201. […] Karadžić misconstrues the requirements of the principle of equality of arms, which does not, as he asserts, require placing the Defence “in the same position as the Prosecution”[1] but rather provides that each party must have a reasonable opportunity to defend its interests under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent. [2] […]

230. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in relation to the management of the proceedings before them,[1] including on decisions concerning disclosure of evidence and protective measures for witnesses.[2] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a discernible error resulting in prejudice to that party.[3]

See also para.251.

231. Rule 66(A)(ii) of the ICTY Rules provides in relevant part that, subject to Rules 53 and 69 of the ICTY Rules and within the time-limit prescribed by a trial chamber or a pre-trial Judge appointed pursuant to Rule 65 ter of the ICTY Rules, the Prosecution shall disclose to the Defence copies of the statements of all witnesses whom the Prosecution intends to call to testify at trial. At the time of the Decision on Disclosure Violation of 8 February 2012, Rule 69 of the ICTY Rules provided that:

(A) In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.

[…]

(C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence.[4]

Rule 69(C) of the ICTY Rules was amended on 28 August 2012 to read:

Subject to Rule 75, the identity of the victim or witness shall be disclosed within such time as determined by the Trial Chamber to allow adequate time for preparation of the Prosecution or defence.[5]

This remains the operative language of Rule 69(C) of the ICTY Rules. Rule 75(A) of the ICTY Rules provides that “[a] Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused”.[6]

232. The Appeals Chamber observes that in the Šešelj Decision of 24 January 2008, the ICTY Appeals Chamber stated that it did “not accept […] that Rule 69(C) must be interpreted as authorising delayed disclosure prior to the commencement of the opening of the trial only”.[7] It reasoned that the purpose of Rule 69(C) of the ICTY Rules is to allow a trial chamber to grant protective measures that are necessary to protect the integrity of its victims and witnesses, subject to the caveat that such measures are consistent with the rights of the accused to have adequate time for the preparation of his defence. The ICTY Appeals Chamber then stated that “[t]here is no rule that the rights of the defence to have adequate time for preparation mandate that delayed disclosure be granted only with reference to the beginning of trial”.[9] It concluded that “[t]he matter rather falls under the discretion of the Trial Chamber”.[10] 

233. On 14 December 2011, the ICTR Appeals Chamber in the Bagosora and Nsengiyumva case held that the trial chamber in that case had erred in ordering the prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to trial. In interpreting a provision of the ICTR Rules that was identical to Rule 69(C) of the ICTY Rules, the ICTR Appeals Chamber stated that, while a trial chamber has discretion to order protective measures where it has established the existence of exceptional circumstances, “this discretion is still constrained by the scope of the Rules”.[12] It emphasized that at the time of the trial chamber’s decision in that case, the phrase “prior to the trial” was part of Rule 69(C) of the ICTR Rules. It further stated that it did not consider that the trial chamber’s “disregard for the explicit provision of the Rules was necessary for the protection of witnesses”.[14] It noted a protective measures decision in the Nsengiyumva case prior to the joinder of the two cases[15] in which the trial chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the ICTR, but had nonetheless required that the defence be provided with unredacted witnesses statements within sufficient time prior to the trial.[16] It continued that “[a]t no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule”.[17]

[…]

235. […] While the ICTR Appeals Chamber stated that a trial chamber’s discretion to order protective measures is constrained by the scope of the Rules, which provided that such disclosure be made “prior to the trial”, it did not rule out a deviation from this requirement for the purposes of a more restrictive disclosure schedule required for the protection of witnesses. Thus, the Appeals Chamber does not consider that the Bagosora and Nsengiyumva Appeal Judgement overruled the Šešelj Decision of 24 January 2008 in which the ICTY Appeals Chamber concluded that the allowance for delayed disclosure until after the commencement of trial falls within a trial chamber’s discretion to allow such protective measures that are necessary for the protection of witnesses, subject to safeguarding the rights of the accused.[19] In this respect the Appeals Chamber notes that the ICTR Appeals Chamber in the Bagosora and Nsengiyumva Appeal Judgement did not refer to the decision of the ICTY Appeals Chamber in the Šešelj case and did not propose to depart from its reasoning. […]

