The Appeals Chamber considered whether persons hors de combat were within the term “civilian” in Article 5 of the Statute. It then considered whether a person hors de combat could be otherwise a victim of a crime under Article 5.

303. The second issue raised by the Prosecution is whether the condition under the chapeau of Article 5 of the Statute – that the attack be directed against a civilian population – also requires that all victims of each individual crime under Article 5 have civilian status, and in particular, whether the chapeau excludes persons hors de combat who are present within the civilian population from constituting victims of a crime against humanity. […]

The Appeals Chamber considered the Kunarac et al. Appeal Judgement, para 91, and said:

305. When dealing with the expression “directed against any civilian population”, the Tribunal has interpreted it as requiring “that the acts be undertaken on a widespread or systematic basis”.[1] [… On] the face of it, the requirement that the acts of an accused must be part of a widespread or systematic attack directed against any civilian population does not necessarily imply that the criminal acts within this attack must be committed against civilians only. The chapeau rather requires a showing that an attack was primarily directed against a civilian population, rather than “against a limited and randomly selected number of individuals.”[2]

The Appeals Chamber referred to relevant interpretative sources, including the Reports of the Secretary-General recommending the establishment of the Tribunal and of the Commission of Experts Established Pursuant to Security Council Resolution 780. It then concluded:

313. Under Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population. Further, the Appeals Chamber is satisfied that the commission of crimes under Article 5 of the Statute against persons hors de combat attracted individual criminal responsibility under customary international law at the time of the commission of the offences. Therefore, the principle of nullum crimen sine lege is not violated.[3]

314. On the basis of the above, the Appeals Chamber finds that the Trial Chamber erred in finding that, under Article 5 of the Statute, persons hors de combat are excluded from the ambit of crimes against humanity when the crimes committed against them occur as part of a widespread or systematic attack against the civilian population. Provided this chapeau requirement is satisfied, a person hors de combat may be a victim of crimes against humanity.

Martić claimed that his actions were in response to persecution of the Serb population by the Croatian authorities.  Accordingly, he submitted defences of reciprocity or tu quoque; reprisal; and self-defence. 

Martić claimed reprisal in respect of the shelling of Zagreb.  The Appeals Chamber upheld the Trial Chamber’s finding that the two requirements for reprisal – (i) the actions in question were a valid measure of last resort and (ii) a formal warning had been given to the other side – were not met.

263. On the question of reprisals, the Trial Chamber first recalled that a belligerent reprisal is an otherwise unlawful act rendered lawful by the fact that it is made in response to a violation of international humanitarian law by another belligerent.[1] It stated that a reprisal is subject to strict conditions and is only to be used as an exceptional measure.[2] Moreover, the Trial Chamber held that, even if Croatian units had committed serious violations of international humanitarian law as alleged by Martić, two of the other conditions that justify a reprisal would not have been met. First, the shelling was not a measure of last resort, because peace negotiations were conducted during Operation Flash until 3 May 1995.[3] Second, the RSK authorities had not formally warned the Croatian authorities before shelling Zagreb.[4] As a result, the Trial Chamber held that the shelling of Zagreb was illegal because it was not shown that the conditions justifying a reprisal had been met.[5]

At paras. 265-267 the Appeals Chamber held that Martić had failed to show that the Trial Chamber erred in interpreting the evidence in relation to the two conditions.

The Appeals Chamber found that a statement admitted pursuant to Rule 92 bis may only be used as the sole basis for a conviction when the accused was provided a chance to cross-examine the witness in question.

FN486. [… The] Trial Chamber admitted this witness statement under Rule 92 bis of the Rules, without providing Martić the opportunity to cross-examine the witness in question.[1] As noted above, much of the findings in relation to the crimes in Cerovljani […] depend exclusively on this statement, with no corroboration. Thus, this evidence is pivotal to Martić’s responsibility and, lacking sufficient corroboration, Martić should have been granted the opportunity to cross-examine the witness in question.[2] The Appeals Chamber finds that the failure to accord Martić a right to cross-examine this witness constitutes a miscarriage of justice and accordingly his convictions for the crimes in Cerovljani would have been reversible on this ground, too.

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber upheld the application of the third category of JCE.

