The Second Srebrenica Trial: Prosecutor v. Vidoje Blagojević and Dragan Jokić

Leiden Journal of International Law

Volumn 18, Issue 3, 2005, Pages 523-540

  Gallagher, Katherine ^a  

^a Office of the Prosecutor   (United States)

Author keywords

assignment of counsel; complicity in genocide; forcible transfer; genocide; guilty plea; Srebrenica

Indexed keywords

EID: 85022348254     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505002852     Document Type: Article

References (91)

1. Prosecutor v. Blagojević and Jokić, CaseNo. IT-02-60-T, Judgment, T.Ch. I, Sec.A, delivered on 17 January 2005 and filed on 24 January 2005 (hereafter Judgment). The Trial Chamber comprised Judges Liu Daqun, Presiding (China), Volodymyr Vassylenko (Ukraine) and CarmenMaria Argibay (Argentina).
2. Three accused have pleaded guilty to crimes committed in and around Srebrenica in July 1995 pursuant to plea agreements. See Prosecutor v. Erdemović, (First) Sentencing Judgment, Case No. IT-96-22-T, T.Ch. I, 29 November 1996 and Prosecutor v. Erdemović, Case No. IT-96-22-Tbis, (Second) Sentencing Judgment, T.Ch. II, 5 March 1998; Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-S, Sentencing Judgment, T.Ch. I, Sec.A, 2 December 2003 (hereafter Nikolić Sentencing Judgment); Prosecutor v. Obrenović, Case No. IT-02-60/2-S, Sentencing Judgment, T.Ch. I, Sec.A, 10 December 2003. The judgments in the cases against Momir Nikolić and Dragan Obrenović were rendered by the same Trial Chamber that heard the Blagojević and Jokić trial.
3. Prosecutor v. Krstić, Case No. IT-98-33-A, Judgment, A.Ch., 19 April 2004 (hereafter Krstić Appeal Judgment).
4. The persons indicted for crimes related to Srebrenica currently in the custody of the Tribunal are Ljubiša Beara,Milan Gvero, RadivojeMiletić, DragoNikolić, Vinko Pandurević, Ljubomir Borovčanin,Milorad Trbić and Vujadin Popović. As of the end of April 2005, three persons indicted for crimes related to the massacres committed following the fall of Srebrenica in July 1995 remained at large: Radovan Karadžić, Ratko Mladić (both indicted in November 1995 for crimes in and around Srebrenica) and Zdravko Tolimir (indicted in February 2005).
5. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Indictment, 23 May 2003 (hereafter Indictment), para. 36, and paras. 36-51 generally.
6. Aswill be discussed below, Vidoje Blagojević was convicted formurders committed in the town of Bratunac. He was found not guilty of the mass executions which occurred at numerous locations in the Bratunac and Zvornikmunicipalities in the days following the fall of Srebrenica.
7. Forcible transfer (as an underlying act for persecutions and inhumane acts (forcible transfer)) was charged under the first form of joint criminal enterprise, which requires that the accused share the criminal intent of the other participants in the enterprise and ‘intend the criminal result’. Judgment, Aswill be discussed below note 1, para. 703.
8. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Judgment on Motions for Acquittal Pursuant to Rule 98 bis, 5 April 2004 (hereafter Judgment on Motions for Acquittal), paras. 47-51, 56, 57. The Trial Chamber dismissed joint criminal enterprise as amode of liability in relation to the mass executions. Rule 98 bis of the Rules of Procedure and Evidence of the Tribunal (Rules) provided, at the time of the Judgment on Motions for Acquittal, for an accused to bring amotion for the entry of judgment of acquittal on one or more offences charged in the indictment upon the completion of the prosecution's case. If the trial chamber finds that the evidence is insufficient to sustain a conviction on that or those charges, it ‘shall order the entry of judgment of acquittal on motion of an accused or proprio motu’. Rule 98 bis was amended in December 2004, and now provides that a trial chamber ‘shall, by oral decision and after hearing the oral submissions of the parties, enter a judgment of acquittal on any count if there is no evidence capable of supporting a conviction’.
