20. […] The Decision Accepting Withdrawals terminated the appeal proceedings in Strugar’s case.  It transformed him from an appellant into an individual with a final sentence. […]

25. The Appeals Chamber concludes that the Decision Accepting Withdrawals is fundamentally different from the kind of “final judgement” referred to in both the Čelebići Decision and the Žigić Decision.  While the Decision Accepting Withdrawals may be a “final judgement” in the sense that it concluded the case,[2] it neither constitutes the kind of judgement envisioned in Article 25(2) of the Statute nor provides all the due process protections that naturally accompany a full judgement on the merits.  It is essentially of a sui generis nature and is limited to procedure and process.  It was adopted without any consideration of the merits of the Trial Chamber judgement.  Were reconsideration prohibited in such circumstances, then substantive injustice might result. […]

9. […] The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) only where they challenge an indictment on the ground that it does not relate to: (i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute (“personal jurisdiction”); (ii) the territories indicated in Articles 1, 8 and 9 of the Statute (“territorial jurisdiction”); (iii) the period indicated in Articles 1, 8 and 9 of the Statute (“temporal jurisdiction”); or (iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute (“subject-matter jurisdiction”).[1]

7. When reviewing a Trial Chamber’s decision on jurisdiction under Rule 72(B)(i) of the Rules, the Appeals Chamber will only reverse the decision “if the Trial Chamber committed a specific error of law or fact invalidating the decision or weighed relevant considerations or irrelevant considerations in an unreasonable manner.”[1] In reaching its decision, it is incumbent upon a Trial Chamber “to provide a reasoned opinion that, among other things, indicates its view on all those relevant factors that a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2]

The Appeals Chamber recalled that vagueness in an indictment may be cured by appropriate notice found in a summary of witness’s anticipated testimony annexed to a Prosecution pre-trial brief. However, in the present case, the Appeals Chamber rejected such notice as insufficient where the relevant summary did not provide clear and consistent information to the Appellant:

223. In the Gacumbitsi Appeal Judgement, the Appeals Chamber held that a summary of an anticipated testimony in an annex to the Prosecution’s pre-trial brief could, in certain circumstances, cure a defect in an indictment.[1] In that case, the indictment alleged generally that “Gacumbitsi killed persons by his own hands”.[2] The Appeals Chamber found this allegation to be vague, in particular as it referred to the physical commission of murder of a particular person.[3] However, a summary of anticipated testimony contained in an annex to the pre-trial brief referred to a specific killing and connected it to the crime of genocide.[4] The Appeals Chamber also observed that the summary did not conflict with any other information that was provided to the accused and was provided in advance of trial.[5] The information in the annex to the pre-trial brief was thus found to be timely, clear, and consistent and to provide sufficient notice of the allegation of the specific murder mentioned in the summary.[6]

224. The circumstances presented in this instance, however, are different. The summary of Witness AW’s anticipated testimony does not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the summary modifies the time, location, and physical perpetrator, matters that were already specifically pleaded in the Indictment, albeit in a materially different manner. In such circumstances, the summary of Witness AW’s anticipated testimony in the annex of the Pre-Trial Brief and the disclosure of his witness statement do not provide clear and consistent information sufficient to put the Appellant on notice that he was being charged with physically committing the murder of Pascasie Mukaremera on Rugona Hill in mid-May 1994. The summary of Witness AW’s testimony does not supplement or provide greater detail, but materially alters key facets of this paragraph. This discrepancy should have been immediately apparent to the Prosecution as it prepared its Pre-Trial Brief and listed the anticipated testimony of Witness AW in support of a paragraph of the Indictment that materially conflicted with it, in particular given that the Prosecution had shortly prior to that added this allegation to the Indictment for the purpose of providing specificity to the Accused. (footnotes omitted).

58. […] The Appeals Chamber recalls that, while a Trial Chamber is required to consider inconsistencies and any explanations offered in respect of them when weighing the probative value of evidence, it does not need to individually address them in the Trial Judgement. Furthermore, the presence of inconsistencies within or amongst witnesses’ testimonies does not per se require a reasonable Trial Chamber to reject the evidence as being unreasonable.

The Appellant did not make any submission at trial concerning the mitigating circumstances in his case and the Trial Chamber found no mitigating circumstances. On appeal, he argued that the Trial Chamber was obliged to consider mitigating circumstances. The Appeals Chamber found:

231. Pursuant to Rule 101(B)(ii) of the Rules, a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence.[1] The accused, however, bears the burden of establishing mitigating factors by a preponderance of the evidence.[2] The Appeals Chamber notes that the Appellant made no sentencing submissions at trial.[3] In such circumstances, the Trial Chamber’s determination that there were no mitigating circumstances was within its discretion and does not constitute a legal error. If an accused fails to put forward relevant information, the Appeals Chamber considers that, as a general rule, a Trial Chamber is not under an obligation to seek out information that counsel did not see fit to put before it at the appropriate time.[4] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments, and it was therefore the Appellant’s prerogative to identify any mitigating circumstances instead of directing the Trial Chamber’s attention to the record in general. The Appellant is simply advancing arguments on appeal that he failed to put forward at the trial stage, and the Appeals Chamber “does not consider itself to be the appropriate forum at which such material should first be raised”.[5]

232. In any event, the Appellant’s submissions fail to demonstrate that the Trial Chamber’s finding of “no mitigating circumstances” is unreasonable.[6] […]

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.