13.     […] Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status.[1] […]

16.     […] It is evident that there cannot be an organized military force save on the basis of responsible command. It is also reasonable to hold that it is responsible command which leads to command responsibility. Command responsibility is the most effective method by which international criminal law can enforce responsible command.

See also paragraphs 17-18, 20, 22-23.

12.     […] if an accused decides to cooperate with the Prosecution, this matter may weigh in his favour when he seeks to be provisionally released, regardless of the fact that it is not explicitly listed in Rule 65, insofar as it shows his general attitude of cooperation towards the Tribunal which is relevant to the issue that he will appear.  It is wrong to suggest, however, that an accused should be penalised because he declines to cooperate with the Prosecution.[1] […]

5.       […] The fact that an accused may have surrendered voluntarily to the Tribunal is relevant to […] whether he will appear for trial, to the extent that his voluntary surrender demonstrates his readiness to cooperate with the Tribunal and increases the likelihood that he will appear for trial if released.  

8. The Appeals Chamber accepts that, in a situation where the defence is unaware of the precise nature of the evidence which a prospective witness can give and where the defence has been unable to obtain his voluntary cooperation, it would not be reasonable to require the defence to use “all mechanisms of protection and compulsion available” to force the witness to give evidence “cold” in court without first knowing what he will say.  That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty.[1]  Accordingly, it is generally inappropriate in this situation to consider orders to the prospective witness to attend to give evidence (Rule 54) or for taking his evidence by way of deposition for use later in the trial (Rule 71).[2]

9. The Reply, however, wrongly assumes that Rule 54 is limited to making orders that the prospective witness attend to give evidence before the relevant Chamber. It is clear, both from the terms of the Rule itself and from what the Appeals Chamber said in the Tadić Rule 115 Decision,[3] that the requirement that “all mechanisms of protection and compulsion available” be used by the defence was not intended to be limited to the situation where the defence is aware of what evidence the prospective witness can give but where the prospective witness is unwilling (for whatever reason) to cooperate. In the exercise of due diligence, the appropriate mechanisms must also be used in the situation where the defence is unaware of the precise nature of the evidence the prospective witness can give and where the defence is unable to obtain his cooperation by speaking to it.

See also paragraphs 14-16.

17.     Where […] an appellant seeks the issue of a subpoena to a prospective witness to be interviewed in anticipation of tendering that person’s evidence on appeal pursuant to Rule 115, the legitimate forensic purpose to be established must be slightly adapted.  An appellant must establish that there is a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in relation to clearly identified issues arising in his appeal against conviction, that the defence has been unable to obtain the cooperation of the witness, and that it is at least reasonably likely that an order would produce the degree of cooperation needed for the defence to interview the witness.  If those matters are established, then […] the appellant would be entitled to the orders which he seeks pursuant to Rule 54.

26.     The reasoning of the Appeals Chamber in the Blaškić Subpoena Decision is that, as the State official has acted on behalf of the State, only the State can be responsible for the acts of that official,[1] and that, as a corollary, the State may demand for its State officials (where their acts are attributed only to the State) a “functional immunity from foreign jurisdiction”.[2]  Such a rule, the Appeals Chamber states, undoubtedly applies to relations between States inter se, but it must be taken into account and has always been respected by, inter alia, international courts.[3]  All of the authorities which the Appeals Chamber cited in support of the functional immunity upon which it relied relate to an immunity against prosecution.  It may be the case (it is unnecessary to decide here) that, between States, such a functional immunity exists against prosecution for those acts, but it would be incorrect to suggest that such an immunity exists in international criminal courts.[4]  The Charter of the International Military Tribunal in Nuremberg denied such an immunity to “Heads of State or responsible officials in Government Departments”,[5] as does this Tribunal’s Statute.[6]

27.     But it is abundantly clear from the passages already quoted from the Blaškić Subpoena Decision, and from pars 23-24, supra, that the statement made in par 38 of that Decision – that “The Appeals Chamber dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity” – can be justified only in relation to the production of documents in their custody in their official capacity.  The Appeals Chamber did not say that the functional immunity enjoyed by State officials includes an immunity against being compelled to give evidence of what the official saw or heard in the course of exercising his official functions.  Nothing which was said by the Appeals Chamber in the Blaškić Subpoena Decision should be interpreted as giving such an immunity to officials of the nature whose testimony is sought in the present case.  No authority for such a proposition has been produced by the prosecution, and none has been found.  Such an immunity does not exist.  No issue arises for determination in this case as to whether there are different categories of State officials to whom any such immunity may apply, and it is unnecessary to determine such an issue here.

See also paragraph 28.

CONSIDERING that the “right” of an accused, who is represented, to be heard personally is not unfettered and is subject to the discretion of the Chamber before which the accused is appearing;

CONSIDERING that counsel must be able to communicate with his or her client prior to filing material on his or her behalf;

473. Pursuant to Article 24 of the Statute the Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the grounds of an error of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. Where additional evidence has been admitted on appeal, the Appeals Chamber is required to determine whether the additional evidence actually reveals an error of fact of such magnitude as to occasion a miscarriage of justice.[1] In accordance with Rule 118(A) of the Rules and the relevant jurisprudence,[2] the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction  where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings?[3] Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.