The Judgment of the International Criminal Tribunal for the Former Yugoslavia in the BrÐanin Case

Leiden Journal of International Law

Volumn 18, Issue 1, 2005, Pages 65-75

  Blumenstock, Tilman ^a  

^a Department of Business Development and Marketing   (United States)

Author keywords

aiding and abetting by omission; genocide; joint criminal enterprise

Indexed keywords

EID: 84968735923     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504002353     Document Type: Article

References (59)

1. Prosecutor v. Radoslav BrDanin, Judgment, CaseNo. IT-99-36-T, 1 Sept. 2004 (hereafter Judgment). The case was of considerable magnitude: during 284 trial days, 154 live witnesses were heard and more than 3,000 pieces of evidence were tendered, the trial record amounting to a total of 61,000 pages.
2. At the time, images of emaciated inmates detained in camps at Omarska, Trnopolje, and Keraterm caused outrage around the world.
3. Judgment, At the time, images of emaciated inmates detained in camps at Omarska note 1, paras. 80-83.
4. Judgment., paras. 323-27.
5. Judgment., paras. 100, 209-210.
6. Judgment., para. 170.
7. Judgment., para. 197.
8. Judgment., para. 232.
9. Judgment., para. 319.
10. Judgment., paras. 469-476; 528-535; 579; 663-678.
11. Judgment., paras. 477-479. This finding was appealed by the prosecution: see Prosecution's Notice of Appeal, 30 Sept. 2004, paras. 17-20.
12. Cf. Section 3, infra.
13. Cf. Section 5, infra.
14. Judgment, Cf. Section 5 note 1, paras. 574-77.
15. Judgment., paras. 1064-1067.
16. Statute of the International Criminal Tribunal for the former Yugoslavia, adopted by UN Doc. S/RES/827 25May (1993) (hereafter Statute).
17. Judgment, Statute of the International Criminal Tribunal for the former Yugoslavia note 1, paras. 370-377.
18. Indictment, counts 1 and 2.
19. Judgment, Indictment note 1, para. 684.
20. Judgment., paras. 383-385.
21. Judgment., para. 690.
22. Judgment., paras. 691-694, thus excluding the destruction of the national, linguistic, religious, or cultural identity of the group.
23. Judgment., para. 697.
24. Judgment., para. 703, referring to Prosecutor v. Radislav Krstić, Judgment, Case No. IT-98-33-T, 2 Aug. 2001 (hereafter Krstić Trial Judgment), paras. 589-590.
25. Judgment, Judgment note 1, paras. 704-707.
26. Judgment.,para. 729, referring toProsecutor v.RadislavKrstić, Judgment,CaseNo. IT-98-33-A, 19April 2004 (hereafter Krstić Appeal Judgment), para. 139.
27. Judgment, Judgment note 1, para. 736. The prosecution's submission that the Bosnian Muslims and Bosnian Croats of the ARK constituted the protected groups ‘in whole’ was accordingly dismissed; see Prosecution's Response to Trial Chamber's question, 29 April 2004, para. 8.
28. Judgment, Judgment note 1, para. 967.
29. This approach follows the Krstić Trial Judgment,which stated that ‘the intent to destroy. must be discernible in the criminal act itself, apart from the intent of particular perpetrators’ (Judgment note 1, para. 549, and upheld by the Krstić Appeal Judgment, Judgment note 26, para. 34).
30. Judgment, This approach follows the Krstić Trial Judgment note 1, para. 974; see in particular n. 2454.
31. Prosecution Final Brief, para. 538. Due to the prosecution's restriction in pleading, the trial chamber in the Judgment considered only deportations and forcible transferswith the destination of Karlovac (Croatia) and Travnik (at the time controlled by the BiH government). The overall number of forcibly displaced persons from the ARK would, however, add up to tens of thousands of people.
32. Krstić Appeal Judgment, Prosecution Final Brief note 26, para. 31.
33. Judgment, Krstić Appeal Judgment note 1, paras. 975-976.
34. Judgment., paras. 977-979.
35. The prosecution has not appealed this finding: see Prosecution's Notice of Appeal, 30 Sept. 2004.
36. See Prosecutor v. Milomir Stakić, Judgment, Case No. IT-97-24-T, 31 July 2003, paras. 544-561. Hence the only ICTY judgment containing a finding of genocide is the Krstić Appeal Judgment (The prosecution has not appealed this finding: see Prosecution's Notice of Appeal note 26, para. 37), which concerned a different part of BiH.
