471.     […] [T]he Appeals Chamber recalls that unlawful confinement as a grave breach of the Geneva Conventions arises in the following two circumstances:

(i) […] a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e. they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii) […] the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.[1]

In adopting this definition, the Appeals Chamber noted that restrictions on the rights of civilians, such as the “deprivation of their liberty by confinement” are subject to the safeguards in Article 42, as well as Article 5, of Geneva Convention IV.[2] As for imprisonment as a crime against humanity, the Appeals Chamber recalls that it “should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population”.[3]

472.     Thus, it is clear from the above that both crimes concern the deprivation of liberty of an individual. Further, with the exception of chapeau requirements for war crimes and crimes against humanity, imprisonment – in the context of armed conflict – and unlawful confinement of civilians overlap significantly given that the Appeals Chamber has confirmed that the legality of imprisonment and the procedural safeguards pertaining to it are to be determined based on Articles 42 and 43 of Geneva Convention IV.[4]

473.     Finally, the Appeals Chamber considers that determining whether a person has been deprived of his or her liberty will depend on the circumstances of each particular case and must take into account a range of factors, including the type, duration, effects, and the manner of implementation of the measures allegedly amounting to deprivation of liberty.[5] In that respect, the Appeals Chamber notes that it has in the past confirmed that both imprisonment and unlawful confinement of civilians can occur even in situations where the civilians are held in houses in villages, including those who are held in their own village and their own houses, without guards, and where they have some freedom of movement. In Kordić and Čerkez, the Appeals Chamber upheld the Trial Chamber’s finding that the civilians in the village of Rotilj were imprisoned and unlawfully confined since the village was surrounded by HVO [Croatian Defence Council (Army of BiH Croats)], the civilians were not held there for their own safety, and they were prevented from leaving while at the same time were subjected to beatings, thefts, and sexual abuse.[6] […]

479. […] [W]ith respect to [ Praljak’s] submission that these civilians had their movement restricted for their own security, which is permitted under Article 27 of Geneva Convention IV, the Appeals Chamber notes that Article 27(4) of Geneva Convention IV is broadly worded and provides that the Parties to the conflict “may take such measures of control and security in regard to protected persons as may be necessary as a result of the war”. The Commentary to Article 27 then states that while restriction of movement is one of the measures a belligerent may inflict on protected persons, internment of civilians and the placing of civilians in assigned residences are the two most severe measures that may be inflicted on protected persons under Article 27 and, as such, are subject to strict rules outlined in Articles 41-43 and 78 of Geneva Convention IV.[7] One of these rules is that the internment or placement in assigned residence may be ordered only if the security of the detaining party makes it absolutely necessary, while another provides that an initially lawful internment or placement in assigned residence clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[8] […].

513. […] The Appeals Chamber recalls that it has in the past confirmed that detention amounting to imprisonment and unlawful confinement of civilians can occur even in situations where the civilians are held in houses without guards and where they have some freedom of movement. In Kordić and Čerkez, the Appeals Chamber confirmed the Trial Chamber’s finding that the civilians in the village of Rotilj were imprisoned and unlawfully confined since the village was surrounded by HVO, the civilians were not held there for their own safety, and they were prevented from leaving while at the same time subjected to beatings, thefts, and sexual abuse.[9] Bearing that in mind and in light of the Trial Chamber’s findings outlined above,[10] the Appeals Chamber considers that Praljak fails to demonstrate that the Trial Chamber erred in concluding that Muslims in Podgrade, Lapsunj, and Duge were deprived of their liberty. In that respect, the Appeals Chamber notes that even though the civilians had some freedom of movement in those three locations, the factual findings outlined above show that it was limited and that the great majority of the civilians were in fact confined to the three locations in very harsh conditions, as was the case in In Kordić and Čerkez. The freedom of movement consisted of some individuals occasionally leaving the houses they were housed in, either to obtain food or to hide from potential abuse and sexual assaults at night-time. The Appeals Chamber considers that, given the findings on the presence of HVO soldiers and Military Police in those locations and the fact that the civilians were arrested and brought there by those forces, the Trial Chamber did not err in concluding that the population could not leave Podgrade, Lapsunj, and Duge.

See also paras. 508, 509, 514.

2836. […] The Appeals Chamber […] recalls that it is not necessary for the purpose of JCE III liability that an accused be aware of the past occurrence of a crime in order for the same crime to be foreseeable to him.[1] Rather, knowledge of factors such as the nature of the conflict, the means by which a JCE is to be achieved, and how the JCE is implemented on the ground may make the possibility that such a crime might occur sufficiently substantial as to be foreseeable to members of the JCE.[2] […]

[…]

2975. The Appeals Chamber recalls that the applicable law for JCE III liability does not require that the accused create conditions for those crimes that take place outside of the common criminal purpose.[3] […].

See also, for example, paras. 2865, 2884, 2895, 2902, 2935, 2948, 2998, 3072, footnote 9626.

