1. PROSECUTOR V.

TADIC

Brief Fact Summary. For committing war crimes at a Serb-run concentration camp

in Bosnia-Herzegovina, Tadic (D) was prosecuted in court.
Synopsis of Rule of Law. Plea against the International Tribunal jurisdiction can be
examined by the International Tribunal based on the invalidity of its establishment by
the Security Council.
Facts. For committing war crimes at a Serb-run concentration camp in Bosnia-
Herzegovina, Tadic (D) was prosecuted in Court. The jurisdiction of the tribunal was
however challenged by Tadic (D) on the ground that it exceeded the authority of the
U.N. Security Council. This argument of Tadic (D) was dismissed by the trial court
but Tadic (D) appealed.
Issue. Can plea against the International Tribunal jurisdiction be examined by the
International Tribunal based on the invalidity of its establishment by the Security
Council?
Held. Yes. Plea against the International Tribunal jurisdiction can be examined by the
International Tribunal based on the invalidity of its establishment by the Security
Council. The criteria for establishing an International Tribunal includes the
establishment in accordance with the proper international standards, the provision of
guarantees of fairness, justice, and even-handedness, in full conformity with
internationally recognized human rights instruments. Hence, a tribunal like the one
created in this case must be endowed with primacy over national courts.
Discussion. The authority of the Security Council to establish a tribunal for the
determination of a criminal charge was attacked by Tadic (D). So long as it is
“established by law”, the tribunal is authorized to be established for the determination
of these charges. The Council requires that it be “set up by a competent organ in
keeping with relevant legal procedures and that it observes the requirements of
procedural fairness.”

2. PROSECUTOR V. RAJIC

The Trial Chamber of the ICTY (the “Trial Chamber”) sentenced Ivica Rajic, a.k.a
Viktor Andric to 12 (twelve) years of imprisonment with 1130 days credit for time
spent in custody.

Facts: Ivica Rajic, the Defendant, was a Captain (first class) in the former Yugoslav
People’s Army and Commander of the Second Operational Group of the HVO, based
in Kiseljak in northern Bosnia and Herzegovina (BiH).  Rajic was indicted on 10
counts for actions against Bosnian Muslims during the war in violation of the Geneva
Conventions of 1949.  Under a plea agreement, Rajic pleaded guilty to 4 of 10
original counts from the indictment.  The counts he plead guilty to were: Count 1:
Willful Killing (Article 2(a) of the Statute of the ICTY, Count 3: Inhuman Treatment
(Article 2(b) of the Statute of the ICTY), Count 7: Appropriation of Property (Article
2 (d) of the Statute of the ICTY), and Count 9: Extensive destruction not justified by
military necessity and carried out unlawfully and wantonly (Article 2 (d) of the
Statute of the ICTY).

Issues: The issue before the Trial Chamber was what sentence to impose upon Rajic
based on his admission of guilt under the Plea Agreement.  In determining the
appropriate penalty, the Trial Chamber relied upon Articles 24 (Penalties), Article 27
 (Enforcement of Sentences), Article 100 (Sentencing Procedure on a Guilty Plea), and
Article 101 (Penalties) of the Statute of the ICTY.  As such, in determining the
sentence, the Trial Chamber had to take into account the following factors: “the
gravity of the crime; the individual circumstances of the convicted person; any
aggravating circumstances; any mitigating circumstances; and the general practice
regarding prison sentences in the courts of the former Yugoslavia”. 
Decision: The trial Chamber held that although the gravity of the crimes was high and
Rajic was in a supervisory role, these had to be tempered in determining an
appropriate sentence with the mitigating circumstances.  These include: the plea
agreement entered into by Rajic; his remorse, which the prosecution did not refute; his
cooperation with the prosecution; and Rajic’s personal circumstances and fact that he
had been an exemplary soldier and respected member of the community prior to the
war.  In setting the punishment, the Trial Chamber was also guided by the general
practice regarding prison sentences in the courts of the former Yugoslaviaunder
Article 24 of the Statute of the ICTY and Rule 101(b) of the Rules.  The Trial
Chamber determined that the punishment prescribed ranged from 5-20 years
imprisonment or the death penalty.  However, as Yugoslavia had abolished the death
penalty 20 years ago and replaced it with a prison term of 20-40 years the Trial
Chamber had a range of 5-40 years within which to work.  This was narrowed to 12-
15 years which the Defense and Prosecutor sought respectively.  After weighing all of
the factors the Trial Chamber came to a sentence of 12 (twelve) years for his crimes.

3. THE PROSECUTOR V. PRLIĆ ET AL.

Facts: Jadranko Prlić, president of the HVO and prime minister of the HR-HB, Bruno
Stojić, head of the Department of Defence for HR-HB and in charge of the majority of
the HVO forces, Slobodan Praljak, commander of the HVO Main Staff and held
office in the Ministry of Defence of Croatia, Milivoj Petković, chief of the HVO Main
Staff and deputy overall commander of the HVO forces, Valentin Ćorić, head of the
HVO Military Police administration and Minister of Interior in the HR-HB, and
Berislav Pušić, overseeing official at the Department of Criminal Investigations of the
Military Police Administration and head of the commission in charge of all HVO
prisons and detention facilities, stood trial for allegedly having committed crimes
against non-Croats living in the HR-HB, including by: establishing, organizing,
directing, funding, facilitating, supporting, and maintaining and operating Herceg-
Bosna and HVO governmental and political structures and processes. This case marks
the final appeal decision to be heard at the ICTY, and was notably the event during
which defendant Praljak committed suicide during the sentencing portion at the
Appeals Chamber. The prosecution accused them, on the basis membership in a joint
criminal enterprise of individual and superior criminal responsibility, of grave
breaches of the Geneva Conventions for willful killing, inhuman treatment of sexual
assault, unlawful deportation, transfer and confinement of a civilian, inhuman
treatment, and extensive destruction and appropriation of property not justified by
military necessity; violations of the laws or customs of war for cruel treatment,
unlawful labor, wanton destruction or devastation not justified by military necessity,
destruction or willful damage done to religious or educational institutions, plunder of
private or public property, unlawful attacks on civilians, and unlawful infliction of
terror on civilians; and crimes against humanity for persecutions, murder, rape,
deportation, imprisonment, and inhumane acts.
 Decision: In 2013, the Trial Chamber convicted the defendants, on the basis of
individual criminal responsibility, of crimes against humanity for persecutions,
murder, rape, deportation, imprisonment, and inhumane acts; violations of the laws or
customs of war for cruel treatment, unlawful labor, destruction to religious or
educational institutions, unlawful attacks on civilians, and unlawful infliction of
terror; and of grave breaches of the Geneva Conventions for willful killing, sexual
assault, unlawful deportation, transfer and confinement of a civilian, inhuman
treatment, and extensive destruction of property, with Prlić, Stojić, Petković, and
Ćorić additionally guilty of rape as a crime against humanity and Prlić, Stojić,
Petković, Ćorić, and Praljak additionally guilty of grave breaches for appropriation of
property. In 2017, the Appeals Chamber decided some appeals which reversed a
limited number of findings by the Trial Chamber supporting the convictions of those
accused, but did not overturn any convictions. The Trial Chamber sentenced Prlić to
25 years’ imprisonment; Stojić, Petković, and Praljak to 20 years’ imprisonment;
Ćorić, to 16 years’ imprisonment; and Pušić to 10 years’ imprisonment. All sentences
were upheld by the Appeals Chamber.

