1 Composed of Judge Gabrielle Kirk McDonald (Presiding), Judge Ninian Stephen and Judge Lai Chand Vohrah.

2 “Opinion and Judgment”, The Prosecutor v. Duško Tadić, Case No.: IT-94-1-T, Trial Chamber JJ, 7 May 1997. (For a list of designations and abbreviations used in this Judgement, see Annex A — Glossary of Terms).

3 “Sentencing Judgment”, The Prosecutor v. Duško Tadić, Case No.: IT-94-1-T, Trial Chamber JJ, 14 July 1997.

4 “Judgement”, The Prosecutor v. Dražen Erdemović, Case No.: JT-96-22-A, Appeals Chamber, 7 October 1997.

5 It should be observed that Duško Tadić in the present proceedings is appellant and cross-respondent. Conversely, the Prosecutor is respondent and cross-appellant. In the interest of clarity of presentation, however, the designations “Defence” or “Appellant” and “Prosecution“ or “Cross-Appellant” will be employed throughout this Judgement.

6 “Amended Notice of Appeal”, Case No.: IT-94-1-A, 8 January 1999.

7 Transcript of hearing in The Prosecutor v Duško Tadić, Case No.: IT-94-1-A, 25 January 1999, p. 307 (T. 307 (25 January 1999). (All transcript page numbers referred to in the course of this Judgement are from the unofficial, uncorrected version of the English transcript. Minor differences may therefore exist between the pagination therein and that of the final English transcript released to the public).

8 ‘'Notice of Appeal”, Case No.: JT-94-1-A, 6 June 1997

9 “Motion for the Extension of the Time Limit”, Case No.: JT-94-1-A, 6 October 1997.

10 T.105 (22 January 1998).

11 “Decision on Appellant's Motion for the Extension of the Time-limit and Admission of Additional Evidence”, Case No.: IT-94-1-A, 15 October 1998.

12 “Appellants Brief on Appeal Against Opinion and Judgement of 7 May 1997”, Case No.: IT-94-1-A, 12 January 1998, with accompanying appendices separately filed; “Appellant's Brief on Appeal Against Sentencing Judgement” Case No.: IT-94-1-A, 12 January 1998.

13 “Cross-Appellant's Response to Appellant's Brief on Appeal against Opinion and Judgement of May 7,1997,Filedon 12January 1998”, Case No.: JT-94-1-A, 17 November 1998; “Response to Appellant's Brief on Appeal Against Sentencing Judgement filed on 12 January 1998”, Case No.: IT-94-1-A, 16 November 1998.

14 “Amended Brief of Argument on behalf of the Appellant”, Case No.: JT-94-1-A, 8 January 1999.

15 T. 308 (25 January 1999).

16 “Brief of Argument of the Prosecution (Cross-Appellant)”, Case No.: IT-94-1-A, 12 January 1998 and accompanying “Book of Authorities”, Case No.: IT-94-1-A, 22 January 1998. (See also “Corrigendum to Prosecutor's Brief of Argument filed on 12 January 1998 and Book of Authorities filed on 22 January 1998” Case No.: IT-94-1-A, 9 September 1998).

17 “The Respondent's Brief of Argument on the Brief of Argument of the Prosecution (Cross-Appellant) of January 12,1998”, Case No.: IT-94-1-A, 24 July 1998.

18 “Prosecution (Cross-Appellant) Brief in Reply”, Case No.: IT-94-1-A, 1 December 1998.

19 “The Respondent's Brief of Argument on the Brief of Argument of the Prosecution (Cross-Appellant) of January 19,1999”, Case No.: IT-94-1-A, 19 January 1999.

20 “Order Accepting Filing of Substitute Brief, Case TT-94-1-A, 4 March 1999. (See also “Opposition to the Appellant's 19 January 1999 filing entitled “The Respondent's Brief of Argument on the Brief of Argument of the Prosecution (Cross-Appellant) of 19 January, 1999 (sic)'”, Case No.: IT-94-1-A, 21 January 1999; “Submission in relation to Appellant's ‘Substitute Brief filed on 19 January 1999”, Case No.: IT-94-1-A, 24 February 1999).

21 “Skeleton Argument — Appellant's Appeal Against Conviction”,.Case No.: IT-94-1-A, 19 March 1999 (“Skeleton Argument — Appellant's Appeal Against Conviction“); “Skeleton Argument—Appeal Against Sentence”, Case No.: IT-94-1-A, 19 March 1999; “Skeleton Argument of the Prosecution”, Case No.: IT-94-1-A, 19 March 1999 (“Skeleton Argument of the Prosecution“). See also “Skeleton Argument —Prosecutor's Cross-Appeal”, Case No.: IT-94-1-A, originally filed by the Defence on 19 March 1999 and subsequently re-filed on 20 April 1999 (“Defence's Skeleton Argument on the Cross-Appeal“).

22 “Motion for the Extension of the Time Limit”, Case No.: IT-94-l-A, 6 October 1997.

23 Rule 115 provides:

24 Rule 119 provides:

25 “Motion to Extend the Time Limit”, Case No.: IT-94-1-A, 10 September 1997; “Motion for the Extension of the Time Limit“ (Confidential), Case No.: IT-94-1-A, 6 October 1997; “The Motion for the Extension of Time”, Case No.: IT-94-1-A, 17 March 1998; “Application for Extension of Time to File Additional Evidence on Appeal”, Case No.: IT-94-1-A, 1 May 1998; “Motion for Extension of Time to File Reply to Cross-Appellant's Response to Appellant's Submissions since 9th March 1998 on the Motion for the Presentation of Additional Evidence under Rule 115”, Case No.: IT-94-1-A, 15 June 1998; “Request for an Extension of Time to File a Reply to the Appellant's Motion Entitled ‘Motion for the Extension of the Time Limit“1, Case No.: IT-94-1-A, 9 October 1997; “Request for a Modification of the Appeals Chamber Order of 22 January 1998”, Case No.: 1T-94-1-A, 13 February 1998; “Request for a Modification of the Appeals Chamber Order of 2 February 1998”, Case No.: IT-94-1-A, 7 May 1998. The following orders were made in relation to these applications: “Scheduling Order”, Case No.: IT-94-1-A, 24 November 1997; “Order Granting Request for Extension of Time”, Case No.: IT-94-1-A, 23 March 1998; “Order Granting Requests for Extension of Time”, Case No.: IT-94-1-A, 13 May 1998; “Order Granting Extension of Time”, Case No.: 1T-94-1-A, 10 June 1998; “Order Granting Extension of Time”, Case No.: JT-94-1-A, 17 June 1998; “Order Granting Request for Extension of Time“,.Case No.: IT-94-1-A, 9 October 1997; “Order Granting Request for Extension of Time”, Case No.: JT-94-1-A, 19 February 1998; “Order Granting requests for Extension of Time”, Case No.: IT-94-1-A, 13 May 1998.

26 “Decision on Appellant's Motion for the Extension of the Time-limit and Admission of Additional Evidence”, Case No.: IT-94-1-A, 15 October 1998.

27 “Appellant's Second Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115 of the Tribunal's Rules”, Case No.: IT-94-1-A, 8 January 1999; “Motion (3) to Admit Additional Evidence on Appeal Pursuant to Rule 115 of the Rules of Procedure and Evidence”, Case No.: IT-94-1,19 April 1999.

28 T.307-308 (25 January 1999); T. 20 (19 April 1999).

29 See “Scheduling Order Concerning Allegations against Prior Counsel”, Case No.: IT-94-1-A, 10 February 1999. At the outset of the appellate process, Mr. Milan Vujin acted as lead counsel for the Defence, with the assistance of Mr. R. J. Livingston. By a decision of the Deputy Registrar on 19 November 1998, Mr. Milan Vujin was withdrawn as counsel for the accused and replaced by Mr. William Clegg as lead counsel (See “Decision of Deputy Registrar regarding the Assignment of Counsel and the Withdrawal of Lead Counsel for the Accused”, Case No.: IT-94-1-A, 19 November 1998).

30 Appellant's Amended Notice of Appeal against Judgement, paras. 1.1-1.4; Appellant's Amended Brief on Judgement, paras. 1.1-1.12.

31 Appellant's Amended Notice of Appeal against Judgement, paras. 3.1-3.6; Appellant's Amended Brief on Judgement, paras. 3.1-3.11.

32 Amended Notice of Appeal, paras. 2.1-2.4.

33 T.307 (25 January 1999).

34 Notice of Cross-Appeal, p. 2; Cross-Appellant's Brief, paras. 2.1-2.88.

35 Notice of Cross-Appeal, p. 2; Cross-Appellant's Brief, paras. 3.1-3.33.

36 Notice of Cross-Appeal, p. 3; Cross-Appellant's Brief, paras. 4.1-4.23.

37 Notice of Cross-Appeal, p. 3; Cross-Appellant's Brief, paras. 5.1-5.28.

38 Notice of Cross-Appeal, p. 3; Cross-Appellant's Brief, paras. 6.1-6.32 with reference to “Decision on Prosecution Motion for Production of Defence Witness Statements”, Case No.: IT-94-1-T, Trial Chamber n, 27 November 1996.

39 T. 306 (21 April 1999).

40 T. 303 (21 April 1999).

41 Appellant's Brief on Sentencing Judgement, pp. 4-6; T. 304(21 April 1999)

42 Appellant's Brief on Sentencing Judgement, pp. 9-10; T. 305 (21 April 1999)

43 Sentencing Judgement, para. 76. See Appellant's Brief on Sentencing Judgement, p. 10.

44 Ibid., p. 14.

45 Appellant's Amended Notice of Appeal against Judgement, p. 3.

46 Notice of Cross-Appeal, p. 3.

47 Ibid.p.4.

48 Ibid.

49 Ibid.

50 Ibid.

51 Appellant's Amended Brief on Judgement, paras. 1.1-1.3; T. pp. 35-40 (19 April 1999).

52 Appellant's Amended Brief on Judgement, para 1.11.

53 Appellant's Amended Notice of Appeal against Judgement, p. 6.

54 Dombo BeheerB.V. v. The Netherlands, Eur. Court H.R.judgement of 27 October 1993, Series A, no. 274; Neumeisterv. Austria, Eur. Court H.R.judgement of 27 June 1968, Series A, no. 8;Delcourt v. Belgium, Eur. Court H.R.judgement of 17 January 1970, Series A, no.11 Borgers v. Belgium, Eur. Court H.R. judgement of 30 October 1991, Series A, no. 214; Albert and Le Compte v. Belgium, Eur. Court H. R. judgement of 10 February 1983, Series A, no. 58; Bendenoun v. France, Eur. Court H. R. judgement of 24 February 1994, Series A, no. 284; Kaufman v. Belgium, Application No. 10938/84,50 Decisions and Reports of the European Commission of Human Rights (“DR“) 98; X and Y v. Austria, Application No. 7909/74,15 DR 160.

