42. As recently recalled by the Appeals Chamber:

A participant in the International Tribunal’s legal aid system has the right to competent assigned counsel. An assigned counsel is presumed to be competent and such a presumption can only be rebutted by evidence to the contrary. Among other things, an appellant must demonstrate “gross incompetence” on the part of the assigned counsel.[1]

The Appeals Chamber further recalls that unless gross negligence is shown in the conduct of defence counsel, due diligence as a matter of professional conduct of counsel will be presumed.[2] In addition, while a Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused (Article 20(1) of the Statute), it is not for the Trial Chamber to dictate to a party how to conduct its case. If an accused believes that his right to effective assistance is being infringed by the conduct of his counsel, it is his responsibility to draw the Trial Chamber’s attention to the problem. If this was not done at trial, he can only be successful on appeal upon showing that the counsel’s incompetence was manifest and that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.[3]

In the context of the present appeal, the Appeals Chamber examined an array of allegations concerning the alleged incompetence and/or negligence of Krajišnik’s Counsel at trial, including commencing a case when manifestly unprepared, failure to utilise the pre-trial resources allocation properly, failure to review disclosure materials adequately, failure to work full time on the case during the trial period, failure to develop or implement a defence strategy, failure to test Prosecution evidence adequately, failure to properly select Defence witnesses to be called, failure to appeal decisions, counsel’s desinterest in the case, etc., but concluded that gross professional negligence was not shown (paras 44-72, 392-415).

119. As noted above,[1] the Trial Chamber exceptionally and temporarily allowed Krajišnik to supplement his Counsel’s cross-examination with his own questions to the witness pending final decision on his request to self-represent.[2] The Appeals Chamber is of the view that the Trial Chamber acted within its discretion in doing so. The Appeals Chamber has already recognised that an accused represented by counsel may in certain circumstances directly put questions to a witness, subject to the Trial Chamber’s supervision.[3] In the Appeals Chamber’s opinion, the circumstances at hand (the pending request to self-represent) made it appropriate to allow Krajišnik to put questions to the witnesses after the cross-examination of Counsel. The Appeals Chamber further notes that the Trial Chamber explicitly warned Krajišnik of the risks connected with taking an active role in cross-examinations.[4] In the circumstances, the Appeals Chamber is not persuaded that Amicus Curiae has shown that the Trial Chamber’s decision rendered the trial unfair. The only concrete prejudice alleged by Amicus Curiae concerns Krajišnik’s handling of the cross-examination of Witness Davidović,[5] but he does not provide any reference in this regard and the Appeals Chamber can not thus assess this contention.

Agreeing with a similar finding of the ICTR Appeals Chamber in Karera, the Appeals Chamber held that Rule 90(H)(ii) of the Rules does not apply to an accused testifying in his own case.

367. The Appeals Chamber recalls that this Rule seeks to facilitate the fair and efficient presentation of evidence whilst affording the witness being cross-examined the possibility of explaining himself on those aspects of his testimony contradicted by the opposing party’s evidence, so saving the witness from having to reappear needlessly in order to do so and enabling the Trial Chamber to evaluate the credibility of his testimony more accurately owing to the explanation of the witness or his counsel.[1]

Hence, the Appeals Chamber agrees that the central purpose of the Rule in question “is to promote the fairness of proceedings by enabling the witness on the stand to appreciate the context of the cross-examining party’s questions, and to comment on the contradictory version of the events in question”.[2]

368. The Appeals Chamber stresses that, in order to fulfil the requirements of Rule 90(H)(ii) of the Rules, it is sufficient that the cross-examining party put the nature of its case to the witness, meaning the general substance of its case conflicting with the evidence of the witness, chiefly to protect this witness against any confusion.[3] There is no need for the cross-examining party to explain every detail of the contradictory evidence, and the Rule allows for some flexibility depending on the circumstances of the trial.[4] In particular, if it is obvious in the circumstances of the case that the version of the witness is being challenged, there is no need for the cross-examining party to waste time putting its case to the witness.[5]

The Appeals Chamber confirmed, however, that this provision does not apply when an accused testifies in his own defence as “he is well aware of the context of the Prosecution’s questions and of the Prosecution’s case, insofar as he has received sufficient notice of the charges and the material facts supporting them.” (para. 369, citing Karera Appeal Judgement, para. 27).

