TABLE OF CONTENTS
1. Legal
Errors
2. Factual Errors
B. Alleged
insufficiency of reasoning in the Trial Chamber’s Judgement
C. Issues related to the Indictment
1. Notice
2. The law applicable to indictments
3. Failure to plead joint
criminal enterprise in the Indictment
4. The Schedules and the factual
findings of the Trial Chamber
D. Common legal questions concerning joint criminal enterprise
1. The definition
of joint criminal enterprise
2. What is the difference
between co-perpetration and aiding and abetting?
3. What level of contribution
is required to show participation in a joint criminal enterprise?
4. Can participation in a
joint criminal enterprise be inferred from the accused’s position
in a camp?
5. Does participation in a
joint criminal enterprise require a desire for the result?
6. Does a participant in a
joint criminal enterprise need to share the discriminatory intent
for persecutions?
7. Can an accused be held
responsible for crimes of a joint criminal enterprise during
absences from the camp?
8. Is the Prosecution required
to prove the existence of an agreement?
III. SEPARATE GROUNDS OF APPEAL OF KVOCKA
A. Kvocka’s interview with the Prosecution (ground of appeal 2)
1. Admission
of the record of the interview into evidence
2. The Trial Chamber’s reading
of the interview
B. Kvocka’s role and position in the Omarska camp (ground of appeal 3)
1. The
Trial Chamber’s findings
2. Kvocka was not the deputy
commander of the Omarska camp
3. The evidence did not support
the Trial Chamber’s findings
4. Kvocka was not charged
as the de facto deputy commander
C. Kvocka’s responsibility under the joint criminal enterprise theory (ground of appeal 7)
1. Kvocka’s
work in the Omarska camp did not meet the standard for that
of a co-perpetrator
2. Kvocka’s stay in the Omarska
camp was not knowing, willing, or continuous
3. Conclusion on Kvocka’s
responsibility
D. Kvocka’s criminal liability for the crime of murder (ground of appeal 5)
1. Temporal
limitation of Kvocka’s criminal responsibility
2. Requirements for establishing
the charge of murder
3. Charges of individual
murders
E. Kvocka’s criminal liability for the crime of torture (ground of appeal 6)
1. Required
elements of the crime of torture
2. Alleged Factual Errors
F. Kvocka’s criminal liability for persecutions as a crime against humanity (ground of appeal 4)
1. Specific
criminal acts that constitute persecutions as a crime against
humanity
2. Kvocka’s
mens rea for persecutions as a crime against humanity
IV. SEPARATE GROUNDS OF APPEAL OF RADIC
A. The right to a fair and impartial trial (ground of appeal 1)
1. Schedules
2. Consistent pattern of conduct
B. Radic’s criminal liability for the crime of persecutions (ground of appeal 3)
1. The finding
that the underlying crimes were discriminatory
2. Radic’s discriminatory
intent
3. The sexual offences did
not involve discrimination
C. Alleged factual errors (ground of appeal 4)
1. The position
of Radic within the Omarska camp
2. Crimes committed by guards
on Radic’s shift
3. Radic’s knowledge of camp
conditions and crimes
4. Sexual crimes
5. The application of the
joint criminal enterprise doctrine
6. Conclusion
V. SEPARATE GROUNDS OF APPEAL OF ZIGIC
A. Alleged errors concerning more than one ground of appeal
1. Standard
of review
2. Alleged errors concerning
the Indictment (grounds of appeal 44, 21, 29 and 35)
3. Bias of the Trial Chamber,
absence of reasoning (grounds of appeal 40 and 46)
4. Evidence of consistent pattern
of conduct (ground of appeal 39)
5. Persecution and discriminatory
intent (grounds of appeal 40, 41, 36, 38)
1. There
was no reliable evidence that Zigic participated in the murder
(grounds of appeal 4 and 5)
2. The additional evidence
3. The fair trial issue (ground
of appeal 6)
4. Conviction for the torture of
Witness T (grounds of appeal 22 and 23)
C. Zigic’s conviction for the murder of Emsud Bahonjic (grounds of appeal 7, 8 and 9)
1. There
is no reliable evidence that he committed the murder (ground
of appeal 7)
2. The Trial Judgement shows
no causal connection between the death of Bahonjic and Zigic’s
acts and mens rea (ground of appeal 8)
3. The Trial Chamber was not
