UNITED NATIONS - International Criminal Tribunal …

1 UNITEDNATIONSI nternational Tribunal for theProsecution of PersonsResponsible for Serious Violations ofInternational Humanitarian LawCommitted in the Territory of theFormer Yugoslavia since 1991 Case No.: IT-94-1-ADate: 15 July 1999 Original: EnglishIN THE APPEALS CHAMBERB efore:Judge Mohamed Shahabuddeen, PresidingJudge Antonio CasseseJudge Wang TieyaJudge Rafael Nieto-NaviaJudge Florence Ndepele Mwachande MumbaRegistrar:Mrs. Dorothee de Sampayo Garrido-NijghJudgement of:15 July [KO TADI]JUDGEMENTThe Office of the Prosecutor:Mr. Upawansa YapaMs. Brenda J. HollisMr. William FenrickMr. Michael KeeganMs. Ann SutherlandCounsel for the Appellant:Mr. William CleggMr. John LivingstonCase No.: -94-1-A15 July 1999iI. Procedural The (a) Notices of (b) Filing of Applications for Admission of Additional Evidence under Rule Contempt Grounds of The appeal against The The appeal against Sentencing Relief The appeal against The The appeal against Sentencing Sentencing First Ground of appeal by the Defence: Inequality of Arms Leading to Denial of Fair Submissions of the The Defence The Prosecution Applicability of Articles 20(1) and 21(4)(b) of the Third Ground of appeal by the Defence: Error of Fact Leading to a Miscarriage of Submissions of the The The The First Ground of Cross- appeal by the Prosecution.

2 The Trial Chamber s Finding That It Had Not Been Proved That the Victims Were Protected Persons Under Article 2 of the Statute (On Grave Breaches)..30A. Submissions of the The Prosecution The Defence The Requirements for the Applicability of Article 2 of the The Nature of the The Legal Criteria for Establishing When, in an Armed Conflict Which is Prima Facie Internal, Armed Forces May Be Regarded as Acting On Behalf of a Foreign Power, Thereby Rendering the Conflict No.: -94-1-A15 July 1999ii(a) International Humanitarian (b) The Notion of Control: The Need for International Humanitarian Law to Be Supplemented by General International Rules Concerning the Criteria for Considering Individuals to be Acting as De Facto State (c) The Notion of Control Set Out By the International Court of Justice in (i) Two Preliminary (ii) The Grounds On Which the Nicaragua Test Does Not Seem To Be The Nicaragua Test Would Not Seem to Be Consonant With the Logic of the Law of State The Nicaragua Test is at Variance With Judicial and State The Factual Relationship Between the Bosnian Serb Army and the Army of the The Status of the (a) The Relevant (b) Factual The Second Ground of Cross- appeal by the Prosecution.

3 The Finding of Insufficient Evidence of Participation in the Killings in Jaski} Submissions of the The Prosecution The Defence The Armed Group to Which the Appellant Belonged Committed the The Individual Criminal Responsibility of the Appellant for the (a) Article 7(1) of the Statute and the Notion of Common (b) The Culpability of the Appellant in the Present The Finding of the Appeals The Third Ground of Cross- appeal By the Prosecution: the Trial Chamber s Finding That Crimes Against Humanity Cannot Be Committed For Purely Personal Submissions of the The Prosecution The Defence Article 5 of the The Object and Purpose of the Case-law as Evidence of Customary International No.: -94-1-A15 July 1999iiiVII.

4 The Fourth Ground of Cross- appeal By the Prosecution: the Trial Chamber s Finding That All Crimes Against Humanity Require a Discriminatory Submissions of the The Prosecution The Defence The Interpretation of the Text of Article 5 of the Article 5 and Customary International The Report of the The Statements Made by Some States in the Security The Fifth Ground of Cross- appeal by the Prosecution: Denial of the Prosecution s Motion for Disclosure of Defence Witness Submissions of the The Prosecution The Defence The Reason for Dealing with this Ground of the The Power to Order the Disclosure of Prior Defence Witness Declaration of Judge Separate Opinion of Judge A - Glossary of No.

