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The Prosecutor v.

Jean-Paul Akayesu

Summary
The Accused, Jean-Paul Akayesu, was the mayor of
Taba, Rwanda. On 2 September 1998, Trial Chamber I
of the Tribunal found him guilty of nine out of fifteen
Counts charging him with genocide, crimes against
humanity and violations of the Geneva Conventions in
the first ever trial before the Tribunal. His was the first
conviction ever for genocide and it was the first time that
an international tribunal ruled that rape and other forms
of sexual violence could constitute genocide. It was also
the first conviction of an individual for rape as a crime
against humanity.
Akayesu appealed against his convictions and the
sentence imposed on him. His principal ground of
appeal was that he had not been represented by
counsel of his choice. The Prosecution also presented
four grounds of appeal.
The Appeals Chamber held that the right of appeal for
an indigent person to be represented by a lawyer free of
charge did not imply the right to select the advocate to
be assigned to defend him. The Chamber underscored
that in this case there had been an abuse of the right of
an indigent accused to legal aid at the expense of the
international community.
The other grounds of appeal, as well as Akayesu’s
appeal against the life sentence imposed upon him were
also rejected.

Procedural history
The original indictment charged Akayesu,
as bourgmestre (mayor) of Taba commune, with
involvement in criminal acts committed between 7 April
and the end of June 1994 in this commune. The
Accused was charged under Article 6(1) of the Statute
with genocide (count 1); complicity in genocide (count
2); crimes against humanity (Counts 3, 5, 7, 9, and 11);
direct and public incitement to commit genocide (count
4); violations of Article 3 common to the Geneva
Conventions (Counts 6, 8, 10 and 12).
On 17 June 1997, the original indictment was amended
with three additional Counts of sexual violence, violence
and murder perpetrated at the bureau communal
between 7 April and the end of June 1994. The
Accused was thus charged under Article 6(1) and /or
Article 6(3) of the Statute with rape (count 13) and other
inhumane acts (count 14) as crimes against humanity,
and violations of Article 3 common to the Geneva
Conventions and of Article 4(2)(e) of Additional Protocol
II (outrages upon personal dignity, in particular rape,
humiliating and degrading treatment and indecent
assault, count 15).
On 2 September 1998, Trial Chamber I found the
Accused guilty of genocide (count 1), direct and public
incitement to commit genocide (count 4) and crimes
against humanity (Counts 3, 5, 7, 9, 11, 13 and 14). He
was acquitted on the remaining Counts. The Chamber
imposed several terms of imprisonment on the Accused,
ranging from 10 years to life and it decided that each
sentence should be served concurrently. Therefore, it
directed that the Accused should serve a single
sentence of life imprisonment
(see Judgment and Verdict).
Both the Accused and the Prosecution appealed against
the Trial judgment. The Accused lodged an appeal
against the sentence as well.

Legally relevant facts


The Accused raised eleven grounds of appeal in total.
Under ground 1, the Accused submitted that he had
been denied the right to be defended by counsel of his
own choice and to defend himself in person (para. 44).
Under ground 2, the Accused argues that he had been
denied the right to a competent attorney (para. 67).
Under ground 3, the Accused contended that the
tribunal was biased and lacked independence (para.
85).
Under ground 4, Mr. Akayesu alleged a total absence of
the rule of law in view of a series of errors invalidating
the finding of guilty (paras. 102-273).
Under ground 5, the Accused maintained that there was
a total absence of the rule of law; however, he did not
discuss this ground in his Brief nor at he hearing on
appeal. Therefore, the Appeals Chamber rejected it
(paras. 274-276).
Under ground 6, the Accused submitted that the Trial
Chamber had erred in the way it had treated hearsay
evidence (para. 277).
Under ground 7, the Accused alleged irregularities
during direct examination and cross-examination (paras.
310-311).
Under ground 8, Mr. Akayesu raised an issue of
unlawful disclosure of defence witness statements (para.
327).
Under ground 9, the Accused argued that Witness
DAAX had sent a letter to the judges of Trial Chamber I
following his testimony and that this constituted an
abuse of process (para. 328).
Under ground 10, the Accused challenged the legality of
his detention (para. 351).
Under ground 11, Mr. Akayesu appealed against the
sentence imposed on him (para. 378).
The Prosecution advanced four grounds of appeal.
Grounds 1 and 2 challenged the Trial Chamber's
analysis of Article 4 of the Statute; ground 3 concerned
the Trial Chamber's interpretation of Article 3 of the
Statute, while ground 4 related to the analysis of Article
6(1) of the Statute (paras. 425-426, 447, 470).

Core legal questions


 Whether the issues raised by the Prosecution in its

appeal were of interest to legal practice of the Tribunal


and had a nexus with the present case;
 Whether the right to free legal assistance of counsel

confers the right to counsel of one’s own choosing;


 Whether the Accused demonstrated gross

incompetence of his counsel resulting in a miscarriage


of justice;
 Whether the test before ruling hearsay evidence

admissible was met by the Trial Chamber;


 Whether the Trial Chamber had erred on a point of
law in restricting the application of common Article 3
of the Geneva Conventions to a certain category of
persons;
 Whether the discriminatory intent is an essential
element for one of the crimes enumerated under
Article 3 of the Statute to constitute a crime against
humanity;
 Whether the “incitement”, as set out in Article 6(1) of
the Statute, needs be “direct and public”;
 What the effect on the sentence would be, in case any
of the grounds of appeal was accepted.

Specific legal rules and provisions


 Article 3 common to the Geneva Conventions.

 Article 3, 4(2)(e) of Additional Protocol II.

 Articles 1, 2, 3, 4, 5, 6(1),(3), 12(1), 15, 17(1), 19(1),

20, 23, 24, 26, 27, 91(1) of the ICTR Statute.


 Rules 3(A), 14(A), 15(A), 40, 45(A), 46(A), 50, 66, 71,

72, 73, 74, 77, 78, 80, 85(B), 87(A), 89(A),(C),


90(A),(B),(F),(G), 94bis, 101, 105, 111, 112, 115, 116,
118, 119, 123 of the ICTR RPE.