55 T. 30-31 (19 April 1999).

56 T. 31 (19 April 1999).

57 Appellant's Amended Brief on Judgement, paras. 1.4-1.6; T. 29-31,40,45-48 (19 April 1999).

58 T. 38-41 (19 April 1999).

59 T. 52-53 (19 April 1999).

60 T. 50-51 (19 April 1999).

61 T. 45-49(19 April 1999).

62 Prosecution's Response to Appellant's Brief on Judgement, paras. 3.8-3.16,3.30.

63 Prosecution's Response to Appellant's Brief on Judgement, paras. 3.21-3.23; T. 88-89 (20 April 1999).

64 T. 90-91 (20 April 1999).

65 T. 97 (20 April 1999).

66 T. 90,98-99 (20 April 1999).

67 Skeleton Argument of the Prosecution, para.10; Prosecution's Response to Appellant's Brief on Judgement, paras. 3.29,6.9.

68 Skeleton Argument of the Prosecution, para. 6.

69 T. 96 (20 April 1999).

70 T. 100 (20 April 1999).

71 Article 14(1) of the ICCPR provides in part: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […].“

72 Article 6(1) of the ECHR provides in part: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.“

73 Article 8(1) of the American Convention on Human Rights provides in part:

74 T. 29-35 (19 April 1999).

75 Morael v. France, Communication No. 207/1986,28 July 1989, U.N. Doc. CCPR/8/Add/l, 416.

76 Robinson v. Jamaica, Communication No. 223/1987,30 March 1989, U.N. Doc. CCPR/8/Add.l, 426.

77 Wolfv. Panama, Communication No. 289/1988,26 March 1992, U.N. Doc. CCPR/11/Add.l, 399.

78 T. 29-35 (19 April 1999).

79 Kaufman v. Belgium, 50 DR 98.

80 Ibid., p. 115.

81 Dombo Beheer B.V. v. The Netherlands, Eur. Court H. R. judgement of 27 October 1993, Series A, no. 274.

82 Ibid., para. 40.

83 Delcourt y. Belgium, Eur. Court H. R.judgement of 17 January 1970, Series A, no. 11.

84 Ibid., para. 34

85 In Kaufman v. Belgium, 50 DR 98, the Eur. Commission H. R. held that equality of arms did not give the applicant a right to lodge a counter-memorial. In Neumeister v. Austria, Eur. Court of H. R.judgement-of 27 June 1968, Series A, no. 8, the Court decided that the principle did not apply to the examination of the applicant's request for provisional release, despite the prosecutor having been heard exparte. In Bendenoun v. France, Eur. Court H. R.judgement of 24 February 1994, Series A, no. 284, the Court ruled that an applicant who did not receive a complete file from the tax authorities was not entitled thereto under the principle of equality of arms because he was aware of its contents and gave no reason for the request. In Dombo Beheer B.V. v. The Netherlands, Eur. Court H. R. judgement of 27 October 1993, Series A, no. 274, the Court held that there was a breach of equality of arms where the single first hand witness for the applicant company was barred from testifying whereas the defendant bank's witness was heard.l

86 B.d. Bet al. v. The Netherlands, Communication No. 273/1989,30 March 1989, U.N. Doc. A/44/40,442.

87 Nqalula Mpandanjila et al. v. Zaire, Communication No 138/1983,26 March 1986, U.N. Doc. A/41/40,121.

88 See “Judgement on the Request of the Republic of Croatia for'Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihdmir Blaškić Case No.: IT-95-14-AR108W, Appeals Chamber, 29 October 1997, para. 26.

89 Ibid., para. 33

90 T. 47 (19 April 1999); Judgement, para. 32 (“Following a recess of three weeks after the close of the Prosecution case to permit the Defence to make its final preparations, the Defence case opened on 10 September 1996 [… ].“).

91 Judgement, paras. 29-35.

92 T. 59, 60 (20 April 1999).

93 Letter from President Cassese to Mrs. B. Plavsić of 19 September 1996, referred to by Judge Shahabuddeen during the hearing on 20 April 1999 (ibid.).

94 In its submissions, the Defence refers to the victim identified by the Trial Chamber only as one “Osman”, by the name “Osman Didovic”. The Appeals Chamber is not here called upon to determine whether the name thus given by the Defence is accurate.

95 Prosecution's Response to Appellant's Brief on Judgement, para. 2.14.

96 More fully, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994.

97 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12,1949 (“Geneva Convention IV” or “Fourth Geneva Convention“).

98 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment, ICJ Reports (1986), p. 14 (“Nicaragua“).

99 See Defence's Substituted Response to Cross-Appellant's Brief, para. 2.6.

100 See Defence's Substituted Response to Cross-Appellant's Brief, paras. 2.1 - 2.18; T. 219-220 (21 April 1999).

101 See “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, The Prosecutor v. Duško Tadić, Case No.: IT-94-1-AR72, Appeals Chamber, 2 October 1995 (“Tadić Decision on Jurisdiction“), paras. 79-84 (Tadi6(1995) I ICTY JR 353).

102 See para. 2.25 of the Cross-Appellant's Brief:

103 See para. 1 of Separate and Dissenting Opinion of Judge McDonald Regarding the Applicability of Article 2 of the Statute, The Prosecutor v. Duško Tadić, Case No.: IT-94-1-T, Trial Chamber II, 7 May 1997 (“Separate and Dissenting Opinion of Judge McDonald“) where she held: “I find that at all times relevant to the Indictment, the armed conflict in opština Prijedor was international in character [… ]”.

104 See Judgement, paras. 569-608:

105 Cross-Appellant's Brief, para. 2.5.

106 See Judgement, paras.'607-608.

107 In addition to the evidence referred to in para. 570 of the Judgement, reference may also be made to the facts cited by Judge Li in his Separate Opinion to the Tadić Decision on Jurisdiction (paras. 17-19), for example BH's Declaration that it was at war with the FRY and the reports of various expert bodies suggesting that the conflict was international. Moreover, in three Rule 61 Decisions involving the conflict between the Serbs and the BH Government (Nikolić, Vukovar Hospital, and Karadzić and Mladić), Trial Chambers have found the conflict to have been an international armed conflict. (See “Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence”, The Prosecutor v. Dragon Nikolić, Case No.: IT-94-2-R61, Trial Chamber 1,20 October 1995, para 30 (Nikolić, (1995) IIICTY JR 738); “Review of Indictment Pursuant to Rule 61”, The Prosecutor v. Mile Mrkšić et al., Case No.: IT-95-13-R61, Trial Chamber 1,3 April 1996, para. 25; “Review of the Indictments Pursuant to Rule 61 of the Rules Procedure and Evidence”, The Prosecutor v. Radovan Karadzic and Ratko Mladić, Case No.: IT-95-18-R61, Trial Chamber 1,11 July 1996, para. 88)).

108 Cross-Appellant's Brief, para. 2.31.

109 Ibid., para. 2.30.

110 Ibid.

111 Ibid., paras.2.21-2.23.

112 Geneva Convention Relative to the Treatment of Prisoners of War of August 12,1949 (“Geneva Convention III” or “Third Geneva Convention“).

113 These four conditions are as follows:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognisable at a distance;

(c) that of carrying arms openly; and

(d) that of conducting their operations in accordance with the laws and customs of war.

It might be contended that these conditions, which undoubtedly had become part of customary international law, may now be considered to have been replaced by the different conditions set out in Article 44(3) and 43(1) of Additional Protocol I (Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I), 1977). This contention should .of course be premised on the assumption — for which proof is required — that these two Articles have already been transformed into customary international rules.

Be that as it may, the requirement in Article 43(1) of “[being] under a command responsible to [a] party [to the conflict] for the conduct of its subordinates” has not replaced that of “belonging to a Party to the conflict” provided for in Article 4(A)(2) of the Third Geneva Convention. See generally the International Committee of the Red Cross (“ICRC“) Commentary on the Additional Protocols (Yves Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, Geneva 1987), pp. 506-517, paras. 1659-1681.

114 Jean Pictet (ed.), Commentary: HI Geneva Convention Relative to the Treatment of Prisoners of War, International Committee of the Red Cross, Geneva, 1960, First reprint, Geneva, 1994, p. 57:

115 Military Prosecutor v. Omar Mahmud Kassem et at, 42 International Law Reports 1971, p. 470, at p. 477. The court consequently held that the accused, members of the PLO captured by Israeli forces in the territories occupied by Israel, did not belong to any Party to the conflict. As the court put it (ibid., pp. 477-478):

116 See also the ICRC Commentary to Article 29 of the Fourth Geneva Convention (Jean Pictet (ed.), Commentary: TV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, Geneva, 1958, First Reprint, 1994, p. 212):

117 The Appeals Chamber is aware of another approach taken to the question of imputability in the area of international humanitarian law. The Appeals Chamber is referring to the view whereby by virtue of Article 3 of the IV th Hague Convention of 1907 and Article 91 of Additional Protocol I, international humanitarian law establishes a special regime of State responsibility; under this lex specialis States are responsible for all acts committed by their “armed forces” regardless of whether such forces acted as State officials or private persons. In other words, whether or not in an armed conflict individuals act in a private capacity, their acts are attributed to a State if such individuals are part of the “armed forces” of that State. This opinion was authoritatively set forth by some members of the International Law Commission (“JJLC“) (Professor Reuter observed that “[i]t was now a principle of codified international law that States were responsible for all acts of their armed forces” (yearbook of the International Law Commission, 1975,vol. I, p.7, para. 5). Professor Ago stated that the IV thHague Convention of 1907 “made provision for a veritable guarantee covering all damage that might be caused by armed forces, whether they had acted as organs or as private persons” (ibid., p. 16, para.4)). This view also has been forcefully advocated in the legal literature.

As is clear from the reasoning the Appeals Chamber sets out further on in the text of this Judgement, even if this approach is adopted, the test of control as delineated by this Chamber remains indispensable for determining when individuals who, formally speaking, are not military officials of a State may nevertheless be regarded as forming part of the armed forces of such a State.

118 Nicaragua, para. 115. As the Court put it, there must be “effective control of the military or paramilitary operations in the course of which the alleged violations [of international human rights and humanitarian law] were committed”.

119 Ibid., para. 115:

120 See “Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence”, The Prosecutor v. Ivica Rajić, Case No.: IT-95-12-R61, Trial Chamber U, 13 September 1996, para. 25.

121 Cross-Appellant's Brief, paras. 2.14-2.17

122 Cross-Appellant's Brief, paras. 2.16-2.17; Cross-Appellant's Brief in Reply, para. 2.19.

123 Cross-Appellant's Brief, para. 2.56.

124 According to the Prosecution (Cross-Appellant's Brief, para. 2.58), the Court applied the “agency” test when considering whether the contras engaged the responsibility of the United States. The Prosecution has pointed out that in this regard the Court “did not refer to the need for effective control, but rather” — to quote the words of the Court cited by the Prosecution — “whether or not the relationship [… ] was so much one of dependency on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government” (Nicaragua, para. 109).

125 Cross-Appellant's Brief, paras. 2.57-2.58.

126 See Nicaragua, pp. 187-190.

127 See Nicaragua, para. 75

128 See the Advisory Opinion delivered by the ICJ on 29 April 1999 in Difference Relating to the Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, para. 62.

