1 This case report limits discussion to the Kupreškićs, the three codefendants who were released on appeal. Another codefendant, charged solely under count 1, had been acquitted at trial. Sec Prosecutor v. Kupreškić, No. IT- 95-16, Judgment, paras. 766-69 (Jan. 14, 2000) [hereinafter Kupreškić trial judgment]. The appeals chamber sustained the multicount convictions of two other codefendants, but reduced their sentences. One reduction was influenced by considerations similar to those thatwarranted release of the Kupreškićs. See Prosecutor v. Kupreškić, No. IT-95-16-A, Judgment, paras. 354-60, 436-39 (Oct. 23, 2001) [hereinafter Kupreškić appeals judgment]. Judgments and other documents pertaining to the cases of the International Criminal Tribunal for the Former Yugoslavia (ICTY) are available online at <http://www.un.org/icty/ind-e.htm>.

2 Kupreškić appeals judgment, supra note 1, para. 83 (quoting amended indictment, para. 20).

3 Id., para. 83 (quoting amended indictment, para. 9).

4 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, Art. 5(h), UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statute].

5 The trial chamber comprised Presiding Judge Antonio Cassese of Italy and Judges Richard May of Great Britain and Florence Ndepele Mwachande Mumba of Zambia.

6 See Kupreškić appeals judgment, supra note 1, paras. 8, 11, 14. The three were acquitted of numerous other counts alleging their involvement in other incidents. See Kupreškić trial judgment, supra note 1, sec. VIII.

7 Kupreškić appeals judgment, supra note 1, para. 96 (quoting transcript of appellate hearing).

8 Serving on the panel were Presiding Judge Patricia Wald of the United States and Judges Lai Chand Vohrah of Malaysia, Rafael Nieto-Navia of Colombia, Fausto Pocar of Italy, and Liu Daqun of China. Judge Wald, previously a member of the U.S. Court of Appeals for the District of Columbia Circuit, retired from ICTY shortly after this opinion was issued. See Simons, Marlise, An American with Opinions Steps Down Vocally at War Crimes Court, N.Y. Times, Jan. 24, 2002 Google Scholar, at A12.

9 Kupreškić appeals judgment, supra note 1, para. 122.

10 Id., para. 98.

11 See id., paras. 79, 112-14, 119, 124. Later the appeals chamber wrote that fairness would have warranted applying the same ruling to Vlatko Kupreškić, who had not raised the issue; it did not consider the matter in any depth, however, because it reversed his conviction on other grounds. See id., para. 304.

12 Id., para. 78.

13 See id., paras. 86, 127.

14 See id., paras. 161,197.

15 Id., para. 129 (quoting Kupreškić trial judgment, supra note 1, para. 425).

16 See id., paras. 33-34.

17 Id, paras. 39, 130, 134.

18 Id., para. 135.

19 ICTY Statute, supra note 4, Art. 23(2); see Kupreškić appeals judgment, supra note 1, paras. 32, 135.

20 Kupreškić appeals judgment, supra note 1, para. 39.

21 Id., para. 138.

22 Id., para. 154.

23 Id., para. 147.

24 See id., paras. 146-50.

25 Id., para. 189; see also id., n.311.

26 Id., para. 196.

27 See id., paras. 191-201.

28 Id., para. 201.

29 See id., para. 203-04 (noting that evidence of Witness AT was not based on live testimony given in Kupreškić, but rather on transcript of prior testimony and on two prior statements that Witness AT had given to the prosecution).

30 Id., para. 225.

31 Id., para. 245.

32 Id., para. 246.

33 Id., para. 304.

34 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Art. 26, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279 (precluding review); Charter of the International Military Tribunal for the Far East at Tokyo, Art. 17, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, Apr. 26, 1946, TIAS No. 1589, reprinted in 4 UST 27 (1946) (same). On criticism of these proceedings, see, for example, H, Richard. Minear, , Victor’s, Justlce: The Tokyo War Crimes Trial 175–76 (1971)Google Scholar; R, Kevin. Chaney, , Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials, 14 Dick J. Int’l L. 57, 70–91 (1995)Google Scholar.

