55. The Appeals Chamber reiterates that “[o]ne of the limits to the accused’s choice [of counsel] is a conflict of interest affecting hiscounsel”.[1]

43.     […] Moreover, the Appeals Chamber notes that Article 14(D) of the Code of Conduct prohibits a representation with an adverse effect on either of the clients, regardless of whether they are represented in matters before the International Tribunal or other jurisdictions. […]

44.     […] While the said provision [Article 14(D) of the Code of Conduct] does not seem to distinguish between the duty of loyalty to a current and a former client,[1] the Appeals Chamber observes that a conflict of interest may be more difficult to discern when it arises from the context of successive or serial representation rather than concurrent representation. Parties made extensive references to national case-law and the Appeals Chamber finds it instructive to have a brief overview of underlying principles with respect to a counsel’s duty of loyalty to a former client in national jurisdictions.

45.     According to the relevant US and UK case-law on the matter, a conflict of interest vis-à-vis a former client exists when the subject matter of the two representations are substantially related so as to put at risk the confidences received from that client.[2] It is however important to note that such conflict of interest is considered to exist in all situations “when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client”.[3] Generally, it would be a case-by-case assessment by the judiciary of the character and extensiveness of the prior representation to ensure that the interests of both former and current clients are preserved.[4] In any case, doubts as to the existence of an asserted conflict of interest with respect to a former client should be resolved in favour of disqualification.[5]

46        As a general principle in French law, apart from confidentiality issues, a counsel can only accept a new representation in which he or she may be led to plead against a former client where such new case is entirely different from the previous one, so as to fully conform to his or her duty of loyalty.[6] Similar principles are provided for by the Code of Conduct for European Lawyers, according to which a lawyer “must […] refrain from acting for a new client if there is a risk of breach of a confidence entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new client”.[1]

47      While the Croatian Attorney’s Code of Ethics is only explicit with respect to prohibiting legal assistance to an adverse party in a subsequent representation, it provides for duties of faithfulness and loyalty to a client which do not necessarily cease with the end of representation.[2] In Bosnia and Herzegovina, it is impermissible to represent clients with conflicting interests, and should such a conflict (or risk of infringing the confidentiality of information or the attorney’s independence) arise during litigation, the attorney has an obligation to return the power of attorney to all the parties involved.[3]

48      Having concluded that the simultaneous representation of the Appellant and Ademi by Prodanović and Sloković raises a high risk of a conflict of interest due to the fact that the Counsel would be limited in their choice of defence strategies in order to conform to their duty of loyalty,[4] the Appeals Chamber is of the view that, even if Prodanović and Sloković withdrew from Ademi’s defence, they would still be unable to represent the Appellant to the best of his interests as they would remain bound by their duty of loyalty to Ademi as a former client.[5] This potential conflict of interest is even more contoured considering the high probability that Ademi will be called as witness in the present case.[6]

16. The Karemera Appeals Decision established that it is prohibited to take judicial notice of “adjudicated facts relating to the acts, conduct, and mental state of the accused.” This means that, when an accused is charged with crimes committed by others, while it is possible to take judicial notice of adjudicated facts regarding the existence of such crimes, the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question must be proven by other means than judicial notice. Thus, the Appeals Chamber sees no reason why judicial notice could not be taken of adjudicated facts providing evidence as to the existence of crimes committed by others and which the accused is not even charged with, as in the instant case, as long as the burden remains on the Prosecution to establish, by means other than judicial notice, that the accused had knowledge of their existence. The Appeals Chamber recalls, in this respect, that judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” and that the facts “established under Rule 94(B) are merely presumptions that may be rebutted by the defence with evidence at trial”.[3]

17. […] the Appeals Chamber finds ambiguous the Prosecution’s statement that “if the Proposed Facts were judicially noticed the Trial Chamber could rely on them, together with other evidence, to draw inferences about notice to the Accused of crimes committed by SRK forces”,[4] and recalls that evidence of the accused’s notice of the crimes has to be produced separately from judicial notice of their existence. 

22. […] In general, the Appeals Chamber has the power to reconsider past decisions, particularly “where it was realized that the previous decision was erroneous or where it has caused an injustice.”[1] […]

23. […] It is clear that the Appeals Chamber normally has the power to reconsider its prior decisions.[2] […] While the Appeals Chamber once held that it has the inherent power to reconsider final judgements,[3] it has since taken a different position and held that there is no inherent power to reconsider final judgements.[4]

24. In both the Čelebići Decision and the Žigić Decision, the Appeals Chamber appeared to presume that the “final judgements” on appeal were indeed appeal judgements in the classic sense of the word – namely, reviews on the merits of the trial judgements.  The Žigić Decision, for example, emphasized that reconsideration was unwarranted with regard to “a person whose conviction has been confirmed on appeal”.[1] It did not consider whether reconsideration was similarly unwarranted with regard to a person whose appeal terminated by another means and who thus did not receive full benefit of an appeal process that he had initiated.  Similarly, in discussing the special context of reconsideration of final judgements, the Čelebići Decision assumed that it spoke of a “final judgement” on the merits.[2]

27. As noted earlier, both parties suggest that a defendant’s withdrawal of his appeal, like a guilty plea, must be informed.[1]  The Appeals Chamber agrees.  Where a defendant has invoked the legal right to appeal and now seeks to abandon this right, the Appeals Chamber should satisfy itself that this abandonment is informed.  In the Decision Accepting Withdrawals, the Appeals Chamber did not explicitly discuss whether Strugar’s withdrawal was an informed one.  The Appeals Chamber will now consider this issue. [See below in “Issues of particular interest”]

20. […] To reopen his case, Strugar must thus convince the Appeals Chamber to revisit the Decision Accepting Withdrawals.  For the Appeals Chamber to revisit this Decision, however, it must have a jurisdictional basis for doing so.

