159.  The Appeals Chamber recalls that persecution as a crime against humanity under Article 5(h) of the ICTY Statute is an act or omission which: (i) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion, or politics (mens rea).[1] In assessing whether speech may constitute an underlying act of persecution, the ICTR Appeals Chamber in the Nahimana et al. case held that “speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security of the members of the targeted group and therefore constitutes ‘actual discrimination’”.[2] It further held that the context in which the underlying act of persecution takes place is particularly important for the purpose of assessing its gravity.[3]

[…]

163.  […] The Appeals Chamber also considers that Šešelj’s speech denigrated the Croatians of Hrtkovci on the basis of their ethnicity, in violation of their right to respect for dignity as human beings. In the Appeals Chamber’s view, Šešelj’s speech rises to a level of gravity amounting to the actus reus of persecution as a crime against humanity. […].

729. […] The Appeals Chamber underscores that the desecration of Prime Minister Uwilingiyimana’s corpse constituted a profound assault on human dignity meriting unreserved condemnation under international law.[1] Such crimes strike at the core of national and human identity. However, the Appeals Chamber finds, Judge Pocar dissenting, that Bagosora was not charged on this basis, and thus cannot be held legally responsible for this act.

49. At the outset, the Appeals Chamber recalls that to enter a conviction for aiding and abetting murder by omission, at a minimum, all the basic elements of aiding and abetting must be fulfilled.[1] In this regard, the Appeals Chamber in Orić recalled that “omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act”.[2] The actus reus of aiding and abetting by omission will thus be fulfilled when it is established that the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime and had a substantial effect on the realisation of that crime.[3] The Appeals Chamber recalls that aiding and abetting by omission implicitly requires that the accused had the ability to act, such that there were means available to the accused to fulfil his duty.[4] Meanwhile, the required mens rea for aiding and abetting by omission is that “[t]he aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal”.[5] As the Appeals Chamber held in the  Simić case,

it is not necessary that the aider and abettor knows either the precise crime that was intended or the one that was, in the event, committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abetter.[6]

[…].

146. As Šljivančanin argues,[7] the Appeals Chamber has never set out the elements for a conviction for omission in detail.[8] In the Orić case, the Appeals Chamber considered the Trial Chamber’s findings in order to determine whether Atif Krdžić, Naser Orić’s subordinate, had been found responsible for aiding and abetting by omission.[9] It concluded that no such finding had been entered as the issue of whether Naser Orić’s subordinate had incurred criminal responsibility had not been resolved by the Trial Chamber.[10] In this context, with regard to the mode of liability of aiding and abetting by omission, the Appeals Chamber held that:

at a minimum, the offender’s conduct would have to meet the basic elements of aiding and abetting. Thus, his omission must be directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime (actus reus). The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal (mens rea).[11]

Accordingly, the Appeals Chamber in Orić acknowledged that the basic elements of aiding and abetting apply notwithstanding whether this form of liability is charged as “omission”. The mens rea and actus reus requirements for aiding and abetting by omission are the same as for aiding and abetting by a positive act.[12] The critical issue to be determined is whether, on the particular facts of a given case, it is established that the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime, and had a substantial effect on it. In particular, the question as to whether an omission constitutes “substantial assistance” to the perpetration of a crime requires a fact based enquiry.[13]

127. […] The actus reus need not serve as condition precedent for the crime and may occur before, during, or after the principal crime has been perpetrated.[1] The Appeals Chamber has also determined that the actus reus of aiding and abetting may be satisfied by a commander permitting the use of resources under his or her control, including personnel, to facilitate the perpetration of a crime.[2] […]

134. The Appeals Chamber observes that the question of whether a given act constitutes substantial assistance to a crime requires a fact-based inquiry. […] The Appeals Chamber, however, has already held that it is not required that the act of assistance serve as a condition precedent for the commission of the crime.[3] In making its findings, the Trial Chamber was aware of the more limited scope of assistance provided by the Bratunac Brigade in relation to other elements of the VRS and civilian authorities.[4] Nonetheless, the Trial Chamber described the contribution of the resources made available by Blagojević as “practical assistance” to the crimes which had a substantial effect on the commission of the crimes.[5] The Appeals Chamber recalls that, in a similar context, it reached the same conclusion in the Krstić Appeal Judgement.[6]

187. In the Blaškić Appeal Judgement, the Appeals Chamber considered whether the actus reus of aiding and abetting requires causation between the act of the accused and the act of the principal, or in other words, whether the contribution “must have a direct and important impact on the commission of the crime.”[7] The Appeals Chamber found that “proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required.”[8] However, the Appeals Chamber reiterated that one of the requirements for the actus reus of aiding and abetting is that the support of the aider and abettor have a substantial effect upon the perpetration of the crime.[9]