Court's holding and analysis


After considering all the arguments advanced by the
Accused, the Appeals Chamber held that the Accused
had failed to demonstrate that the Trial Chamber had
committed any of the errors of fact and law alleged by
him. Hence, the Chamber dismissed the grounds of
appeal presented by the Accused (para. 423).
With regard to the Prosecution's first two grounds of
appeal, the Appeals Chamber found that the Trial
Chamber had erred in restricting the application of
common Article 3 of the Geneva Conventions to a
certain category of persons. Since it entertained the first
ground of appeal, the Appeals Chamber deemed it
unnecessary to consider the Prosecution's alternative
ground of appeal (paras. 445-446).
Concerning the Prosecution's third ground of appeal, the
Appeals Chamber clarified that Article 3 of the Statute
does not require that all crimes against humanity
enumerated therein be committed with a discriminatory
intent and that said Article restricts the Tribunal's
jurisdiction to crimes committed "as part of a widespread
or systematic attack against any civilian population" on
discriminatory grounds (para. 469).
Regarding the Prosecution's fourth ground of appeal,
the Chamber found that "incitement" under Article 6(1)
of the Statute need not be "direct and public" (para.
483).

--------------

Prosecutor v. Predrag Banović

Summary
In April 1992, the Serb forces gained control over the
municipality of Prijedor in Bosnia and Herzegovina,
capturing non-Serb men, women and children. The
captured non-Serbs were taken to detention camps,
such as the Keraterm factory outside the town of
Prijedor (Bosnia and Herzegovina). The detainees were
subjected to beatings, mistreatments and inhumane
conditions. Between June and August 1992, Predrag
Banović was a guard at the Keraterm camp. On 26 June
2003, Banović pleaded guilty to the crime against
humanity of persecutions, and Trial Chamber III found
him guilty accordingly.
In order to determine the appropriate sentence for
Banović, the Trial Chamber balanced the gravity of the
crime with the aggravating and mitigating
circumstances. The Trial Chamber held that the crimes
committed by Banović were of utmost gravity. Banović’s
position of superiority over the detainees, the
vulnerability of the victims, and the context in which the
crimes were committed, were considered by the Trial
Chamber as reflecting the gravity of the offence.
Furthermore, the Trial Chamber considered that Banović
abused his authority over the detainees, which
constituted an aggravating factor. Relevant mitigating
factors were Banović’s guilty plea, his expression of
remorse, and his personal circumstances.
The Trial Chamber sentenced Banović to 8 years of
imprisonment.

Procedural history
The consolidated indictment against Predrag Banović
was filed on 5 July 2002. On 18 June 2003, the
Prosecution and the Defense of Predrag Banović filed a
confidential joint motion for consideration of a plea
agreement which introduced a plea agreement between
the parties dated 5 June 2003 (para. 9 of the judgment).
On 26 June 2003, Predrag Banović pleaded guilty to the
crime against humanity of persecutions, punishable
under Article 5(h) and Article 7(1) of the ICTY Statute.
Subsequently, the Trial Chamber entered a finding of
guilt. See also ICTY Press Release: Predrag
Banović Pleads Guilty to One Count of Persecutions as
a Crime Against Humanity, 26 June 2003.
The Sentencing Hearing was held on 3 September
2003.

Related developments
On 28 July 2004, Predrag Banović was transferred to
France to serve his sentence.
On 3 September 2008, Predrag Banović was granted
early release.

Legally relevant facts


On 30 April 1992, the Serb forces took over control of
the Municipal Government of Prijedor (Bosnia and
Herzegovina) through carrying out a series of attacks on
villages and areas populated by non-Serbs. The attacks
resulted in the displacement and capture of non-Serbs,
who were brought to three detention camps in the
surrounding area. One of these camps was located in
the Keraterm factory, outside the town of Prijedor,
Bosnia and Herzegovina (para. 21).
The detainees of these camps were subjected to
beatings, ill-treatments, brutal and inhumane conditions
during their confinement, humiliations, harassments and
physical abuses. As a result, many of the detainees lost
their lives (paras. 24-27).
Predrag Banović was a guard at the Keraterm camp
between June and August 1992 and took active part in
the commission of crimes against the detainees (para.
23).
Pursuant to Predrag Banović’s guilty plea to the crime
against humanity of persecutions, Trial Chamber III
found him liable on 26 June 2003 (para. 13).

Core legal questions


 Considering the gravity of the crime, the aggravating

and mitigating circumstances, what is the appropriate


sentence for Predrag Banović?

Specific legal rules and provisions


 Article 24 of the ICTY Statute.

 Rules 100 and 101 of the ICTY Rules of Procedure

and Evidence.

Court's holding and analysis


The Trial Chamber accepted that “these [criminal acts of
Banović] considered either separately or in combination,
and examined in their context, are of the utmost gravity”
(para. 42). Accordingly, “[t]he direct participation of
Predrag Banović in the perpetration of these crimes, as
well as his presence when others committed the crimes,
with his knowledge, are factors that the Trial Chamber
has considered in determining [his] sentence” (para. 43).
Furthermore, the Trial Chamber accepted that “the
position of inferiority and the vulnerability of the victims
as well as the context in which the offences were
committed are relevant factors in assessing the gravity
of the offence” (para. 50).
Turning to the aggravating factors, the Trial Chamber
held that “the Accused abused his position of authority
over the detainees while on duty, mistreating and
beating them in total disregard for human life and
dignity” (para. 55).
Addressing the mitigating circumstances, the Trial
Chamber accorded relevance to Banović’s guilty plea
(paras. 66 et seq.), his sincere expression of remorse
(paras. 70 et seq.), and, to a limited extent, his personal
circumstances (paras. 73 et seq.).
Predrag Banović was sentenced to 8 years of
imprisonment (para. 96).
-----------
The Prosecutor v. Thomas Lubanga Dyilo

Summary
The armed conflict in the Democratic Republic of the
Congo opposed numerous tribes of different ethnicities
in their struggle to gain power and territory, particularly
over the Ituri provence in the north-eastern part of the
DRC, an area rich in natural resources such as gold and
diamonds. One such group, the Union Patriotique des
Congolais, was established in 2000 and appointed as its
chairman, the Accused, Thomas Lubanga Dyilo. He was
also the commander in chief of the armed wing of the
UPC, the Front Patriotique pour la Libération du Congo.
This armed group was well-known for its use of young
children to participate in the hostilities, from fighting, to
cooking, cleaning, spying, and being used as sexual
slaves.
Trial Chamber I, in the International Criminal Court’s first
verdict, convicted Thomas Lubanga of the offense of
conscripting, enlisting or using children to actively
participate in hostilities. In defining active participation,
the Chamber adopted a broad definition so as to include
children involved even indirectly, so long as their
contribution placed them in real danger as a potential
target. Unfortunately, the Chamber did not discuss
whether sexual violence against these children also fell
within the scope of the offense.

