The standard for appellate review as set out in the Judgement was based on the standard set out in the Stakić Appeal Judgement, with a slight amendment, in para. 9, pertaining to the reasonableness standard, which has been made clearer (emphasis added in bold):

9. When considering alleged errors of fact on appeal from the Defence, the Appeals Chamber will determine whether no reasonable trier of fact could have reached the verdict of guilt beyond reasonable doubt.[1] The Appeals Chamber applies the same reasonableness standard to alleged errors of fact regardless of whether the finding of fact was based on direct or circumstantial evidence.[2] In determining whether or not a Trial Chamber’s finding was one that no reasonable trier of fact could have reached, the Appeals Chamber “will not lightly disturb findings of fact by a Trial Chamber”.[3] The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in Kupreškić, which stated:

Pursuant to the jurisprudence of the Tribunal, the task of hearing, assessing and weighing the evidence presented at trial is left primarily to the Trial Chamber. Thus, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. Only where the evidence relied on by the Trial Chamber could not have been accepted by any reasonable tribunal of fact or where the evaluation of the evidence is “wholly erroneous” may the Appeals Chamber substitute its own finding for that of the Trial Chamber.[4]

At paras 17-20, the Appeals Chamber addressed the issue whether a Trial Chamber can decide when an accused can testify in his own trial. It concluded:

20. […] Trial Chambers have discretion pursuant to Rule 90(F) of the Rules to determine when an accused may testify in his own defence, but this power must nevertheless be exercised with caution, as it is, in principle, for both parties to structure their cases themselves, and to ensure that the rights of the accused are respected, in particular his or her right to a fair trial.

In the Stakić Appeal Judgement the Appeals Chamber found that the participation of an NGO in facilitating displacements does not in and of itself render an otherwise unlawful transfer lawful. Pursuant to this approach, the Appeals Chamber in the Simić case found that the presence of representatives from the UNPROFOR and the ICRC during some of the exchanges that took place did not render the displacements at issue lawful, nor did it lead to the conclusion that the forcible displacements were of insufficient gravity to rise to the level of persecution. See paragraph 180. 

If an appellant raises the vagueness of an indictment as a ground of appeal and it turns out that he never raised this issue at trial, then he has the burden of proving at the appellate stage that his ability to prepare his defence was materially impaired as a result of the defect in the indictment. If however he did raise this issue at trial, then the Prosecution has the burden of proving that the appellant’s defence was not materially impaired. See paragraph 25.

25. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter.[1] In general, a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party. Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver.[2] However, the importance of the right of an accused to be informed of the charges against him and the possibility that he will incur serious prejudice if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal.[3] Where, in such circumstances, an appellant raises a defect in the indictment for the first time on appeal, he bears the burden of proving that his ability to prepare his defence was materially impaired.[4] On the other hand, when an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare a defence was not materially impaired.[5] 

10. It has been repeatedly emphasized that the right to legal assistance financed by the Tribunal does not confer the right to counsel of one’s choosing.[1] When deciding on the assignment of counsel, some weight is accorded to the accused’s preference, but such preference may be overridden if it is in the interests of justice to do so.[2] The Appeals Chamber further recalls that an indigent accused does not have a right to a co-counsel, but, where appropriate and at the request of the lead counsel, the Registrar may appoint a co-counsel to assist the assigned lead counsel.[3] Accordingly, where co-counsel has been appointed and subsequently withdrawn, there is no guarantee that the co-counsel will be replaced.[4] Finally, the Appellant’s personal preferences are irrelevant to assignment or withdrawal of co-counsel.[5]

15. Moreover, the Appeals Chamber is satisfied that the Registrar and the President properly took into account other particular circumstances of the case, such as the potential delay in the proceedings as well as the proper use of the Tribunal’s resources.[1] Indeed, in the circumstances where no misconduct or manifest professional negligence on the part of the counsel is established, factors such as the efficient management of resources are directly relevant to the decision not to permit withdrawal of counsel.[2] […]

7.      The combined effect of Article 26 of the Statute and Rules 119 and 120 of the Rules is such that for a moving party to succeed in persuading a Chamber to review its judgement, the party must first satisfy the following cumulative requirements:[1]

a)      there is a new fact;

b)      the new fact was not known to the moving party at the time of the original proceedings;

c)      the failure to discover the new fact was not due to a lack of due diligence on the part of the moving party; and

d)      the new fact could have been a decisive factor in reaching the original decision.

8.      In “wholly exceptional circumstances”, review may still be permitted even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] In such a case, where a Chamber “is presented with a new fact that is of such strength that it would affect the verdict […],” it may determine that review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice.[3]  

At paras 11-14, the Appeals Chamber recalls that such exceptional circumstances, assessed case by case, might be constituted by a breakdown of trust, but not by an accused’s refusal to cooperate and, in the present case, by the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy.  