262. The Appeals Chamber recalls that the purpose of Rule 70 of the ICTY Rules is to encourage States and other entities and persons to share sensitive information with parties and the ICTY by providing certain guarantees of confidentiality with respect to the information they offer.[1] Those providing information under Rule 70 of the ICTY Rules who show genuine interest in protecting the information in their possession may invoke this rule to ensure the protection of such information by requiring, inter alia, limitations on the scope of a witness’s testimony or on the dissemination of that witness’s testimony.[2] However, any such restrictions on the presentation of evidence at trial may only be allowed after the trial chamber has determined that the restrictions would not undermine the fairness of the trial.[3] In this respect, Rule 70(G) of the ICTY Rules provides that a trial chamber may exclude such evidence if its probative value is substantially outweighed by the need to ensure a fair trial.[4]

263. […] Rule 70 of the ICTY Rules does not place a burden on those providing information under this rule to substantiate their concerns. Rather, it is for the trial chamber to weigh the probative value of the information received on a confidential basis against the need to ensure a fair trial. […]

312. The Appeals Chamber recalls that, as a general principle, a party should not be permitted to refrain from objecting to a matter which was apparent during the course of the trial, only to raise it in the event of an adverse finding.[1] Further, it is settled jurisprudence that, if a party raises no objection to a particular issue before the Trial Chamber when it could have reasonably done so, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[2]

352. The right of an accused to be tried before an independent and impartial tribunal is an integral component of the fundamental right to a fair trial. Impartiality is a required quality for a judge at the Tribunal, and a judge may not sit in any case in which he has, or has had, any association which might affect his impartiality. The Appeals Chamber observes that, as a general rule, a judge should not only be subjectively free from bias but also that nothing surrounding the circumstances would objectively give rise to an appearance of bias.

353. Rule 15 of the ICTY Rules prescribes a specific procedure for challenging the participation of a judge in a case on the grounds of bias. The Appeals Chamber recalls, however, that a presumption of impartiality attaches to judges of the Tribunal which cannot be easily rebutted. Where allegations of bias are raised on appeal, there is a high threshold to reach in order to rebut the presumption of impartiality and it is for the appealing party alleging bias to set forth substantiated and detailed arguments in support of demonstrating the alleged bias.

354. The Appeals Chamber observes that, shortly after the assignment of [REDACTED] to the case, the Trial Chamber provided Karadžić with specific information concerning [REDACTED], which highlighted the relevance of this information to a potential challenge to the composition of the bench.[6] […] Karadžić did not pursue this matter at trial. The Appeals Chamber finds that Karadžić’s inaction at trial in the face of his awareness of [REDACTED], which was specifically brought to his attention by the Trial Chamber, demonstrates that he did not object to [REDACTED] participation in his case at trial on the basis of an alleged apprehension of bias and could result in the possible waiver of this argument on appeal. Notwithstanding, in view of the fundamental importance of an impartial tribunal, the Appeals Chamber holds that it would not be appropriate to apply the waiver doctrine to Karadžić’s allegation of error and will consider the matter.

396. […] [T]he Appeals Chamber recalls that a trial chamber need not refer to the testimony of every witness or every piece of evidence on the trial record.[1] It is to be presumed that a trial chamber evaluated all the evidence presented to it, as long as there is no indication that the trial chamber completely disregarded any particular piece of evidence.[2] There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the trial chamber’s reasoning.[3] If a trial chamber did not refer to specific evidence it is to be presumed that the trial chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual finding.[4] […]

See also paras. 533, 562, 563.

[…]

700. The Appeals Chamber recalls that a trial chamber is required to provide a reasoned opinion under Article 23(2) of the ICTY Statute and Rule 98 ter (C) of the ICTY Rules.[5] Consequently, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused.[6] In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[7]

See also para. 701.