4. PROSECUTOR V. RADISLAV KRSTIC

FACTS: Radislav Krstić, Commander of the Drina Corps of the VRS, stood trial for
allegedly having planned, instigated, ordered or otherwise aided and abetted in the
planning, preparation or execution of the opportunistic killings of captured Bosnian
Muslim men from the Srebrenica “safe area” by VRS military personnel; Krstić was
the first person convicted of genocide at the ICTY, though that conviction would later
be reduced to aiding and abetting genocide, and it was during this case that it was first
determined that genocide occurred at Srebrenica and the first time that rape was
linked with ethnic cleansing. The prosecution accused him of genocide, conspiracy to
commit genocide, crimes against humanity for extermination, murder, persecution,
deportation, and inhumane acts of forcible transfer, and violations of the laws or
customs of war for murder.

DECISION: TRIAL CHAMBER JUDGEMENT

The Trial Chamber found that genocide was committed in Srebrenica.
The Trial Chamber concluded beyond reasonable doubt that Krstid participated in a
joint criminal enterprise to kill the Bosnian Muslim military-aged men from
Srebrenica from the evening of 13 July onward. According to the Trial Chamber,
Krstid may not have devised the killing plan, or participated in the initial decision to
escalate the objective of the criminal enterprise from forcible transfer to destruction of
Srebrenica’s Bosnian Muslim military-aged male community. However, the Chamber
found that, from the moment he learned of the widespread and systematic killings and
became clearly involved in their perpetration, Krstid shared the genocidal intent to kill
the men.
The Chamber further found Radislav Krstid guilty as a member of a joint criminal
enterprise (JCE). The objective of the JCE was to forcibly transfer the Bosnian
Muslim women, children and elderly from Potočari on 12 and 13 July and to create a
humanitarian crisis in support of this endeavour by causing the Srebrenica residents to
flee to Potočari where a total lack of food, shelter and necessary services would
accelerate their fear and panic and ultimately increase their willingness to leave the
 territory. Radislav Krstid, on the basis of individual criminal responsibility (Article
7(1) of the Statute of the Tribunal), was found guilty of genocide, crimes against
humanity, and violations of the laws or customs of war. He was sentenced to 46
years’ imprisonment.

APPEALS PROCEEDINGS

Both parties appealed the Judgement. On 21 November 2003, an evidentiary hearing took
place and the appeals hearing took place on 26 and 27 November 2003.

The Appeals Judgement was pronounced on 19 April 2004. The Appeals Chamber found that
the Trial Chamber's conclusion that the soldiers of the VRS Bratunac Brigade were
dispatched by Krstid to assist in the executions at Branjevo Farm and the Pilica Dom on 16
July 1995 was not one that a reasonable trier of fact could have made. According to the
Appeals Chamber, the evidence failed to establish the involvement of the Drina Corps in
carrying out these executions, and as such could not be relied upon as evidence of Krstid's
direct involvement in assisting executions. However, the Appeals Chamber found that the
evidence did establish that Krstid knew that the killings were occurring and that he permitted
the Main Staff to use personnel and resources under his command to facilitate them. In these
circumstances, the Appeals Chamber found that Krstid’s criminal responsibility was that of
an aider and abettor to murder, extermination and persecutions, and not of a principal co-
perpetrator.

Furthermore, the Appeals Chamber found that Krstid was aware of the intent to commit
genocide on the part of some members of the VRS Main Staff. However, there was a
demonstrable failure by the Trial Chamber to supply adequate proof that Krstid possessed
genocidal intent. Krstid was therefore pronounced not guilty of genocide as a principal
perpetrator, but guilty as an aider and abettor to genocide.

The final convictions were as follows:

Radislav Krstid, on the basis of individual criminal responsibility (Article 7(1) of the Statute
of the Tribunal), was found guilty of:

   Aiding and abetting genocide

   Aiding and abetting murder (violations of the laws or customs of war)
   Extermination, persecution (crimes against humanity)
   Murder (violations of the laws or customs of war)

Sentence: 35 years’ imprisonment

Judge Mohamed Shahabuddeen appended a partial dissenting opinion.

5. PROSECUTOR V. ZDRAVKO MUCIC, HAZIM DELIC, ESAD LANDZO

AND ZEJNIL DELALIC

FACTS: Zdravko Mucić and Hazim Delić, commanders of the Čelebići prison camp,
Esad Landžo, a guard in the Čelebići camp, and Zejnil Delalić, the coordinator of the
 Bosnian Muslim and Bosnian Croat forces in the Konjic area, stood trial for allegedly
having engaged in or supervised the torture or cruel treatment, unlawful confinement,
and willful killing and murder of Bosnian Serbs in the Čelebići prison camp and
plunder of private property of Bosnian Serbs in the same region; this case marked the
first time rape was recognized as a form of torture, which allowed charges of rape to
be considered both as a grave breach of the Geneva Conventions and a violation of
the laws and customs of war. The prosecution accused both Delić and Landžo, on the
basis of individual criminal responsibility, with grave breaches of the Geneva
Conventions for willful killing, torture or inhuman treatment, and willful infliction of
serious injury; and violations of the laws or customs of war for murder, cruel
treatment, and torture. The prosecution accused Delić and Mucić with a violation of
the laws or customs of war for acts of plunder, while the prosecution accused Delić,
Mucić, and Delalić with grave breaches for acts of unlawful confinement, willful
killing, torture or inhuman treatment, and unlawful confinement; and with violations
of laws or customs of war for murder, cruel treatment, and torture.

DECISIONS: In 1998, the Trial Chamber acquitted Delalić on all charges, finding
that he did not have command or control over the camp or the guards, and therefore
could not be held criminally responsible for their actions, while Mucić, the
commander of the prison camp, was convicted on the basis of superior responsibility
for grave breaches of the Geneva Conventions for willful causing of great suffering or
serious injury, unlawful confinement of civilians, willful killings, torture and inhuman
treatment, as well as violations of the laws or customs of war for murder, torture, and
cruel treatment; Delić and Landžo were convicted on the basis of individual criminal
with grave breaches consisting of willful causing of great suffering or serious injury,
unlawful confinement of civilians, willful killings, torture and inhuman treatment, as
well as violations of the laws or customs of war for murder, torture, and cruel
treatment.

