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.

10. With respect to the request for an extension of time, the Appellant argues that Mr. Alan M. Dershowitz has commenced teaching responsibilities at HarvardLawSchool on 2 September 2008.[1] The Appeals Chamber gathers from this submission that the Appellant is arguing that due to these teaching responsibilities, Mr. Alan M. Dershowitz will not be able to participate in the interview with Radovan Karadžić at a time that would allow the Appellant to file a motion pursuant to Rule 115 of the Rules by 15 September 2008. The Appeals Chamber recalls that a counsel in a case before the Tribunal is under an obligation to give absolute priority to his commitments to the Tribunal and to observe the time limits in the Rules[2] or in an order of a Chamber. Furthermore, the Appeals Chamber recalls that “other professional commitments of counsel should not have any bearing on the responsibilities of counsel towards their client and the International Tribunal”.[3] In these circumstances, the Appellant has not shown good cause for the extension of time sought.

9. The Appeals Chamber considers that the Trial Chamber’s calculations were indeed erroneous.  The Trial Chamber reasoned in the Impugned Order that “since the co-accused must respond to similar allegations from the Prosecution, a similar number of standard United Nations pages of documents should allow each one of them to effectively ensure his own defence”.[1]  Assuming this reasoning is appropriate in light of the specific circumstances of each accused, the total number of pages to be allocated to Praljak is to be compared with the total number of pages of translations received or to be received by the co-accused in question, including both the pages already translated and those pending translation.

19. The Appeals Chamber considers that the Trial Chamber did not commit a discernable error in requesting in advance a detailed description of the documents that Praljak wanted to have translated.  Without this information, the Trial Chamber could not make a reasonable assessment as to what translation resources were justifiably needed by the Defence. For the Trial Chamber to have left such an assessment until the opening of the Defence case, at which time the precise contours of the Defence case would be known, would only result in unnecessary delays in the translation process.  An early assessment of the resources to be allocated to the parties ensures the smooth and expeditious conduct of the proceedings and the request of the Trial Chamber clearly falls within its discretionary power based on its familiarity with the case and its daily management of the trial.

20. While the Appeals Chamber is satisfied that the approach of the Trial Chamber fell well within its discretionary power, it is nevertheless concerned that the assessment of the Trial Chamber was in violation of the right of an accused being tried jointly to be accorded the same rights as if he were tried separately in accordance with Rule 82 of the Rules.  The Appeals Chamber notes that the Trial Chamber decided on the translation resources to be allocated to Praljak by reference to those already allocated to his co-defendants without considering whether that reference point was sufficient to take into account Praljak’s specific needs.  If a comparison among resources to be allocated to co-defendants is relevant to ensure the fair treatment of each defendant vis-à-vis each other, the Trial Chamber must still ultimately make an assessment of the resources of each accused separately in order to ensure these resources are sufficient for the conduct of that accused’s case pursuant to Article 21(4)(b) of the Statute.

25. The Appeals Chamber finds that Rule 3(E) of the Rules, which provides “(t)he Registrar shall make any necessary arrangements for interpretation and translation into and from the working languages” does not preclude the Trial Chamber from imposing a reasonable limitation on what translation resources should be made available to an accused to ensure a fair trial.  The authority to impose such a limitation flows from the Trial Chamber’s responsibility and authority of managing the proceedings before it.  As such, it is within the Trial Chamber’s discretion to limit the translation resources made available to the parties provided that the limitation is consistent with the statutory rights of an accused, including Article 21(4)(e) of the Statute.

26. The Appeals Chamber further notes that it is not necessarily inconsistent for the Trial Chamber to limit both the time available for oral testimony and the translation resources available for written testimony if the combined limitations do not hinder the capacity of the accused to present an adequate defence.  The key requirement under Article 21(4)(b) of the Statute is that the assessment of each measure ­ such as the limitation on translation services ­ must be made in the context of the totality of the other measures taken, including the limitations on oral testimony.

Haxhiu filed his notice of appeal against the trial judgement convicting him for contempt 26 days after the date of the trial judgement. The Prosecution asked to strike the notice of appeal as being time-barred. Haxhiu argued that appeals against judgements on appeal are filed not within the time limit prescribed by Rule 77(J) (15 days) but pursuant to the general time-limit for appeal against judgements pursuant to Rule 108 (30 days). The Appeals Chamber held as followed:

12. At the outset, the Appeals Chamber recalls that in Prosecutor v. Marijačić and Rebić it was confronted with a question similar to the one in this case. The Appeals Chamber in that case explicitly rejected the argument, made by one of the appellants in relation to the filing of the appeal brief, that Section III of the Practice Direction is only applicable to interlocutory decisions but not to judgements rendered pursuant to Rule 77. The Appeals Chamber consequently held that “Section III [of the Practice Direction] applies to final decisions of a Trial Chamber under Rule 77.”[1]

13. The same reasoning applies to Rule 77(J) of the Rules, which is mirrored in paragraph 4 of the Practice Direction. Indeed, in Prosecutor v. Šešelj, the Appeals Chamber stated that “Rule 77(J) of the Rules shall be interpreted as allowing for appeals against decisions disposing of contempt cases only.”[2]

14. Accordingly, the Appeals Chamber finds that Haxhiu’s Notice of Appeal was filed outside the prescribed time-limits. […]

14. […] However, Haxhiu has requested the Appeals Chamber to recognize the late filing as validly done pursuant to Rules 127(A)(ii) and 127(B) of the Rules. He concedes that “counsel’s unfamiliarity with the Appeals Chamber’s procedure does not constitute good cause for an extension of time.”[1] Indeed, the Appeals Chamber recalls that “counsel participating in appeals proceedings are expected to familiarize themselves with the procedural requirements.”[2]

15. […] Given the existence of only a few judgements on appeal in contempt proceedings before the International Tribunal, Counsel is expected to have acquainted himself with the relevant jurisprudence on this issue. Accordingly, no good cause has been shown that would allow the Appeals Chamber to exercise its discretion in recognizing the filing of the Notice of Appeal as validly done.

CONSIDERING that granting leave to make submissions under Rule 74 of the Rules is a matter within the discretion of the Appeals Chamber;[1]

CONSIDERING that the primary criterion in determining whether to grant leave to an amicus curiae to make submissions is whether this would assist the Appeals Chamber in its consideration of the appeal;[2]