9. See Judgment, Prosecutor v. Blagojević and Jokić note 1, paras. 713, 796.
10. The prosecution has challenged the sentence, characterizing it as ‘manifestly inadequate’. At the time of writing this note, the defence for Vidoje Blagojević had not yet filed its notice of appeal, having been granted an extension of time in which to do so.
11. Judgment on Motions for Acquittal, The prosecution has challenged the sentence, characterizing it as ‘manifestly inadequate’ note 8. The Trial Chamber also dismissed a number of factual allegations.
12. The murder and extermination charges were based on specific allegations of mass executions at different execution sites throughout the Zvornik Brigade area of responsibility. Based on its determination of Dragan Jokić ‘s knowledge of the overall execution operation and the involvement of resources from the Zvornik Brigade (personnel or equipment) that had a link toDragan Jokić, the TrialChamber found thatDragan Jokić had liability for some, but not all, of themass executions charged.
13. The prosecution has challenged the sentence, characterizing it as ‘manifestly inadequate’.While Jokić seeks a full acquittal in his notice of appeal, in the alternative, he seeks a ‘substantial reduction’ of the sentence.
14. Prosecutor v. Blagojević, Obrenović, Nikolić and Jokić, Case No. IT-02-60-PT, Motion Hearing, 6 May 2003. For a critique of the Trial Chamber's initial dismissal of the plea agreement, see Coalition for International Justice, ‘Court Questions Plea Agreement in Srebrenica Case’ (6 May 2003), at http://www.cij.org/index. cfm? fuseaction=viewReport&reportID=288&tribunalID=1. While the Trial Chamber's judgment in the Nikolić case does reveal certain reservations about plea agreements in cases of serious violations of international humanitarian law, the Trial Chamber's rejection of the initial plea agreement should not be taken as a denunciation of plea agreements per se, but rathermay be seen as a sign of the Trial Chamber's determination that the guilty plea could not later be dismissed on the grounds that the accused's rights had not been protected or that the rules had not been properly applied. For the Trial Chamber's comments on guilty pleas and their applicability and appropriateness in cases of serious violations of international humanitarian law, see Nikolić Sentencing Judgment, The prosecution has challenged the sentence, characterizing it as ‘manifestly inadequate’.While Jokić seeks a full acquittal in his notice of appeal note 2, paras. 57-73, and in particular para. 73: ‘The Trial Chamber finds that, on balance, guilty pleas pursuant to plea agreements,may further the work-and themandate-of the Tribunal. The Trial Chamber further finds, however, that based on the duties incumbent on the Prosecutor and the Trial Chambers pursuant to the Statute of the Tribunal, the use of plea agreements should proceed with caution and such agreements should be used only when doing sowould satisfy the interests of justice.’
15. Prosecutor v. Blagojević, Obrenović, Nikolić and Jokić, Case No. IT-02-60-PT,Motion Hearing, 7May 2003.
16. See, e.g., Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Decision on Prosecution's Motion to Amend Witness List, T. Ch. I, Sec. A, 25 June 2003. It is difficult to assess the impact, if any, of the guilty pleas and sentencing judgments on other aspects of the case, including the impact on other ‘insider witnesses’ to come forward and provide truthful testimony.
17. Vidoje Blagojević, as commander of the Bratunac Brigade, was the superior ofMomir Nikolić, the Assistant Chief for Security and Intelligence in the Bratunac Brigade. Dragan Obrenović, as Chief of Staff and Deputy Commander of the Zvornik Brigade, was in a superior or command position in relation to Dragan Jokić, the Chief of Engineering of the Zvornik Brigade.