21. One mechanism for reopening a case is to bring a successful motion for review under Article 26 of the Statute and Rules 119-120 of the Rules. […]

15. The Appeals Chamber finds that the Appellant fails to raise a proper jurisdictional challenge pursuant to Rule 72(D)(iv) of the Rules under his first ground of appeal or to demonstrate that the Trial Chamber erred in dismissing his argument as to “occupied territory” being a necessary requirement for the crimes of deportation and forcible transfer as crimes against humanity. Here, the Appellant is not contesting that the International Tribunal has jurisdiction over these crimes under Article 5 of the Statute, which are charged in the Joint Indictment according to their definitions and elements under customary international law as set out in the jurisprudence of the International Tribunal.[1] Rather, he argues that the interpretation of the definition for the actus reus of these crimes should be narrow and limited to displacement from occupied territory. As such, the Appellant may bring these arguments before the Trial Chamber to be considered on the merits at trial; however, they do not demonstrate the Tribunal’s lack of subject-matter jurisdiction.[2]

18. The Appeals Chamber considers that the Appellant […] fails to raise a proper jurisdictional challenge under Rule 72(D)(iv) of the Rules. The Appellant does not dispute that the International Tribunal has jurisdiction over crimes charged under Articles 3 and 5 of the Statute as violations of Common Article 3 of the Geneva Conventions. Furthermore, he does not dispute that “committed against persons taking no active part in the hostilities” is a proper element of such crimes under customary international law. Rather, he contests the definition of that element and argues that the jurisprudence of the International Tribunal demonstrates that it should be interpreted narrowly to require that such persons be shown to be in the hands of a party to the conflict akin to the “protected person” element for crimes alleged to be grave breaches of the Geneva Conventions under Article 2 of the Statute.  Such arguments are properly raised on the merits at trial[3] and do not demonstrate that the International Tribunal lacks subject-matter jurisdiction over the crimes and the elements of those crimes under Counts 8 and 9 of the Joint Indictment. […]

21. The Appeals Chamber finds that the Appellant […] fails to raise a proper jurisdictional objection within the meaning of Rule 72(D)(iv) of the Rules and to demonstrate that the Trial Chamber erred in rejecting it. Clearly, the Joint Indictment provides that a state of armed conflict existed at all times with respect to the violations of international humanitarian law alleged therein. Whether an armed conflict actually existed post-Operation Storm is a factual determination to be made at trial. It was well within the discretion of the Trial Chamber to consider that determining this issue pre-trial is premature and can only be decided upon hearing and weighing all of the evidence.[4] To the extent that the Appellant claims that the provisions of the  Joint Indictment on this issue are inconsistent or do “not plead any facts supporting the existence of an armed conflict after Operation Storm”,[5] these arguments may constitute allegations of defects in the form of the indictment, which may be challenged under Rule 72(A)(ii) of the Rules.[6] […]

24. The Appeals Chamber considers that the Appellant fails to […] raise[…] a proper jurisdictional objection pursuant to Rule 72(D)(i) of the Rules. Here, the Appellant does not contest the International Tribunal’s jurisdiction over JCE as a mode of liability under Article 7(1) of the Statute, which, as the Trial Chamber noted, is clearly established in the jurisprudence of the International Tribunal.[7] In the Joint Indictment, the Prosecution alleges JCE and its elements, as they are set out in the Tribunal’s jurisprudence, and the Appellant merely challenges the definition and interpretation of a particular element as established in cases subsequent to the Tadić Appeals Judgement.[8] The Appeals Chamber agrees with the Trial Chamber that such a challenge is to be considered on the merits at trial.[9] To the extent that the Appellant submits that the Prosecution has failed to plead an element of this mode of liability properly, such an argument goes to pleading practice and the form of the indictment and is not a challenge to jurisdiction.[10] […]

Rule 15bis envisages situations where a Judge is unable to sit on a case. Rule 15bis(F), more specifically, reads:

In case of illness or an unfilled vacancy or in any other similar circumstances, the President may, if satisfied that it is in the interests of justice to do so, authorise a Chamber to conduct routine matters, such as the delivery of decisions, in the absence of one or more of its members.

The Appeals Chamber in the present case found:

10. […] The Appeals Chamber considers that routine matters, within the meaning of Rule 15bis (F) of the Rules, are generally matters of a regular and standardised nature, such as the convening of a status conference to organise exchanges between the parties, pursuant to Rule 65bis of the Rules. Other matters, both of a substantive and procedural nature, are generally non-routine, for the purposes of Rule 15bis (F) of the Rules.

189. […] For an accused to be convicted of abetting an offence, it is not necessary to prove that he had authority over the principal perpetrator.[1]

190. […] In the Semanza Appeal Judgement, the Appeals Chamber reached a similar conclusion in respect of an “influential” accused who encouraged the rape of Tutsi women by giving “permission” to rape them.[2] […]