40. The Trial Chamber took judicial notice of approximately 2,000 adjudicated facts pursuant to Rule 94(B) of the ICTY Rules. Mladić challenged the taking of judicial notice of adjudicated facts, including adjudicated facts relating to the acts or conduct of his alleged subordinates. The ICTY Appeals Chamber in this case reviewed the Trial Chamber’s approach and found that it was consistent with the applicable jurisprudence. Relying primarily on a decision in the Karemera et al. case, the ICTY Appeals Chamber, on 12 November 2013, held that it is within a trial chamber’s discretion to take judicial notice of “facts relating to the existence of a joint criminal enterprise, the conduct of its members other than an accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible”.

[…]

45. In examining whether there is a clear error of reasoning in the Appeal Decision on Adjudicated Facts, the Appeals Chamber considers Mladić’s argument that the Karemera et al. Decision of 16 June 2006 overlooked the relevance of the Galić Decision of 7 June 2002 when considering whether to take judicial notice of adjudicated facts relating to the acts or conduct of proximate subordinates. The Appeals Chamber observes that the Galić Decision of 7 June 2002 does not preclude admission of written evidence in lieu of oral testimony relating to the acts and conduct of proximate subordinates. Rather, it only precludes the admission of such evidence pertaining to the acts and conduct or mental state of the accused. In that decision, the ICTY Appeals Chamber expressly noted that the ICTY rule on the admission of written statements in lieu of oral testimony did not exclude the admission of such statements going to the acts and conduct of others for which the accused is charged with responsibility. Even with respect to admission of written evidence that is “so pivotal to the prosecution case, and where the person whose acts and conduct […] is so proximate to the accused”, the Galić Decision of 7 June 2002 recognizes that this is a matter within the discretion of the trial chamber, observing that, in such circumstances, the trial chamber “may decide that it would not be fair to the accused” to permit its admission.

46. A review of the Karemera et al. Decision of 16 June 2006 shows that the ICTR Appeals Chamber explicitly considered as applicable in the context of judicial notice of adjudicated facts the ICTY Appeals Chamber’s analysis in the Galić Decision of 7 June 2002. In particular, the Karemera et al. Decision of 16 June 2006 recalled the distinction drawn therein between “‘(a) the acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible, and (b) the acts and conduct of the accused as charged in the indictment which establish his responsibility for the acts and conduct of those others’”, to emphasize that only adjudicated facts going to the latter warrant complete exclusion from judicial notice. With respect to all other adjudicated facts relating to the accused’s criminal responsibility, the ICTR Appeals Chamber adopted a cautious approach by declaring that “it is for the [t]rial [c]hambers, in the careful exercise of their discretion, to assess each particular fact in order to determine whether taking judicial notice of it – and thus shifting the burden of producing evidence rebutting it to the accused – is consistent with the accused’s rights under the circumstances of the case”. Upon review of both decisions, the Appeals Chamber considers that the Karemera et al. Decision of 16 June 2006 evinces a consistent approach with the Galić Decision of 7 June 2002. The Appeals Chamber further considers that Mladić’s position fails to recognize that adjudicated facts within the meaning of Rule 94(B) of the ICTR and ICTY Rules are presumptions and are not equivalent to the untested evidence at issue in the Galić Decision of 7 June 2002, and that this decision is therefore inapposite when considering what restrictions should be placed on a trial chamber when relying on adjudicated facts under Rule 94(B) of the ICTY Rules. In particular, adjudicated facts under Rule 94(B) of the ICTY Rules are rebuttable presumptions that can only be accepted where, inter alia, they have been tested and established in another trial proceeding whereas the reliability and credibility requirements for admission of untested evidence pursuant to Rules 89(C) and 92 bis of the ICTY Rules are far less onerous.

47. […] In view of the above, Mladić fails to demonstrate that the ICTY Appeals Chamber in the Appeal Decision on Adjudicated Facts erred in relying on the Karemera et al. Decision of 16 June 2006 or that it committed any other error.

[…]

134. […] The Appeals Chamber recalls that taking judicial notice of an adjudicated fact serves only to relieve the Prosecution of its initial burden to produce evidence on the point, and the defence may then put the point into question by introducing reliable and credible evidence to the contrary. […]

98. The Appeals Chamber recalls that, pursuant to Rule 97 of the ICTY Rules, all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. This privilege is vital to the defence of an accused or appellant by allowing for open communication between counsel and client that is necessary for effective legal assistance as guaranteed under Article 21(4)(d) of the ICTY Statute.[1]

See also paras. 99-103. Wherein the Appeals Chamber addressed, inter alia, the waiving of lawyer-client privilege when “loud and audible” statements are made by an accused in the courtroom and are overheard by the Prosecution team.