18. On the credibility of Momir Nikolić, see, e.g., the Blagojević Closing Arguments, Submissions of Michael Karnavas, 30 September 2004, T. 12400-01: ‘[W]e have to examine [Nikolić ] carefully and the Prosecutor said we need to take him with a grain of salt. I say we take him with a ton of salt. Because that man, as we saw, was all too willing to manufacture evidence-and I'm going to demonstrate how he did it-in order to sing the Prosecution's tune, because he knew what the tune was as it is laid out in the indictment, and he had all the evidence. So he had the music sheet. So all he had to do was tell what the Prosecution wanted to hear.’
19. Judgment, On the credibility of Momir Nikolić note 1, para. 24.
20. Judgment., para. 472. In its judgment in theNikolić case, the Trial Chamber found thatMomirNikolić was ‘evasive’ and'thathis testimonywasnot asdetailedas it couldhavebeenincertainareas’.Nikolić SentencingJudgment, Judgment note 2, para. 156.
21. Vidoje Blagojević made comments to the effect that he had had no contactwithMichael Karnavas at various points inthe trial.See, e.g.,Prosecutorv.Blagojević andJokić, CaseNo. IT-02-60-T,TrialProceedings,19September 2003, T. 1587 and Trial Proceedings, 2 December 2003, T. 5459, cited in Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Decision on Vidoje Blagojević ‘s Oral Request, 30 July 2004 (hereafter 30 July 2004 Decision), at 4. The 30 July 2004 Decision further states that Vidoje Blagojević met ‘briefly’ with Mr Karnavas and a representative of the Office of Legal Aid and DetentionMatters of the Registry in early 2004.
22. See, e.g., Milošević v. Prosecutor, Case No. IT-02-54-AR73.6, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defense Counsel, 1 November 2004.
23. See Prosecutor v. Šešelj, CaseNo. IT-03-67-PT, Decision on Prosecution'sMotion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, 9May 2003.
24. Pre-trialConferenceHearing, 5May 2003, T. 258.Mr Blagojević stated as follows: ‘And although I do not know much about law because I know what I needed in my profession, however, it openedmy eyes and I realised how things are really done in situations like this. I'm not trying to dodge responsibility and I'm saying I do notwant to defendmyself.No. Itwould be insane if I did that, but a lawyer ofmy choicemust professionally representmy interests or he cannot bemy lawyer.’
25. See Prosecutor v. Blagojević and Jokić, Decision on Independent Counsel for Vidoje Blagojević ‘s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003 (hereafter Decision on Replacement of Counsel), para. 120.
26. Prosecutor v. Blagojević, Case No. IT-98-33/1-PT, Decision by the Registrar Assigning Counsel as of 31 August 2001, dated 3 September 2001 and filed 5 September 2001. The initial appointment of Mr Karnavas was for 120 days, pending the review of Mr Blagojević ‘s financial status. The appointment of Mr Karnavas was renewed on 24 December 2001.
27. Directive of Assignment of Defence Counsel, as amended on 12 July 2002, IT/73/Rev.9.
28. Prosecutor v. Blagojević, Obrenović, Jokić and Nikolić, Case No. IT-02-60-PT, Decision on Oral Motion to Replace Co-counsel, T.Ch.II, 9December 2002. The Trial Chamber noted that Blagojević did not provide any concrete reasons for seeking the dismissal of his co-counsel and found that his request to have his co-counsel removed was due to his desire to have another person assigned, ‘and [was] not due to any misconduct, incompetence or any conflict of interest on the part of the co-counsel’. Directive of Assignment of Defence Counsel., at 4-5.
29. The Trial Chamber further found that no grounds were identified that would amount to an ‘insufficient atmosphere of trust between the Accused and the defence team or which would otherwise show that co-operation between the Accused and his team is no longer possible’. Prosecutor v. Blagojević., at 6.
30. See Decision on Replacement of Counsel, The Trial Chamber further found that no grounds were identified that would amount to an ‘insufficient atmosphere of trust between the Accused and the defence team or which would otherwise show that co-operation between the Accused and his team is no longer possible’ note 27, paras. 10-11.
