21. The Appeals Chamber finds more merit in the Appellant’s contention that the Referral Bench erred in its factual assessment of whether he amounted to a “most senior leader”.  The Referral Bench set out the following standard for considering his level of responsibility. […] Yet the Referral Bench’s application of this standard was sparse.  The Referral Bench simply stated that “[i]rrespective of the alleged local notoriety of Milan Lukić and his paramilitary group, neither of the Accused can sensibly be characterised as one of the ‘most senior leaders’, as envisioned by the Security Council in Resolution 1534.”[1]  This conclusory statement appears to presume that a “local” paramilitary leader can never constitute a “most senior leader”.  In doing so, it fails to take into account the “alleged level of participation in the commission of the crimes charged in the indictment.”[2]  The Second Amended Indictment not only alleges that the Appellant directly “committed” the crimes charged, but also suggests that he was a leader and orchestrator of these crimes[3] – which were part of “one of the most notorious campaigns of ethnic cleansing in the conflict”.[4]  There is no suggestion in the Second Amended Indictment that the Appellant was acting under the orders of others, although he may have coordinated with others in carrying out a “reign of terror upon the local Muslim population.”[5]  Rather, it seems that within his own sphere, he was a dominant presence.

22. […] In light of the number and nature of his alleged criminal acts, and given the absence of any suggestion in the Indictment that the Appellant answered to a higher authority, the Appeals Chamber considers the Appellant’s case falls into this category of most significant paramilitary leaders. The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[6]  In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant.

26. […] In light of the notorious role played by paramilitary organizations and their leaders during the conflict in the former Yugoslavia, and in light of the Security Council’s recognition that the Tribunal should try at least some of these leaders, the Appeals Chamber considers that the Appellant’s case should be retained by the Tribunal. Based on the allegations set forth in the Second Amended Indictment, the Appellant will be perhaps the most significant paramilitary leader tried by the Tribunal to date.

17. […] Rule 11bis (C) of the Rules speaks of the “charge[s]”, not of possible future charges. The ultimate case brought against an accused (whether in the Tribunal or in BiH State Court following a referral) may include additional charges, not present in the operative indictment at the time of referral,[1] that affect ultimate findings with regard to gravity and level of responsibility.  But this is not sufficient justification to abandon the existing approach. […]

11..    […] The Appeals Chamber has already decided the issue which is the subject of the present appeal. It explicitly noted that “Rule 11bis of the Rules makes no provision for an accused to request the transfer of his case to a national jurisdiction for trial” and concluded that “[c]onsequently, the remaining Judges were not obliged to take into consideration Mr. Nzirorera’s request to the President pursuant to Rule 11bis of the Rules”.[1] In light of the above, the Appeals Chamber finds that Mr. Nzirorera has no standing to appeal against the Impugned Decision.

33.    The Appeals Chamber recalls that “consent provided by a potentially affected client or former client to remove a conflict of interests upon consultation with the counsel should generally be regarded as fully informed in the absence of an indication to the contrary”.[1] However, such presumption could only be made in this case if the Appellant and Ademi had been fully conscious of all possible implications, and possible limitations that their simultaneous representation could impose upon either of their defence strategies.[2] Having examined both Undertakings, the Appeals Chamber is of the view that the Appellant has not demonstrated any discernible error in the Trial Chamber’s findings, as they did not refer to any discussion on possible implications of such dual representation on any of the defence strategies with the exception of Ademi being potentially called as a witness in the present case.

34.    The Appeals Chamber also disagrees with the Appellant’s argument that the Trial Chamber should have ordered the Counsel to present new, more satisfactory, undertakings before rendering the Impugned Decision. The Trial Chamber was under no obligation to do so since the duty to inform promptly and fully each potentially affected client (current or former) and to take all steps to remove it or to obtain the full and informed consent of the said persons lies squarely upon the counsel.[3]

35.    In any case, the Appeals Chamber recalls that such consent, even if found to be fully informed, is not conclusive of there being no conflict of interest.[4] The fact that the Appellant agreed to common representation does not relieve the Trial Chamber of its responsibility to ensure that the integrity of the proceedings would be preserved if such representation is maintained.[5] In the present case, the Trial Chamber concluded otherwise and the Appeals Chamber has found no error in such conclusion.[6] Moreover, the Appeals Chamber finds that the Appellant’s consent is in fact of no relevance to the present issue, as the point of concern is whether, by participating in the Appellant’s defence, Prodanović and Sloković will be led into conflict with their professional responsibilities to Ademi.[7]

23.    […] At the outset, the Appeals Chamber notes that the Trial Chamber was satisfied that no confidential information that would be potentially useful to the Appellant came into Prodanović’s and Sloković’s possession through Ademi. However, in light of the findings below, the Appeals Chamber agrees with the Trial Chamber that, in the circumstances of the present case, the fact that Ademi did not provide his Counsel with any such confidential information is without bearing, since this factor is not the only basis on which a conflict of interest can be reasonably anticipated.Indeed, where a Chamber can reasonably expect that, due to a conflict of interest, a counsel “may be reluctant to pursue a line of defence, to adduce certain items in evidence, or to plead certain mitigating factors at the sentencing stage, in order to avoid prejudicing another client”, it can no longer presume that counsel has fulfilled his or her professional obligations under the Code of Conduct and has the power and the duty to intervene in order to guarantee or restore the integrity of the proceedings without delay.[3]