35 See generally Developments in the Law—International Criminal Law, Fair Trials and the Role of International Criminal Defense, 114 Harv. L. Rev. 1982 (2001).

36 See Kupreškić appeals judgment, supra note 1, paras. 22-32.

37 Compare id., para. 30 (“Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is ‘wholly erroneous’ may the Appeals Chamber substitute its own finding for that of the Trial Chamber.”), with Juckson v. Virginia, 443 U.S. 307, 319 (1979) (“[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”).

38 See Kupreškić appeals judgment, supra note 1, para. 46 (“motions for new trial based upon newly discovered evidence are disfavoured by the U.S. courts”).

39 See Mirjan, Damaška, The Faces of Justice and State Authority 48–49 (1986)Google Scholar.

40 See 18 U.S.C A §3742 (e) (requiring the court of appeals to “give due regard to the opportunity of the district court to judge the credibility of the witnesses”); J, Henry. Friendly, Indiscretion About Discretion, 31 Emory LJ. 747, 759 (1982)Google Scholar.

41 See Prosecutor v. Milošević, Nos. IT-99-37-AR73, IT-01-50-AR73, LT-01-51-AR73, Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder (Feb. 1, 2002) (ordering that three indictments against former Serbian president, regarding alleged crimes during conflicts in Kosovo, Croatia, and Bosnia, be merged into one and considered in one trial, beginning with evidence about Kosovo and following with other evidence in later hearings).

42 Doran, Sean, John, D.Jackson, & L, Michael. Seigel, , Rethinking Adversariness in Nonjury Criminal Trials, 23 Am. J. Crim. L. 1, 29 (1995)Google Scholar; see Jackson, John & Doran, Sean, Judge Without Jury 252, 265 (1995)Google Scholar.

43 See Jackson & Doran, supra note 42, at 252, 274-85; H, John. Langbein, , Mixed Court and Jury Court: Could the Continental Alternative Fill the American Need, 1 Am. B. Found. Res. J. 195, 200, 213–14 (1981)Google Scholar. In the United States, no such opinion is required even in nonjury criminal proceedings. See Doran, Jackson, & Seigel, supra note 42, at 45-46.

44 An even more recent example is the affirmance of the 2001 judgment—by three Scottish judges applying Scottish law, in a trial held in the Netherlands—convicting a Libyan man of murdering passengers and crew of a jet that had exploded in 1988 over Lockerbie, Scotland. See A1 Megrahi v. Her Majesty’s Advocate, Appeal No. C104/01, Appeal Against Conviction (Appeal Court, High Court of Justiciary, Mar. 14, 2002) (Scot), at<http://www.scotcourts.gov.uk/indexl.htm>. Taking into account the testimony of live witnesses that was admitted on appeal, the appeals court scrutinized the findings of fact contained in the trial judgment, which had been prepared in accord with a reasoned-opinion requirement. See id., paras. 215-52. It found an instance of misinterpretation of trial evidence, but no miscarriage of justice. See id., paras. 101-03.

45 This reliance belies the assumption in U.S. courts that such testimony is unnecessary because it would restate concepts already known to lay jurors. See, e.g., United States v. Daniels, 64 F.3d 311, 315 (7th Cir. 1995), cert, denied, 516 U.S. 1063 (1996). In at least one U.S. jurisdiction, such testimony is flatly prohibited. See United States v. Holloway, 971 F.2d 675, 679 (11th Cir. 1992), cert, denied, 507 U.S. 962 (1993).

46 See Kupreškić appeals judgment, supra note 1, paras. 42-47.

47 An appeals chamber of the International Criminal Tribunal for Rwanda already has relied on the approach in Kupreškić to overturn one count of conviction. See Musema v. Prosecutor, No. ICTR-96-13-A, Judgment, paras. 184-94 (Nov. 16, 2001), at <http://www.ictr.org>.

48 In addition to persecution, so described in the Kupreškić appeals judgment, supra note 1, para. 98, consider the proscription of “other inhumane acts” as crimes against humanity, ICTY Statute, supra note 4, Art. 5 (i), or of “outrages upon personal dignity” as violations of laws and customs of war, Statute of 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, Art. 4(e), SC Res. 955, annex (1994), reprinted in 33 ILM 1602 (1994).