31. Prosecutor v. Blagojević, Obrenović, Jokić and Nikolić, Case No. IT-02-60-PT, Registrar's Decision, 8 April 2003. In relation to the last point, it is recalled that Vidoje Blagojević ‘s application for provisional release-like that of his co-accused Dragan Obrenović-was denied by both the Trial Chamber and the Appeals Chamber, and he had thus already spent more than one and a half years in pre-trial detention.
32. Prosecutor v. Blagojević, Obrenović, Jokić and Nikolić, Case No. IT-02-60-PT, Pre-trial Conference Hearing, 5 May 2003, T. 256.
33. Prosecutor v. Blagojević, Obrenović, Jokić and Nikolić, Case No. IT-02-60-PT, Order on the Appointment of Independent Legal Counsel, T.Ch. I, Sec. A, 9May 2003.
34. In their response,Mr Karnavas andMs Tomanović challenged essentially all of Blagojević ‘s allegations and assertions about the nature of their assignments and conduct as counsel, and argued that there were no grounds for their replacement. They also submitted, however, that the Trial Chamber must also consider ‘whether procedural fairness and the proper administration of justice can be achieved by retaining [lead] counsel and co-counsel in this case’. See Decision on Replacement of Counsel, Prosecutor v. Blagojević note 27, para. 56.
35. their response., para. 112.
36. See their response.,para. 69 for theRegistrar's argument onthispoint, and para. 112 for the Chamber's commentsonthis point. Other international tribunals and hybrid courts have faced difficultieswith the frequent replacement of assigned counsel to indigent accused, and/or requests for self-representation. For the Special Court for Sierra Leone see, e.g., Prosecutor v. Hinga Norman et al., Case No. SCSL-04-14-T, Decision on the Application of Samuel Hinga Norman for Self-Representation Under Art. 17(4)(d) of the Statute of the Special Court, 8 June 2004; Prosecutor v. Hinga Norman et al., Case No. SCSL-04-14-T, Consequential Order on Assignment and Role of Stand-by Counsel, 14 June 2004; Prosecutor v. Hinga Norman et al., Case No. SCSL-04-14-T, Ruling on the Issue of Non-Appearance of the First Accused Samuel Hinga Norman, the Second Accused Moinina Fofana and the ThirdAccused, AllieuKondewa at the Trial Proceedings, 1October 2004. For the International Criminal Tribunal for Rwanda (ICTR), see, e.g., ‘Statement by the Registrar, Mr. Adama Dieng, on Allegations of Fee Splitting between a Detainee of the ICTR and his Defence Counsel,’ ICTR/INFO-9-3-06.EN, Arusha, 29 October 2001; Statement by the Registrar concerning change of counsel under the Tribunal's Legal Aid Programme, ICTR/INFO-9-3-13.EN Arusha, 5 November 2002; Prosecutor v. Nzirorera, Case No. ICTR-98-44-T, Decision on Nzirorera'sMotion forWithdrawal of Counsel, T.Ch. II, 3 October 2001; Prosecutor v. Ngeze, Case No. ICTR-97-27-I, Decision on the Accused's Request for theWithdrawal of His Counsel, 29March 2001.
37. Decision on Replacement of Counsel, their response note 27, para. 121.
38. Decision on Replacement of Counsel.,Disposition, (1). SeeDisposition generally for the terms of appointment and scope of assignment of the legal representative.
39. DecisiononAppealbyVidojeBlagojević toReplacehisDefenceTeam,15September2003;Public andRedacted Reasons for Decision on Appeal by Blagojević to Replace his Defence Team, 15 December 2003.
40. See Prosecutor v. Blagojević, Case No. IT-02-60-A, Decision (Deputy Registrar), 28 February 2005, in which the Deputy Registrar granted Blagojević ‘s request to have newcounsel appointed for his appeal, finding ‘that the Registry is satisfied that the replacement ofMr. Karnavas would not be detrimental to the representation of the Accused, nor would it unduly delay the appeal proceedings’.
41. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Trial Proceedings, 30 September 2003, T. 2274.
42. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Trial Proceedings, 1 October 2003, T. 2321-31.
43. See, e.g., Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Pre-Defence Conference, Trial Proceedings, 7 April 2004, T. 38-43.
44. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T,Motion Hearing, 17 June 2004, T. 10922-25.
45. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Decision on Vidoje Blagojević ‘s Oral Request, 30 July
46. 2004. The Trial Chamber also examined whether any waiver by Blagojević of the privilege against selfincrimination was knowing, voluntary, and based on sufficient awareness of the consequences of such waiver, and concluded that it was.
47. Decision on Request for Certification to Appeal the Trial Chamber's Decision on Vidoje Blagojević ‘s Oral Request and Request for the Appointment of an Independent Counsel for this Interlocutory Appeal Should Certification be Granted, 2 September 2004.
48. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Trial Proceedings, 9 September 2004, T. 12280-81.
49. In addition to the evidence tendered by the parties, the Trial Chamber undertook a site visit to the crime scenes after the close of the presentation of evidence ‘to assist the Trial Chamber in assessing the evidence admitted in the case’. The Trial Chamber did not take or admit any evidence during the site visit. See Judgment, Prosecutor v. Blagojević and Jokić note 1, para. 31.
50. Much of the crime-based evidence in the Blagojević and Jokić casewas entered into evidence pursuant to Rule 92 bis and Rule 94 bis of the Rules. Rule 92 bis permits a party to tender either a sworn statement or former testimony of a witness that does not touch upon the acts and conduct of the accused into evidence in written form; the trial chamber has the discretion to accept this evidence with or without calling the witness for cross-examination or questioning by the chamber. Rule 94 bis provides for the admission of expert reports, again with or without calling the witness to testify. In this case, the Trial Chamber admitted the evidence of more than 55 witnesses pursuant to Rule 92 bis and more than 15 witnesses pursuant to Rule 94 bis.
51. TheTrialChamber accepted the evidence ofDražen Erdemović pursuant toRule 92 bis. It accepted the former testimony ofMiroslavDeronjic pursuant to Rule 92 bis with cross-examination. It is important to emphasize thatwhileDeronjicwas appointed Commissioner of Srebrenica by RadovanKaradžić following its take-over by the Bosnian Serbs and held the position of president of the Serbian Democratic Party in Bratunac, he was not charged in relation to the crimes committed in July 1995; his conviction is for crimes committed in Bratunac in 1992. The Prosecutor, Peter McCloskey, said that he would likely call Deronjic because ‘he's obviously a historical figure that I think the Court should see’. Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Trial Proceedings, 1 October 2003, T. 2317.
52. Aiding and abetting requires that the accused carried out an act or omission, which consisted of practical assistance, encouragement, or moral support to the principal perpetrator which had a substantial affect on the commission of the crime. The accused is not required to share the mens rea required for the crime; it is sufficient that the aider and abettor had knowledge that his or her acts assisted in the commission of the crime and was aware of the ‘essential elements’ of the crime committed, including the state of mind of the perpetrator. See, e.g., Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, A.Ch., 15 July 1999, para. 229; Blaškić Appeal Judgment, addition to the Bosnian Muslims and Bosnian Serbs who appeared as witnesses, the Trial Chamber also heard from a number of Dutch witnesses who had served as part of the UN Protection Forces in Srebrenica, including the Dutch Battalion commander, Thomas Karremans note 52, paras. 45-8; Prosecutor v. Mucić, Delić and Landžo, Case No. IT-96-21-A, Judgment, A.Ch., 20 February 2001 (hereafter čelebici Appeal Judgment), para. 352; and Judgment, addition to the Bosnian Muslims and Bosnian Serbs who appeared as witnesses, the Trial Chamber also heard from a number of Dutch witnesses who had served as part of the UN Protection Forces in Srebrenica, including the Dutch Battalion commander, Thomas Karremans note 1, paras. 726-7. The Prosecution has appealed the Trial Chamber's finding that the accused must have knowledge that his acts assisted in the commission of the specific crime of the principal offender.
