1 For a list of the terms and abbreviations used in this Judgement, see Annex B.

2 Trial Judgement, para. 621.

3 Although Santicć no longer disputes his guilt he, nonetheless, makes various challenges to the Trial Chamber's findings about the extent of his participation in the April 1993 Ahmići attack.

4 Order of the President on the Request for the Release of Confidential Witness” AT” Material from the Case The Prosecutor v Kordić and Cerkez in the Case The Prosecutor v KupreScić et al, filed in French on 4 October 2001. The English translation was filed on 9 October 2001.

5 Trial Judgement, para. 370.

6 Trial Judgement, para. 372.

7 Trial Judgement, para. 422.

8 Trial Judgement, paras 426,776 and 779.

9 Trial Judgement, para. 430.

10 The Trial Judgement used the spelling “Sutre“for the name of the store and some of the documents field during the trial proceedings.

11 Trial Judgement, para. 371.

12 Trial Judgement, paras 372 and 421.

13 Trial Judgement, paras 421 and 779.

14 Trial Judgement, paras 426, 776 and 779.

15 Trial Judgement, para. 430.

16 Trial Judgement, para. 432.

17 Trial Judgement, para. 463.

18 Trial Judgement, para. 466.

19 Trial Judgement, para. 470.

20 Trial Judgement, para. 502.

21 Trial Judgement, paras 503 and 859.

22 Trial Judgement, para. 504.

23 Trial Judgement, para. 859.

24 Trial Judgement, para. 475.

25 Trial Judgement, paras 132, 500 and 501.

26 Trial Judgement, paras 503 and 862.

27 Trial Judgement, para. 862,

28 Tadić Rule 115 Decision, para. 41 (referring to Prosecutor v Erdemović, Case No.: IT-96-22-A, Judgement, 7 October 1997,para. 15); Furundžija Appeal Judgement, para. 40; Tadić Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para.

29 TadićAppeal Judgement, para. 247.

30 Zoran Kupreškić Appeal Brief, para. 10. Zoran Kupreškić also takes issue with the allegation that he helped prepare the onslaught on Ahmic'i by preparing his home and the homes of his relatives as staging areas and firing locations for the attack. Due to the fact that this allegation did play a part in his conviction it is dealt with in substance infra paras. 233-241.

31 Zoran Kupreškić Appeal Brief, para. 143. See also para. 146 (restating the argument that the Trial Chamber failed to establish whether he was considered to be a perpetrator or a co-perpetrator).

32 Trial Judgement, para. 515.

33 Mirjan Kupreškić Appeal Brief, 140-147.

34 Mirjan Kupreškić Appeal Brief, 140-147; Mirjan Kupreškić Closing Brief, 86-91.

35 Furundžja Appeal Judgement, para. 35 (discussing the standard applied to determine legal errors).

36 See, e.g., Josipović Appeal Brief, 8 and 20; Zoran Kupreškić Appeal Brief, para. 42 (questioning the probative value of a single identification witness); Zoran KupreškićAppeal Brief, para. 83 (questioning acceptability of evidence in light of factors such as the passage of time between the events and the testimony, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place); Zoran Kupreškić Appeal Brief, para. 12 (arguing that the Trial Chamber is obliged to refer to all pieces of evidence relied upon or to refer to all pieces of possibly contradictory evidence); Zoran Kupreškic Appeal Brief, paras 23 and 50 (questioning reasoning as to why the evidence of one witness is preferred but not the evidence of another).

37 Furundžja Appeal Judgement, para. 37 (citing Serushago Sentencing Appeal Judgement, para. 22). 38 Furundžja Appeal Judgement, para. 37 (quoting Black's Law Dictionary (7th ed., 1999)).

39 Furundžja Appeal Judgement, para. 37.

40 Tadic Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; Celebia Appeal Judgement, paras 434 and 491; Tadic Appeal Judgement, Separate Opinion of Judge Shahabuddeen, para. 30.

41 Rules 89(C) and (D).

42 CelebiâAppeal Judgement, paras 485 and 496-498.

43 Celebiâ Appeal Judgement, paras 485 and 496-498.

44 Furundžja Appeal Judgement, para. 37.

45 Furundžja Appeal Judgement, para. 69. This decision recalls principles drawn from the case-law of the European Court of Human Rights, which indicate that “the extent to which this duty … applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case.” Ruiz Torija v Spain, 303 Eur. Ct. H. R. (series A) at para. 29 (1994). However, a “tribunal” is not obliged to give a detailed argument in respect of every argument. See Van de Hurk v The Netherlands, 288 Eur. Ct. H. R. (series A) at para. 61 (1994).

46 TadićAppeal Judgement, para. 65; Aleksovski Appeal Judgement, para. 62; Celebiâ Appeal Judgement, para. 492 and 506; Kayishema Appeal Judgement, para. 154.

47 Rule90(B). 48.

48 R. vturnbull, [1976] 63 Cr. App. R.I 32.

49 Regarding the position in Canada, see R. v Carey (1996), 113 C.C.C. (3d) 74 (requiring “a special warning on the frailties of eyewitness identification” be given to a jury by a trial court “whenever the defence alleges such identification to be mistaken …“)(citations omitted); see also R. v Mezzo, (1983( 10 W.C.B. 247. Regarding the position in Australia, see Domican v R., [1992] 106 A.L.R. 203 (1991).

50 Jafaar bin Ali v PP [1998] 4 M.L.J. 406; see also Arumugam s/o Mulhusamy v PP [1998] 3 M.L.J. 73.

51 U.S. v Wade, 388 U.S. 218, 228-229 (1967)(citation omitted).

52 R. v Turnbull, [1976] 63 Cr. App. R. 132, 141.

53 For the position in Austria, see § 258 (2) Strafprozessordnung; for the position in Germany, see § 261 Strafprozessordnung; for the position in Italy, see Art. 192 Codice di Procedure Penale; for the position in Portugal, see Art. 127 Codigo de Processo Penal; for the position in Sweden, see Chapter 35 § 1 Rättegångsbalken; for the position in Spain, see Art. 741 Ley de Enjuiciamiento Criminal.

54 See, e.g., Entscheidungen des Bundesgerichtshofs in Strafsachen Vol. 16, p. 204 and Vol. 28, p. 310.

55 See, e.g., Bundesgerichtshof, reprinted in Strafverteidiger 409 (1991); see also Bundesgerichtshof, reprinted in Strafverteidiger 555 (1992).

56 See, e.g., Oberster Gerichtshof, 10 December 1992, 15 0s 150/92; 4 June 1996, 11 0s 59/96 and 20 March 2001, 11 0s 141/00.

57 See, e.g., Nytt Judiriskt Arkiv 725 (1980), 446 (1992) and 176 (1996).

58 R. v Harper, [1982] 1 S.C.R. 2.

59 R. v Turnbull, [ 1976] 63 Cr. App. R. 132.

60 R. v Turnbull, [1976] 63 Cr. App. R. 132.

61 Jaafar bin Ali vPP,[\998] 4 M.L.J. 406.

62 People (DPP) v Cox, 28th April, 1995, (CCA) 4/93.

63 Domican v R., [1992] 186 A.L.R. 203.

64 People (DPP) v McNamara, 22nd March, 1999, (CCA) 111/95.

65 R. v Burke, [1996] 1 S.C.R. 474. In Burke, at para. 53, the appellate court found it unacceptable that the trial judge “made no comment on the frailty of the identification evidence” other than the general statement that she found the witness’ evidence credible and therefore accepted it.

66 Tadić Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; and CelebiâAppeal Judgement, para. 491.

67 The video recordings depicted visibility conditions in the villages of Ahmići and Šantići, and an oath-taking ceremony in Vitez.

68 Appeal Transcript, 612.

69 For a discussion of these matters, see Procedural Background, Annex A.

70 Celebiâ Appeal Judgement, para. 435; see also Tadić Appeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; Furundžja Appeal Judgement, para. 37.

71 See TadićRule 115 Decision, paras 37-38 (stating that, regarding Art. 25(l)(b), providing for appeals on the ground of “an error of fact which has occasioned a miscarriage of justice,” “it is difficult to see how the Trial Chamber may be said to have committed an error of fact where the basis of the error lies in additional evidence which, through no fault of the Trial Chamber, was not presented to it… [i]t is only by construing the reference to ‘an error of fact’ as meaning objectively an incorrectness of fact disclosed by relevant material… that additional material may be admitted.“)

72 Examples are the systems of “appel” in France (Art. 546 et seq., Code de Procedure Penale) and Belgium (Art. 199 et seq., Code destruction Criminelle); “Berufung” in Germany (§§ 312-332, Strafprozessordnung (1999)); “appello” in Italy (Arts. 593-605, Codice di Procedure Penale (2001)); “hogerberoep” in the Netherlands (Arts. 404; 425 et seq., Strafvordering: Tekst & Commentaar (1997)); “anke” and “fuldstoendig anke” in Denmark (§ 943-960, Administration of Justice Act); “recurso de apelacion” in Spain (Arts. 795-796, 846 (bis), Ley de Enjuiciamiento Criminal of 1882 (1996)); “2 alba na presudu” in Bosnia and Hercegovina (Arts. 357; 360; 381, Federation Criminal Procedure Code (1998)).

73 Examples are “pourvoi en cassation” in France (Arts. 592-596; 599, Code de Procedure Penale (2001)) and Belgium (Art. 416 et seq.. Code destruction Criminelle); “Revision” in Germany (§§ 333-358, Strafprozessordnung (1999)); “ricorso per cassazione“ in Italy (Arts. 606-628, Codice di Procedure Penale (2001)); “cassatieberoep” in the Netherlands (Art. 427 and 441, Strafvordering: Tekst & Commentaar; Art. 99, Wet op de Rechtelijke Organisatie (1997)); “Revising Appeal” in Denmark (§ 943-960, Administration of Justice Act); “recurso de casacion” or “recursodequeja” in Spain (Arts. 847; 849(1) and (2), 850-851,901(to)(a), Ley de Enjuiciamiento Criminal of 1882 (1996)).

74 Section 23 of the Criminal Appeal Act 1968 (as amended and repealed in part by the Criminal Appeal Act 1995).

75 The section provides that “the court of appeal may, where it considers it in the interests of justice, receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness.“

76 R. vMcMartin [1965] 1 C.C.C. 142.

77 Fed. R. Crim. P. 33 provides: “On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require. If trial was by the court without a jury, the court may — on defendant's motion for new trial — vacate the judgment, take additional testimony, and direct the entry of a new, judgment. A motion for new trial based upon newly discovered evidence may be made only within three years after the verdict or finding of guilty. But if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds may be made .only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.

78 “ United States v Oates, 445 F. Supp. 351 aff d without op, 591 F.2d 1332 (2nd Cir. 1978). This caution is reflected in the specific factors enunciated and applied by the federal courts to determine the validity of a motipn for a new trial based upon discovery of new evidence. The courts have consistently stated that such evidence: (1) must be discovered after the trial, such as to assure the court of the diligence of the movant during the trial; (2) the evidence must not be “merely criminal or impeaching” but material to the issues involved in the earlier trial; (3) the evidence must be such that it would “probably produce” acquittal upon retrial. See United States v Ortiz, 23 F.3d 21,27 (1st Cir. 1994); see also generally Johnson v United States, 32 F.2d 127 (8th Cir.1929); United States v Marachowsky, 213 F.2d 235 (7th Cir. 1954), cert, den., 348 U.S. 826 (1954); United States v Joselyn et al., 206 F.3d 144 (1st Cir. 2000).

79 Section 574 of the Victorian Crimes Act of 1958, for example, permits the Full Court of the Supreme Court of Victoria to allow the admission of new evidence upon an appeal if it thinks it necessary or expedient in the interests of justice.

80 Art. 304(2) (b) and Art. 309(3) of the Code of Criminal Procedure grant a local division of the Supreme Court sitting as a court of appeal the authority to hear evidence. Section 22 of the Supreme Court Act 59 of 1959 grants provincial and local courts the power to preside over and grant appeals. The court is also empowered under section 304(2)(c)(v) and section 22 of the Supreme Court Act to remit or remand the case to the magistrate's court, the court of first instance, with directions regarding the evaluation of the new evidence.

