The Appeals Chamber has reiterated the standard of review applicable to interlocutory appeals against discretionary decisions of a Trial Chamber:

11. The Appeals Chamber recalls that an interlocutory appeal is not a de novo review of the Trial Chamber’s decision.[1] Since decisions on matters relating to the calling of witnesses and assignment of counsel at trial fall squarely within the discretion of the Trial Chamber,[2] the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[3] The party challenging a discretionary decision by the Trial Chamber must demonstrate that the Trial Chamber has committed a “discernible error”.[4] The Appeals Chamber will overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion”.[5]

The Prosecution argued that the Trial Chamber erred in not applying Rules 70(G) and 89(D) after the Trial Chamber heard General Clark’s testimony.[1] The Appeals Chamber held that the Trial Chamber correctly applied the Rules.[2] It then held:

18. Furthermore, this analysis does not change simply because the Trial Chamber was considering whether to admit a Rule 70 witness subject to conditions imposed by a Rule 70 provider. While Rule 70(C) and (D) of the Rules refers to certain restrictions on a Trial Chamber in hearing a witness testify to confidential material provided by a Rule 70 provider, those restrictions apply only after the Trial Chamber has determined that the Rule 70 witness testimony “elected” to be presented by a party at trial[3] is admissible under Rule 89 of the Rules. In making that determination, a Trial Chamber is entitled under Rule 70(G) of the Rules to consider whether the Rule 70 restrictions stipulated with respect to that witness testimony would undermine the need to ensure a fair trial and substantially outweigh the testimony’s probative value such as to lead to exclusion of that testimony. A Trial Chamber is not obliged to automatically admit such Rule 70 witness testimony where it is deemed relevant and probative and, only afterwards, asses the actual unfairness caused to the trial by the Rule 70 conditions as applied. The Appeals Chamber recalls that Rule 70 protections on confidential information provided by States have been incorporated in the International Tribunal’s Rules in recognition of the need of States for safeguards with respect to certain State interests. They have also been included to allow and to encourage States to fulfil their cooperation obligations under Article 29 of the Tribunal’s Statute[4] by providing a broad range of information relevant to a particular case.[5] However, this deference to States’ interests does not go so far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial.[6] In sum, under Rules 70(G) and 89(D) of the Rules, a Trial Chamber may, as the Trial Chamber did here, assess the conditions placed upon proposed Rule 70 witness testimony and determine, without hearing that testimony, that it may not be admitted on the basis that the Rule 70 conditions would result in substantial unfairness to the trial, which outweighs that testimony’s probative value.

19. The Appeals Chamber further finds that the Prosecution’s citation to the Martić Decision in support of its interpretation of the test under Rules (70G) and 89(D) of the Rules is inapposite. While in that decision the Appeals Chamber similarly considered whether limitations on the cross-examination of witness testimony would result in substantial unfairness to the trial which outweighs its probative value and thereby requires its exclusion under Rule 89(D) of the Rules, the question arose after the testimony had already been admitted by the Trial Chamber and only because of the unexpected death of the witness prior to the close of cross-examination. The Appeals Chamber in the Martić Decision did not address whether proposed witness testimony may be excluded prior to its admission under Rule 89(D) of the Rules because of the need to ensure a fair trial. Nor did it consider possible exclusion of proffered witness testimony because it was subject to Rule 70 conditions.

The Appeals Chamber considered the implications of Security Council Resolution 1503 (2003)[1] and Security Council Resolution 1534 (2004)[2] on on-going trials in light of the 31 December 2008 deadline to complete all trials. It held that when assessing these implications, the overriding consideration must be the strict adherence to the “minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute”:

24. The Appeals Chamber notes that the remaining Judges expressed the view that the completion of all trials by 31 December 2008 is “more of a target date”[3] and that there was “nothing to suggest that unfair decisions and actions will be taken with regard to cases that are pending on 31 December 2008.”[4] The Appeals Chamber also notes that resolution 1503 urges the Tribunal to formalise a strategy to enable the Tribunal “to achieve its objective” of completing all trials by the end of 2008[5] and calls on the Tribunal “to take all possible measures” in this regard.[6] The Appeals Chamber is of the view that when assessing the implications of resolution 1503 and resolution 1534 to on-going trials, the overriding consideration must be the strict adherence to the minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute. The Appeals Chamber considers that the remaining Judges properly addressed this overriding consideration and sees no error in their interpretation of their obligations in the context of resolution 1503 and resolution 1534.  The remaining Judges considered that the trial in the Applicants’ case could be completed fairly and expeditiously by 31 December 2008, by using appropriate trial management methods within their discretion and taking reasonable decisions.[7] In the event of the trial not being completed by the end of 2008, the remaining Judges stated that “reasonable decisions will be taken in the interests of justice [and] taking into account the rights of each co-Accused.”[8] The Appeals Chamber finds no error in this approach.