24.    Also, while it is true that such conflicts of interest are more obvious in cases where counsel represents two accused who are, at least partly, charged with the same criminal acts, committed during the same period of time and in the same area,[4] this is clearly not the only situation where a conflict of interest may arise. In this regard, the Appeals Chamber emphasizes that the provisions of Article 14(D)(i) and (ii) of the Code of Conduct do not require that there be substantial relationship between matters in which the current clients are represented – what is prohibited is a simultaneous representation that will, or may reasonably be expected to, adversely affect the representation of either client. [See below in “Issues of particular interest” for application in the present case (command-subordinate relationship between clients]

49.    […] In any case, in light of the Appeals Chamber’s findings above, this solution [possibility of engaging a third lawyer for the purposes of cross-examination of Ademi] would not be sufficient to satisfy the duty of loyalty to a current or former client as it would constitute too limited an understanding thereof.[5] The Appeals Chamber also agrees with the observation made in a different case that “the defence cannot be compartmentalised, as is suggested, to get around a conflict situation”.[6]

54.    […] The Trial Chamber did not consider the hardship element when ordering the Counsel to withdraw from the Appellant’s representation and the Appeals Chamber is not convinced that it was obliged to do so to the point where such an omission would constitute an abuse of discretion. The Appeals Chamber recalls that the question of prejudice was indeed discussed by the Trial and Appeal Chambers in their previous decisions related to the impact of the joinder on the Appellant’s right to have a counsel of his choice.[1] In the present instance, there is nothing that would oblige the Trial Chamber to consider this factor in relation to the conflict of interest.

55.    […] It further finds that, even though the replacement of counsel is generally likely to cause obvious inconveniences, including a delay in the proceedings, if the conflict of interests regarding the representation of the Appellant and Ademi is not resolved at the present stage of the proceedings, the administration of justice may be seriously prejudiced and have much more disastrous consequences in future.[2] The Appeals Chamber also notes that no imminent date has been established for the commencement of the trial in this case and, considering the current trial schedule of the International Tribunal,[3] it is not likely to commence within the next six months which the Appellant affirms to be necessary for the new counsel to get familiarized with the case.

13. […] the Trial Chamber correctly held that the adjudicated facts sought to be judicially noticed must be relevant to the matters at issue in the current proceedings.[1]

14. […] Even though these Proposed Facts fall outside the time period charged in the Amended Indictment and are related to the acts, conduct and mens rea of his predecessor, Galić, the Appeals Chamber finds that they are clearly relevant to the present case inasmuch as they concern the campaign against civilians between September 1992 and August 1994.

21. [In the Karemera Appeals Decision] the Appeals Chamber held that the key question regarding admission of facts of common knowledge, pursuant to Rule 94(A) of the Rules, is “whether the proposition can reasonably be disputed” and “not whether a proposition is put in legal or layman’s terms.”[1] When a Trial Chamber determines that a fact is notorious and not subject to reasonable dispute, it is obliged to take judicial notice of it under Rule 94(A) of the Rules. It has no discretion to act otherwise.[2] It is irrelevant whether the fact in question is defined by terms with a legal meaning as long as these terms describe factual situations.[3] In this respect, the Appeals Chamber does not agree with the Prosecution that the Trial Chamber held “that legal conclusions could be judicially noticed under Rule 94(A)” of the Rules.[4] The Trial Chamber limited itself to noting that the Appeals Chamber in Karemera ruled that “the submission that the term ‘genocide’ is a legal characterisation” could not even be considered given that “Rule 94(A) does not provide the Trial Chamber with discretion to refuse judicial notice on this basis.”[5] This constitutes an accurate reflection of the Karemera Appeals Decision.[6] Furthermore, “whereas judicial notice under Rule 94(A) is mandatory, judicial notice under Rule 94(B) is discretionary.”[7] Thus, the Trial Chamber correctly interpreted the Karemera Appeals Decision when it ruled that its conclusions with regard to Rule 94(A) could not be apposite to Rule 94(B) of the Rules.

22. The Appeals Chamber additionally notes that the Trial Chamber correctly held that “[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings”.[8] To determine “whether a proposed fact is truly a factual finding”, the Trial Chamber referred to the Krajišnik Decision which adjudicated that “many findings have a legal aspect, if one is to construe this expression broadly. It is therefore necessary to determine on a case-by-case basis whether the proposed fact contains findings or characterizations which are of an essentially legal nature and which must, therefore, be excluded.”[9] Thus, the Prosecution does not accurately represent the findings in the Impugned Decision when it claims that the Trial Chamber held “that facts could not be judicially noticed if they were described with legal language”.[10] The Appeals Chamber also observes that the Trial Chamber’s conclusion is fully in line with the jurisprudence of the Trial Chambers on this issue[11] – including after the issuance of the Karemera Appeals Decision.[12]

25. […] Accordingly, the Appeals Chamber concludes that it has the power to reconsider the Decision Accepting Withdrawals in the same way that it has the power to reconsider other decisions that do not constitute judgements on the merits.[1]

21. [… ] The Decision Accepting Withdrawals can be considered a “final judgement” for purposes of Article 26 because it “terminates the proceedings”.[1]  Strugar nowhere suggests, however, that he is bringing a motion for review, and he fails to address how he satisfies the basic requirements for review.  He nowhere explains, for example, how an apparent legal impediment constitutes a “fact”[2] or how it can be deemed “new” where the matter of legal impediments was plainly at issue in the earlier proceedings.[3]  Accordingly, the Appeals Chamber does not consider the Defence Request to constitute a motion for review.