Procedural history
In March 2004, the President of the Democratic
Republic of the Congo (DRC) referred the situation in
the State to the Prosecutor of the ICC.
On 10 February 2006, Pre-Trial Chamber I issued
an arrest warrant for Lubanga for committing, as co-
perpetrator, the war crime of enlisting and conscripting
children under the age of 15 and using them to
participate in hostilities as members of the armed group,
the Force Patriotique pour la Libération du Congo.
On 16 March 2006, Lubanga was transferred to the ICC.
The charges against him were confirmed on 29 January
2007 and the trial commenced on 26 January 2009.

Related developments
Lubanga was detained at the ICC Detention Centre in
the Hague whilst awaiting sentencing.
The Prosecutor of the ICC sought a 30-year sentence,
reduced to 20 years in the event that Lubanga was able
to offer a sincere apology. See also ‘ICC Prosecutor’s
Address on the Sentencing of Thomas Lubanga’, Press
Release, Office of the Prosecutor, 13 June 2012; and
‘ICC seeks 30-year sentence for Congo warlord
Lubanga’, BBC News, 13 June 2012.
Trial Chamber I delivered its verdict on sentencing on 10
July 2012, sentencing Lubanga to 14 years’
imprisonment with credit for the 6 years already served
whilst in detention at the Hague.

Legally relevant facts


In May 1997, President Kabila came to power in Zaire
and renamed the state the Democratic Republic of the
Congo (DRC). By the time of his assassination in 2001,
at least ten conflicts ravaged the territory, with the
majority taking place either in Ituri or in the district in
which it is located (para. 70).
The conflicts in Ituri were initially economically motivated
as the area is rich in resources (para. 71) until they
progressed to ethnic hostilities between the principal
tribes of the region, the Hemas and the Lendus (para.
74). Hema’s were favoured by Belgium during its
colonisation of the area, and remained the landowning
and business elite (para. 74). Following an attempt by
Hemas to evict Lendu inhabitants from their land, armed
confrontation broke out. The Hemas received the
support of the Ugandan army (UPDF), whilst the Lendus
formed their own militias (para. 75).
The Union Patriotique du Congolais was created in
2000, with Lubanga as its President (para. 81). He
remained commander in chief of its armed wing, the
Front Patriotique pour la Libération du Congo (FPLC).
Lubanga is alleged to have conscripted, enlisted and
used children under the age of 15 in the context of these
hostilities (para. 91).

Core legal questions


 Considering that the distinction between conscription
and enlistment is whether the act was committed with
compulsion, can a child consent to enlistment?
 Is there a distinction between ‘active participation’ in
hostilities as an element of the offense of using child
soldiers and ‘direct participation’ in hostilities under
international humanitarian law?
 Does sexual violence against children fall within the
scope of active participation?

Specific legal rules and provisions


 Articles 8(2)(b)(xxvi), (e)(vii) and 25(3)(a) of

the Statute of the International Criminal Court.

Court's holding and analysis


Although conscripting, enlisting and using child soldiers
are separate offenses under the Statute (para. 609), in
the circumstances of the present case conscription and
enlistment are dealt with together. The offense is
committed at the moment a child under 15 joins an
armed group, with or without compulsion (para. 618).
Consent is not a valid defence but the manner in which
the child was recruited – whether voluntarily or with
compulsion – may be taken into account at sentencing
(para. 617).
Active participation is a broader term that includes a
greater number of activities than the notion of direct
participation in international humanitarian law (para.
627). Active participation includes direct and indirect
participation; the decisive factor is whether the support
provided by the child exposed him/her to real danger as
a potential target. Whether a particular activity
constitutes active participation is to be decided on a
case-by-case basis (para. 628).
The majority refused to consider whether sexual
violence against children can be included in the scope of
using children to actively participate in hostilities due to
the failure of the Prosecution to include it in the charges
against the Accused and the Trial and Appeals
Chamber’s decisions not to change the legal
characterisation of the facts to include crimes associated
with sexual violence (para. 630). Judge Odio Benito
dissented (paras. 16-20, Separate and Dissenting
Opinion)

----------------------------
The Prosecutor v. Anto Furundžija

Anto Furundžija was the commander of the “Jokers”, a


special unit within the Croatian Defence Council (HVO).
As such, he was actively involved in the hostilities
against the Muslim population in the Lašva Valley area
(in Bosnia and Herzegovina), including the attack on the
village of Ahmići (Bosnia and Herzegovina), where he
personally participated in expelling Muslims from their
homes in furtherance of the armed conflict. The events
giving rise to the case against Furundžija have occurred
at the “Jokers’” headquarters, a holiday cottage in
Nadioci, Bosnia and Herzegovina in May 1993. During
this time, Furundžija captured and interrogated women
with the intention to obtain information which he believed
would benefit the HVO. During the interrogations, those
detained were subjected to sexual assaults, rape,
physical and mental suffering. (para. 66 et seq. of the
judgment rendered by Trial Chamber II on 10 December
1998)
Trial Chamber II found Furundžija guilty as a co-
perpetrator of torture (a violation of the laws or customs
of war) and of aiding and abetting outrages upon
personal dignity, including rape (a violation of the laws
or customs of war). He was sentenced to 10 years of
imprisonment. (p. 112 of the judgment rendered by Trial
Chamber II on 10 December 1998)

The Trial Chamber found Anto Furundzija GUILTY, as a


co-perpetrator of torture, a Violation of the laws or
customs of war, for which he has been sentenced to 10
years’ imprisonment.

The Trial Chamber also found Anto Furundzija GUILTY,


of aiding and abetting in outrages upon personal dignity,
including rape, which constitutes a Violation of the laws
or customs of war, for which he has been sentenced to 8
years’ imprisonment.

These multiple sentences are to be served concurrently.

Background:

Further to a sealed indictment, Furundzija was detained


by SFOR on 18 December 1997. An amended
indictment, issued on 2 June 1998, alleged that the
accused was the local commander of a special unit of
the military police of the Croatian Defence Council
(HVO) known as the "Jokers". In this capacity he and
another soldier interrogated Witness A. During the
questioning, Witness A had a knife rubbed against her
inner thigh and lower stomach by the other soldier, who
threatened to put his knife inside her vagina should she
not tell the truth. The amended indictment further
alleged that Furundzija continued to interrogate Witness
A and Victim B while they were beaten on the feet with a
baton by the other soldier and further, that Furundzija
stood by, failing to intervene in any way, while Witness A
was forced to have oral and vaginal sexual intercourse
with the other soldier.

The trial of Furundzija commenced on 8 June 1998 and


the proceedings continued until 22 June 1998, at which
time the hearing was closed with judgement reserved to
a later date. Following a motion filed by the Defence, the
Trial Chamber ordered that the proceedings be
reopened. These further proceedings covered a period
of four days and the trial was finally closed on 12
November 1998.