In 2001, the Appeals Chamber decided the three convicted defendants’ appeals and
the prosecution’s appeal, including related to the acquittal of Delalić and the
sentences of those convicted; the Appeals Chamber considered that the Trial Chamber
failed to take adequate accounts of the gravity of the offenses for which Mucić was
convicted and failed to give adequate weight to aggravating matters and erred in
making an adverse reference in its sentencing considerations to the fact that Mucić
declined to give testimony, but found the considerations in the other two defendants’
cases were legitimate. The Trial Chamber sentenced Mucić to seven years’
imprisonment, Delić to 18 years’ imprisonment, and Landžo to 15 years’
imprisonment; the Appeals Chamber remitted the matter of an appropriate sentence
for Mucić to the Trial Chamber, which amended his sentence to nine years.

6. PROSECUTOR V. MILAN MARTIC

FACTS: Milan Martić, who held positions including President, Minister of Defence,
and Minister of Internal Affairs in the SAO Krajina and RSK, stood trial for allegedly,
having participated in the creation, financing, supply, training and direction of
Martić’s Police; commanded, controlled, directed and otherwise exercised effective
control over these special police forces; participated in the creation, financing, supply,
training and direction of special police forces of the Serbian State Security Service;
participated in military actions and subsequent crimes of these police and military
 forces throughout the targeted territories; participated in the planning, preparation and
execution of the take-over of territories in the Croatian SAOs and parts of BiH;
planned, instigated, ordered, committed, or otherwise aided and abetted the planning,
preparation, or execution of the persecutions, exterminations, murders, imprisonment,
torture, inhumane acts, and cruel treatment of the Croat, Muslim and other non-Serb
civilian populations in Serb Krajina and Zagreb; openly espoused and encouraged the
creation of a homogenous Serbian State encompassing the territories SAO Krajina
and actively participated with his troops to achieve this end; and planned and ordered
the shelling attacks on Zagreb in May 1995.

The prosecution accused Martić of individual and superior criminal responsibility and
participation in a joint criminal enterprise for crimes against humanity for
persecutions, extermination, murder, imprisonment, torture, inhumane acts including
forcible transfers, and deportations; and for violations of the laws or customs of war
for murder, torture, cruel treatment, wanton destruction of villages or devastation not
justified by military necessity, destruction or willful damage to institutions dedicated
to education or religion, plunder of private or public property, and attacks on civilians.

DECISION: In 2007, the Trial Chamber acquitted Martić of extermination but found
Martić individually criminally responsible for all other charges, and found that the
crimes perpetuated by Martić against the non-Serb population were part of a joint
criminal enterprise with a common purpose to forcibly remove the majority of the
non-Serb population from parts of Croatia and BiH in order to create a new Serb-
dominated State.

In 2008, the Appeals Chamber dismissed nine of Martić’s appeals and decided one;
the Appeals Chamber found that the Trial Chamber erred when it found a link
between Martić and the principal perpetrators with regards to crimes committed in
three municipalities, consisting of Cerovljani, Vuković, and Poljanak; the Appeals
Chamber reversed Martić’s convictions as they related to those crimes, but upheld the
convictions with regards to other localities. The Trial Chamber sentenced Martić to 35
years’ imprisonment, which was upheld by the Appeals Chamber.

7. PROSECUTOR V. ZLATKO ALEKSOVSKI

FACTS: Zlatko Aleksovski was brought before the ICTY for his role in the
commission of crimes against the detainees of the Kaonik prison in the Lašva Valley
area of Bosnia and Herzegovina. During the hostilities between the Bosnian Croat and
Bosnian Muslim forces, the facility was used as a detention place for Bosnian
Muslims. The detainees were subjected to physical and mental mistreatments.
Furthermore, they were used as human shields and for trench digging. Aleksovski was
the commander of the Kaonik prison from January 1993 till May 1993.

Trial Chamber I found that the Prosecution did not provide sufficient evidence to
support that Aleksovski was responsible for the conditions at the Kaonik prison in the
Lašva Valley area of Bosnia and Herzegovina. Accordingly, Aleksovski was found
not guilty of the grave breaches of inhuman treatment and wilfully causing great
suffering or serious injury to body or health. However, Trial Chamber I found
Aleksovski guilty of outrages upon personal dignity (as a violation of the laws or
 customs of war) for his role in the infliction of violence on the Muslim detainees and
for using them as human shields and for trench digging. Aleksovski was sentenced to
two and a half years of imprisonment.

The events giving rise to the case have occurred in 1993 in the Kaonik prison in the
Lašva Valley area of central Bosnia and Herzegovina. During the autumn of 1992,
clashes began between the forces of the Bosnian Croats (HVO) and the Bosnian
Muslims in the area of the Lašva Valley, resulting in an outbreak of hostilities by the
beginning of 1993. During these hostilities, the HVO forces captured and detained
Bosnian Muslim men at the Kaonik prison. Those detained were subjected to physical
and mental mistreatments. Furthermore, they were used as human shields and for
trench digging. Aleksovski was the commander of the Kaonik prison from January
1993 till May 1993 (para. 20 et seq.).

Core legal questions

 Have the elements of the charged crimes been fulfilled?
 If so, can Zlatko Aleksovski be held liable for those crimes?

Specific legal rules and provisions

 Articles 2, 3, 7(1) and 7(3) ICTY Statute.

DECISION: Trial Chamber I found that “[t]he Prosecution has not proved beyond a
reasonable doubt that the accused did not take the measures incumbent upon and
available to him, or, conversely, that he deliberately ordered or allowed these poor
detention conditions to arise.  The abuses of these human rights do not in the
circumstances constitute a grave violation of international humanitarian law which the
Tribunal was set up to safeguard” (para. 221).
Trial Chamber I found that “the violence inflicted on the Muslim detainees of Kaonik
prison [Bosnia and Herzegovina] appears to be a reprehensible infringement of
international human rights which would be absolutely unacceptable in times of peace …
[and] the violence in question constitutes an outrage upon personal dignity … a violation
of the laws or customs of war within the meaning of Article 3 of the Statute for which the
accused must be held responsible under Articles 7(1) and 7(3) of the Tribunal’s Statute.”
(para. 228). Furthermore, “the use of detainees as human shields or trench-diggers
constitutes an outrage upon personal dignity protected by Article 3 of the Statute for
which the accused must be held guilty under Article 7(1), that is, for aiding and abetting”
(para. 229).
Aleksovski was sentenced to 2.5 years of imprisonment.

