34. With regard to confidential information, the Appeals Chamber generally sees no error in the Registry's determination that Mr. Krajišnik may only discuss confidential material with designated legal associates.  This is a difficult issue.  On the one hand, given Mr. Krajišnik's distance from the region and confinement in the UNDU, it is virtually impossible for him to personally undertake investigations relating to confidential material – investigations which may prove helpful in the preparation of his defence.  If he cannot discuss confidential material with those outside the UNDU, then he has no mechanism for enabling such investigations.[1]  On the other hand, if Mr. Krajišnik is permitted to share confidential information with anyone he considers to be part of his team, then the risks of leakage of confidential information or of inappropriate conduct of investigations are significantly higher than where investigations are conducted under the supervision of a legal professional.  Such an approach could endanger the protection of witnesses and victims (protections so important that they are specifically referenced in Article 22 of the Statute).  The Registry has sought to strike a balance between these competing interests by enabling Mr. Krajišnik to share confidential information only with designated legal associates, who in turn can provide the professional supervision needed to ensure appropriate use of the confidential information.  The Appeals Chamber considers that this approach does indeed strike a reasonable balance and upholds it, subject to one caveat that will be discussed in paragraph 44.

Paragraphs 40 and 41 dealt with the issue of whether a self-represented accused is entitled to legal aid. In accordance with past practice, the Appeals Chamber held that an accused faces a binary choice of either self-representing or availing himself of legal aid.

40. In the Appeals Chamber's view, Article 21(4)(d) of the Statute does not support the proposition than an accused who elects to self-represent is nonetheless entitled to legal aid. Article 21(4)(d) gives the accused the right “to defend himself in person or through legal assistance of his own choosing”. We have held that these two options stand in “binary opposition”.[1] An accused who chooses to self-represent is not entitled to legal assistance. Hence, he is not entitled to the subsidiary right mentioned later in Article 21(4)(d) to have legal assistance paid for by the Tribunal if he is indigent.

41. The question nonetheless remains whether some other provision of the Statute or source of law requires the Registry to provide an indigent self-representing accused with funded legal aid. Mr. Krajišnik suggests that the principle of equality referenced in Article 21(1) of the Statute and the fair trial rights referenced in Article 21(2) of the Statute have this effect.[2] The Appeals Chamber does not find these arguments convincing.  While Article 21(1) may require that accused in similar circumstances receive roughly comparable treatment, it does not require that an accused who opts for self-representation receive all the benefits held by an accused who opts for counsel. To the contrary, as “part of the choice to self-represent, Mr. Krajišnik must accept responsibility for the disadvantages this choice may bring”.[3] Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of a fair trial. To the extent that the accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is restriction of his right to self-representation.[4]  To allow an accused to self-represent and yet also to receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.

The Appeals Chamber found that funding of legal associates presented a slightly different situation and that funding for such associates should be available.

42. [T]he Appeals Chamber considers whether Article 21(4)(b) of the Statute requires the Tribunal to provide some funding for the legal associates of self-represented accused.  The Appeals Chamber agrees with the Registry that the term “facilities” in Article 21(4)(b) does not normally encompass legal assistance. Nonetheless, the Appeals Chamber considers that in seeking otherwise to give effect to Article 21(4)(b) for a self-represented accused, the Registry has relied heavily on the concept of designated legal associates. To the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates, it is appropriate for the Tribunal to provide some funding for such associates. Such funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused), but nonetheless should adequately reimburse the legal associates for their coordinating work and for related legal consultation.

46. As to Mr. Krajišnik’s request for 24-hour access to a telephone, scanner, fax, and photocopier, the Appeals Chamber considers that the Registry's denial of such resources is reasonable.  While in the absence of designated legal associates, some variation from standard UNDU procedures may be warranted to enable an accused adequate means of exchanging appropriate information with his defence team, 24-hour access to such means of communication goes far beyond what is necessary to ensure the provision of adequate facilities.