At paras 42-43, the Appeals Chamber held:

42. The Appeals Chamber considers that the continuation of the proceedings with a substitute Judge in a case where witnesses have already been heard does not necessarily infringe on fair trial rights. As the Appeals Chamber previously stated:

[t]here is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[1]

43. The Appeals Chamber also considers that, pursuant to Rule 15bis (D) of the Rules, a substitute Judge may only join the bench “after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” These safeguards ensure that fair trials rights are not compromised. In the present case, the remaining Judges took into consideration that the substitute Judge will need to review the “records of the proceedings, including the transcripts, audio and video-recordings, to observe the demeanour of the witness” in determining that it would be in the interests of justice to continue the proceedings with a substitute Judge.[2]

14. It is well established in the jurisprudence of the Tribunal that Trial Chambers exercise discretion in many different situations, including “when deciding points of practice or procedure”.[1] The Impugned Decision, which ruled on the form of materials to be disclosed by the Prosecution under Rules 66 and 68 of the Rules, was such a discretionary decision to which the Appeals Chamber must accord deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] As previously held by the Appeals Chamber, “[w]here an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision”.[3] Thus, when challenging a discretionary decision, the moving party must establish that the Trial Chamber committed a “discernible” error resulting in prejudice to that party.[4] The Appeals Chamber will only overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[5]

Regarding aiding and betting by tacit approval and encouragement, the Appeals Chamber held:

273. […] An accused can be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.[1] This form of aiding and abetting is not, strictly speaking, criminal responsibility for omission.[2] […] The Trial Chamber in Kayishema and Ruzindana held that “individual responsibility pursuant to Article 6(1) [that is, individual criminal responsibility under 7(1) of the Tribunal’s Statute] is based, in this instance, not on a duty to act, but from the encouragement and support that might be afforded to the principals of the crime from such an omission.”[3] In such cases the combination of a position of authority and physical presence on the crime scene allowed the inference that non-interference by the accused actually amounted to tacit approval and encouragement.[4]

According to the Appeals Chamber’s interpretation of the Trial Judgement, the Trial Chamber had found that to enter a conviction under the JCE doctrine, “in addition to the existence of a common purpose amounting to or involving the commission of a crime provided for in the Statute, an agreement between the accused and the principal perpetrator” has to be proven (para. 417). The Appeals Chamber rejected this additional requirement:

419. […] [T]he Appeals Chamber considers that the Trial Chamber erred in stating that, in order to hold the Accused criminally responsible for the crimes charged in the Indictment pursuant to the first category of JCE, the Prosecution must, inter alia, establish that between the person physically committing a crime and the Accused, there was an understanding or an agreement to commit that particular crime. Moreover, the Trial Chamber erred when it required that, in order to hold the Accused responsible pursuant to the third category of JCE, the Prosecution must prove that the Accused entered into an agreement with a person to commit a specific crime (in this case, the crimes of deportation and/or forcible transfer) and that this same person personally committed another crime, which was a natural and foreseeable consequence of the execution of the crime agreed upon.

The Appeals Chamber affirmed that the application of the JCE doctrine is not limited to relatively small-scale cases, such as involving only one municipality.

425.    […] It is true that in several cases of the Tribunal, the mode of liability of JCE was applied to relatively small-sized cases. However, that depended, and the decisions in question did not state otherwise, on the size of the cases themselves and not on the existence of a legal requirement that JCE apply only to small-scale cases. In view of the foregoing, the Appeals Chamber agrees with the Prosecution that the Trial Chamber erred in concluding that the mode of liability of JCE is not appropriate for cases as large as the one at hand.

The Appeals Chamber agreed with the Trial Chamber that it was clear from ARK Crisis Staff decisions that the reason for the dismissals of non-Serbs was the ethnicity of the individuals concerned, and that Brđanin could not rely on Article 27 of Geneva Convention IV to argue that the dismissals were permissible under international law.

167.    […] In particular, the Appeals Chamber notes that, in the context of persecution, the lawfulness of the measures taken under Article 27 of Geneva Convention IV is appropriately dealt with when considering the general elements of crimes against humanity and when considering whether an act is carried out on discriminatory grounds.

Regarding Brđanin’s argument that rapes for which he was found responsible were “individual domestic crimes”, the Appeals Chamber remarked

256.    […] that the Trial Chamber clearly established the existence of an international armed conflict and furthermore reasonably concluded that the rapes in Teslić, committed as they were during weapons searches, were committed in the context of the armed conflict, and were not “individual domestic crimes” as suggested by Brđanin.[1] Crimes committed by combatants and by members of forces accompanying them while searching for weapons during an armed conflict, and taking advantage of their position, clearly fall into the category of crimes committed “in the context of the armed conflict.”