5 : -94-1-A15 July 19991I. INTRODUCTIONA. Procedural Appeals Chamber of the International Tribunal for the Prosecution of PersonsResponsible for Serious Violations of International Humanitarian Law Committed in theTerritory of the Former Yugoslavia since 1991 ( International Tribunal or Tribunal ) isseised of three appeals in relation to the Opinion and Judgment rendered by Trial ChamberII1 on 7 May 1997 in the case of The Prosecutor v. Du ko Tadic, Case No.: IT-94-1-T( Judgement )2 and the subsequent Sentencing Judgment of 14 July 1997 ( SentencingJudgement ).3 With the exception of the Appeals Chamber s judgement inThe Prosecutor v. Dra en Erdemovic4 where the accused had entered a plea of guilty, this isthe first time that the Appeals Chamber is deciding an appeal from a final judgement of aTrial Indictment (as amended) charged the accused, Du ko Tadic, with 34 counts ofcrimes within the jurisdiction of the International Tribunal .

6 At his initial appearance beforethe Trial Chamber on 26 April 1995, the accused pleaded not guilty to all counts. Three ofthe counts were subsequently withdrawn at trial. Of the remaining 31 counts, the TrialChamber found the accused guilty on nine counts, guilty in part on two counts and notguilty on twenty Du ko Tadic ( Defence or Appellant ) and the Prosecutor ( Prosecution or Cross-Appellant ) now appeal against separate aspects of the Judgement ( appeal againstJudgement and Cross- appeal , respectively).5 Additionally, the Defence appeals againstthe Sentencing Judgement ( appeal against Sentencing Judgement ). Combined, theseappeals are referred to as the Appeals . 1 Composed of Judge Gabrielle Kirk McDonald (Presiding), Judge Ninian Stephen and Judge Lal Opinion and Judgment , The Prosecutor v.

7 Du ko Tadic, Case No.: IT-94-1-T, Trial Chamber II, 7 May1997. (For a list of designations and abbreviations used in this Judgement, see Annex A Glossary ofTerms).3 Sentencing Judgment , The Prosecutor v. Du ko Tadic, Case No.: IT-94-1-T, Trial Chamber II, 14 Judgement , The Prosecutor v. Dra en Erdemovic, Case No.: IT-96-22-A, Appeals Chamber, 7 It should be observed that Du{ko Tadi} in the present proceedings is appellant and , the Prosecutor is respondent and cross-appellant. In the interest of clarity of presentation,Case No.: -94-1-A15 July argument on the Appeals was heard by the Appeals Chamber on 19, 20 and 21 April 1999. On 21 April 1999, the Appeals Chamber reserved its judgement to a later considered the written and oral submissions of the Prosecution and theDefence, the Appeals Chamber,HEREBY RENDERS ITS The Appeals(a) Notices of notice of appeal against the Judgement was filed on behalf of Du ko Tadic on3 June 1997.

8 Subsequently, on 8 January 1999, the Defence filed an amended notice ofappeal ( Amended Notice of appeal against Judgement ).6 Leave to amend the notice ofappeal was granted, in part, by the Appeals Chamber in an oral order made on25 January 6 June 1997, the Prosecution filed a notice of appeal against the Judgement( Notice of Cross- appeal ). the notices of appeal against the Judgement were filed, proceedings continuedbefore the Trial Chamber in relation to sentencing, and on 14 July 1997 the Trial Chamberdelivered its Sentencing Judgement. Sentences were imposed for each of the 11 counts onwhich the Appellant had been found guilty or guilty in part, to be served concurrently.

9 On11 August 1997, the Defence filed a notice of appeal against the Sentencing Prosecution has not appealed against the Sentencing Judgement. however, the designations Defence or Appellant and Prosecution or Cross-Appellant will beemployed throughout this Amended Notice of appeal , Case No.: IT-94-1-A, 8 January Transcript of hearing in The Prosecutor v Du ko Tadic, Case No.: IT-94-1-A, 25 January 1999, p. 307 ( (25 January 1999). (All transcript page numbers referred to in the course of this Judgement are from theunofficial, uncorrected version of the English transcript. Minor differences may therefore exist between thepagination therein and that of the final English transcript released to the public).)

10 8 Notice of appeal , Case No.: IT-94-1-A, 6 June No.: -94-1-A15 July 19993(b) Filing of set out in further detail below, the present proceedings were significantly delayedby repeated applications for extension of time in relation to an application for admission ofadditional evidence first made by the Defence on 6 October In January 1998, theAppeals Chamber suspended the timetable for filings in the Appeals until the determinationof the Appellant s Following the Appeals Chamber s decision of 15 October1998 on the matter,11 the normal appeals sequence resumed. In view of the rathercomplicated pattern formed by the parties briefs on the Appeals, it is useful to refer to thewritten submissions filed by the Defence filed separate briefs for the appeal against Judgement ( Appellant sBrief on Judgement ) and the appeal against Sentencing Judgement ( Appellant s Brief onSentencing Judgement ).