[…]

702. The Appeals Chamber recalls that, in claiming an error of law on the basis of the lack of a reasoned opinion, a party is required to identify the specific issues, factual findings, or arguments that the trial chamber omitted to address and explain why this omission invalidates the decision.[8] […] [A] trial chamber is not required to articulate every step of its reasoning, that a trial judgement must be read as a whole, and that there is a presumption that the trial chamber has evaluated all the relevant evidence as long as there is no indication that it completely disregarded any particular piece of evidence.[9] There may be an indication of disregard when evidence which is clearly relevant to the findings is not addressed by the trial chamber’s reasoning.[10]

[…]

721. […] [T]he Appeals Chamber recalls that a trial chamber need not spell out every step of its analysis or unnecessarily repeat considerations reflected elsewhere in the trial judgement.[11] […]  

486. The Appeals Chamber recalls that the ICTY was bound to apply rules of international humanitarian law which are beyond any doubt part of customary international law.[1] The Appeals Chamber further recalls that there is an absolute prohibition on the targeting of civilians in customary international law.[2] However, while the Appeals Chamber of the ICTY has held that an indiscriminate attack may qualify as an attack directed against civilians or give rise to the inference that an attack was directed against civilians,[3] the legal test underpinning the principle of distinction as applied in the law of armed conflict has not been articulated by the Appeals Chambers of the ICTY or the ICTR.[4]

487. The Appeals Chamber observes that the principle of distinction is encapsulated in Additional Protocol I, and that key provisions of Additional Protocol I, including Articles 51 and 52, reflect customary international law.[5] The Appeals Chamber further observes that Additional Protocol I has been relied upon to interpret provisions of the ICTY Statute.[6] The Appeals Chamber therefore considers that, in this instance, the principle of distinction should be interpreted and applied in accordance with the relevant provisions of Additional Protocol I.

488. The Appeals Chamber observes that Article 51(4) of Additional Protocol I prohibits indiscriminate attacks, that is to say, attacks which are of a nature to strike military objectives and civilians or civilian objects without distinction.[7] Thus, in accordance with the fundamental principles of distinction and protection of the civilian population, only military objectives may be lawfully attacked.[8] The widely accepted definition of “military objectives” is set forth in Article 52(2) of Additional Protocol I as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.[9]

489. The Appeals Chamber considers that, whether a “military advantage” could have been achieved from an attack requires an assessment of whether it was reasonable to believe, in the circumstances of the person(s) contemplating the attack, including the information available to the latter, that the object was being used to make an effective contribution to military action.[10] The relevant question is whether the attacker(s) could have reasonably believed that the target was a legitimate military objective, and a useful standard by which to assess the reasonableness of such belief is that of a “reasonable commander” in the position of the attacker(s).[11]

See also para. 490 to 501.

[…]

506. […] [T]he Appeals Chamber recalls that “the indiscriminate character of an attack can be indicative of the fact that the attack was indeed directed against the civilian population”.[12] Considering that the Appeals Chamber has affirmed the Trial Chamber’s conclusions that the shelling […] was indiscriminate, an additional finding that the attacks were disproportionate is not necessary to sustain the Trial Chamber’s inference that the attacks were “directed against civilians”.

598. […] As to Karadžić’s submission that Witness Momir Nikolić’s evidence should be rejected as uncorroborated hearsay, the Appeals Chamber recalls that trial chambers have the discretion to rely on hearsay evidence. [1] […]

629. […] [T]he Appeals Chamber reiterates that evidence of limited and selective assistance to a few individuals does not preclude a trier of fact from reasonably finding the requisite intent to commit genocide.[1] […]

659. The Appeals Chamber recalls the absolute prohibition of taking hostage of any person taking no active part in hostilities as well as detained individuals irrespective of their status prior to detention. In this respect, the ICTY Appeals Chamber had previously dismissed Karadžić’s submission that the UN Personnel were not entitled to protection under Common Article 3.[2] In the Decision of 11 December 2012, the ICTY Appeals Chamber explained that “[t]he fact that detainees are considered hors de combat does not render their detention unlawful in itself. Rather, their hors de combat status triggers Common Article 3’s protections, including the prohibition on their use as hostages.”[3] Therefore, whether the detention of the UN Personnel was lawful or not would have no bearing on the applicability of the prohibition on hostage-taking under Common Article 3. Consequently, the Appeals Chamber dismisses Karadžić’s argument that the Trial Chamber erred in not considering unlawful detention to be an element of hostage-taking. In light of these considerations, the Appeals Chamber finds it unnecessary to address Karadžić’s remaining contentions.