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International Criminal Tribunal for the Former Yugoslavia (ICTY) (Appeals Chamber): Prosecutor v. Tadić (Judgment in Sentencing Appeals)

Published online by Cambridge University Press:  27 February 2017

Abstract

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Type
Judicial and Similar Proceedings
Copyright
Copyright © 2000

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Footnotes

*

This document was reproduced and reformatted from the text appearing at the ICTY website (visited May 22, 2000) http://www.un.org/icty.

References

* This document was reproduced and reformatted from the text appearing at the ICTY website (visited May 22, 2000) http://www.un.org/icty.

1 “Decision of the Trial Chamber on the Application by the Prosecutor for a Formal Request for Deferral”, Prosecutor v. Duško Tadić, Case No.: IT-94-1-D, T. Ch.I, 8 Nov. 1994.

2 “Opinion and Judgment”, Prosecutor v. Duško Tadić, Case No.: IT-94-1-T, T.Ch.II, 7 May 1997, pp.227-228, paras.607-608 and page 300.

3 Ibid., pp.300-301.

4 “Sentencing Judgment”, Prosecutor v. Duško Tadić, Case No.: IT-94-1-T, T.Ch.II, 14 July 1997, p.41, para.76.

5 Ibid., para. 77.

6 Ibid.

7 “Notice of Appeal by the Defence Against Sentencing Judgment of 14 July 1997”, 11 August 1997.

8 See “Motion to Extend the Time Limit”, 10 September 1997; “Motion for the Extension of the Time Limit” (Confidential), 6 October 1997; “The Motion for the Extension of Time”, 17 March 1998; “Application for Extension of Time to File Additional Evidence on Appeal”, 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”, 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'”, 9 October 1997; “Request for a Modification of the Appeals Chamber Order of 22 January 1998”, 13 February 1998; “Request for a Modification of the Appeals Chamber Order of 2 February 1998”, 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.: IT-94-1-A, 10 June 1998; “Order Granting Extension of Time”, Case No.: IT-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.: IT-94-1-A, 19 February 1998; “Order Granting Requests for Extension of Time”, Case No.: IT-94-1-A, 13 May 1998.

9 “Judgement”, Prosecutor v. Duško Tadić, Case No.: IT-94-1-A, 15 July 1999 (“Appeals Judgement”).

10 Ibid., p.144, para. 327.

11 Ibid., p.11, para. 27 and p. 144, para. 327.

12 “Prosecution's Submissions on the Appropriate Venue for Additional Sentencing Proceedings”, 25 August 1999; “Further Brief on Sentence Pursuant to the Judgment of the Appeal Chamber Dated 15th July 1999”, 25 August 1999, p. 7, para. 12; Transcript of hearing in Prosecutor v Duško Tadic, Case No.: IT-94-1-A (“T”) 30 August 1999, pp. 361, 366, 368 and 370. 307. (All transcript page numbers referred to in the course of this Sentencing 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).

13 “Order Remitting Sentencing to a Trial Chamber”, Prosecutor v. Duško Tadić, Case No.: IT-94-1-A, 10 September 1999, p. 3.

14 “Sentencing Judgment”, Prosecutor v. Duško Tadić, Case No.: IT-94-l-Tbis-Rl 17, 11 November 1999.

15 Ibid., p.17.

16 Ibid., p.12, para. 22 and p. 17.

17 “Notice of Appeal Against Sentencing Judgment of 11th November 1999”, 25 November 1999, p. 4, para. 8.

18 “Order”, Prosecutor v. Duško Tadić, Case No.: IT-94-1-A and IT-94-l-Abis, 3 December 1999, p. 3.

19 “Appellant's Brief on Appeal Against Sentencing Judgment of 11th November 1999”, 15 December 1999 (“Appellant's Brief Against Sentencing Judgment of 11 November 1999”); “Response to Appellant's Brief on Appeal Against Sentencing Judgment of 11 November 1999”, 22 December 1999 (“Response to Appellant's Brief Against Sentencing Judgment of 11 November 1999”).