11. Under Article 19(A)(ii) of the Directive the Registrar may, in exceptional circumstances and at the request of lead counsel, withdraw the assignment of co-counsel.[1] The burden of proof of existence of such circumstances squarely lies on lead counsel.[2] The Appeals Chamber emphasizes that each case must be considered on its own and that what constitutes exceptional circumstances justifying a request for withdrawal may vary from one case to another. In addition, exceptional circumstances justifying withdrawal of a co-counsel might be substantially different from those applicable to withdrawal of a lead counsel.

12. The Appeals Chamber considers that the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy does not constitute an exceptional circumstance justifying a withdrawal of Co-Counsel. The Appeals Chamber notes that, in most decisions holding that a breakdown of trust between the accused and his legal representatives constituted an exceptional circumstance justifying the withdrawal of assignment, the breach of trust was attributable to one or more of the following circumstances: alleged incompetence or lack of knowledge of the Rwandan context and history; a lack of initiative in the defence of the accused; an exceptional workload incompatible with other professional commitments; a breach of professional responsibilities, including the obligation to communicate with the client; and misconduct or manifest negligence.[3] No allegations of this kind were made against Co-Counsel in the present case. Therefore, the Appeals Chamber is not convinced that the Registrar’s Decision and the President’s Decision contradict the Tribunal’s jurisprudence.

13. The Appeals Chamber recalls that, according to the jurisprudence of both the Tribunal and the ICTY, an accused’s refusal to cooperate with his lawyers does not constitute an exceptional circumstance warranting the Registrar’s withdrawal of assigned counsel.[4] More precisely, an accused does not have the right to unilaterally destroy the trust between himself and his counsel, or to claim a breakdown in communication through unilateral actions, in the hope that such actions will result in the withdrawal of his counsel by the Registrar.[5] A lack of trust in counsel based on disagreements in approach to one’s defence strategy is distinguishable from a lack of trust due to a breach by counsel in fulfilling his professional and ethical responsibilities in the course of representation.[6] Thus, a divergence of opinion as to the defence strategy cannot in itself justify that there is a loss of trust in the counsel’s abilities or commitment to the case. It is even more so when the divergence is between an appellant and a co-counsel, whose mandate is to assist the lead counsel.[7]

14. In the present case, Lead Counsel did not provide the Registrar with any specific complaints regarding the performance of Co-Counsel that may have warranted her disqualification on the grounds of ineffective assistance or breach of professional duties. The Appeals Chamber rejects the Appellant’s argument that it is sufficient “to state in broad terms” that the trust and confidence have broken down[8] and, consequently, finds that it was open to the Registrar and the President to conclude that the Appellant’s request for withdrawal was not justified.[9]

22.     The Appeals Chamber recalls that “[t]he jurisprudence of the Tribunal with respect to proceedings under Article 26 of the Statute and Rule 119 is clear”: “review is only available with respect to final judgement.”[1] A “final judgement” in the sense of those provisions under the Statute and Rules is a decision “which terminates the proceedings; only such a decision may be subject to review.”[2] […]

23. The Appeals Chamber considers that the above cited jurisprudence establishes that the scope of review proceedings before the International Tribunal does not extend to decisions reached during the ongoing proceedings in a case prior to the rendering of the final judgement or final decision. Indeed, in the Barayagwiza Review Decision, the Appeals Chamber explicitly held that interlocutory decisions are not subject to review after the rendering of the final judgement or final decision.[3] Review proceedings are, by their very nature, extraordinary and exceptional because they allow for the re-opening of a closed case and thus, are limited to the final judgement or decision in a case, especially in light of the fact that there is no time-limit for an accused seeking review. If decisions reached prior to the final judgement or final decision were also subject to review, the outcome of a case would always be in question and the parties would never reach resolution. […]

At paras 9-11, the Appeals Chamber recalled the law applicable to review proceedings:

9. Review proceedings are governed by the following provisions of the Statute and Rules:

Article 26 of the Statute provides that:

Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.

Rule 119 deals with the request for review and stipulates that:

Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.

Rule 120 provides for a preliminary examination and states that:

If a majority of Judges of the Chamber constituted pursuant to Rule 119 agrees that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties.

10. The combined effect of these provisions of the Statute and the Rules is that in order for a Chamber to proceed to the review of its decision, the moving party must demonstrate that:

there is a new fact;

the new fact was not known to the moving party at the time of the proceedings before the Trial Chamber or the Appeals Chamber;

the lack of discovery of the new fact was not due to a lack of diligence on the part of the moving party; and

the new fact, if proved, could have been a decisive factor in reaching the original decision.[1]

11. In "wholly exceptional circumstances", where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice, the Chambers may review their decision even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] As stated in the Tadić Review:

the Appeals Chamber, whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met.[3]