30 May 2013 - ICTY

49250
9. Separate opinion of Judge Alphons Orie
2407. I respectfully note that Judge Picard dissents in many respects from the majority view.
An acquittal usually does not need much explanation. Especially if the evidence simply lacks
the potential to lead to any other outcome than an acquittal, there is not much more to be said.
However, if the evidence has convinced one of the judges that it should lead to a conviction,
whereas other judges conclude that an acquittal is the just verdict, the interpretation,
evaluation, and weighing of the evidence may deserve additional attention. The reasoned
opinion in the Judgement itself contains all the considerations that led to the verdict of the
majority. However, I consider it appropriate to give, in a personal account, insight into the
thoughts I developed during the deliberations, thoughts that led me to the conclusion that the
Accused should be acquitted. I also write separately to give a clearer picture of what, in my
view, may be seen as a reasonable alternative interpretation of the evidence (alternative to the
interpretation Judge Picard adopts) in relation to what to infer from the acts and conduct of
the Accused. I will further briefly address a legal issue related to the applicable standard of
mens rea for a joint criminal enterprise.
2408. In the Judgement, the Trial Chamber established that a considerable number of crimes
were committed during the Indictment period, including murder (both as violations of the
laws and customs of war and as crimes against humanity), and deportation, forcible transfer,
and persecution as crimes against humanity. The Trial Chamber further found that the
perpetrators of these crimes often received various forms of support for their activities prior to
and during the operations they participated in and in which these crimes were committed.
Such support included forming units, training, supplying, financing, organizing involvement,
and directing. The Trial Chamber found that the Accused were in some instances directly
responsible for, and often otherwise involved in, providing such support.
2409. Why are the Accused, despite the above, not individually criminally responsible for
these crimes? Crimes that were often heinous and had an inconceivable impact on the lives of
many. Where Judge Picard comes to different conclusions on the individual criminal
responsibility of the Accused, I feel the need to explain in more detail why the evidence has
not convinced me beyond a reasonable doubt that all requirements have been met in order to
hold the Accused individually criminally responsible.
2410. During the take-over of regions, towns, and villages Serb forces met various levels of
resistance, ranging from hardly any resistance to fierce fighting. Sometimes the military
Case No. IT-03-69-T 868
30 May 2013