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Notion(s) Filing Case
Decision on Stay of Procedure and Assignment of Counsel - 04.04.2014 PRLIĆ et al.
(IT-04-74-A)

17. […] The Appeals Chamber acknowledges that neither the Rules nor the relevant Practice Directions require the inclusion of a word count or provide for a time-limit for the filing of Registry submissions pursuant to Rule 33(B) of the Rules. However, the Appeals Chamber has previously imposed time-limits and required the inclusion of a word count in Registry submissions where it found it necessary for the efficient administration of the proceedings and for ensuring equality.[1] Guided by the same considerations, the Appeals Chamber requests the Registry to include a word count in future Rule 33(B) submissions in response to motions filed in the present case and to make such submissions within ten days of the filing of the respective motion.

[1] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007, paras 23, 25.

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ICTR Rule Rule 33(B) ICTY Rule Rule 33(B)
Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

35.     […] [T]he Appeals Chamber turns to the argument that it may order the termination of proceedings and release of an accused after interlocutory review of a denial of an accused’s rights, including during appellate proceedings. The doctrine of “abuse of process” allows a court to decline to exercise jurisdiction either because it will be impossible to give the accused a fair trial or because it offends the court’s sense of justice and propriety to try the accused in the circumstances of a particular case.[1] The question in cases of abuse of process is not whether it is “necessary” for a court to issue an interlocutory decision terminating proceedings (as for Rule 54 of the Rules examined above), but whether a court should continue to exercise jurisdiction over a case in light of serious and egregious violations of the accused’s rights that would prove detrimental to the court’s integrity.[2] The discretionary power of a court to stay or terminate proceedings by reason of abuse of process applies during the trial phase of a case, and is mostly concerned with prosecutorial misconduct, since its main purposes are to prevent wrongful convictions and preserve the integrity of the judicial system.[3] An allegation of partiality of a trial judge is a ground to appeal a conviction on the basis that it is unsafe.[4]

See also para. 22.

[1] R. v. Horseferry Road Magistrates' Court, Ex p. Bennett (No.1) [1994] 1 A.C. 42, H.L.(E.), 74G; Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], paras 74-75.

[2] Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 74.

[3] See, e.g., Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 112; Prosecutor v. Radoslav Brđanin & Momir Talić, Case No. IT-99-36-PT, Decision on Second Motion by Brđanin to Dismiss the Indictment, 16 May 2001, para. 5 (“[If a] Trial Chamber is satisfied that the absence of such resources will result in a miscarriage of justice, it has the inherent power and the obligation to stay the proceedings until the necessary resources are provided, in order to prevent the abuse of process involved in such a trial”).

[4] See R. v. A. (No. 2) [2002] 1 A.C. 45; [2001] UKHL 25, in which Lord Steyn observed that it was well-established that the right to a fair trial was absolute in the sense that a conviction obtained in breach of it cannot stand (at p. 65, para. 38). See also R. v. Forbes [2001] 1 A.C. 473, 487; [2000] UKHL 66, para. 24; R. v. Togher & Ors [2001] 3 All E.R. 463; [2000] EWCA Crim 111, para. 33 (“if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe”).

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Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

23.     [...] [T]he Applicants contend that the Appeals Chamber is authorised or at least not precluded by the Rules to issue an interlocutory decision that would terminate proceedings because of a violation of an accused’s rights. They rely on Rule 54, which, in conjunction with Rule 107 of the Rules, permits the Appeals Chamber to issue orders as necessary for the conduct of proceedings.[1] The Appeals Chamber notes that the application of Rule 54 is discretionary and dependent upon the necessity of the relevant order for the conduct of the proceedings.[2] The Appeals Chamber therefore finds that it has the authority to consider an allegation of judicial bias in an interlocutory decision at this stage in the appeal proceedings under this rule.

[1] See, e.g., Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Stay of “Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005”, 16 December 2005.

[2] Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, para. 558; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision sur la Requête de Ferdinand Nahimana aux fins de Communication d’Éléments de Preuve Disculpatoires et d’Investigations sur l’Origine et le Contenu de la Pièce à Conviction P 105, 12 September 2006, para. 13. 

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

[1] Rule 107 of the Rules provides that the rules of procedure and evidence that govern proceedings in the Trial

Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

33.     […] A mistrial is a trial that has been terminated prior to its conclusion.[1] A motion to declare a mistrial must thus be filed during the trial. This type of motion is not available or necessary in the appeal phase of a case. Whereas at the trial phase, bringing such a motion may be “indispensable to the grant of fair and appropriate relief,”[2] in appeal proceedings an allegation of a violation to the right to a fair trial will be considered in the appeal judgement.[3]

[1] Bryan Garner (ed.), Black’s Law Dictionary (St. Paul, Minn.: West, 2009, 9th ed.), p. 1093 (“mistrial …1. A trial that the judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings.”) (emphasis added).

[2] Delalić et al. Appeal Judgement, paras 643-645. 

[3] [See Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008 (“Martić Appeal Judgement”), paras 30, 39-46; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Judgement, 22 April 2008, paras 43, 77-107; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), paras 27-45; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Delalić et al. Appeal Judgement”), paras 651-709; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 (“Furundžija Appeal Judgement”), paras 164-215. See also Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR-00-55B-A, Judgement, 8 May 2012, paras 12-21; Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011, paras 13-50; François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009, paras 371-379; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), paras 18, 47-90; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005, paras 12-58; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, paras 43-46; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 36-125; The Prosecutor v. Jean-Paul Akayesu, Judgment, 1 June 2001, paras 85, 194-207.] See also Delalić et al. Appeal Judgement, paras 643-645.  