188. In reaching this conclusion, in the Blaškić Appeal Judgement the Appeals Chamber referenced the definition of aiding and abetting in the Vasiljević Appeal Judgement, which is identical to that set out in the Tadić Appeal Judgement, and which, in specifying that the assistance given by an aider and abettor must be specifically directed, also contrasted aiding and abetting liability with that of joint criminal enterprise.[10] However, in the Blaškić Appeal Judgement the Appeals Chamber also found that the Trial Chamber correctly held that the standard for the actus reus was that set out in the Furundžija Trial Judgement: “consist[ing] of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[11]

189. The Appeals Chamber observes that while the Tadić definition has not been explicitly departed from, specific direction has not always been included as an element of the actus reus of aiding and abetting.[12] This may be explained by the fact that such a finding will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime. The Appeals Chamber also considers that, to the extent specific direction forms an implicit part of the actus reus of aiding and abetting, where the accused knowingly participated in the commission of an offence and his or her participation substantially affected the commission of that offence, the fact that his or her participation amounted to no more than his or her “routine duties” will not exculpate the accused.

195. The Appeals Chamber rejects the proposition that independent initiative, power, or discretion must be shown in order for the actus reus of aiding and abetting to be established. It recalls its previous rejection of the contention that there exists a special requirement that a position of superior authority be established before liability for aiding and abetting under Article 7(1) of the Statute can be recognized.[13] The apparent implication of that argument was that a person lacking sufficient authority to be considered a superior or to be acting independently, rather than in the course of routine duties, would necessarily also lack the sufficient authority or capacity to make a significant contribution to the commission of the crime. The Appeals Chamber considers that such a determination is to be made on a case by case basis. In this sense, an accused’s position of authority and ability to exercise independent initiative constitute contextual factors that may go to proving the significance of the accused's assistance in the commission of the crime.

11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal.  It is not hard to see why.  Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights,[1] recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.”[2] This is a straightforward proposition:  given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation.  Nor should this right be taken lightly.  The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent,[3] to confront the witnesses against them,[4] to a speedy trial,[5] and even to demand a court-appointed attorney if they cannot afford one themselves.[6]  In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation,[7] an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.”[8] Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.

12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable.  In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”[9]  Recognizing this same basic contingency of the right, England,[10] Scotland,[11] Canada,[12] New Zealand,[13] and Australia[14] have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials.  Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person.[15] And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”[16]

13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case.  It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.  The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds.  It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence”[17] – a right that is found in the very same clause of the ICTY Statute as the right to self-representation.  Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.”  If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right  to self-representation any differently.

67. The determination of what constitutes a war crime is therefore dependent on the development of the laws and customs of war at the time when an act charged in an indictment was committed.  As was once noted, the laws of war “are not static, but by continual adaptation follow the needs of a changing world”.[1] There is no question that acts such as rape […], torture and outrages upon personal dignity are prohibited and regarded as criminal under the laws of war and that they were already regarded as such at the time relevant to these Indictments.

162. Contrary to the claims of the Appellant, the Appeals Chamber considers that the Trial Chamber was not obliged to define the specific acts which may constitute outrages upon personal dignity. Instead it properly presented the criteria which it used as a basis for measuring the humiliating or degrading character of an act or omission. The Trial Chamber, referring to the Aleksovski case, stated that the humiliation of the victim must be so intense that any reasonable person would be outraged.[1]  In coming to its conclusion, the Trial Chamber did not rely only on the victim’s purely subjective evaluation of the act to establish whether there had been an outrage upon personal dignity, but used objective criteria to determine when an act constitutes a crime of outrages upon personal dignity.

163. In explaining that outrages upon personal dignity are constituted by “any act or omission which would be generally considered to cause serious humiliation, degradation or otherwise be a serious attack on human dignity”,[2] the Trial Chamber correctly defined the objective threshold for an act to constitute an outrage upon personal dignity. It was not obliged to list the acts which constitute outrages upon personal dignity.  […]

338. [The Trial Chamber’s findings could be interpreted as suggesting that the] Trial Chamber believed that, as a legal matter, there could be no liability for unlawful confinement under Article 7(1) without superior responsibility under Article 7(3) being established. Such a legal interpretation is clearly incorrect, as it entwines two types of liability, liability under Article 7(1) and liability under Article 7(3). As emphasised by the Secretary-General’s Report,[1] the two liabilities are different in nature. Liability under Article 7(1) applies to direct perpetrators of crimes and to accomplices. Article 7(3) applies to persons exercising command or superior responsibility. As has already been acknowledged by the Appeals Chamber in another context, these principles are quite separate and neither is dependent in law upon the other. In the Aleksovski Appeal Judgement, the Appeals Chamber rejected a Trial Chamber statement, made in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields, that the accused “cannot be held responsible under Article 7(1) in circumstances where he does not have direct authority over the main perpetrators of the crimes”.[2] There is no reason to believe that, in the context of the offence of unlawful confinement, there would be any special requirement that a position of superior authority be proved before liability under Article  7(1) could be recognised.