8. PROSECUTOR V. ANTO FURUNDZIJA

FACTS: Anto Furundžija was the commander of a special unit of the Croatian
Defence Council called the “Jokers.” He was brought before the ICTY for the
commission of crimes against Bosnian Muslims who were interrogated at the
headquarters of the “Jokers” in Nadioci (Bosnia and Herzegovina) in May 1993.
During the interrogations, those detained were subjected to sexual assaults, rape,
physical and mental suffering.
 Trial Chamber II was satisfied that the elements of the war crime of torture have been
fulfilled and it found Furundžija guilty of this crime as a co-perpetrator. Furthermore,
Furundžija was also found guilty of aiding and abetting the war crime of outrages
upon personal dignity, including rape. Although Furundžija did not personally commit
the crime, his presence and actions aided and abetted the commission of rape.

Furundžija was sentenced to 10 years of imprisonment. 

Anto Furundžija was the commander of the “Jokers”, a special unit within the
Croatian Defence Council (HVO). As such, he was actively involved in the hostilities
against the Muslim population in the Lašva Valley area (in Bosnia and Herzegovina),
including the attack on the village of Ahmići (Bosnia and Herzegovina), where he
personally participated in expelling Muslims from their homes in furtherance of the
armed conflict. The events giving rise to the case against Furundžija have occurred at
the “Jokers’” headquarters, a holiday cottage in Nadioci, (Bosnia and Herzegovina) in
May 1993. During this time, Furundžija captured and interrogated women with the
intention to obtain information which he believed would benefit the HVO. During the
interrogations, those detained were subjected to sexual assaults, rape, physical and
mental suffering. (para. 66 et seq.)

Core legal questions

 Have the elements of the charged crimes been fulfilled?
 If so, can Anto Furundžija be held liable for these crimes?

Specific legal rules and provisions

 Articles 3 and 7(1) of the ICTY Statute.

DECISION: Trial Chamber II found that “the elements of torture have been met” (para.
268). Subsequently, Trial Chamber II found Furundžija “as a co-perpetrator, guilty of a
Violation of the Laws or Customs of War (torture).” (para. 269)
Furthermore, Trial Chamber II was satisfied that “all the elements of rape were met … [t]he
Trial Chamber finds that Witness A suffered severe physical and mental pain, along with
public humiliation, at the hands of Accused B in what amounted to outrages upon her
personal dignity and sexual integrity” (para. 272). Although Furundžija “did not personally
rape Witness A, nor can he be considered, under the circumstances of this case, to be a co-
perpetrator” (para. 273), Trial Chamber II held that “the presence of the accused and his
continued interrogation aided and abetted the crimes committed by Accused B.  He is
individually responsible for outrages upon personal dignity including rape, a violation of the
laws or customs of war under Article 3 of the Statute” (para. 274).
Furundžija was sentenced to 10 years of imprisonment.

9. PROSECUTOR V. LJUBE BOŠKOSKI AND JOHAN TARČULOVSKI

Legally relevant facts

The events giving rise to the case commenced on the morning of 12 August 2001, when a
group of armed individuals, mostly policemen, entered the village of Ljuboten in the Former
Yugoslav Republic of Macedonia (FYROM). The group engaged in a campaign of attacks
against the ethnic Albanian population, which manifested in the shooting of unarmed
civilians and setting houses on fire. Furthermore, the police severely beat and otherwise
injured and maltreated ethnic Albanian civilians (para. 29 et seq.).
During this time, Ljube Boškoski was the Minister of Interior of FYROM, and as such a
superior of the police forces. He was charged under Articles 3 and 7(3) of the ICTY Statute
(para. 3). Johan Tarčulovski was the leader of the police group that entered the village of
Ljuboten. He was charged under Articles 3 and 7(1) of the ICTY Statute (para. 4).
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Core legal questions

 Do the acts that took place during the particular incidents amount to crimes under
Article 3 of the ICTY Statute?
 If so, can Ljube Boškoski and Johan Tarčulovski be held responsible under the
provisions of Article 7(1) and (3) of the ICTY Statute?
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Specific legal rules and provisions

 Articles 3, 7(1) and (3) of the ICTY Statute.
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Court's holding and analysis

With respect to Ljube Boškoski, Trial Chamber II held that the position of Minister of
Interior of FYROM allowed him control over the conduct of the police and other employees
of the Ministry. He also had knowledge of the serious allegations that crimes were being
committed in Ljuboten and other locations. The Chamber found that reports had been drawn
on the incidents and that they had been submitted to the competent authorities with the
purpose of commencing judicial investigations. Accordingly, Trial Chamber II held that it
was not established that Boškoski failed to take measures to punish his subordinates. On that
basis, he was acquitted of all charges(paras. 419 et seq.). 
Trial Chamber II considered Johan Tarčulovski as having a prominent role in the events of 12
August 2001. He was actively engaged in the preparation and coordination of the operation,
and personally participated in the incidents of that day. Therefore, the Chamber found that he
was responsible for the ordering, planning and instigating of the crimes in Ljuboten (paras.
537 et seq.). The Chamber was not, however, satisfied that Tarčulovski participated in a joint
criminal enterprise (paras. 580 et seq.). 
Johan Tarčulovski was sentenced to 12 years of imprisonment (para. 608).
 10. THE PROSECUTOR V. JEAN-PAUL AKAYESU

Legally relevant facts

The Accused raised eleven grounds of appeal in total.
Under ground 1, the Accused submitted that he had been denied the right to be defended by
counsel of his own choice and to defend himself in person (para. 44).
Under ground 2, the Accused argues that he had been denied the right to a competent attorney
(para. 67).
Under ground 3, the Accused contended that the tribunal was biased and lacked independence
(para. 85).
Under ground 4, Mr. Akayesu alleged a total absence of the rule of law in view of a series of
errors invalidating the finding of guilty (paras. 102-273).
Under ground 5, the Accused maintained that there was a total absence of the rule of law;
however, he did not discuss this ground in his Brief nor at he hearing on appeal. Therefore,
the Appeals Chamber rejected it (paras. 274-276).
Under ground 6, the Accused submitted that the Trial Chamber had erred in the way it had
treated hearsay evidence (para. 277).
Under ground 7, the Accused alleged irregularities during direct examination and cross-
examination (paras. 310-311).
Under ground 8, Mr. Akayesu raised an issue of unlawful disclosure of defence witness
statements (para. 327).
Under ground 9, the Accused argued that Witness DAAX had sent a letter to the judges of
Trial Chamber I following his testimony and that this constituted an abuse of process (para.
328).
Under ground 10, the Accused challenged the legality of his detention (para. 351).
Under ground 11, Mr. Akayesu appealed against the sentence imposed on him (para. 378).
The Prosecution advanced four grounds of appeal. Grounds 1 and 2 challenged the Trial
Chamber's analysis of Article 4 of the Statute; ground 3 concerned the Trial Chamber's
interpretation of Article 3 of the Statute, while ground 4 related to the analysis of Article 6(1)
of the Statute (paras. 425-426, 447, 470).

