500. The ICTY Appeals Chamber has explained, on several occasions, that an individual who aids and abets other individuals committing a specific intent offence may be held responsible if he assists the commission of the crime knowing the intent behind the crime.[1] More recently, as the Prosecution argued at the Appeal hearing, in the Krstić case the ICTY Appeals Chamber considered that the same principle applies to the Statute’s prohibition of genocide and that “[t]he conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.”[2] In reaching this conclusion, the Krstić Appeals Chamber derived aiding and abetting as a mode of liability from Article 7(1) of the ICTY Statute, but also considered that aiding and abetting constitutes a form of complicity, suggesting that complicity under Article 2 of the ICTR Statute and Article 4 of the ICTY Statute would also encompass aiding and abetting, based on the same mens rea, while other forms of complicity may require proof of specific intent.

501. The Appeals Chamber endorses this view and finds that a conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of this Tribunal. […]

147. Although the jurisprudence of the Tribunal contains several comments on the use of prior inconsistent statements to impeach witness testimony,[1] it has not commented significantly on the proper uses of prior consistent statements. The Rules of Procedure and Evidence of the Tribunal do not expressly forbid the use of prior consistent statements to bolster credibility. However, the Appeals Chamber is of the view that prior consistent statements cannot be used to bolster a witness’s credibility, except to rebut a charge of recent fabrication of testimony.[2] The fact that a witness testifies in a manner consistent with an earlier statement does not establish that the witness was truthful on either occasion; after all, an unlikely or untrustworthy story is not made more likely or more trustworthy simply by rote repetition.[3] Another reason supporting this position is that, if admissible and taken as probative, parties would invariably adduce numerous such statements in a manner that would be unnecessarily unwieldy to the trial.[4]

148. However, there is a difference between using a prior consistent statement to bolster the indicia of credibility observed at trial and rejecting a Defence challenge to credibility based on alleged inconsistencies between testimony and earlier statements. The former is a legal error, while the latter is simply a conclusion that the Defence’s arguments are not persuasive. […]

466. […] The accused’s participation in the criminal enterprise need not involve commission of a specific crime under one of the provisions (for example murder, extermination, torture, rape, etc.), but may take the form of assistance in, or contribution to, the execution of the common purpose.[1]

468. The Appeals Chamber notes that while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY this is only the second ICTR case in which the Appeals Chamber has been called upon to address this issue.[1] Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute.

22. A previous decision rendered by the Appeals Chamber in the Šainović and Ojdanić case laid down a non-exhaustive list of factors which a Trial Chamber must take into account before granting provisional release.[1] The fact that the accused had provisionally accepted to be interviewed by the Office of the Prosecutor was one of those factors.[2] The Appeals Chamber recalls that an accused person may, if he decides to do so, cooperate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his agreement to be interviewed.[3]

23. The Appeals Chamber finds that the Appellants’ cooperation with the Prosecution may weigh in their favour insofar as it shows their general attitude of cooperation towards the International Tribunal, which is relevant to the determination as to whether they will appear for trial if released.[4]  

30. Rule 65 of the Rules places no obligation upon an accused applying for provisional release to provide guarantees from a State, as a prerequisite to obtaining provisional release.[1] Nonetheless, the presentation of a guarantee from a governmental body has been regarded as advisable by the Appeals Chamber.[2] Rule 65(C) permits a Chamber to impose conditions upon the release of an accused “to ensure the presence of the accused for trial and the protection of others,” and frequently the production of a guarantee from the relevant governmental body is imposed as such a condition.[3]

31. In the Mrkšić case the Appeals Chamber held that the reliability of a government guarantee must be determined in relation to the circumstances which arise in the particular case.[4]  A distinction can be drawn with the instant case where the Appellants have shown a general attitude of cooperation towards the International Tribunal before and after their surrender, and have already provided the Office of the Prosecutor with relevant information.