129 Customary international law on the matter is correctly restated in Article 5 of the Draft Articles on State Responsibility adopted in its first reading by the United Nations International Law Commission: “For the purposes of the present articles [of Chapter II: The ‘Act of the State’ under International Law], conduct of any State organ having that status under the internal law of that State shall be considered as an act of the State concerned under international law, provided that organ was acting in that capacity in the case in question” (Report of the International Law Commission on the work of its Forty-Eighth Session (6 May-26 July 1996), U.N. Doc. A/51/10, p. 126).

Article 5, as provisionally adopted by the ILC Drafting Committee in 1998, is even clearer. It provides (International Law Commission, Fiftieth Session, 1998, U.N. Doc. A/CN.4/L.569, p. 2):

130 See Article 7 of the ILC Draft Articles on State Responsibility adopted by the International Law Commission on first reading. It provides:

See the First Report on State Responsibility by the Special Rapporteur J. Crawford (22 July 1998), U.N. Doc. A/CN.4/490/ Add.5, pp. 12-16. See also the text of the same provision as provisionally adopted by the ILC Drafting Committee in 1998 (U.N. Doc. A/CN.4/L.569, p. 2). The text of Article 7, as provisionally adopted by the JJLC Drafting Committee in 1998, provides:

131 See Nicaragua, paras.75-80.

132 Ibid., para. 86.

133 Ibid. para. 109 (emphasis added).

134 Separate and Dissenting Opinion of Judge McDonald, para. 25.

135 Cross-Appellant's Brief, para. 2.58.

136 See the Separate Opinion of Judge Ago in Nicaragua, paras. 14-17. Judge Ago correctly stated that it fell to the Court first to establish whether the individuals at issue had the status of national officials or officials of national public entities and then, where necessary, to consider whether, lacking this status, they acted instead as de facto State officials, thereby engaging the responsibility of the State. For the purpose of establishing the international responsibility of a State, he therefore identified two broad classes of individuals: those having the status of officials of the State or of its autonomous bodies, and those lacking such a status. Clearly, for Judge Ago the issue of deciding whether an individual had acted as a de facto State organ arose only with respect to the latter category. Furthermore, Judge Ago characterised the CIA and the so-called UCLAs in a manner different from the Court (see para. 15).

137 Judgement, paras. 584-588.

Article 8 of the Draft provides:

See also the First Report on State Responsibility by the Special Rapporteur J. Crawford (U.N. Doc. A/CN. 4/490/Add.5, pp. 16-24).

The text of Article 8 as provisionally adopted by the ILC Drafting Committee in 1998 provides:

138 Article 10, as adopted on first reading by the International Law Commission, provides:

See also the First Report on State Responsibility by the Special Rapporteur J. Crawford, U.N. Doc. A/CN./490/Add.5, pp. 29-31. The text of article 10, as provisionally adopted in 1998 by the ILC Drafting Committee, provides:

139 This sort of “objective” State responsibility also arises in a different case. Under the relevant rules on State responsibility as laid down in Article 7 of the International Law Commission Draft, a State incurs responsibility for acts of organs of its territorial governmental entities (regions, Lander, provinces, member States of Federal States, etc.) even if under the national Constitution these organs enjoy broad independence or complete autonomy. (See footnote 130 above)

140 The United States claimed that Mexico was responsible for the killing of United States nationals at the hands of a mob with the participation of Mexican soldiers. Mexico objected that, even if it were assumed that the soldiers were guilty of such participation, Mexico should not be held responsible for the wrongful acts of the soldiers, on the grounds that they had been ordered by the highest official in the locality to protect American citizens. Instead of carrying out these orders, however, they had acted in violation of them, in consequence of which the Americans had been killed. The Mexico/United States General Claims Commission dismissed the Mexican objection and held Mexico responsible. It stated that if international law were not to impute to a State wrongful acts committed by its officials outside their competence or contrary to instructions, “it would follow that no wrongful acts committed by an official could be considered as acts for which his Government could be held liable”. It then added that:

141 See United States v. Mexico (Stephens Case), Reports of International Arbitral Awards, vol. IV, pp. 266-267.

142 See Kenneth P. Yeager v. Islamic Republic of Iran, 17 Iran-U.S. Claims Tribunal Reports, 1987, vol. IV, p. 92).

143 Ibid., para. 23.

144 Ibid., para. 37.

145 Ibid., paras 39,45. The Claims Tribunal went on to note that:

146 Ibid., paras. 12,41.

147 Ibid., para. 61.

148 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports (1980), p. 13, para. 17.

149 The Claims Tribunal stated the following:

150 The Claims Tribunal went on to say:

The Tribunal then concluded that:

151 See William L. Pereira Associates, Iran v. Islamic Republic of Iran, Award No. 116-1-3, 5 Iran-U.S. Claims Tribunal 1984, p. 198 at p. 226. See also Arthur Young and Company v. Islamic Republic of Iran, Telecommunications Company of Iran, Social Security Organization of Iran, Award No. 338-484-1,17 Iran-U.S. Claims Tribunal Reports, 1987, p. 245). Here the Claims Tribunal found that in the circumstances of the case Iran was not responsible because there was no causal link between the action of the revolutionary guards and the alleged breach of international law. However, the Claims Tribunal held that otherwise Iran might have incurred international responsibility for acts of “armed men wearing patches on their pockets identifying them as members of the revolutionary guards” (para. 53). A similar stand was taken in Schott v. Islamic Republic of Iran, Award No. 474-268-1, 24 Iran-U.S. Claims Tribunal Reports, 1990, p. 203 at para. 59.

In Daley, on the other hand, the Claims Tribunal held Iran responsible for the expropriation of a car, for the five Iranian “Revolutionary Guards” who had taken the car were “in army-type uniforms” at the entrance of a hotel which had come “under the control of Revolutionary Guards” a few days before. (Daley v. Islamic Republic of Iran, Award No. 360-1-514-1,18 Iran-U.S Claims Tribunal Reports, 1988,232 at paras. 19-20).

152 Loizidou v. Turkey (Merits), Eur. Court of H. R. Judgement of 18 December 1996 (40/1993/435/514).

153 In its judgement, the Court stated the following on the point at issue here:

154 2 St E 8/96 (unpublished typescript; kindly provided by the German Embassy to the Netherlands and on file with the International Tribunal's Library).

155 The Court stated the following:

The aimed conflict that took place on its territory in the following period was not an internal clash (conflict) in which an ethnic group was trying to break with the existing State of Bosnia-Herzegovina and which [as a consequence] had no international character. The expert witness Fischer pointed out that, by using the term international humanitarian law applicable to this conflict, the United Nations Security Council has used the term usual in international terminology to refer to the law applicable to international armed conflicts. This [according to the expert witness] showed that the Security-Council considered the conflict to be international. The expert witness Fischer cited the following circumstances as indicia of an international conflict according to the prevailing view in international law: the participation of organs of a State in a conflict on the territory of another State, e.g. the participation of officers in the clashes, or the financing of and provision of technical equipment to one party to the conflict by another State; the latter at least when it is combined with the aforementioned interconnection [Verflechtung] between personnel. According to this Chamber's findings, these criteria are met in the case at hand. The Chamber has found that at the beginning of May officers of the JNA, which at that time was purely Serb, began taking Doboj and the surrounding villages. There can, therefore, be no doubt regarding the existence of an international armed conflict at that point in time. However, this Chamber has further found that after 19 May 1992, when the JNA officially withdrew from Bosnia-Herzegovina, officers of the JNA continued to be employed in Bosnia-Herzegovina and paid by Belgrade, and that at the end of May materiel, weapons and vehicles were still being brought from Belgrade to Bosnia-Herzegovina. As a consequence, a close personal, Organizational and logistical interconnection [Verflechtung] of the Bosnian-Serb army, paramilitary groups and the JNA persisted. The headquarters of the Bosnian-Serb army, maintained a liaison office in Belgrade.” (ibid pp. 158-160 of the unpublished typescript; unofficial translation).

156 The Judgement of the Düsseldorf Court of Appeal was upheld on appeal by the Federal Court of Justice (Bundesgerichtshof) by a judgement of 30 April 1999 (unpublished). The appeal was based, inter alia, on a misapplication of substantive law. This ground also included the question of whether the conflict was international in character. The Bundesgerichtshof did not address the matter specifically, thus implicitly upholding the judgement of the Düsseldorf Court. (See, in particular, pp. 19-20 and 23 of the German typescript (3 S t R 215/98), on file with the International Tribunal library)

157 See e.g., the debates in the U.N. Security Council in 1976, on the raids of South Africa into Zambia to destroy bases of the SWAPO (see in particular the statements of Zambia (SCOR, 1944th Meeting of 27 July 1976, paras. 10-45) and South Africa (ibid., paras. 47-69); see also SC resolution no. 393 (1976) of 30 July 1976)); see also the debates on the Israeli raids in Lebanon in June 1982’ (in particular the statements of Ireland (SCOR, 2374th Meeting of 5 June 1982, paras. 35-36) and of Israel (ibid., paras. 74-78 and SCOR, 2375th Meeting of 6 June 1982, paras. 22-67) and in July-August 1982 (see the statement of Israel, SCOR, 2385th Meeting of 29 July 1982, paras. 144-169)); see also the debates on the South African raid in Lesotho in December 1982 (see in particular the statements of France (SCOR, 2407th Meeting of 15 December 1982, paras. 69-80), of Japan (ibid., paras. 98-107), of South Africa (SCOR, 2409th Meeting of 16 December 1982, paras. 126-160) and of Lesotho (ibid., paras. 219-227)).

Although there does not seem to exist any international practice in this area, it may happen that a State simply providing economic and military assistance to a military group (hence not necessarily exercising effective control over the group) directs a member of the group or the whole group to perform a specific internationally wrongful act, e.g. an international crime such as genocide. In, this case one would face a situation similar to that described above, in the text, of a State issuing specific instructions to an individual.

158 See Nicaragua, paras. 239-249,292(3) and 292(4).

159 United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports (1980), pp. 3 ff.

160 The Court stated the following:

161 Ibid pp. 30-33 (paras. 60-68).

162 The Court stated the following:

163 See Nicaragua, para. 75.,

164 Ibid., para. 80.

165 Alfred W. Short v. Islamic Republic of Iran, Award No. 312-1.1135-3,16 Iran-U.S. Claims Tribunal Reports 1987, p. 76).

166 After finding that the acts of the revolutionaries could not be attributed to Iran, the Claims Tribunal noted the following:

167 For examples of State practice apparently adopting this approach to the question of attribution, see for instance the relevant documents in the Cesare Rossi case (an Italian antifascist staying in Switzerland who was lured by two other Italians acting on behalf of the Italian authorities into crossing the border with Italy, where he was arrested: see 1 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 1929, pp. 280-294); the Jacob Salomon case (a German national was kidnapped by another German national in Switzerland and taken to Germany: see the relevant documents mentioned in 29 American Journal of International Law 1935, pp. 502-507, 36 American Journal of International Law 1936, pp.123-124). See further the Sabotage cases decided by the United States-Germany Mixed Claims Commission (Lehigh Valley Railroad Co., Agency of Canadian Can and Foundry Co., Ltd., and various underwriters (United States) v. Germany, Reports of International Arbitral Awards, vol. VIII, pp. $Aff. (especially pp. 84-87) and pp. 225 ff. (especially 457-460). In these cases, in July 1916 some individuals, at the request of the German authorities intent on bringing about sabotage in the United States, had set fire to a terminal in New York harbour and to a plant of a company in New Jersey.