Core legal questions

 Whether the issues raised by the Prosecution in its appeal were of interest to legal
practice of the Tribunal and had a nexus with the present case;
 Whether the right to free legal assistance of counsel confers the right to counsel of
one’s own choosing;
 Whether the Accused demonstrated gross incompetence of his counsel resulting in a
miscarriage of justice;
 Whether the test before ruling hearsay evidence admissible was met by the Trial
Chamber;
 Whether the Trial Chamber had erred on a point of law in restricting the application
of common Article 3 of the Geneva Conventions to a certain category of persons;
 Whether the discriminatory intent is an essential element for one of the crimes
enumerated under Article 3 of the Statute to constitute a crime against humanity;
 Whether the “incitement”, as set out in Article 6(1) of the Statute, needs be “direct
and public”;
 What the effect on the sentence would be, in case any of the grounds of appeal was
accepted.

Specific legal rules and provisions

 Article 3 common to the Geneva Conventions.
 Article 3, 4(2)(e) of Additional Protocol II.
 Articles 1, 2, 3, 4, 5, 6(1),(3), 12(1), 15, 17(1), 19(1), 20, 23, 24, 26, 27, 91(1) of the
ICTR Statute.
 Rules 3(A), 14(A), 15(A), 40, 45(A), 46(A), 50, 66, 71, 72, 73, 74, 77, 78, 80, 85(B),
87(A), 89(A),(C), 90(A),(B),(F),(G), 94bis, 101, 105, 111, 112, 115, 116, 118, 119, 123
of the ICTR RPE.

Court's holding and analysis

After considering all the arguments advanced by the Accused, the Appeals Chamber held that
the Accused had failed to demonstrate that the Trial Chamber had committed any of the
errors of fact and law alleged by him. Hence, the Chamber dismissed the grounds of appeal
presented by the Accused (para. 423).
With regard to the Prosecution's first two grounds of appeal, the Appeals Chamber found that
the Trial Chamber had erred in restricting the application of common Article 3 of the Geneva
Conventions to a certain category of persons. Since it entertained the first ground of appeal,
the Appeals Chamber deemed it unnecessary to consider the Prosecution's alternative ground
of appeal (paras. 445-446).
Concerning the Prosecution's third ground of appeal, the Appeals Chamber clarified that
Article 3 of the Statute does not require that all crimes against humanity enumerated therein
be committed with a discriminatory intent and that said Article restricts the Tribunal's
jurisdiction to crimes committed "as part of a widespread or systematic attack against any
civilian population" on discriminatory grounds (para. 469).
Regarding the Prosecution's fourth ground of appeal, the Chamber found that "incitement"
under Article 6(1) of the Statute need not be "direct and public" (para. 483).

11. PROSECUTOR V. NAHIMANA ET AL.

Legally relevant facts

In 1992, Nahimana and others founded a comité d’ initiative to set up the company known
as Radio Télévision Libre des Mille Collines, S.A. He was a member of the party known
as Mouvement Révolutionnaire National pour le Développement (MRND) (para. 5).
Barayagwiza was a lawyer by training and a founding member of the Coalition pour la
Défense de la République  (CDR) party, which had been formed in 1992. He was a member of
the comité d’ initiative. During this time, he also held the post of Director of Political Affairs
in the Ministry of Foreign Affairs (para. 6).
In 1990, Ngeze had founded the newspaper Kangura and held the post of Editor-in-Chief. He
was a founding member of the CDR party (para. 7).
Nahimana was charged with seven counts: conspiracy to commit genocide, genocide, direct
and public incitement to commit genocide, complicity in genocide, and crimes against
humanity (persecution, extermination and murder) (para 8).
Barayagwiza was charged with nine counts: conspiracy to commit genocide, genocide, direct
and public incitement to commit genocide, complicity in genocide, crimes against humanity
(persecution, extermination and murder), and two counts of serious violations of Article 3
common to the Geneva Conventions and of Additional Protocol II (para. 9).
Ngeze was charged with seven counts: conspiracy to commit genocide, genocide, direct and
public incitement to commit genocide, complicity in genocide, and crimes against humanity
(persecution, extermination and murder) (para. 10).
Due to lack of evidence, the Chamber acquitted Nahimana and Barayagwiza of crimes
against humanity (murder), and further acquitted Barayagwiza of the two counts of serious
violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II
(para.12).

Core legal questions

 Whether Nahimana was guilty of the crimes of conspiracy to commit genocide,
genocide, direct and public incitement to commit genocide, complicity in genocide, and
crimes against humanity (persecution, extermination and murder).
 Whether the Prosecution proved beyond reasonable doubt that Barayagwiza had
committed the crimes of conspiracy to commit genocide, genocide, direct and public
incitement to commit genocide, complicity in genocide, crimes against humanity
(persecution, extermination and murder), and serious violations of Article 3 common to
the Geneva Conventions and of Additional Protocol II.
 Whether Ngeze was guilty of conspiracy to commit genocide, genocide, direct and
public incitement to commit genocide, complicity in genocide, and crimes against
humanity (persecution, extermination and murder).
 Which factors the Trial Chamber should take into account upon sentencing.
 What the appropriate sentence would be, in case the Accused were found guilty.

Specific legal rules and provisions

 Articles 2, 3, 4, 6(1),(3), 20, 22 and 23 of the Statute of the International Criminal
Tribunal for Rwanda.
 Rules 40bis(D),(F),(G), 48, 48bis, 62(A)(iii), 65, 66, 67, 68, 70(A), 72, 73(E), 73bis,
73ter, 89(A),(B),(C), 91, 98bis, 101, 102(A) and 103 of the Rules of Procedure and
Evidence of the International Criminal Tribunal for Rwanda.
 Article 3 common to the Geneva Conventions and of Additional Protocol II thereto.
 Articles 7 and 19 of the  Universal Declaration of Human Rights.
 Articles 19(2),(3) and 20 of the International Covenant on Civil and Political Rights.
 Article 4(a),(b) of the Convention on the Elimination of all Forms of Racial
Discrimination.
 Article 10 of the European Convention of Human Rights.