133. The Appeals Chamber recalls that before taking up duties, every Judge of the Tribunal solemnly declares that he will perform his or her duties and exercise his or her powers honourably, faithfully, impartially and conscientiously.[1] There is a strong presumption that the Judges act in accordance with this oath.[2] A party must adduce sufficient evidence to rebut this presumption.[3] The Appeals Chamber is not convinced that Amicus Curiae has done so here.

134. Just as general observations on the length of the Trial Judgement, or of particular parts of the Trial Judgement, usually do not suffice to show an error of law because of a lack of reasoned opinion,[4] general comments on the length of the deliberations are insufficient to show improprieties in the deliberative process. Here, Amicus Curiae claims that it was impossible to deliberate properly on such a complex case in only 18 working days, but he brings no evidence to substantiate this claim. In particular, he fails to show that conclusions were reached by other persons than the Judges or that preparatory work overreached into the area of deliberation. In this connection, the Appeals Chamber considers that in cases of the size and complexity of the case at stake, given that as a matter of fairness judgements must be issued in a reasonable time, preparatory work can and should be done as the case goes. This is not to suggest that decisions should be taken by others than the Judges or that any improper decisions should be taken by the Judges in advance of hearing all the evidence. However, there are numerous steps than can and should be taken which will place the Bench in the best situation possible following closing arguments to prepare a reasoned, clear and concise judgement within a reasonable time frame. Against this background, the Appeals Chamber cannot infer that the deliberation process was corrupted. This sub-ground is dismissed.

139. As recently recalled by the Appeals Chamber:

The fair trial requirements of the Statute include the right of each accused to a reasoned opinion by the Trial Chamber under Article 23 of the Statute and Rule 98ter(C) of the Rules. A reasoned opinion ensures that the accused can exercise his or her right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 25 to review these appeals. The reasoned opinion requirement, however, relates to a Trial Chamber’s judgement rather than to each and every submission made at trial.[1]

As a general rule, a Trial Chamber “is required only to make findings on those facts which are essential to the determination of guilt on a particular count”;[2] it “is not required to articulate every step of its reasoning for each particular finding it makes”[3] nor is it “required to set out in detail why it accepted or rejected a particular testimony.”[4] However, the requirements to be met by the Trial Chamber may be higher in certain cases.[5] It will be “necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.”[6]

141. […] The Trial Chamber does not have to refer to the testimony of every witness or every piece of evidence on the trial record; it is to be presumed that the Trial Chamber evaluated all the evidence before it.[7] In fact, the Trial Chamber specifically stated that it had “carefully deliberated” on the evidence presented to it. Both impugned passages merely stress the fact that the Trial Chamber could not present and discuss “all the evidence” in the judgement, a statement which cannot, by itself, be equated with a failure to examine the evidence in question, nor with a failure to provide sufficient reasons for the conclusions reached in the Trial Judgement. The Appeals Chamber considers that the approach taken by the Trial Chamber in the impugned paragraphs was not in error.

142. The Appeals Chamber also recalls that it is necessary for any appellant claiming an error of law based on the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which the appellant submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.[8] […]

The Trial Chamber found that deportation, forcible transfer and persecution based thereon, were the original crimes of the common objective of the JCE 1. It further held that other, expanded crimes were added to the JCE, after leading members of the JCE became aware of them, accepted them and came to intend them. The Appeals Chamber was not satisfied, however, that the Trial Chamber found that Krajišnik incurred liability under JCE 3 for the first commissions of these expanded crimes.