The judgement is a document of approximately 100


pages, which this press release does not summarise. It
is merely an outline of the most significant legal aspects
of the judgement and an overview of the findings
reached by the Chamber.

The full text of the official summary as read out in Court


by the Presiding Judge and of the judgement itself will
be mailed upon request by the Public Information Unit.

THE MOST SIGNIFICANT LEGAL ASPECTS

For Article 3 of the Statute (Violations of the laws or


customs of war) to apply, the existence of an armed
conflict had to be established. The Trial Chamber relied
on the test formulated by the Appeals Chamber in the
Tadić case. Accordingly, based on the evidence
submitted by both parties, the Trial Chamber found that,
at the material time, a state of armed conflict existed in
central Bosnia and Herzegovina between the HVO and
the Army of Bosnia and Herzegovina. Furthermore, the
Trial Chamber found a connection between this armed
conflict and the acts underlying the charges against the
accused.

The proceedings that took place in November 1998


essentially dealt with the reliability of Witness A’s
evidence in light of any psychological disorder caused
by her traumatic ordeal. The Trial Chamber found that
the expert evidence demonstrated that, even when a
person is suffering from PTSD [post-traumatic stress
disorder], he or she may still be a reliable witness, and
accepted Witness A’s testimony that she had sufficiently
recollected the material aspects of the relevant events.

The judgement furthermore provides a definition of


torture under international humanitarian law. In this
regard, the Trial Chamber found that the prohibition
against torture has attained the status of jus cogens,
which can be defined as a peremptory norm of
international law from which no derogation is permitted.

According to the summary, as read out in court, the Trial


Chamber found the elements of the offence of torture to
be as follows: "the intentional infliction, by act or
omission, of severe pain or suffering, whether physical
or mental, for the purpose of obtaining information or a
confession or of punishing, intimidating, humiliating or
coercing the victim or a third person, or of discriminating
on any ground against the victim or a third person. For
such an act to constitute torture, one of the parties
thereto must be a public official or must, at any rate, act
in a non-private capacity, e.g. as a de facto organ of a
State or any other authority wielding entity."

Having found that it is indisputable that rape and other


serious sexual assaults in situations of armed conflict
entail criminal liability of the perpetrators, the Trial
Chamber upheld the finding in the recent judgement in
the Ćelebići case that, in certain circumstances, rape
may amount to torture under international law. However,
the Trial Chamber has seen fit to expand the definition
of rape first formulated by Trial Chamber I of the
International Criminal Tribunal for Rwanda (ICTR) in the
Akayesu case and followed in the ICTY Ćelebići
judgement.

According to the summary of the judgement, the Trial


Chamber found that under international criminal law the
offence of rape comprises the following elements: "the
sexual penetration, however slight, either of the vagina
or anus of the victim by the penis of the perpetrator, or
any other object used by the perpetrator, or of the mouth
of the victim by the penis of the perpetrator, where such
penetration is effected by coercion or force or threat of
force against the victim or a third person."

As to individual criminal responsibility under Article 7(1)


of the Statute, the Trial Chamber found that aiding and
abetting under international criminal law requires
practical assistance, encouragement, or moral support
having a substantial effect on the perpetration of the
crime (actus reus), and knowledge that such acts assist
the commission of the offence (mens rea).

Furthermore, the Chamber is determined that an


accused who, under this standard would be liable for
aiding and abetting torture, is responsible as a co-
perpetrator of torture, if he or she participates in an
integral part of the torture and partakes of the prohibited
purpose behind the torture, i.e. the intent to obtain
information or a confession, to punish or intimidate,
humiliate, coerce or discriminate against the victim or a
third person.
CREDIT FOR TIME SERVED

The Prosecutor v. Germain Katanga

Between 1999 and 2003, Ituri (Democratic Republic of


Congo - DRC) was the scene of a violent
conflict between the Lendu, Ngiti and Hema ethnic
groups. The Hema-dominated Union of Congolese
Patriots (UPC) seized control of Bunia, the district
capital, in August 2002. On the road between Bunia and
the border with Uganda lies the strategically
important town of Bogoro, with a UPC military camp in
the middle of the town. On 24 February 2003 a Ngiti
militia attacked Bogoro, aiming to drive out or eliminate
the UPC camp as well as the Hema population.
Numerous civilians were murdered and/or raped and the
town was partly destroyed.
During this time, Germain Katanga was President of the
Ngiti militia and Commander or Chief of Aveba. As such,
he formally exercised authority over the attackers;
therefore he was indicted by the ICC for participating in
the crimes against humanity and war crimes committed
during the Bogoro attack.
The Trial Chamber found that Katanga, while formally
President, did not have full operational command over
all fighting forces and commanders. Therefore he was
acquitted of some of the crimes committed. However,
since he had provided indispensable logistical aid
(providing arms and transportation), he had enabled the
militia to commit the crimes. He knew of their intent and
intentionally contributed to the perpetration of the
crimes; as such, the Chamber found him guilty, as
accessory, of the crime against humanity of murder and
the war crimes of murder, attacking a civilian population,
destruction of property and pillaging.
On 23 May 2014, the Court sentenced Katanga to 12
years' imprisonment with credit for time served in the
ICC's detention centre, approximately 7 years.

As reported by the UN, the attack aimed to drive the


UPC from Bogoro, but also appeared to be a reprisal
operation against the Hema civilian population for
supporting the UPC; the attack was part of a plan by
Lendu and Ngiti rebels to attack predominantly Hema
villages in preparation for an assault on Bunia.
Germain Katanga and Mathieu Ngudjolo were believed
to be linked to the attack and as such they were indicted
for numerous crimes during the attack, jointly as well as
in person, including:
 wilful killing as a war crime under article 8(2)(a)(i) of
the Statute;
 murder as a crime against humanity under article
7(1)(a) of the Statute;
 directing an attack against a civilian population as
such or against individual civilians not taking direct
part in hostilities, as a war crime under article
8(2)(b)(i) of the Statute;
 destruction of property as a war crime under article
8(2)(b)(xiii) of the Statute;
 pillaging as a war crime under article 8(2)(b)(xvi) of
the Statute, in the knowledge that this crime would
occur in the ordinary course of events;
 the war crime of using children under the age of
fifteen years to participate actively in the hostilities,
under article 8(2)(b)(xxvi) of the Statute.
 sexual slavery as a war crime under article
8(2)(b)(xxii) of the Statute;
 sexual slavery as a crime against humanity under
article 7(1)(g) of the
 Statute;
 rape as a war crime under article 8(2)(b)(xxii) of the
Statute; and
 rape as a crime against humanity under article 7(1)(g)
of the Statute.

