252. Although this sub-ground of appeal is presented as relating to an alleged error of law, the Appeals Chamber is of the view that it is more accurately characterized as a mixed error of law and fact. Hence, the Appeals Chamber will determine whether the conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached. However, before doing so, the Appeals Chamber will clarify the legal standard employed by the Trial Chamber in the Trial Judgement.

269. At the outset, the Appeals Chamber notes that, although Strugar qualifies the relevant alleged errors of the Trial Chamber as errors of law, it understands him to challenge both the Trial Chamber’s legal and factual conclusions with respect to defining the mens rea requirement of the crimes in question and its application to the conduct of JNA forces in the region of Dubrovnik on 6 December 1991.[1] Hence, the Appeals Chamber will first examine the applicable law and then determine whether the factual conclusion reached by the Trial Chamber was one which no reasonable trier of fact could have reached.

After reiterating (at paras 297-301) the legal standard set out in the Hadžihasanović and Kubura Appeal Judgement, the Appeals Chamber made the following findings:

303. The Appeals Chamber observes that the Trial Chamber found that prior to the commencement of the attack against Srđ, Strugar had reason to know of the risk that the forces under his command might repeat their previous conduct and unlawfully shell the OldTown.[1] The Trial Chamber characterised this risk as “a real and obvious prospect”, “a clear possibility”, “a risk that was not slight or remote”, and a “real risk”.[2] The Appeals Chamber moreover notes that the Trial Chamber found that the mens rea element of Article 7(3) of the Statute was not met before the commencement of the attack against Srđ because it found that it had not been established that Strugar “had reason to know that [unlawful shelling] would occur”,[3] that the risk of such shelling was shown “to have been so strong as to give rise, in the circumstances, to knowledge that his forces were about to commit an offence”[4] or that “there was a substantial likelihood of the artillery” unlawfully shelling the Old Town.[5] In addition, the Trial Chamber held that it was “not apparent that additional investigation before the attack could have put the Accused in any better position”.[6] The Appeals Chamber finally notes that the Trial Chamber found that Strugar’s notice, after the commencement of the attack against Srđ, of a “clear and strong risk”[7] or a “clear likelihood”[8] that his forces were repeating its previous conduct and unlawfully shelling the Old Town did however meet the mens rea requirement under Article 7(3).

304. Taking into consideration the relevant factual findings of the Trial Chamber, the Appeals Chamber finds that the Trial Chamber committed an error of law by not applying the correct legal standard regarding the mens rea element under Article 7(3) of the Statute. The Trial Chamber erred in finding that Strugar’s knowledge of the risk that his forces might unlawfully shell the Old Town was not sufficient to meet the mens rea element under Article 7(3) and that only knowledge of the “substantial likelihood” or the “clear and strong risk” that his forces would do so fulfilled this requirement. In so finding, the Trial Chamber erroneously read into the mens rea element of Article 7(3) the requirement that the superior be on notice of a strong risk that his subordinates would commit offences. In this respect, the Appeals Chamber recalls that under the correct legal standard, sufficiently alarming information putting a superior on notice of the risk that crimes might subsequently be carried out by his subordinates and justifying further inquiry is sufficient to hold a superior liable under Article 7(3) of the Statute.[9]

270. The Appeals Chamber has previously ruled that the perpetrator of the crime of attack on civilians must undertake the attack “wilfully” and that the latter incorporates “wrongful intent, or recklessness, [but] not ‘mere negligence’”.[1] In other words, the mens rea requirement is met if it has been shown that the acts of violence which constitute this crime were wilfully directed against civilians, that is, either deliberately against them or through recklessness.[2] The Appeals Chamber considers that this definition encompasses both the notions of “direct intent” and “indirect intent” mentioned by the Trial Chamber, and referred to by Strugar, as the mens rea element of an attack against civilians.