81 In S v De Jager, 1965 (2) SA 612 (A), it was held that “the requirements which should be complied with before the Appellate Division or any other court of appeal… would be prepared to hear new evidence are set out as 613 C-D as follows: (a) there should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial; (b) there should be prima facie likelihood of the truth of the evidence; (c) the evidence should be materially relevant to the outcome of the trial.” This standard, and underlying considerations, are relevant to the work of all appellate courts, regardless of whether they are local, provincial or national. See R. v De la Bat, (1) 1959 (3) SA 67 (c) 69G-70D; 5 v Steyn, 1981 (4) SA 385 (c) 386D-F).

82 Section 317 of Criminal Procedure Code of Malaysia (F.M.S. Cap. 6) (as in force on 15th May 1991).

83 See Rome Statute of the International Criminal Court, 17 Aug. 1998, PC NICC/1999/INF/3, Art. 83.

84 Rome Statute of the International Criminal Court, 17 Aug. 1998, PC NICC/1999/INF/3, Art. 84.

85 Tradić Rule 115 Decision, para. 30 (emphasis added).

86 Tadić Rule 115 Decision, para. 32.

87 Tadić Rule 115 Decision, para. 32.

88 Tadić Rule 115 Decision, para. 36.

89 Tadić Rule 115 Decision, para. 44.

90 Tadić Rule 115 Decision, para. 47.

91 Tadić Rule 115 Decision, para. 62.

92 Tadić Rule 115 Decision, para. 48 (emphasis added) and para. 50.

93 Tadić Rule 115 Decision, para. 71.

94 Tadić Rule 115 Decision, para. 74.

95 Prosecutor v Jelisić, Case No.: IT-95- 10-A, Decision on Request to Admit Additional Evidence, 15 Nov 2000, 3 (emphasis added).

96 See Prosecutor v Furundžija, Case No.: IT-95-17/1-A, Order on Defendant's Motion to Supplement Record on Appeal, 2 Sept 1999, 2; Prosecutor v Delalićet al, Order on Esad Landžo's Motion (1) to Vary in Part Order on Motion to Preserve and Provide Evidence, (2) to be Permitted to Prepare and Present Further Evidence, and (3) that the Appeals Chamber take Judicial Notice of Certain Facts, and on his Second Motion for Expedited Consideration of the Above Motion, 4 October 1999,4. The Court held that Rule 115 was inapplicable because the new evidence was concerned with facts not at issue at trial and “not [concerned] with the guilt or innocence of the Appellant.“

97 Prosecutor v Delalić et al. Case No.: IT-96-21-A,- Order in Relation to Witnesses on Appeal, 19 May 2000, 3 (emphasis added); see also Prosecutor v Delalic'et al. Case No.: IT-96-21-A, Order on Motion of Esad Landžo to Admit as Additional Evidence the Opinion of Francisco Villalobos Brenes, 14 Feb 2000, 3; Prosecutor v Delalić et al.. Case No.: IT-96-21-A, Order on Motion of Appellant, Esad Landzo, to Admit Evidence on Appeal, and for Taking of Judicial Notice, 31 May 2000, 2. see also Prosecutor v Akayesu, Case No.: ICTR-96-4-A, Decision (Concerning Motions 2,3,4,5,6 and 8 Appellant's Brief Relative to the Following Motions Referred to by the Order Dated 30 November 1999), 24 May 2000, 4.

98 Prosecutor v Blaikić, Case No.: IT-95-14-T, Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 Sept 2000, para. 32. Rule 107 enables “the Appeals Chamber to import rules for trial proceedings to fill a lacuna in appellate proceedings, subject to appropriate modifications.“

99 See Rule 115 Decision of 26 February 2001, para. 13; Rule 115 Decision of 11 April 2001, para. 13.

100 See, e.g., Prosecutor v Furundžija, Case No.: IT-95-17/1 -A, Order on Defendant's Motion to Supplement Record on Appeal, 2 Sept 1999, 2; Prosecutor v Delalićet al.. Case No.: IT-96-21-A, Order on Esad Landzo's Motion (1) to Vary in Part Order on Motion to Preserve and Provide Evidence, (2) to be Permitted to Prepare and Present Further Evidence, and (3) that the Appeals Chamber take Judicial Notice of Certain Facts, and on his Second Motion for Expedited Consideration of the Above Motion, 4 Oct 1999, 4; Prosecutor v Delalić et al, Case No.: IT-96-21-A, Order in Relation to Witnesses on Appeal, 19 May 2000,3; Prosecutor v Delalić et al. Case No.: IT-96-21-A, Order on Motion of Esad Landžo to Admit as Additional Evidence the Opinion of Francisco Villalobos Brenes, 14 Feb 2000, p. 2; Prosecutor v Delalić et al, Case No.: IT-96-21-A, Order on Motion of Appellant, Esad Landžo, to Admit Evidence on Appeal, and for Taking of Judicial Notice, 31 May 2000, 2. Also applied by the Appeals Chamber of the ICTR in Prosecutor v Akayesu, Case No.: ICTR-96-4-A, Decision (Concerning Motions 2, 3,4, 5, 6 and 8 Appellant's Brief Relative to the Following Motions Referred to by the Order Dated 30 November 1999,24 May 2000, 4.

101 Tradić Rule 115 Decision, para 72.

102 Prosecutor v Semanza, Case No.: ICTR-97-20-A, Decision, 31 May 2000, para. 41.

103 Prosecutor v Semanza, Case No.: ICTR-97-20-A, Decision, 31 May 2000, para. 45.

104 Prosecutor v Jelisić, Case No.: IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 Nov 2000,3. A similar principle, that the Appeals Chamber would not be constrained by the express meaning of the Rules where the admission of evidence was necessary in order to avoid a miscarriage of justice, was established by the Appeals Chamber of the ICTR during “request for review“ proceedings in Prosecutor v Barayagwiza, under Art. 25 and Rule 120 of the ICTR Statute and Rules (corresponding to Art. 26 and Rule 119 of the ICTY Statute and Rules). There, the Appeals Chamber took account of new facts presented to it by the Prosecution, notwithstanding its finding that the Prosecution may have known of them, or could have discovered them, during the earlier proceedings. The Appeals Chamber held that the words of Rule 120 were “directory” in nature and, “in the face of a possible miscarriage of justice”, account was to be taken of the new facts. See Prosecutor v Barayagwiza, Case No.: ICTR-97-19-AR72, Decision (Prosecutor's Request for Review or Reconsideration), 31 March 2000, para. 65.

105 Prosecution's Consolidated Response to the Motions by Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kuprešicić and Drago Josipović to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 Nov 2000, paras 2.30 and 3.6.

106 The Prosecution stated that “[t]o meet die requirements of Rule 115 there is inevitably two categories of evidence presented to the Appeals Chamber; first, evidence offering the explanation as to why the additional evidence was not available at trial; and, second, the additional evidence itself, tendered for admission as relevant to the guilt or innocence of an accused.” Prosecution's Consolidated Response to the Motions by Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić and Drago Josipović to Admit Additional Evidence Pursuant to Rule 115, 20 Nov 2000, para. 1.30.

107 Evidence consisted of the defence closing brief for the Accused Vlatko Kupreškić, a letter from Dr. Krajina and Mr. Par dated 28 July 2000 to present counsel, the draft appellant's brief, a statement of Vlatko Kupreškić, the draft rule 115 motion prepared by former counsel, statements of Ljubica Kupreškić, statement of AVK 5, statement of AVK 6, and a list of witnesses for the defence at trial.

108 Rule 115 Decision of 11 April 2001, paras 24 and 25.

109 Rule 115 Decision of 26 February 2001, para. 28.

110 Rule 115 Decision of 26 February 2001, para. 58; Rule 115 Decision of 11 April 2001, paras 17 and 30.

111 Witness ADA, Miro Lazarevic and Witness ADB.

112 Rule 115 Decision of 26 February 2001, para. 28.

113 Rule 115 Decision of 26 February 2001, para. 58.

114 Rule 115 Decision of 26 February 2001, para. 106.

115 Rule 115 Decision of 11 April 2001, para. 6.

116 Rule 115 Decision of 26 February 2001, para. 41; see also Rule 115 Decision of 26 February 2001, para. 48.

117 Prosecution's Consolidated Response to the Motions by Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić and Drago Josipović to Admit Additional Evidence Pursuant to Rule 115 (Confidential), 20 Nov 2000, para. 5.4 (stating that “[i]n the event that, contrary to the Prosecution's submission, any of the Motions are granted and the additional evidence admitted by the Appeals Chamber, the Prosecution expressly reserves its right to submit evidence in rebuttal and, if necessary, to request the right to cross-examine any witnesses from whom statements have been proffered“).

118 The Evidentiary Hearing was held on 17, 18 and 25 May 2001.

119 The statement of Witness CA was admitted pursuant to the Rule 115 Decision of 26 February 2001. The statement of Witness DD statement was admitted pursuant to the Decision on Prosecution Motion to Admit Additional Evidence in Rebuttal to Additional Evidence Admitted under Rule 115,6 July 2001.

120 Appeal Transcript, 557-573; Josipovic Supplemental Document, paras 2-2.9; Josipovic Reply, paras 2.1-2.36.

121 Appeal Transcript, 560; Josipović Supplemental Document, para. 2.5; see also Vlatko Kupreškić Supplemental Document, para; 8.

122 Josipović Supplemental Document, para. 2.9(iii).

123 Josipović Supplemental Document, para. 2.7.

124 Prosecution Response, para. 4.87.

125 Prosecution Response, para. 4.93; see also Prosecution Response, para. 4.90.

126 Josipović Reply, paras 2.1-2.36.

127 Regarding England and Wales, see R. v Stafford and Luvaglio, 58 Cr. App. Rep., 256-257 (1973); R. v McNamee, 1998 CA. 17 December 1998; R. v McLoughlin, CA. 30 November 1999; R. v Clegg, N. Ir. L. R. 27 February 1998. Regarding Canada see R. v Palmer [1980] S.C.R. 759 at 760 (“if believed could reasonably… be expected to have affected the result“); R. v McMartin [1964] S.C.R. 464 at 493 (“the proposed evidence is of sufficient strength that it might reasonably affect the.verdict of the jury“). Regarding Australia, see Australian Legal Monthly Digest § 7105 (2000) (“would have produced a significant possibility that the verdict would have been one of acquittal“). Regarding New Zealand, see R. v Dougherty [1966] 3 NZLR 257 at 265 (“might reasonably have led the jury to return different verdicts“). Finally, regarding South Africa, see S v Ndweni & Ors. 1999 (4) SA 877 (A) at 880 (“materially relevant“).

128 Trial Judgement, para. 782. The Trial Chamber further found that the attack on Ahmići was part of a broader Bosnian Croat campaign to forcibly expel the Bosnian Muslims from the entire Lasva Valley region, and that the Kupreškić brothers knew this was the context in which their acts occurred. See Trial Judgement, paras. 783 and 790.

129 Trial Judgement, paras. 421 - 422.

130 Trial Judgement, para. 430.

131 Trial Judgement, para. 334. The Trial Chamber also found that” able-bodied Croatian inhabitants of Ahmići provided assistance and support in various forms.” The Trial Chamber described the “Jokers” or “Jokeri” as a special anti-terrorist unit of the Croatian military police. See Trial Judgement, para. 132.

132 Trial Judgement, paras 421, 773 and 789.

133 Trial Judgement, paras 422 and 773.

134 Trial Judgement, paras. 423 and 773.

135 Trial Judgement, para. 426.

136 Trial Judgement, para. 430.

137 Trial Judgement, paras 425-426 and 775-776.

138 Trial Judgement, para. 407.

139 Trial Judgement, para 428.

140 Trial Transcript, 3-4 (recording the motion hearing of 10 March 1998).

141 Trial Transcript, 33 (recording the motion hearing of 10 March 1998). At the time, the Trial Chamber stated that a subsequent decision setting out the reasons would be issued at a later date. The Appeals Chamber has, however, been unable to locate any such decision on the record.

