26. The Appeals Chamber recalls that in the Karemera et al. case, it endorsed the following reasoning of the ICTY Appeals Chamber in the Orić case:

The Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.[3]

The Appeals Chamber considered that all parties were not entitled to call precisely equal numbers of witnesses and the Trial Chamber has the discretion to limit the number of witnesses a party may call. This discretion may be exercised pursuant to Rules 73bis and 73ter of the Rules. Where the Trial Chamber exercises this discretion, it must be subject to the full respect of the rights of the party concerned. In cases where an exercise of this discretion leads to a situation where one party has more witnesses than the other, this does not necessarily mean that the principle of equality of arms is violated.

17. [...] If a Trial Chamber finds that the information has been provided in accordance with Rule 70(B), the information will benefit from the protections afforded under Rules 70(C) and (D).[1] However, the restrictions referred to under Rules 70(C) and (D) will only apply after the Trial Chamber has determined that the restrictions imposed by the government upon the witness’s testimony would not undermine the need to ensure a fair trial, and that the need to ensure a fair trial would not substantially outweigh the probative value of the testimony so as to lead to its exclusion.[2] Indeed, Rule 70(F) provides that Rule 70 restrictions shall not “affect a Trial Chamber’s power under Rule 89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[3]

18. By conducting the balancing exercise under Rule 70(F), a Trial Chamber ensures that the government’s legitimate confidentiality concerns are respected, and, at the same time, that the conduct of the trial remains fair and expeditious. While according due weight to legitimate State concerns related to national security and the need for States to safeguard their interests,[4] the Appeals Chamber adopts the holding of the ICTY Appeals Chamber in the Milutinović et al. case that “this deference to States’ interests does not go as far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial”.[5]

22. With regard to whether the limitations placed upon Ambassador Flaten’s testimony under Condition B would have resulted in substantial unfairness such as to outweigh the probative value of his testimony, the Appeals Chamber makes the following observations. On 24 January 2007, the Trial Chamber observed that “[a]s the prospective witness is a Defence witness, the limitations on cross-examination do not impact the rights of the Accused.”[6] The Appeals Chamber recalls that Rule 70(E) is indeed aimed at ensuring that the right of an accused to challenge evidence presented by the Prosecution under Rules 70(C) and (D) remains unaffected and, therefore, finds no error in the Trial Chamber’s statement.

26. Lastly, the Appeals Chamber reiterates that pursuant to Rule 70(F), the Trial Chamber would have been able to exclude the evidence provided by Ambassador Flaten if it found – during the course of his testimony – that the application of Condition B unfairly limited the rights of the co-accused or the Prosecution. Rule 70(F) provides a safeguard against any undue prejudice that could be caused to the parties as a result of the limitations imposed by a State for the protection of the confidential information in its possession. The Appeals Chamber recalls in this regard that the public interest served in ensuring that information given in confidence to one of the parties remains confidential finds its limitation in the obligation imposed on this Tribunal by Articles 20 and 21 of the Statute to ensure a fair trial. In the present case, the Trial Chamber stressed on 24 January 2007 that “Rule 70(F) clearly preserves the Chamber’s power to apply Rule 89(C) and exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[7] The Appeals Chamber finds that such a safeguard in the Rules means that the Trial Chamber would have retained authority over the proceedings even with Condition B applied. Indeed, if the Trial Chamber were to find that the application of Condition B had unfairly limited the rights of the co-accused or the Prosecution to confront the witness during his testimony, the ultimate remedy would be the exclusion of the evidence.[8]

The Appeals Chamber held that while not all paramilitary leaders are “most senior leaders”, at least some should be presumed to be:

20. To begin with, the Appeals Chamber rejects the Appellant’s suggestion that the statement by the President of the Security Council[1] precludes the referral of paramilitary leaders as a matter of law.  The Appeals Chamber does not read this statement to bar referral of all cases involving civilian, military, and paramilitary leaders.  Were that to be the case, then the Security Council would not have referenced “most senior leaders” in Resolutions 1503 (2003) and 1534 (2004), but would instead have spoken of all leaders.  Instead, the Appeals Chamber understands the statement of the President of the Security Council simply to indicate that “most senior leaders” may come from positions of civilian, military, or paramilitary leadership (rather than simply from military leadership positions, for example). The reasoning of the Referral Bench was in keeping with this approach, as it plainly recognized that paramilitary leaders could fall within the category of “most senior leaders”.

22. […] the President of the Security Council’s statement did not show an intent for the Tribunal to retain all paramilitary leaders, it certainly gives rise to the inference that the cases of at least some paramilitary leaders should be retained rather than referred.[2]

See infra for the application of these principles to the facts of the case.

9. “The Appeals Chamber recalls that a decision on whether or not a case should be referred to the authorities of a State which meets the requirements set out in Rule 11bis of the Rules is a discretionary one.”[1]  Therefore, “the party challenging a decision pursuant to Rule 11bis of the Rules must show that the Referral Bench misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of its discretion, or that the Referral Bench gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.”[2]

13. The Appeals Chamber further rejects the Appellant’s claim that manipulation of the Indictment by the Prosecution justifies a different approach in this case.  The Appeals Chamber need not address whether or not such manipulation, if proved, would justify a different approach, because here the Appellant fails to offer any credible evidence of manipulation.  In the absence of support for an assertion of manipulation, “the Appeals Chamber takes it for granted that the Prosecution would not seek to influence the proceedings in such a way that by [changing] the charges alleged, this Tribunal would have decided the referral request differently.”