193. […] [T]he Appeals Chamber further recalls that members of a joint criminal enterprise may be held responsible for crimes carried out by principal perpetrators, provided that the crimes can be imputed to at least one member of the joint criminal enterprise and that the latter – when using the principal perpetrators – acted in accordance with the common objective.[1]

 243. […] In any event, the Appeals Chamber recalls that a trial chamber’s determinations are not binding on other trial chambers or on the Appeals Chamber.[1]

252. The Appeals Chamber recalls that a trial chamber may rely on direct or circumstantial evidence in reaching its findings.[1]

283.   The Appeals Chamber recalls that the ICTY Trial Chamber in the Galić case determined, by majority, that the ICTY had subject-matter jurisdiction over the crime of terror under Article 3 of the ICTY Statute.[1] The ICTY Appeals Chamber in the same case confirmed, by majority, the ICTY’s jurisdiction over the crime of terror, clarifying that customary international law imposed individual criminal responsibility for violations of the prohibition of terror against the civilian population at the time of the commission of the crimes for which Galić was convicted.[2] The ICTY Appeals Chamber in the D. Milošević case, by majority, subsequently reaffirmed the ICTY’s jurisdiction over the crime of terror.[3] In light of this jurisprudence, the Appeals Chamber considers that the matter of the ICTY’s jurisdiction over the crime of terror was settled by the ICTY Appeals Chamber and was therefore binding on the Trial Chamber in the present case.[4] As it was not open to the Trial Chamber to depart from the existing jurisprudence in this respect, the Appeals Chamber rejects Mladić’s contention that the Trial Chamber erred in failing to give sufficient weight to his submissions that there exist cogent reasons to do so.

284.   As to whether there exist cogent reasons for the Appeals Chamber to depart from the jurisprudence in this regard, the standards of appellate review require Mladić to demonstrate that the decision to exercise jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[5] […] 

285.  A review of the Galić Appeal Judgement reveals that the judges of the majority applied the same legal principles as Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case in reaching their conclusions, namely that: (i) the ICTY has jurisdiction to prosecute a violation of a rule of international humanitarian law under Article 3 of the ICTY Statute when four conditions are fulfilled, including when “the violation of the rule must entail, under customary international law, the individual criminal responsibility of the person breaching the rule” (“Fourth Condition”);[6] and (ii) the fulfilment of the Fourth Condition may be inferred from, inter alia, state practice indicating an intention to criminalize the violation.[7] 

286. In concluding that the Fourth Condition was fulfilled, the judges of the majority in the Galić case considered, inter alia, that: (i) references to terror as a war crime could be found in national and multinational documents as early as 1919 and 1945;[8] (ii) numerous states, including the former Yugoslavia, had criminalized terrorizing civilians as a method of warfare or in a time of war;[9] and (iii) a court in Croatia had entered a conviction under, inter alia, Article 51 of Additional Protocol I and Article 13 of Additional Protocol II for acts of terror against civilians which occurred between March 1991 and January 1993.[10] Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case, by contrast, expressed doubt as to whether the evidence referred to by the majority in the Galić case was sufficiently extensive and uniform to establish customary international law.[11]

287. In the Appeals Chamber’s view, Judge Schomburg in the Galić case and Judge Liu in the D. Milošević case applied the same legal principles as the majority in the Galić case in determining the sufficiency of the evidence of state practice before them and merely disagreed on the result.[12] Bearing in mind that “two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence, both of which are reasonable”,[13] the Appeals Chamber finds that Mladić fails to demonstrate that the finding by the ICTY Appeals Chamber that the ICTY had jurisdiction over the crime of terror was made on the basis of a wrong legal principle or was wrongly decided. In the absence of cogent reasons to depart from the controlling jurisprudence, the Appeals Chamber finds no error in the Trial Chamber’s determination that the ICTY had jurisdiction over the crime of terror in the present case. 