Court's holding and analysis

The Trial Chamber found Nahimana guilty of conspiracy to commit genocide, genocide,
direct and public incitement to commit genocide, as well as persecution and extermination as
crimes against humanity. He was acquitted of complicity in genocide and of murder as a
crime against humanity (para. 1092).
The Chamber held that that Barayagwiza was guilty of conspiracy to commit genocide,
genocide, direct and public incitement to commit genocide as well as persecution and
extermination as crimes against humanity. He was acquitted of complicity in genocide and of
murder as a crime against humanity, as well as of serious violations of Article 3 common to
the Geneva Conventions and of Additional Protocol II (para. 1093).
Ngeze, was found guilty of conspiracy to commit genocide, genocide, direct and public
incitement to commit genocide and persecution and extermination as crimes against
humanity. He was acquitted of complicity in genocide and of murder as a crime against
humanity (para. 1094).
After taking into account the gravity of the offences, the individual circumstances of the
Accused and the aggravating and mitigating factors, the Trial Chamber sentenced Nahimana
and Ngeze to life imprisonment. After giving credit to time served, the Chamber
sentenced Barayagwiza to twenty-seven years, three months and twenty-one days (paras.
1105,1107-1108).

Hate speech and direct and public incitement to genocide. The Trial Chamber’s reliance
on the treatment of hate speech in international human rights law to interpret the international
crime of direct and public incitement to genocide blurred the distinctions between hate
speech that did not incite violence and speech that incited violence with genocidal intent,
thereby amounting to incitement to commit genocide.
Hate speech and persecution as a crime against humanity. The Trial Chamber similarly
erred in concluding that hate speech can constitute the actus reus of the crime against
humanity of persecution where the speech in question advocates hatred but not violence.
Incitement to genocide is not a continuing crime. The Trial Chamber improperly relied on
speech that occurred before the ICTR’s temporal jurisdiction because it considered the act of
incitement to continue to the time of the commission of the acts incited.

12. LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS

By a letter dated 19 December 1994, filed in the Registry on 6 January 1995, the Secretary-
General of the United Nations officially communicated to the Registry a decision taken by
the General Assembly, by its resolution 49/75 K adopted on 15 December 1994, to submit to
the Court, for advisory opinion, the following question : “Is the threat or use of nuclear
weapons in any circumstance permitted under international law ?” The resolution asked the
Court to render its advisory opinion “urgently”. Written statements were filed by 28 States,
and subsequently written observations on those statements were presented by two States. In
the course of the oral proceedings, which took place in October and November 1995, 22
States presented oral statements.

On 8 July 1996, the Court rendered its Advisory Opinion. Having concluded that it had
jurisdiction to render an opinion on the question put to it and that there was no compelling
reason to exercise its discretion not to render an opinion, the Court found that the most
directly relevant applicable law was that relating to the use of force, as enshrined in the
United Nations Charter, and the law applicable in armed conflict, together with any specific
treaties on nuclear weapons that the Court might find relevant.

The Court then considered the question of the legality or illegality of the use of nuclear
weapons in the light of the provisions of the Charter relating to the threat or use of force. It
observed, inter alia, that those provisions applied to any use of force, regardless of the
weapons employed. In addition it stated that the principle of proportionality might not in
itself exclude the use of nuclear weapons in self-defence in all circumstances. However at the
same time, a use of force that was proportionate under the law of self-defence had, in order to
be lawful, to meet the requirements of the law applicable in armed conflict, including, in
particular, the principles and rules of humanitarian law. It pointed out that the notions of a
“threat” and “use” of force within the meaning of Article 2, paragraph 4, of the Charter stood
together in the sense that if the use of force itself in a given case was illegal — for whatever
reason — the threat to use such force would likewise be illegal.

The Court then turned to the law applicable in situations of armed conflict. From a
consideration of customary and conventional law, it concluded that the use of nuclear
weapons could not be seen as specifically prohibited on the basis of that law, nor did it find
any specific prohibition of the use of nuclear weapons in the treaties that expressly prohibited
the use of certain weapons of mass destruction. The Court then turned to an examination of
customary international law to determine whether a prohibition of the threat or use of nuclear
weapons as such flowed from that source of law. Noting that the members of the international
community were profoundly divided on the matter of whether non-recourse to nuclear
weapons over the past 50 years constituted the expression of an opinio juris, it did not
consider itself able to find that there was such an opinio juris. The emergence, as lex lata, of
a customary rule specifically prohibiting the use of nuclear weapons as such was hampered
by the continuing tensions between the nascent opinio juris on the one hand, and the still
strong adherence to the doctrine of deterrence on the other. The Court then dealt with the
question whether recourse to nuclear weapons ought to be considered as illegal in the light of
the principles and rules of international humanitarian law applicable in armed conflict and of
the law of neutrality. It laid emphasis on two cardinal principles : (a) the first being aimed at
the distinction between combatants and non-combatants ; States must never make civilians
the object of attack and must consequently never use weapons that are incapable of
distinguishing between civilian and military targets while (b) according to the second of those
principles, unnecessary suffering should not be caused to combatants. It follows that States
do not have unlimited freedom of choice in the weapons they use. The Court also referred to
the Martens Clause, according to which civilians and combatants remained under the
protection and authority of the principles of international law derived from established
custom, the principles of humanity and the dictates of public conscience. 

The Court indicated that, although the applicability to nuclear weapons of the principles and
rules of humanitarian law and of the principle of neutrality was not disputed, the conclusions
to be drawn from it were, on the other hand, controversial. It pointed out that, in view of the
unique characteristics of nuclear weapons, the use of such weapons seemed scarcely
reconcilable with respect for the requirements of the law applicable in armed conflict. The
Court was led to observe that “in view of the current state of international law and of the
elements of fact at its disposal, [it] cannot conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake”. The Court added, lastly, that there was
an obligation to pursue in good faith and to conclude negotiations leading to nuclear
disarmament in all its aspects under strict and effective international control.

13. LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE

OCCUPIED PALESTINIAN TERRITORY

Background: In a time of continuing unrest in Jerusalem, Israel began to build a wall in Israel-
occupied Palestinian territory. The wall departed from the Armistice Line of 1949. The finished
wall would almost completely encircle communities, push residents out of their homes and limit
the occupied persons' access to lands, wells and means of subsistence.
Issue and resolution: Is it legal for an occupying force to construct a wall in the occupied territory
and, if not, what are the consequences for doing so? The construction of the wall violates
international law. Israel, the occupier, must end the illegal act. It must stop building the wall and
dismantle the wall that has been built within the occupied territory, repeal or render ineffective all
legislative and regulatory acts adopted to support the wall's construction, and make reparations
for damage caused to natural or legal persons by the construction of the wall.
Court reasoning: The wall violates the right of peoples to self-determination since it limits the
movements of the occupied persons. The wall was part of a practice of populating the occupied
territory with persons from the occupier territory, thereby illegally contributing to demographic
changes in the occupied territory. The wall limits access to health services, schools, and an
adequate standard of living, and therefore violates the economic, social, and cultural human rights
of those in the territories. In the case of children, these violations are especially pronounced given
Israel’s ratification of the CRC and its clear obligations to respect the human rights of all children
under its control.