Court's holding and analysis


It was established that on 24 February 2003, Bogoro
was attacked by the Ngiti combatants of Walendu-Bindi
collectivité and the Lendu combatants of Bedu-
Ezekere groupement, with reinforcements from the
APC. The Chamber has not, however, been able
to affirm that Katanga was present on this day, that
he participated in the fighting, or that he took part in the
victory celebrations in the village and/or
claimed responsibility for that victory (summary, para.
16).
The Chamber did find beyond reasonable doubt that
Ngiti combatants intentionally directly targetted the
predominantly Hema civilian population of Bogoro on 24
February 2003 and established that numerous crimes
against humanity and war crimes - murders, rapes and
destruction of property - had been committed (paras. 30-
38). Furthermore, it was established that child soldiers
were used during the attack (para. 41). However, no
nexus could be identified indicating that Katanga used
these children to participate in the hostilities.
Considering Katanga's role in the attack, the Chamber
found that he - bearing the titles President of the Ngiti
militia and Commander or Chief of Aveba – was a
seasoned and well-known soldier with undeniable
military authority over the collectivité, authority
over administration, oversight, security and public order,
and with close ties to priests in the Walendu-
Bindi collectivité (paras. 44-46). Nevertheless, the
effectiveness of his authority over the supply and
distribution of weapons and ammunition to the militia, his
duties as facilitator and negotiator did not, however,
allow the Chamber to find beyond reasonable doubt that
Katanga had effective hierarchical power over all the
commanders and combatants of the Ngiti militia in
Walendu-Bindi collectivité.
Although Katanga's individual responsibility as principal
perpetrator could, as such, not be vested, the Chamber
did find him responsible as an accessory to a number of
the crimes. Since he had not only been part of the
attacking group which had the common purpose of
eliminating the Hema population of Bogoro but
also significantly (through logistical aid, provinding
weapons and transportation, enabling the militia to
operate) and intentionally contributed to the commission
of the crimes, knowing of the group's intent, he was
found guilty of one count of crime against humanity
(murder) and four counts of war crimes (murder,
attacking a civilian population, destruction of property
and pillaging).

The Chamber acquitted him of the other charges that he


was facing.

The Court sentenced Katanga to 12 years'


imprisonment with credit for time served in the ICC's
detention centre, approximately 7 years.

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-------------------------------------
The Prosecutor v. Dragoljub Kunarac, Radomir
Kovač and Zoran Vuković

Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković


were brought before the ICTY for their roles in the
commission of crimes against the Bosnian Muslim
civilians between April 1992 and February 1993. During
this time, an armed conflict existed between the Bosnian
Serbs and the Bosnian Muslims, and the Bosnian Serb
Army and paramilitary groups detained Bosnian Muslim
women and subjected them to repeated rapes, torture
and other mistreatments.
Trial Chamber II found that the acts of the Bosnian
Serbs amounted to war crimes and crimes against
humanity. It found the three accused responsible for
these crimes.
Dragoljub Kunarac was found guilty of crimes against
humanity (torture, rape, enslavement), and war crimes
(torture and rape) and, subsequently, sentenced to 28
years of imprisonment.
Radomir Kovač was also found guilty of the war crimes
of rape and outrages upon personal dignity, as well as
the crimes against humanity of enslavement and rape.
He was sentenced to 20 years of imprisonment.
Zoran Vuković was found guilty of torture and rape as
both war crimes and crimes against humanity. Trial
Chamber II sentenced him to 12 years of imprisonment.

Related developments
On 6 March 2001, Kovač and Vuković filed a notice of
appeal against the trial judgment and sentence. Kunarac
filed his notice of appeal on 7 March 2001.
The Appeals Chamber rendered its judgment on 12
June 2002 affirming the sentences handed down by
Trial Chamber II.
On 28 November 2002, Kovač and Vuković were
transferred to Norway to serve their sentences (see
ICTY, 'Radomir Kovac and Zoran Vukovic Transferred to
Norway to Serve Prison Sentences', ICTY Press
Release, 28 November 2002. On 12 December 2002,
Kunarac was transferred to Germany to serve his
sentence (see ICTY, 'Dragoljub Kunarac Transferred to
Germany to Serve Prison Sentence', ICTY Press
Release, 12 December 2002.
On 11 March 2008, Vuković was granted early release.
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Legally relevant facts


The events giving rise to the case have occurred in the
area of Foča, Bosnia and Herzegovina between April
1992 and February 1993. During this period, an armed
conflict existed between Bosnian Serbs and Bosnian
Muslims. The Bosnian Serb Army and paramilitary
groups targeted the non-Serb civilian population aiming
the ‘cleansing’ of the Foča area of non-Serbs. Muslim
men were separated from the women and children.
While the men were detained at the prison facility called
Foča KP Dom (situated near Foča, Bosnia and
Herzegovina), the women and children were taken to
collection points and transferred to the Foča High
School and later to the Partizan Sports Hall (both
located in Foča, Bosnia and Herzegovina). At these
centers they were subjected to unhygienic conditions
and mistreatments, including repeated rapes. (paras.
12 et seq.)
Kunarac was the leader of a reconnaissance unit
forming part of the Foča Tactical Group, having access
to the highest military command. Kovač and Vuković
were members of the Bosnian Serb military unit. (paras.
48 et seq.)
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Core legal questions


 Have the elements of the charged crimes been

fulfilled?
 If so, can Dragoljub Kunarac, Radomir Kovač and

Zoran Vuković be held responsible for these crimes?


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Specific legal rules and provisions


 Articles 3, 5, 7(1) and 7(3) of the ICTY Statute.

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Court's holding and analysis


Trial Chamber II was satisfied that “the armed conflict
has been established beyond reasonable doubt with
respect to all three municipalities” (paras. 567 et seq.).

With respect to crimes against humanity, Trial Chamber


II found that “the crimes committed by all three accused
were part of the attack against the Muslim civilian
population and that all three accused had mens
rea required under Article 5 of the Statute” (para. 592).
Furthermore, “judging by [Kunarac, Kovač and
Vuković’s] individual conduct as charged and proved on
the evidence before the Trial Chamber, they were aware
that there was an attack on the Muslim civilian
population going on, and they willingly took an active
part in it” (para. 592).
Trial Chamber II found Kunarac guilty of crimes against
humanity (torture, rape, enslavement) and war crimes
(torture and rape) (paras. 593 et seq.).