142 Prosecution Pre-Trial Brief, para. 26.

143 Naser Ahmić, his wife Zehrudina Ahmic and their two children, Elvis and Sejad.

144 Trial Judgement, paras 388,405-407.

145 Trial Judgement, paras 426 and 779.

146 Trial Judgement, paras 786 and 793. The Trial Chamber also rejected the evidence of Witness C who testified with regard to Zoran and Mirjan Kupreškićs presence as HVO members in the Ahmići village on 16 April 1993, see Trial Judgement, para. 774.

147 Furundžja Appeal Judgement, para. 147. See also Krnojelac Decision of 24 February 1999, paras 7 and 12; Krnojelac Decision 135of 11 February 2000, paras 17 and 18; and Brdjanin Decision of 20 February 2001, para.18.

148 See generally KrnojelaC Decision of 11 February 2000, para. 18; Brdjanin Decision of 20 February 2001, para. 22.

149 Kvoćka Decision of 12 April 1999, para 17; Brdjanin Decision of 26 June 2001, para. 61.

150 See Prosecutor v Erdemovć, Case No.: IT-96-22, Indictment, 22 May 1996, para. 12 (identifying the victims as “hundreds of 131Bosnian Muslim male civilians“).

151 Kvoćka Decision of 12 April 1999, para. 23.

152 Krnojelac Decision of 24 February 1999, para. 40.

153 Krnojelac Decision of 11 February 2000, para. 23.

154 Organised detention listed in paragraph 21 of the Amended Indictment is excluded because the Prosecution did not-present any 131evidence of such criminal conduct and, accordingly, the Trial Chamber did not address any such allegations in the Trial Judgement.

155 Appeal Transcript, 861 -862.

156 The allegations relating to four of those murders were not upheld at trial.

157 This is possible when the particular act took place within the context of a widespread or systematic attack directed against a civilian 131population (occurring during an armed conflict) and when the accused knew of this wider context.

158 Brdjanin Decision of 26 June 2001, para. 61.

159 Trial Transcript, 1696-1697.

160 Although the Trial Chamber relied upon some peripheral evidence, in addition to the evidence of Witness H, in support of the persecution charge, it is insufficient to sustain the persecution charge. See infra paras. 228 et seq.

161 Prosecution Pre-Trial Brief, para. 27; Trial Transcript, 1696-1697.

162 Trial Transcript, 1696.

163 Trial Transcript, 1696-1697.

164 Trial Transcript, 1697-1698.

165 Trial Transcript, 1700.

166 Trial Transcript, 12709.

167 Trial Transcript, 12710-12711.

168 Trial Transcript, 12710.

169 Trial Transcript, 12712.

170 Emphasis added.

171 See the further discussion of this issue infra paras 306-326.

172 Trial Judgement, para. 811. The Appeals Chamber assumes that “the principle set out above” is the principle of legality discussed in para. 626 of the Trial Judgement.

173 Appeal Transcript, 862-863.

174 Appeal Transcript, 838-839, 862.

175 Prosecution Pre-Trial Brief, para. 23.

176 Prosecution Pre-Trial Brief, para. 27.

177 Prosecution Pre-Trial Brief, para. 23.

178 Prosecution Pre-Trial Brief, para. 27.

179 Trial Transcript, 96-127.

180 Appeal Transcript, 863.

181 The Trial Chamber's Order for the Protection of Victims and Witnesses, 9 July 1998; see also Prosecution Response, para. 11.20.

182 Order for the Protection of Victims and Witnesses, 9 July 1998, 2.

183 Prosecutor's Request for Additional Time to Disclose the Statement of One Witness, 7 July 1998 (Ex Pane and Under Seal).

184 The latter allegation was not upheld because of insufficient evidence.

185 Decision on Defence Challenges to Form of the Indictment, 15 May 1998, 2.

186 The Trial Chamber's finding that the two Defendant's provided local knowledge and the use of their houses as bases for the attacking forces is considered infra paras 233-241.

187 Zoran Kupreškić Appeal Brief, paras. 37 et seq. and 67 et seq.; Zoran Kupreškić Supplemental Document, 17 et seq.; Mirjan 180Kupreškić Appeal Brief, 76 et seq.; Mirjan Kupreškić Supplemental Document, 3 et seq.; Appeal Transcript, 654-656, 677-682, 685-689,693-701,703-707.

188 See generally, Trial Transcript, 1617-1695.

189 Trial Judgement, para. 425.

190 TadićAppeal Judgement, para. 64; Aleksovski Appeal Judgement, para. 63; Celebid Appeal Judgement, paras 434, 491. See also the discussion supra paras 28-30.

191 See the discussion supra paras 34-40.

192 Zoran KupreškićAppeal Brief, paras. 72-73; Zoran Kupreškić Supplemental Document, 18-19; Mirjan KupreškićAppeal Brief pp. 85-87; Mirjan Kupreškić Supplemental Document, 5-6; Appeal Transcript, 681-682,694-695.

193 The defence refers specifically to the evidence of Witness KL (who was in the house next door to Witness H's house and said that it was dark and so the electric lights in his house were on at the time of the attack), Witness GG (she turned the lights on in the room at the commencement of the attack), Witness K (it was so dark that her husband was unable to find his trousers), Witness C (it was “pitch dark“), Witness ADA (it was dark at the time the attack commenced).

194 Mirjan Kupreškić Appeal Brief, 85-86; Appeal Transcript, 694-695.

195 Mirjan Kupreškić Appeal Brief, 91-92; Mirjan Kupreškić Supplemental Document, 7.

196 Prosecution Response, para. 12.60; Appeal Transcript 843-844. In particular, the Prosecution referred to Witness E (it was dawn when she awoke); Witness D (it was still dark when the shooting started but later when she ran out of her house there was light and the rain had started); Witness G (it was visible because some houses were burning); Milutin Vidović(at 5:15 a.m. the darkness was receding and dawn was breaking); and Zoran Kupreškić (dawn had broken at the time the shooting began).

197 Prosecution Response, para. 12.61.

198 See the discussion of Witness SA and her various statements, infra paras 164 et seq.

199 See the discussion of Witness KL and his various statements, infra paras 194-195.

200 See supra paras. 39.

201 Trial Judgement, para. 339 (c).

201 See supra paras. 32 and 39.

202 Witness H testified that she saw Vlatko Kupreškić near her home as she was fleeing on the morning of 16 April 2001. See infra paras. 297-298.

203 Trial Judgement, para. 403, (footnotes omitted).

204 Trial Judgement, para. 425.

205 Trial Transcript, 1729.

206 Zoran KupreškićAppeal Brief, paras 31 and 74; Mirjan Kupreškić Appeal Brief, 96-97; Appeal Transcript, 697-698.

207 Prosecution Response, para. 12.51.

208 Prosecution Response, para. 12.50.

209 See, e.g., CelebiâAppeal Judgement, paras. 497.

210 Trial Transcript, 9861 -9862. Professor Wagenaar is an experimental psychologist. He was called by the defence as an expert witness

211 on the question of identification evidence in criminal trials. He has published more than 150 articles, many of them dealing with problems of human perception and memory. See Trial Transcript, 9841-9842.

212 Exhibit D 1/2.

213 See the discussion of these inconsistencies infra paras. 155-163.

214 Trial Transcript, 1703-1705, 1730-1731.

215 Trial Transcript, 2067-2068.

216 Trial Transcript, 8979.

217 Trial Transcript, 8980.

218 Trial Transcript, 8984-8986,9046.

219 Trial Transcript, 8988-8989.

220 Trial Transcript, 9034-9036.

221 Trial Transcript, 9039, 9043-9044 and 9051 -9052.

222 Trial Transcript, 8992-8994.

223 Trial Transcript, 8992.

224 Prosecution Closing Brief, para. 5.40.

225 Prosecution Closing Statement, Trial Transcript, 12642.

226 Trial Judgement, para. 402 and footnote 518.

227 Trial Judgement, para. 425.

228 Zoran Kupreškić Appeal Brief, para. 68; Mirjan Kupreškić Appeal Brief pp. 77-78;Appeal Transcript, 698.

229 Prosecution Response, para. 12.11.

230 Trial Judgement, para. 403.

231 Trial Transcript, 1621.

232 Trial Transcript, 1749.

233 Trial Transcript, 1749.

234 Trial Transcript, 1719.

235 Exhibit D 1/2 (the December 1993 Statement).

236 Trial Transcript, 1720. Although Witness H denied that she had made the December 1993 Statement, she accepted that aspects of the statement were correct.

237 Trial Transcript, 1180 and 11183 (explaining that Zoran Kupreškić was employed in the Slobodan Princip Seljo factory near Vitez from May 1983)and 11512 (explaining that Mirjan Kupreškić worked in the Sutra store); Trial Transcript, 11559 (referring to Mirjan Kupreškić's work in the store). See also Mirjan Kupreškić Closing Brief, 68; Trial Transcript, 12788 (the closing argument of counsel for Zoran and Mirjan Kupreškić that Witness H's claim to know the Defendants well was called into question as a result of her erroneous claim that Zoran worked in a store).

238 Trial Judgement, para. 370.

239 Trial Judgement, para. 371.

240 Mirjan Kupreškić Appeal Brief, 89-90; Zoran Kupreškić Appeal Brief, para. 70; Appeal Transcript, 679.

241 Prosecution Response, paras 12.69-12.72.

242 Mirjan Kupreškić Appeal Brief, 90.

243 Prosecution Response, para. 12.7.

244 Trial Transcript, 1642-1643.

245 Trial Transcript, 1645-1646.

246 Trial Transcript, 1758.

247 Trial Transcript, 1759-1760.

248 Trial Transcript, 1760.

249 Zoran Kupreškić Appeal Brief, para 68; Mirjan Kupreškić Appeal Brief, pp. 78-85; Appeal Transcript, 698.

250 Trial Transcript, 1711.

251 Prosecution Response, paras. 12.52-12.57; Appeal Transcript, 841.

252 Trial Judgement, para. 402.

253 See, e.g., Cklebia Appeals Judgement, para. 497.

254 See the discussion infra para. 186.

255 Although there was no English translation of the December 1993 Statement on the trial record, the Appeals Chamber obtained an official translation of this document in order to consider the impact of the alleged inconsistencies on Witness H's credibility.

256 The December 1993 Statement specifies that Witness H looked out the window, but Witness H denied this during her testimony before the Trial Chamber. Trial Transcript, 1733.

257 According to the December 1993 Statement, Witness H recalled that there were nine attackers in and around her, house, including two in front of the garage. At trial, Witness H referred to only five and made no mention of any soldiers in front of the garage. Trial Transcript, 1647.

258 In her testimony Witness H said that she sat down on the door-step to put on her sneakers before she left the house. TrialTranscript 1654. By contrast, in her December 1993 Statement, Witness H said she simply walked out of the house.

259 Trial Transcript, 1641 and 1644.

260 Trial Transcript, 1657-1659.

261 Witness H's two siblings were also present but were too young to testify about the events.

262 Exhibit C 1.

263 Exhibit C 2.

264 Exhibit C 3.

265 Exhibit C 4.

266 Exhibit C 5.

267 Trial Transcript, 1569.

268 Trial Transcript, 1698-1699.

269 Trial Transcript, 1847.

270 Trial Transcript, 1854-1857, and 1859-1861.

271 Trial Transcript, 1857-1858.

272 Trial Transcript, 1861.

273 273Trial Transcript, 1879-1881.

274 Trial Transcript, 1881-1882.

275 Trial Transcript, 1970-1971.

276 Trial Transcript, 2429-2430.

277 See Witness Summons by the Chamber Pursuant to Rule 98 of the Rules of Procedure and Evidence, 30 September 1998.

278 Witness Summons by the Chamber Pursuant to Rule 98 of the Rules of Procedure and Evidence, 30 September 1998.

279 Trial Transcript, 3983-3984.

280 Trial Transcript, 3985-3987.

281 Trial Transcript, 3987-3990.

282 Trial Transcript, 3990-3991.

283 Trial Transcript, 4891 -4982.

284 On 11 January 1999, counsel for Zoran Kupreškić presented the joint opening statement for the Kupreškić brothers. Trial Transcript, 5026-5044.