53. For the first form of joint criminal enterprise, three objective elements must be established (a plurality of persons; the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the ICTY's Statute; and the participation of the accused in the common plan involving the perpetration of the crime), and it must be found that the accused intended the criminal result. See Judgment, Aiding and abetting requires that the accused carried out an act or omission, which consisted of practical assistance, encouragement, or moral support to the principal perpetrator which had a substantial affect on the commission of the crime note 1, paras. 698, 703.
54. For liability pursuant to the doctrine of command responsibility under Art. 7(3) of the ICTY Statute, the following elements must be established: there existed a superior-subordinate relationship between the superior and the perpetrator of the crime; the superior knew or had reason to know that the criminal actwas about to be or had been committed; and the superior failed to take the necessary and reasonablemeasures to prevent the criminal act or to punish the perpetrator thereof. See, e.g., judgment, For the first form of joint criminal enterprise, three objective elements must be established note 1, para. 790 citing čelebić iAppeal Judgment, For the first form of joint criminal enterprise, three objective elements must be established note 57. The jurisprudence of the Tribunal permits the prosecution to charge allmodes of liability under Art. 7(1), leaving it to the trial chamber's discretion to determine whichmode of liability, if any, most accurately reflects the accused's criminal responsibility. See, e.g., Prosecutor v. Miroslav Kvočka et al.,CaseNo. IT-98-30/1-A, Judgment,A.Ch., 28 February 2005,paras. 29, 41.Recent judgmentsonboth the trial and appeals level have discussed the elements of the different modes of liability under Art. 7(1) at length, and have included a detailed analysis of the evidence in relation to eachmodecharged. Whereas some earlier judgments assessed individual criminal responsibilitymore in terms of the relationship between Art. 7(1) and Art. 7(3) as a basis for liability, it is suggested that chambers now conduct amore developed analysis when determining intra-Art. 7(1) liability. As the different modes of liability reflect an accused's criminal conduct and degree of participation (i.e., as principal/perpetrator or accomplice/accessory), in the absence of sentencing guidelines, this exercisemay reveal an effort by chambers to establish a broad framework for sentencing based, in large part, on the accused's participation in the commission of each crime-in addition to, and not necessarily as opposed to, earlier attempts to ‘rank’ crimes. See, e.g., Judgment, For the first form of joint criminal enterprise, three objective elements must be established note 1, para. 833: ‘By “gravity of the offence” the Trial Chamber understands that it must consider the crimes for which each Accused has been convicted, the underlying criminal conduct generally, and the specific role played by Vidoje Blagojević and Dragan Jokić in the commission of the crime.’
55. Judgment, For liability pursuant to the doctrine of command responsibility under Art note 1, paras. 433-6.
56. Judgment., para. 478. See also paras. 474-7.
57. Judgment., para. 758.
58. Judgment., para. 711. Based on the references to this finding, it is evident that the Trial Chamber interpreted ‘participated’ to include not only the actions of Blagojević himself, but also the actions of elements of Bratunac Brigade. See Judgment., para. 702, for the Trial Chamber's findings on ‘participation’ in a joint criminal enterprise.
59. Judgment., para 473. The joint criminal enterprise is alleged to have been ‘conceived and designed. on 11 and 12 July 1995’. Indictment, Judgment note 5, para. 32.
60. Judgment, Judgment note 1, para. 712.
61. See Judgment., para. 703 (for first category joint criminal enterprise, all participants shared the same criminal intention and the accused intended the criminal result). As the prosecution has appealed theTrial Chamber's finding that Vidoje Blagojević did not have the intent to commit forcible transfer as part of a joint criminal enterprise, defining ‘the requisite intent’ will be amatter for the Appeals Chamber.