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Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

[1] Rule 107 of the Rules provides that the rules of procedure and evidence that govern proceedings in the Trial

Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Decision on Reconsideration - 20.03.2014 PERIŠIĆ Momčilo
(IT-04-81-A)

Considering that victims’ interests in the success of the Motion[1] does not constitute a legal basis which would justify granting the Motion

[1] See [Prosecutor v. Momčilo Perišić, Case No. IT-04-81-A, Motion for Reconsideration, 3 February 2014], para. 5. 

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Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

139. Finally, in support of his contention that the Trial Chamber violated Rule 87(B) of the Rules, Nzuwonemeye points to several paragraphs of the Trial Judgement, in which he claims that the Trial Chamber erred by making joint findings related to him and Sagahutu.[1]

140. The Appeals Chamber recalls that Rule 87(B) of the Rules provides in the pertinent part that “[i]f two or more accused are tried together under Rule 48, separate findings shall be made as to each accused”. Notwithstanding this provision, the Appeals Chamber observes that the Rules anticipate that two or more accused may be tried together on the basis of the same crimes.[2] Indeed, jurisprudence regarding the advantages of joint trials reflects that they may be used to ensure that the same evidence is available and assessed with regard to each accused and thus result in a greater likelihood of consistent evaluation of the evidence, findings, and verdicts on the basis of the same facts.[3] In this context, a trial chamber may make findings of guilt for more than one co-accused on the basis of the same evidence so long as a majority of the trial chamber is satisfied that each accused’s guilt is established beyond reasonable doubt.[4]

141. The Trial Chamber concluded that Nzuwonemeye’s involvement in the killings of the Prime Minister and the Belgian peacekeepers had been proved in light of the evidence before it.[5] It made individualized findings regarding the applicable forms of responsibility and separately identified the counts and crimes for which Nzuwonemeye was convicted.[6] Accordingly, the Appeals Chamber is not convinced that Nzuwonemeye has identified any violation of Rule 87(B) of the Rules.

[1] Nzuwonemeye Appeal Brief [Nzuwonemeye Appellant’s Brief, 23 January 2012 (confidential); Corrigendum to Nzuwonemeye Appellant’s Brief, 1 February 2012 (confidential)], paras. 131, 132, citing Trial Judgement, paras. 47-50, 64-66, 1715-1719, 1730, 1733-1735, 1739, 1740, 1744, 1745, 1853-1889, 2090.

[2] See Rules 48, 48bis, 49, and 82 of the Rules.

[3] See Pandurević and Trbić Decision of 24 January 2006 [Prosecutor v. Vinko Pandurević and Milorad Trbić, Case No. IT-05-86-AR73.1, Decision on Vinko Pandurević’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of the Accused, 24 January 2006], para. 23.

[4] See Rule 87(A) of the Rules.

[5] See Trial Judgement, paras. 1715, 1719, 1740, 1744, 1745, 1888, 2093, 2094, 2098.

[6] See Trial Judgement, paras. 1745, 1888, 1889, 2013-2025, 2093-2095, 2098, 2107, 2146, 2149, 2154, 2155, 2163.

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ICTR Rule Rule 87(B)
Notion(s) Filing Case
Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

195. The Appeals Chamber recalls that where the Indictment is found to be defective, an appellant who raises a defect in the indictment for the first time on appeal bears the burden of showing that his ability to prepare his defence was materially impaired. Where, however, an accused had already raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate on appeal that the accused’s ability to prepare a defence was not materially impaired.

196. With regard to the Trial Chamber’s finding that Sagahutu issued an operational instruction in relation to the Belgian peacekeepers’ access to the Prime Minister’s residence and sent an armoured unit and supplies to his subordinates on the ground, the Trial Chamber relied on the evidence of Prosecution Witnesses AWC, ALN, DA, and HP.[3] The Appeals Chamber notes that, in his closing arguments, Sagahutu made a general objection in relation to the pleading in the Indictment of the charge regarding the killing of the Prime Minister.[4] Nonetheless, Sagahutu did not take specific issue with the introduction of particular material facts during the testimony of Witnesses AWC, ALN, DA, and HP.[5] Therefore, the Appeals Chamber considers that Sagahutu did not make a specific and timely objection at trial to the lack of pleading in the Indictment of these material facts. In such circumstances, it falls on Sagahutu to demonstrate that the preparation of his defence was materially impaired by these omissions in the Indictment.[6]

[1] Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

[2] Muvunyi I Appeal Judgement, para. 41; Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

[3] See Trial Judgement, paras. 1715-1720, 1740, 1744. See also Trial Judgement, paras. 1625-1628, 1632-1635, 1638, 1642, 1643.

[4] Sagahutu Closing Arguments, T. 25 June 2009 p. 83 (“Concerning the murder of [the] Prime Minister […] [i]n the Ntagerura [et al.] case, it was held that the Accused was charged [with] having planned, incited, committed, ordered or aided and abetted, and executed the alleged crimes. The Prosecutor should spell out the actions and the line of conduct of the Accused which give rise to the charges that are brought against him. This was not proven by the Prosecutor insofar as Captain Innocent Sagahutu is concerned”.). In his Closing Brief, Sagahutu generally objected to the Prosecution’s failure to plead in the Indictment his “role” in the killing of the Prime Minister. See Sagahutu Closing Brief [The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Mémoire final du Capitaine Innocent Sagahutu (confidential), 31 March 2009 (English translation filed on 16 June 2009)], para. 55 (“[a]ux paragraphes 78, 103 à 107, le Procureur ne montre pas le rôle que le Capitaine Sagahutu aurait joué en tant que commandant de l’Escadron A ou comme supérieur hiérarchique”.).