83. […] For a finding of responsibility under the third category of JCE, it is not sufficient that an accused created the conditions making the commission of a crime falling outside the common purpose possible; it is actually necessary that the occurrence of such crime was foreseeable to the accused and that he willingly took the risk that this crime might be committed. […]

84. Turning to Martić’s claim that the third category of JCE is controversial as it “lowers the mens rea required for commission of the principal crime without affording any formal diminution in the sentence imposed”,[1] the Appeals Chamber recalls that it has already found that “in practice, this approach may lead to some disparities, in that it offers no formal distinction between JCE members who make overwhelmingly large contributions and JCE members whose contributions, though significant, are not as great.”[2] It is up to the trier of fact to consider the level of contribution – as well as the category of JCE under which responsibility attaches – when assessing the appropriate sentence, which shall reflect not only the intrinsic gravity of the crime, but also the personal criminal conduct of the convicted person and take into account any other relevant circumstance. This argument thus stands to be rejected.

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

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

168. In Brđanin, the Appeals Chamber held that the decisive issue under the basic form of JCE was not whether a given crime had been committed by a member of the JCE, but whether this crime fell within the common criminal purpose of the JCE.[1] For the extended form of JCE, the accused may be found responsible provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk.[2] The Appeals Chamber thus held that members of a JCE could be held liable for crimes committed by principal perpetrators who were not members of the JCE provided that it had been shown that the crimes could be imputed to at least one member of the JCE and that this member, when using a principal perpetrator, acted in accordance with the common plan.[3]

171. In order to convict a member of a JCE for crimes committed by non-members of the JCE, a Trial Chamber must be satisfied beyond a reasonable doubt that the commission of the crimes by non-members of the JCE formed part of a common criminal purpose (first category of JCE), or of an organised criminal system (second category of JCE), or were a natural and foreseeable consequence of a common criminal purpose (third category of JCE).[4]

The application of the law is clear from the distinction between events in Cerovljani and Lipovača. The appeal was upheld in relation to events in Cerovljani:

191. The Trial Chamber also found that on 13, 21 and 24 September 1991, armed Serbs from Živaja led by Nikola Begović burnt ten houses and damaged the Catholic church in the village of Cerovljani. The Trial Chamber […] convicted Martić on the basis that the commission of the [corresponding] crimes was a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[5]

192. The Appeals Chamber finds that a reasonable trier of fact could not have reached the conclusion that Martić was responsible for the acts of destruction perpetrated by armed Serbs from Živaja led by Nikola Begović. Having due regard to the Trial Chamber’s findings and the evidence on which they relied,[6] the Appeals Chamber concludes that the Trial Chamber erred in establishing a link between Martić and these perpetrators. In particular, Exhibit 273, a witness statement of Antun Blažević, on which much of these findings depend, only suggests that the armed men under Begović had received weapons from the JNA, without any evidence of additional control or influence by Martić or other members of the JCE.[7] Without any further elaboration on the link between these forces and the JNA, no reasonable trier of fact could have held that the only reasonable conclusion in the circumstances was that these crimes could be imputed to a member of the JCE. The link between the principal perpetrators of these crimes and members of the JCE is therefore too tenuous to support Martić’s conviction.

However, the Appeal was dismissed in relation to events in Lipovača:

194. The Trial Chamber found that Serb paramilitary forces intentionally killed seven civilians in Lipovača towards the end of October 1991. The Trial Chamber […] convicted Martić on the basis that [the corresponding] crimes were a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[8]

195. The Appeals Chamber finds that a reasonable trier of fact could have reached the conclusion that Martić was responsible for the killings perpetrated in Lipovača by Serb paramilitary forces. The Appeals Chamber notes that, in its findings on the killings in Lipovača, the Trial Chamber referred to evidence establishing that the JNA had warned the villagers to beware of Serb paramilitary units that would arrive after the JNA left, that the Serb paramilitary units arrived after the JNA as warned and that these paramilitary units were called “reserve forces, Martić’s troops or Martić’s army” and wore uniforms like those of the army.[9] The Appeals Chamber is therefore satisfied that a reasonable trier of fact could have been satisfied beyond a reasonable doubt that the Serb paramilitary forces in question were in fact JNA or TO soldiers or were at least acting in concert with the JNA. Taking into account the warning provided by the JNA, the denomination of these troops and their uniforms, as well as the general pattern of take-over and criminal conduct in the area, it was reasonable for the Trial Chamber to conclude that these crimes were committed by a member of a paramilitary group with a link to a member of the JCE, and, therefore, that they were imputable to Martić as a participant in that JCE.