20 “Appellant's Brief Against Sentencing Judgement”, 12 January 1998 (“Appellant's Brief Against Sentencing Judgement of 14 July 1997”), pp. 1-9, paras. 1-5; T. 303 (21 April 1999).

21 Ibid., pp. 3-4, para. 5 ((a)-(d)); T. 303 (21 April 1999).

22 Ibid., pp. 4-6; T. 304, 311 (21 April 1999).

23 Ibid., pp. 9-10, para. 7 ((a)-(d)); T. 305 (21 April 1999).

24 Ibid., p. 10, para. 8; T. 306-308 (21 April 1999).

25 Ibid., p. 14; T. 308-309 (21 April 1999).

26 Appellant's Brief Against Sentencing Judgement of 11 November 1999, pp. 1-15, paras. 1-8; T. 482-485 (14 January 2000).

27 Ibid., pp. 15-18, paras. 9-13; T. 477-482 (14 January 2000).

28 Ibid., pp. 18-19, paras. 14-15; T. 489-490 (14 January 2000).

29 Ibid., pp. 19-20, para. 16; T. 485-489 (14 January 2000).

30 Ibid., pp. 20-21, para. 17; T. 490 (14 January 2000).

31 T. 476 (14 January 2000).

32 “Notice of Appeal by the Defence Against Sentencing Judgment of 14 July 1997”, 11 August 1997; T. 303, 306, 309 (21 April 1999).

33 “Notice of Appeal Against Sentencing Judgment of 11th November 1999”, 25 November 1999; T. 476 (14 January 2000).

34 Appellant's Brief Against Sentencing Judgement of 14 July 1997, pp. 1-4; T. 303 (21 April 1999).

35 Ibid., pp. 3-4, paras. 5((a)-(d)); T. 303 (21 April 1999).

36 Ibid., pp. 4-6; T. 304, 311 (21 April 1999).

37 Ibid., pp. 9-10; T. 305 (21 April 1999).

38 “Response to Appellant's Brief on Appeal Against Sentencing Judgement Filed on 12 January 1998”, 16 November 1998 (“Response to Appellant's Brief Against Sentencing Judgement of 14 July 1997”), pp. 4-6; T. 314 (21 April 1999).

39 Ibid., pp. 11-13, paras. 5.4, 5.8; T. 312 (21 April 1999).

40 Ibid., p. 7.

41 Ibid., p. 14 para. 5.12; T. 313-314 (21 April 1999).

42 Ibid., p. 9 para. 4.7; T. 314-315 (21 April 1999).

43 T.315-316(21 April 1999).

44 T.306-308 (21 April 1999).

45 T.307 (21 April 1999).

46 Response to Appellant's Brief Against Sentencing Judgement of 14 July 1997, pp. 16-17; T.317-318 (21 April 1999).

47 North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (quoting Worcester v. Commissioner, 370 F.2d. 713, 718).

48 Appellant's Brief Against Sentencing Judgement of 14 July 1997, p.14, para. 9; T.308-309 (21 April 1999).

49 Ibid.

50 Response to Appellant's Brief Against Sentencing Judgement of 14 July 1997, p.18, para.7.3; T.318 (21 April 1999).

51 T. 319-320 (21 April 1999).

52 The distinction between the language of Sub-rule 101(E) and Sub-rule 101(D) resides in the deletion in Subrule 101(D) of the pronoun “his” (surrender to the Tribunal). Concerning the effect of such an amendment, Sub-rule 6(D) provides as follows: An amendment shall enter into force seven days after the date of issue of an official Tribunal document containing the amendment, but shall not operate to prejudice the rights of the accused in any pending case. In view of the nature of the amendment, the Appeals Chamber considers that the rights of the Appellant are not prejudiced by the application of the Rule as amended.

53 Appellant's Brief Against Sentencing Judgment of 11 November 1999, pp. 1-15; T. 482-485 (14 January 2000).

54 “Judgement”, Prosecutor v. Zejnil Delalić et al., Case No.: IT-96-21-T, 16 November 1998, (“Čelebići Judgement”).

