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.

49. Rule 15bis(D) of the Rules explicitly prescribes that the “remaining Judges” may decide to continue the proceedings. The Appeals Chamber noted this in the Butare case: “The new Rule 15bis(D) gives judicial power to the two remaining judges, namely, the power to decide whether or not it is in the interests of justice to continue a part-heard case with a substitute judge.”[1] The fact that the remaining Judges have ad litem rather than permanent status does not change anything under Rule 15bis(D). Article 12quater of the Statute unequivocally provides that ad litem Judges enjoy the same powers as the permanent Judges of the Tribunal, except in expressly delimited circumstances which do not include the power to decide to continue the proceedings under Rule 15bis(D).[2] Accordingly, on 21 June 2004, the Appeals Chamber directed the remaining Judges in the case to re-consider their decision to continue the proceedings with a substitute Judge after giving the parties an opportunity to be heard and taking account of their submissions.[3]

50. The Appeals Chamber finds that the remaining Judges were competent to render the Impugned Decision. […]

58. In the view of the Appeals Chamber, the remaining Judges erred in considering that the substitute Judge should evaluate the “compatibility” of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings.[1] This observation is incorrect because, under the Rules, the substitute Judge is not called upon to evaluate whether, in the circumstances, the lack of video-recordings is incompatible with the requirements of a fair trial. Rather, the substitute Judge is to “familiarise” himself or herself with “the record” of the proceedings, whatever that record may contain.[2] In any event, this is done after the remaining Judges decide to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial. Moreover, even if the substitute Judge would decide that fair trial demands that he or she observe the protected witnesses during their testimony, the substitute Judge alone could not ensure their recall.[3]

14.     In accordance with the criteria set out in Rule 65(I) of the Rules for granting provisional release, the Appeals Chamber will first determine whether it is satisfied that, if released, the Appellant will surrender into detention at the conclusion of the fixed period. With regard to the applicable standard of proof, the Appeals Chamber recalls that Rule 65 of the Rules provides for provisional release for an accused as well as for a convicted person. The specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release.” As to the burden of proof that an applicant must meet in order to satisfy the Appeals Chamber, there is no explicit or implicit provision in the Rules suggesting that a higher standard of proof should be applied on appeal. The Appeals Chamber deems that the inclusion of a provision on provisional release in the Rules was driven by humane and compassionate considerations together with concerns related to the principle of proportionality in international law. These concerns remain even if the applicant has been convicted at trial. The Appeals Chamber considers that the fact that the person has already been sentenced is a matter to take into account when balancing the probabilities. 

15.     The Appeals Chamber considers that the seriousness of the offences of which an appellant has been found guilty is one of the factors it has to take into account when assessing whether an appellant, if released, would return to detention. It is evident that the more severe the sentence is, the greater is the incentive to flee. The Appeals Chamber recalls, however, that this cannot be the sole factor that determines the outcome of an application for provisional release.

2. The Prosecution seeks leave to appeal the Impugned Decision pursuant to Rules 65(D) and 65 (F) of the Rules of Procedure and Evidence (“Rules”). For leave to appeal to be granted by the Appeals Chamber the Prosecution is required to demonstrate good cause. [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] For the purposes of Rule 65, the jurisprudence of the Tribunal establishes that good cause will be shown if the applicant satisfies the Appeal Chamber that the Trial Chamber may have erred in the Impugned Decision.[1] While the Prosecution is required only to show the possibility of error on the part of the Trial Chamber for good cause to be established, the prior jurisprudence of the Tribunal shows that the Appeals Chamber will only grant leave where that possibility of error is clearly established.[2]

24. As indicated above, Rule 65(E) establishes the procedure by which the Prosecution should indicate its intention to seek a stay of a decision of a Trial Chamber granting an accused’s provisional release application. However, while the Appeals Chamber is of the view that Rule 127 should not be relied upon by the Prosecution as a means of circumventing the correct procedure set out in the Rules, the Appeals Chamber is also not persuaded that the Trial Chamber erred in applying that Rule to receive the Prosecution’s application for a stay as validly filed. The sole purpose of Rule 127(A)(ii) is to allow for exception to a strict application of the Rules where “good cause” exists for allowing that exception.

25. In the Impugned Decision, the Trial Chamber did not provide clear reasons for its finding that “good cause” existed for the application of Rule 127(A)(ii) to the requirements of Rule 65(E), but it was clearly within the Trial Chamber’s discretion to do so. In its stay application, the Prosecution made clear its intention to appeal the Impugned Decision. The “good cause”, as recently recognised by the Appeals Chamber in Prlić when it granted the Prosecution’s application for a stay of provisional release orders of a Trial Chamber, is the preservation of the object of the Prosecution’s appeal against the provisional release of the accused.[1] Preservation of the object of the appeal was the “concrete motivation” of the Judges of the Trial Chamber in granting the Prosecution’s stay application.

26. The Trial Chamber issued the Impugned Decision without giving the defence an opportunity to respond to the Prosecution’s application. The Appeals Chamber is sympathetic to the arguments of Stanišić that he was denied an opportunity to be heard by the Trial Chamber. It is not persuaded, however, that this denial caused such prejudice to him as to warrant overturning the Impugned Decision. The Appeals Chamber is not persuaded by any of the arguments he has presented on this appeal that the Trial Chamber erred in issuing the Impugned Decision.

