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(Photo provided courtesy of the ICTY)

(Photo provided courtesy of the ICTY)

The Prosecutor v. Radoslav Brđanin

Court International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number IT-99-36-A
Decision title Appeals Judgment
Decision date 3 April 2007
Parties
  • The Prosecutor
  • Radoslav Brđanin
Categories Crimes against humanity, War crimes
Keywords crimes against humanity, Grave breaches, war crimes, torture, Wanton destruction, military necessity, destruction of property, joint criminal enterprise, Krajina
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Other countries involved
  • Bosnia and Herzegovina
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Summary

Radoslav Brđanin, the president of the Crisis Staff of the Autonomous Region of Krajina (ARK) in Bosnia and Herzegovina, was found guilty of war crimes and crimes against humanity by Trial Chamber II for his role in the perpetration of crimes against the non-Serb population of the ARK in 1992.

The Appeals Chamber accepted Brđanin's ground of appeal with respect to alleged errors made in his conviction for torture in the trial judgment. Lacking sufficient evidence, it could not be proven that he aided and abetted the commission of this crime. Furthermore, the Appeals Chamber concluded that Trial Chamber II made an error with regard to the facts of the attack on the town of Bosanska Krupa. Subsequently, Brđanin's conviction for this crime had to be reversed.

The Appeals Chamber also allowed two of the Prosecution’s grounds of appeal. It held that Trial Chamber II made errors when assessing the requirements for a joint criminal enterprise (JCE) (a mode of responsibility in the jurisprudence of the ICTY), particularly the role of the principal perpetrators within the JCE and their relation to the accused, Brđanin.

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Procedural history

The initial indictment was issued against Radoslav Brđanin and another accused, Momir Talić. The case against the latter accused was separated on 20 September 2002. The operative (sixth) amended indictment against Brđanin was filed on 9 December 2003.

The trial commenced on 23 January 2002 and Trial Chamber II rendered its decision on 1 September 2004.

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Related developments

On 4 March 2008, Radoslav Brđanin was transferred to Denmark to serve his sentence.

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Legally relevant facts

Trial Chamber II convicted Radoslav Brđanin on 1 September 2004 of four counts of crimes against humanity, two counts of grave breaches of the Geneva Conventions and two counts of violations of the laws or customs of war committed in the Autonomous Region of Krajina (ARK) (Bosnia and Herzegovina) between April and December 1992. The crimes targeted the non-Serb population of 13 ARK municipalities. At this time, Brđanin was the president of the Crisis Staff of the ARK. Pursuant to the convictions, Trial Chamber II sentenced Brđanin to 32 years of imprisonment (para. 3).

Both Brđanin and the Prosecution appealed the trial judgment.

Brđanin adduced numerous grounds seeking acquittal of all charges. Among others, he argued legal and factual errors in the findings of Trial Chamber II with respect to the role of the ARK Crisis Staff in the commission of the crimes and his own powers within the Crisis Staff (para. 5).

The Prosecution's grounds of appeal related to the findings of Trial Chamber II on the mode of liability of joint criminal enterprise and alleged errors made when not entering convictions for certain crimes (para. 6).

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Core legal questions

  • Did Trial Chamber II err in its findings with respect to the convictions of Radoslav Brđanin?
  • Can the Appeals Chamber uphold any of the grounds of appeal adduced by the parties?

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Specific legal rules and provisions

  • Article 25 of the ICTY Statute.
  • Rules 117 and 118 of the ICTY Rules of Procedure and Evidence.

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Court's holding and analysis

The Appeals Chamber allowed two of Brđanin's grounds.

First, Brđanin argued that Trial Chamber II erred in finding that he aided and abetted the war crime of torture. The Appeals Chamber agreed, stating that “[t]here was insufficient evidence to prove beyond a reasonable doubt that Brđanin’s conduct constituted either encouragement or moral support for the camp personnel (actus reus), which had a substantial effect on the commission of torture”(para. 276).

Second, the Appeals Chamberreversed the conviction for wanton destruction or devastation not justified by military necessity of Bosanska Krupa (Bosnia and Herzegovina) on the basis of a factual error made by Trial Chamber II (para. 327).

The Appeals Chamber allowed two grounds for the Prosecution as well.

First, it held that Trial Chamber II erred when finding that the principal perpetrators must be members of a joint criminal enterprise (JCE). It held that “what matters is... whether the crime in question forms part of the common purpose” (para. 410).

Secondly, the Appeals Chamber held that Trial Chamber II erred with respect to its findings on the third category of JCE, when it required proof that “between the person physically committing a crime and the Accused, there [must be] an understanding or an agreement to commit that particular crime” (para. 419).

The sentence of Brđanin was reduced to 30 years of imprisonment.

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Further analysis

  • E. van Sliedregt, Individual Criminal Responsibility in International Law (Oxford University Press, New York 2012) p. 161 et seq..
  • C. Farhang, 'Point of No Return: Joint Criminal Enterprise in Brđanin', Leiden Journal of International Law, 2010,  Vol. 23(1), pp. 137-164.
  • A. Cassese, 'The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise', Journal of International Criminal Justice, 2007, Vol. 5(1), pp. 109-133.

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Instruments cited

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Additional materials