impartial in assessing the charge of the murder of Bahonjic
(ground of appeal 9)
D. Zigic’s
conviction of murder of Sead Jusufagic (grounds of appeal 10,
11 and 12)
E. Zigic’s conviction for the
murder of Drago Tokmadzic (grounds of appeal 13 , 14, 15, 16
and 17)
1. There
was no reliable evidence that Zigic committed the murder (grounds
of appeal 13, 14 and 15)
2. The additional evidence:
Witness KV1
3. Zigic’s contribution to
the fatal beating of Tokmadzic does not establish his responsibility
as co-perpetrator in Tokmadzic’s murder
4. The Trial Chamber was not
impartial when totally ignoring the defence evidence as well
as the prosecution evidence in favour of acquittal (ground of
appeal 16)
5. The conditions were not
indicated for Articles 3 and 5 of the Statute to apply to the
murder (ground of appeal 17)
F. Zigic’s
participation in the torture of Abdulah Brkic (ground of appeal
20)
G. Zigic’s conviction for the
torture of Witnesses AK, AJ, Asef Kapetanovic and Emir Beganovic
(grounds of appeal 24, 25, 26 and 27)
H. Zigic’s conviction for the
torture of Fajzo Mujkanovic (ground of appeal 28)
1. The legal
error
2. The factual error
I. Zigic’s
conviction for the torture of Witness AE and Grabic (ground
of appeal 30)
J. Zigic’s conviction for the
torture of Jasmin Ramadanovic also known as “Sengin ” (grounds
of appeal 31 and 32)
K. Zigic’s conviction for beating
Hasan Karabasic (grounds of appeal 33 and 34 )
1. Ground
of appeal 34: in assessing the evidence relating to this incident,
the Trial Chamber was unfair in its approach
2. Ground of appeal 33: the
acts against the victim qualified as cruel treatment did not
meet the conditions of Articles 3 and 5 of the Statute
L. Zigic’s
conviction for beating Edin Ganic (ground of appeal 37)
M. Zigic’s conviction for crimes
in the Omarska camp in general (grounds of appeal 1-3, 18, 19,
42 and 45)
VI. SEPARATE GOUNDS OF APPEAL OF PRCAC
A. The factual
findings of the Trial Chamber
B. The Trial Chamber accepted
all arguments of Prcac (ground of appeal 1)
1. Decision
on Defence Motions for Acquittal
2. Findings of the Trial Chamber
in Prcac’s favour
C. The identity between the Indictment and the Trial Judgement (ground of appeal 2)
1. Lack
of correspondence between facts pleaded in the Indictment and
findings in the Trial Judgement
2. Prcac’s position in the
camp
D. Errors of fact and law on the part of the Trial Chamber (ground of appeal 3)
1. Errors
relating to Prcac’s administrative function
2. Prcac’s role regarding
the lists of detainees
3. Other Errors
E. Credibility of witnesses (ground of appeal 4)
1. Inconsistencies
between testimony and witness statements
2. ‘False testimony’
3. Defence witnesses
F. Fair trial and equality of parties (ground of appeal 5)
1. The principle
of identity of the Indictment and the Judgement
2. Delay in disclosure and
introduction of new witnesses
3. The Trial Chamber failed
to rule on a motion
A. General
considerations
B. Kvocka Appeal against Sentence
1. Factual
inaccuracies in the Trial Judgement
2. Failure to consider certain
mitigating factors
3. Comparison with other
sentences
4. Implications of the findings
of the Appeals Chamber
C. Radic Appeal against Sentence
1. Insufficient
reasoning on the part of the Trial Chamber
2. Factual inaccuracies
3. Erroneous consideration
of aggravating factors
4. Insufficient weight afforded
to mitigating factors
5. Comparison of sentences
6. Implications of the findings
of the Appeals Chamber
D. Zigic Appeal against Sentence
1. Factual
inaccuracies
2. Failure to consider certain
mitigating factors
3. Implications of the findings
of the Appeals Chamber
E. Prcac Appeal against Sentence
1. Factual
challenges
2. Failure to consider certain
mitigating factors
3. Implications of the findings
of the Appeals Chamber
IX. SEPARATE OPINION OF JUDGE WEINBERG DE ROCA
X. SEPARATE OPINION OF JUDGE SHAHABUDDEEN
ANNEX A: PROCEDURAL BACKGROUND
A. Notice of Appeal
B. Assignment of Judges
C. Filings
1. Filings of briefs
2. Other filings and decisions
D. Issues relating to evidence
1. General
2. Rule 115 Motions
3. Rebuttal material
E. Status conferences
F. Assignment of counsel and legal aid
G. Hearings on appeal