • 60
    • 84888843198 scopus 로고    scopus 로고
    • ć 25. Decision on Dragoljub Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, (IT-99-37-PT), Appeals Chamber, 21 May (hereafter 'Milutinović, Šainović and Ojdanić Decision')
    • Milutinović, Šainović and Ojdanić Decision, supra note 4, ć 25.
    • (2003)
    • Milutinovisupra1    Šainović2    Ojdanić3
  • 61
    • 84888818214 scopus 로고    scopus 로고
    • Note, for example, the Trial Chamber's findings that General Krstić in a communication to one of his subordinate brigades congratulated them on their efforts to 'liberate centuries-old Serbian territories from the hated enemy and to prevent further genocide against the Serbian people' and his use of derogatory terms in reference to Muslims from the Second World War: Judgment, Trial Chamber, 2 August 2001, §336. During the Milosević trial an expert witness testified about the creation of an 'us versus thern' mentality to dehumanize victims and the use of collective memories of the perpetrator group in doing so: Testimony of 20 January T 31181
    • Note, for example, the Trial Chamber's findings that General Krstić in a communication to one of his subordinate brigades congratulated them on their efforts to 'liberate centuries-old Serbian territories from the hated enemy and to prevent further genocide against the Serbian people' and his use of derogatory terms in reference to Muslims from the Second World War: Judgment, Trial Chamber, 2 August 2001, §336. During the Milosević trial an expert witness testified about the creation of an 'us versus thern' mentality to dehumanize victims and the use of collective memories of the perpetrator group in doing so: Testimony of T. Zwann, 20 January 2004, T 31181.
    • (2004)
    • Zwann, T.1
  • 62
    • 84888832348 scopus 로고    scopus 로고
    • Reference to these terms and their use by perpetrators can be seen throughout the Judgments of the ICTY For example, see: Judgment, (IT-96-21), Trial Chamber, 16 November §§ 717, 916 1269
    • Reference to these terms and their use by perpetrators can be seen throughout the Judgments of the ICTY For example, see: Judgment, Delalić et al. (IT-96-21), Trial Chamber, 16 November 1998, §§ 717, 916, 1269
    • (1998)
    • Delalić1
  • 63
    • 84888847181 scopus 로고    scopus 로고
    • Judgment, (IT-98-33), Trial Chamber, 2 August §§ 336 592
    • Judgment, Krstić (IT-98-33), Trial Chamber, 2 August 2001, §§ 336, 592
    • (2001)
    • Krstić1
  • 64
    • 84888854685 scopus 로고    scopus 로고
    • Judgment, (IT-98-34), Trial Chamber, 31 March §§ 378, 419, 424, 432, 448, 652 679
    • Judgment, Martinović and Naletilić (IT-98-34), Trial Chamber, 31 March 2003, §§ 378, 419, 424, 432, 448, 652, 679
    • (2003)
    • Martinović1    Naletilić2
  • 65
    • 84888847255 scopus 로고    scopus 로고
    • Judgment, (It-95-14/2), Trial Chamber, §671
    • Judgment, Kordić and Čerkez (It-95-14/2), Trial Chamber, §671
    • Kordić1    Čerkez2
  • 66
    • 84888831559 scopus 로고    scopus 로고
    • Judgment, Halilović (IT-01-48), Trial Chamber, 16 November §§ 407, 504, 564 571
    • Judgment, Halilović (IT-01-48), Trial Chamber, 16 November 2005, §§ 407, 504, 564, 571.
    • (2005)
  • 67
    • 84888831594 scopus 로고    scopus 로고
    • a Judgement, supra note 34, §145
    • Akayesu a Judgement, supra note 34, §145.
    • Akayesu1
  • 68
    • 84888819714 scopus 로고    scopus 로고
    • a Judgement, supra note 34, §145. §§ 146-154
    • Ibid., §§ 146-154.
    • Akayesu1
  • 69
    • 84888824738 scopus 로고    scopus 로고
    • Judgment and Sentence, (ICTR-96-11-T), Trial Chamber I, 3 December §§ 1011 1028
    • Judgment and Sentence, Nahimana et al. (ICTR-96-11-T), Trial Chamber I, 3 December 2004, §§ 1011, 1028.
