38. […] In exercising its discretion to control the proceedings, the Trial Chamber is working to ensure that the trial is completed within a reasonable time. The reduction of the Prosecution’s time for examination-in-chief also resulted in a cut to the Defence’s time for cross-examination. Furthermore, the modalities and allocation of time for presentation of the Accused’s case is yet to be determined by the Trial Chamber.[1]  When the proceedings reach that stage, the Appeals Chamber recalls that under the jurisprudence of the International Tribunal, the Trial Chamber will be bound to apply the longstanding principle of equality of arms[2] to ensure that a basic proportionality will govern the relationship between the time and number of witnesses allocated to all sides. In any case, the Prosecution has failed to demonstrate a discernible error committed by the Trial Chamber in this respect.

The Prosecution challenged the compliance of the Impugned Decision on Remand with the Appeals Chamber’s direction to the Trial Chamber that it specifically consider whether the reduction of 107 hours from the 400 hours originally allocated to the Prosecution would allow it a fair opportunity to present its case in light of the complexity and number of issues that remain. The Appeals Chamber found:

25. The Appeals Chamber considers that while a Trial Chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision – in this case whether the reduced timeframe objectively allows the Prosecution a fair opportunity to present its case – the Prosecution overstates the Trial Chamber’s burden in this respect. It is sufficient here that the Trial Chamber indicated what documents and information it had taken into account and the factors it considered in assessing what remains to be covered against the backdrop of the Amended Indictment, while making clear in its assessment that it duly balanced the sometimes competing interests at stake in carrying out its duty to ensure the fairness and expeditiousness of the proceedings. The Trial Chamber is not, however, required to itemise and justify the time reduction in respect of each section of the Amended Indictment.[1]

17.    The Appeals Chamber notes that, pursuant to Rule 74 of the Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may, “if it considers it desirable for the proper determination of the case”, invite submissions from an amicus curiae “on any issue specified by the Chamber”.  The Appeals Chamber further considers that, as was done in Slobodan Milošević, the Appeals Chamber can ask the amicus curiae to argue in favour of the interests of a particular party where this approach will serve the interests of justice.[1]

18.    As part of the choice to self-represent, Mr. Krajišnik must “accept[] responsibility for the disadvantages this choice may bring.”[2]   He is not entitled to amicus curiae.  Rather, the issue is whether, in being “particularly attentive to its duty of ensuring that the [appeal] be fair,”[3] the Appeals Chamber deems the appointment of amicus curiae to be warranted.  The Appeals Chamber considers that in this case the answer is yes.  The appointment of amicus curiae will not infringe on any rights of Mr. Krajišnik, such as the right to self-represent or the right to a speedy appeal.  Moreover, such an appointment will help ensure that the appeal is a fair one.  Of course, a fair appeal could well occur in the absence of amicus curiae, but this is an issue better judged with hindsight rather than with foresight.  Since Mr. Krajišnik is the first defendant seeking to self-represent on appeal, the Appeals Chamber deems it prudent to appoint amicus curiae to keep an eye on his interests.

19.    Accordingly, pursuant to Rule 74, the Appeals Chamber invites the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.  Amicus curiae is not requested to conduct any new factual investigations.  Rather, in light of the evidence at issue in the trial record, amicus curiae is to put forth grounds of appeal seeking reversal of convictions or reduction in sentence and to argue against grounds of appeal advanced by the Prosecution.  Amicus curiae is to work independently from Mr. Krajišnik. 

20.    The Appeals Chamber emphasizes that amicus curiae is not a party to the proceedings.[4]  The Appeals Chamber is therefore under no obligations to address all arguments raised by amicus curiae.  Rather, the Appeals Chamber will look to the arguments raised by amicus curiae in assessing whether the interest of justice requires the Appeals Chamber to consider, proprio motu, issues not raised in Mr. Krajišnik’s appeal or in his responses to the Prosecution’s appeal.

The Appeals Chamber also considered the status of an amicus curiae and the modalities of him participating in the appeal, paras 21-22:

21.    In the absence of other instructions from the Pre-Appeal Judge or the Appeals Chamber, amicus curiae is to make submissions to the Appeals Chamber similar to those which a party would make (including a notice of appeal, appeal brief, response brief, and reply brief) and pursuant to the requirements set out in the Rules and the relevant Practice Directions,[5] with one exception.  This exception is that the word counts for amicus curiae are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  Amicus curiae is to attend Status Conferences, either in person or via tele-conference, and to appear at the oral hearing of the appeal.  Amicus curiae is also to have access to all inter partes confidential material in the case.

22.    The Prosecution is entitled to respond to amicus curiae in the same way that, pursuant to the Rules and the relevant Practice Directions, it is entitled to respond to the other party, save that the word counts for its responses are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  The Appeals Chamber notes that the Prosecution may choose to respond separately to Mr. Krajišnik and to amicus curiae or instead choose to file consolidated responses and replies (with word counts for these consolidated filings equal to one and two-thirds those set forth in the Practice Direction on the Length of Briefs and Motions).  In oral proceedings, the Prosecution will similarly have a right of response with regard to amicus curiae. 