271. As specified by the Trial Chamber in the Galić case,

For the mens rea recognized by Additional Protocol I to be proven, the Prosecution must show that the perpetrator was aware or should have been aware of the civilian status of the persons attacked. In case of doubt as to the status of a person, that person shall be considered to be a civilian. However, in such cases, the Prosecution must show that in the given circumstances a reasonable person could not have believed that the individual he or she attacked was a combatant.[3]

The intent to target civilians can be proved through inferences from direct or circumstantial evidence.[4] There is no requirement of the intent to attack particular civilians; rather it is prohibited to make the civilian population as such, as well as individual civilians, the object of an attack.[5] The determination of whether civilians were targeted is a case-by-case analysis, based on a variety of factors, including the means and method used in the course of the attack, the distance between the victims and the source of fire, the ongoing combat activity at the time and location of the incident, the presence of military activities or facilities in the vicinity of the incident, the status of the victims as well as their appearance, and the nature of the crimes committed in the course of the attack.[6]

275. […] The Appeals Chamber, moreover, has held on various occasions that the absolute prohibition against attacking civilians “may not be derogated from because of military necessity”.[7] Furthermore, the Appeals Chamber recalls that, depending on the circumstances of the case, the indiscriminate character of an attack can be indicative of the fact that the attack was indeed directed against the civilian population.[8]

For application of this legal standard to the facts, see paras 272-276.

178. On the basis of the foregoing, the Appeals Chamber holds that in order to establish the existence of a violation of Common Article 3 under Article 3 of the Statute, a Trial Chamber must be satisfied beyond a reasonable doubt that the victim of the alleged offence was not participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces. Such an enquiry must be undertaken on a case-by-case basis, having regard to the individual circumstances of the victim at the time of the alleged offence.[1] As the temporal scope of an individual’s participation in hostilities can be intermittent and discontinuous, whether a victim was actively participating in the hostilities at the time of the offence depends on the nexus between the victim’s activities at the time of the offence and any acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the adverse party.[2] If a reasonable doubt subsists as to the existence of such a nexus, then a Trial Chamber cannot convict an accused for an offence committed against such a victim under Article 3 of the Statute.[3]

179. When dealing with crimes pursuant to Common Article 3, it may be necessary for a Trial Chamber to be satisfied beyond a reasonable doubt that the alleged offence committed against the victim was not otherwise lawful under international humanitarian law.[4] The need for such an additional enquiry will depend on the applicability of other rules of international humanitarian law, which is assessed on the basis of the scope of application of these rules[5] as well as the circumstances of the case.[6] Indeed, if the victim of an offence was a combatant[7] or if the injury or death of such a victim was the incidental result of an attack which was proportionate in relation to the anticipated concrete and direct military advantage,[8] his injury or death would not amount to a violation of international humanitarian law even if he was not actively participating in hostilities at the time of the alleged offence.

See paras 172 – 177 for a detailed overview of underlying legal sources, as well as a non-exhaustive list of examples of direct and indirect forms of participation in hostilities.

For the application of this legal standard to the facts of the case, see paras 180-188.

43. The Prosecution submits that the Trial Chamber found Atif Krdžić responsible for aiding and abetting by omission.[1] The Appeals Chamber recalls that omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act.[2] The Appeals Chamber has never set out the requirements for a conviction for omission in detail.[3] However, at a minimum, the offender’s conduct would have to meet the basic elements of aiding and abetting. Thus, his omission must be directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime (actus reus).[4] The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator[5] and must be aware of the essential elements of the crime which was ultimately committed by the principal (mens rea).[6]

18. […] For a superior to incur criminal responsibility under Article 7(3), in addition to establishing beyond reasonable doubt that his subordinate is criminally responsible, the following elements must be established beyond reasonable doubt:

i) the existence of a superior-subordinate relationship;

ii) that the superior knew or had reason to know that his subordinate was about to commit a crime or had done so; and

iii) that the superior failed to take the necessary and reasonable measures to prevent his subordinate’s criminal conduct or punish his subordinate.[1]

21. Second, Orić argues that superior responsibility under Article 7(3) of the Statute does not encompass criminal conduct by subordinates in the form of aiding and abetting crimes.[1] This is incorrect. The Appeals Chamber has held that superior responsibility encompasses criminal conduct by subordinates under all modes of participation under Article 7(1) of the Statute.[2] It follows that a superior can be held criminally responsible for his subordinates’ planning, instigating, ordering, committing or otherwise aiding and abetting a crime.

