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.

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]