127. […] The actus reus need not serve as condition precedent for the crime and may occur before, during, or after the principal crime has been perpetrated.[1] The Appeals Chamber has also determined that the actus reus of aiding and abetting may be satisfied by a commander permitting the use of resources under his or her control, including personnel, to facilitate the perpetration of a crime.[2] […]

134. The Appeals Chamber observes that the question of whether a given act constitutes substantial assistance to a crime requires a fact-based inquiry. […] The Appeals Chamber, however, has already held that it is not required that the act of assistance serve as a condition precedent for the commission of the crime.[3] In making its findings, the Trial Chamber was aware of the more limited scope of assistance provided by the Bratunac Brigade in relation to other elements of the VRS and civilian authorities.[4] Nonetheless, the Trial Chamber described the contribution of the resources made available by Blagojević as “practical assistance” to the crimes which had a substantial effect on the commission of the crimes.[5] The Appeals Chamber recalls that, in a similar context, it reached the same conclusion in the Krstić Appeal Judgement.[6]

187. In the Blaškić Appeal Judgement, the Appeals Chamber considered whether the actus reus of aiding and abetting requires causation between the act of the accused and the act of the principal, or in other words, whether the contribution “must have a direct and important impact on the commission of the crime.”[7] The Appeals Chamber found that “proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required.”[8] However, the Appeals Chamber reiterated that one of the requirements for the actus reus of aiding and abetting is that the support of the aider and abettor have a substantial effect upon the perpetration of the crime.[9]

188. In reaching this conclusion, in the Blaškić Appeal Judgement the Appeals Chamber referenced the definition of aiding and abetting in the Vasiljević Appeal Judgement, which is identical to that set out in the Tadić Appeal Judgement, and which, in specifying that the assistance given by an aider and abettor must be specifically directed, also contrasted aiding and abetting liability with that of joint criminal enterprise.[10] However, in the Blaškić Appeal Judgement the Appeals Chamber also found that the Trial Chamber correctly held that the standard for the actus reus was that set out in the Furundžija Trial Judgement: “consist[ing] of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[11]

189. The Appeals Chamber observes that while the Tadić definition has not been explicitly departed from, specific direction has not always been included as an element of the actus reus of aiding and abetting.[12] This may be explained by the fact that such a finding will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime. The Appeals Chamber also considers that, to the extent specific direction forms an implicit part of the actus reus of aiding and abetting, where the accused knowingly participated in the commission of an offence and his or her participation substantially affected the commission of that offence, the fact that his or her participation amounted to no more than his or her “routine duties” will not exculpate the accused.

195. The Appeals Chamber rejects the proposition that independent initiative, power, or discretion must be shown in order for the actus reus of aiding and abetting to be established. It recalls its previous rejection of the contention that there exists a special requirement that a position of superior authority be established before liability for aiding and abetting under Article 7(1) of the Statute can be recognized.[13] The apparent implication of that argument was that a person lacking sufficient authority to be considered a superior or to be acting independently, rather than in the course of routine duties, would necessarily also lack the sufficient authority or capacity to make a significant contribution to the commission of the crime. The Appeals Chamber considers that such a determination is to be made on a case by case basis. In this sense, an accused’s position of authority and ability to exercise independent initiative constitute contextual factors that may go to proving the significance of the accused's assistance in the commission of the crime.

127. […] The requisite mental element of aiding and abetting is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.[1] In cases of specific intent crimes such as persecutions or genocide, the aider and abettor must know of the principal perpetrator’s specific intent.[2]

221.  In describing the applicable law for aiding and abetting, the Trial Chamber restated the formulation of the mens rea for aiding and abetting found in the Vasiljević Appeal Judgement:

[I]t is not required that the aider and abettor shared the mens rea required for the crime; it is sufficient that the aider and abettor had knowledge that his or her own acts assisted in the commission of the specific crime by the principal offender. The aider and abettor must also be aware of the “essential elements” of the crime committed by the principal offender, including the state of mind of the principal offender.[3]

The Appeals Chamber has applied this formulation consistently in its judgements.[4] Consequently, the Appeals Chamber finds no legal error on the part of the Trial Chamber in this regard.

23. A participant in the International Tribunal’s legal aid system has the right to competent assigned counsel.[1] An assigned counsel is presumed to be competent and such a presumption can only be rebutted by evidence to the contrary.[2] Among other things, an appellant must demonstrate “gross incompetence” on the part of the assigned counsel.[3]

25. As a general matter, in his submissions Blagojević simply disagrees or complains about decisions made by his counsel.[4] Moreover, Blagojević’s complaints about his counsel’s performance during trial stem from his refusal to communicate with his counsel and instruct his Defence team. The Appeals Chamber considers that this is not an acceptable basis for challenging counsel’s conduct. His cursory submissions therefore fail to demonstrate that his counsel’s performance constituted “gross incompetence”.