58. The Prosecution submits that, in the context of crimes such as those at issue which occur in a prison setting, knowledge of the crimes and knowledge of the subordinates’ criminal conduct “are one and the same.”[1] It argues that “[a]s soon as Orić knew or had reason to know that prisoners were being mistreated and killed, he must also be considered to have known that his subordinates in charge of the prisoners were criminally responsible for that mistreatment.”[2]

59. The Appeals Chamber stresses that knowledge of a crime and knowledge of a person’s criminal conduct are, in law and in fact, distinct matters. Although the latter may, depending on the circumstances, be inferred from the former, the Appeals Chamber notes that such an inference was not made by the Trial Chamber.[3] Its enquiry was limited to Orić’s knowledge or reason to know of the crimes committed in the detention facilities, and so was its conclusion. Therefore, the Appeals Chamber need not consider the Prosecution’s assertion that Orić knew or had reason to know of the crimes themselves.[4]

159. Whether Orić and the Srebrenica Armed Forces Staff had effective control over Mirzet Halilović depended on their “material ability to prevent and punish” the crimes.[1] The Appeals Chamber considers that if a superior-subordinate relationship existed, it cannot be relevant to ask whether the subordinate’s behaviour was erratic. However, if it is not clear whether that relationship existed, it can be relevant to take into account the erratic behaviour of the subordinate in determining whether the superior had the “material ability to prevent or punish” necessary for effective control. The Trial Chamber therefore did not misconstrue the first and the third elements of Article 7(3) of the Statute when it assessed Mirzet Halilović’s erratic behaviour in analysing Orić’s effective control over the Military Police. The Prosecution’s bare assertion that Orić’s failure to prevent or punish “is not evidence of lack of effective control”[2] fails to demonstrate an error in that assessment.

16. All Appellants submit that the rights of the accused to a fair trial enshrined in Article 21 of the Statute should not be sacrificed to ensure the expeditiousness of proceedings.[1]  The Appeals Chamber recalls that, pursuant to Rules 73bis and 73ter of the Rules, the Trial Chamber is required to establish the number of witnesses each party may call and the amount of time allotted to each party. Specifically, Rule 73ter(E) of the Rules provides that, after having heard the defence and having reviewed the Rule 65ter submissions of each accused, the Trial Chamber shall determine the time available to the defence for presenting evidence. In exercising the discretionary power to allocate time, a Trial Chamber has the responsibility to ensure that “the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.”[2] Recognizing that excessive limitations of time may also compromise the due process rights of the accused, the Appeals Chamber has previously held that the considerations of judicial economy should never impinge on the rights of the parties to a fair trial.[3] In particular, the time granted to an accused under Rule 73ter of the Rules must be reasonably proportional to the time allocated to the Prosecution, and objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights under Article 21 of the Statute.[4]

19. The Appeals Chamber considers that a “purely arithmetical calculation” for the allocation of time to the Defence may constitute an abuse of the Trial Chamber’s discretion. As noted in the Orić Decision, “a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides”.[5] However, the Appeals Chamber is not satisfied that the Impugned Decision was based on such an arithmetic division of time.

23. The Appeals Chamber notes that Rule 92bis to 92quater are aimed at ensuring the efficient presentation of evidence at trial and may be relied upon in lieu of viva voce evidence where it does not impact upon the fairness of the proceedings. In assessing the amount of time reasonably required for each Accused to present his case, the Trial Chamber was entitled to assume that the parties would present their cases as efficiently as possible and take advantage of the options available to them to reduce the time for presenting evidence, especially if repetitive or peripheral. In light of the Trial Chamber’s familiarity with the case to be presented by the Defence, it was reasonable for the Trial Chamber to consider that the Defence could make use of Rules 92bis and 92ter of the Rules in relation to some of the witnesses each intended to call.

25. The Appeals Chamber finds that the Trial Chamber’s decision to assess the relevance of proposed testimony prior to its presentation in evidence falls within the discretion accorded to the Trial Chamber in its management of the trial. There is no prohibition against a Trial Chamber’s  considering that some of the evidence sought to be presented will be repetitive when assessing, in application of Rule 73ter(E) and on the basis of the 65ter List presented by an accused, the time necessary for the fair presentation of the Defence case. The Appeals Chamber considers that this method is not only reasonable, but also presents the advantage of certainty, enabling the Defence to organize its strategy on the basis of the time allocated to it. The Appeals Chamber further notes that the Trial Chamber clarified in the Impugned Decision that it would adopt a flexible approach and, should the Defence establish that additional time was necessary, it would grant additional time.[6]  Consequently, the Appeals Chamber finds no error in the approach adopted by the Trial Chamber.