264. […] The Appeals Chamber recalls that the Trial Chamber considered the duty to suppress to be part and parcel of a superior’s duty to prevent,[1] such that knowledge acquired by Kubura while his subordinates had begun and were still engaged in committing the acts of plunder in Vareš would be relevant to his duty to prevent those crimes.[2]

320. The Appeals Chamber recalls that a position of authority does not in and of itself attract a harsher sentence.[1] Further, in the context of a conviction under Article 7(3) of the Statute, use of the superior’s position of authority as an aggravating circumstance would be inappropriate since it is itself an element of criminal liability.[2] Nor would a high level of authority, to echo the Prosecution’s distinction, necessarily attract greater responsibility were it to be considered. Rather, it is the superior’s abuse of that level of authority which could be taken into consideration at sentencing.[3] […].

321. In any event, the principle of graduation upon which the Prosecution relies is not absolute. Indeed, the ICTR Appeals Chamber in Musema qualified its statement that sentences should be graduated by noting that this principle “is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence”.[4] The Prosecution’s contention that Hadžihasanović must receive a harsher sentence based on his high level of authority is not substantiated by the practice of the International Tribunal.

15. The Appeals Chamber notes that the Trial Chamber did explicitly address the impact of its 98bis Ruling in granting the Accused provisional release. The Trial Chamber recalled the holding of the Appeals Chamber Decision that the 98bis Ruling constituted a significant change in circumstances, which warranted a renewed and thorough evaluation of the risk of flight of each of the co-Accused in this case. The Trial Chamber expressly considered that, in order to satisfy itself that the Accused still met the requirements of Rule 65, that if released they would appear for trial and not intervene with any victims and witnesses, it was required to consider whether the Accused had offered sufficient guarantees to offset that risk of flight. In such circumstances, even if the Trial Chamber was satisfied that sufficient guarantees were offered, it should not exercise its discretion in favour of a grant of provisional release unless compelling humanitarian grounds were present which caused to tip the balance in favour of allowing provisional release.[1]

The Prosecution sought to confront a Defence witness, during cross-examination, with two documents. Delić objected on the basis that these documents were not included in the list of exhibits the Prosecution intended to offer under Rule 65 ter(E)(iii) of the Rules of Procedure and Evidence. Following the cross-examination of the witness on the content of the two documents, the Trial Chamber proceeded to admit them into evidence. Delić appealed the admission because it was done during the Defence case. The Appeals Chamber found:

20. According to Rule 89(C) of the Rules, a “Chamber may admit any relevant evidence which it deems to have probative value”. More specifically, Rule 90(F)(i) of the Rules states that a “Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”.  Within the discretion afforded to it, a Trial Chamber may admit any evidence which it deems relevant and of probative value, provided that the right of the accused to a fair trial is ensured in the process.[1]

21. In the present case, the Prosecution contends that it could not have ascertained the importance of the Exhibits until Delić had disclosed its own list of witnesses pursuant to Rule 65 ter (G)(i). However, the Prosecution did not proceed to disclose the Exhibits immediately after this list was filed, but just prior to the beginning of the testimony of [the] witness […]

22. In these circumstances, the Appeals Chamber notes that the Impugned Decision does not clarify whether the Exhibits were admitted as evidence probative of guilt or only for impeachment purposes of the witness in question. This may cause confusion, prejudicing Delić in the organization of his case. According to the principles enshrined in the Statute – in particular in Article 21(4)(b) and (e) – on the rights of the accused, when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it; this is all the more true if evidence is tendered after the close of the Prosecution case. In situations where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence.

23. The Trial Chamber therefore erred in not specifying the purpose for which the Exhibits were admitted despite the request by Delić and, consequently, in not addressing how the prejudice caused by the admission of the Exhibits, if any, could be redressed. Only after having considered the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations, the Trial Chamber will be able to provide a reasoned opinion on the prejudice, if any, caused by the admission of the Exhibits and on the measures to address such prejudice – for example providing more time for cross-examination, adjourning the session, or granting the possibility of re-calling the witness if Delić shows it is necessary. Having failed to give sufficient weight to relevant considerations in reaching its decision, the Trial Chamber committed a discernible error.

3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 of the Rules applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.”[3]

14.     The Appeals Chamber notes at the outset that the Appellant’s right to the use of his mother tongue in his written or oral communications with the International Tribunal’s organs is not in dispute here. Rather, the contentious issue on appeal is limited to the question of whether the delivery to the Appellant, who is representing himself, of materials in B/C/S[1] and in Latin script satisfies the guarantees provided by Article 21(4)(a) of the Statute and Rule 66(A) of the Rules in this case. The Appeals Chamber considers that it does.

15.     The Appeals Chamber finds that the Impugned Decision correctly interprets the governing law in finding that the

right to receive relevant material in this Tribunal in a language [the accused] can understand, […] does not translate into a right for an accused, regardless of his or her background, education, experience, to come before this Tribunal and demand the production of documents in any language or script that he or she chooses.[2]

This is consistent with the plain language of Article 21(4)(a) of the Statute and Rule 66(A) of the Rules which, as the Pre-Trial Judge aptly points out, hinges on understanding and not preference.[3] These provisions, when read with the other minimum guarantees provided in Article 21(4) of the Statute, create an obligation to provide relevant material in a language which the accused understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.[4] Article 21 of the Statute provides that the accused has the right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him and to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal. This language reproduces the relevant provisions of Article 14(3)(a) and (f) of the International Covenant on Civil and Political Rights.[5] Whether an accused possesses the sufficient level of understanding is of course a question of fact to be decided on a case-by-case basis.

161. The Appeals Chamber recalls that

[i]n the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.

The jurisprudence makes clear that “committing” is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime.  The question of whether an accused acts with his own hands, e.g. when killing people, is not the only relevant criterion.  The Appeals Chamber therefore finds, Judge Liu dissenting, that the Trial Chamber erred in law by holding that “committing” requires direct and physical perpetration of the crime by the offender. To remedy this error, the Appeals Chamber will apply the correct legal standard—i.e., whether Athanase Seromba’s actions were “as much an integral part of the genocide as were the killings which [they] enabled.”  In so doing, it will determine whether, as the Prosecution has argued on appeal, the Trial Chamber’s factual conclusions and the evidence contained in the trial record support the conclusion that Athanase Seromba became a principal perpetrator of the crime itself by approving and embracing as his own the decision to commit the crime and thus should be convicted for committing genocide.

162. The Appeals Chamber considers that the law should be applied to the factual findings of the Trial Chamber, taken as a whole. It is on this basis that the Appeals Chamber will determine the proper mode of liability under Article 6(1) of the Statute. In cases of ambiguity reference may be made, pursuant to Rules 109 and 118(A) of the Rules, to the record on appeal.

171. On the basis of these underlying factual findings, the Appeals Chamber finds that Athanase Seromba approved and embraced as his own the decision of Kayishema, Ndahimana, Kanyarukiga, Habarugira, and other persons to destroy the church in order to kill the Tutsi refugees. It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed. The Appeals Chamber finds, Judge Liu dissenting, that Athanase Seromba’s acts, which cannot be adequately described by any other mode of liability pursuant to Article 6(1) of the Statute than “committing”, indeed were as much as an integral part of the crime of genocide as the killings of the Tutsi refugees.[1] Athanase Seromba was not merely an aider and abetter but became a principal perpetrator in the crime itself.

172. The Appeals Chamber observes, Judge Liu dissenting, that Athanase Seromba’s conduct was not limited to giving practical assistance, encouragement or moral support to the principal perpetrators of the crime, which would merely constitute the actus reus of aiding and abetting.[2] Quite the contrary, the findings of the Trial Chamber allow for only one conclusion, namely, that Athanase Seromba was a principal perpetrator in the killing of the refugees in Nyange church. The Appeals Chamber therefore finds that Athanase Seromba’s conduct can only be characterized as “committing” these crimes.

173. The Appeals Chamber recalls that an accused evinces the requisite mens rea for committing a crime when he acts with an intent to commit that crime.[3] This stands in contrast to the mens rea for aiding and abetting, which “is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.”[4]

Also see infra on Judge Liu’s Dissenting Opinion.

20. The Appeals Chamber considers that the 98bis Ruling in this case constitutes a significant enough change in circumstance to warrant the renewed and explicit consideration by the Trial Chamber of the risk of flight posed by the accused pursuant to Rule 65(B) of the Rules. […]

After the end of the Prosecution case and just before issuing its Rule 98bis Decision, the Trial Chamber granted provisional release to several accused. The Prosecution requested the Appeals Chamber to revoke the decisions to provisionally release these accused on the ground that the Trial Chamber had erred in failing to discuss or consider the heightened risk of flight given the stage of the trial and, more specifically, that the pending Rule 98bis decisions concerned the sufficiency of the evidence on joint criminal enterprise. The Appeals Chamber reasoned as follows:

19. The Appeals Chamber finds that the Trial Chamber committed a discernible error in failing to explicitly discuss the impact of its 98bis Ruling when granting provisional release. In deciding to grant the Accused provisional release the Trial Chamber essentially relied on the compliance by the Accused with the terms imposed by the Trial Chamber in prior decisions on provisional release.[1] In this regard, the Impugned Decisions fail to assess the requirements of Rule 65(B) of the Rules in the present context of the proceedings, and particularly in light of the Trial Chamber’s imminent 98bis Ruling.

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). On 21 February 2008, Krajišnik filed a Motion in which he sought to have the upcoming status conference postponed from 1 March 2008 to 31 March 2008 and “engage the services of attorney Alan Dershowitz to assist him in the remaining phases of the appellate process, specifically limited to a brief on the subject of Joint Criminal Enterprise”.[1]

6. In the Appeals Chamber’s opinion, the situation presents something of a conundrum. On the one hand, Mr. Krajišnik has already elected to represent himself pursuant to the Appeals Chamber Decision permitting him to do so,[2] and as noted by the Appeals Chamber at the time, he “must accept responsibility for the disadvantages this choice may bring.”[3] On the other hand, the Appeals Chamber has recognized the existence of heightened concerns regarding the basic fairness of proceedings when a defendant has chosen to self-represent.[4] For this reason, amicus curiae was appointed “to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.”[5]

7. In the past the Tribunal has wrestled with the appropriateness of certain restrictions on the right to self-representation.[6] Here, the converse question arises: are there legitimate restrictions on the right of a self-represented defendant to hire a lawyer? The Appeals Chamber has held that the right of self-representation “may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.”[7] Such a standard is also apt in resolving the present issue. In this case, the Appeals Chamber notes that Mr. Krajišnik has long sought to engage the services of Mr. Dershowitz, and there is no reason to believe that Mr. Krajišnik has deliberately manipulated the situation in order to create unnecessary delays. Furthermore, the Appeals Chamber has discretion to call for an expedited briefing schedule and thereby avoid protracted proceedings.

8. There is also no incongruity in allowing partial self-representation, even though the Appeals Chamber has referred to self-representation and legal assistance as standing in “binary opposition”.[8] What the Appeals Chamber has prohibited is a situation whereby defendants can mix-and-match various elements of self-representation and legal assistance – e.g., when a self-represented accused has attempted to partake of legal aid funding.[9] A defendant must take the bitter with the sweet when making this choice, but only with respect to each issue. There is no fundamental reason why a defendant may not make different choices – self-representing or engaging legal counsel – with regard to different issues.

9. Although the Appeals Chamber has already benefited from the legal arguments advanced by Mr. Colin Nicholls as amicus curiae, Mr. Nicholls is not a party to the current proceedings and does not represent Mr. Krajišnik.[10] By contrast, Mr. Dershowtiz can present Mr. Krajišnik’s own arguments regarding a complex issue, Joint Criminal Enterprise (“JCE”), which the Appeals Chamber acknowledges might be too complex for a non-lawyer to master. Consequently, there is a strong presumption that, despite the late date, Mr. Krajišnik should be afforded the opportunity to present the most compelling case that he can. As long as Mr. Dershowitz’s involvement at this stage will not cause substantial or persistent obstruction or delays of the appeal proceedings, and provided he meets the requirements set out in Rule 44 of the Rules, the Appeals Chamber recognizes that Mr. Krajišnik may engage Mr. Dershowitz’s legal assistance regarding a discrete issue.

10. The Appeals Chamber appreciates that there might be a risk of redundancy and complication since amicus curiae has already advanced arguments regarding JCE, the issue that Mr. Dershowitz also intends to brief. Furthermore, there is a legitimate concern about not delaying proceedings that have already proved extremely time-consuming. The Appeals Chamber considers that these concerns can be allayed.

11. As to the risk that Mr. Dershowitz’s brief might add unnecessary confusion, it should go without saying that in the event of a contradiction between the submissions of amicus curiae and Mr. Dershowitz, the Appeals Chamber will treat only Mr. Dershowitz’s arguments as representing his client’s views. To avoid unhelpful complication, the Appeals Chamber directs Mr. Dershowitz to state with precision which arguments of amicus curiae he embraces and which arguments he rejects. Although Mr. Krajišnik has addressed the JCE issue in his Appeal Brief,[11] the Appeals Chamber will regard Mr. Dershowitz’s submission as a supplementary brief on behalf of Mr. Krajišnik.

12. Furthermore, the Appeals Chamber imposes a strict briefing schedule in order to prevent unnecessarily long or time-consuming submissions and thereby foster expeditious appeal proceedings. […] Given these parameters, the Appeals Chamber is convinced that Mr. Dershowitz can advance fully any additional arguments that Mr. Krajišnik wishes to make without causing undue delay in the appeal proceedings. The Appeals Chamber must emphasize that the current scheduling for the filing of briefs shall remain unaffected.

On 29 February 2008, the Prosecution filed a motion seeking clarification on the content of Mr. Dershowitz’s supplementary brief and the extent of Mr. Krajišnik’s continued self-representation and reconsideration of the applicable word limits.[12] In its Decision of 11 March 2008 (“Krajišnik Decision on Clarification of Alan Dershowitz Participation”), the Appeals Chamber granted the Motion in part and directed Mr. Dershowitz to as follows:

9. The Appeals Chamber has already described the purview of Mr. Dershowitz’s representation, which is limited to the question of JCE.[13] Additionally, in the Decision of 28 February 2008, the Appeals Chamber directed Mr. Dershowitz “to state with precision which arguments of amicus curiae he embraces and which arguments he rejects.”[14] The Appeals Chamber orders Mr. Dershowitz to do the same with respect to the arguments that Mr. Krajišnik has already made in his appeal brief. Mr. Dershowitz must be clear as to which of the arguments are new and the extent to which they complement or supersede those arguments made by Mr. Krajišnik. In short, because Mr. Dershowitz will be acting as counsel for Mr. Krajišnik, at least in a limited capacity, the two must speak with a single voice. The arguments that Mr. Dershowitz advances will thus make clear the issues on which Mr. Krajišnik is represented by counsel..[15]

The Appeals Chamber dismissed the Prosecution’s argument in relation to the applicable word limits on the basis that the principle of “equality of arms” had not been breached and that no actual prejudice had been demonstrated at that stage.[16]