Nature:

101. […] The totality of evidence relating to the forcible transfer and the detention and mistreatment in Bratunac town, in particular when coupled with the humanitarian crisis that followed the fall of the Srebrenica enclave, leaves no room for any other reasonable conclusion about the nature of the attack.

Knowledge:

102. Blagojević also submits that the Trial Chamber erred in fact in finding that he was aware of this broader context.[1] His simple denial that he lacked knowledge of the context in which the attack occurred is insufficient to call into question the reasonableness of the Trial Chamber’s findings on this point. As discussed elsewhere in this Judgement, the Trial Chamber reasonably concluded that he was aware, among other things, of the dire humanitarian situation, the forcible transfer, and the detention and mistreatment of thousands of Bosnian Muslim men in Bratunac town, as well as the role played by brigade personnel in these events.[2] Moreover, it was also reasonable for the Trial Chamber to conclude that given his role as a commanding officer of a brigade operating in the area at the time, Blagojević would have had knowledge of the wider context in which his own acts occurred, namely the widespread or systematic attack against the civilian population of Srebrenica. Though the Trial Chamber concluded that he lacked knowledge of the mass murder operation,[3] the events of which he had knowledge, mentioned above, were sufficient to put him on notice of the nature of the attack.

The Trial Chamber determined that Blagojević was complicit in genocide by allowing Bratunac Brigade resources and personnel to be used in connection with the forcible transfer from Potočari and the mistreatment and murder of the Bosnian Muslim detainees in Bratunac town.[1] For the Trial Chamber, the forcible transfer of the women and others was a “manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population” and the killings and mistreatment at Bratunac town were a similar “manifestation of this intent to destroy the group.”[2]

122. The main question for the Appeals Chamber is whether, in the absence of knowledge about the mass killings, the above findings form a sufficient basis to conclude that Blagojević knew of the principal perpetrators’ genocidal intent. It follows from the Krstić Appeal Judgement that the existence of the mass killings which followed the take-over of Srebrenica was key to the finding that genocide had been committed.[3] In this respect, the Appeals Chamber stated: “[t]he main evidence underlying the Trial Chamber’s conclusion that the VRS forces intended to eliminate all the Bosnian Muslims of Srebrenica was the massacre by the VRS of all men of military age from that community.”[4] Moreover, the Appeals Chamber also placed significant weight on Radislav Krstić’s awareness of the mass killings in determining that he had knowledge of the genocidal intent of the principal perpetrators.[5] In this respect, the Appeals Chamber refers to its assessment of the impact of Radislav Krstić’s awareness of the forcible transfer operation, the separations in Potočari, and the detention and mistreatment of Bosnian Muslim men in Bratunac town on his knowledge of the genocidal intent of the principal perpetrators.[6]

123. The Appeals Chamber notes that genocidal intent may be inferred, among other facts, from evidence of other culpable acts systematically directed against the same group.[7] Thus, the Appeals Chamber accepts that the forcible transfer operation, the separations, and the mistreatment and murders in Bratunac town are relevant considerations in assessing whether the principal perpetrators had genocidal intent.[8] However, the Appeals Chamber is not convinced by the Trial Chamber’s reasoning that the forcible transfer operation alone or coupled with the murders and mistreatment in Bratunac town would suffice to demonstrate the principal perpetrators’ intent to “destroy” the protected group.[9] The Krstić Appeal Judgement clearly held that “forcible transfer does not constitute in and of itself a genocidal act”, and it is simply a relevant consideration as part of the overall factual assessment.[10] Similarly, the Appeals Chamber notes that “opportunistic killings” by their very nature provide a very limited basis for inferring genocidal intent. Rather, as the Appeals Chamber determined in the Krstić Appeal Judgement, these culpable acts simply assist in placing the mass killings in their proper context.[11] Consequently, no reasonable trier of fact could find beyond a reasonable doubt that, without knowledge of the mass killings, Blagojević’s awareness of the other facts related to the forcible transfer operation shows that he had knowledge of the principal perpetrators’ genocidal intent.[12]

342. […] Mere compliance with the law is not ordinarily a factor in assessing an accused’s good character, but the Appeals Chamber has noted that a Trial Chamber, in the exercise of its discretion, may credit an accused for fully complying with certain obligations, such as the terms and conditions of an accused’s provisional release,[1] or may permissibly credit an accused for preventing the commission of crimes.[2]

344. […] Nor does the Prosecution demonstrate error in the weight accorded by the Trial Chamber to Jokić’s voluntary surrender. The Prosecution argues that an accused is under an obligation to surrender to the International Tribunal,[1] but this does not mean that doing so may not be considered in mitigation,[2] as the Trial Chamber did here. Although voluntary surrender is not cooperation with the Prosecution per se, it is cooperation with the International Tribunal, and the Trial Chamber could consider it a mitigating circumstance. Therefore, the Appeals Chamber dismisses this sub-ground of the appeal. […]