14. LOIZIDOU V. TURKEY

Loizidou v. Turkey is a landmark legal case regarding the rights of refugees wishing

to return to their former homes and properties.[1] The European Court of Human Rights ruled
that Titina Loizidou, and consequently all other refugees, have the right to return to their
former properties. The ECHR ruled that Turkey had violated Loizidou's human rights under
Article I of Protocol I of the European Convention on Human Rights,[2][3] that she should be
allowed to return to her home and that Turkey should pay damages to her. Turkey initially
ignored this ruling.[4]
On 22 July 1989 a Cypriot national Loizidou filed an application against Turkey to the
European Court of Human Rights, represented by Greek-Cypriot lawyer Achilleas
Demetriades. Loizidou had been forced out of her home during Turkey's invasion
of Cyprus in 1974 along with around 200,000 other Greek-Cypriots. During more than 20
years, she made a number of attempts to return to her home in Kyrenia but was denied entry
into the Turkish occupied part of Cyprus, Turkish Republic of Northern Cyprus (TRNC), by
the Turkish army.
Her application resulted in three judgments by the European Court of Human
Rights (Strasbourg) which held Turkey responsible for human rights violations in the
northern part of Cyprus, which is under overall control of the Turkish armed forces.
The U.S. Department of State commented on this case as follows:
In 1996 the European Court of Human Rights ruled 11 to 6 that Turkey committed a
continuing violation of the rights of a Greek Cypriot woman by preventing her from going to
her property located in north Cyprus. The ruling reaffirmed the validity of property deeds
issued prior to 1974. The Court also found in this case that "it was obvious from the large
number of troops engaged in active duties in northern Cyprus that the Turkish army exercised
effective overall control there. In the circumstances of the case, this entailed Turkey's
responsibility for the policies and actions of the 'TRNC'". In July the Court ordered Turkey to
pay the woman approximately $915,000 in damages and costs by October 28. Initially
Turkey declined to pay the damages awarded.[5] The Turkish Government stated that it cannot
implement the Court's decision, which it contends is a political decision, and argued that the
land in question is not Turkish but is part of the "Turkish Republic of Northern Cyprus". The
Council of Europe (COE) during 1999 continued to call on the Turkish Government to
comply with the Court's decision. In October the COE Committee of Ministers' Deputies
voted to deplore Turkey's lack of compliance. A number of similar cases have been filed with
the ECHR.
The Court also stated expressly that the damages awarded were not compensation for the
property per se, but only for the denial of the ownership and use of the property, and that
Loizidou retains full legal ownership of her property.
In 2003 Turkey paid Loizidou the compensation amounts (of over $1 million) ruled by the
European Court of Human Rights.[6]

15. RE PUBLIC PROSECUTOR V. G.W.

FACTS: On 5 October 1965 the accused, G.W., a senior member of the Belgian staff
providing assistance to the Democratic Republic of the Congo, was driving in a jeep
in the company of M. and M., soldiers belonging to the Congolese national army,
coming from a checkpoint set up on Opala road and going towards Lubunga, an
outlying district of Stanleyville [...]. The jeep had just left an area out of bounds to
civilians and entered a non-forbidden zone, when the vehicle’s occupants saw [...] two
Congolese crossing the road, carrying “Beretta” submachine-guns [...]. A Congolese
woman, Z.S., appeared on the threshold of the hut from which, according to W., the
second rebel had come out; the accused interrogated her, with the help of his driver,
N., but got no intelligible reply [...]. The accused – as he himself stated – then started
to push the woman; he knocked her over, she fell on her side; he lifted her head with
his foot because she persisted in turning her head to face the ground; he did not
actually kick her, but he put his foot on her head and pressed down. The accused
 declares that he then ordered her to accompany him to the camp; the woman rolled on
the ground without obeying him. He ordered the two soldiers, as he himself said, to
put her in the jeep, which they did not manage to do; as soon as he heard the engine
start – the jeep being out of sight – he fired a revolver shot into the head of the victim,
who was lying at his feet. The accused then went back to the camp and informed the
Congolese and Belgian authorities of what had happened and asked that a patrol be
sent out to look for the rebels. The autopsy showed that the victim had two bullet
wounds, one of them [...] in the head. [...] The material facts of the case against the
accused have been established beyond doubt. It has also been established that the
accused fired the shot into the victim’s head with intent to kill.

16. PROSECUTOR V. LIMAJ ET AL.

FACTS: Fatmir Limaj and Isak Musliu, commanders in the KLA responsible for the
Lapušnik/Llapushnik area and prison camp, and Haradin Bala, a guard at the KLA
Lapušnik/Llapushnik prison camp, stood trial for allegedly having planned, instigated,
ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution
of the imprisonment, torture, murder, cruel treatment, and torture of Serb and Albanian
citizens in and around the Lapušnik/Llapushnik municipality and prison camp; this case
marks the first judgment ruling by the ICTY on the situation in Kosovo. The prosecution
accused Limaj and Musliu, on the basis of superior and individual criminal responsibility,
and Bala, on the basis of individual criminal responsibility, with crimes against humanity for
imprisonment, torture, inhumane acts, and murder; and violations of the laws or customs of
war for cruel treatment, torture, and murder.

DECISIONS: In 2005, the Trial Chamber convicted Bala with violations of the laws and
customs of war for torture, cruel treatment, and murder; the Trial Chamber acquitted Limaj
and Musliu of all charges in the indictment, finding that the prosecution was unable to
establish that they held a position of command in the KLA which included command of the
KLA soldiers in the village or prison camp of Llapushnik/Lapušnik.

In 2007, the Appeals Chamber dismissed Bala’s appeals and the appeals from the prosecution
regarding the three defendants. The Trial Chamber sentenced Bala to 13 years’ imprisonment,
which was confirmed by the Appeals Chamber.