55 “Judgement”, Prosecutor v. Anto Furundžija, Case No.: IT-95-17/1-T, 10 December 1998.

56 Sentencing Judgment of 11 November 1999, p. 6, para. 7, quoting the Čelebići Judgement, para. 1234. See Appellant's Brief Against Sentencing Judgment of 11 November 1999, p. 2.

57 Ibid., p. 3; T. 482-485 (14 January 2000).

58 Ibid., p. 4, para. 2(f).

59 Ibid., pp. 4-6, paras. 2(g) and (h).

60 Response to Appellant's Brief Against Sentencing Judgment of 11 November 1999, pp. 3-6, paras. 2-5.

61 Sentencing Judgment of 11 November 1999, p. 6, para. 9. See Response to Appellant's Brief Against Sentencing Judgment of 11 November 1999, p. 3-4, para. 2.

62 Sentencing Judgment of 11 November 1999, p. 13, para. 25 (omitted). See Response to Appellant's Brief Against Sentencing Judgment of 11 November 1999, p. 3-4, para. 2.

63 Ibid.; T. 498-499 (14 January 2000).

64 Appellant's Brief Against Sentencing Judgment of 11 November 1999, pp. 15-16, paras. 9-11; T. 477-482 (14 January 2000).

65 Ibid., pp. 16-18, paras. 12-13; T. 479-481 (14 January 2000).

66 Response to Appellant's Brief Against Sentencing Judgment of 11 November 1999, p. 9, para. 11; T. 494 (14 January 2000).

67 Ibid., p. 9, para. 11; T. 496-497 (14 January 2000).

68 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.

69 Appellant's Brief Against Sentencing Judgment of 11 November 1999, pp. 18-19, paras. 14-15; T. 489-490 (14 January 2000); Transcripts of proceedings in Prosecutor v. Duško Tadić, Case No.: IT-94-l-Tbis-Rl 17, T. Ch. Tbis, 441-442 (15 October 1999).

70 Appellant's Brief Against Sentencing Judgment of 11 November 1999, p. 19, para. 15.

71 Response to Appellant's Brief Against Sentencing Judgment of 11 November 1999, p. 7, para. 7.

72 Ibid.

73 Appellant's Brief Against Sentencing Judgment of 11 November 1999, pp. 19-20, para. 16.

74 Ibid.

75 T. 487-488 (14 January 2000).

76 T. 499 (14 January 2000).

77 T. 499-500 (14 January 2000).

78 “Judgement”, Prosecutor v. Dražen Erdemović, Case No.: IT-96-22-A, App. Ch., 7 October 1997.

79 T. 500-501 (14 January 2000).

80 T. 501-502 (14 January 2000).

81 T. 508 (14 January 2000).

82 Appellant's Brief Against Sentencing Judgment of 11 November 1999, p. 20-21, para. 17.

83 Ibid.

84 Response to Appellant's Brief Against Sentencing Judgment of 11 November 1999, pp. 7-8, para. 8.

1 Appellant's Brief on Appeal Against Sentencing Judgment of 11th November 1999, para. 16.

2 IT-94-1-T.

3 IT-96-22-A.

4 IT-96-22-Tbis, reported in André Klip and Göram Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, The International Criminal Tribunal for the former Yugoslavia 1993-1998, Vol. 1 (Antwerp, 1999), p. 657.

5 Tadić Appeal Transcript, 15 July 1999, pp. 582-583.

6 IT-94-l-Tbis-R117,p. 10.

7 Judge Robinson cited Bing Bing Jia, “The Differing Concepts of War Crimes and Crimes against Humanity in International Criminal Law”, being chapter 11 of Guy Goodwin-Gill and Stefan Talmon (eds.), The Reality of International Law, Essays in Honour of Ian Brownlie (Oxford, 1999).

8 Sentencing Judgement in Tadić, IT-94-1-T, para. 73. The position so taken was in substance repeated in para. 28 of the Sentencing Judgment in Tadić, 11 November 1999, IT-94-l-Tbis-Rl 17.