2896. Turning to Praljak’s argument that the Trial Chamber applied a broader standard than required by finding that he “knowingly” took the risk that thefts might occur,[1] the Appeals Chamber notes that the Trial Chamber used the term “sciemment” (knowingly)[2] in the relevant paragraphs of the French version of the Trial Judgement,[3] which is the authoritative text. The Appeals Chamber recalls that the applicable standard is that an accused “willingly” – translated as “délibérément” in French[4] – took the risk that a crime might occur by joining or continuing to participate in a JCE.[5] The word “sciemment” (knowingly) is defined as “[e]n connaissance de cause”, “exprès”, and as “volontairement”.[6] The definition of “willingly” is, inter alia, “[w]ith a ready will, consentingly, without reluctance”.[7] While “willingly” is more accurate as it emphasises the will of an accused to accept that risk, “sciemment” (knowingly) suffices as it refers to an accused’s knowledge or awareness of the risk, and therefore also his acquiescence in taking that risk.[8] Even though, in order to avoid any ambiguity and for the sake of consistency, the Trial Chamber should have used the language already established in the jurisprudence, the Appeals Chamber finds that by using “sciemment” (knowingly) instead of “willingly” in this context, the Trial Chamber did not apply a broader, incorrect standard. Praljak’s argument is therefore dismissed.

3122.  Where the Appeals Chamber finds an error committed by a trial chamber, the choice of a remedy lies within the discretion of the Appeals Chamber.[1]Article 25 of the Statute, providing that the Appeals Chamber “may affirm, reverse or revise the decisions taken by the [t]rial [c]hambers”, is wide enough to confer such a faculty.[2] The Appeals Chamber further recalls that this discretion must be exercised on proper judicial grounds on a case-by-case basis, balancing factors including fairness to the accused, the interests of justice, the nature of the offences, and the circumstances of the case.[3]

3197. […] The Appeals Chamber recalls that according to the Čelebići Test it is only permissible to enter multiple criminal convictions under separate statutory provisions to punish the same conduct if “each statutory provision involved has a materially distinct element not contained in the other” and “[a]n element is materially distinct from another if it requires proof of a fact not required by the other”.[1]

3198. Ćorić argues that in applying the Čelebići Test, the Trial Chamber failed to identify the elements which distinguish Articles 2 and 5 of the Statute.[2] The Appeals Chamber observes that in fact, the Trial Chamber undertook this analysis explicitly:

the applicability requirements for crimes against humanity, punishable under Article 5 of the Statute, and grave breaches of the Geneva Conventions, punishable under Article 2 of the Statute, each contain a materially distinct element not contained within the other. Crimes against humanity require proof that the act is part of a widespread or systematic attack against a civilian population, which is not a requirement for grave breaches of the Geneva Conventions. The latter require proof of a nexus between the acts of the accused and the existence of an international armed conflict, and that the persons and property have protected status under the Geneva Conventions, conditions that are not required for crimes against humanity.[3]

The Trial Chamber then concluded that cumulative convictions for the crimes under Articles 2 and 5 of the Statute “are possible insofar as each of these provisions contains a materially distinct applicability requirement not contained within the other”.[4] Ćorić has shown no error in this approach.

3265. […] [T]he Appeals Chamber recalls that a factor considered by a trial chamber as an element of a crime cannot also be considered as an aggravating circumstance.[1] The Appeals Chamber observes that Prlić was convicted under Article 7(1) of the Statute for his commission of crimes through a JCE.[2] In its aggravating factors analysis, the Trial Chamber considered that the fact that Prlić in his position of authority had committed crimes amounted to an abuse of authority.[3] The Appeals Chamber further recalls that a position of authority is not an element of JCE responsibility under Article 7(1) of the Statute.[4] Consequently, although an assessment of JCE responsibility may involve consideration  of a person’s official role and commission of crimes in that capacity, as in the present case,[5] a JCE conviction does not rest upon these factors.[6] […]

See also paras. 3278, 3290.

Page 2

CONSIDERING that Šešelj’s refusal to respond to the Order indicates that he maintains his previously stated position not to participate in any way in the appeal hearing;

CONSIDERING that Šešelj’s position not to participate in the appeal hearing rises to the level of a disruption of the proceedings that would warrant the restriction of his right to self-representation;

CONSIDERING that, pursuant to Rules 46 and 131 of the Rules, the assignment of standby counsel is warranted in the interests of justice to ensure the protection of Šešelj’s rights at the appeal hearing;

12.     […] Requiring Kamuhanda to appeal an interim order before being able to demonstrate any prejudice resulting from that order would necessarily inhibit his ability to appeal the discretionary determination at issue and would result in a needless expenditure of judicial resources.[1]

RECALLING ALSO that circumstances that may merit reconsideration include new facts and that, to succeed on that basis, an applicant must demonstrate how any new facts justify reconsideration;

Pages 1-2

NOTING that Rule 83 of the Rules provides that “[a] Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organisation, or person to appear before it and make submissions on any issues specified by the Chamber”;

RECALLING that deciding whether to grant leave to make submissions pursuant to Rule 83 of the Rules falls within the discretion of the Appeals Chamber;

RECALLING FURTHER that the primary criterion for the Appeals Chamber in determining whether to grant leave to an amicus curiae to make submissions is whether this would assist the Appeals Chamber in its consideration of the appeal;

[…]

NOTING that the proposed Amicus Curiae Brief is limited to questions of law;

CONSIDERING that the Amicus Curiae Brief analyses matters raised in the Appeal, specifically the relevance of Jogee [R v Jogee [2016] UKSC 8; Ruddock v The Queen [2016] UKPC 7] to applicable jurisprudence on the mens rea of the third form of joint criminal enterprise, and that, as such, it may assist the Appeals Chamber in its determination of the Appeal;

FINDING, therefore, that the Amicus Curiae Brief is admissible under Rule 83 of the Rules;