17. […] In the present case, the Appeals Chamber is of the view that the fact that the Prosecution may now possess some evidence suggesting that the Appellant was also involved in the events of Srebrenica is not enough, standing alone, to raise concerns that the Prosecution has withheld charges against the Appellant in order to promote referral.

22. The Appeals Chamber also considers that the Referral Bench placed too much stress on the local character of the Appellant’s crimes.  Of course, this is a relevant factor and in some situations can be a significant one.[1] […] Since the criminal acts of paramilitary leaders are likely to be limited to a municipal (or at most regional) scope, an undue emphasis on geographic scope might thwart the intent of the Security Council that the Tribunal retain jurisdiction over at least the most significant paramilitary leaders.  There is no necessary nexus between, on the one hand, leadership responsibility for the most serious crimes and, on the other hand, a broad geographic area.  […] The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[2]  In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant. 

25. […] As the Referral Bench found, the crimes allegedly committed by the Appellant were grave indeed. They included a number of horrific incidents that resulted in the deaths of a total of more than 150 people – namely, two incidents where Bosnian Muslim men, women, and children were forcibly barricaded into houses that were then set on fire,[1] two incidents in which Bosnian Muslim men were seized and then gunned down along the banks of a river,[2] one incident in which a Bosnian Muslim woman was questioned and then shot repeatedly,[3] and repeated incidents of inhumane acts and cruel treatment aimed at Bosnian Muslim men held at a detention camp.[4] Of course, gravity alone is not dispositive.  The alleged crimes in this case are comparable to those alleged with regard to Paško Ljubičić, an intermediate-level military leader whose case was referred by the Tribunal pursuant to Rule 11bis.[5]  But when the Appellant’s alleged crimes are taken in conjunction with the earlier-discussed role allegedly played by him as a paramilitary leader, this case becomes too significant to be appropriate for referral.  As noted earlier, the Security Council intended for the Tribunal to try top paramilitary leaders[6] and the allegations against the Appellant put him into this category.  In this regard, his case differs substantially from that of Gojko Janković (“Janković”), another paramilitary leader whose case was referred pursuant to Rule 11bis of the Rules.  Although a paramilitary leader, Janković was also acting at an intermediate level within the military hierarchy as a sub-commander of the military police.[7]  Moreover, Janković was charged with crimes in relation to a series of rapes and sexual assaults which, while serious indeed, involved far fewer victims and fewer varied incidents than the charges set out against the Appellant in the Second Amended Indictment.[8]

26.    Indeed, the Prosecution has not identified any paramilitary leader indicted by the Tribunal in whose case the gravity of crimes charged and the level of responsibility of the accused are, when taken in conjunction, as significant as those in the present case.  Nor is the Appeals Chamber aware of any such case, with the possible exception of the indictment issued against the now-deceased Željko Ražnjatović (also known as “Arkan”).[9]  […]

9.       The Appeals Chamber finds no legal basis for Mr. Nzirorera to appeal against the Impugned Decision. Rule 11bis (H) of the Rules expressly provides for the possibility to appeal a Trial Chamber’s decision determining whether to refer a case to a national jurisdiction. The Tribunal’s Statute and Rules do not provide for appellate review of a decision taken by the President pursuant to Rule 11bis (A) to designate a Trial Chamber for determining whether referral of a case would be appropriate. Furthermore, the Appeals Chamber has already held, in a different context, that a decision taken by the Tribunal’s President within his exclusive discretion is not subject to appeal.[1]

10.     The Appeals Chamber is also unable to accept Mr. Nzirorera’s proposition that the Appeals Chamber may hear his appeal as part of its inherent jurisdiction. While it is correct that the Appeals Chamber has the statutory duty to ensure the fairness of proceedings on appeal and, to this effect, has jurisdiction to review decisions taken by the Tribunal’s President,[2] Mr. Nzirorera’s case is presently not on appeal. Moreover, the Appeals Chamber’s consideration of the underlying issues of the fairness of Mr. Nzirorera’s proceedings is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal as of right under the Tribunal’s Rules or as certified by a Trial Chamber.[3]

11.     Mr. Nzirorera’s argument that the Appeals Chamber should decide his appeal on the basis that it concerns an issue “of general significance to the Tribunal’s jurisprudence” is likewise not persuasive. […]

12. […] The Appeals Chamber finds that, while the Practice Direction does not specifically provide for the possibility for a co-accused to file submissions in appeals proceedings initiated by another co-accused, it is clear from the procedural background of the case that Gotovina does have a specific interest in the matter and it is therefore in the interests of justice to consider Gotovina’s Response as validly filed. Moreover, the Appeals Chamber notes that the Appellant suffers no prejudice from such finding since he was granted the opportunity to reply to Gotovina’s Response.[1]

16.    The Appeals Chamber also recalls that a conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice.[1] Safeguarding the interests of justice requires the prevention of potential conflicts of interest before they arise.[2] If a Chamber determines that the risks and damage that could be caused are such as to jeopardise the right of the accused to a fair and expeditious trial or proper administration of justice, it takes the appropriate measure to restore and protect the fairness of trial and the integrity of the proceedings.[3] It has been held that such measures can include ordering the withdrawal of counsel.[4]

28.    Finally, the Appeals Chamber considers that, in a case of this kind, “safeguarding the interests of justice requires not only the existence of a mechanism for removing conflicts of interests after they have arisen but also the prevention of such conflicts before they arise”.[5] It was hence not unreasonable for the Trial Chamber to find that the dual representation by Prodanović and Sloković risks to considerably prejudice the Appellant as it would limit the choice of defence strategies due to his Counsel’s duty of loyalty to Ademi and that they therefore would not be able to serve best the Appellant’s interests.