11. […] The Appeals Chamber notes that in the Blaškić case, the Appeals Chamber of the ICTY considered that “the purpose of a response is to give a full answer to the issues raised in a motion by the moving party”.[1] […]

12. […] Most of the submissions in Mr. Ndayambaje’s Response relate solely to his case and challenge the Impugned Decision with regard to its order to him to file a revised witness list containing a maximum of thirty witnesses.[2] The Appeals Chamber finds that these arguments are inadmissible with respect to the appeal of the Appellant as they are not made in response to that appeal. For Mr. Ndayambaje to raise these arguments on his own behalf with respect to the restriction on the number of witnesses he is permitted to call, he needs to have obtained certification. He cannot attempt to appeal the Impugned Decision with the objective of having the Trial Chamber’s reduction of the number of his witnesses reversed by filing a response to a certified appeal of a co-accused.

13. […] Accordingly, Mr. Ntahobali’s Response challenges the Impugned Decision and the Trial Chamber’s use of its discretion.[3] The Appeals Chamber considers that, as Mr. Ntahobali did not seek and was not granted certification to appeal from the Impugned Decision, his arguments in this regard are inadmissible before the Appeals Chamber.

26. The Appeals Chamber recalls that in the Karemera et al. case, it endorsed the following reasoning of the ICTY Appeals Chamber in the Orić case:

The Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why 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.[3]

The Appeals Chamber considered that all parties were not entitled to call precisely equal numbers of witnesses and the Trial Chamber has the discretion to limit the number of witnesses a party may call. This discretion may be exercised pursuant to Rules 73bis and 73ter of the Rules. Where the Trial Chamber exercises this discretion, it must be subject to the full respect of the rights of the party concerned. In cases where an exercise of this discretion leads to a situation where one party has more witnesses than the other, this does not necessarily mean that the principle of equality of arms is violated.

17. [...] If a Trial Chamber finds that the information has been provided in accordance with Rule 70(B), the information will benefit from the protections afforded under Rules 70(C) and (D).[1] However, the restrictions referred to under Rules 70(C) and (D) will only apply after the Trial Chamber has determined that the restrictions imposed by the government upon the witness’s testimony would not undermine the need to ensure a fair trial, and that the need to ensure a fair trial would not substantially outweigh the probative value of the testimony so as to lead to its exclusion.[2] Indeed, Rule 70(F) provides that Rule 70 restrictions shall not “affect a Trial Chamber’s power under Rule 89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[3]

18. By conducting the balancing exercise under Rule 70(F), a Trial Chamber ensures that the government’s legitimate confidentiality concerns are respected, and, at the same time, that the conduct of the trial remains fair and expeditious. While according due weight to legitimate State concerns related to national security and the need for States to safeguard their interests,[4] the Appeals Chamber adopts the holding of the ICTY Appeals Chamber in the Milutinović et al. case that “this deference to States’ interests does not go as far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial”.[5]

22. With regard to whether the limitations placed upon Ambassador Flaten’s testimony under Condition B would have resulted in substantial unfairness such as to outweigh the probative value of his testimony, the Appeals Chamber makes the following observations. On 24 January 2007, the Trial Chamber observed that “[a]s the prospective witness is a Defence witness, the limitations on cross-examination do not impact the rights of the Accused.”[6] The Appeals Chamber recalls that Rule 70(E) is indeed aimed at ensuring that the right of an accused to challenge evidence presented by the Prosecution under Rules 70(C) and (D) remains unaffected and, therefore, finds no error in the Trial Chamber’s statement.

26. Lastly, the Appeals Chamber reiterates that pursuant to Rule 70(F), the Trial Chamber would have been able to exclude the evidence provided by Ambassador Flaten if it found – during the course of his testimony – that the application of Condition B unfairly limited the rights of the co-accused or the Prosecution. Rule 70(F) provides a safeguard against any undue prejudice that could be caused to the parties as a result of the limitations imposed by a State for the protection of the confidential information in its possession. The Appeals Chamber recalls in this regard that the public interest served in ensuring that information given in confidence to one of the parties remains confidential finds its limitation in the obligation imposed on this Tribunal by Articles 20 and 21 of the Statute to ensure a fair trial. In the present case, the Trial Chamber stressed on 24 January 2007 that “Rule 70(F) clearly preserves the Chamber’s power to apply Rule 89(C) and exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[7] The Appeals Chamber finds that such a safeguard in the Rules means that the Trial Chamber would have retained authority over the proceedings even with Condition B applied. Indeed, if the Trial Chamber were to find that the application of Condition B had unfairly limited the rights of the co-accused or the Prosecution to confront the witness during his testimony, the ultimate remedy would be the exclusion of the evidence.[8]

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.