167. The Appeals Chamber first notes that, in the Indictment, the Prosecution pled Krajišnik’s liability pursuant to JCE Category 1 and alternatively, pursuant to JCE Category 3.[1] However, the Appeals Chamber is not persuaded by the submission that the Trial Chamber found that Krajišnik incurred responsibility pursuant to JCE Category 3. First, although the Trial Chamber raised the question of whether Krajišnik incurred liability under JCE Category 3 for some of the crimes,[2] it never returned to answer that question. Instead, it focused its analysis on whether the expanded crimes became incorporated into the common objective,[3] thereby resulting in responsibility for Krajišnik under JCE Category 1 once they had been incorporated.[4] Had the Trial Chamber intended to find Krajišnik liable for the expanded crimes under JCE Category 3 before they had become part of the common objective, it would, at the very least, have made some distinction between the first commissions of the expanded crimes (when they were not yet part of the common objective) and their commission after they had become part of the common objective. However, the Trial Chamber made no such distinction. This indicates that the Trial Chamber found Krajišnik responsible under JCE Category 1 alone, and not under JCE Category 3.

168. Likewise, the other findings of the Trial Chamber invoked by the Prosecution do not reveal that it found Krajišnik criminally responsible under JCE Category 3. The Trial Chamber found that “even before the Bosnian-Serb take-overs began in April 1992, the Accused and Radovan Karadžić were aware that an armed conflict between the ethnic groups would have devastating consequences”.[5] This finding falls short, however, of demonstrating Krajišnik’s mens rea for JCE Category 3. Similarly, the Trial Chamber’s finding that “the Accused’s criminal responsibility arises with the attack and crimes committed in Bijeljina municipality in the beginning of April 1992”[6] does not show that the commission of expanded crimes was a natural and foreseeable consequence of the common objective. Its broad, summary finding in paragraph 1119 of the Trial Judgement that Krajišnik “had the mens rea required for the commission of the crimes which the Chamber, in part 5 of this judgement, has found were committed” does not address whether and when his liability arose under JCE Category 1 or JCE Category 3.[7] The preceding paragraphs 1110 to 1118 of the Trial Judgement do not clarify the matter, as they only generally describe how JCE members became aware of the commission of the expanded crimes “during the course of the indictment period”.[8] The Trial Chamber also found that “[t]ake-overs, killings, detention, abuse, expulsions, and appropriation and destruction of property […] were launched in early April 1992, and were repeated throughout the claimed territories in the months to come. This was the Bosnian-Serb leadership’s goal”.[9] However, this finding was made in the context of rejecting the Prosecution’s interpretation of the “Six Strategic Goals”,[10] and before the Trial Chamber had even reached the question of whether Krajišnik incurred liability pursuant to JCE Category 3.

169. Thus, having considered the Trial Judgement as a whole, the Appeals Chamber is not satisfied that the Trial Chamber made a finding that Krajišnik incurred criminal liability under JCE Category 3 for the first commissions of the expanded crimes, that is, before they became part of the common objective. Instead, the Trial Chamber only held Krajišnik responsible under JCE Category 1 for their subsequent commissions, that is, once they had become part of the JCE.

Furthermore, the Trial Chamber made insufficient findings as to when the expanded crimes became incorporated into the common objective. Hence, Krajišnik’s convictions for all expanded crimes were quashed.

171. The Appeals Chamber notes that in order to impute responsibility to leading JCE members, including Krajišnik, for the expanded crimes, the Trial Chamber was therefore required to make findings as to (1) whether leading members of the JCE were informed of the crimes, (2) whether they did nothing to prevent their recurrence and persisted in the implementation of this expansion of the common objective, and (3) when the expanded crimes became incorporated into the common objective. It is apparent that the Trial Chamber only made scarce findings in relation to each of these requirements.

172. The Appeals Chamber first notes that the Trial Judgement’s section on the common objective[11] offers only a few “illustrative” factual findings[12] on when “leading JCE members” – a term nowhere defined in the Trial Judgement[13] – became “aware” of the commission of expanded crimes.[14] Furthermore, the Trial Chamber did not make any findings in accordance with its prior statement that in order for expanded crimes to be included in the common objective, “leading JCE members” not only had to be informed of them but, additionally, took no effective measures to prevent their recurrence, and persist in the implementation of the common objective, thereby coming to intend these expanded crimes.