Mention can also be made of the Eichmann case (Attorney-General of the Government of Israel v. Adolf Eichmann, 36 International Law Reports 1968, pp. 277-344): see for instance Security Council resolution 4349 of 23 June 1960 and the debates in the Security Council; see in particular the statements of Argentina (SCOR, 865th Meeting of 22 June 1960, paras. 25-27), of Israel (SCOR of the 866th Meeting on 22 June 1960, para. 41), of Italy (SCOR of the 867th Meeting of 23 June 1960, paras. 32-34), of Ecuador (ibid., paras. 47-49), of Tunisia (ibid., para. 73) and of Ceylon (SCOR of the 868th Meeting of 23 June 1960, paras. 12-13).

In many of these cases, the need for specific instructions by the State concerning the commission of the specific act with which the individual had been charged, or the ex post facto public endorsement of that act, can be inferred from the facts of the case.

168 These cases, although they concern war crimes (the notion of “grave breaches” had not yet come into existence at the time), are nevertheless relevant to our discussion. Indeed, they provide useful indications concerning the conditions on which civilians may be assimilated to State officials.

169 Trial of Joseph Kramer and 44 Others, British Military Court, Luneberg, 17th September-17th November, 1945, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Published for the United Nations War Crimes Commission by His Majesty's Stationary Office, London 1947 (“UNWCC“), vol. U, p. 1.

170 Ibid., p. 152 (emphasis added) (the Austrian civilian, Schlomowicz, was not found guilty). See also ibid., p. 109. Most of the accused civilians were found guilty and sentenced to imprisonment. It is clear from this case that according to the court, by acting as de facto members of the German apparatus running the Belsen concentration camp, the Polish civilians could be assimilated to German State officials.

171 Public Prosecutor v. Menten,15 International Law Reports 1987, pp. 33

172 The court stated the following:

The court concluded that:

173 Menten was sentenced to ten years’ imprisonment by the District Court of Rotterdam (Judgement of 9 July 1980, ibid., p. 361). It should be pointed out that the Dutch Court of Cassation had been obliged to investigate whether Menten was “in military, state or public service of or with the enemy” as this was an ingredient of the relevant Dutch law (ibid., p. 346). The Appeals Chamber holds, however, that the Menten case is in line with the rules of general international law concerning the assimilation of private individuals to State officials.

174 See, e.g., the Daley case, where the Iran U.S. Claims Tribunal attributed international responsibility to Iran for acts of five Iranian “Revolutionary Guards” in “army type uniforms” (18 Iran-V.S. Claims Tribunal Reports, 1988, p. 238, at para. 19).

175 In this connection mention can be made of the Stocké case brought before the European Commission of Human Rights. A German national fled from Germany to Switzerland and then to France to avoid arrest in Germany for alleged tax offences. He was then tricked into re-entering Germany by a police informant and was arrested. He then claimed before the European Commission of Human Rights that he had been arrested in violation of Article 5(1) of the ECHR. The Commission held that:

Although these cases concerned State responsibility, they may be relevant to the question of the criminal responsibility of individuals perpetrating grave breaches of the Geneva Conventions, inasmuch as they set out the conditions necessary for individuals to be considered as de facto State organs.

176 See Separate and Dissenting Opinion of Judge McDonald, para. 1: “I completely agree with and share in the Opinion and Judgment with the exception of the determination that Article 2 of the Statute is inapplicable to the .charges against the accused.“

177 Judgement, para. 601.

178 Ibid.

179 Ibid., paras. 601-602

180 As Judge McDonald noted:

181 In the light of the demand of the Security Council on 15 May 1992 that all interference from outside Bosnia and Herzegovina by units of the JNA cease immediately, the Trial Chamber characterised the dilemma posed for the JNA by increasing international scrutiny from 1991 onwards in terms of the way in which the JNA could:

Additionally, the U.N. Secretary-General, in commenting on its purported withdrawal from Bosnia and Herzegovina, concluded in his report of 3 December 1992 that “[t]hough JNA has withdrawn completely from Bosnia and Herzegovina, former members of Bosnian Serb origin have been left behind with their equipment and constitute the Army of the ‘Serb Republic'” (Report of the Secretary-General concerning the situation in Bosnia and Herzegovina, U.N. Doc. A/47/747, para. 10).

182 Judgement, para. 115:

See further ibid., para. 590: “The attack on Kozarac was carried out by elements of an army Corps based in Banja Luka. This Corps, previously a Corps of the old JNA, became part of the VRS and was renamed the ‘Banja Luka’ or ‘1st Krajina’ Corps after 19 May 1992 but retained the same commander.” See also ibid., paras. 114-116,118-121,594.

183 Ibid., para. ils (“Despite the announced JNA withdrawal from Bosnia and Herzegovina in May 1992, active elements of what had been the JNA, now rechristened as the VJ [… ] remained in Bosnia and Herzegovina after the May withdrawal and worked with the VRS throughout 1992 and 1993“) and para. 569 (“[…] the forces of the VJ continued to be involved in the armed conflict after that date“).

184 See in particular ibid., para. 566:

See also para. 579: “[T]he take-over of opština Prijedor began before the JNA withdrawal on 19 May 1992 and was not completed until after that date”. See also the Dissenting Opinion of Judge McDonald who noted “[t]he continuity between the JNA and the VRS particularly as it relates to the military operations in the Opština Prijedor area […].” (Separate and Dissenting Opinion of Judge McDonald, para. 15).

185 Moreover, it is interesting to observe that while concluding that by 19 May 1992 effective control over the VRS had been lost by the JNA/VJ, the Trial Chamber simultaneously observed that such control nevertheless did not appear to have been regained by the Bosnian authorities. In particular, the Trial Chamber found that the “Government of the Republic of Bosnia and Herzegovina [… ] faced […] major problems [… ] of defence, involving control over the mobilization and operations of the armed forces” (Judgement, para. 124, emphasis added).

186 In and of itself, the logistical difficulties of disengaging from the conflict and withdrawing such a large force would have been considerable. With regard to the extent and depth of the involvement of the large number of JNA forces engaged in Bosnia and Herzegovina and the ongoing nature of their activities beyond 19 May 1992, see ibid., paras. 124-125: “By early 1992 there were some 100,000 JNA troops in Bosnia and Herzegovina with over 700 tanks, 1,000 armoured personnel carriers, much heavy weaponry, 100 planes and 500 helicopters, all under the command of the General Staff of the JNA in Belgrade. [… ] On 19 May 1992 the withdrawal of JNA forces from Bosnia and Herzegovina was announced but the attacks were continued by the VRS.”

187 See in particular ibid., para. 116 (citing the 1993 publication of the former Yugoslav Federal Secretary for Defence, General Veljko Kadijevic, entitled My view of the Break-up: an Army without a State (Prosecution Exhibit 30)):

See also para. 590:

188 While the relationship between the JNA and VRS may have included coordination and cooperation, it cannot be seen as limited to this. As the Trial Chamber itself noted: “In 1991 and on into 1992 the Bosnian Serb and Croatian Serb paramilitary forces cooperated with and acted under the command and within the framework of the JNA.1‘(ibid., para. 593; emphasis added).

189 Ibid., para. 598:

190 Ibid., para. 601

191 The Trial Chamber noted that:

192 Ibid, para. 602. On this point, the Trial Chamber noted, further, that:

193 Ibid.

194 See in this regard the testimony of the expert witness Dr. James Gow, transcript of hearing in The Prosecutor v. Duško Tadić, Case No.: IT-94-1-T, 10 May 1996, pp. 308-309; ibid., 13 May 1996, pp. 330-338.

195 Judgement, para. 605.

196 It was deemed insufficient by the Trial Chamber that the VJ” ‘made use of the potential for control inherent in that dependence', or was otherwise given effective control over those forces […]” (ibid.; emphasis added).

197 The Trial Chamber noted that:

198 See Report of the Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia on the establishment and commencement of operations of an International Conference on the Former Yugoslavia Mission to the Federal Republic of Yugoslavia (Serbia and Montenegro), S/1994/1074,19 September 1996, p. 3, where it is noted that as of 4 August 1994, the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) ordered, inter alia, the breaking off of political and economic relations with the Republika Srpska and the closure of the border between the Republika Srpska and the FRY to all transport towards the Republika Srpska, except food, clothing and medicine. International observers were deployed to monitor compliance with these measures, and it was reported by the Co-Chairmen that the Government of the FRY appeared to be “meeting its commitment to close the border between the Federal Republic of Yugoslavia (Serbia and Montenegro) and the areas of the Republic of Bosnia and Herzegovina under the control of the Bosnian Serb forces.“ (Report of the Co-Chairmen of the Steering Committee of the International Conference on the^ Former Yugoslavia on the state of implementation of the border closure measures taken by the authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro), S/1994/1124,3 October 1994, pp. 2-3).

199 As outlined below, this process culminated in the agreement of the Republika Srpska to be represented at the Dayton conference by the FRY (below, at paragraph 159). This appears to have been in spite of intense opposition, within the Republika Srpska, to the peace settlements proposed by the international community, as is evidenced by the overwhelming rejection by the Bosnian Serbs of the international community's peace plan for Bosnia and Herzegovina in a referendum which took place in Bosnian Serb-held territory on 27-28 August 1994 (See Report of the Secretary-General on the Work of the Organization, UNGAOR, 49th sess., supp. no. 1 (A/49/1), 2 September 1994, p. 95).

200 This agreement stipulated that the delegation of the Republika Srpska was to be “headed by the President of the Republic of Serbia Mr. Slobodan Milosevic” (Article 2). Pursuant to this agreement, the leadership of the Republika Srpska agreed “to adopt the binding decisions of the delegation, regarding the Peace Plan, in plenary sessions, by simple majority. In the case of divided votes, the vote of the President, Mr. Slobodan Milosevic, shall be decisive” (Article 3). That Mr. Milosevic was head of the joint delegation was confirmed by Mr. Milosevic himself in his letter of 21 November 1995 to President Izetbegovic concerning Annex 9 to the Dayton-Paris Accord. (Agreement on file with the International Tribunal's Library).

201 This letter had been signed by Mr. Milutinović, Foreign Minister of the FRY, following a request of 20 November 1995 of the three members of the “Delegation of Republika Srpska” to Mr. Milošević.

202 See the texts of the Dayton-Paris Accord (General Framework Agreement for Peace in Bosnia and Herzegovina, initialled by the parties on 21 November 1995, U.N. Doc. A/50/790, S/1995/999,30 November 1995).

203 Article 4(2) of Geneva Convention IV provides as follows:

204 The preparatory works of the Convention suggests an intent on the part of the drafters to extend its application, inter alia, to persons having the nationality of a Party to the conflict who have been expelled by that Party or who have fled abroad, acquiring the status of refugees. If these persons subsequently happen to find themselves on the territory of the other Party to the conflict occupied by their national State, they nevertheless do not lose the status of “protected persons” (see Final Record of the Diplomatic Conference of Geneva of 1949, vol. II, pp. 561-562,793-796, 813-814).

205 See also Article 44 of Geneva Convention IV:

“In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.”