27. The Appeals Chamber is also not convinced that the Trial Chamber erred in granting the Prosecution’s application for a stay based upon a repetition of arguments presented by the Prosecution in opposition to Stanišić’s application for provisional release. The argument of the Prosecution in its application for a stay was that the Trial Chamber erred in its consideration of the Prosecution’s arguments when granting provisional release to Stanišić and that the Prosecution intended to seek leave to appeal those alleged errors to the Appeals Chamber. The Appeals Chamber is satisfied that the intention to seek leave to appeal constitutes sufficient grounds for the Trial Chamber’s grant of the stay application.

28. The Appeals Chamber does not accept the argument of Stanišić that he had a legitimate expectation that the Prosecution would not request a stay due to its failure to indicate its intention to do so in its original response to the applications for provisional release. The Prosecution’s opposition to his provisional release was made clear to him by its response to his application, and he could have expected the Prosecution to seek, by any means necessary, to prevent his provisional release once the Trial Chamber had determined that his application should be granted.

8. The arguments made by Petković relate to the issue of whether the duty judge exceeded the jurisdiction conferred upon her under the Rules. While the Appeals Chamber agrees with the submission of the Prosecution that the arguments of Petković are moot, the Appeals Chamber nevertheless concludes that the duty judge did not exceed her authority in remitting the motion to the Trial Chamber and ordering that the accused remain in custody pending the resolution of the Prosecution’s stay application by the Trial Chamber. Rule 28 of the Rules confers upon the duty judge the power to deal with applications in place of a Trial Chamber when that Trial Chamber is unavailable — such as when it is unable to convene in periods of court recess - provided that the duty judge is “satisfied as to its urgency or that it is otherwise appropriate to do so in the absence of the Trial Chamber”.[1] Accordingly, the duty judge had the authority to grant the Prosecution’s application for a stay pending the resolution of the Prosecution’s motion for leave to appeal the Trial Chamber’s orders if she was satisfied as to its urgency or appropriateness. The action taken by the duty judge to remand the accused into custody pending the resolution of the motion she remitted to the Trial Chamber is clearly within the authority conferred upon a duty judge by Rule 28. Petković’s application is therefore dismissed.

12. The Appeals Chamber agrees that the issue on this appeal is one of statutory interpretation. As was stated by the Appeals Chamber in the Tadić Appeals Decision, the Statute of the Tribunal should be interpreted in light of its object and purpose.[1] Article 1 of the Tribunal’s Statute defines the territorial and temporal jurisdiction of the Tribunal conferring “the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. The object of the Security Council’s establishment of the Tribunal, as stated in Security Council Resolution 808 (1993), is to bring to an end the reported widespread violations of international humanitarian law, bring to justice the persons responsible for those violations, and contribute to the restoration and maintenance of peace in the territory of the former Yugoslavia. In drafting Article 5 of the Tribunal’s Statute and imposing the additional jurisdictional requirement that crimes against humanity be committed in armed conflict, the Security Council intended to limit the jurisdiction of the Tribunal to those crimes which had some connection to armed conflict in the former Yugoslavia. At the meeting of the Security Council at which the Tribunal’s Statute was adopted, those members that addressed the scope of Article 5 of the Statute made clear their view that it encompassed widespread or systematic criminal acts committed against the civilian population on the territory of the former Yugoslavia during an armed conflict. [2]

13. As expressed in the jurisprudence of the Tribunal, the jurisdictional requirement of Article 5 requires the existence of an armed conflict at the time and place relevant to the indictment, but it does not mandate any material nexus between the acts of the accused and the armed conflict.[3] While this interpretation itself offers little guidance on the meaning of “time and place relevant to the indictment”, the Tribunal’s jurisprudence on the application of Article 5 of the Statute points towards a broad interpretation. For example, there is no requirement that an attack directed against a civilian population be related to the armed conflict. As the Appeals Chamber in the Tadić Appeals Decision held: “The two — ‘the attack on the civilian population’ and the ‘armed conflict’ — must be separate notions, although of course under Article 5 of the Statute the attack on ‘any civilian population’ may be part of an ‘armed conflict”.[4] Likewise, the above mentioned Tadić Appeals Chambers interpretation of the application of international humanitarian law, of which Article 5 is a part, supports a broad interpretation of the jurisdictional requirement that a crime against humanity be committed in armed conflict.

14. The Appeals Chamber does not accept that the jurisdictional requirement of Article 5 requires the Prosecution to establish that an armed conflict existed within the State (or region) of the Former Yugoslavia in which the charged Article 5 crime is alleged to have been committed. There can be situations where an armed conflict is ongoing in one state and ethnic civilians of one of the warring sides, resident in another state, become victims of a widespread and systematic attack in response to that armed conflict. All that is required under Article 5 of the Statute is that the prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.

15. For the foregoing reasons the Prosecution’s Appeal is allowed and the Trial Chamber’s Impugned Decision is reversed.