62. Judgment, Judgment note 1, para. 794. See also Blaškić Appeal Judgment, Judgment note 52, paras. 86-93.
63. Judgment, Judgment note 1, paras. 733-8.
64. See Judgment note 57. The Trial Chamber had assessed the elements in its earlier findings. See, e.g., Judgment, Judgment note 1, paras. 419, 423-31, 497-500, 742.
65. Judgment, Judgment note 57 note 1, para. 794.
66. The Trial Chamber expressed reservations on other grounds, including whether Blagojević had ‘effective control’ overMomir Nikolić, for not imposing liability under Art. 7(3) for the crimes committed by Nikolić. See Judgment, Judgment note 1, para. 795, and the prior discussion on the existence of a ‘parallel chain of command’ in relation to the security and intelligence organs, at paras. 396-419.
67. The Trial Chamber expressed reservations on other grounds, including whether Blagojević had ‘effective control’ overMomir Nikolić, for not imposing liability under Art., para. 723.
68. The Trial Chamber expressed reservations on other grounds, including whether Blagojević had ‘effective control’ overMomir Nikolić, for not imposing liability under Art., paras. 763-5, and paras. 525-34 generally.
69. The prosecution withdrew the count of genocide against Vidoje Blagojević in January 2002.
70. InKrstić, theAppealsChamber confirmed that genocide had been committed following the fall of Srebrenica in July 1995. It found, however, that the Trial Chamber erred in holding Radislav Krstić guilty of genocide as a member of a joint criminal enterprise based on the conclusion that he did not have genocidal intent, finding instead that Krstić was guilty as an aider and abetter of genocide. In assessing Krstić ‘s liability as an aider and abettor to genocide, the Appeals Chamber held that an aider and abettor to a specific-intent crime such as genocide need not share the specific intent to commit the crime; rather, it is sufficient to find that the accused rendered substantial assistance to the commission of the crime knowing the intent behind the crime. Krstić Appeal Judgment, The prosecution withdrew the count of genocide against Vidoje Blagojević in January note 3, para. 140.
71. Krstić Appeal Judgment, InKrstić note 3, paras. 138-9. In essence, it appears that theAppeals Chamber preferred thespecificityoftheTribunal'sStatute,whenpossible,ratherthanthearguablybroaderformsofparticipation taken from the Genocide Convention and reproduced in Art. 4(3) of the Statute. As discussed in the Trial Chamber judgment in the case of Brd-anin, Art. 4(3) includes modes of liability not provided for in Art. 7(1) for inchoate offences, including conspiracy and attempt. See Brd-anin Judgment, InKrstić note 52, para. 725. In finding thatArt. 7(1) essentially trumpsArt. 4(3) of the Statute, theAppealsChamber inKrstić did not address the implications of its findingwhen a particular mode of liability is not provided for in Art. 7 of the Tribunal Statute, but exists only in Art. 4(3). Krstić Appeal Judgment, InKrstić note 3, paras. 138-9.
72. Krstić Appeal Judgment, Krstić Appeal Judgment note 3, n. 247. The Appeals Chamber did observe, however, that ‘there is authority to suggest that complicity in genocide, where it prohibits conduct broader than aiding and abetting, requires proof that the accomplice had the specific intent to destroy a protected group’. Krstić Appeal Judgment., para. 142.
73. Krstić Appeal Judgment., para. 143.
74. See Judgment, Krstić Appeal Judgment note 1, para. 637.
75. See Judgment., paras. 635, 780.
76. Krstić Appeal Judgment, Judgment note 3, paras. 138-9, 142.
77. Judgment, Krstić Appeal Judgment note 1, paras. 638, 776-7. See also, Brd-anin Judgment, Krstić Appeal Judgment note 52, para. 727: ‘The Trial Chamber regards genocide under Art. 4(3)(a) as encompassing principal offenders, including but not limited to the physical perpetrators and to those liable pursuant to the theory of JCE. By contrast, an accomplice to genocide under Art. 4(3)(e) is someone who associates himself in the crime of genocide committed by another.’