32. The Appeals Chamber notes that even though the reliability of a guarantee must not be exclusively determined by reference to any assessment of the level of cooperation by the authority providing it, the general level of cooperation by that authority with the International Tribunal does have some relevance in determining whether it would arrest the accused in question.[5]

[…]

33. […] The Appeals Chamber recalls that the circumstances of each accused must be evaluated individually as they weigh upon the likelihood that he will appear for trial. The weight to be attributed to guarantees by a government may depend upon the personal circumstances of the applicant.[6]

4. While the Prosecution relies upon the authority of Šainović and Ojdanić as supporting its procedural right to bring a Rule 115 application, the observation made by the Appeals Chamber in that decision is not a clear statement that Rule 115 applies to interlocutory appeals made pursuant to Rule 65. However, the Appeals Chamber notes that past practice in previous decisions by the Appeals Chamber clearly indicates that Rule 115[1] is to be applied to interlocutory appeals made pursuant to Rule 65[2]. In each of those decisions, the Appeals Chamber proceeded on the basis that additional evidence could be admissible upon an appeal pursuant to Rule 65.[3]

5. A plain reading of the Rule suggests that the mechanism of additional evidence on appeal is only available on an appeal from judgment and is not applicable to interlocutory appeals. Rule 115(A), which specifies the time limits in which to file a Rule 115 application speaks of “the date of the judgment,” [NOTE: THE WORDS “THE DATE OF JUDGEMENT” DO NOT APPEAR IN RULE 115(A) OF THE ICTY RULES, AS AMENDED ON 21 JULY 2005.] and Rule 115(B), which specifies the test to be applied for that additional evidence to be admissible, speaks of the Appeals Chamber considering that evidence in order to arrive at a “final judgment”.

6. Further, Rule 107, which provides that:

The rules of procedure and evidence that govern proceedings in the Trial Chamber shall apply mutatis mutandis to proceedings in the Appeals Chamber.

is of no assistance here as the Prosecution is not seeking to apply a rule that applies to proceedings in a Trial Chamber to an appellate proceeding, but to apply an appellate proceeding applicable to appeals from judgment to an interlocutory appeal.

7. While the Rule does not on its face appear to be applicable to Rule 65 interlocutory appeals, the Appeals Chamber has, as noted above, considered it to be applicable in previous decisions. The Appeals Chamber finds that justification for this practice is to be found in the appellate function in reviewing Trial Chamber decisions for error. Where the Appeals Chamber does find an error in a Trial Chamber decision, and where it is sufficiently apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision rather than sending it back to the Trial Chamber for reconsideration.[4] Where the Appeals Chamber adopts this approach to an error of the Trial Chamber, it is appropriate for the Appeals Chamber to receive evidence that was not available before the Trial Chamber.

11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal.  It is not hard to see why.  Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights,[1] recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.”[2] This is a straightforward proposition:  given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation.  Nor should this right be taken lightly.  The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent,[3] to confront the witnesses against them,[4] to a speedy trial,[5] and even to demand a court-appointed attorney if they cannot afford one themselves.[6]  In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation,[7] an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.”[8] Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.

12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable.  In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.”[9]  Recognizing this same basic contingency of the right, England,[10] Scotland,[11] Canada,[12] New Zealand,[13] and Australia[14] have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials.  Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person.[15] And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”[16]

13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case.  It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.  The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds.  It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence”[17] – a right that is found in the very same clause of the ICTY Statute as the right to self-representation.  Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.”  If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right  to self-representation any differently.

9. As the Appeals Chamber has previously noted, a Trial Chamber exercises its discretion in “many different situations – such as when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and (more frequently) in deciding points of practice or procedure.”[1] A Trial Chamber’s assignment of counsel fits squarely within this last category of decisions.  It draws on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and requires a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings. The Appeals Chamber therefore reviews the Trial Chamber’s decision only to the extent of determining whether it properly exercised its discretion in imposing counsel on Milošević.

14. Norms of customary international law are characterized by the two familiar components of state practice and opinio juris.  In concluding that customary international law permitted a conviction for, inter alia, a crime against humanity through participation in a joint criminal enterprise, the Tadić Appeals Judgement held that the recognition of that mode of liability in prosecutions for crimes against humanity and war crimes following World War II constituted evidence of these components.[1]  The ICTY Appeals Chamber has placed similar reliance in other cases on proceedings held following World War II, including the proceedings before the International Military Tribunal and before tribunals operating under Allied Control Council Law No. 10 (“Control Council Law No. 10”), as indicative of principles of customary international law at that time.[2]  For the reasons that follow, the Appeals Chamber concludes that these proceedings, as well as the text and drafting history of the Genocide Convention of 1948, lead to the conclusion that customary international law criminalized intentional participation in a common plan to commit genocide prior to 1992.