[5] On the issue of the armoured unit: Witness ALN, T. 29 September 2004 pp. 45, 47; Witness DA, T. 11 January 2005 pp. 40-44, 53; Witness AWC, T. 18 January 2006 pp. 29-31. On the issue of supplies: Witness DA, T. 11 January 2005 pp. 56-58, 65, 71; T. 12 January 2005 p. 7; T. 13 January 2005 p. 10; Witness HP, T. 9 May 2005 pp. 21, 22, 24. Sagahutu did not challenge the pleading of these material facts in the Indictment at trial. See Sagahutu Closing Brief, paras. 54-57, 71-74, 76-79, 225-230, 234, 236, 240, 509, 516, 663. The Appeals Chamber notes further that Sagahutu challenged the credibility of the testimonies of Witnesses DA, HP, and AWC relating to the allegation of sending supplies and an armoured unit. See Sagahutu Closing Brief, paras. 240, 242, 243, 246, 287, 289-292, 509, 516, fn. 241; Sagahutu Closing Arguments, T. 25 June 2009 pp. 83, 84. The Appeals Chamber notes that during examination-in-chief, Witness DA attributed the instruction regarding the access of the Belgian peacekeepers to the Prime Minister’s residence to Nzuwonemeye. See Witness DA, T. 11 January 2005 pp. 48 (“There was a message from Bizimungu and addressed to Sagahutu stating that Belgian soldiers wanted to get in where he was, and he was asking him to say whether he should allow those Belgian soldiers to get in”.), 49 (“Warrant Officer Bizimungu said that the vehicles on board which were -- where he was, wanted to get in where he was, that is, in the [P]rime [M]inister’s residence, and he was asking whether he should be allowed to let those vehicles get in where he was. That was the content of that message. […] That message was meant for Sagahutu, and the person who responded to it was the commander of the battalion, who said that they should let them in but that they shouldn’t be let out with anything whatsoever”.). However, during cross-examination, Witness DA attributed this instruction to Sagahutu. See Witness DA, T. 24 January 2005 p. 38 (“Q. Are you able then to say who was in charge of the radio during the day of 7th April 1994? […] Q. […] Are you able to tell the Court – let me rephrase my question. You heard Bizimungu call Major Nzuwonemeye? A. No, he was speaking, rather, to Sagahutu and not to Nzuwonemeye.”). It should be noted that the Trial Chamber in its summary of Witness DA’s evidence only referred to his evidence given during examination-in-chief. See Trial Judgement, paras. 1624-1631.

[6] See Ntagerura et al. Appeal Judgement, paras. 31, 138; Kvočka et al. Appeal Judgement, para. 35; Niyitegeka Appeal Judgement, para. 200.

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Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

22. The Appeals Chamber recalls that, at trial, determining the appropriate remedy in light of a violation of Rule 68 of the Rules falls within the broad discretion of the trial chamber.[1] A trial chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

23. In the view of the Appeals Chamber, Ndindiliyimana does not demonstrate that the Trial Chamber abused its discretion in fashioning the remedies for the Prosecution’s disclosure violations. Recalling witnesses[3] and admitting new evidence[4] are appropriate remedies where disclosure violations have resulted in prejudice to an accused.[5] Where an accused’s fair trial rights have been violated, a reduction of the sentence may be an appropriate remedy if the accused was convicted at trial.[6] However, the relief requested by Ndindiliyimana at trial and on appeal – dismissal of the charges against him – is not necessarily appropriate even where prejudice to the accused has been demonstrated.[7]

[1] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006 (“Karemera et al. Appeal Decision of 28 April 2006”), para. 7 (“If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves. The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case”.)(internal citations omitted).

[2] Kalimanzira Appeal Judgement, para. 14; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 26 September 2006 (“Bagosora et al. Appeal Decision of 26 September 2006”), para. 6.

[3] Karemera et al. Appeal Decision of 28 April 2006, para. 8.

[4] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000, para. 31. Cf. Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Decision on Ephrem Setako’s Motion to Amend his Notice of Appeal and Motion to Admit Evidence, filed confidentially on 23 March 2011, public redacted version filed on 9 November 2011 (“Setako Appeal Decision of 23 March 2011”), para. 16.

[5] Where a violation of Rule 68 of the Rules has occurred, a chamber must examine whether the Defence has been prejudiced by the violation before considering whether a remedy is appropriate. Setako Appeal Decision of 23 March 2011, para. 14; Kalimanzira Appeal Judgement, para. 18.

[6] Kajelijeli Appeal Judgement, para. 255. Cf. Setako Appeal Judgement, para. 297.

[7] See Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi and Mugiraneza Decision of 24 September 2012”), paras. 17, 22, 27, 28, 33, 38. 