    • (2004)
    • Nahimana1
  • 70
    • 84888819658 scopus 로고    scopus 로고
    • a Judgment, supra noe 34, §155
    • Akayesu a Judgment, supra note 34, §155.
    • Akayesu1
  • 71
    • 84888838397 scopus 로고    scopus 로고
    • Judgment, (IT-97-27-T), Trial Chamber, §343
    • Judgment, Stakić (IT-97-27-T), Trial Chamber, §343
    • Stakić1
  • 72
    • 84888847471 scopus 로고    scopus 로고
    • see also the Trial Chamber's factual findings in Stakić Judgment, §§ 335-408 demonstrating the significance of contemporaneous records and witnesses who could speak to the events at the time
    • see also the Trial Chamber's factual findings in Stakić Judgment, §§ 335-408 demonstrating the significance of contemporaneous records and witnesses who could speak to the events at the time.
  • 73
    • 84888844555 scopus 로고    scopus 로고
    • Judgment, Naletilić and Martinović (IT-98-34-T), Trial Chamber, 31 March 2003, §§ 199-202 and reference in Part II. A. Historical Findings, footnote 20. On appeal, the Appeals Chamber upheld the convictions under Art. 2 of the Statute and dismissed the defence challenge to the international nature of the armed conflict: Judgment, (IT-98-34-A), Appeal Chamber, 3 May §§ 107-108, 122
    • Judgment, Naletilić and Martinović (IT-98-34-T), Trial Chamber, 31 March 2003, §§ 199-202 and reference in Part II. A. Historical Findings, footnote 20. On appeal, the Appeals Chamber upheld the convictions under Art. 2 of the Statute and dismissed the defence challenge to the international nature of the armed conflict: Judgment, Naletilić and Martinović (IT-98-34-A), Appeal Chamber, 3 May 2006, §§ 107-108, 122.
    • (2006)
    • Naletilić1    Martinović2
  • 74
    • 84888819204 scopus 로고    scopus 로고
    • Prosecution exhibit 469
    • Milosević, Prosecution exhibit 469.
    • Milosević1
  • 75
    • 84888822319 scopus 로고    scopus 로고
    • For an examination of the intercepts by the Trial Chamber see Judgment, (IT-98-33-T), Trial Chamber, 2 August §§ 105-117 wherein the reliability of the intercepts was examined including evidence called by the Prosecution in relation to their methods of recording and transcription
    • For an examination of the intercepts by the Trial Chamber see Judgment, Krstić (IT-98-33-T), Trial Chamber, 2 August 2001, §§ 105-117 wherein the reliability of the intercepts was examined including evidence called by the Prosecution in relation to their methods of recording and transcription.
    • (2001)
    • Krstić1
  • 76
    • 84888839437 scopus 로고    scopus 로고
    • For an examination of the intercepts by the Trial Chamber see Judgment, (IT-98-33-T), Trial Chamber, 2 August §§ 105-117 wherein the reliability of the intercepts was examined including evidence called by the Prosecution in relation to their methods of recording and transcription. §383
    • Ibid., §383.
    • (2001)
    • Krstić1
  • 77
    • 84888855959 scopus 로고    scopus 로고
    • 22 November T13286-13287, 13292-13293
    • Milošević, 22 November 2002, T13286-13287, 13292-13293.
    • (2002)
    • Milošević1
  • 78
    • 84888818655 scopus 로고    scopus 로고
    • 15 March T2382-2384
    • Milošević, 15 March 2002, T2382-2384.
    • (2002)
    • Milošević1
  • 79
    • 84888845473 scopus 로고    scopus 로고
    • note
    • This obligation was reaffirmed in two Security Council resolutions adopted under Chapter VII of the Charter of the United Nations, resolution 1503 of 28 August 2003 and 1534 of 26 March 2004. Chapter VII of the Charter deals with 'Action with respect to threats to the peace, breaches of the peace, and acts of aggression'. Decisions taken by the Security Council under Chapter VII are considered to be binding for all UN members.
  • 80
    • 84888819878 scopus 로고    scopus 로고
    • In case the President is advised by a Chamber or a Judge
    • In case the President is advised by a Chamber or a Judge.
  • 81
    • 84888839213 scopus 로고    scopus 로고
    • In case the Prosecutor has initiated the procedure
    • In case the Prosecutor has initiated the procedure.


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