In addition, see Article 70(2):

“Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory, except for the offences committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time of peace.”

206 Cross-Appellant's Brief, para. 3.6.

207 T. 169 (20 April 1999).

208 T. 170 (20 April 1999).

209 T. 176 (20 April 1999).

210 Cross-Appellant's Brief, para. 3.12.

211 Judgement, para. 373.

212 Skeleton Argument of the Prosecution, para. 42.

213 Judgement, para. 373: “The bare possibility that the deaths of the Jaskići villagers were the result of encountering a part of that large force would be enough [… ] to prevent satisfaction beyond reasonable doubt that the accused was involved in those deaths.“

214 Ibid., para. 373: “The fact that there was no killing at Sivci could suggest that the killing of villagers was not a planned part of this particular episode of ethnic cleansing of the two villages, in which the accused took part […].”

215 T. 172 (20 April 1999).

216 Cross-Appellant's Brief, para.3.19

217 Ibid., paras. 3.24,3.27.

218 Cross-Appellant's Brief, paras. 3.27-3.29; T.; 179-180 (20 April1999). ‘

219 Cross-Appellant's Brief, para. 3.29.

220 Defence's Substituted Response to Cross-Appellant's Brief, paras. 3.8-3.10; Defence!s Skeleton Argument on the Cross-Appeal, para.

221 T. 251 (21 April 1999).

222 Defence's Substituted Response to Cross-Appellant's Brief, para. 3.19; Defence's Skeleton Argument on the Cross-Appeal, para. 2(d).

223 Defence's Substituted Response to Cross-Appellant's Brief, paras. 3.9-3.10; Defence's Skeleton Argument on the Cross-Appeal, para. 2(d).

224 Judgement,paras.369,373.

225 Ibid., paras. 370-373.

226 Ibid., para. 373

227 Ibid.

228 An example is provided by Article 27 para. 1 of the Italian Constitution (“La responsibilità penale èpersonale.” (“Criminal responsibility is personal.“) (unofficial translation)).

229 See for instance Article 121-1 of the French Code penal (“Nul n'est responsable, pénalement que de son propre fait“), para. 4 of the Austrian Strafgesetzbuch (“Strafbar ist nur, wer schuldhaft handelt” (“Only he who is culpable may be punished“) (unofficial translation)).

230 This rather basic proposition is usually tacitly assumed rather than explicitly acknowledged. For. an example of where it was expressly stated, however, see, for Great Britain, R. v. Dalloway (1847) 3 Cox CC 273. See also the various decisions of the German Constitutional Court, e.g., BverfGE 6,389 (439) and 50,125 (133), as well as decisions of the German Federal Court of Justice (e.g., BGHSt 2,194 (200)).

231 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704,3 May 1993 (“Report of the Secretary-General“), para. 53 (emphasis added).

232 Ibid., para 54 (emphasis added).

233 Trial of Otto Sandrock and three others, British Military Court for the Trial of War Criminals, held at the Court House, Almelo, Holland, on24-26November, 1945,UNWCC, vol. 1,p. 35).

234 The accused were German non-commissioned officers who had executed a British prisoner of war and a Dutch civilian in the house of whom the British airman was hiding. On the occasion of each execution one of the Germans had fired the-lethal shot, another had given the order and a third had remained by the car used to go to a wood on the outskirts of the Dutch town of Almelo, to prevent people from coming near while the shooting took place. The Prosecutor stated that “the analogy which seemed to him most fitting in this case was that of a gangster crime, every member of the gang being equally responsible with the man who fired the actual shot” (ibid., p. 37). In his summing up the Judge Advocate pointed out that:

All the accused were found guilty, but those who had ordered the shooting or carried out the shooting were sentenced to death, whereas the others were sentenced to fifteen years imprisonment (ibid., p. 41).

235 Hoelzer et al, Canadian Military Court, Aurich, Germany, Record of Proceedings 25 March-6 April 1946, vol. I, pp. 341, 347, 349 (RCAF Binder 181.009 (D2474); copy on file with the International Tribunal's Library).

236 Trial of Gustav Alfred Jepsen and others, Proceedings of a War Crimes Trial held at Luneberg, Germany (13-23 August, 1946), judgement of 24 August 1946 (original transcripts in Public Record Office, Kew, Richmond; on file with the International Tribunal's Library).

237 Ibid., p. 241

238 Trial of Franz Schonfeld and others, British Military Court, Essen, June 1 lth-26th, 1946, UNWCC, vol. XI, p. 68 (summing up of the Judge Advocate).

239 Trial of Feurstein and others, Proceedings of a War Crimes Trial held at Hamburg, Germany (4-24 August, 1948), judgement of 24 August 1948 (original transcripts in Public Record Office, Kew, Richmond; on file with the International Tribunal's Library).

240 The Prosecutor had stated the following:

241 Ibid., summing up of the Judge Advocate, p. 7.

242 In this regard, the Judge Advocate noted that: “[o]f course, it is quite possible that it [the criminal offence] might have taken place in the absence of all these accused here, but that does not mean the same thing as saying [… ] that[the accused] could not be a chain in the link of causation […]” (ibid., pp. 7-8).

243 In particular, it was held that in order to be “concerned in the commission of a criminal offence,” it was necessary to prove:

The requisite knowledge of each participant, even if deducible only by implication, was also stressed in the Stalag Luft III case. Trial of Max Ernst Friedrich Gustav Wielen and Others, Proceedings of the Military Court at Hamburg, (1-3 July 1947) (original transcripts in Public Record Office, Kew, Richmond; on file with the International Tribunal's Library), which concerned the killing of fifty officers of the allied air force who had escaped from the Stalag Luft III camp in Silesia. The Prosecutor in his opening remarks stressed that:

Furthermore, in two cases concerning an accused's participation in the Kristallnacht riots, the Supreme Court for the British zone stressed that it was not required that the accused knew about the rioting in the entire Reich. It was sufficient that he was aware of the local action, that he approved it, and that he wanted it “as his own” (unofficial translation). The fact that the accused participated consciously in the arbitrary measures directed against the Jews was sufficient to hold him responsible for a crime against humanity (Case no. 66, Strafsenat. Urteil vom 8 Februar 1949 gegen S. StS 120/48, p. 284-290,286, vol. JJ). See also Case no. 17, vol. 1,94-98,96, where the Supreme Court held that it was irrelevant that the scale of III-treatment, deportation and destruction that happened in other parts of the country on that night were not undertaken in this village. It sufficed that the accused participated intentionally in the action and that he was “not unaware of the fact that the local action was a measure designed to instil terror which formed a part of the nation-wide persecution of the Jews” (unofficial translation).

244 The United States of America y. Otto Ohlenforfet al, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, vol. IV, p. 3.

245 The tribunal went on to say:

In this connection, the tribunal also addressed the contention that certain of the commanders did not participate directly in the crimes committed, noting that:

246 See for instance the following decisions of the Italian Court of Cassation relating to crimes committed by militias or forces of the “Repubblica Sociale Italiana” against Italian partisans or armed forces: Annalberti et al., 18 June 1949, in Giustizia penale 1949, Part II, col. 732, no. 440; Rigardo et al. case, 6 July 1949, ibid., cols. 733 and 735, no. 443; P.M. v. Castoldi, 11 July 1949, ibid., no. 444; Imolesi et al., 5 May 1949, ibid., col. 734, no. 445. See also Ballestra, 6 July 1949, ibid., cols. 732r733, no. 442.

247 See for instance the decision of 10 August 1948 of the German Supreme Court for the British Zone in K. and A., in Entscheidungen des Obersten Gerichtshofes fur die Britische Zone in Strafsachen, vol. I, pp. 53-56; the decision of 22 February 1949 in J. and A., ibid., pp. 310-315; the decision of the District Court (Landgerichi) of Cologne of 22 and 23 January 1946 in Hessmer et al., in Justiz und NS-Verbrechen, vol. I, pp. 13-23, at pp. 13,20; the decision of 21 December 1946 of the District Court (Landgericht) of Frankfurt am Main in M. et al. (ibid., pp. 135-165,154) and the judgement of the Court of Appeal (Oberlandesgericht) of 12 August 1947 in the same case (ibid., pp. 166-186,180); as well as the decision of the District Court of Braunschweig of 7 May 1947 inAffeldt, ibid., p. 383-391,389.

248 Trial of Martin Gottfried Weiss and thirty-nine others, General Military Government Court of the United States Zone, Dachau, Germany, IS“1 November-13111 December, 1945, UNWCC, vol. XI, p. 5.

249 Trial of Josef Kramer and 44 others, British Military Court, Luneberg, 17th September-H November, 1945, UNWCC, vol. II, p. 1.

250 See Dachau Concentration Camp case, UNWCC, vol. XI, p. 14:

251 The Judge Advocate summarised with approval the legal argument of the Prosecutor in the following terms:

252 In particular, the accused Kramer appears to have been convicted on this basis. (See ibid., p. 121: “The Judge Advocate reminded the Court that when they considered the question of guilt and responsibility, the strongest case must surely be against Kramer, and then down the list of accused according to the positions they held.” (emphasis added).

253 Ibid, p.121.

254 In a similar vein, the Case against R. Mulka et al. (“Auschwitz concentration camp case“) can be mentioned. Although the court reached the same result, it nevertheless did not apply the doctrine of common design but instead tended to treat the defendants as aiders and abettors as long as they remained within the framework provided by then- orders and as principal offenders if they acted outside this framework. This meant that if it could not be proved that the accused actually identified himself with the aims of the Nazi regime, then the court would treat him as an aider and abettor because he lacked the specific intent to “want the offence as his own” (see in particular the Bundesgerichtsh of in Justiz und NS-Verbrechen, vol. XXI, pp. 838, and especially pp. 881 ff). The BGH stated, p. 882:

255 Trial of Erich Heyer andsix others, British Military Court for the Trial of War Criminals, Essen, l8-19 and 21-22 I December, 1945, UNWCC, vol. I, p. 88, at p. 91.

256 Ibid., p. 89,

257 See transcript in Public Record Office, London, WO 235/58, p. 65 (emphasis added; copy on file with the International Tribunal's Library).

258 Ibid., p. 66 (emphasis added). ,

259 UNWCC, vol. 1, p. 91. In addition to Heyer and-the escort (Koenen), three civilians were also convicted. The first of the accused civilians, Boddenberg, admitted to have struck one of the airmen on. the bridge, after one of them had already been thrown over the bridge, knowing “that the motives of the crowd against them [the airmen] were deadly, and yet he joined in” (Transcript in Public Record Office, London, WO 235/58, p. 67; copy on file with International Tribunal's Library); the second, Kaufer, was found to have “beaten the airmen“ and taken “an active part” in the mob violence against them. Additionally, it was alleged that he tried to pull the rifle away from a subordinate officer to shoot the airmen below the bridge and that he called out words to the effect that the airmen deserved to be shot (ibid., pp. 67-68). The third, Braschoss, was seen hitting one of the airmen on the bridge, descending beneath the bridge to throw the airman, who was still alive, into the stream. He and an accomplice were further alleged to have thrown another of the airmen from the bridge (ibid., p. 68). Two of the accused civilians, Sambol and Hartung, were acquitted; the former because the blows he was alleged to have inflicted were neither particularly severe nor proximate to the airmen's death (comprising one of the earliest to be inflicted) and the latter because it was not proved beyond reasonable doubt that he actually took part in the affray (ibid., pp. 66-67, UNWCC, vol. I, p. 91).