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Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

292. The Appeals Chamber observes that the Trial Chamber did not make express findings on the mens rea and actus reus related to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute.[1] The Trial Chamber’s reasoning fails to specify when, where, how, and to whom Nzuwonemeye and Sagahutu issued instructions to commit an offence upon which their ordering liability for the killing of the Prime Minister could be founded.[2] Similarly, the Trial Chamber failed to identify in the Trial Judgement what conduct on the part of Nzuwonemeye and Sagahutu had a “direct and substantial effect” on the killing of the Prime Minister.[3]

293. The Appeals Chamber recalls that, as part of fair trial guarantees, a trial chamber is required to provide a reasoned opinion under Article 22(2) of the Statute and Rule 88(C) of the Rules.[4] Consequently, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis on which it reached the decision to convict or acquit an accused.[5] In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[6] The Appeals Chamber finds that the Trial Chamber’s failure to make mens rea and actus reus findings in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering amounts to a failure to provide a reasoned opinion. The Trial Chamber’s failure to provide a reasoned opinion amounts to an error of law which allows the Appeals Chamber to consider the relevant evidence and factual findings in order to determine whether a reasonable trier of fact could have found beyond reasonable doubt that the requisite actus reus and mens rea were established in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute.[7]

[1] Trial Judgement [The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Judgement and Sentence, pronounced on 17 May 2011, filed in writing on 17 June 2011], paras. 2093, 2146.

[2] Trial Judgement, paras. 2093, 2146.

[3] Trial Judgement, paras. 2093, 2146.

[4] See, e.g., Nchamihigo Appeal Judgement, para. 165; Krajišnik Appeal Judgement, para. 139; Muvunyi I Appeal Judgement, para. 144.

[5] See Hadžihasanović and Kubura Appeal Judgement, para. 13.

[6] Renzaho Appeal Judgement, para. 320; Kajelijeli Appeal Judgement, para. 60; Kordić and Čerkez Appeal Judgement, para. 383. Cf. Orić Appeal Judgement, para. 56.

[7] Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 683; Kalimanzira Appeal Judgement, paras. 100, 200. See also Perišić Appeal Judgement, para. 92.

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Decision Regarding Recusal of Judge - 24.02.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

15. The Panel considers as insubstantial the argument of the Defence that Judge Liu, having disagreed with the majority in the decision to disqualify Judge Harhoff as a Judge in the Šešelj case, is not in a position to adjudicate the Motion to vacate the Trial Judgement without an unacceptable appearance of bias. The Panel, in this context, considers that Judge Liu's position on the bench of a special chamber deciding on the matter of Judge Harhoff's disqualification in the Šešelj case at trial level must be distinguished from his adjudication of the Motion to Vacate the Trial Judgement in the Stanišić and Župljanin case as a member of the Appeals Chamber. In this latter capacity Judge Liu is not, as the Defence argues, dealing with the issue of disqualification of Judge Harhoff as such.[1] Notwithstanding the fact that the basis for the disqualification of Judge Harhoff may be a relevant factor when considering the Motion to Vacate the Trial Judgement, the Panel finds that consideration of this factor does not of itself constitute a circumstance which would lead a reasonable and informed observer to be of the view that Judge Liu might not bring an impartial and unprejudiced mind to the issues to be adjudicated in that motion.

16. The Panel concludes that the Defence has not demonstrated, as required, a reasonable apprehension of bias on the part of Judge Liu from the standpoint of a reasonable observer. It is not convinced by the submissions of the Defence that Judge Liu, having previously dissented on the issue of disqualification of Judge Harhoff, would be unable to impartially decide on the Motion to Vacate the Trial Judgement. In this respect, the Panel concurs with the reasoning set out by the Acting President in his Decision on Motion for Recusal in that a motion to vacate a trial judgement involves issues that need not be addressed in the context of a motion to disqualify a Judge.[2]

[1] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Stojan Župljanin’s Reply to Prosecution’s Response to Motions to Vacate Trial Judgement, Provisional Release and for Recusal of Judge Liu Daqun, 28 October 2013], para. 12.

[2] [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Motion Requesting Recusal, 3 December 2013], para. 23 and fn. 37. 

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Appeal Judgement - 27.01.2014 ĐORĐEVIĆ Vlastimir
(IT-05-87/1-A)

831. The Appeals Chamber recalls that trial chambers are not inherently precluded from entering a conviction for a crime on the basis of more than one mode of liability, if this is necessary to reflect the totality of an accused’s criminal conduct.[1] The Appeals Chamber considers that the Trial Chamber correctly set out the applicable law in relation to the entering of convictions on the basis of multiple modes of liability.[2] The Appeals Chamber further recalls that the scope of a convicted person’s criminal responsibility must be unequivocally established[3] and that a trial chamber must “identify unambiguously the mode(s) of liability for which an accused is convicted and the relation between them”.[4] The Appeals Chamber emphasises that whether single or multiple forms of responsibility are found to be appropriate, it is the crime itself, rather than the mode of liability, for which an accused person is convicted.[5] It follows that any sentence imposed by a trial chamber must correspond to the totality of the criminal conduct of a convicted person, and that the convicted person must not be punished more than once for the same conduct.[6] In this regard, the Appeals Chamber is satisfied that the Trial Chamber convicted Đorđević for the crimes once, on the basis of two modes of liability, and not, as he contends, twice for the same crimes.[7] Accordingly the Appeals Chamber finds that, as a matter of law, it was within the Trial Chamber’s discretion to enter convictions on the basis of more than one mode of liability.