Kovač was also found guilty of the war crimes of rape


and outrages upon personal dignity, as well as the
crimes against humanity of enslavement and rape
(paras. 746 et seq.).

Vuković was found guilty of torture and rape as both war


crimes and crimes against humanity (paras. 783 et
seq.).

Kunarac, Kovač and Vuković were sentenced to 28, 20


and 12 years of imprisonment.
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------------------------------------
The Prosecutor v. Ferdinand Mahimana, Jean-Bosco
Barayagwiza and Hassan Ngeze

Summary
The three Accused – Ferdinand Nahimana, Jean Bosco
Barayagwiza and Hassan Ngeze - were charged in
separate indictments but were tried jointly for their role in
the Rwandan genocide. They were all charged with
genocide, conspiracy to commit genocide, direct and
public incitement to commit genocide and persecution
and extermination as crimes against humanity.
Nahimana and Barayagwiza were additionally charged
murder as a crime against humanity, while Barayagwiza
was also charged with war crimes.
On 3 December 2003, Trial Chamber I of the ICTR
found the three Accused guilty of conspiracy to commit
genocide, genocide, direct and public incitement to
commit genocide and persecution and extermination as
crimes against humanity. They were found not guilty of
complicity in genocide and of murder as a crime against
humanity. Barayagwiza was also acquitted of the
charges for war crimes. The Chamber
sentenced Nahimana and Ngeze to life imprisonment.
Regarding Barayagwiza, the Chamber considered that
the appropriate sentence was life imprisonment, but, in
its decisions dated 31 March 2000, the Appeals
Chamber had decided that for the violation of his rights,
the Accused was entitled to a reduction of his sentence,
if he was found guilty. Therefore, the Trial Chamber
sentenced him to twenty-seven years, three months and
twenty-one days.

Procedural history
Nahimana was charged, pursuant to the amended
indictment filed on 15 November 1999, with seven
counts: conspiracy to commit genocide, genocide, direct
and public incitement to commit genocide, complicity in
genocide, and crimes against humanity (persecution,
extermination and murder). He was charged with
individual responsibility under Article 6(1) for these
crimes, and was also charged with superior
responsibility under Article 6(3) in respect of direct and
public incitement to commit genocide and crimes against
humanity (persecution).
Barayagwiza was charged, pursuant to the amended
indictment filed on 14 April 2000, with nine counts:
conspiracy to commit genocide, genocide, direct and
public incitement to commit genocide, complicity in
genocide, crimes against humanity (persecution,
extermination and murder), and two counts of serious
violations of Article 3 common to the Geneva
Conventions and of Additional Protocol II. He was
charged with individual responsibility under Article 6(1)
in respect of these counts, except the two counts
relating to serious violations of Article 3 common to the
Geneva Conventions and of Additional Protocol II. He
was additionally charged with superior responsibility
under Article 6(3) of the Statute in respect of all the
counts, except that of conspiracy to commit genocide.
Ngeze was charged, pursuant to the amended
indictment dated 10 November 1999, with seven counts:
conspiracy to commit genocide, genocide, direct and
public incitement to commit genocide, complicity in
genocide, and crimes against humanity (persecution,
extermination and murder). He was charged with
individual responsibility under Article 6(1) for these
crimes, and was additionally charged with superior
responsibility under Article 6(3) in respect of all but one
of the crimes - conspiracy to commit genocide.
On 25 September 2002, the Chamber acquitted Mr.
Nahimana and Mr. Barayagwiza of crimes against
humanity (murder), and further acquitted Mr.
Barayagwiza of the two counts of serious violations of
Article 3 Common to the Geneva Conventions and of
Additional Protocol II, since the Prosecution had
conceded that there was no evidence presented of
these crimes.
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Related developments
The Accused appealed their convictions and sentence.
The Appeals Chamber judgment reversed certain
findings of the Trial Chamber and affirmed others.
Nahimana’s sentence was reduced to 30 years’
imprisonment. Barayagwiza’s sentence was reduced to
32 years of imprisonment. And Ngeze’s sentence was
substituted for a 35 years prison term.
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Legally relevant facts


In 1992, Nahimana and others founded a comité d’
initiative to set up the company known as Radio
Télévision Libre des Mille Collines, S.A. He was a
member of the party known as Mouvement
Révolutionnaire National pour le
Développement (MRND) (para. 5).
Barayagwiza was a lawyer by training and a founding
member of the Coalition pour la Défense de la
République (CDR) party, which had been formed in
1992. He was a member of the comité d’ initiative.
During this time, he also held the post of Director of
Political Affairs in the Ministry of Foreign Affairs (para.
6).
In 1990, Ngeze had founded the
newspaper Kangura and held the post of Editor-in-Chief.
He was a founding member of the CDR party (para. 7).
Nahimana was charged with seven counts: conspiracy
to commit genocide, genocide, direct and public
incitement to commit genocide, complicity in genocide,
and crimes against humanity (persecution, extermination
and murder) (para 8).
Barayagwiza was charged with nine counts: conspiracy
to commit genocide, genocide, direct and public
incitement to commit genocide, complicity in genocide,
crimes against humanity (persecution, extermination and
murder), and two counts of serious violations of Article 3
common to the Geneva Conventions and of Additional
Protocol II (para. 9).
Ngeze was charged with seven counts: conspiracy to
commit genocide, genocide, direct and public incitement
to commit genocide, complicity in genocide, and crimes
against humanity (persecution, extermination and
murder) (para. 10).
Due to lack of evidence, the Chamber
acquitted Nahimana and Barayagwiza of crimes against
humanity (murder), and further acquitted Barayagwiza of
the two counts of serious violations of Article 3 Common
to the Geneva Conventions and of Additional Protocol II
(para.12).
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Core legal questions


 Whether Nahimana was guilty of the crimes of

conspiracy to commit genocide, genocide, direct and


public incitement to commit genocide, complicity in
genocide, and crimes against humanity (persecution,
extermination and murder).
 Whether the Prosecution proved beyond reasonable

doubt that Barayagwiza had committed the crimes of


conspiracy to commit genocide, genocide, direct and
public incitement to commit genocide, complicity in
genocide, crimes against humanity (persecution,
extermination and murder), and serious violations of
Article 3 common to the Geneva Conventions and of
Additional Protocol II.
 Whether Ngeze was guilty of conspiracy to commit

genocide, genocide, direct and public incitement to


commit genocide, complicity in genocide, and crimes
against humanity (persecution, extermination and
murder).
 Which factors the Trial Chamber should take into

account upon sentencing.


 What the appropriate sentence would be, in case the

Accused were found guilty.


