At para. 45, the Appeals Chamber found that the contribution to historical record “intrinsically falls within the value given to a guilty plea”:

45. With regard to the Appellant’s claim that the Trial Chamber failed to consider that he contributed to a “historical record”,[1] the Appeals Chamber notes that this factor, although not expressly mentioned by the Trial Chamber, intrinsically falls within the value given to a guilty plea. Indeed, such a contribution to help establish the truth is one of several reasons which have been given in the jurisprudence of the International Tribunal and the ICTR for the mitigating effect of a guilty plea.[2] As such, this factor is part of the substantial weight the Trial Chamber has attached to the Appellant’s guilty plea.[3]

In light of the confidential nature of the use made of the information provided by the Appellant, the Appeals Chamber considered that, “where the Trial Chamber must evaluate an accused’s cooperation based on information solely in the possession of the Prosecution”, it must be established “whether the Trial Chamber has sufficiently assessed the evidence provided on an ex parte basis in order to protect the rights of the accused, where the accused himself does not have the opportunity to do so”. See para. 56.

The Appeals Chamber then detailed the practice to be followed by the Prosecution and the Trial Chambers in such cases:

57. […] the better practice is to first check whether the documents in question could be disclosed inter partes in order to allow the accused to himself comment on the Prosecution’s submissions.[1] This may in certain instances necessitate an application to another Chamber for a variation in protective measures. Where it is not possible for such documents to be submitted inter partes, it is within a Trial Chamber’s discretion to rely on the Prosecution’s ex parte assessment of the accused’s cooperation, as the Trial Chamber did in the instant case. In this event, the Appeals Chamber emphasises that the Prosecution must provide sufficient explanations in its assessment as to why it considers the information given by an accused valuable or not. The Trial Chamber should then evaluate the nature and extent of the accused’s cooperation and set out a reasoned opinion in writing.[2] Under the circumstances, such reasoned opinion is the Appellant’s only guide as to whether his right to a fair trial has been preserved.

61. […] The Appeals Chamber refers in this context to the approach taken in the Dragan Nikolić case, where the Trial Chamber requested the Prosecution at the Sentencing Hearing to provide documents that “would enable [it] to review them in camera in order to assess if the Accused’s co-operation with the Prosecution could be regarded as being substantial”. The Trial Chamber then gave a substantive account of its analysis of the provided documents, before concluding that it could not itself assess them and therefore accepting the Prosecution’s assessment that the Accused’s co-operation was substantial.

62. The Appeals Chamber is convinced that, in order to provide a transparent assessment of the Appellant’s cooperation, a similar approach would have been appropriate in the present case, in particular in light of the reassurances given to the Appellant at the Sentencing Hearing.

At para. 85, the Appeals Chamber considered the potential impact of mitigating circumstances on the sentence:

85. With regard to the proper method for calculating the impact on a sentence of mitigating circumstances, the Appeals Chamber considers that any modification of sentence needs to be assessed in light of all the circumstances of the case and cannot be limited to a simple mathematical diminution of the sentence otherwise to be imposed. As noted above, the Trial Chamber correctly weighed all circumstances of the case before imposing its final sentence. The Appeals Chamber will only amend a sentence when the sentence was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly”.[1] As the ICTR Appeals Chamber has held, it can only use its prerogative to substitute a new sentence “when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal”.[2]

30. As the Trial Chamber correctly recognized, the actus reus of contempt under Rule 77(A)(ii) is the disclosure of information relating to proceedings before the International Tribunal where such disclosure would be in violation of an order of a Chamber.[1] […] Moreover, an order remains in force until a Chamber decides otherwise.[2] The fact that some portions of the Witness’s written statement or closed session testimony may have been disclosed by another third party does not mean that this information was no longer protected, that the court order had been de facto lifted or that its violation would not interfere with the Tribunal’s administration of justice. […]

13. […] The Appeals Chamber recalls that pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in the notice of appeal. Such motions should be submitted “as soon as possible after identifying the new alleged error”[1] of the Trial Chamber or after discovering any other basis for seeking a variation to the notice of appeal. Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the ‘good cause’ requirement of Rule 108 is satisfied.”[2]

18. In fairness to the Appellant, the Appeals Chamber has reviewed the Prosecution arguments submitted at the Appeal Hearing that the Appellant claims to be new and “quite important”,[1] and notes that it is true that some of these arguments have not been raised by the Prosecution in its Respondent’s Brief or other previous filings. However, the Appeals Chamber finds that, even if theses new arguments were to be taken into account by the Appeals Chamber (a question that the Appeals Chamber need not address here), the Appellant would not suffer any prejudice by not having been authorized to reply to them in writing. The Appeals Chamber emphasizes that the present decision should not be interpreted as prejudging in any way the admissibility or success of the arguments contained in other briefs and submissions made by the parties in the present case.

15. The Appeals Chamber recalls that parties at an appeal hearing are, as a general rule, invited to “confine their oral arguments to elaborating on points relevant to [their] appeal[s] that they wish to bring to the Appeals Chamber’s attention”.[1] Therefore, unless specifically authorized by the Appeals Chamber, the parties should not raise new arguments that are not contained in their written briefs. The Prosecution, a respondent in the present appeal, was, in addition, supposed to limit its oral arguments to those in response to the Appellant’s submission.

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]

Pp. 5-6: CONSIDERING that “material provided under Rule 70 shall not be released to the Accused in another case unless the provider consents to such disclosure”;[1]

CONSIDERING that “[t]he purpose of Rule 70(B) to (G) is to encourage States, organizations, and individuals to share sensitive information with the Tribunal […] by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected”[2] and that, “[w]hen a person possessing important knowledge is made available […] on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the ‘information’ shielded by Rule 70, but also the substance of the information shared by the person”;[3]

FINDING therefore that neither the material provided under Rule 70 to either the Prosecution or the Defence in a case nor its sources may be released to the accused in another case prior to obtaining consent from the provider of that information and that this holding does not depend upon whether or not that material was used as evidence in a previous case;

Pp. 4: CONSIDERING that a party is always entitled to seek material from any source, including from another case before the International Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown;[1]

CONSIDERING that “the relevance of the material sought by a party may be determined by showing the existence of a nexus between the applicant’s case and the cases from which such material is sought, i.e. if the cases stem from events alleged to have occurred in the same geographic area and at the same time”;[2]

CONSIDERING that “access to confidential material from another case may be granted wherever the Chamber is satisfied that the party seeking access has established that such material may be of material assistance to his case”[3] and that “it is sufficient that access to the material sought is likely to assist the applicant’s case materially, or that there is at least a good chance that it would”;[4]

P. 5: FINDING that the Applicant has sufficiently identified and described by its general nature the inter partes confidential material in the Prosecutor v. Krajišnik trial and appeals proceedings to which he seeks access;

FINDING FURTHER that there is a substantial geographical and temporal overlap between the Prosecutor v. Stanišić and Prosecutor v. Krajišnik cases such that the inter partes confidential material filed in the trial and appeals proceedings in Prosecutor v. Krajišnik is likely to be of material assistance in the preparation of the defence in Prosecutor v. Stanišić, and that therefore, the Applicant has demonstrated a legitimate forensic purpose for access to said confidential material;

P. 7: CONSIDERING that once an Appeals Chamber determines that confidential material filed in another case is likely to materially assist an applicant, the Appeals Chamber shall determine which protective measures shall apply to said material as it is within the Appeals Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and the integrity of confidential information;[5]