28. However, with respect to the availability of the proffered evidence at trial, the Appeals Chamber agrees with the Prosecution that the Appellant failed to exercise the due diligence required for the evidence to be admissible on appeal. The Appeals Chamber recalls that “the mere fact that [a witness] gave evidence in another case and that the Appellant was not aware that [the witness was] in possession of this information until then does not in itself suffice to demonstrate unavailability of the evidence at trial.” The Appellant must demonstrate that the “proffered evidence was not available to him at trial in any form” and that he had made use of all mechanisms of protection and compulsion available under the Statute and the Rules to bring the evidence before the Trial Chamber. In the present case, the Appellant has not shown why he could not call [Witness ABC1] [REDACTED] as a Defence witness at trial in order to refute the evidence provided by Witness EB stating that, on the morning of 7 April 1994, he saw the Appellant go into the compound of Samvura’s house together with many Interahamwe. Therefore, the Appeals Chamber is not satisfied that this evidence was unavailable at trial.

At para. 16, the Appeals Chamber sets clearly the criteria of determination of the documents which are material to the preparation of the defence:

16. In addition, while the parties do not refer to Rule 66(B) of the Rules, the Appeals Chamber notes that the Appellant’s request appears to fall under this provision since he is seeking access to documents that would be material to the preparation of his defence with respect to the cross-examination of Witness EB at the evidentiary hearing or might be intended for use by the Prosecution as evidence on that occasion. It has already been clarified that Rule 66(B) applies to appellate proceedings and that, consequently, the Prosecution, on request of the Defence, “has to permit the inspection of any material which is capable of being admitted on appeal or which may lead to the discovery of material which is capable of being admitted on appeal”.[1] In this respect, the Appeals Chamber recalls that “purely inculpatory material is not necessarily immaterial for the preparation of the Defence” and that the Prosecution should instead consider “(a) whether the issues to which the material relates are subject of a ground of appeal” or “(b) whether the material could reasonably lead to further investigation by the Defence and the discovery of additional evidence admissible under Rule 115 of the Rules”.[2] Therefore, the Appeals Chamber proprio motu directs the Prosecution to apply the above-mentioned criteria in order to determine whether it is in possession of any documents that are material to the preparation of the Defence, with the exception of Rule 70 material as discussed above, and then return, if necessary, to the Appeals Chamber for permission to withhold any information provided by these sources under Rule 66(C) of the Rules.

11. […] Finally, if an accused wishes to show that the Prosecution is in breach of these obligations, he/she must identify the material sought, present a prima facie showing as to its probable exculpatory nature, and prove the Prosecution's custody or control thereof.[1] Even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2]

At para. 21, the Appeals Chamber recalled that:

[T]he existence of a plan or policy is not a legal ingredient of the crime of genocide. While the existence of such plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent and does not become the legal ingredient of the offence.[1]

As a result it held that “if the existence of a plan to commit genocide is vital to the Prosecution’s case, this must be proved by evidence.” (para. 21).

At para. 11, the Appeals Chamber recalled its previous finding and held that:

The existence of a non-international armed conflict is a notorious fact not subject to a reasonable dispute.[1]Whether a fact is one of common knowledge is a legal question, the answer to which does not turn on the evidence introduced in a particular case.

The Appeals Chamber first delineated the crime:

69. The crime charged under Count 1 of the Indictment pursuant to Article 3 of the Statute and on the basis of Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II is the crime of acts or threats of violence the primary purpose of which is to spread terror among the civilian population. It encompasses the intent to spread terror when committed by combatants[1] in a period of armed conflict. The findings of the Appeals Chamber with respect to grounds five, sixteen and seven will therefore not envisage any other form of terror.

The Appeals Chamber then determined that the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II clearly belonged to customary international law from at least the time of its inclusion in those treaties (paras 87-90). It added – Judge Schomburg dissenting – that customary international law imposed individual criminal liability for violations of the prohibition of terror against the civilian population as enshrined in Article 51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, from at least the period relevant to the Indictment (paras 91-98).

Finally, the Appeals Chamber identified the elements of this crime (see para. 102 for the actus reus and paras 103-104 for the mens rea).