288.   As to Mladić’s contention that the definition of the crime of terror nonetheless violated the principle of nullum crimen sine lege for lack of specificity and foreseeability,[14] the Appeals Chamber notes that the Trial Chamber set out the elements of the crime in accordance with the ICTY Appeals Chamber’s definition in the Galić Appeal Judgement, as clarified in the D. Milošević Appeal Judgement.[15] In particular, the Trial Chamber stated that the crime of terror requires proof of, inter alia, acts or threats of violence committed with the primary purpose of spreading terror among the civilian population and directed against the civilian population or individual civilians not taking direct part in hostilities causing the victims to suffer grave consequences.[16]

289.   Relying on Judge Shahabuddeen’s separate opinion in the Galić Appeal Judgement stating that “there is neither the required opinio juris nor state practice to support the view that customary international law knows of a comprehensive definition [of terror]”,[17] Mladić argues that the ICTY was not in a position to define the elements of the crime.[18] He further contends that the definition adopted by the ICTY, particularly the requirement that victims suffer “grave consequences” from the acts or threats of violence, did not provide a clear gravity threshold and was improperly determined through a jurisdictional analysis which was developed after the Indictment period.[19]   

290.   The Appeals Chamber recalls that the principle of nullum crimen sine lege requires that a person may only be found guilty of a crime in respect of acts which constituted a violation of a norm which existed at the time of their commission.[20] Moreover, the criminal liability in question must have been sufficiently foreseeable and the law providing for such liability must have been sufficiently accessible at the relevant time.[21] This principle does not, however, prevent a court from interpreting and clarifying the elements of a particular crime, nor does it preclude the progressive development of the law by the court.[22]

291.   The Appeals Chamber notes that Judge Shahabuddeen specified in his separate opinion in the Galić Appeal Judgement that: (i) he agreed with the view that terror as charged is a crime known to customary international law;[23] (ii) the ICTY could recognize that customary international law does know of a core or predominant meaning of “terror” for which there was individual criminal responsibility at the material times;[24] and (iii) he was satisfied that a serious violation of the laws or customs of war within the meaning of Article 3 of the ICTY Statute, namely, by resorting to the core of terror, gives rise to such responsibility, which existed at the time of the alleged acts of the appellant.[25] In the view of the Appeals Chamber, the ICTY Appeals Chamber in the Galić and D. Milošević cases merely clarified the elements of the crime of terror, which existed in customary international law, for the purposes of Article 3 of the ICTY Statute.[26] The Appeals Chamber considers that this is consistent with the principle of nullum crimen sine lege, as recalled above. Consequently, Mladić fails to show any error in the Trial Chamber’s application of the elements of the crime of terror as clarified by the ICTY Appeals Chamber.[27]

292.   As to foreseeability, the Appeals Chamber recalls that the accused must be able to appreciate that his conduct was criminal in the sense generally understood, without reference to any specific provision.[28] Although the ICTY did not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction, it had recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the Indictment was prohibited and punishable.[29]

See also para. 293.

294. […] [I]n the Appeals Chamber’s view, the specification that, for the purposes of Article 3 of the ICTY Statute, the crime of terror also requires that victims suffered “grave consequences”,[30] in no way detracts from the conclusion that Mladić could reasonably have known that the commission of acts or threats of violence the primary purpose of which is to spread terror among the civilian population was prohibited and punishable.[31] […]

313. The Appeals Chamber recalls that the mens rea of the crime of terror consists of the intent to make the civilian population or individual civilians not taking direct part in hostilities the object of acts of violence or threats thereof, and of the specific intent to spread terror among the civilian population.[1] Such intent may be inferred from the circumstances of the acts or threats of violence, such as, inter alia, their nature, manner, timing, and duration.[2] Nothing precludes a reasonable trier of fact from relying on the same set of circumstances to infer that perpetrators willfully made civilians the object of acts or threats of violence, and, at the same time, that such acts or threats of violence were committed with the primary purpose of spreading terror among the civilian population.

[…] 

315. The Appeals Chamber recalls that terror could be defined as “extreme fear”,[3] and that such fear was merely one of several factors from which the Trial Chamber inferred specific intent in this case.[4] […]

393.  [T]he Appeals Chamber recalls that an accused’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as he or she performs acts that in some way contribute to the furtherance of the common purpose.[1] Thus, in the Appeals Chamber’s view, whether Mladić’s orders were legitimate in the military context is not relevant to determining his significant contribution to the common purpose. What matters is that the accused significantly contributed to the commission of the crimes involved in the joint criminal enterprise.[2] Considering the above, Mladić’s assertion that his orders were consistent with legitimate military operations in light of the military context of Srebrenica[3] cannot serve to demonstrate an error in the Trial Chamber’s conclusion that Mladić significantly contributed to achieving the common objective.[4]

See also paras. 395, 429.