832. The Appeals Chamber observes, however, that, contrary to the Prosecution’s submission,[8] the conduct relied upon to establish Đorđević’s liability pursuant to aiding and abetting is entirely encapsulated within the conduct the Trial Chamber relied on to establish his participation in the JCE, and that the Trial Chamber made no distinction between the acts committed by Đorđević with respect to either form of liability.[9] In these circumstances, the Trial Chamber’s conclusion that “[t]hese facts are sufficiently compelling to also maintain the conviction for aiding and abetting […] in order to fully encapsulate [Đorđević’s] criminal conduct” does not provide any explanation of the relationship between the two modes of liability.[10] As a result, the Trial Chamber fails to articulate why both modes of liability were necessary to reflect the totality of his conduct,[11] particularly in light of its explicit finding that Đorđević’s “primary criminal liability in this case is by virtue of his participation […] in a joint criminal enterprise”.[12] In the Appeals Chamber’s view this constitutes a failure to provide a reasoned opinion, and amounts to an error of law.[13]

[1]  See Nahimana et al. Appeal Judgement, para. 483; Ndindabahizi Appeal Judgement, para. 122; Kamuhanda Appeal Judgement, para. 77. See also D. Milošević Appeal Judgement, para. 274.

[2]  Trial Judgement, para. 2194, citing Nahimana et al. Appeal Judgement, para. 483; Ndindabahizi Appeal Judgement, paras 122-123; Kamuhanda Appeal Judgement, para. 77.

[3]  Ndindabahizi Appeal Judgement, para. 122.

[4]  Ndindabahizi Appeal Judgement, para. 123. See also Ndindabahizi Appeal Judgement, para. 122.

[5]  See Ndindabahizi Appeal Judgement, para. 122. See also Kamuhanda Appeal Judgement, Separate and Partially Dissenting Opinion of Judge Shahabuddeen, para. 405.

[6]  See Ndindabahizi Appeal Judgement, para. 122. See also Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 10. See also Kamuhanda Appeal Judgement, Separate Opinion of Judge Wolfgang Schomburg, para. 389.

[7]  See Trial Judgement, paras 2194, 2230. Contra Đorđević Appeal Brief [Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-A Vlastimir Đorđević’s Appeal Brief, 15 August 2011 (confidential; public redacted version filed on 23 January 2012)], paras 380-381.

[8]  See supra, para. 827; Appeal Hearing, 13 May 2013, AT. 136. The Appeals Chamber notes that the Prosecution’s suggestion that the Trial Chamber relied on a partially different conduct in finding aiding and abetting is unconvincing. The Prosecution refers to one concluding paragraph on Đorđević’s criminal liability, and ignores the Trial Chamber’s other findings on aiding and abetting (compare Trial Judgement, para. 2194 with Trial Judgement, paras 2160-2164).

[9]  Compare Trial Judgement, paras 2154-2158 with Trial Judgement, paras 2160-2164. The Appeals Chamber notes in particular the Trial Chamber’s discussion of Đorđevic’s failure to take steps to prevent any investigation into crimes, his active role in engaging volunteers and paramilitary units, and his leading role in MUP efforts to conceal killings (see Trial Judgement, paras 2154-2156, 2163).

[10]  See Trial Judgement, para. 2194.

[11]  See Trial Judgement, para. 2194.

[12] Trial Judgement, para. 2213 (emphasis added).

[13]  See supra, paras 14-15.

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Appeal Judgement - 27.01.2014 ĐORĐEVIĆ Vlastimir
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533. The Appeals Chamber observes that the Trial Chamber recognised the territorial sovereignty of the FRY and the lack of a de jure border between Montenegro and Kosovo.[1] In reaching its conclusion that a de facto border existed between Montenegro and Kosovo, the Trial Chamber considered: (i) the degree of autonomy enjoyed by Kosovo; (ii) Montenegro’s status as a republic within the FRY; and (iii) the existence of “an armed conflict between forces of the FRY and Serbia on one hand and the KLA on the other”.[2] The Trial Chamber also considered that the displacement of Kosovo Albanians from Kosovo to Montenegro would have the same effect of “serious hardship” as the displacement across a state border, and that the displacement of Kosovo Albanians out of Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[3]

534. However, in finding that a de facto border existed between Montenegro and Kosovo, the Trial Chamber failed to articulate the basis in customary international law upon which it found that a de facto border could be established in these circumstances.[4] The Appeals Chamber considers this to constitute an error of law. Consequently, the Appeals Chamber will assess whether, in light of customary international law, the circumstances of this case support the finding that a de facto border existed within the territory of the FRY, between Kosovo and Montenegro. 

535. The Appeals Chamber in Stakić previously undertook a survey of customary international law pertaining to the crime of deportation. The various sources considered in Stakić, however, do not provide any examples of an instance in which a displacement of persons from an autonomous region within a federal state to another republic within the same federal state constituted deportation.[5] Additional studies of customary international law regarding the crime of deportation were also undertaken in Judge Schomburg’s Partly Dissenting Opinion in the Naletilić and Martinović Appeal Judgement and Judge Shahabuddeen’s Partly Dissenting Opinion in the Stakić Appeal Judgement.[6] The authorities cited in these opinions, however, also do not address the issue of forcible displacement of individuals within the confines of a sovereign state by the government of that state but, instead, involve the presence of an occupying power or a contested border between two states.[7] The Appeals Chamber observes that the presence of an occupying power or of a contested border between states is not at issue in the present case.[8] The Appeals Chamber has found no support in customary international law for the proposition that a de facto border can be found within the confines of a sovereign state even where a certain degree of autonomy is exercised by portions of that state. Accordingly, the Trial Chamber’s finding that a de facto border existed based on the degree of autonomy enjoyed by Kosovo’s or Montenegro’s status as a republic within the state of the FRY finds no support in customary international law.[9]

