Ration propounded and final Decision of Article 5 (Sentencing and current status)

ANUJ KHANDARE (UG2017-21)

APPEAL ON ARTICLE 5 BY Stakić

In its analysis of the Stakić’s responsibility for the crimes he committed in Prijedor, the Trial
Chamber specifically rejected the application of joint criminal enterprise as a mode of
liability despite the fact that it had been pleaded by the Prosecution both in the Indictment
and at trial. Therefore, in lieu of joint criminal enterprise, the Trial Chamber applied a mode
of liability which it termed “co- perpetratorship,” which was as concluded by the Appeals
Chamber that it is new to the jurisprudence of the present Tribunal and hence gave the
reasoning with respect to Joint Criminal Enterprise and Article 5.

The Trial Chamber erred in the construction of the various doctrines based on Article 5 of
the statute of the tribunal and its application. Therefore as to no prejudice to the conclusion
reached by Trial Chamber, Appeals Chamber gave a construction to various aspects and
to futile arguments by Stakić as follows-

I. Joint Criminal Enterprise

1. The Appeals Chamber founds that the mode of liability of “co-perpetratorship,” as
defined and applied by the Trial Chamber, does not have support in customary
international law, or in the settled jurisprudence of the present Tribunal.
2. The Appeals Chamber found that as the Trial Chamber erred in employing a mode of
liability which is not valid law within the jurisdiction of this Tribunal, its decision as to
the mode of liability it employed in the Trial Judgement is invalidated in the present
reasoning.1
3. To remedy this error by the Trial Chamber, the Appeals Chamber applied the correct
legal framework that of joint criminal enterprise - to the factual conclusions of the Trial
Chamber to determine whether they support liability for the crimes charged followed-

II. Article 5
Stakić appealed the Appeals Chamber that from the Trial Chamber on article 5

In his first sub-ground of appeal, Stakić denied that the attacks in Prijedor were
widespread or systematic as required by Article 5. Here the appeals chamber said that
the appellant which was Melemor Stakić has failed to demonstrate to the Appeals
Chamber that how the Trial Chamber’s findings of the existence of a systematic attack
were unreasonable in light of all the evidence. 2
In his second sub-ground of appeal, Stakić argued that the Trial Chamber erred in law in
its treatment of extermination as a crime against humanity on the reasoning as that
‘extermination’ requires both that a “vast scheme of collective murder” to be established
and that the accused person to have a knowledge of such a scheme. 3 He further
submitted that the mens rea for extermination requires an intent to kill a large number of
individuals, the number of which should be in the thousands in order to meet the
threshold of severity and gravity of the crime. In literal sense, Stakić argued as he was

1 Stakić́ Response Brief, para. 63.

2 Stakić́ Response Brief, para. 70.
3 Tadić Appeal Judgement, para. 220.
 imposing his imperialist policies on the territory of prejidor and not had the required
mens rea for any criminal act in the territory. 4
In his third and as comparing with second ground of appeal, Stakić alleged that a
number of factual and legal errors were there in the reasoning of the Trial Chamber
which he argued the same bases on the conclusion that Trial Chamber denied him a fair
trial occasioning a miscarriage of justice. For which submitted that the Trial Chamber
erred in denying his request to obtain certain expert witnesses, in not admitting nine
witness statements pursuant to Rule 92bis, in denying his motion for a mistrial based on
violations of Rule 68, in admitting certain of the Prosecution’s Rule 92bis evidence, in
issuing numerous Rule 91 warnings to defence witnesses, and in admitting “unreliable
and untrustworthy” evidence. Therefore the Appeals Chamber while giving a reasoning
to his arguments said that they have addressed each of these specific challenges in
detail as to why he has been held guilty of misdemeanour, judgement and has
dismissed them, and on the second ground of appeal, on the basis that the Trial
Chamber did not commit any errors and the same is admitted.

II. Deportation
Stakić challenged the Application of the law of deportation as on what grounds he was
deported.

Stakić submitted that the Trial Chamber erred in its application of the law on deportation
by not requiring forcible displacement across a national border and by inferring that he
had the intent to deport the non-Serb population permanently. He further submitted that
the Trial Chamber overlooked evidence demonstrating that persons left Prijedor
voluntarily, and The trial Chamber erred when it concluded that departures organised by
international humanitarian organisations are not permitted under international law. 5
The Appeals Chamber while while giving a reasoning for the applicable law for
deportation gave a reasoning as holds actus reus of deportation is the forced
displacement of persons by expulsion or other forms of coercion from the area in which
they are lawfully present, across a de jure state border or, in certain circumstances, a
de facto border, without grounds permitted under international law. Therefore Appeals
Chamber had found no evidence that demonstrated that transfers across constantly
changing frontlines may amount to deportation under customary international law. The
Appeals Chamber considered that the mens rea of deportation does not require an
intent that deportees should not return.6

I. Persecutions
Applicable law for deportation.

With respect to the fourth sub-ground of appeal concerning Article 5, Stakić submitted
that the Trial Chamber lowered the threshold of proof required for persecutions by
accepting dolus eventualis7 as sufficient to prove the mens rea for acts underlying
persecutions. He further submitted that the Trial Chamber provided inadequate analysis
of how the dolus specialis requirement for persecutions was met.
The Appeals Chamber found that the Trial Chamber carefully considered evidence of
Stakić personal discriminatory intent; such intent was neither presumed nor “transferred”
from the direct perpetrators. Therefore the Trial Chamber gave further conclusion that
4 Stakić́ Response Brief, para. 71.
5 Stakić́ Response Brief, para. 87.
6 Stakić́ Response Brief, para. 88.
7 Trial Judgement, para. 13.
 that the Trial Chamber did not erred in its consideration of the evidence on the Stakic ́’s
mens rea for persecutions. Accordingly, the arguments of Stakić were dismissed.8

8 Prosecution Appeal Brief, para. 5.51.