The Appeals Chamber held that while not all paramilitary leaders are “most senior leaders”, at least some should be presumed to be:

20. To begin with, the Appeals Chamber rejects the Appellant’s suggestion that the statement by the President of the Security Council[1] precludes the referral of paramilitary leaders as a matter of law.  The Appeals Chamber does not read this statement to bar referral of all cases involving civilian, military, and paramilitary leaders.  Were that to be the case, then the Security Council would not have referenced “most senior leaders” in Resolutions 1503 (2003) and 1534 (2004), but would instead have spoken of all leaders.  Instead, the Appeals Chamber understands the statement of the President of the Security Council simply to indicate that “most senior leaders” may come from positions of civilian, military, or paramilitary leadership (rather than simply from military leadership positions, for example). The reasoning of the Referral Bench was in keeping with this approach, as it plainly recognized that paramilitary leaders could fall within the category of “most senior leaders”.

22. […] the President of the Security Council’s statement did not show an intent for the Tribunal to retain all paramilitary leaders, it certainly gives rise to the inference that the cases of at least some paramilitary leaders should be retained rather than referred.[2]

See infra for the application of these principles to the facts of the case.

9. “The Appeals Chamber recalls that a decision on whether or not a case should be referred to the authorities of a State which meets the requirements set out in Rule 11bis of the Rules is a discretionary one.”[1]  Therefore, “the party challenging a decision pursuant to Rule 11bis of the Rules must show that the Referral Bench misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of its discretion, or that the Referral Bench gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.”[2]

13. The Appeals Chamber further rejects the Appellant’s claim that manipulation of the Indictment by the Prosecution justifies a different approach in this case.  The Appeals Chamber need not address whether or not such manipulation, if proved, would justify a different approach, because here the Appellant fails to offer any credible evidence of manipulation.  In the absence of support for an assertion of manipulation, “the Appeals Chamber takes it for granted that the Prosecution would not seek to influence the proceedings in such a way that by [changing] the charges alleged, this Tribunal would have decided the referral request differently.”

17. […] In the present case, the Appeals Chamber is of the view that the fact that the Prosecution may now possess some evidence suggesting that the Appellant was also involved in the events of Srebrenica is not enough, standing alone, to raise concerns that the Prosecution has withheld charges against the Appellant in order to promote referral.

22. The Appeals Chamber also considers that the Referral Bench placed too much stress on the local character of the Appellant’s crimes.  Of course, this is a relevant factor and in some situations can be a significant one.[1] […] Since the criminal acts of paramilitary leaders are likely to be limited to a municipal (or at most regional) scope, an undue emphasis on geographic scope might thwart the intent of the Security Council that the Tribunal retain jurisdiction over at least the most significant paramilitary leaders.  There is no necessary nexus between, on the one hand, leadership responsibility for the most serious crimes and, on the other hand, a broad geographic area.  […] The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[2]  In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant. 

25. […] As the Referral Bench found, the crimes allegedly committed by the Appellant were grave indeed. They included a number of horrific incidents that resulted in the deaths of a total of more than 150 people – namely, two incidents where Bosnian Muslim men, women, and children were forcibly barricaded into houses that were then set on fire,[1] two incidents in which Bosnian Muslim men were seized and then gunned down along the banks of a river,[2] one incident in which a Bosnian Muslim woman was questioned and then shot repeatedly,[3] and repeated incidents of inhumane acts and cruel treatment aimed at Bosnian Muslim men held at a detention camp.[4] Of course, gravity alone is not dispositive.  The alleged crimes in this case are comparable to those alleged with regard to Paško Ljubičić, an intermediate-level military leader whose case was referred by the Tribunal pursuant to Rule 11bis.[5]  But when the Appellant’s alleged crimes are taken in conjunction with the earlier-discussed role allegedly played by him as a paramilitary leader, this case becomes too significant to be appropriate for referral.  As noted earlier, the Security Council intended for the Tribunal to try top paramilitary leaders[6] and the allegations against the Appellant put him into this category.  In this regard, his case differs substantially from that of Gojko Janković (“Janković”), another paramilitary leader whose case was referred pursuant to Rule 11bis of the Rules.  Although a paramilitary leader, Janković was also acting at an intermediate level within the military hierarchy as a sub-commander of the military police.[7]  Moreover, Janković was charged with crimes in relation to a series of rapes and sexual assaults which, while serious indeed, involved far fewer victims and fewer varied incidents than the charges set out against the Appellant in the Second Amended Indictment.[8]

26.    Indeed, the Prosecution has not identified any paramilitary leader indicted by the Tribunal in whose case the gravity of crimes charged and the level of responsibility of the accused are, when taken in conjunction, as significant as those in the present case.  Nor is the Appeals Chamber aware of any such case, with the possible exception of the indictment issued against the now-deceased Željko Ražnjatović (also known as “Arkan”).[9]  […]

9.       The Appeals Chamber finds no legal basis for Mr. Nzirorera to appeal against the Impugned Decision. Rule 11bis (H) of the Rules expressly provides for the possibility to appeal a Trial Chamber’s decision determining whether to refer a case to a national jurisdiction. The Tribunal’s Statute and Rules do not provide for appellate review of a decision taken by the President pursuant to Rule 11bis (A) to designate a Trial Chamber for determining whether referral of a case would be appropriate. Furthermore, the Appeals Chamber has already held, in a different context, that a decision taken by the Tribunal’s President within his exclusive discretion is not subject to appeal.[1]