536. In addition, the other factors considered by the Trial Chamber do not support a finding on the existence of a de facto border in customary international law. The Appeals Chamber does not intend to diminish the importance of the “serious hardship”[10] placed upon Kosovo Albanians forcibly displaced from Kosovo to Montenegro, as considered by the Trial Chamber, nor does it deny the presence of an armed conflict or the conclusion by the Trial Chamber that the displacement of Kosovo Albanians from Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[11] However, the Appeals Chamber finds no basis in customary international law, including in any of the materials considered by the Stakić Appeal Judgement or in the Partly Dissenting Opinions of Judge Schomburg and Judge Shahabuddeen, to infer the presence of a de facto border in these circumstances.[12]

[1]  See Trial Judgement, para. 1683.

[2]  Trial Judgement, para. 1683.

[3]  Trial Judgement, para. 1683.

[4]  Trial Judgement, para. 1683. See Stakić Appeal Judgement, para. 300.

[5] See Stakić Appeal Judgement, paras 290-302. The Appeals Chamber instead defined a de facto border in the negative, concluding that “constantly changing frontlines […] are neither de jure state borders nor the de facto borders of occupied territory, either of which would automatically be sufficient to amount to deportation under customary international law” (Stakić Appeal Judgement, para. 301) (citations omitted).

[6]  See Naletilić and Martinović Appeal Judgement, Separate and Partly Dissenting Opinion of Judge Schomburg, paras 3-33; Stakić Appeal Judgement, Partly Dissenting Opinion of Judge Shahabuddeen, paras 19-76.

[7]  See Naletilić and Martinović Appeal Judgement, Separate and Partly Dissenting Opinion of Judge Schomburg, para. 12, citing the RuSHA case [The United States of America v. Greifelt et al., U.S. Military Tribunal, Judgement, 10 March 1948, Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (1951), Vol. V], pp 126-127, 139. The Appeals Chamber further observes that Judge Shahabuddeen, in his Partly Dissenting Opinion, refers to the Cyprus v. Turkey case to suggest that the crossing of a front line could constitute deportation within customary international law (Stakić Appeal Judgement, Partly Dissenting Opinion of Judge Shahabuddeen, para. 23, citing Cyprus v. Turkey, European Commission of Human Rights, European Human Rights Reports, Vol. 4 (1982), pp 482-528 (“Cyprus v. Turkey case”), p. 520). The Cyprus v. Turkey case, however, also involves occupying forces which distinguishes it from the present case (see Stakić Appeal Judgement, Partly Dissenting Opinion of Judge Shahabuddeen, para. 23).

[8]  See Trial Judgement, para. 1683.

[9]  See Trial Judgement, para. 1683.

[10]  Trial Judgement, para. 1683.

[11] See Trial Judgement, para. 1683.

[12]  See supra, para. 535.

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850. The Appeals Chamber notes that the definition and elements of sexual assault have been discussed, in various degrees of detail, by several trial chambers.[1] Trial chambers have held that sexual assault is broader than rape and encompasses “all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading for the victim’s dignity”.[2] The Appeals Chamber notes that the Milutinović et al. Trial Chamber, after a thorough analysis, identified the elements of sexual assault as follows:

(a) The physical perpetrator commits an act of a sexual nature on another; this includes requiring that other person to perform such an act.
(b) That act infringes the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity.
(c) The victim does not consent to the act.
(d) The physical perpetrator intentionally commits the act.
(e) The physical perpetrator is aware that the act occurred without the consent of the victim.[3]

851. This definition was adopted by the Trial Chamber in the present case.[4] While the Appeals Chamber is satisfied that this definition correctly reflects the elements of sexual assault (other than rape), it finds that some further elaboration is useful.

852. It is evident that sexual assault requires that an act of a sexual nature take place. The Appeals Chamber notes that the act must also constitute an infringement of the victim’s physical or moral integrity.[5] Often the parts of the body commonly associated with sexuality are targeted or involved. Physical contact is, however, not required for an act to be qualified as sexual in nature.[6] Forcing a person to perform or witness certain acts may be sufficient, so long as the acts humiliate and/or degrade the victim in a sexual manner.[7] Furthermore, the Appeals Chamber agrees with the Milutinović et al. Trial Chamber that “it would be inappropriate to place emphasis on the sexual gratification of the perpetrator […]. In the context of an armed conflict, the sexual humiliation and degradation of the victim is a more pertinent factor than the gratification of the perpetrator” as it is precisely the sexual humiliation and degradation which “provides specificity to the offence”.[8] With regard to the issue of consent, the Appeals Chamber considers that any form of coercion, including acts or threats of (physical or psychological) violence, abuse of power, any other forms of duress and generally oppressive surrounding circumstances, may constitute proof of lack of consent and usually is an indication thereof.[9] In addition, a status of detention, particularly during armed conflict, will normally vitiate consent.[10]

[1]  See Milutinović et al. Trial Judgement, vol. 1, paras 195-201; Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[2]  Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186 (in these cases, the definition of sexual assault was not challenged on appeal). See Kvočka et al. Trial Judgement, para. 180, referring to Akayesu Trial Judgement, para. 688 (the definition of sexual assault was again not challenged on appeal). See Akayesu Trial Judgement, in which the Trial Chamber held that “sexual violence, which includes rape, [is] any act of a sexual nature which is committed on a person under circumstances which are coercive. [It] is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact” (Akayesu Trial Judgement, para. 688. This definition was also not challenged on appeal).