173. Even more significantly, while the Trial Chamber characterised “the common objective [of the JCE] as fluid in its criminal means”,[15] it did not explicitly find at which specific point in time the expanded crimes became part of the common plan and whether the JCE members had any intent in respect thereof. For instance, the Trial Chamber stated that the murder of civilians “was soon incorporated as an intended crime”,[16] that the Bosnian-Serb leadership “very soon came not only to accept killings […] but also to encourage them”,[17] and that the “appropriation of property […] had become a means of forcible ethnic recomposition”.[18] The Trial Chamber only generally found that these crimes “came to redefine the criminal means of the JCE’s common objective during the course of the indictment period.”[19] Similarly, in those instances where the Trial Chamber referred to a particular month in which leading JCE members became aware of the commission of expanded crimes, it did not specify the date when this happened or whether Krajišnik was among the leading JCE members who gained such awareness, let alone when leading JCE members went from being merely aware of the crime to intending it.

174. Furthermore, with respect to the “local component” of the JCE,[20] the Trial Chamber did not make any findings when members of this group became aware of the expanded crimes. Consequently, the Trial Chamber did not find at what point in time the expanded crimes became incorporated in the common objective through the involvement of the members of the local component of the JCE.

175. In light of these scarce – or entirely absent – findings, the Appeals Chamber is not able to conclude with the necessary preciseness how and at which point in time the common objective of the JCE expanded to include other crimes that originally were not included in it, and, consequently, on what basis the Trial Chamber imputed those expanded crimes to Krajišnik.

176. Neither the Appeals Chamber nor the Parties can be required to engage in speculation on the meaning of the Trial Chamber’s findings – or lack thereof – in relation to such a central element of Krajišnik’s individual criminal responsibility as the scope of the common objective of the JCE. Aside from merely stating that the common objective was “fluid”,[21] the Trial Chamber was required to precisely find how and when the scope of the common objective broadened in order to impute individual criminal responsibility to Krajišnik for those crimes that were not included in the original plan, i.e the expanded crimes.

177. In conclusion, the Appeals Chamber finds that the Trial Chamber committed a legal error[22] in failing to make the findings necessary for Krajišnik’s conviction in relation to the following expanded crimes, which were not included in the original common objective of the JCE.

The Appeals Chamber considered the link between Krajišnik and other JCE members and the principal perpetrators of crimes who were not proven to be members of the JCE.

225. In the Brđanin Appeal Judgement, the Appeals Chamber held that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member – when using the principal perpetrators – acted in accordance with the common objective.[1] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[2]

226. The establishment of a link between the crime in question and a member of the JCE is a matter to be assessed on a case-by-case basis.[3] Factors indicative of such a link include evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime. However, it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that he knew of the existence of the JCE; what matters in JCE Category 1 is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose.[4]

235. The Appeals Chamber recalls its finding in Brđanin that all JCE members are responsible for a crime committed by a non-JCE member if it is shown that the crime can be imputed to at least one JCE member, and that this JCE member – when using the non-JCE member – acted in accordance with the common objective.[5]

236. At paragraphs 883(ii), 1082 and 1086 of the Trial Judgement, the Trial Chamber held that a JCE member could incur liability for crimes committed by other JCE members or by principal perpetrators “procured” by a JCE member to commit crimes which further the common objective. The Appeals Chamber is satisfied that this standard corresponds in substance to the standard outlined in the Brđanin Appeal Judgement which was rendered after the Trial Judgement in the present case.[6] Amicus Curiae therefore fails to show an error by the Trial Chamber in this respect.