285 Zoran Kupreškić Appeal Brief, paras 33 and 76; Appeal Transcript, 658 and 685.

286 Mirjan Kupreškić Appeal Brief, 59-61.

287 Prosecution Response, para. 12.41; Appeal Transcript, 846-847.

288 Prosecutor v Furundžja, Case No.: IT-95-17/1-T, Judgement, 10 December 1998, para. 109.

289 Prosecution Response, para. 12.39.

290 Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94 (B), 8 May 2001, para. 10 (stating ”… it is clear from the trial transcript that this witness could have been called during the course of the Kupreškić trial as part of the defence case, had the defence wished to call her. Furthermore, it is clear from the transcript that the defence did not object at the time to the Trial Chamber's decision not to call the witness, or even challenge it by way of appeal… the defence has no right to assume what a Chamber will or will not accept in making its findings; it must put forward its best case in the first instance. If the defence had wanted to emphasise a particular issue in relation to Witness SA during the trial, then it ought to have called Witness SA during the course of the defence case, or objected to the Trial Chamber's decision not to call Witness SA at the time. That failure cannot be rectified at the appeals stage.“)

291 Trial Transcript, 3693-3694.

292 Trial Transcript, 3694.

293 Trial Transcript, 3758-3759.

294 Trial Transcript, 1698-1699.

295 Mirjan Kupreškić Closing Brief, 55.

296 See the discussion supra paras 166-167.

297 Trial Judgement, para. 404.

298 Mirjan Kupreškić Appeal Brief, 61 -62.

299 Prosecution Response, para. 11.28.

300 Prosecution Response, para. 12.34.

301 Mirjan Kupreškić Appeal Brief, 65, 72-75; and Appeal Transcript 699-700.

302 Prosecution Response, para. 12.35.

303 Mirjan Kupreškić Appeal Brief, 72-75.

304 Trial Transcript, 1641-1645.

305 Appeal Transcript, 699.

306 See the discussion supra paras 159-161.

307 Trial Transcript, 1716.

308 Trial Transcript, 1717.

309 Trial Transcript, 1717.

310 Trial Transcript, 1717.

311 See e.g., Trial Transcript, 9858-9860 (testimony of Professor Wagenaar, the defence expert on the question of identification evidence, who testified that” [recognition is usually a process that happens very quickly. You see something. You say, “I know who that is.” Recognition is not something that is spread out over a month, so that first, you didn't know it; after several months, you know it. That process, very gradually, you start to realise what or whom you saw, is totally different from immediate perception. It is a construction. When you start to realise, you use all sorts of information to make the vague image that you.have in your head sharper, and at the end you know — “Ah, but now I know what that vague image in fact means.” But that's not perception; that is reconstruction, and reconstruction is very much influenced by the information you receive during that period.” The possibility that Witness H's evidence could have been influenced by the views of other family members is considered infra paras 191-201.

312 Prosecutor v Tadić, Case No.: IT-94-1-T, Opinion and Judgement, 7 May 1997, para. 240.

313 Mirjan Kupreškić Appeal Brief, 93-95; Zoran Kupreškić Appeal Brief, para. 67; Appeal Transcript, 657, 705-706.

314 Mirjan Kupreškić Appeal Brief, 93-94.

315 Mirjan Kupreškić Closing Brief, 73.

316 Prosecution Response, para. 12.83.

317 Prosecution Response, paras 12.89-12.90.

318 Trial Judgement, para. 399.

319 The various statements relating to Witness KL referred to in the Trial Judgement are as follows: 18-19 April 1993 (Witness KL was interviewed for a local television station and did not divulge the identity of the attackers); 22 April 1993 (Witness KL was interviewed by investigators and stated that he did not recognise the attackers because they were masked with caps and paint although he did refer to the fact that he noticed some of his neighbours, not including Zoran and Mirjan KupreSkic, moving around the village a few days prior to the attack); 7 May 1993 (Witness KL made a statement to a United Nations Centre for Human Rights officer and said that he knew his neighbours from the “first house down the road” were responsible but he did not state their names. Witness KL also said that he was in a different room when his family was killed); I October 1993 (Witness KL was interviewed by an investigating judge and claimed the figures “resembled” Zoran and Mirjan KupreSkic. Although the Trial Judgement refers to the date of this statement of 1 October 1998, a review of the transcript reveals that this is an error and that the correct date is 1 October 1993. See Trial Transcript, 2038—2039 and 2046).In February 1994, Witness KL definitely identified Zoran and Mirjan as perpetrators in the attack for the first time. See Trial Judgement, paras 393-394; 396-398; Trial Transcript, 2019-2047 and 2068-2097 (cross-examination of Witness KL on his prior statements).

320 Trial Transcript, 2041 (cross-examination of Witness KL regarding the 1 October 1993 statement).

321 Trial Transcript, 2105-2106.

322 Trial Transcript, 2073 (recording the cross-examination of Witness KL regarding the statement he made on 22 April 1993 in which he referred to the attackers wearing black caps with slits for their eyes); Trial Transcript, 2072 (cross-examination of Witness KL regarding the statement he made to the investigating judge on 1 October 1993).

323 Trial Transcript 1911 and 2072.

324 Trial Transcript, 1642 (stating that Zoran Kupreškićs face was painted with lines drawn with black shoe cream) and 1709 (specifying that all of the attackers had the same black lines on their faces).

325 Trial Transcript, 1716. This is confirmed in Witness SA's Second Statement and Third Statement where she expressly stated that Witness H told her that she recognised Zoran Kupreškić amongst the attackers.

326 Trial Transcript, 1713-1714.

327 Seethe discussion, supra paras 146-150.

328 As argued by Zoran Kupreškić, it is also somewhat at odds with the usual relationship dynamics existing within the patriarchal Bosnian Muslim community for a 13-year old girl to have influenced her 60-year old grandfather on such a significant matter rather than the reverse. See Trial Transcript, 657.

329 Zoran Kupreškić Appeal Brief, para. 73; Zoran Kupreškić Supplemental Document, 20-21; Mirjan Kupreškić Appeal Brief, 87-88, 101104; Mirjan Kupreškić Supplemental Document, 7; Appeal Transcript, 680-681, 703.

330 Prosecutor v Kunarac et ai, Case No.: IT-96-23-T and IT-96-23/1-T, Decision on Motion for Acquittal, 3 July 2000, para. 4.

331 KordicTtia] Judgement, para. 627.

332 KordicTrial Judgement, para. 630.

333 Decision on Motions to Admit Material Relating to Witness AT into Evidence Pursuant to Rule 115 and to Call Additional Witnesses, 29 May 2001, para. 17.

334 Trial Judgement, para. 333-334.

335 Mirjan Kupreškić Appeal Brief, 87-88; Mirjan Kupreškić Supplemental Document, 7-8; Appeal Transcript, 680-681,694,703-705.

336 Prosecution Response, paras 12.66-12.67.

337 Trial Transcript, 1642-1646, 1721 and 1723-1724. See the discussion, supra para. 152-153 (regarding the cross-examination ofWitness H on this point).

338 Many witnesses also saw soldiers in camouflage uniforms. See, e.g., Trial Judgement, para. 206 (Witness A); Trial Judgement, para. 209 (Witness C); Trial Judgement, para. 214 (Witness E); Trial Judgement, para. 220 (Witness G); Trial Judgement, para. 234 (recording Witness O's description of the “motley uniforms” of the soldiers); Trial Judgement, para. 215 (Witness F); Trial Judgement, para. 228 (Witness J); Trial Judgement, para. 237 (Witness Q); Trial Judgement, para. 248 (Witness W); Trial Judgement, para. 270 (Witness GG); Trial Judgement, para. 273 (Witness CA). Witnesses also saw soldiers with their faces painted with colours. See, e.g., Trial Transcript, 3255 (recording Witness X's observation that the soldiers wore green paint). Others saw soldiers with caps concealing all of the face with only small slits for the eyes, ears and nose. See, e.g., Trial Judgement, para. 214 (Witness E); Trial Judgement, para. 262 (Witness CC).

339 Trial Judgement, para. 222 (recording Witness G's description of the soldiers black uniforms); Trial Judgement, para. 206 (recording Witness A's statement that the soldiers’ faces were painted black); Trial Judgement, para. 214 (recording Witness E's statement that the soldiers’ faces were painted black); Trial Judgement, para. 215 (recording Witness Fs statement that the soldiers’ faces were painted black); Trial Judgement, para. 228 (recording Witness J's statement that the soldiers’ faces were painted black); Trial Judgement, para. 262 (recording Witness CC's statement that the soldiers’ faces were painted black); Trial Judgement, para. 270 (recording Witness GG's statement that the soldiers’ faces were painted black); Trial Judgement, para. 215 (recording Witness F's observation that the soldiers carried automatic weapons); Trial Judgement, para. 215 (recording Witness Fs observation that the soldiers carried rocket launchers); Trial Judgement, para. 255 (recording Witness Y's observations that the soldiers carried rocket launchers).

340 Prosecution Opening Statement, Trial Transcript, 114. Witness AT confirmed that members of the HVO military police, including him, were wearing camouflage uniforms during the attack. Trial Transcript, 27617. Although he was not specifically asked to confirm the colour of the uniforms worn by the Jokers, Witness ATs statements proceed on the assumption that it was common knowledge that the Jokers wore black uniforms. For example, during his cross-examination in the Kordic case, Witness AT was asked: “Well, he says that he saw you in the company of these 13 members of the Jokers, wearing a black uniform without any insignia, like the rest of the Jokers. Did you, during the month of April, wear a black uniform?” Witness AT replied that he had not. See Witness AT, Kordic Trial Transcript, 27682.

341 Trial Judgement, para. 132. See also Trial Judgement, para. 135.

342 Trial Transcript, 12136.

343 Kordić Trial Transcript, 27606. Although, at certain points in the English translation of his statements to the Prosecution, Witness AT referred to the Jokers being deployed to the “Kupreškić brothers’ house”, the Appeals Chamber does not consider that this gives rise to an implication that Zoran and Mirjan Kupreškić were involved in the organisation of the attack. Mirjan Kupreškić pointed out during the Appeal Hearing that the original B/C/S version of Witness AT's statement refers to the “Kupreškić houses“ and that the English translation was in error. Furthermore, the brothers lived in separate houses so that any reference to “the “Kupreškić brothers’ house” could not have been directed at them. See Appeal Transcript, 690-693. The Prosecution did not argue to the contrary. The reference to the “Kupreškić houses” appears to have been solely made by way of designating a strategic landmark for the attackers. See Witness AT Statement, 25 May 2000, 33. Accordingly, the Appeals Chamber does not, on the basis of this alone, draw any adverse inference about the Kupreški c brother's involvement in the preparations for the Ahmići attack. Refer to the further discussion infra paras 233-241 about the participation of the Defendants in the preparations for the attack.

344 Trial Judgement, para. 430.

345 The defence also referred to the expert testimony of Prosecution witness Brigadier Džambasovi c to the effect that the HVO was org anised on the basis of the territorial principle. See Trial Transcript, 12123.

346 Trial Judgement, para. 377.

347 Trial Judgement, para. 378.

348 Appeal Transcript, 850-851.

349 Exhibit D 38/2. See Prosecution Closing Brief, para. 4.27.

350 Trial Transcript, 12236-12240. The Trial Chamber referred to this exhibit in para. 284 of the Trial Judgement as part of the evidence adduced to show that the HVO had been placed on a “higher state of readiness” but did not consider whether it also showed that the Vitez Brigade had been deployed to villages other than Ahmici on the morning of 16 April 1993.