78. See Prosecution v.Blagojević and Jokić, CaseNo. IT-02-60-T, ProsecutionFinalBrief,para. 584 andMotionHearing held on 8 June 2004, T. 10448-49, 10452-53. See also Judgment, Judgment note 1, para. 780.
79. Krstić Appeal Judgment, Prosecution v.Blagojević and Jokić note 3, para. 142; Judgment, Prosecution v.Blagojević and Jokić note 1, para. 779. See also Prosecutor v. Ntakirtimana and Ntakirtimana, Case No. ICTR-96-10-A and ICTR-96-17-A, Judgment, A.Ch., 13 December 2004, paras. 364 and 371.
80. Judgment, Krstić Appeal Judgment note 1, paras. 647-8 (related to the bodily and/or mental harm suffered by the men who survived the mass executions), paras. 650-2 (related to the mental harm suffered by persons during the separations and displacement) and para. 653 (related to the mental harm suffered by the survivors of those executed).
81. Judgment, Judgment note 1, para. 646. There is jurisprudence to support a finding that forcible transfer and deportation could constitute another underlying act of genocide, namely ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’ pursuant to Article 4(2)(c) of the Statute of the Tribunal. Judgment., n. 2072.
82. Judgment, Judgment note 1, para. 650.
83. Judgment., para. 651. See also Judgment., para. 652. The Trial Chamber emphasized that the women were ‘forcibly displaced from their homes-in such a manner as to traumatise them and prevent them from ever returning-obliged to abandon their property and their belongings as well as their traditions and more in general their relationship with the territory they were living on, does constitute serious mental harm.’ Judgment. (emphasis added).
84. Judgment., para. 654.
85. See Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, paras. 731-2.
86. Judgment, Prosecutor v. Akayesu note 1, para. 659, citing Krstić Appeal Judgment, Prosecutor v. Akayesu note 3, partial dissenting opinion (Judge Shahabuddeen), para. 50. ‘It is the group which is protected.Agroup is constituted by characteristics-often intangible-binding together a collection of people as a social unit. If those characteristics have been destroyed in pursuance of the intent with which a listed act of a physical or biological nature was done, it is not convincing to say that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological.’ (Judgment, Prosecutor v. Akayesu note 1, para. 659.)
87. The TrialChamber found some support for this proposition in theKrstić Appeal Judgment, Judgment note 3, para. 31, as well as in Judge Shahabuddeen's partial dissenting opinion, para. 57. The Appeals Chamber stated as follows: ‘Forcible transfer could be an additional means by which to ensure the physical destruction of the BosnianMuslim community in Srebrenica. The transfer completed the removal of all BosnianMuslims from Srebrenica, thereby eliminating even the residual possibility that theMuslim community in the area could reconstitute itself.’ Krstić Appeal Judgment, Judgment note 3, para. 31.
88. See, e.g., Application of the Convention of the Prevention and Punishment of the Crime of Genocide, Bosnia v. Herzegovina v. Yugoslavia (Serbia and Montenegro), Order on further Requests for the Indication of Provisional Measures, [1993] ICJ Rep. 325-795, Separate Opinion (Judge Lauterpacht), para. 69; Prosecutor v. Musema,CaseNo. ICTR-96-13-T, Judgment,27January2000, para. 933. See alsoFinalReport of theCommission of Experts, Established Pursuant to Security CouncilResolution 780 (1992),UNDoc. S/1994/674, 27May 1994, para. 94; UN General Assembly Resolution 47/121, UN Doc. AG/RES/47/121, 18 December 1992 (defining ‘ethnic cleansing’ as a form of genocide).
89. Judgment, Application of the Convention of the Prevention and Punishment of the Crime of Genocide note 1, para. 666. Cf. Brd-anin Judgment, Application of the Convention of the Prevention and Punishment of the Crime of Genocide note 52, paras. 975-9.
90. Judgment., para. 786.
91. Judgment., para. 835.