17. DEMOCRATIC REPUBLIC OF CONGO V. UGANDA

Facts: On 23 June 1999, the Democratic Republic of the Congo instituted proceedings
against Uganda in respect of a dispute concerning what the applicant referred to as acts of
armed aggression perpetrated by Uganda on the territory of the Congo. In its application, the
Congo based the jurisdiction of the Court on the declarations made by the two States under
Article 36, paragraph 2, of the Statute. 
On 19 June 2000 the Congo then submitted to the Court a request for the indication of
provisional measures by which it inter alia asked the Court to request Uganda to order its
army to withdraw immediately and completely from the disputed area; to order its army to
cease all fighting or military activity on the territory of the Congo and to withdraw
immediately and completely from that territory; and finally to also desist from providing any
support to any State, group, organization, movement or individual engaged or preparing to
engage in military activities on the territory of the Congo.
Decision: In its order, the Court noted that the two Parties had each made a declaration
recognizing the jurisdiction of the Court in accordance with Article 36, paragraph 2, of the
Statute without any reservation which therefore constituted a prima facie basis upon which its
jurisdiction in the case could be founded.
Besides and notwithstanding the fact that the very same situation had already been dealt with
by the Security Council in its resolution 1304 (2000), adopted under Chapter VII of the
United Nations Charter on 16 June 2000, the Court is not precluded from acting in
accordance with its Statute and with the Rules of Court, since no provision similar to Art. 12
of the United Nations Charter is to be found anywhere in the Charter with respect to the
Security Council and the Court. 
The Court further stated that it is not precluded from indicating provisional measures in a
case merely because a State which has simultaneously brought a number of similar cases
before the Court seeks such measures in only one of them.
Given the situation on the ground, the Court then found that there existed a serious risk of
events occurring which might aggravate or extend the dispute or make it more difficult to
resolve. Accordingly it requested both Parties to prevent and refrain from any action, and in
particular any armed action, which might prejudice the rights of the other Party in respect of
whatever judgment the Court may render in the case, or which might aggravate or extend the
dispute before the Court or make it more difficult to resolve; that both Parties must take all
measures necessary to comply with all of their obligations under international law, in
particular those under the United Nations Charter and the Charter of the Organization of
African Unity, and with United Nations Security Council resolution 1304 (2000) of 16 June
2000; and that they must take all measures necessary to ensure full respect within the zone of
conflict for fundamental human rights and for the applicable provisions of humanitarian law.
Judges Oda and Koroma appended declarations to the order.

18. PROSECUTOR V. TIHOMIR BLAKIC

Facts: The case concerned the crimes committed in the Lašva Valley (Bosnia and
Herzegovina) between May 1992 and January 1994 in the ambit of the conflict between the
Croatian Defence Council (HVO) and the forces of the Bosnian Muslim Army. On 16 April
1993, pursuant to an order by Blaškić, the Croatian forces attacked the municipalities of Vitez
and Busovača (central Bosnia and Herzegovina). As a result of the attack, hundreds of
Bosnian Muslim civilians were killed, arrested, mistreated or forced to leave their homes.
Those who were detained were forced to dig trenches, frequently being used also as human
shields. Furthermore, the Muslim houses were burned, their properties plundered, and their
mosques destroyed. Over twenty villages were attacked under the same scenario and
coordination (para. 341 et seq.). 
From 27 June 1992, Tihomir Blaškić was the Commander of the HVO Armed Forces
Headquarters in central Bosnia and Herzegovina (para. 9).

Core legal questions

 Have the elements of the charged crimes been fulfilled?
 If so, can Tihomir Blaškić be held responsible for these crimes?
Specific legal rules and provisions
 Articles 2, 3, 5, 7(1) and (3) of the ICTY Statute.

Court's holding and analysis

Trial Chamber I found Blaškić responsible, as Commander of the Croatian forces (HVO) in
central Bosnia, for all charges of crimes against humanity and war crimes that were
committed pursuant to his ordering of a significant number of attacks and his failure to
prevent or punish the commission of crimes by his subordinates (paras. 433 et seq., 531, 560,
588 et seq., 661). 
Blaškić was found responsible of inhuman and cruel treatment (as crimes against humanity)
for the “violence committed in the detention facilities” (para. 721) and for “order[ing] the use
of detainees to dig trenches, including under dangerous conditions at the front” (para. 738).
Furthermore, Trial Chamber I concluded that “although General Blaškić did not order that
hostages be taken, it is inconceivable that as commander he did not order the defence of the
town where his headquarters were located. In so doing, Blaškić deliberately ran the risk that
many detainees might be taken hostage for this purpose” (para. 741). Trial Chamber I was
also “convinced beyond all reasonable doubt that on 20 April 1993 General Blaškić ordered
civilians … to be used as human shields in order to protect his headquarters” (para. 743). 
Trial Chamber I sentenced Blaškić to 45 years of imprisonment.

19. PROSECUTOR V. JEAN KAMBANDA

Facts: Underground 1, the Accused  submitted that the Trial Chamber had erred by not taking
into consideration the denial of his right to legal assistance of his own choosing (para. 12).
Underground 2, he contended that his detention in Tanzania outside the Tribunal Detention
Unit had been unlawful (para. 36), and underground 3, he challenged the validity of the guilty
plea (para. 49).
As an “alternative”, the Accused had submitted that if the Appeals Chamber denied his
primary request to quash the guilty verdict and order a new trial, it should set aside and revise
the entire sentence (grounds 4, 5, 6, 7, 8) (para. 96).

Core legal questions

 Whether the guilty plea entered by the Accused was voluntary, informed and
unequivocal.
 Whether there was a sufficient factual basis supporting the guilty plea.
 Whether the Trial Chamber had erred in failing to impose a separate sentence for each
count in the Indictment.
 Whether the Trial Chamber had properly taken into account certain mitigating factors.
 What the effect on the sentence would be, in case any of the grounds of appeal was
accepted.

Specific legal rules and provisions

Articles 2, 3, 9(3), 20, 22 and 23(1),(2) of the Statute of the International Criminal Tribunal
for Rwanda.
Rules 62, 101(B)(ii),(iii),(C),108bis, 111 and 114 of the Rules of Procedure and Evidence of
the International Criminal Tribunal for Rwanda.

Court's holding and analysis

With regard to ground 1, the Appeals Chamber held that the right to free legal assistance by
counsel does not confer the right to choose one’s counsel and that incompetence on the part
of counsel for the Accused had not been substantiated (paras. 33-34).
The Appeals Chamber found that the Accused had failed to establish any reason for which he
should exceptionally be allowed to raise the question of the legality of his detention for the
first time on appeal. Therefore, it dismissed his second ground of appeal (para. 48). The
Chamber also rejected the Accused’s claim that his guilty plea was involuntary, uninformed
and not unequivocal, as well as that there had not been sufficient evidence to indicate that he
was guilty (paras. 64, 78, 87, 94-95).
The Appeals Chamber also dismissed the grounds challenging the sentence imposed on the
Accused. As a result, the Chamber upheld the sentence of life imprisonment (paras. 113,
126).