37. See Prosecutor v. Duško Tadić, Judgment, Case No. IT-94-1-A, 15 July 1999 (hereafter Tadić Appeal Judgment), para. 190; but see also the general opposition to the theory of ‘joint criminal enterprise’ articulated in, Prosecutor v. Blagoje Simić, Miroslav Tadić, Simo Zarić, Case No. IT-95-9-T, Judgment, 17 Oct. 2003, Separate and Partly Dissenting Opinion (Judge Per-Johan Linholm), paras. 1-5.
38. Tadić Appeal Judgment, Prosecutor v. Duško Tadić note 37, para. 220.
39. See Prosecutor v. Milan Milutinović, Nikola Šainović and Dragoljub Ojdanić, Decision on Dragoljub Ojdanić ‘s Motion Challenging Jurisdiction-Joint Criminal Enterprise, CaseNo. IT-99-37-AR72, 21May 2003 (hereafter Ojdanić Decision), para. 20. The earlier Tadić Appeal Judgment had stated that ‘joint criminal enterprise'was a form of accomplice liability, Tadić Appeal Judgment note 37, para. 220.
40. See Prosecutor v. Milorad Krnojelac, Judgment, Case No. IT-97-25, 15March 2002, para. 80.
41. See Tadić Appeal Judgment, Prosecutor v. Milorad Krnojelac note 37, para. 196.
42. It is noteworthy that the trial chamber, at an earlier stage of the trial, had found that the lowered mens rea requirement in the extended form of ‘joint criminal enterprise’ was incompatible with the specific intent required for genocide, and consequently dismissed genocide in relation to the extended form (see Decision on Motion for Acquittal Pursuant to Rule 98 bis, 28 Nov. 2003, para. 30). On request of the prosecution, the Decision was overturned by the Appeals Chamber, which found that the trial chamber ‘erred by conflating the mens rea requirement of the crime of genocide with the mental requirement of the mode of liability by which criminal responsibility is alleged to attach to the accused’, and the dismissed count was reinstated. See Decision on Interlocutory Appeal, 19March 2004, para. 10.
43. Ojdanić Decision, It is noteworthy that the trial chamber, at an earlier stage of the trial, had found that the lowered mens rea requirement in the extended form of ‘joint criminal enterprise’ was incompatible with the specific intent required for genocide, and consequently dismissed genocide in relation to the extended form note 39, para. 23.
44. See Prosecutor v. Duško Tadić, Case No. IT-94-1; Prosecutor v. Biljana Plavšić, Trial Judgments, Case No. IT-00-39&40/1, 27 Feb. 2003; Prosecutor v. Blagoje Simić, Miroslav Tadić, Simo Zarić, Judgment, Case No. IT-95-9, 17 Oct. 2003; Prosecutor v.Milan Babić, Case No. IT-03-72, 29 June 2004.
45. See Prosecutor v. SlobodanMilošević, Case no. IT-02-54-T; Prosecutor v.MomciloKrajišnik,Case no. IT-00-39&40-T; Prosecutor v.MilanMilutinović, Nikola Šainović, Dragoljub Ojdanić, Case no. IT-99-37-PT.
46. Indictment, para. 27.
47. Momir Talić was provisionally released for health reasons on 20 Sept. 2002 and his case severed fromthat of BrDanin on 7 Oct. 2002. Talić died on 28May 2003 and proceedings against himwere terminated.
48. Indictment, para. 27.2.
49. Indictment, para. 27.4
50. Judgment, Indictment note 1, para. 347.
51. Judgment., paras. 348-54.
52. Judgment., paras. 354-355.
53. Judgment. See also the pre-trialDecision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, paras. 44-45. The trial chamber's findings with respect to ‘joint criminal enterprise’ were appealed by the prosecution. See Prosecution's Notice of Appeal, 30 Sept. 2004, paras. 4-12.
54. See Prosecutor v.Mitar Vasiljević, Case No. IT-98-32-T, Judgment, 29 Nov. 2002, para. 197.
55. Judgment, Prosecutor v.Mitar Vasiljević note 1, paras. 271-274, referring to the Tadić Appeal Judgment, Prosecutor v.Mitar Vasiljević note 37, para. 229.
56. Judgment, Judgment note 1, paras. 469-76.
57. Judgment., paras. 335, 536.
58. Judgment., paras. 537, 1058.
59. The prosecution has dedicated a ground of appeal to this point. See Prosecution's Notice of Appeal, 30 Sept. 2004, paras. 13-16.