2. In order for the Application to be granted, the Prosecution is required to demonstrate good cause. The jurisprudence of the Tribunal establishes that “good cause” under Rule 65 will be established where the applicant demonstrates that the Trial Chamber may have erred in the Impugned Decision.[1] [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.] While the Prosecution is only required to show the possibility of error on the part of the Trial Chamber for good cause to be established that possibility of error must be clearly established.[2]

23. The Appeals Chamber rejects the Prosecution’s argument that the appeal was incompetently certified by the Trial Chamber pursuant to Rule 73(B). The challenge made by Simatović and Stanišić is to the Trial Chamber’s grant of a stay in circumstances where the Prosecution failed to comply with the proper procedure of Rule 65(E). The main issue was whether the Trial Chamber erred in using Rule 127 to rectify the oversight of the Prosecution. In this circumstance, the Appeals Chamber does not accept the argument of the Prosecution that Rule 65 provides the only avenue of recourse to Simatović and Stanišić. While Rule 65(G) (iv) does provide an avenue for Simatović and Stanišić to seek release where a Trial Chamber has issued a stay of its decision ordering release, it does not operate to prevent an appeal of a stay decision issued by a Trial Chamber where the circumstances are such that the Trial Chamber determines that certification pursuant to Rule 73(B) is appropriate. [RULE 65(G)(iv) WAS DELETED IN THE AMENDMENTS OF THE RULES OF PROCEDURE AND EVIDENCE OF 21 JULY 2005.]

Trial Chamber III issued an oral decision on 2 September 2004 with written reasons to follow. Pursuant to Rule 73(B) of the Rules, Slobodan Milošević filed a request for certification to appeal the 2 September 2004 decision, which the Trial Chamber granted in an order issued 10 September 2004. Milošević subsequently filed a request with the Appeals Chamber for an extension of time in which to file the appeal against the 2 September 2004 decision, on the basis that the written reasons for the decision were still pending. The Appeals Chamber held, at p. 2:

NOTING that on 10 September 2004, Trial Chamber III issued an “Order on Request for Certification to Appeal the Decision of the Trial Chamber on Court Assigned Counsel,” which certified for appeal the question of whether representation by counsel should be imposed on Slobodan Miloševic (“Appellant”);

BEING SEIZED OF the “Request for Extension of Time to File Appeal Against the Trial Chamber’s Order Concerning the Representation of the Accused Dated 2 September 2004” filed by Appellant on 14 September 2004, in which Appellant requested an extension of the time limit to file a certified appeal under Rule 73(C)(ii);

CONSIDERING that, while Trial Chamber III has already issued an oral order finally resolving the question at issue in Appellant’s certified appeal, the Trial Chamber’s formal written decision has yet to issue;

DEEMING the lack of a reasoned written decision “good cause” for an extension of the time limit under Rule 127 of the Rules of Procedure and Evidence, since the lack of a written decision hampers counsel’s efforts to fully comprehend the reasons for the Trial Chamber’s decision;

HEREBY GRANT Appellant’s motion […] 

15. The Appeals Chamber does not accept the arguments of the accused that the Appeals Chamber was not competent to impose a stay. At the time of rendering its decision on the Prosecution’s application for a stay, the Prosecution’s application for leave to appeal the Trial Chamber’s grant of provisional release to the six accused was pending before the Appeals Chamber pursuant to Rule 65(D). In its decision, the Appeals Chamber clearly articulated that the decision to grant the Prosecution’s application for a stay was to preserve “the objective of the Prosecution’s appeal against the provisional release” of the accused.[1] Although the Appeals Chamber decision did not explicitly identify the Rules upon which it acted, the Rules clearly confer upon the Appeals Chamber the power to act as it did. Rule 107 confers upon the Appeals Chamber the competence to render any order or decision that could be rendered by a Trial Chamber. Read together with Rules 54, 64 and 65, Rule 107 empowers the Appeals Chamber to render a decision on an application for a stay filed before it. This is particularly so where the purpose of that decision is to preserve the objective of an appeal pending before it. The Appeals Chamber also rejects any argument that its power to render ancillary orders with respect to preserving the object of an appeal is restricted.