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Specific legal rules and provisions


 Articles 2, 3, 4, 6(1),(3), 20, 22 and 23 of the Statute

of the International Criminal Tribunal for Rwanda.


 Rules 40bis(D),(F),(G), 48, 48bis, 62(A)(iii), 65, 66,

67, 68, 70(A), 72, 73(E), 73bis, 73ter, 89(A),(B),(C),


91, 98bis, 101, 102(A) and 103 of the Rules of
Procedure and Evidence of the International Criminal
Tribunal for Rwanda.
 Article 3 common to the Geneva Conventions and of

Additional Protocol II thereto.


 Articles 7 and 19 of the Universal Declaration of

Human Rights.
 Articles 19(2),(3) and 20 of the International Covenant

on Civil and Political Rights.


 Article 4(a),(b) of the Convention on the Elimination of

all Forms of Racial Discrimination.


 Article 10 of the European Convention of Human
Rights.
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Court's holding and analysis


The Trial Chamber found Nahimana guilty of conspiracy
to commit genocide, genocide, direct and public
incitement to commit genocide, as well as persecution
and extermination as crimes against humanity. He was
acquitted of complicity in genocide and of murder as a
crime against humanity (para. 1092).
The Chamber held that that Barayagwiza was guilty of
conspiracy to commit genocide, genocide, direct and
public incitement to commit genocide as well as
persecution and extermination as crimes against
humanity. He was acquitted of complicity in genocide
and of murder as a crime against humanity, as well as of
serious violations of Article 3 common to the Geneva
Conventions and of Additional Protocol II (para. 1093).
Ngeze, was found guilty of conspiracy to commit
genocide, genocide, direct and public incitement to
commit genocide and persecution and extermination as
crimes against humanity. He was acquitted of complicity
in genocide and of murder as a crime against humanity
(para. 1094).
After taking into account the gravity of the offences, the
individual circumstances of the Accused and the
aggravating and mitigating factors, the Trial Chamber
sentenced Nahimana and Ngeze to life imprisonment.
After giving credit to time served, the Chamber
sentenced Barayagwiza to twenty-seven years, three
months and twenty-one days (paras. 1105,1107-1108).
---------------------------------------------------------------------------------
----------------------------------
The Prosecutor v. Popović et al

Summary
The Bosnian Serb Forces conducted a campaign of
attacks against the Bosnian Muslim population of
Srebrenica and Žepa between March and September
1995.
After the fall of Srebrenica in July 1995, the men were
separated from the women, children and elderly, and
transported to locations where they were detained and
killed.
The Trial Chamber found that these acts constituted
genocide, crimes against humanity and war crimes. The
Chamber found that there were two separate criminal
plans, the first of which aimed to murder the Bosnian
Muslim men, and the second to remove the civilians
from Srebrenica and Žepa.
For their acts and omissions, the seven accused were
found guilty on several counts. The Chamber found all of
the accused responsible on counts of crimes against
humanity. Popović, Beara, Nikolić, and Borovčanin were
found guilty for violations of the laws or customs of war,
and with the exception of Borovčanin, they were also
found guilty on charges of genocide.
While Popović and Beara received a punishment of life
imprisonment, the rest received sentences between 5
and 35 years of imprisonment.
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Procedural history
The operative indictment was issued on 4 August 2006.
The Trial commenced on 21 August 2006 and closing
arguments were heard between 2 and 15 September
2009.
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Related developments
Both the Prosecution and the Defence teams of all but
Borovčanin filed their appeals briefs between April and
August 2011.
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Legally relevant facts


In March 1995, the then President of the Republika
Srpska and Supreme Commander of the Bosnian Serb
Army (VRS) Karadžić outlined an attack plan against the
civilians of Srebrenica and Žepa (para. 199). On 6 July
the VRS initiated the attacks by shelling, leading to the
fall of Srebrenica by 11 July (paras. 242, 249 and 260).
Thousands of Bosnian Muslims fled Srebrenica, mostly
heading towards the DutchBat Compound in Potočari
(para. 263 et seq). Some of the Bosnian Muslim men
fled to the valleys of Srebrenica forming a column (para.
267 et seq).
The VRS separated the Bosnian Muslim men in Potočari
from the women, children and the elderly (paras. 316
and 319) and transported them by buses to the town of
Bratunac (para. 338), and later to Zvornik where they
were detained in an atmosphere of terror amidst
beatings and executions. Later they were transported to
several nearby locations where they were killed (para.
473 et seq).
Meanwhile, the VRS targeted Žepa with the aim to
remove the population (para. 665 et seq). Between 26
and 27 July about 5,000 Bosnian Muslims were
transported out of Žepa (para. 719).
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Core legal questions


 Have the charged crimes been committed in

Srebrenica and Žepa?


 Can the seven accused be held individually

responsible for these crimes?


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Specific legal rules and provisions


 Articles 3 (War Crimes), 4 (Genocide), Article

5 (Crimes Against Humanity), 7(1) (Individual Criminal


Responsibility) and 7(3)(Command Responsibility) of
the ICTY Statute.
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Court's holding and analysis


The Trial Chamber held that there were two joint
criminal enterprises (JCE); one which aimed to murder,
and one which aimed to forcibly remove civilians from
Srebrenica and Žepa. The Trial Chamber found that
through their roles and engagement in the operations
after the fall of Srebrenica, Popović, Beara and Nikolić
participated in the JCE to murder the Bosnian Muslim
men. There was insufficient evidence to prove that
Borovčanin contributed to the JCE to murder.
Furthermore, Popović was also considered to have
participated in the JCE to forcibly remove Bosnian
Muslim civilians from Srebrenica, while Miletić
substantially contributed to it. Although the Chamber
found that Gvero also made a significant contribution to
the JCE to forcibly remove civilians, it was not
foreseeable to him that they would be murdered later
(para. 1089 et seq).
The Chamber was also satisfied that Popović, Beara
possessed the special genocidal intent to destroy a
group (paras. 1180; 1317). Nikolić knew about the
genocidal intent of the other perpetrators and
substantially contributed to the commission of genocide
(para. 1407).
Pandurević was held responsible for his failure to
prevent his subordinates from committing crimes and
significantly contributing to the murder of the Bosnian
Muslims (paras. 1991; 2066).