10.     The Appeals Chamber is also unable to accept Mr. Nzirorera’s proposition that the Appeals Chamber may hear his appeal as part of its inherent jurisdiction. While it is correct that the Appeals Chamber has the statutory duty to ensure the fairness of proceedings on appeal and, to this effect, has jurisdiction to review decisions taken by the Tribunal’s President,[2] Mr. Nzirorera’s case is presently not on appeal. Moreover, the Appeals Chamber’s consideration of the underlying issues of the fairness of Mr. Nzirorera’s proceedings is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal as of right under the Tribunal’s Rules or as certified by a Trial Chamber.[3]

11.     Mr. Nzirorera’s argument that the Appeals Chamber should decide his appeal on the basis that it concerns an issue “of general significance to the Tribunal’s jurisprudence” is likewise not persuasive. […]

12. […] The Appeals Chamber finds that, while the Practice Direction does not specifically provide for the possibility for a co-accused to file submissions in appeals proceedings initiated by another co-accused, it is clear from the procedural background of the case that Gotovina does have a specific interest in the matter and it is therefore in the interests of justice to consider Gotovina’s Response as validly filed. Moreover, the Appeals Chamber notes that the Appellant suffers no prejudice from such finding since he was granted the opportunity to reply to Gotovina’s Response.[1]

16.    The Appeals Chamber also recalls that a conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice.[1] Safeguarding the interests of justice requires the prevention of potential conflicts of interest before they arise.[2] If a Chamber determines that the risks and damage that could be caused are such as to jeopardise the right of the accused to a fair and expeditious trial or proper administration of justice, it takes the appropriate measure to restore and protect the fairness of trial and the integrity of the proceedings.[3] It has been held that such measures can include ordering the withdrawal of counsel.[4]

28.    Finally, the Appeals Chamber considers that, in a case of this kind, “safeguarding the interests of justice requires not only the existence of a mechanism for removing conflicts of interests after they have arisen but also the prevention of such conflicts before they arise”.[5] It was hence not unreasonable for the Trial Chamber to find that the dual representation by Prodanović and Sloković risks to considerably prejudice the Appellant as it would limit the choice of defence strategies due to his Counsel’s duty of loyalty to Ademi and that they therefore would not be able to serve best the Appellant’s interests.

55. The Appeals Chamber reiterates that “[o]ne of the limits to the accused’s choice [of counsel] is a conflict of interest affecting hiscounsel”.[1]

43.     […] Moreover, the Appeals Chamber notes that Article 14(D) of the Code of Conduct prohibits a representation with an adverse effect on either of the clients, regardless of whether they are represented in matters before the International Tribunal or other jurisdictions. […]

44.     […] While the said provision [Article 14(D) of the Code of Conduct] does not seem to distinguish between the duty of loyalty to a current and a former client,[1] the Appeals Chamber observes that a conflict of interest may be more difficult to discern when it arises from the context of successive or serial representation rather than concurrent representation. Parties made extensive references to national case-law and the Appeals Chamber finds it instructive to have a brief overview of underlying principles with respect to a counsel’s duty of loyalty to a former client in national jurisdictions.

45.     According to the relevant US and UK case-law on the matter, a conflict of interest vis-à-vis a former client exists when the subject matter of the two representations are substantially related so as to put at risk the confidences received from that client.[2] It is however important to note that such conflict of interest is considered to exist in all situations “when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client”.[3] Generally, it would be a case-by-case assessment by the judiciary of the character and extensiveness of the prior representation to ensure that the interests of both former and current clients are preserved.[4] In any case, doubts as to the existence of an asserted conflict of interest with respect to a former client should be resolved in favour of disqualification.[5]

46        As a general principle in French law, apart from confidentiality issues, a counsel can only accept a new representation in which he or she may be led to plead against a former client where such new case is entirely different from the previous one, so as to fully conform to his or her duty of loyalty.[6] Similar principles are provided for by the Code of Conduct for European Lawyers, according to which a lawyer “must […] refrain from acting for a new client if there is a risk of breach of a confidence entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new client”.[1]

47      While the Croatian Attorney’s Code of Ethics is only explicit with respect to prohibiting legal assistance to an adverse party in a subsequent representation, it provides for duties of faithfulness and loyalty to a client which do not necessarily cease with the end of representation.[2] In Bosnia and Herzegovina, it is impermissible to represent clients with conflicting interests, and should such a conflict (or risk of infringing the confidentiality of information or the attorney’s independence) arise during litigation, the attorney has an obligation to return the power of attorney to all the parties involved.[3]

48      Having concluded that the simultaneous representation of the Appellant and Ademi by Prodanović and Sloković raises a high risk of a conflict of interest due to the fact that the Counsel would be limited in their choice of defence strategies in order to conform to their duty of loyalty,[4] the Appeals Chamber is of the view that, even if Prodanović and Sloković withdrew from Ademi’s defence, they would still be unable to represent the Appellant to the best of his interests as they would remain bound by their duty of loyalty to Ademi as a former client.[5] This potential conflict of interest is even more contoured considering the high probability that Ademi will be called as witness in the present case.[6]