The Appeals Chamber summarily dismissed a number of grounds on the following basis:

14. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties’ submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing.[1] […] A party may not merely repeat on appeal arguments that did not succeed at trial. […] Additionally, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party’s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.[2]

The Appeals Chamber will dismiss the following categories of errors, as outlined in paras. 16-21:

• challenges to factual findings on which a conviction does not rely;
• arguments that fail to identify the challenged factual findings, that misrepresent the factual findings, or that ignore other relevant factual findings;
• mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner;
• mere assertions unsupported by any evidence; and
• arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence.

On appeal, Krajišnik raised allegations regarding his former trial counsel’s negligence and incompetence. The amicus curiae raised the issue of fairness to the former counsel and the right of the latter to respond to such allegations.[1] The Prosecution responded in opposition, arguing inter alia  that former counsel have sufficient notice of the allegations against them on the basis of the public redacted version of the amicus curiae’s appeal brief and that former counsel, being on notice of the allegations against them, could have requested the Appeals Chamber to be heard on the ineffective assistance claim but have not done so.[2] In this regard and mindful of the fact that some relevant submissions were only filed confidentially (thus inaccessible to the former counsel), the Appeals Chamber held:

pp. 1-2: NOTING the reply by Amicus Curiae in which he argues that it would be fundamentally unfair to deny former counsel the opportunity to comment on any assertions made against them, and that a submission by former counsel without an invitation by the Appeals Chamber cannot be expected;[3]

NOTING that Amicus Curiae concedes that no precedent exists for such a right of response by former counsel;[4]

CONSIDERING that the public and redacted version of the Amicus Curiae’s Appeal Brief provides former counsel with sufficient notice of the allegations against them for the purpose of assessing whether they would like to make submissions relating to those allegations;[5]

CONSIDERING that neither former counsel have indicated that they would like to be heard on the said allegations and that the Appeals Chamber, at this juncture and pending the examination of evidence adduced by the parties pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”), does not find it in the interests of justice to call the former counsel to appear under Rules 98 and 107 of the Rules;

HEREBY DISMISSES the Motion.

Judge Mohamed Shahabuddeen appended a declaration to the decision :

I support today’s decision dismissing amicus curiae’s motion that, inter alia, the Appeals Chamber should ‘invite former counsel to respond to Amicus Curiae’s Appeal Brief’. That would give former counsel a locus in the proceedings as an additional party; there is no basis for giving him that locus. But I do not understand that the dismissal concludes the question whether the Appeals Chamber should bring former counsel as its own witness and so give him an opportunity to answer the allegations against him. In my view, the consideration that no request to be heard has been made by former counsel is not pertinent; the question relates to the duty of the Court itself.

Following his acquittal, Ntagerura remained under the authority of the Tribunal pending relocation to a third country. He filed a motion before the President of the Tribunal in which he claimed that Canada ignored the Registrar’s requests for his relocation to that country, and requested that the President of the Tribunal order Canada to comply with these requests and notify the United Nations Security Council of Canada’s refusal to implement them, if it still failed to do so. The President denied the motion in part, and referred the matter to a Trial Chamber for consideration under Article 28 of the Statute of the Tribunal. The Trial Chamber denied the motion in its entirety. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

Ntagerura was acquitted by the Trial Chamber in 2004, and this decision was subsequently affirmed on appeal in July 2006. However, Ntagerura has since remained under the authority of the Tribunal pending relocation to a third country. He has consequently seized the Registrar and the President of the Tribunal with requests for assistance in this regard. These requests were denied and the Ntagerura’s request for assistance of the MemberState was referred by the President to the Trial Chamber which then denied it as well. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

12. […] While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof. […]

Krajišnik insisted to represent himself in the appellate proceedings. The Appeals Chamber accepted this choice but assigned an amicus curiae (see Krajišnik Decision on Self-Representation). Later, the Appeals Chamber also permitted Krajišnik to use the services of Mr. Alan M. Dershowitz who would act as Krajišnik’s counsel on matters related to his JCE convictions (see Krajišnik Decision on Alan Dershowitz Participation). When Krajišnik’s request to call Radovan Karadžić as a witness under Rule 115 of the Rules was granted by the Appeals Chamber, he also applied for authorisation to have Mr. Nathan Dershowitz as counsel examining Karadžić alongside Mr. Alan M. Dershowitz.