351 Witness AT Statement, 25 May 2000, 28. See also Kordic Trial Transcript, 27598-27599 and 27755-27756.

352 Prosecution Opening Statement, Trial Transcript 114. See the discussion supra para. 208.

353 Trial Judgement, para. 333. 354.

354 Trial Judgement, para. 334.

355 Witness AT Statement, 15 August 2000,11. To illustrate his point, Witness AT recounted how, in the early hours of 16 April 1993, as his group of military police were crouched in their positions waiting for the signal to descend upon the sleeping village of Ahmici, a young local man came up to them. One member of the group knew him and the young man offered to provide information about the layout of the village and then proceeded to accompany the group in their assault on the Bosnian Muslim homes that morning. Upon being asked whether there was a pattern of local individuals joining in the operation Witness AT said, “I wouldn't say there was a pattern, but there was some individuals who, on their own initiative, joined. Those who were braver, younger local people.“ KordićThal Transcript, 27620.

356 Kordić Trail Transcript, 27770.

357 See Trial Judgement, para. 258 (recounting that Witness Z saw Drago Josipovic, in the afternoon of 16 April 1993, in camouflage uniform, with an automatic rifle but without face paint, in the company of four other soldiers with rifles). See also Trial Judgement, para. 275 (recounting that Witness CA saw Drago Josipovic in camouflage uniform on the day of the attack); Trial Judgement, para. 480 (recounting that Witness EE saw Drago Josipovic wearing a camouflage uniform and camouflage cap during the attack on her house).

358 Although Witness KL also described them as being present during the attack on his house and attired in an identical manner to Witness H, the Trial Chamber rejected his evidence as incapable of belief. See the discussion supra para. 194. Similarly, Witness C gave evidence that the Kupreškić brothers were wearing camouflage uniforms and that their faces were not painted, but his evidence was also rejected by the Trial Chamber. See Trial Judgement, paras 405 and 427.

359 See the discussion, supra para. 198.

360 Witness KL and Witness C both purported to identify them, but the Trial Chamber rejected the evidence of both these witnesses as

inc apable of belief. See Trial Judgement, paras 397-399,424, and 427.

361 Prosecution Response, paras 12.63-12.64.

362 Aleksovski Appeal Judgement, para. 62. See the further discussion supra para. 33.

363 See the discussion supra paras 34-36.

364 Trial Judgement, para. 407.

365 Trial Judgement, para. 428.

366 See the further discussion of Witness JJ's evidence infra paras 228-232. On similar fact evidence, see the discussion infrapara. 321-323.

367 Trial Judgement, para. 425; see also Trial Judgement, para. 402.

368 Celebiâ Appeal Judgement, para. 498.

369 Prosecution Response, paras 12.104-12.119.

370 Prosecution Response, paras 12.112-12.119.

371 See the discussion supra paras 79 el seq.

372 Witness JJ, Trial Transcript, 12335-12336.

373 Trial Judgement, para. 412(k). See also Trial Transcript, 11514-11515 (stating that Witness JJ may have been thinking of 18 April 1993, at which time he was mobilised into the HVO, and was forced to dig a trench or, alternatively, events that took place in Zume where military policeman shot over the heads of people in order to scare them into going back home).

374 Trial Judgement, para. 428.

375 Zoran Kupreškic Appeal Brief, paras 82-92; 144-14; Appeal Transcript, 673-674.

376 Decision on the Motions of Appellants Vlatko Kupreškić, Drago Josipovic, Zoran Kupreškić and Mirjan Kupreškićo Admit Additional Evidence, 26 February 2001, para. 106. Zoran Kupreškić argues this footage shows that he was merely an observer at the ceremony dressed in civilian clothes and not a participant taking the oath dressed in camouflage uniform as Witness JJ had testified. See Appeal Transcript, 673.

377 Trial Judgement, para. 430.

378 The Trial Chamber's Findings that the Kupreškić brothers provided local knowledge and the use of their houses as a base for the

att acking troops is considered infra, paras 233-241.

379 Trial Judgement, para. 486.

380 Trial Judgement, para. 505.

381 The Appeals Chamber notes that the Prosecution has conceded this point stating that” [i]t is clear from a reading of the Judgement that the Trial Chamber did not consider this fact [Witness JJ's evidence] to be conclusive of the Appellant's guilt, but that it forms a component in the composition of evidence against the Appellant.” See Prosecution Response, para. 14.12.

382 Trial Judgement, para. 430.

383 Trial Judgement, paras 388 and 423.

384 Mirjan Kupreškić Appeal Brief, 135-137.

385 Zoran Kupreškić Supplemental Document, 10 and 16.

386 Prosecution Response, para. 21.12.

387 Trial Transcript, 3041; see also Trial Transcript, 3042.

388 Trial Transcript, 3045.

389 Trial Transcript, 3042.

390 Trial Transcript, 3085.

391 Trial Judgement, para. 231.

392 Kordić Trial Transcript, 27759.

393 Witness AT Statement, 25 May 2000, 14-15.

394 A similar issue arises in Vlatko Kupreškićs appeal against his conviction. See the further discussion of this issue, infra paras 295 (section on Vlatko Kupreškić).

395 The “Bungalow” was the headquarters of the Jokers. It was located in Nadioci and was between five and ten minutes from Ahmići by foot. See Trial Judgement, para. 134.

396 Witness AT Statement, 25 May 2000, 15. 397Witness AT Statement, 25 May 2000, 15.

398 Witness AT Statement, 25 May 2000, 15.

399 Zoran Kupreškić Appeal Brief, paras 7 and 46.

400 Trial Judgement, para. 780 and 790.

401 Trial Judgement, para. 379.

402 Trial Judgement, footnote 589.

403 See, e.g., CelebiâAppeal Judgement, paras 391, 414 and 427.

404 Trial Judgement, para. 804.

405 Trial Judgement, para. 772.

406 Exhibit AD 1/3; Exhibit AD 2/3.

407 Exhibit AD 3/3; Exhibit AD 4/3; Exhibit AD 5/3; Exhibit AD 6/3.

408 Exhibit AD 7/3; Exhibit AD 8/3; Exhibit AD 9/3.

409 Exhibit AD 10/3; Exhibit AD 11/3.

410 Rule 115 Decision of 11 April 2001, para. 30.

411 See Vlatko Kupreškić Supplemental Document, para. 11.

412 In adopting such an approach, account is taken of Rule 117(A) of the Rules, requiring the Appeals Chamber to pronounce the judgement on appeal on the basis of the record on appeal together with such additional evidence as has been presented. During the Appeal Hearing, counsel for Vlatko Kupreškićindicated that the second ground was to be considered as an alternative to the first ground of appeal. See Appeal Transcript, 924.

413 See the discussion supra para. 75.

414 Trial Judgement, para. 795-804.

415 Trial Transcript, 9396.

416 Trial Transcript, 11751.

417 Trial Transcript, 11751.

418 Trial Transcript, 11857.

419 Trial Transcript, 11858.

420 Trial Transcript, 11861.

421 Trial Transcript, 11863.

422 Trial Transcript, 11865.

423 Trial Transcript, 11865-11866.

424 Transcript of Evidentiary Hearing, 288-349.

425 Transcript of Evidentiary Hearing, 360-414.

426 MUP is an abbreviation for “Vitez Police force.“

427 Transcript of Evidentiary Hearing, 362.

428 Exhibit AD 14/3 (tendered by counsel for Vlatko Kupreškić during the evidentiary hearing and admitted into evidence by the Appeals Chamber). See Decision on the Admission of the Prosecution's Rule 92 bis Statements and the Exhibits Tendered at Evidentiary Hearing, 6 June 2001.

430 Exhibit AD 10/3.

431 Witness AT Statement, 15'August 2000, 23; see also Witness AT Statement, 25 May 2000, 4 (stating that he left the Vitez police station in October 1992).

432 Appeal Transcript, 609.

433 Vlatko Kupreškić Appeal Brief, para. 18.

434 Vlatko Kupreškić Appeal Brief, para. 17.

435 Prosecution Response, para. 29.23.

436 Prosecution Response, para. 29.30.

437 Appeal Transcript, 882.

438 Trial Judgement, para. 463.

439 Trial Judgement, para. 463.

440 Trial Judgement, para. 799.

441 Rule 115 Decision of 11 April 2001, para. 30.

442 Trial Transcript, 2946.

443 Vlatko Kupreškić Appeal Brief, para. 22 (a)-(f); Appeal Transcript, 629.

444 Trial Transcript, 2978.

445 Vlatko KupreškićAppeal Brief, para. 23; Appeal Transcript, 630.

446 Prosecution Response, para. 28.3.

447 Trial Transcript, 728-927.

448 Appeal Transcript, 628; Vlatko Kupreškić Appeal Brief, para. 41(k).

449 Vlatko KupreškićAppeal Brief, para. 41 (1).

450 Prosecution Response, para. 28.18.

451 Appeal Transcript, 884.

452 Trial Transcript, 778.

453 Trial Judgement, para. 135 and footnote 136.

454 Trial Transcript, 2336-2369.

455 Trial Transcript, 2432-2460.

456 Trial Transcript, 2608-2631.

457 Exhibit D 8/2.

458 Exhibit D 8/2, 19.

459 Vlatko Kupreškić Appeal Brief, para. 30.

460 Trial Transcript, 8594-8595.

461 He produced his HVO permit for his trip, his passport and a certificate from the city of Frankfurt.

462 Vlatko Kupreškić Appeal Brief, para. 40.

463 Trial Judgement, para. 466.

464 Trial Judgement, paras 438 to 441.

465 Trial Judgement, para. 464.

466 Trial Transcript, 1617-1766.

467 Trial Transcript, 1884-2128.

468 Trial Judgement, para. 470 (footnote omitted).

469 Trial Judgement, para. 424.

470 Trial Judgement, para. 399.

1 This expression was used in a similar context by the International Court of Justice in the Military and Paramilitary Activities case(Nicaragua v. The United States of America), Judgment of 27 June 1986, I.C.J. Reports 1986, paragraph 178.

2 See the pertinent remarks of the European Court of Human Rights in its judgment concerning preliminary objections on the Loizidou case, 25 February 1995, International Law Reports, vol. 106, p. 622 ff., espec. paragraphs 82-85.

3 Agreements concerning compulsory settlement of disputes in general seem to have been the main object of consideration. In his memorandum of 31 March 1976 explaining Part IV of the Single Negotiating Text (the first draft of the future Part XV of the Convention) President Amerasinghe, in examining article 3, the predecessor of article 282, mentions agreements in which parties “would assume the obligation to settle any dispute by resorting to arbitration or judicial settlement” (Third United Nations Conference on the Law of the Sea, Official Records, V, p. 123, italics supplied). The intervention in the general debate by the Japanese representative mentions agreements “between parties to a dispute whereby they had assumed the obligation to settle any given dispute by recourse to any particular method” (ibid., p. 27, italics supplied).

1 WT/DS108/RW, 20 August 2001.

2 United States Public Law 106-519, 114 Stat. 2423 (2000).

3 The recommendations and rulings of the DSB resulted from the adoption, by the DSB, of the Appellate Body Report in US —FSC, WT/DS 108/AB/R, adopted 20 March 2000 (the “original Appellate Body Report“). In this Report, we refer to the panel that considered the original complaint brought by the European Communities as the “original panel” and to its report as the “original panel report”.

4 Original Panel Report,US — FSC, WT/DS 108/R, adopted 20 March 2000, as modified by the Appellate Body Report,WT/DS 108/AB/R, para. 8.1.

5 Ibid., para. 8.8.

6 WT/DSB/M/90, paras. 6-7. See also Panel Report, para. 1.3.

7 Panel Report, para. 1.5.

8 Ibid., paras. 1.1-1.13.

9 WT/DS 108/16, 8 December 2000.

10 WT/DS108/19, 5 January 2001.

11 Panel Report, para. 9.1.

12 Ibid., para. 9.2.

13 WT/DS 108/21, 15 October 2001.

14 In its letter, the United States explained that, due to the delivery of the bacterium anthrax to the United States Congress, several buildings had been temporarily closed, including buildings housing the offices of United States Senate officials with jurisdiction over the issues arising in this appeal.

15 Pursuant to Rule 21(1) of the Working Procedures.

16 Pursuant to Rule 23(1) of the Working Procedures.

17 Pursuant to Rules 22 and 23(3) of the Working Procedures.

18 Pursuant to Rule 24 of the Working Procedures.

19 Pursuant to Rule 28(1) of the Working Procedures.

20 Pursuant to Rule 28(2) of the Working Procedures.

21 Appellate Body Report, supra, footnote 3, paras. 6-7.

22 Section 901 (a) IRC.

23 Section 1 relates to the short title of the ETI Act, while Section 4 sets forth a number of “technical and conforming” amendments.

24 Subpart C of part III of Subchapter N of chapter 1, consisting of Sections 921 -927 IRC.

25 Section 3 of the ETI Act, Section 943(e) IRC.

26 Under the ETI Act, the need to satisfy these three conditions is subject to a number of exceptions. We examine certain of these exceptions below, to the extent that they are pertinent to our analysis of the issues on appeal.

27 The detailed rules of the ETI measure provide that foreign trading gross receipts may be earned through (i) any sale, exchange, or other disposition of qualifying foreign trade property; (ii) any lease or rental of qualifying foreign trade property; (iii) any services which are related and subsidiary to (i) and (ii); (iv) for engineering or architectural services for construction projects located (or proposed for location) outside the United States; and (v) for the performance of managerial services for a person other than a related person in furtherance of activities under (i), (ii) or (iii). (Section 3 of the ETI Act, Section 942(a) IRC) We will generally refer to sale and lease transactions as a shorthand reference to the transactions described in (i) and (ii) of this footnote.

28 Section 3 of the ETI Act, Section 943(a)(l) IRC. Section 943(a)(3) and (4) IRC set forth specific exclusions from this general definition.

29 Section 3 of the ETI Act, Section 942(b) IRC.

30 The relevant activities are: (i) advertising and sales promotion; (ii) processing of customer orders and arranging for delivery; (iii) transportation outside the United States in connection with delivery to the customer; (iv) determination and transmittal of final invoice or statement of account or the receipt of payment; and (v) assumption of credit risk. A taxpayer will be treated as having satisfied the foreign economic process requirement when at least 50 percent of the total costs attributable to such activities is attributable to activities performed outside the United States, or, for at least two of these five categories of activity, when at least 85 percent of the total costs attributable to such category of activity is attributable to activities performed outside the United States. (Section 3 of the ETI Act, Section 942(b)(2)(A)(ii), (b)(2)(B) and (b)(3) IRC).

31 Foreign sales and leasing income is defined in Section 941 (c)( 1) IRC.

32 Foreign trading gross receipts are defined in Section 942(a) IRC.

33 Foreign trade income is defined in Section 941(b) IRC.

34 United States’ appellant's submission, para. 107.

35 United States'additional written memorandum, p. 1.

36 Ibid., p. 3.

37 Subject to the anti-abuse rules contained in Subpart F of the IRC. (United States’ additional written memorandum, p. 2)

38 United States’ appellant's submission, para. 142.

39 United States’ appellant's submission, para. 173.

40 Appellate Body Report, WTYDS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:1, 135.

41 United States’ appellant's submission, para. 253.

42 Ibid., para. 256.

43 Panel Report, WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by the Appellate Body Report, WT/DS139/AB/R, WT7DS142/AB/R.

44 Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001.

45 Panel Report, para. 8.23.

46 Panel Report, para. 8.25.

47 Appellate Body Report, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:11, 591.

48 European Communities’ first submission to the Panel, para. 119; Panel Report, p. A-23.

49 Ibid., para. 158;p.A-29.

50 Ibid., paras. 183-184; p. A-34.

51 Ibid., para. 246; p. A-44.

52 Done at Vienna, 23 May 1969,1155 U.N.T.S. 331; 8 International Legal Materials 679.

53 European Communities’ other appellant's submission, para. 4.

54 European Communities’ second submission to the Panel, para. 160; Panel Report, p. C-30.

55 European Communities’ response to Question 35 posed by the Panel, para. 101; Panel Report, p. F-17.

56 Panel Report, supra, footnote 43; Appellate Body Report, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000.

57 Panel Report, para. 8.96.

58 Panel Report, para. 8.43. (footnote omitted)

59 We observe that the United States does not appeal the Panel's finding, in paragraph 8.48 of the Panel Report, that the financial contribution it found to exist under Article l.l(a)(l)(ii) of the SCM Agreement confers a “benefit” within the meaning of Article 1.1 of that Agreement.

60 United States’ appellant's submission, para. 71. See also United States’ additional written memorandum, p. 4.

61 United States’ additional written memorandum, p. 2.

62 Appellate Body Report, WT/DS70/AB/RW, adopted 4 August 2000, para. 47.

63 Supra, footnote 3, para. 90.

64 Appellate Body Report, supra, footnote 3, para. 90.

65 Appellate Body Report, supra, footnote 3, para. 91.

66 We recognize that a Member may have several rules for taxing comparable income in different ways. For instance, one portion of a domestic corporation's foreign-source income may not be subject to tax in any circumstances; another portion of.such income may always be subject to tax; while a third portion may be subject to tax in some circumstances. In such a situation, the outcome of the dispute would depend on which aspect of the rules of taxation was challenged and on a detailed examination of the relationship between the different rules of taxation. The examination under Article 1.1 (a)( 1 )(ii) of the SCM Agreement must be sufficiently flexible to adjust to the complexities of a Member's domestic rules of taxation.

67 Section 943(e) IRC. Thus, although the ETI measure applies to foreign corporations, these corporations are deemed for these purposes to be United States corporations and not foreign corporations. In our discussion below, we treat these foreign corporations as United States corporations.

68 Section 942(a)(3) IRC. We have outlined the United States rules of taxation, including the ETI measure, in Section II of this Report.

69 Qualifying foreign trade property is defined in Section 943(a)(l) and (2) IRC, while Section 943(a)(3) and (4) identifies property that is excluded from the definition.

70 The transactions giving rise to income covered by the measure are described in Section 942(a)( 1) IRC. We recall that we refer to sale and lease transactions as a shorthand reference to the “sale, exchange or other disposition” of QFTP, and to the “lease or rental” of this property. See Section 942(a)(l)(A) and (B) IRC.

71 Section 114(e) IRC, read together with Section 942(a) IRC.

72 See infra, paras. 104 and 181 -183.

73 Panel Report, paras. 8.25-8.26.

74 We examine below the merits of the United States’ characterization of QFTI as “foreign-source income”, which the United States is entitled to exempt to avoid double taxation of this income, when we review the Panel's findings regarding footnote 59. See infra, paras. 121-186.

75 We recall that the measure applies to certain foreign corporations that elect to be treated as United States corporations. For the purpose of United States taxation, these corporations are deemed to be United States corporations, (supra, para. 93 and footnote 67 thereto) Thus we do not examine the United States’ fiscal treatment of the foreign-source income of foreign corporations including foreign subsidiaries of United States corporations — that do not elect to be treated as United States corporations. We do not, therefore, examine the rules of taxation for the foreign-source income of foreign subsidiaries of United States corporations. See United States’ appellant's submission, paras. 34-36.

76 Sections 861-865 IRC and 26CFR 1.861-1.865 provide rules to determine whether income of United States citizens and residents is from sources within or outside the United States.

77 Section 901(a) IRC. Such creditable foreign taxes are those listed in Sections 901(b), 902 and 960 IRC, but these tax credits are subject to the limitation set forth in Section 904. See also the applicable Federal Regulations in 26 CFR 1.901-1.902, 1.904 and 1.960.

78 Section 904(a) IRC. We understand this provision to mean that if foreign-source income makes up, for instance, 10 percent of the total taxable income, the amount of the tax credit cannot exceed 10 percent of the total tax due. The amount of the foreign-source income is determined by applying the source rules contained in Sections 861-865 IRC and 26 CFR 1.861-1.865.

79 See J. Isenbergh, International Taxation – U.S. Taxation of Foreign Persons and Foreign Income, 2nd ed., (Aspen Law & Business, 1999), Vol. II, para. 30:4, p. 55:2, who states “[t]his limitation [in Section 904(a)] seeks to confine the credit to the U.S. tax attributable to foreign source income.”

80 We mentioned earlier that, where a taxpayer elects to use the ETI measure, it must give up any tax credits it has obtained through taxation in a foreign State that is attributable to the income excluded from taxation. Accordingly, the measure will be beneficial to taxpayers where the amount of tax otherwise due on excluded QFTI is greater than the amount of tax credits which the taxpayer must give up in relation to the excluded QFTI. For instance, this calculus is likely to result in taxpayers electing to use the measure where: (a) the amount of income actually taxed in a foreign jurisdiction is less than the amount of excluded QFTI and (b) where the rate of taxation applied to income taxed in a foreign jurisdiction is lower than the United States rate of taxation that would "otherwise" be applied to the excluded QFTI.

81 European Communities' first submission to the Panel, paras. 104-120; Panel Report, pp. A-21-A-23. The European Communities also argued, in the alternative, that both the basic and the extended subsidies provided under the ETI Act are de facto export contingent. See European Communities' first submission to the Panel, paras. 131-145; Panel Report, pp. A-25-A-28; European Communities' response to Question 2 posed by the Panel, para. 6-11; Panel Report, p. F-3.

82 Panel Report, para. 8.75.

83 Panel Report, para. 8.60.

84 Ibid., para. 8.163. The European Communities filed a conditional appeal relating to the Panel’s failure to examine the “extended” subsidy, which we will come to below, (infra, paras. 253–255) 85United States’ appellant’s submission, paras. 164 and 169.

86 Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft (“Canada –Aircraft”), WT/DS70/AB/R, adopted 20 August 1999, paras. 162–180; Appellate Body Report, US – FSCsupra, footnote 3, paras. 96-121; Appellate Body Report, Canada –Autos, supra, footnote 56, paras. 95–117; Appellate Body Report, Canada – Aircraft (Article 21.5 – Brazil), supra, footnote 62, paras. 25–52. 87Appellate Body Report, supra, footnote 86, para. 166.

88 Appellate Body Report, supra, footnote 56, para. 100.

89 Although Section 943(a)(l)(A) IRC applies to property “manufactured, produced, grown, or extracted within or outside the UnitedStates”, we will refer to property “produced” within or outside the United States as a shorthand reference.

90 Section 943(a)(l)(B) IRC. (emphasis added)

91 United States’ response to questioning at the oral hearing.

92 Under the FSC measure, qualifying property had to be produced in the United States by a person other than an FSC, and it had to be held primarily for sale, lease, or rental, in the ordinary course of trade or business by, or to, an FSC for direct use, consumption, or disposition outside the United States. (Section 927(a)(1)(A) and (B), now repealed by the ETI Act) Under Section 943(a)(1)(B), inserted into the IRC by Section 3 of the ETI Act, a United States citizen or resident producing property within the United States must hold this property “primarily for sale, lease, or rental, in the ordinary course of trade or business outside the United States.” Thus, the only difference between the provisions at issue in the original proceedings and those at issue in these proceedings, relating to property produced in the United States, is that the FSC measure provided that the FSC could not produce the qualifying property, but that it had to be the seller or lessor, whereas the ETI measure does not state who must produce the qualifying property or who must sell it. This difference between the provisions has no bearing on the export contingency of the respective measures.

93 We recall that the European Communities makes a conditional appeal of the Panel's exercise of judicial economy with respect to its claim concerning property produced outside the United States. We address this conditional appeal below. See infra, paras. 253-255.

94 Supra, paras. 108-109.

95 We note that the European Communities makes a conditional appeal concerning the Panel's exercise of judicial economy in relation to this issue. See infra, paras. 253-255.

96 Panel Report, para. 8.90 and footnote 188 thereto, (footnote omitted)

97 Ibid., para. 8.93.

98 Ibid., para. 8.95. (footnote omitted)

99 Ibid.

100 Ibid.

101 Panel Report, paras. 8.107 and 9.1(a).

102 United States’ appellant's submission, para. 207.

103 Ibid., para. 204.

104 Ibid., para. 218.

105 Ibid., paras. 187-188.

106 Ibid., para. 194. See also Panel Report, footnote 197 to para. 8.95.

107 United States’ appellant's submission, para. 209.

108 Appellate Body Report, United States —Measure Affecting Imports of Woven Wool Shirts and Blouses from India (” US — Wool Shirts and Blouses“), WT/DS33/AB/R and Corr. 1, adopted 23 May 1997, DSR 1997:1, 323, at 335.