260 The charge, in a strict legal sense, was the commission of a war crime in violation of the laws and usages of war for being “concerned in the killing” of the airmen rather than murder as this was “not a trial under English law” (ibid., at p. 91). For all intents and purposes, however, the charge.appeared to be treated as a murder charge, as it appeared to have been accepted in the course of the proceedings that “as long as everyone realised what was meant by the word ‘murder’ for the purposes of this trial, [there… ] was [no] difficulty” (ibid., pp. 91 -92).

261 See Charge Sheet, in U.S. National Archives Microfilm Publications, I (on file with the International Tribunal's Library).

262 Ibid., p. 1186 (emphasis added). See also p. 1187.

263 Ibid., p. 1188. See, further note 240 and accompanying text, with regard to the comments made regarding causation in the Ponzano case.

264 Ibid., p. 1190 (emphasis added). See also pp. 1191-1194.

265 See e.g. ibid., pp. 1201,1203-1206.

266 See ibid., pp. 1234,1241,1243.

267 See ibid., pp. 1268-1270. ,

268 The accused Akkerman, Krolikovski, Schmitz, Wentzel, Seiler and Goebbel were all found guilty on both the killing and assault charges and were sentenced to death, with the exception of Krolikovski, who was sentenced to life imprisonment (ibid., pp. 1280-1286).

269 The accused Pointner, Witzke, Geyer, Albrecht, Weber, Rommel, Mammenga and Heinemann were found guilty only of assault and received terms of imprisonment ranging between 2 and 25 years (ibid.).

270 See handwritten text of the (unpublished) judgement, p. 6 (unofficial translation; kindly provided by the Italian Public Record Office, Rome; on file with the International Tribunal's Library). See also Giustizia penale, 1948, Part II, col. 66, no. 71 (containing a headnote on the judgement)

271 See handwritten text of the (unpublished) judgement, pp. 6-7 (unofficial translation; emphasis added).

272 See handwritten text of the (unpublished) judgement, pp. 13-14 (kindly provided by the Italian Public Record Office, Rome; on file with the International Tribunal's Library). For a headnote on this case see Archivio penale, 1949, p. 472.

273 Judgement of 12 September 1946, in Archivio penale, 1947, Part II, pp. 88-89.

274 Judgement of 25 July 1946, in Archivio penale, 1947, Part II, p. 88.

275 See handwritten text of the (unpublished) judgement of 5 July 1946, p. 19 (kindly provided by the Italian Public Record Office, Rome; on file with the International Tribunal's Library). See also Giustiziapenale, 1945-46, Part II, cols. 530-532.

For cases where the Court of Cassation concluded that the participant was guilty of the more serious crime not envisaged in the common criminal design, see Torrazzini, judgement of 18 August 1946, in Archivio penale 1947, Part II, p. 89; Palmia, judgement of 20 September 1946, ibid.

276 See Giustizia penale, 1950, Part n, cols. 696-697 (emphasis added).

277 See e.g. Court of Cassation, 15 March 1948, Peveri case, in Archivio penale, 1948, pp. 431-432; Court of Cassation, 20 July 1949, Mannelli case, in Giustizia penale, 1949, Part n, col. 906, no.599; Court of Cassation, 27 October 1949, P.M. v. Mina.fi>, in Giustizia penale, 1950, Part II, col. 252, no. 202; 24 February 1950, Montagnino, ibid., col.821; 19 April 1950, Solesio et al, ibid., col. 822. By contrast, in a judgement of 23 October 1946 the same Court of Cassation, in Minapb et al, held that it was immaterial that the participant in a crime had or had not foreseen the criminal conduct carried out by another member of the criminal group (Giustizia penale, 1947, Part II, col. 483, no. 382).

278 In the Antonini case (judgement of the Court of Cassation of 29 March 1949), the trial court had found the accused guilty not only of illegally arresting some civilians but also of their subsequent shooting by the Germans, as a “reprisal” for an attack on German troops in Via Rasella, in Rome. According to the trial court the accused, in arresting the civilians, had not intended to bring about their killing, but knew that he thus brought into being a situation likely to lead to their killing. The Court of Cassation reversed this finding, holding that for the accused to be found guilty, it was necessary that he had not only foreseen but also willed the killing (see. text of the judgement in Giustizia penale, 1949, Part U, cols. 740-742).

279 The Report of the Sixth Committee (25 November 1997, A/52/653) and the Official, Records of the General Assembly session in which this Convention was adopted made scant reference to Article 2 and did not elaborate upon the doctrine of common purpose (see UNGAOR, 72nd plenary meeting, 52nd sess., Mon. 15 December 1997, U.N. Doc. A/52/PV.72). The Japanese delegate during the 33rd meeting of the Sixth Committee nevertheless noted that “some terms used [in the Convention] such as [… ] ‘such contribution’ (Article 2, para. 3(c)) were ambiguous” (33ri Meeting .of the Sixth Committee, 2 December 1997, UNGAOR A/C.6/52/SR.33, p. 8, para. 77). He concluded that his Government would therefore “interpret ‘such contribution’ [… ] to mean abetment, assistance or other similar acts as defined by Japanese legislation” (ibid). See also Report of the Ad Hoc Committee established by General Assembly, resolution 51/210 of 17 December 1996, UNGAOR, 52nd sess., 37th supp., A/52/37.

280 Rome Statute of the International Criminal Court,U.N. Doc. A/CONF.183/9,17July 1998.

281 “Judgement”, Prosecutor v. Anto Furundžja, Case No.: IT-95-17/1-T, Trial Chamber U, 10 December 1998, para. 227.

282 Even should it be argued that the objective and subjective elements of the crime, laid down in Article 25 (3) of the Rome Statute differ to some extent from those required by the case law cited above, the consequences of this departure may only be appreciable in the long run, once the Court is established. This is due to the inapplicability to Article 25(3) of Article 10 of the Statute, which provides that “[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute”. This provision does not embrace Article 25, as this Article appears in Part 2 of the Statute, whereas Article 25 is included in Part 3.

283 See Para. 25(2) of the Strafgesetzbuch: “Begehen mehrere die Straftat gemeinschaftlich, so wirdjeder als Teter bestraft (Mittater)”. (“If several persons commit a crime as co-perpetrators, each is liable to punishment as a principal perpetrator.” (unofficial translation)). The German case law has clearly established the principle whereby if an offence is perpetrated that had not been envisaged in the common criminal plan, only the author of this offence is criminally responsible for it. See BGH GA 85,270. According to the German Federal Court (in BGH GA 85,270):

“Mittdterschqft ist anzunehmen, wenn und soweit das Zusammenwirken der mehreren Beteiligten duf gegenseitigem Einverstandnis beruht, wahrend jede rechtsverletzende Handlung eines Mittdters, die iiber dieses Einverstandnis hinausgeht, nur diesem allein zuzurechnen ist”. (“There is co-perpetration (Mittaterschaft) when and to the extent that the joint action of the several participants is founded on a reciprocal agreement (Einverstandnis), whereas any criminal action of a participant (Mittater) going beyond this agreement can only be attributed to that participant.” (unofficial translation)).

284 In the Netherlands, the term designated for this form of criminal liability is “medeplegen”. (See HR 6 December 1943, NJ1944,245; HR 17 May 1943, NJ1943,576; and HR 6 April 1925, NJ1925,723, W 11393).

285 See Article 121-7 of the Code penal, which reads:

In addition to responsibility for crimes committed by more persons, the Court of Cassation has envisaged criminal responsibility for acts committed by an accomplice going beyond the criminal plan. In this connection the Court has distinguished between crimes bearing no relationship to the crime envisaged (e.g. a person hands a gun to an accomplice in the context of a hold-up, but the accomplice uses the gun to kill one of his relatives), and crimes where the conduct bears some relationship to the planned crime (e.g. theft is carried out in the form of robbery). In the former category of cases French case law does not hold the person concerned responsible, while in the latter it does, under certain conditions (as held in a judgement of 31 December 1947, Bulletin des arrets criminels de la Cour de Cassation 1947, no. 270, the accomplice “devait prevoir toutes les qualifications dont lefait etait susceptible, toutes les circonstances dont ilpouvait itre accompagne” (“should expect to be charged on all counts that the law. allows for and all consequences that might result from the crime” (unofficial translation)). See also the decision of 19 June 1984, Bulletin, ibid, 1984, no. 231.

286 The principles of common purpose are delineated, in substance, in the following provisions of the Codice Penale:

“Article 116: Reato diverso da quello voluto da taluno dei concorrenti.fiwa/ora il reato commesso sia diverso da qttello voluto da taluno del concorrenti, anche questi ne risponde, se I'evento e conseguenza delta sua azione od omissione.” (“Crimes other than that intended by some of the participants. Where the crime committed is different from that intended by one of the participants, he too shall answer for that crime if the event is a consequence of his act or omission.” (unofficial translation)).

It should be noted that Italian courts have increasingly interpreted Article 116 as providing for criminal responsibility in cases of foreseeability. See in particular the judgement of the Constitutional Court of 13 May 1965, no. 42, Archivio Penale 1965, part n, pp. 430 ff. In some cases courts require so-called abstract foreseeability (prevedibilita astratta) (see e.g., instance, Court of Cassation, 3 March 1978, Cassazionepenale, 1980, pp. 45 ff, Court of Cassation, 4 March 1988, Cassazione penale, 1990, pp. 35 ff); others require concrete (or specific) foreseeability (prevedibilita concreta) (seee.g., Court of Cassation, 11 October 1985, Rivista penale, 1986, p. 421;and Court of Cassation, 18February 1998, Rivista penale, 1988, p. 1200).

287 See R. v. Hyde [1991] 1 QB 134; R. v. Anderson; R. v. Morris [1966] 2 QB 110, in which Lord Parker CJ held that “where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, than that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise”.'However, liability for such unusual consequences is limited to those offences that the accused foresaw that the principal might commit as a possible incident of the common unlawful enterprise, and further, the accused, with such foresight, must have continued to participate in the enterprise (see Hui Chi-Ming v. R. [1992] 3 All ER 897 at 910-911).

288 Criminal Code, Section 21(2) reads that where:

It should be noted that despite the fact that the section refers to an objective foreseeability requirement, this has been modified by the Supreme Court of Canada which held that: “[i]n those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard” (R. v. Logan [1990] 2 SCR 731 at 735). Hence, a subjective standard is applied in the case of offences such as murder. See also R. v. Rodney [1990] 2 SCR 687.

289 E.g., in Maine (17 Maine Criminal Code § 57 (1997), Minnesota (Minnesota Statutes § 609.05 (1998)), Iowa (Iowa Code § 703.2 (1997)), Kansas (Kansas Statutes § 21-3205 (19997)), Wisconsin (Wisconsin Statutes § 939.05 (West 1995)). Although there is no clearly defined doctrine of common purpose under the United States’ Federal common law, similar principles are promulgated by the Pinkerton doctrine. This doctrine imposes criminal liability for acts committed in furtherance of a common criminal purpose, whether the acts are explicitly planned or not, provided that such acts might have been reasonably contemplated as a probable consequence or likely result of the common criminal purpose (see Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180,90 L. Ed. 1489 (1946); State v. Walton, 227 Conn. 32; 630 A.2d 990 (1993); State of Connecticut v. Diaz, 237 Conn. 518,679 A. 2d 902 (1996)).

