ORDONNANCE DE CLÔTURE

002/19-09-2007-ECCC-OCIJ ЮŲŠ / No: D427
5293
Krajisnik ICTY [2009] AC Judgement para.193: “The Appeals Chamber is also not persuaded by Amicus
Curiae’s contention that the Trial Chamber conflated elements of command responsibility with JCE. The Trial
Chamber stated “[a]n expansion of the criminal means of the objective is proven when leading members of the
JCE are informed of new types of crime committed pursuant to the implementation of the common objective,
take no effective measures to prevent recurrence of such crimes, and persist in the implementation of the
common objective of the JCE”. The Trial Chamber’s choice of words (“effective measures to prevent”) is
unfortunate in that it corresponds to the legal requirements in the context of superior responsibility, and this may
create some confusion. Nonetheless, the Appeals Chamber agrees that the failure to take effective measures to
prevent recurrence of the expanded crimes could constitute one of the factors to take into account in determining
whether the evidence showed that the JCE members accepted an expansion of the criminal means to realise the
common objective.” Ibidem para.194: “[…] The Appeals Chamber notes that the Trial Chamber found that,
although it could not conclude that Krajisnik himself had effective control (for the purposes of Article 7(3) of
the Statute) over the Bosnian-Serb political and governmental organs and Bosnian-Serb forces, it was
established that Krajisnik had some power and influence over those bodies, that “he had the power to intervene”,
but that he failed to exercise that power. In the view of the Appeals Chamber, the Trial Chamber could rightfully
consider this failure to intervene as one of the elements tending to prove Krajisnik’s acceptance of certain
crimes, even though he might not have had himself effective control over the Bosnian-Serb political and
governmental organs and
Bosnian-Serb forces.”
5294
Nahimana et al ICTR [2007] AC Judgement para.315: “It is well established that the provisions of the
Statute on the temporal jurisdiction of the Tribunal do not preclude the admission of evidence on events prior to
1994, if the Chamber deems such evidence relevant and of probative value and there is no compelling reason to
exclude it. For example, a Trial Chamber may validly admit evidence relating to pre-1994 acts and rely on it
where such evidence is aimed at:
- Clarifying a given context;
- Establishing by inference the elements (in particular, criminal intent) of criminal conduct
occurring in 1994;
- Demonstrating a deliberate pattern of conduct.”
5295
Krajisnik ICTY [2009] AC Judgement para.218: "The Appeals Chamber also rejects Amicus Curiae’s
assertion that the Trial Chamber erred in concluding that Krajisnik’s main contribution to the JCE was in setting
up and supporting Serbian Democratic Party (SDS) structures. As noted above, the Trial Chamber found that
Krajisnik’s overall contribution to the JCE was “to help establish and perpetuate the SDS party and state
structures that were instrumental to the commission of the crimes.” The use of the term “perpetuate” shows that
the Trial Chamber was convinced that Krajisnik’s contribution was not limited to the establishment of SDS
structures but to the active implementation of the common purpose throughout the Indictment period. Moreover,
the fact that it was not criminal to be involved in the setting up of SDS structures is irrelevant: as explained
above, the participation of an accused in the JCE need not involve the commission of a crime, what is important
is that it furthers the execution of the common objective or purpose involving the commission of crimes.
Amicus Curiae has failed to show that Kraji{nik’s role in establishing and perpetuating SDS structures did not
contribute to the realisation
5296 Krajisnik ICTY [2009] AC Judgement para.204: “With respect to the Trial Chamber’s findings on the JCE
members’mens rea in relation to the original crimes, the Appeals Chamber is satisfied that, in light of the
quantity and quality of the information received by Krajisnik and other members of the JCE with respect to
original crimes, together with the fact that he did not intervene to prevent the recurrence of crimes and his
persistence in the implementation of the JCE, Amicus Curiae has neither shown that the Trial Chamber erred in
law, nor that no reasonable trier of fact could have found, based on the evidence, that Krajisnik’s and the other
JCE members’ mens rea with respect to the original crimes was the only reasonable inference possible.”
5297 Kaing Guek Eav alias Duch No. 001/18-07-2007/ECCC/TC Judgement paras.518-519; Kordic et al ICTY
[2004] AC Judgement paras.26, 31; Sesay et al SCSL [2009] TC Jugement paras.687, 1170; Sesay et al SCSL
[2009] AC Judgement para.268
5298 Kaing Guek Eav alias Duch No. 001/18-07-2007/ECCC/TC Judgement para.522; François Karera ICTR
[2009] Appeal Chamber Judgement para.317; Kordic et al. ICTY [2004] Appeal Chamber Judgement paras.27,
32 ; Sesay et al. SCSL [2009] Trial Chamber Jugement para.271, 311; Oric ICTY [2006] Trial Chamber
Jugement paras.270-271; Hadzihasanovic and Kubura ICTY [2008] Appeal Chamber Judgement para.30 ;
Extraordinary Chambers in the Courts of Cambodia, National Road 4, Choam Chao, Dangkao Phnom Penh
Mailing address: P.O. Box 71, Phnom Penh; Tel: +855(0)23 218914 Fax: +855(0) 23 218941.
765