[3]  Milutinović et al. Trial Judgement, vol. 1, para. 201.

[4]  Trial Judgement, para. 1768.

[5]  See Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[6]  See Milutinović et al. Trial Judgement, vol. 1, para. 199; Akayesu Trial Judgement, para. 688.

[7] See Milutinović et al. Trial Judgement, vol. 1, para. 199; Brđanin Trial Judgement, para. 1012; Stakić Trial Judgement, para. 757; Furundžija Trial Judgement, para. 186.

[8]  Milutinović et al. Trial Judgement, vol. 1, para. 199.

[9]  See Milutinović et al. Trial Judgement, vol. 1, para. 200.

[10]  See Kvočka et al. Appeal Judgement, para. 396; Kunarac et al. Appeal Judgement, paras 132-133; Milutinović et al. Trial Judgement, vol. 1, para. 200.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
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The Appeals Chamber examined the issue of "specific direction", namely whether a chamber must determine whether the accused's alleged acts and omissions were specifically directed to assist the commission of the concerned crimes.

1622.  The Appeals Chamber recalls that where it is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.[1] In view of the divergence between the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements, on one hand, and the Perišić Appeal Judgement, on the other hand, [with regard to the issue of whether “specific direction” is an element of the actus reus of aiding and abetting liability] the Appeals Chamber, Judge Tuzmukhamedov dissenting, will determine the correct approach.[2] In so doing, mindful of its duty to act in the interests of legal certainty and predictability while ensuring that justice is done in all cases,[3] the Appeals Chamber will consider the jurisprudence of the Tribunal and the ICTR as well as customary international law to ascertain where the law stands on the issue of specific direction.

[…]

1649.  Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundžija Trial Judgement and confirmed by the Blaškić Appeal Judgement, under customary international law, the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[4] The required mens rea is “the knowledge that these acts assist the commission of the offense”.[5] The Appeals Chamber reaffirms the position taken by the Blaškić Appeal Judgement in this regard.

1650.  Accordingly, the Appeals Chamber confirms that the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”,[6] accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.[7] Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perišić Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.[8]

See also paras 1618-1621, 1623-1648, in which the Appeals Chamber examined the jurisprudence of the Tribunal and the ICTR as well as customary international law.

[1] Aleksovski Appeal Judgement, para. 111.

[2] The Appeals Chamber, Judge Tuzmukhamedov dissenting, further considers that the issue at hand concerns the constituent elements of aiding and abetting liability and that its significance warrants the intervention by the Appeals Chamber. In this regard, the Appeals Chamber also recalls that the issue was raised by the parties (Appeal Hearing, 13 Mar 2013, AT. 402-416, 418-420, 440-460). In addition, the Appeals Chamber notes in this context that the Trial Chamber found that Lazarević, as the Priština Corps Commander, was present in Kosovo and regularly inspected his troops in the field throughout the period during which the campaign of forcible displacements was carried out (see Trial Judgement, vol. 3, paras 924-925). However, the Trial Chamber did not find that he was physically present at the crime sites during the commission of the crimes by members of the VJ. Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that if it were to adopt the ruling of the Perišić Appeal Judgement requiring “explicit consideration of specific direction” in cases where the aider and abettor is “remote” (see Perišić Appeal Judgement, paras 38-39), it would be necessary to examine whether Lazarević’s assistance was remote as to require explicit consideration of specific direction. This is a matter disputed by the parties (Appeal Hearing, 13 Mar 2013, AT. 402, 418-420, 461-470). Therefore, the Appeals Chamber, Judge Tuzmukhamedov dissenting, considers that the discussion as to whether the Appeals Chamber should follow the Perišić Appeal Judgement with respect to the issue of specific direction cannot be circumvented in determining the outcome of the present case. The Appeals Chamber further considers that even if the application of the ruling of the Perišić Appeal Judgement would not ultimately invalidate the Trial Judgement, it may “hear appeals in which a party has raised a legal issue that would not lead to the invalidation of the trial judgement but that is nevertheless of general significance to the Tribunal’s jurisprudence”, so long as such issues have a nexus with the case at hand (see supra, para. 19), and references therein; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p. 3).

[3] See Aleksovski Appeal Judgement, paras 101-106, 111.

[4] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, paras 471-481.

[5] Blaškić Appeal Judgement, para. 46, quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. See also Taylor Appeal Judgement, para. 436.

[6] Mrkšić and Šljivančanin Appeal Judgement, para. 159. In these circumstances, the Mrkšić and Šljivančanin Appeal Judgement was not required to provide cogent reasons as there was no departure from the prevailing jurisprudence. See also Lukić and Lukić Appeal Judgement, para. 424.