At para. 132, the Appeals Chamber confirmed that “a direct attack can be inferred from the indiscriminate character of the weapon used” and concluded that, “[i]n principle, the Trial Chamber was entitled to determine on a case-by-case basis that the indiscriminate character of an attack can assist it in determining whether the attack was directed against the civilian population.”

At para. 133, the Appeals Chamber also confirmed the Trial Chamber’s finding that disproportionate attacks “may” give rise to the inference of direct attacks on civilians. The Appeals Chamber found this finding to be “a justified pronouncement on the evidentiary effects of certain findings, not a conflation of different crimes” and noted that “the Trial Chamber endeavoured, in its evaluation of the evidence, to consider questions such as: ‘distance between the victim and the most probable source of fire; distance between the location where the victim was hit and the confrontation line; combat activity going on at the time and the location of the incident, as well as relevant nearby presence of military activities or facilities; appearance of the victim as to age, gender, clothing; the activity the victim could appear to be engaged in; visibility of the victim due to weather, unobstructed line of sight or daylight.’[1]”

Galić was charged under Count 1 under the heading “Actual Infliction of Terror” and was convicted of acts of violence with the intent to spread terror among the civilian population. He argued that the Trial Chamber impermissibly departed from the charges stated in his Indictment (Judgement, para. 70). The Appeals Chamber, after pointing to the differences between the duties of a Judge confirming an indictment and those of the Trial Chamber (para. 71), found that the Trial Chamber was “acting within the confines of its jurisdiction in determining that the elements of this crime do not comprise the actual infliction of terror on that population” (para. 73). However, it made clear that the “[t]he core issue remains […] that the accused has to be properly informed of the nature and cause of the charges against him so that he can adequately prepare his defence[1]” and decided upon Galić’s argument in light of this finding (para. 74).

At paras 81-84, the Appeals Chamber clarified its position in that respect. It concluded:

85. […] while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction, in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom.

The Appeals Chamber clarified several points with regard to the mode of responsibility of ordering pursuant to Article 7(1) of the Statute:

176. The Appeals Chamber recalls that the actus reus of ordering has been defined as a person in a position of authority instructing another person to commit an offence; a formal superior-subordinate relationship between the accused and the actual physical perpetrator not being required.[1] The Appeals Chamber finds that the very notion of “instructing” requires a positive action by the person in a position of authority.[2] The failure to act of a person in a position of authority, who is in a superior-subordinate relationship with the physical perpetrator, may give rise to another mode of responsibility under Article 7(1) of the Statute or superior responsibility under Article 7(3) of the Statute.[3] However, the Appeals Chamber cannot conceive of a situation in which an order would be given by an omission, in the absence of a prior positive act.[4] The Appeals Chamber concludes that the omission of an act cannot equate to the mode of liability of ordering under Article 7(1) of the Statute.[5]

177. In the present case, the Appeals Chamber notes that Galić conflates two separate issues: (1) whether an omission can constitute an act of ordering; and (2) whether an act of ordering can be proven by taking into account omissions. The Trial Chamber here employed the latter approach, which does not constitute a legal error. It did not find Galić guilty for having ordered the crimes by his failure to act or culpable omissions. That is, it did not infer from the evidence the fact that he omitted an act and that this omission constituted an order. Rather, where the Trial Chamber mentions failures to act, it took those failures into account as circumstantial evidence to prove the mode of liability of ordering. The Trial Chamber inferred from the evidence adduced at trial, which included, inter alia, acts and omissions of the accused, that Galić had given the order to commit the crimes.[6]

178. The Appeals Chamber thus concludes that the mode of liability of ordering can be proven, like any other mode of liability, by circumstantial or direct evidence, taking into account evidence of acts or omissions of the accused. The Trial Chamber must be convinced beyond reasonable doubt from the evidence adduced at trial that the accused ordered the crime.[7] Whether or not the Trial Chamber could have inferred from the evidence adduced at trial that Galić had ordered the crimes is a question of fact and will be addressed as part of his eighteenth ground of appeal.