290 Under Australian law, when two parties embark on a joint criminal enterprise, a party will be liable for an act which he contemplates may be carried out by the other party in the course of the enterprise, even if he has not explicitly or tacitly agreed to the commission of that act (McAuliffev. R. (1995) 183 CLR108 at 114). The test for determining whether a crime falls within the scope of the relevant joint enterprise is the subjective test of contemplation: “in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one, and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose” (ibid.).

291 Article 22 of the Penal Code states:

292 See Report of the Secretary-General, para. 36 (emphasis'added).

293 See Judgement, paras. 127-179, which outlines the background to the conflict in the opština Prijedor.

294 Judgement, para. 660.

295 Ibid., para. 370.

296 Ibid.

297 Judgement, para. 633.

298 Ibid.

299 Ibid., para. 634.

300 Ibid., paras. 656-657.

301 Ibid, paras. 658-659.

302 Cross-Appellant's Brief, para. 4.9'.

303 Skeleton Argument of the Prosecution, para. 26.

304 Cross-Appellant's Brief, para. 4.11; T. 150 (20 April 1999).

305 Cross-Appellant's Brief, paras. 4.15 — 4.18.

306 Ibid, paras. 4.22; T. 152 (20 April 1999).

307 Appellant's Amended Brief on Judgement, para.- 4.9; T. 227 (20 Aprifl999).

308 Appellant's Amended Brief on Judgement, para. 4.12; T, 229 (20 April 1999).

309 Appellant's Amended Brief on Judgement, paras. 4.17— 4.18 ’.

310 Article 25(1) of the Statute reads as follows: “The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice”.

311 This requirement had already been recognised by this Tribunal in the Vukovar Hospital Rule 61 Decision:

312 Cross-Appellant's Brief, para. 4.9.

313 On the issue of whether the Statute exceeds customary international law in requiring that there be an armed conflict, see the Tadic Decision on Jurisdiction, para. 141.

314 Judgement, para. 634.

315 Ibid

316 Cross-Appellant's Brief, para. 4.20.

317 Ibid., para, 4.23.

318 Decision of the Supreme Court for the British Zone (Criminal Chamber) (9 November 1948), S. StS 78/48, in Justizt und NS-Verbrechen vol. II, pp. 498-499. The Accused, Mrs. K. and P., had denounced P's Jewish wife to the Gestapo for her anti-Nazi remarks. The defendants' sole purpose was to rid themselves of Mrs. P., who would not agree to a divorce, and the Accused saw no other means of so doing than by delivering Mrs. P. to the Gestapo. Upon her denunciation, Mrs. P. was arrested and brought to Auschwitz concentration camp where she died after a few months due to malnutrition. The Court of First Instance convicted K. and P. of crimes against humanity. (See Decision of Schwurgericht Hamburg from 11 May 1948, (50). 17/48, in Justiz und NS-Verbrechen, vol. II, pp. 491-497). The Accused appealed to the Supreme Court of the British Zone which dismissed their appeal and confirmed their convictions, stating that both the physical and the mental elements of a crime against humanity were met. (See Decision of the Supreme Court for the British Zone from 9 November 1948, S. StS 78/48, in Justiz und NS-Verbrechen, vol. U, pp. 498-499 at p. 499): According to the Supreme Court, the findings of the Court Of First Instance had sufficiently proved that the accused fulfilled this mental requirement.

319 Ibid., p. 499.

320 OGHBZ, Supreme Court for the British Zone (Criminal Chamber) (5 March 1949), S. StS 19/49, in Entscheidungen des Obersten Gerichtshofes fur die Britische Zone I, 1949, pp. 321-343. The Accused, Dr. P and others, were medical doctors and a jurist working in a hospital for mentally disturbed patients. Pursuant to Hitler's directive which ordered the transferral of mentally ill persons to other institutions (where the patients were secretly killed in gas chambers), the Defendants in a few cases participated in the transfer of patients. In most cases, however, they objected to these instructions and tried to save their patients’ lives by releasing them from hospital or by classifying them in categories which were not subject to Hitler's directive. The Defendants, charged with aiding and abetting murder, were acquitted by the Court of First Instance because it could not be proven that they had acted with the request then rea with regard to participation in the killing of the patients. The Court of First Instance did not take into consideration whether the Defendants’ behaviour could constitute a crime against humanity. This was criticised by the Supreme Court for the British Zone, which ordered the re-opening of the trial before the Court of First Instance to ascertain whether the Accused could be found guilty of a crime against humanity. The Supreme Court stated that a “perpetrator (of a crime against humanity] is indeed also anyone who contributes to the realisation of the elements of the offence, without at the same time wishing to promote National Socialist rule, [… ] but who acts perhaps out of fear, indifference, hatred for the victim or to receive some gain. [This is] because even when one acts from these motives (“Beweggriinde“), the action remains linked to this violent and oppressive system (“Gewaltherrschaft“)” (ibid., p. 341). The Defendants, ultimately, were not convicted of crimes against humanity for procedural reasons unrelated to the definition of the offence.

321 Decision of Flensburg District Court dated 30 March 1948 in Justiz und NS-Verbrechen, vol. II, pp. 397-402. See this decision for the findings of the District Court to the effect that the denunciation was made for personal reasons.

322 Decision of the Supreme Court of the British Zone dated 26 October 1948, S. StS 57/48, in Entscheidungen des Obersten Gerichtshofes fur die Britische Zone, Entscheidungen in Strafsachen, vol. I., pp. 122-126 at p. 124 (unofficial translation). The essence of this statement was reiterated in the Decision of the Supreme Court dated 8 January 1949 against G. (S. StS 109/48, ibid., pp. 246-249). G., a member of the SA (Stormtroopers), had participated in the mistreatment of a political opponent for apparently purely personal motives, namely personal rancour between his family and the family of the victim. Nevertheless, G. was found guilty of a crime against humanity. The Supreme Court dismissed G.'s appeal against his conviction, stating that the motive for an attack was immaterial and that an attack against a single victim for personal reasons can be considered a crime against humanity if there is a nexus between the attack and the National Socialist rule of violence and tyranny (ibid., p. 247).

323 The Court of First Instance referred to the Decision of the Supreme Court of the British Zone dated 17 August 1948, S. St S 43/48, ibid., pp. 60-62 and Decision dated 13 November 1948, S. St S 68/48, ibid., pp. 186-190. See also Decision of the Supreme Court of the British Zone dated 20 April 1949, S. St S 120/49, ibid., pp. 385-391, at p. 388.

324 Decision of the Braunschweig District Court dated 22 June 1950, in Justiz und NS-Verbrechen, vol. VI, pp. 631-644, at p. 639. Note, in particular, the findings of the District Court to the effect that the denunciation was motivated by personal concerns. Mention can also be made of the Decision of Schwurgericht Hannover, dated 30 November 1948, in the B. case, S. StS 68/48 (in Entscheidungen des Obersten Gerichtshofes fiir die Britische Zone, Entscheidungen in Strafsachen, vol. I, pp. 186-190). B., an inspector of state church offices, informed his superior that one of his colleagues, P., had repeatedly expressed his doubts about the political situation in Germany and voiced his disapproval of the persecution of the Jews, the official propaganda, cultural policy and anti-clerical attitude of National Socialism. This information reached the Gestapo, who arrested P. A special court sentenced P. to one year and three months in prison. B., charged with crimes against humanity, was acquitted at first instance because the verdict of the Court of First Instance (Schwurgericht Hannover), having extensively examined the accused's motives (“Beweggriinde“), could not determine whether the denunciation had been motivated by politics or religion. The Supreme Court for the British Zone dismissed the judgement of the District Court, stating that “it was erroneous and in contradiction to the consistent jurisprudence of the [Supreme] Court” to consider the motives of the accused as important, (ibid., p. 189).

325 Decision of the Supreme Court for the British Zone dated 22 June 1948, S. StS 5/48, in Entscheidungen des Obersten Gerichtshofesflir die Britische Tone, Entscheidungen in Strafsachen, vol. I, pp. 19-25. The decision of the Supreme Court did not directly concern the accused Nu., but a co-accused of hers. Nu. had been sentenced by the District Court of Hamburg for committing a crime against humanity.

326 See Cross-Appellant's Brief, paras. 4.15,4.16.

327 U.S. v. Ernst von Weizsaecker et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, vol XIV, pp. 611,470-471, cited in Cross-Appellant's Brief, para. 4.15.

328 U.S. v. Altstoetter et al., Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, United States Government Printing Office, Washington, 1951, vol. m.

329 Attorney-General of the Government of Israel v. Adolf Eichntann, 36 International Law Reports 1968, p. 323.

330 Ibid p.331.

331 R. v. Finta, [1994] 1 SCR 701.

332 Ibid., at p. 819, majority judgement delivered by Cory J.

333 Defence's Substituted Response to Cross-Appellant's Brief, para. 4.16.

334 T. 152-153 (20 April 1999).

335 Cross-Appellant's Brief, para. 5.5; T. 161 (20 April 1999).

336 Cross-Appellant's Brief, para. 5.6; T. 162 (20 April 1999).

337 The statement reads as follows: “Crimes against humanity refer to inhumane acts of a very serious nature [… ] committed as part of a widespread or systematic attack against any civilian population on national, ethnic, racial or religious grounds.“

338 Cross-Appellant's Brief, paras. 5.7,5.8; T. 162,163 (20 April 1999).

339 Cross-Appellant's Brief, paras. 5.20,5.22.

340 Cross-Appellant's Brief, para. 5.24; T. 165 (20 April 1999).

341 Cross-Appellant's Brief, para. 5.26; T. 165 (20 April 1999).

342 T. 231-232 (21 April 1999)'.

343 T. 236-239 (21 April 1999).

344 Skeleton Argument of the Prosecution, para. 32.

345 See Cross-Appellant's Brief, para. 7.1(4), where the Prosecution requests the Appeals Chamber to “reverse the decision of the Trial Chamber, at page 250 paragraph 652, that discriminatory intent is an ingredient of all crimes against humanity under Article 5 of the Statute.”

346 ICJ Reports (1950), p. 8.

347 See paragraphs 294-300 below.

348 Article 5 (c) of the Statute of the International Military Tribunal for the Far East provides:

349 Article II (1) (c ) of Control Council Law No. 10 provides:

350 The Supreme Court of Canada held that:

351 In this regard, mention can be made of some further cases: Ahlbrecht, decided by the Dutch Special Court of Cassation on 11 April 1949 (Nederlandse Jurisprudentie, 1949, no. 425, pp. 747-751); /. and R., decision of the German Supreme Court for the British Zone, judgement dated 16 November 1948, S. StS 65/48 in Entscheidungen des Obersten Gerichtshofes fur die Britische Zone, vol. I, pp. 167-171; Enigster, decided by the District Court of Tel Aviv. As the District Court of Tel Aviv rightly stressed in the Enigster case, some crimes against humanity do not require a persecutory intent. In its Decision of 4 January 1952, the court stated the following:

It should be noted, however, that the Court was clearly wrong as far as the question of the famous semi-colon was concerned; it is well known that in actual fact the Protocol of 6 October 1945 replaced the semi-colon with a colon. (For the text of the Protocol see Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, vol. I, pp. XVI-XIX.