109 Ibid., at 337.

110 Appellate Body Report, supra, footnote 40, para. 104.

111 Appellate Body Report, US —FSC, supra, footnote 3, para. 93. (emphasis omitted)

112 Appellate Body Report, supra, footnote 3, para. 101.

113 Shorter Oxford English Dictionary, C. T. Onions (ed.) (Guild Publishing, 1983), Vol. II, p. 2057.

114 Ibid., Vol. I, p. 788.

115 Panel Report, para. 8.93.

116 See Appellate Body Report, Japan — Taxes on Alcoholic Beverages (“Japan — Alcoholic Beverages II “), WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:1, 97, at 110; Appellate Body Report, Chile — Taxes on Alcoholic Beverages, WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, paras. 59-60; and Appellate Body Report, US — FSC, supra, footnote 3, para. 90.

117 Panel Report, para. 8.93.

118 Department of the Treasury, Internal Revenue Service, Publication 901 (Rev. April 2001), Cat. No. 46849F.

119 Two commonly used model tax conventions are the Organisation for Economic Co-operation and Development (“O.E.C.D.“) Model Tax Convention on Income and Capital (“O.E.C.D. Model Tax Convention“) and the United Nations Double Taxation Convention between Developed and Developing Countries (“U.N. Model Tax Convention“), which contain similar provisions. The majority of bilateral treaties adopt the principles of these two model tax conventions, with many also adopting their detailed provisions (See B. J. Arnold & M. J. Mclntyre, International Tax Primer (Kluwer Law International, 1995), p. 100 and A. H. Qureshi, The Public International Law of Taxation (Graham & Trotman, 1994), p. 371). According to the O.E.C.D., there are close to 350 treaties between O.E.C.D. Members and over 1500 treaties world-wide which are based on the O.E.C.D. Model Tax Convention (O.E.C.D. website, www.oecd.org; 2001). The member States of the Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela) adopted a model tax agreement among themselves, which is to be used when member States conclude bilateral taxation treaties with third States (Decision 40 of 8 November 1971 of the Andean Group, Annex II, Standard Agreement to Avoid Double Taxation between Member Countries and Other States Outside the Subregion (Convenio Tipo para evitar la doble tributacidn entre los Paises Miembros y otros Estados ajenos a la Subregion) (“Andean Community Model Tax Agreement“).

120 The member States of the Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela) adopted an agreement among themselves to address double taxation (Decision 40 of 8 November 1971 of the Andean Group approving the Agreement to Avoid Double Taxation between Member Countries (Convenio para evitar la doble tributacidn entre los Poises Miembros) ;“Andean Community Agreement“). (www.comunidadandina.org/normativa/dec/d040.htm and www.comunidadandina.org/ingles/treaties/dec/d040e.htm) This agreement entered into force on 1 January 1981. 11 member States of the Caribbean Community (Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago) also adopted an agreement on double taxation among themselves on 6 July 1994 (Agreement Among the Governments of the Member States of the Caribbean Community for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Profits or Gains and Capital Gains and for the Encouragement of Regional Trade and Investment) ;“Caricom Agreement“), (www.Caricom.org under “Information Services” and “Treaties and Protocols“)

121 We observe that, before the Panel, the United States provided examples of the source rules applied by Brazil, Canada, Chile, Malaysia, Panama, Saudi Arabia, Taiwan, the United Kingdom and the United States. The widely recognized principles of taxation appear to be reflected in these domestic rules of taxation. (United States’ second submission to the Panel, para. 62; Panel Report, p. C-69; Exhibits US-24-US-29 submitted by the United States to the Panel; United States’ response to Question 12 posed by the Panel, paras. 27-29; Panel Report, pp. F-38 and F-39)

122 For instance, some States will tax a non-resident only on business income generated by a permanent establishment on its territory. In that respect, we observe that the O.E.C.D. Model Tax Convention allows a State to impose tax on business profits generated by a non¬ resident through a “permanent establishment” situated on its .territory. Article 5.1 of the Convention defines a “permanent establishment” as a “fixed place of business through which the business of an enterprise is wholly or partly carried on.” This definition requires a relatively strong link with the “foreign” State before it may tax a non-resident. However, Article 5.5 of the Convention adds that a permanent establishment may exist where a person, other than die taxpayer, “habitually exercises … an authority to conclude contracts” for the taxpayer. The O.E.C.D. Model Tax Convention itself, therefore, admits of differing standards to determine whether business income was generated by activities linked to the territory of a “foreign” State. However, we also observe that some States will tax a non-resident on the basis of activities of a less permanent character provided there is nonetheless a sufficient connection between the activities generating the income and the territory of the taxing State. The United States, for instance, taxes the business income of non-residents if the income is “effectively connected” with a trade or business conducted in the United States. (Sections 871(b) and 882(b) IRC) The United States cites examples of other States which it considers tax non-residents on income generated through a trade or business conducted in that State, without the creation of a permanent establishment (see supra, footnote 121).

123 We note that the Andean Community Agreement, the Caricom Agreement, and the Andean Community Model Tax Agreement and the O.E.C.D. and U.N. Model Tax Conventions describe a variety of situations in which a “foreign” State is entitled to tax a non-resident on income generated through activities which are linked to that State. The nature of the links required depends on the nature of the income. Articles 7 of the Andean Community Agreement and of the Andean Community Model Tax Agreement provide that business profits are taxable only in the State where these profits are “obtained” through business activities conducted in that State. Article 8 of the Caricom Agreement states that business profits are taxable only in the State where the business activities generating these profits are “undertaken”. Thus, a non-resident will be taxed on business profits generated through activities undertaken in a “foreign” State. Articles 7 of the O.E.C.D. and U.N. Model Tax Conventions provide that “business” income of a non-resident, generated through a “permanent establishment”, may be taxed in the State where the permanent establishment is located see supra, footnote 122). Articles 5 and 12 of the Andean Community Agreement and the Andean Community Model Tax Agreement, Articles 6 and 7.2(i) of the Caricom Agreement, and Articles 6 and 13 of the O.E.C.D. and U.N. Model Tax Conventions state that income, or capital gains, derived by a non-resident from immovable property, or from its alienation, are taxable in the “foreign” State where the property is situated. Articles 8 of the O.E.C.D. and U.N. Model Tax Conventions provide that income generated from the “operation of ships or aircraft in international traffic” may be taxed in a “foreign” State if the “place of effective management” of the non-resident enterprise is situated in that State. Article 8 of the Andean Community Agreement and Article 9.1 of the Caricom Agreement allow only the State of residence of the enterprise to tax such “international” income. However, Article 9.2 of the Caricom Agreement provides that where the transport activities take place exclusively within the territory of one of the member States, that State shall tax the income, irrespective of the place of residence of the enterprise. Article 8 of the Andean Community Model Tax Agreement is similar to Article 8 of the Andean Community Agreement, while the alternative Article 8 of the Andean Community Model Tax Agreement, allows a State to tax transport activities that take place in that State, irrespective of the place of residence of the enterprise. Articles 13 of the Andean Community Agreement and of the Andean Community Model Tax Agreement, and Articles 15 of the Caricom Agreement and of the O.E.C.D. and U.N. Model Tax Conventions, indicate that the employment income of a non-resident may be taxed in a “foreign” State if the services are rendered or if the employment is exercised in that State. According to Article 17 of the Caricom Agreement, and Articles 16 of the O.E.C.D. and U.N. Model Tax Conventions, the fees of a non-resident director may be taxed in the “foreign” State if the corporation of which the person is a director is resident in that State. Under Article 14 of the Andean Community Agreement and of the Andean Community Model Tax Agreement, professional services provided by an enterprise may be taxed in a “foreign” State if the services are performed there. Under Articles 16 of the Andean Community Agreement and of the Andean Community Model Tax Agreement, Article 18 of the Caricom Agreement, and Articles 17 of the O.E.C.D. and U.N. Model Tax Conventions, the income of an entertainer derived from “activities” exercised in a “foreign” State may be taxed in that State. Thus, in the case of each type of income addressed by these agreements and conventions, a “foreign” State may tax a non-resident only on income which is generated by activities which are linked to or connected with the territory of that State.

124 United States’ additional written memorandum, p. 2.

125 Ibid.

126 We note that Isenbergh states that “the concept of source is not infinitely malleable. If only for practical reasons, some connection with a country is required to justify treating income as being from sources within that country.” (emphasis added) Isenbergh also states that “commercial or industrial countries regard income as deriving its source from specific economic activity conducted within them, whereas many developing countries … focus on whose pocket income is paid from.” (emphasis added) (J. Isenbergh, supra, footnote 79, Vol. I, para. 5.1, p. 5:2)

127 See, for” instance, Articles 23A of the O.E.C.D. and U.N. Model Tax Conventions. Among bilateral tax treaties, See, for instance, Article 22(l)(a) of the Agreement between the Federal Republic of Germany and the Islamic Republic of Pakistan for Avoidance of Double Taxation in the Area of Taxes on Income (Abkommen zwischen der Bundesrepublik Deutschland und der Islamischen Republik Pakistan zur Vermeidung der Doppelbesteuerung aufdem Gebiet der Steuern vom Einkommen), 14 July 1994, Bundesteuerblatt 1995 I p. 617, Bundesgesetzblatt 1995 II p. 836; Article 22(2)(a) of the Double Taxation Agreement between Mauritius and Madagascar ;Convention entre le Gouvemement de la Re∼publique de Maurice et le Gouvernement de la Ripublique de Madagascar tendant a iviter les doubles impositions et la prevention de I'Evasion fiscale en matiere d'impdts sur le revenu), 30 August 1994; and Article 24(b)(l) of the Double Taxation Agreement between the Republic of France and the United Kingdom (Convention entre la France et le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord tendant a iviter les doubles impositions et a privenir VEvasion fiscale en matiere d'impdts sur les revenus), 22 May 1968, Journal Officiel de la Ripublique franqaise, 24 November 1969, p. 11476, as amended. See also A. H. Qureshi, supra, footnote 119, p. 370; B. J. Arnold & M. J. Mclntyre, supra, footnote 119, pp. 40-43; J. Schuch, “The Methods for the Elimination of Double Taxation in a Multilateral Tax Treaty”, in M. Lang et al. (eds.), Multilateral Tax Treaties, New Developments in International Tax Law (Kluwer Law International and Lindeverlagwien, 1998), pp. 129-152; and M. Pires, International Juridical Double Taxation of Income (Kluwer Law and Taxation, 1989), pp. 173-184.

128 Panel Report, para. 8.95; United States’ appellant's submission, paras. 216-220.

129 United States’ appellant's submission, para. 194, quoting the United States’ Senate Report on the FSC Repeal and Extraterritorial Income Exclusion Act (“Senate Report“), S. Rep. No. 106-416 (2000), Exhibit US-2 submitted by the United States to the Panel, pp. 2 and 6; United States’ House of Representatives Report on the FSC and Repeal and Extraterritorial Income Exclusion Act (“House Report“), H.R. Rep. No. 106-845 (2000), Exhibit US-3 submitted by the United States to the Panel, pp. 10 and 13.

130 Panel Report, footnote 197 to para. 8.95 quoting House Report, p. 19.

131 See infra, paras. 175-177, where we address the exception to this requirement in Section 942(c)(l) IRC.

132 Sections 942(b)(2)(A)(ii) and 942(b)(3) IRC. As an alternative, the foreign economic process requirement may be satisfied where the costs attributable to activities performed outside the United States account for at least 85 percent of the costs in two of the five categories mentioned in paragraph 152. See Section 942(b)(2)(B) IRC.