The Prosecutor v. Duško Tadić

Summary
After the takeover of Prijedor (Bosnia and Herzegovina)
and the attack launched against the town of Kozarac
(Bosnia and Herzegovina) in 1992, the non-Serb
civilians were detained in several prison facilities, where
they were beaten, sexually assaulted, tortured, killed
and otherwise mistreated. Duško Tadić was the
President of the Local Board of the Serb Democratic
Party in Kozarac (Bosnia and Herzegovina). Trial
Chamber II found Duško Tadić guilty of crimes against
humanity and war crimes and, in a separate sentencing
judgment, sentenced him to 20 years of imprisonment.
The Appeals Chamber denied Duško Tadić’s appeal on
all grounds. It did allow, however, the Prosecution’s
appeal, reversing the judgment of Trial Chamber II and
entering convictions for war crimes and crimes against
humanity.
The Appeals Chamber also held that an act carried out
for the purely personal motives of the perpetrator can
constitute a crime against humanity. Furthermore, Trial
Chamber II erred in finding that all crimes against
humanity require discriminatory intent.
The issue of sentencing was referred to a Trial
Chamber.
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Procedural history
The amended indictment was filed on 14 December
1995. The trial commenced on 7 May 1996, and Trial
Chamber II rendered its Opinion and Judgment on 7
May 1997, finding Tadić guilty of violations of the laws or
customs of war and crimes against humanity.
Thereafter, Trial Chamber II rendered its Sentencing
Judgment on 14 July 1997, sentencing Tadić to 20 years
of imprisonment.
The parties appealed against the Opinion and Judgment
of 7 May 1997, and Tadić further filed an appeal against
the Sentencing Judgment of 14 July 1997.
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Related developments
On 11 November 1999, Trial Chamber II bis rendered its
sentencing judgment on the additional counts, imposing
a sentence of 25 years of imprisonment.
On 25 November 1999, Tadić filed a notice of appeal
against the Sentencing Judgment of 11 November 1999.
Pursuant to his request, the Appeals Chamber ordered
that the appeal be joined with the Appeal against the
Sentencing Judgment of 14 July 1997.
The Appeals Chamber rendered its judgment on 26
January 2000; it upheld the convictions for war crimes
and crimes against humanity, but found that the trial
Chamber had erred in the sentencing. Hence, the prison
sentence was reduced to twenty years.
On 31 October 2000, Duško Tadić was transferred to
Germany to serve his sentence (see ICTY, 'Duško Tadić
Transferred to Germany to Serve Prison
Sentence', ICTY Press Release, 31 October 2000).
On 18 June 2001, Duško Tadić filed a request for a
review of his complete case, in light of the decision on
contempt of the Tribunal. The Appeals Chamber
dismissed the request on 30 July 2002. On 17 July
2008, Duško Tadić was granted early release.
During the Tadić procedure, contempt hearings were
initiated against Milan Vujin, lead counsel for the
Defence of Duško Tadić. On 31 January 2000, the
Appeals Chamber found Vujin in contempt of the
Tribunal and fined him. A subsequent appeal was
dismissed by the Appeals Chamber on 27 February
2001 (see ICTY, 'Milan Vujin, former Counsel for Dusko
Tadic, Found in Contempt of the Tribunal, and Fined
15,000 Dutch Guilders', ICTY Press Release, 31
January 2000).
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Legally relevant facts


On 30 April 1992, the Serb Democratic Party (SDS) took
over control in the town of Prijedor (Bosnia and
Herzegovina). On 24 May 1992, the nearby town of
Kozarac (Bosnia and Herzegovina) was attacked,
resulting in the killing of some 800 civilians, and the
removal of non-Serbs from the town. During the attack
on Kozarac, non-Serb civilians were beaten, robbed and
murdered by the Serb forces. After the takeover of
Prijedor and the surrounding areas, the Serb forces
detained non-Serb civilians in three major prison camps:
the Omarska, Keraterm, and Trnopolje camps (all near
Prijedor, Bosnia and Herzegovina). Those who were
detained were subjected to beatings, sexual assaults,
torture, executions, and psychological abuse.
Furthermore, the detainees were held in unhygienic
conditions in overcrowded rooms (para. 53 et seq. of the
judgment rendered by Trial Chamber II on 7 May 1997).
Duško Tadić was the President of the Local Board of the
Serb Democratic Party in Kozarac (Bosnia and
Herzegovina).
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Core legal questions


 Did Trial Chamber II err in its findings with respect to

the convictions of Duško Tadić?


 Can the Appeals Chamber uphold any of the grounds

of the Appellants?
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Specific legal rules and provisions


 Articles 2, 5, 20, 21, 25 of the ICTY Statute;

 Rule 115 of the ICTY Rules of Procedure and

Evidence.
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Court's holding and analysis


The Appeals Chamber denied Tadić’s appeal on all
grounds.
In its first ground of appeal, the Prosecution argued that
Trial Chamber II “erred by relying exclusively upon the
“effective control” test derived from the Case concerning
Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States) in order to
determine the applicability of the grave breach
provisions of the relevant Geneva Convention” (para.
73). The Appeals Chamber found that “[t]he “effective
control” test propounded by the International Court of
Justice as an exclusive and all-embracing test is at
variance with international judicial and State practice:
such practice has envisaged State responsibility in
circumstances where a lower degree of control than that
demanded by the Nicaragua test was exercised” (para.
124) introducing a different test of overall control with
respect to military or paramilitary groups. Exercising
overall control means “not only [the] equipping and
financing [of] the group, but also [the] coordinating or
helping in the general planning of its military activity.”
(para. 131) The Appeals Chamber concluded that “the
armed forces of the Republika Srpska were to be
regarded as acting under the overall control of and on
behalf of the [Federal Republic of Yugoslavia]. Hence,
even after 19 May 1992 the armed conflict in Bosnia and
Herzegovina between the Bosnian Serbs and the central
authorities of Bosnia and Herzegovina must be
classified as an international armed conflict” (para. 162).
The Appeals Chamber reversed Tadić’s acquittal and
found him guilty of grave breaches of the Geneva
Conventions. (para. 171)
The Appeals Chamber also held that “[t]he Trial
Chamber erred in holding that it could not, on the
evidence before it, be satisfied beyond reasonable
doubt that the Appellant had any part in the killing of the
five men” (para. 233), finding Tadić guilty of additional
war crimes and crimes against humanity (paras. 235-
237).
The Appeals Chamber further found that “the
requirement that an act must not have been carried out
for the purely personal motives of the perpetrator does
not form part of the prerequisites necessary for conduct
to fall within the definition of a crime against humanity
under Article 5 of the Tribunal’s Statute” (para. 272).
The Appeals Chamber also held that “the Trial Chamber
erred in finding that all crimes against humanity require
a discriminatory intent.” (para. 305)
The issue of sentencing was referred to a Trial Chamber
(p. 144).