[7] The Appeals Chamber notes that during the interval between the rendering of the Mrkšić and Šljivančanin Appeal Judgement and the Perišić Appeal Judgement, three ICTR appeal judgements mention specific direction in passing, but do not consider it to be a required element of this mode of liability. See Ntawukulilyayo Appeal Judgement, paras 214, 216; Rukundo Appeal Judgement, para. 52; Kalimanzira Appeal Judgement, paras 74, 79. See also supra, fn. 5336. Significantly, the Lukić and Lukić Appeal Judgement explicitly states: “In Mrkšić and Šljivančanin, the Appeals Chamber has clarified that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting and finds that there is no ‘cogent reason’ to depart from this jurisprudence” (see Lukić and Lukić Appeal Judgement, para. 424 (internal quotation marks and references omitted, emphasis added)).

[8] See also supra, paras 1621-1622. See Aleksovski Appeal Judgement, para. 111.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
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1772. It is firmly established in the jurisprudence of the Tribunal that to satisfy the mens rea requirement for aiding and abetting, it must be shown that the aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator.[1] In addition, the Appeals Chamber recalls that it is not necessary that the aider and abettor know the precise crime that was intended and was in fact committed – if he is aware that one of a number of crimes will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.[2]

1773. The Appeals Chamber has previously defined “specific crime” as referring to, for example, “murder, extermination, rape, torture, wanton destruction of civilian property, etc.”[3] There is no legal requirement that the aider and abettor know every detail of the crime that was eventually committed. Nonetheless, the degree of knowledge pertaining to the details of the crime required to satisfy the mens rea of aiding and abetting will depend on the circumstances of the case, including the scale of the crimes and the type of assistance provided.

[1] Haradinaj et al. Appeal Judgement, para. 58, referring to, inter alia, Aleksovski Appeal Judgement, para. 163, Orić Appeal Judgement, para. 43, Simić Appeal Judgement, para. 86.

[2] Haradinaj et al. Appeal Judgement, para. 58; Blaškić Appeal Judgement, para. 50.

[3] Tadić Appeal Judgement, para. 229(iii); Vasiljević Appeal Judgement, para. 102(i).

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
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1677. The Appeals Chamber recalls that a person may be held criminally responsible for aiding and abetting by omission where he or she fails to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime.[1] Additionally, aiding and abetting by omission necessarily requires that the accused has “the ability to act, or in other words, that there were means available to the accused to fulfil this duty”.[2]

1678. The Appeals Chamber considers that while Lazarević’s failure to take investigative and punitive measures against the commission of forcible displacement may have had an effect on the ability of the military prosecutor to pursue perpetrators of such crimes, this in itself is not conclusive for the purposes of establishing aiding and abetting liability. Rather as recalled above, in order to fulfil the actus reus of aiding and abetting, it must be demonstrated that any such omission substantially contributed to the continued commission of forcible displacement.[3] […]

[1] Mrkšić and [ljivančanin Appeal Judgement, paras 134, 146, 200.

[2] Mrkšić and [ljivančanin Appeal Judgement, para. 154. See also Ntagerura et al. Appeal Judgement, para. 335.

[3] In this regard, the Appeals Chamber recalls that to incur liability for aiding and abetting by omission, it must be established that: (i) the omission had a substantial effect on the crime in the sense that the crime would have been substantially less likely had the accused acted; and (ii) the accused knew that the commission of the crime was probable and that his inaction assisted it (Mrkšić and [ljivančanin Appeal Judgement, paras 97, 101; Orić Appeal Judgement, para. 43).

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
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1604. For the foregoing reasons, the Appeals Chamber concludes that the Trial Chamber erred in failing to find Šainović and Lukić liable under Articles 5(h) and 7(1) of the Statute for committing, through their participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Beleg, Ćirez/Qirez, and Priština/Prishtina and thereby disallowing convictions against them under Count 5 in relation to these sexual assaults. The Appeals Chamber further concludes that the Trial Chamber erred in failing to find Pavković liable under Articles 5(h) and 7(1) of the Statute for committing, through his participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Priština/Prishtina and thereby disallowing convictions against him under Count 5 in relation to these sexual assaults. Consequently, the Appeals Chamber grants, in part, the Prosecution’s third ground of appeal and the Prosecution’s submissions in relation to Pavković’s responsibility pursuant to JCE III for persecution through sexual assaults committed in Priština/Prishtina.[1] However, in the circumstances of the present case, the Appeals Chamber, Judge Ramaroson dissenting, declines to enter new convictions on appeal in relation to the sexual assaults in question.[2]

See also para. 1766.

[1] See also Prosecution’s fourth ground of appeal.

[2] Article 25 (2) of the Statute [ICTY Statute] provides that “[t]he Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers” (emphasis added). See also Jelisić Appeal Judgement, para. 73, holding: “the choice of remedy lies within [the] discretion [of the Appeals Chamber]. Article 25 of the Statute (relating to appellate proceedings) is wide enough to confer such a faculty […]. The discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest. These factors (and others) would be determined on a case by case basis.” Cf. Aleksovski Appeal Judgement, paras 153-154, 192; Jelisić Appeal Judgement, para. 77; Krstić Appeal Judgement, paras 220-227, 229, p. 87; Stakić Appeal Judgement, paras 359-367, pp. 141-142; Naletilić and Martinović Appeal Judgement, paras 588-591, p. 207. 

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558. […] the Appeals Chamber recalls that although the identity of a victim is information that is valuable to the preparation of a defence,[1] convictions may be entered for unidentified victims[2] […]

[1] See supra, para. 233.

[2] E.g., Krstić Trial Judgement, paras 74, 84, 653, 688, 727.

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