133 We note that Isenbergh states that, in the case of sale of goods by a producer, the income generated by the sales transaction is attributable to “easily distinguishable activities” which are “often combined”, namely “production and sale” activities. Isenbergh indicates that in an international sales transaction, these production and sales activities may take place “in different countries.” These activities, therefore, generate income that has different sources which are “compounded” unless the income from the different sources is separated. Isenbergh states that “ideally” the different “elements of the transaction” would be “disengaged” using arm's length pricing rules. The manufacturer would be treated as if it had sold the goods to an independent distributor at arm's length prices, who in turn resold the goods. This would “dissect” the transaction on the basis of the place where the different activities occurred. (J. Isenbergh, supra, footnote 79, Vol. I, para. 10.9, p. 10:16)

134 Section 941(a)(l)(C) IRC.

135 Section 941(a)(l)(B) IRC. We note that, under Section 941(a)(l)(A) IRC, QFTI may be 30 percent of the “foreign sales and leasing income” of the taxpayer. We will examine this formula below. See infra, paras. 172-178.

136 At the oral hearing, the United States referred to the formulae for calculating the amount of QFTI as “rules of thumb.“

137 House Report, p. 20. The figures used in these examples are also based on the example given in the United States’ House Report.

138 United States’ response to questioning at the oral hearing.

139 The United States confirmed our understanding at the oral hearing.

140 See supra, para. 25, for a description of the formulae used to calculate the amount of QFTI.

141 Where the taxpayer elects to use the 1.2 percent rule to calculate the tax exemption with respect to any transaction, Section 941 (a)(3) IRC confines the exemption to the income earned in that single transaction. Any income earned in any other transaction, relating to the same property, cannot benefit from an exemption, even in the case of a second transaction between related parties. This provision, therefore, effectively excludes the application of the deeming rule for related parties in Section 942(b)(4) IRC, which allows income from more than one transaction to be included in the calculation of QFTI. See supra, paras. 159 and 163.

142 See supra, paras. 25 and 156.

143 See supra, para. 159.

144 We acknowledge that, for certain purposes, related parties may be treated as a single economy entity. Yet, the application of the deeming rule here adds another situation where the ETI measure misallocates domestic- and foreign-source income.

145 This method of determining FSLI does not apply to income derived from the “lease or rental” of QFTP. We examine below the calculation of FSLI in transactions involving the “lease or rental” of QFTP. See infra, paras. 170-174.

146 We note that under Section 941(c)(3)(B) IRC, only “directly allocable expenses” are to be “taken in account in computing foreign trade income for purposes of FSLI. (emphasis added)

147 Senate Report, p. 10; House Report p. 2 (emphasis added)

148 Section 941 (c)( 1 )(B) IRC.

149 See supra, paras. 155 and 166.

150 Senate Report, p. 11; House Report, p. 24.

151 We note that Isenbergh considers that the use of arm's length pricing is an appropriate method for separating manufacturing income from sales income. (J. Isenbergh, supra, footnote 79, Vol. I, para. 10.9, p. 10:16) See also supra, footnote 133.

152 We note that a taxpayer with no more than $5,000,000 of declared foreign trading gross receipts may have other gross receipts which are not declared as foreign trading gross receipts.

153 Clearly, where the transaction involves the production of QFTP outside the United States, there would be other foreign links than the use outside the United States. We deal here with the United States’ argument as it relates to property produced within the United States.

154 Senate Report, p. 19; House Report, p. 33.

155 26CFR1.924(a)-lT-(d).

156 See supra, para. 100.

157 We recall that, under Section 114(d) IRC, a taxpayer gives up tax credits attributable to income excluded from taxation under the ETI measure.

158 See supra, para. 104 and footnote 80 thereto.

159 See supra, para. 170, examining the rule that, where QFTI is calculated as 30 percent of FSLI, FSLI is the income “properly allocable“ to certain foreign activities, other than in the case of “lease or rental” income.

160 See supra, paras. 175-177, examining the exemption granted to certain taxpayers without satisfaction of the foreign economic process requirement and, paras. 178-180, examining the exemption granted for service-related income where the services are performed in the United States.

161 See supra, paras. 156-168, examining the rules whereby QFTI may be calculated either as 1.2 percent of total foreign trading gross receipts or as 15 percent of total foreign trading income.

162 In addition, under the third formula for FSLI, there are circumstances where the ETI measure could grant a tax exemption for lease or rental income which includes domestic-source income. See supra, para. 173.

163 Panel Report, para. 8.122.

164 Panel Report, para. 8.116.

165 United States’ appellant's submission, paras. 247-248.

166 Appellate Body Report, US — FSC, supra, footnote 3, para. 138

167 Ibid., para. 139.

168 Appellate Body Report, US— FSC, supra, footnote 3, para. 140.

169 Ibid., paras. 141-142.

170 We note that the United States has not appealed any other aspect of the Panel's finding under Article 10.1 of the Agreement on Agriculture. In particular, the United States has not appealed the Panel's finding that it was appropriate to examine the European Communities’ primary claim under Article 10.1 of the Agreement on Agriculture, without first examining its alternative claim under Article 9.1 of that Agreement. (Panel Report, para. 8.112 and footnote 219 thereto) Nor has the United States appealed the Panel's finding that the measure is “applied in a manner which results in, or which threatens to lead to, circumvention of export subsidy commitments” within the meaning of Article 10.1. (Panel Report, paras. 8.117-8.120) We note that the United States did not contest either of these issues before the Panel. (Panel Report, para. 8.112 and footnote 219 thereto; Panel Report, para. 8.121; and United States' first submission to the Panel, paras. 220-221; Panel Report, p. A-100)

171 See supra, para. 21. See also infra, para. 201, for the text of Section 943(a)(l)(Q IRC of the fair market value rule.

172 Panel Report, para. 8.158.

173 Ibid., para. 8.135.

174 Ibid, para. 8.149.

175 Ibid, para. 8.158.

176 We refer to this provision as the “fair market value rule“; the Panel termed it the “foreign articles/labour limitation.“

177 Appellate Body Report, Japan —Alcoholic Beverages II, supra, footnote 116, at 109-110, quoting from Panel Report, United States —Section 337 of the Tariff Act of 1930, adopted 7 November 1989, BISD 36S/345, para. 5.10. We cited this statement in Appellate Body Report, European Communities — Measures Affecting Asbestos and Asbestos-Containing Products ;“EC — Asbestos “), WT/DS135/AB/R, adopted 5 April 2001, para. 97, a dispute that also involved Article III:4 of the GATT 1994.

178 Appellate Body Report, EC —Asbestos, supra, footnote 177, para. 98.

179 United States’ appellant's submission, paras. 254-256.

180 Article 1:1 of the GATS provides that “[t]his Agreement applies to measures by Members affecting trade in services.” (emphasis added)

181 Appellate Body Report, supra, footnote 47, para. 220. We made the same statement regarding the word “affecting” in Article 1:1 of the GATS in our Report in Canada —Autos, supra, footnote 56, para. 150.

182 See United States’ first submission to the Panel, para. 201; Panel Report,..pp. A-95-A-96. The United States confirmed our understanding of the fair market value rule in its response to questioning at the oral hearing.

183 Appellate Body Report, Korea —VariousMeasures on Beef, supra, footnote 44, para. 142.

184 Appellate Body Report, Japan —Alcoholic Beverages II, supra, footnote 116, at 110.

185 We recall that the tax exemption may be:. 1.2 percent of foreign trading gross receipts; 15 percent of foreign trade income; or 30 percent of foreign sales and leasing income. See supra, para. 25.

186 See supra, para. 201, for the text of the fair market value rule. See also Panel Report, para. 8.133.

187 We note that the European Communities provided the Panel with a list of circumstances, for illustrative purposes, where such a requirement to use like domestic products may arise. (Annex to the European Communities’ second submission to the Panel; Panel Report, pp. C-46-C-52)

188 Panel Report, para. 8.170.

189 Appellate Body Report, supra, footnote 3, para. 177(a).

190 Original Panel Report, supra, footnote 4, para. 8.8.

191 WT/DS108/11,2 October 2000. See ato WT/DSB/M/90, paras. 6-7.

192 Appellate Body Report, supra, footnote 86, para. 45.

193 Section 5(b)( 1) of the ETI Act.

194 Section 5(c)(l)(A)of the ETI Act.

195 See Section 5(c)(l)(B)(ii) of the ETI Act.

196 Panel Report, para. 8.169.

197 Appellate Body Report, Brazil —Aircraft (Article 21.5 — Canada), supra, footnote 86, para. 46.

198 Ibid., para. 45.

199 Panel Report, para. 6.1; European Communities’ first submission to the Panel, paras. 247-258 and 260; Panel Report, pp. A-44-A-45.

200 Panel Report, para. 6.2. (footnote omitted)

201 Ibid., para. 6.3, subpara.2.

202 Panel Report, para. 6.3, subpara. 11.

203 By way of background, we note that the European Communities has, as a third party in four unrelated proceedings under Article 21.5 of the DSU, requested an Article 21.5 panel to amend a rule in its working procedures similar to the contested portion of Rule 9 of the Working Procedures. Two of those panels denied the request by the European Communities. (Panel Report, Australia —Measures Affecting Importation of Salmon — Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted 20 March 2000, paras. 7.5-7.6; and Panel Report, Australia —Subsidies Provided to Producers and Exporters of Automotive Leather —Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW and Corr.l, adopted 11 February 2000, paras. 3.9-3.10) According to the United States, a similar decision refusing the request of the European Communities was taken by the panel in a third case, although such decision was not published as the parties ultimately reached a mutually acceptable solution. (Panel Report, United States —Anti- Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Korea —Recourse to Article 21.5 of the DSU by Korea, WT/DS99/RW, 7 November 2000; Decision of the panel concerning the EC request for access to the parties’ rebuttal submissions, 27 June 2000, reproduced in part in the United States’ first submission to the Panel, para. 236; Panel Report, p. A-103) One panel agreed to modify its working procedures to provide that the third parties in those proceedings were entitled to receive all written submissions submitted by the parties prior to the single substantive meeting of the panel. (Panel Report, Canada —Measures Affecting the Importation of Milk and the Exportation of Dairy Products —Recourse to Article 21.5 of the DSU by New Zealandandthe United States ;“Canada -Dairy (Article 21.5 —New Zealand and US)“), WT/DS103/RW, WT/DS113/RW, adopted 18 December 2001, as reversed by the Appellate Body Report, WT/DS103/AB/RW, WT/DS113/AB/RW, paras. 2.32-2.35) This is the first occasion on which this issue has been raised on appeal.

204 Article 21.5 of the DSU contemplates that panels will complete their work within 90 days, whereas Articles 12.6 and 12.8 of the DSU contemplate that panels will circulate their reports within six months.

205 Appellate Body Report, Argentina —Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items, WT/DS56/AB/R and Corr.l, adopted 22 April 1998, DSR 1998:111, 1003, para. 79.

206 Ibid.

207 Appellate Body Report, India —Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:1, 9, para. 92.

208 Appellate Body Report, United States —Anti-Dumping Act of 1916 (” US —1916 Act“), WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, para. 145.

209 Appellate Body Report, US —1916 Act, supra, footnote 208, para. 150. See also Appellate Body Report, EC-Hormones, supra, footnote 40, para. 154.

210 We note, in this regard, that paragraph 6 of Appendix 3 to the DSU also links the participatory rights of third parties to this step in the proceeding. It states that third parties “ shall be invited in writing to present their views during a session of the first substantive meeting of the panel.” (emphasis added)

211 We note, in that respect, that the DSU does not place any limits on the number of submissions which panels can request of the parties in advance of the first meeting.

212 Panel Report, para. 6.3, subpara. 5.

213 Ibid., para. 6.3, subpara. 9. (emphasis added)

214 Paragraph 12 of Appendix 3 to the DSU recognizes that the standard timetable for panels may be adjusted to allow for “additional meetings with the parties”, including a possible meeting at the stage of interim review.

215 Panel Report, supra, footnote 203, para. 2.34.

216 Panel Report, paras. 8.108, 8.162-8.163 and 8.171.

217 European Communities'other appellant's submission, para. 31.

218 Ibid., para. 30.

219 United States’ appellee's submission, para. 13.