[…]

414. The Appeals Chamber recalls that the law does not foresee specific types of conduct which per se cannot be considered a contribution to the common purpose of a joint criminal enterprise.[5] What matters is that the accused performs acts that in some way contribute to the furtherance of the common purpose.[6] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case-by-case basis.[7] Furthermore, the Appeals Chamber recalls that failures to act or acts carried out in furtherance of a joint criminal enterprise need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all.[8]

488.  […] The Appeals Chamber recalls ICTY Appeals Chamber jurisprudence holding that Article 3 of the ICTY Statute is a general and residual clause which refers to a broad category of offences, namely all “violations of the laws or customs of war”, not limited to the list of violations enumerated therein.[1] The ICTY Appeals Chamber has consistently held that Article 3 of the ICTY Statute may cover all violations of international humanitarian law not falling under Articles 2, 4, or 5 of the ICTY Statute, including violations of Common Article 3,[2] which contains a prohibition of hostage-taking.[3] The Appeals Chamber further recalls that the ICTY Appeals Chamber in the Tadić case examined, inter alia, findings of the International Military Tribunal at Nuremberg, domestic prosecutions, military manuals and legislation – including the law of the former Yugoslavia – and Security Council resolutions, and confirmed the formation of opinio juris to the effect that customary international law imposes criminal liability for those who commit serious violations of Common Article 3.[4] Furthermore, the ICTY Appeals Chamber has previously rejected arguments that there are cogent reasons to depart from the Tadić jurisprudence on the questions of whether Common Article 3 is included in the scope of Article 3 of the ICTY Statute[5] and whether breaches of its provisions give rise to individual criminal responsibility.[6] The ICTY Appeals Chamber has stated that the acts enumerated in Common Article 3 were intended to be criminalized within the international legal order as early as 1949.[7]

489.  Furthermore, the ICTY has exercised its jurisdiction under Article 3 of the ICTY Statute to try individuals for violations of Common Article 3,[8] including on the basis of hostage-taking.[9] In this respect, the ICTY Appeals Chamber in the Karadžić case upheld the ICTY Trial Chamber’s determination that the ICTY had jurisdiction over the crime of hostage-taking under Article 3 of the ICTY Statute.[10] The ICTY Appeals Chamber has held that, under Common Article 3, there is an absolute prohibition of taking hostage of any person taking no active part in hostilities as well as detained individuals irrespective of their status prior to detention.[11] It has also rejected the submission that the crime of hostage-taking is limited under customary international law to the taking of civilians hostage.[12] In light of this jurisprudence, the Appeals Chamber considers that the matter of the ICTY’s jurisdiction over the crime of hostage-taking was settled by the ICTY Appeals Chamber.

490.  In attempting to demonstrate that there are cogent reasons to depart from this well established jurisprudence, Mladić submits that during the Indictment period, with the exception of the killing of hostages or the taking of civilians hostage, the taking of “non-civilians” hostage was not prohibited and did not entail individual criminal responsibility under customary international law. Mladić’s argument that the laws and norms applicable to the International Military Tribunal at Nuremberg only apply to the killing of hostages[13] does not undermine the fact that the prohibition of hostage-taking of any person taking no active part in the hostilities was nevertheless well established in customary international law during the period covered by the Indictment and entailed individual criminal responsibility. The Appeals Chamber recalls that Article 4 of the ICTR Statute, which was adopted in 1994, expressly prohibits hostage-taking as a violation of Common Article 3 and Additional Protocol II. The ICTY Appeals Chamber has stated that the ICTR applies existing customary international law and that it was established to prosecute crimes which were already the subject of individual criminal responsibility.[14] Furthermore, an analysis of state practice confirms the formation of opinio juris that customary international law imposes individual criminal responsibility for violations of Common Article 3 and Additional Protocol II during the Indictment period. For example, legislation and military manuals of a number of states prohibited such violations,[15] and Additional Protocol II, which specifically contains the prohibition against hostage-taking of “[a]ll persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted”, was adopted in 1977 by consensus and had been ratified by over 120 states at the time of the events included in the Indictment.[16]

529.   In convicting and sentencing Mladić for crimes under Article 7(1) of the ICTY Statute, the Trial Chamber stated that his superior responsibility was “encapsulated” within his joint criminal enterprise liability.[1] The Appeals Chamber considers that this statement on Mladić’s superior responsibility falls short of a reasoned opinion.[2] The Appeals Chamber recalls that a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused. In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[3] Notwithstanding, the Appeals Chamber considers that Mladić confuses superior responsibility under Article 7(3) of the ICTY Statute with abuse of authority as an aggravating factor in sentencing. These two issues are distinct and the consideration of abuse of an accused’s position of authority as an aggravating factor in sentencing does not require a finding of superior responsibility.[4] The Appeals Chamber therefore dismisses Mladić’s argument that the Trial Chamber should have made findings on the elements of Article 7(3) of the ICTY Statute in order to consider his abuse of authority as an aggravating factor in sentencing.[5]