16. The Appeals Chamber also rejects the argument of the accused that by acting as it did it effectively denied the accused of a right to appeal. There is no basis in the Tribunal’s Statute or Rules for the accused’s contention that he has a right to appeal orders issued by the Appeals Chamber in aid of the exercise of its appellate function.

CONSIDERING that the recess of the Appeals Chamber does not mean that the time-limits prescribed under the Rules and the relevant Practice Directions stop running and that this ground does not constitute good cause within the meaning of Rule 127 of the Rules;

726. Instead of revising the sentence of the Trial Chamber, the Appeals Chamber will substitute its own reasoned sentence for that of a Trial Chamber on the basis of its own findings, a function which the Appeals Chamber considers that it may perform in this case without remitting the case to the Trial Chamber.

45. In Vasiljević, the Appeals Chamber set out the actus reus and mens rea of aiding and abetting. It stated:

(i) The aider and abettor carries out acts specifically directed to assist, encourage or lend moral support to the perpetration of a certain specific crime (murder, extermination, rape, torture, wanton destruction of civilian property, etc.), and this support has a substantial effect upon the perpetration of the crime. […]

(ii) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist [in] the commission of the specific crime of the principal. […][1]

The Appeals Chamber considers that there are no reasons to depart from this definition.

46. In this case, the Trial Chamber, following the standard set out in Furundžija, held that the actus reus of aiding and abetting “consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.”[2] It further stated that the mens rea required is “the knowledge that these acts assist the commission of the offense.”[3] The Appeals Chamber considers that the Trial Chamber was correct in so holding.

47. The Trial Chamber further stated that the actus reus of aiding and abetting may be perpetrated through an omission, “provided this failure to act had a decisive effect on the commission of the crime and that it was coupled with the requisite mens rea.”[4]  It considered:

In this respect, the mere presence at the crime scene of a person with superior authority, such as a military commander, is a probative indication for determining whether that person encouraged or supported the perpetrators of the crime.[5]

The Appeals Chamber leaves open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting. 

48. The Trial Chamber in this case went on to state:

Proof that the conduct of the aider and abettor had a causal effect on the act of the principal perpetrator is not required. Furthermore, participation may occur before, during or after the act is committed and be geographically separated therefrom.[6]

The Appeals Chamber reiterates that one of the requirements of the actus reus of aiding and abetting is that the support of the aider and abettor has a substantial effect upon the perpetration of the crime.  In this regard, it agrees with the Trial Chamber that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required.  It further agrees that the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.

49. In relation to the mens rea of an aider and abettor, the Trial Chamber held that “in addition to knowledge that his acts assist the commission of the crime, the aider and abettor needs to have intended to provide assistance, or as a minimum, accepted that such assistance would be a possible and foreseeable consequence of his conduct.”[7] However, as previously stated in the Vasiljević Appeal Judgement, knowledge on the part of the aider and abettor that his acts assist in the commission of the principal perpetrator’s crime suffices for the mens rea requirement of this mode of participation.[8] In this respect, the Trial Chamber erred.

50. The Trial Chamber agreed with the statement in the Furundžija Trial Judgement that “it is not necessary that the aider and abettor…know the precise crime that was intended and which in the event was committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”[9] The Appeals Chamber concurs with this conclusion.

126. In relation to the mens rea applicable to crimes against humanity, the Appeals Chamber reiterates its case law pursuant to which knowledge on the part of the accused that there is an attack on the civilian population, as well as knowledge that his act is part thereof, is required.[1] The Trial Chamber, in stating that it “suffices that he knowingly took the risk of participating in the implementation of the ideology, policy or plan,” did not correctly articulate the mens rea applicable to crimes against humanity. Moreover, as stated above, there is no legal requirement of a plan or policy, and the Trial Chamber’s statement is misleading in this regard. Furthermore, the Appeals Chamber considers that evidence of knowledge on the part of the accused depends on the facts of a particular case; as a result, the manner in which this legal element may be proved may vary from case to case. Therefore, the Appeals Chamber declines to set out a list of evidentiary elements which, if proved, would establish the requisite knowledge on the part of the accused.

See also para. 127.