9 Case No. IT-96-22-A, 7 October 1997.

10 See para. 20 of the judgment of the Appeals Chamber in Erdemović.

11 Erdemović, IT-96-22-A, 7 October 1997, para. 20, underlining as in the original.

12 Ibid., para. 21.

13 Ibid., para. 26.

14 Ibid., para. 26.

15 Ibid., p. 17.

16 Joint Opinion, paragraph 21.

17 See the definition, quoted below, of a crime against humanity as given by the United Nations War Crimes Commission.

18 As to the narrowing effect of the nexus element of an ‘armed conflict’ required by Article 5 of the Tribunal's Statute, see Tadić, Appeals Chamber, 2 October 1995, (1994-1995) I ICTY JR 357, at 503, paras. 140-141.

19 Article 20 of the ILC Draft Code of Crimes against the Peace and Security of Mankind has been referred to in part in the text. Article 18 states that a “crime against humanity means any of the following acts when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group … ”. (Emphasis added).

20 The Trial of German Major War Criminals, Speeches of the Chief Prosecutors at the Close of the case against Individual Defendants (London, 1946), p. 63.

21 Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen (O.G.H.br.Z.) (Berlin, 1949), vol. 2, p. 271, as translated and cited in Henri Meyrowitz, La répression par les tribunaux allemands des crimes contre I'humanité et de rappartenance à une organisation criminelle en application de la loi no. 10 du Conseil de contrôle allié (Paris, 1960), at p. 347.

22 The published report, commencing at p. 31 of Vol. XI of Law Reports of Trials of War Criminals (London, 1949), does not set out the pertinent part of the transcript of the oral proceedings.

23 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10 (Nuernberg, 1949), Vol. IV, pp. 48-49.

24 Ahlbrecht Case, Special Court of Cassation, 11 April 1949, Nederlandse Jurisprudentie, No. 425, p. 747, unofficial translation, cited in paragraph 23 of the Joint Opinion and digested in Annual Digest and Reports of Public International Law Cases (1949), pp. 396-398. The judgment in the appeal of Erdemovic refers to the appellate court as the “Dutch Court of Appeal” the title of the court as cited in Nederlandse Jurisprudentie (1949) is “Bijz. Raad van Cassatie”, subsequently translated in Annual Digest and Reports of Public International Law Cases (1949) as “Special Court of Cassation”.

25 History of the United Nations War Crimes Commission and the Development of the Laws of War (H.M. Stationery Office, London, 1948), p. 179.

26 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. II, (Nuernberg, October 1946), p.791.

27 Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. V, (Washington, 1950), pp. 165-167.

28 Prosecutor v. Kupreškić, ICTY, IT-95-16-T, 14 January 2000, para. 674.

29 See para. 25 of Judge Li's separate and dissenting opinion in the Erdemović appeal, and para. 12 of Tadić Sentencing Judgment of 11 November 1999.

30 IT-96-22-Tbis.

31 See para. 16 of judgment of the Appeals Chamber in Erdemović, 7 October 1997, IT-96-22-A.

32 Erdemović, Appeal Transcript, 26 May 1997, pp. 34-37 and 101-102.

1 See “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, Prosecutor v. Duško Tadić, Case No.: IT-94-1-AR72, App. Ch., 2 October 1995, paras. 87-93.

2 See Decision cit., para. 94.

3 See B.V.A. Röling, “The Significance of the Laws of War” in A. Cassese (ed.), Current Problems of International Law, 1975, 137-139. Of course, large-scale and systematic war crimes may also form part of “system criminality” consider for example the mass killing or ill-treatment of prisoners of war. However, the reverse is not true: crimes against humanity always constitute a form of system criminality, while war crimes may also constitute (and indeed very often do constitute) a form of “individual criminality”.

4 See “Judgement”, Prosecutor v. Zoran Kupreškić et al., Case No.: IT-95-16-T, T. Ch. II, 14 January 2000, paras. 683-684.

26
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