Reference can also be made to some cases decided by the German Supreme Court for the British Zone. The Appeals Chamber will briefly mention three of them: R., P. et al and H.

In a Decision of 27 July 1948 (S. StS 19/48), the court pronounced on the case of R. In 1944, a member of the NSDAP (the German National Socialist Worker's Party) and the NSKK (National Socialist Motor Vehicle Corps) had denounced another member of the NSDAP and of the S A (Stormtroopers) for insulting the leadership of NSDAP; as a result of this denunciation the victim had been brought to trial three times and eventually sentenced to death. (The sentence had not been carried out because the Russians had occupied Germany in the interim). The Court held that the denunciation could constitute a crime against humanity if it could be proved that the agent had intended to hand over the victim to the “uncontrollable power structure of the [Nazi] party and State”, knowing that as a consequence of his denunciation the victim was likely to be caught in an arbitrary and violent system (Entscheidungen des Obersten Gerichtshofes fur die Britische Zone, vol. I, pp. 45-49 at p. 47).

In a Decision of 7 December 1948 (S. StS 111/48), in the P. et al. case, the same court gave a very liberal interpretation to the notion of crimes against humanity as laid down in Control Council Law No. 10, extending it among other things to inhumane acts committed against members of the military. During the night after Germany's partial capitulation (5 May 1945) four German marines had tried to escape from Denmark back to Germany. The next day they were caught by Danes and delivered to German troops, who court-martialled and sentenced three of them to death for desertion; on the very day of the general capitulation of Germany, i.e. 10 May 1945, the three were executed. The German Supreme Court found that the five members of the court-martial were guilty of complicity in a crime against humanity. According to the Supreme Court, the glaring discrepancy between the offence and the punishment constituted a clear manifestation of the Nazis’ brutal and intimidatory system of justice, which denied the very essence of humanity in blind reference to the allegedly superior exigencies of the Nazi State; there was “an intolerable degradation of the victim[s] to mere means for the pursuit of a goal, hence the depersonalisation and reification of human beings.” (Entscheidungen des Obersten Gerichtshofes fur die Britische Zone, ibid., vol. I, pp. 217-229 at p. 220). Consequently, by sentencing the marines to death the members of the court-martial had inflicted an injury upon humanity as a whole.

The same broad interpretation of Control Council Law No. 10 may be found, finally, in a Decision of 18 October 1949 (S. StS 309/49) in the H. case (Entscheidungen des Obersten Gerichtshofes fur die Britische Zone, vol. II, pp. 231-246). There, the court dealt with a case where a German judge had presided over two trials by a naval court-martial (Bordkriegsgericht) against two officers of the German Navy, a submarine commander, charged in 1944 with criticising Hitler, and the other a lieutenant-commander of the German naval forces, charged in 1944 with procuring two foreign identity cards for himself and his wife. The Judge had voted for sentencing both officers to death (the first had been executed, while the sentence against the second had been commuted by Hitler to 10 years’ imprisonment). The Supreme Court held that the Judge could be found guilty of crimes against humanity even if he had not acted for political reasons, to the extent that his action was deliberately taken in connection with the, Nazi system of violence and terror (Entscheidungen des, Obersten Gerichtshofes flir die Britische Zone, ibid., vol. JJ, pp. 233,238).

352 See for instance ILC 1996 Draft Code of Offences Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its 4Sh session May 6-July 26,1996, UNGAOR 51s1 sess., supp. no. 10 (A/51/10), pp. 93-94.

353 While some delegates argued that a conviction for crimes against humanity required proof that the defendant was motivated by a discriminatory animus, others argued that “the inclusion of such a criterion would complicate the task of the Prosecution by significantly increasing its burden of proof in requiring evidence of this subjective element.” These delegates further argued that crimes against humanity could be committed against other groups, including intellectuals, social, cultural or political groups, and that such an element was not required under customary international law as evidenced by the Yugoslav Tribunal's Statute. (See Summary of the Proceedings of the Preparatory Committee During the Period March 25-April 12,1996, U.N. Doc. A/AC.249/1 (May 7,1996), pp. 16-17).

354 Article 7(1) of the Rome Statute provides: “For the purposes of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder […].” Article 7(1) of the Statute of the International Criminal Court thus articulates a definition of crimes against humanity based solely upon the interplay between the metis rea of the defendant and the existence of a widespread or systematic attack directed against a civilian population.

355 Report of the Secretary-General, para. 48.

356 For instance, the express requirement in Article 5 of a nexus with an armed conflict creates a narrower sphere of operation than that provided for crimes against humanity under customary international law.

357 He stated the following: “[W]ith regard to Article 5, that Article applied to all the acts set out therein when committed in violation of the law during a period of armed conflict on the territory of the former Yugoslavia, within the context of a widespread or systematic attack against a civilian population for national, political, ethnic, racial or religious reasons” (UJN. Doc. S/PV. 3217, p.ll).

358 See U.N. Doc. S/PV. 3217, p. 15.

359 On Article 5 the United States representative said that: “|TJt is understood that Article 5 applies to all acts listed in that Article, when committed contrary to law during a period of armed conflict in the territory of the former Yugoslavia, as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, gender, or religious grounds” (U.N. Doc. S/PV. 3217, p.16).

360 He said the following: “While believing that the text of the Statute addresses the tasks that face the Tribunal, and for that reason supporting it, we deem it appropriate to note that, according to our understanding, Article 5 of the Statute encompasses criminal acts committed on the territory of the former Yugoslavia during an armed conflict — acts which were widespread or systematic, were aimed against the civilian population and were motivated by that population's national, political, ethnic, religious or other affiliation” (ILN. Doc. S/PV. 3217, p. 45).

361 Article 31(1) and (2) provide:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

362 The Trial Chamber in its Judgement of 7 May 1997 has also correctly emphasised that the phrases “widespread” and “systematic” are disjunctive as opposed to cumulative requirements (see Judgement, paras. 645-648). See also the Nikolić, Rule 61 Decision, (“Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, The Prosecutor v. Dragan Nikolić,, Case No.: JT-94-2-R61, Trial Chamber 1,20 October 1995) (Nikolić, (1995) H ICTY JR 739).

363 See TadićDecision on Jurisdiction, paras 75,88 (where reference was also made to the statements of the representatives of the United Kingdom and Hungary).

364 See ibid., para 143 (where reference was made to the statements of the representatives of the United States, the United Kingdom and France).

365 Cross-Appellant's Brief, para. 6.3.

366 Ibid., para. 6.6; T. 190 (20 April 1999).

367 Ibid., paras. 6.6-6.24.

368 T. 186 (20 April 1999).

369 T. 186 (20 April 1999).

370 Cross-Appellant's Brief, paras. 6.7-6.14.

371 T. 187 (20 April 1999).

372 T. 187 (20 April 1999).

373 Cross-Appellant's Brief, paras. 6.15-6.18.

374 Ibid., para. 6.20.

375 Ibid., para. 6.21.

376 422 U.S. 225 (1975).

377 Cross-Appellant's Brief, paras. 6.25-6.31.

378 Ibid., para. 6.31.

379 Ibid.

380 Defence's Substituted Response to Cross-Appellant's Brief, para. 6.3; Skeleton Argument of the Prosecution, para. 5(b).

381 Defence's Substituted Response to Cross-Appellant's Brief, para. 6.13; Skeleton Argument of the Prosecution, para. 5(d).

382 Skeleton Argument of the Prosecution, paras. 5(f)-(g).

383 T. 275 (21 April 1999).,’

384 T. 275,278 (21 April 1999).

385 Skeleton Argument of the Prosecution, para. 5(h).

386 Article 25(1) provides: “The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice.”

387 T. 185 (20 April 1999).

388 Sub-rule 89(B) provides:

389 Article 14 provides in part:

390 Article 6 provides in part:

391 See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihomir BlaSkic, Case No.: IT-95-14-AR108ta, Appeals Chamber, 29 October 1997, para. 25.

392 Sub-rule 89(C) provides: “A Chamber may admit any relevant evidence which it deems to have probative value.”

393 Sub-rule 89(D) provides: “A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.“

394 Sub-rule 89(E) provides: “A Chamber may request verification of the authenticity of evidence obtained out of court“

395 Rule 97 provides in part: “All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial [… ].“

1 The Fifth Amendment of the U.S. Constitution reads: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”.

2 See United States v. DiFrancesco, 449 U.S. 117 (1980); Kepner v. United States, 195 U.S. 100 (1904); Sanabria v. United States, 437 U.S. 54 (1978); Green v. United States, 355 U.S. 184 (1957).

3 See s. 54 of the Criminal Procedure and Investigations Act 1996.

4 See supra, note 2,

5 See Dadomo, Christian and Farran, Susan, The French Legal System (2nd ed., Sweet & Maxwell, London, 1996), 220.

6 See ss . 312 and 333 of the German Criminal Code.

7 Justice Holmes, dissenting in Kepner v. United States, advocated the adoption of the concept of “continuing jeopardy” He argued that “a man cannot be said to be more than once in jeopardy on the same cause, however often he may be tried. The jeopardy is one continuing jeopardy from its beginning to the end of the cause.” The majority, concluding that the verdict at trial terminated the initial jeopardy, rejected Justice Holmes’ argument.

8 See Green v. United States, supra note 2.

1 Thucydides, , The Peloponnesian War, tr. Rex Warner (Middlesex, 1961), p. 211, speaking of the island of Corcyra.Google Scholar

2 The Collected Papers of John Westlake on Public International Law, ed. L. Oppenheim (Cambridge, 1914), p. 274.

3 Pictet, J.S., Humanitarian Law and the Protection of War Victims (Leyden, 1975), p. 50.Google Scholar

4 Sir Hersch Lauterpacht and C.H.M. Waldock (eds.), The Basis of Obligation in International Law and Other Papers by the Late James Leslie Brierly,1955, p. 9.

5 In re W. (An Infant), [1971] AC 682, HL, p. 700, per Lord Hailsham.

6 (Emphasis added). “The intent (or motive) of the perpetrator in ‘murder'… must be linked to carrying out the ‘state action or policy“'. See Bassiouni, Cherif, Crimes against Humanity in International Criminal Law (Dordrecht, 1992), p.292.Google Scholar

7 The Rules are referred to as they then stood.

8 Reparation Case, I.C.J. Reports 1949, p. 215, dissenting opinion of Judge Badawi Pasha.

9 See the reference by Lord Parker CJ to the impermissibility of “an accusation of crime without cause” in R. v. Martin [1961] 2 All ER 747.

10 See May, Richard and Wierda, Marieke, “Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague and Arusha”;, Col. J. of Trans. L, Vol. 37,1999, No. 3, p. 761.Google Scholar

11 Corpus Juris Secundum (New York), Vol. 5, pp. 593-608, footnotes omitted.