109. Before determining the scope of the term “civilian population,” the Appeals Chamber deems it necessary to rectify the Trial Chamber’s statement, contained in paragraph 180 of the Trial Judgement, according to which “[t]argeting civilians or civilian property is an offence when not justified by military necessity.” The Appeals Chamber underscores that there is an absolute prohibition on the targeting of civilians in customary international law.

110. In determining the scope of the term “civilian population,” the Appeals Chamber recalls its obligation to ascertain the state of customary law in force at the time the crimes were committed.[1] In this regard, it notes that the Report of the Secretary General states that the Geneva Conventions “constitute rules of international humanitarian law and provide the core of the customary law applicable in international armed conflicts.”[2] Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law. As a result, they are relevant to the consideration at issue under Article 5 of the Statute, concerning crimes against humanity.

111. Article 50, paragraph 1, of Additional Protocol I states that a civilian is “any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” The Appeals Chamber notes that the imperative “in case of doubt” is limited to the expected conduct of a member of the military. However, when the latter’s criminal responsibility is at issue, the burden of proof as to whether a person is a civilian rests on the Prosecution.

113. Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. However, the Appeals Chamber considers that the presence within a population of members of resistance groups, or former combatants, who have laid down their arms, does not alter its civilian characteristic.[3] The Trial Chamber was correct in this regard.

114. However, the Trial Chamber’s view that the specific situation of the victim at the time the crimes were committed must be taken into account in determining his standing as a civilian may be misleading. The ICRC Commentary is instructive on this point and states:

All members of the armed forces are combatants, and only members of the armed forces are combatants. This should therefore dispense with the concept of quasi-combatants, which has sometimes been used on the basis of activities related more or less directly with the war effort. Similarly, any concept of a part-time status, a semi-civilian, semi-military status, soldier by night and peaceful citizen by day, also disappears. A civilian who is incorporated in an armed organization such as that mentioned in paragraph 1, becomes a member of the military and a combatant throughout the duration of the hostilities (or in any case, until he is permanently demobilized by the responsible command referred to in paragraph 1), whether or not he is in combat, or for the time being armed. If he is wounded, sick or shipwrecked, he is entitled to the protection of the First and Second Conventions (Article 44, paragraph 8), and, if he is captured, he is entitled to the protection of the Third Convention (Article 44, paragraph 1).[4]

As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.

115. The Trial Chamber also stated that the “presence of soldiers within an intentionally targeted civilian population does not alter the civilian nature of that population.” The ICRC Commentary on this point states:

…in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population.[5]

Thus, in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined.

593. The first issue for the Appeals Chamber to determine is whether international law criminalises the use of detainees to dig trenches of a military character per se because it necessarily constitutes cruel treatment. As regards the employment of civilians for such purposes, Article 51 of Geneva Convention IV, governing the treatment of civilians,[1] precludes the ‘Occupying Power’ from compelling ‘protected persons’ to serve in its armed or auxiliary forces.[2] The Occupying Power may in fact compel protected persons to work if they are over eighteen years of age, and subject to certain other conditions.[3] ‘Protected persons’ may not, however, be compelled to undertake any work which would involve them in the obligation to take part in military operations, and in no case shall the requisition of labour lead to a mobilization of workers “in an organisation of a military or semi-military character.”[4]

597. The Appeals Chamber has noted that the use of forced labour is not always unlawful.[5] Nevertheless, the treatment of non-combatant detainees may be considered cruel where, together with the other requisite elements, that treatment causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. The Appeals Chamber notes that Geneva Conventions III and IV require that when non-combatants are used for forced labour, their labour may not be connected with war operations[6] or have a military character or purpose.[7] The Appeals Chamber finds that the use of persons taking no active part in hostilities to prepare military fortifications for use in operations and against the forces with whom those persons identify or sympathise is a serious attack on human dignity and causes serious mental (and depending on the circumstances physical) suffering or injury. Any order to compel protected persons to dig trenches or to prepare other forms of military installations, in particular when such persons are ordered to do so against their own forces in an armed conflict, constitutes cruel treatment. The Appeals Chamber accordingly finds that a reasonable trier of fact could have come to the conclusion that the Appellant has violated the laws or customs of war under Article 3 of the Statute, and common Article 3(1)(a) of the Geneva Conventions, and is guilty under Count 16 for ordering the use of detainees to dig trenches.