The Appeals Chamber held, however, that the Trial Chamber, in relation to the majority of crimes, erroneously failed to make findings on the link between the principal perpetrators and the members of the JCE:

237. The Appeals Chamber will now analyse whether the Trial Chamber made the necessary factual findings establishing links between the principal perpetrators of the crimes and the JCE members identified above;[7] in other words, whether the JCE members used the principal perpetrators to commit crimes in furtherance of the common purpose in the sense that the crimes can be imputed to the JCE members.[8] At the outset, the Appeals Chamber observes that the Trial Chamber did not explicitly state that JCE members procured or used principal perpetrators to commit specific crimes in furtherance of the common purpose. The Appeals Chamber finds that, while the Trial Chamber should have made such a finding, this omission, in the circumstances of this case, does not as such invalidate the Trial Judgement,[9] because the Trial Chamber otherwise established a link between JCE members and principal perpetrators of crimes forming part of the common objective. However, in relation to a large number of principal perpetrators, the Trial Chamber did not reach any definite finding on their link with one of the JCE members. The Appeals Chamber will take this into account when reviewing the Trial Chamber’s findings. This analysis must be conducted on the basis of the Trial Judgement as a whole. […]

See also, paras 598 and 714.

697. […] The Appeals Chamber finds that the Trial Chamber did not hold that Krajišnik’s mere knowledge of crimes was sufficient to establish his mens rea. Instead, the Trial Chamber found that

[t]he information the Accused received during this period is an important element for the determination of his responsibility, because knowledge combined with continuing participation can be conclusive as to a person’s intent.[1]

JCE counsel fail to show that the Trial Chamber erred in this respect.

707. With regard to Krajišnik’s mens rea, the Appeals Chamber has already found that the Trial Chamber correctly required proof that “the JCE participants, including the accused, had a common state of mind, namely the state of mind that the statutory crime(s) forming part of the objective should be carried out.”[2] Under this standard, there is no room to argue, as JCE counsel do,[3] that JCE liability can attach for mere adherence to a lawful objective. To the extent they claim that JCE liability requires an agreement, additional to the common purpose, between the JCE participants to commit the crimes,[4] this argument is erroneous in law.[5] The “bridge”, to use JCE counsel’s term,[6] between the JCE’s objective and Krajišnik’s criminal liability, as far as his mens rea is concerned, consisted of the shared intent that the crimes involved in the common objective be carried out. Such intent was both pleaded in the Indictment[7] and required by the Trial Chamber.[8] JCE counsel’s additional, bare assertion that the evidence regarding Krajišnik’s objective for Sarajevo is insufficient for criminal liability is dismissed.[9]

308. At the outset, the Appeals Chamber notes that the Trial Chamber correctly set out that “[d]eportation and forcible transfer both entail the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law”,[1] adding that international humanitarian law recognises limited circumstances under which the displacement of civilians during armed conflict is allowed.[2] The Trial Chamber was thus clearly aware of the requirement that the forced displacement be “without grounds permitted under international law”. While the Trial Chamber did not explicitly find that the forced displacements in the case at hand were “without grounds permitted under international law”, the Appeals Chamber is not satisfied that this defect of the Trial Judgement invalidates the verdict. Indeed, several sections of the Trial Judgement make clear that the Trial Chamber implicitly found that the forced displacements were “without grounds permitted under international law”, and that they occurred as a direct result of the ”severe living conditions” created by the Serb authorities and forces.[3] The Appeals Chamber agrees: clearly, the forced displacements could not be justified under international law.[4] In fact, Amicus Curiae does not even suggest that they could. These arguments are rejected.

309. […] With regard to the latter, the Appeals Chamber agrees with the statement in the Stakić Trial Judgement that deportation does not require “that a minimum number of individuals must have been forcibly transferred for the perpetrator to incur criminal responsibility” as such a requirement would be “tantamount to negating the protective effect of the prohibition against deportation.”[5] The Appeals Chamber also recalls that, except for extermination, it is not necessary that a crime be carried out against a multiplicity of victims to constitute a crime against humanity: an act directed against a limited number of victims or even against a single victim can constitute a crime against humanity, provided it forms part of a widespread or systematic attack directed against a civilian population.[6] […]

388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1]

389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions.

390. In the Trial Judgement, the Trial Chamber determined that:

[p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5]

391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed.