199. The Appeals Chamber recognises that the power to give orders and have them executed can serve as an indicium of effective control.[1] […].

203. At the outset, the Appeals Chamber points out that, if taken literally, there is little basis in the jurisprudence of this International Tribunal for considering what the Trial Chamber termed as the “conduct of combat operations involving the forces in question”[2] as an indicium of effective control.[3] A reading of the relevant sections of the Trial Judgement suggests that what the Trial Chamber sought to demonstrate by defining this criterion was the degree of subordination of the El Mujahedin detachment to the OG Bosanska Krajina during combat operations.[4] Accordingly, the Appeals Chamber will discuss the Trial Chamber’s findings within this latter context.

209. These findings confirm that the El Mujahedin detachment took part in several combat operations in September and October 1993 and that this occurred within the framework established by the OG Bosanska Krajina and the 3^rd Corps. This, however, does not in itself necessarily provide sufficient support for the conclusion that Hadžihasanović had effective control over the El Mujahedin detachment in the sense of having the material ability to prevent or punish its members should they commit crimes.[5] […].

210. The Appeals Chamber notes that the El Mujahedin detachment took part in combat operations alongside 3^rd Corps formations, including the OG Bosanska Krajina, as of the second half of 1992.[6] The Appeals Chamber stresses that, with respect to the period before 13 August 1993, the Trial Chamber found that the relationship between the El Mujahedin detachment and the 3^rd Corps was one of cooperation, not effective control. The Trial Chamber found that “frequent cooperation in itself [did] not allow the conclusion that the mujahedin were subordinated to the 3^rd Corps […] and were under [its] effective control”.[7] Neither the 6 September Order nor the conduct of combat operations demonstrate that the relationship between the 3^rd Corps and the mujahedin, later officially renamed the El Mujahedin detachment, evolved from cooperation to effective control.

213. In its concluding remarks on the issue of Hadžihasanović’s effective control, the Trial Chamber stated the following:

It must be noted, however, that this exceptional position was in fact accepted by the 3^rd Corps, insofar as it did not in effect prevent the 3^rd Corps and its units from using the detachment in combat and benefiting militarily from its existence. It should also be noted that nothing forced the 3^rd Corps commanders to use the detachment in combat. In so doing, they accepted all the consequences of their decisions and inevitably assumed full responsibility for them.[8]

The Appeals Chamber does not dispute that the 3^rd Corps may have benefited from the El Mujahedin detachment, and that a circumstance of this kind may entail some form of responsibility, if the particulars of such responsibility are adequately pleaded in an Indictment.[9] The Appeals Chamber nevertheless questions the relevance of that consideration for demonstrating the existence of Hadžihasanović’s effective control over the El Mujahedin detachment. The Appeals Chamber clarifies, however, given that the expression “full responsibility” adopted by the Trial Chamber may be somewhat misleading, that the responsibility of a superior under Article 7(3) of the Statute is only triggered by a superior’s failure to prevent and punish the crimes of his subordinates of which he has the requisite knowledge. Thus, even if Hadžihasanović benefited militarily from the El Mujahedin detachment, his responsibility as a superior under Article 7(3) of the Statute would be, eventually, triggered only upon a showing that the members of the El Mujahedin detachment were his subordinates. As the Trial Chamber made its remark in the context of its discussion on effective control, it presumably used the remark as an argument to justify attributing Hadžihasanović with effective control. This argument, however, does not provide support for the existence of effective control.

214.  Thus, while these Trial Chamber’s findings indicate that the 3^rd Corps cooperated with the El Mujahedin detachment, they are insufficient to establish the existence of effective control. The Appeals Chamber will examine whether any of the Trial Chamber’s additional findings provide a proper basis for its conclusion that Hadžihasanović exercised effective control over the El Mujahedin detachment.

217. Assuming that the Trial Chamber’s conclusion that there was no other authority over the El Mujahedin detachment is correct, the Appeals Chamber disputes the relevance of the criterion identified by the Trial Chamber as an indicator of the existence of effective control. Hadžihasanović’s effective control cannot be established by process of elimination. The absence of any other authority over the El Mujahedin detachment in no way implies that Hadžihasanović exercised effective control in this case.

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.