See paragraphs 91-92, 99 of the decision.

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20. [T]he RequestingState had no right to be notified or to be heard before the Binding Order was issued to it.

See also paragraphs 18-19.

In paragraph 34, the Appeals Chamber recalled that a binding order to a State for the production of documents must satisfy four criteria.

38. […] The requirement of specificity [i.e. the first criterion] clearly prohibits the use of broad categories, which, of course, in itself is a relative term.  It does not […] prohibit the use of categories as such.

[…]

40. The second criterion states that the requested documents have to be relevant to the trial of the accused.  The Appeals Chamber takes the view that it falls squarely within the discretion of the Trial Chamber to determine whether the documents sought are relevant to the trial.  Furthermore, the State from whom the documents are requested does not have locus standi to challenge their relevance.  […]

41. The third criterion states that a binding order must not be unduly onerous.  This criterion must be read together with the clearly illustrative statement that “a party cannot request hundreds of documents, particularly when it is evident that the identification, location and scrutiny of such documents by the relevant national authorities would be overly taxing and not strictly justified by the exigencies of the trial”.[1]  Contrary to the assertion of the Requesting State, this criterion does not automatically exclude all requests that involve the production of hundreds of documents.  […]  It entails the striking of a balance between the need, on the one hand, for the Tribunal to have the assistance of States in the collection of evidence for the purpose of prosecuting persons responsible for serious violations of international humanitarian law and the need, on the other hand, to ensure that the obligation upon States to assist the Tribunal in the evidence collecting process is not unfairly burdensome.  […] [T]he crucial question is not whether the obligation falling upon States to assist the Tribunal in the evidence collecting process is onerous, but whether it is unduly onerous, taking into account mainly whether the difficulty of producing the evidence is not disproportionate to the extent that process is “strictly justified by the exigencies of the trial”.[2] 

[…]

43. The fourth criterion states that a State shall be given sufficient time for compliance with a binding order.  [I]t does not follow from this requirement that a State is entitled to be heard prior to the issuance of the binding order.  It simply sets out the obvious in the sense that a State must be given a reasonable time-frame in which to comply.  It follows from the statement that “[r]easonable and workable deadlines could be set by the Trial Chamber after consulting the requested State”,[3] and that it falls within the discretion of the Trial Chamber to do so. […]

[On 17 November 1999, Rule 54bis was adopted.]

248. The Appeals Chamber agrees with the Prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population[1] and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned.

249. The Appeals Chamber would also agree with the Prosecution that the words “committed in armed conflict” in Article 5 of the Statute require nothing more than the existence of an armed conflict at the relevant time and place. The Prosecution is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not “a substantive element of the mens rea of crimes against humanity”[2] (i.e., not a legal ingredient of the subjective element of the crime).

250. This distinction is important because, as stated above, if the exclusion of “purely personal” behaviour is understood simply as a re-statement of the two-fold requirement that the acts of the accused form part of a context of mass crimes and that the accused be aware of this fact, then there is nothing objectionable about it; indeed it is a correct statement of the law.  It is only if this phrase is understood as requiring that the motives of the accused (“personal reasons”, in the terminology of the Trial Chamber) not be unrelated to the armed conflict that it is erroneous. Similarly, that phrase is unsound if it is taken to require proof of the accused’s motives, as distinct from the intent to commit the crime and the knowledge of the context into which the crime fits.

251. […] A nexus with the accused’s acts is required, however, only for the attack on “any civilian population”. A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.

See also paragraphs 256–270.

The Appeals Chamber concluded:

271. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.

272. For the above reasons, however, the Appeals Chamber does not consider it necessary to further require, as a substantive element of mens rea, a nexus between the specific acts allegedly committed by the accused and the armed conflict, or to require proof of the accused’s motives. Consequently, in the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.

321. The mandate of the International Tribunal, as set out in Article 1 of the Statute, is to prosecute persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia. To fulfil its mandate, a Trial Chamber has to ascertain the credibility of all the evidence brought before it. A Trial Chamber must also take account of the following provisions of the Statute: Article 20(1), concerning the need to ensure a fair and expeditious trial, Article 21 dealing with the rights of the accused, and Article 22, dealing with the protection of victims and witnesses. Further guidance may be taken from Article 14 of the International Covenant on Civil and Political Rights[1] and Article 6 of the European Convention on Human Rights,[2] which are similar to Article 21 of the Statute.

322. With regard to the present case, once a Defence witness has testified, it is for a Trial Chamber to ascertain the credibility of his or her testimony.  If he or she has made a prior statement, a Trial Chamber must be able to evaluate the testimony in the light of this statement, in its quest for the truth and for the purpose of ensuring a fair trial.  Rather than deriving from the sweeping provisions of Sub-rule 89(B), this power is inherent in the jurisdiction of the International Tribunal, as it is within the jurisdiction of any criminal court, national or international.  In other words, this is one of those powers mentioned by the Appeals Chamber in the Blaškić (Subpoena) decision which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice.[3]

323. It would be erroneous to consider that such disclosure amounts to having the Defence assist the Prosecution in trying the accused.  Nor does such disclosure undermine the essentially adversarial nature of the proceedings before the International Tribunal, including the basic notion that the Prosecution has to prove its case against the accused.  Although this provision was not in force at the time relevant to the present enquiry, it is worth noting that Sub-rule 73ter(B) provides that should a Pre-Defence Conference be held:

[…] the Trial Chamber may order that the defence, before the commencement of its case but after the close of the case for the prosecution, file the following:

[…];

(iii)        a list of witnesses the defence intends to call with:

(a)        the name or pseudonym of each witness;

(b)         a summary of the facts on which each witness will testify;

[…][4]

This Sub-rule does not require that the Defence file its witness statements.  But the substance is not far removed: the provision has been designed to assist a Trial Chamber in preparing for hearing the Defence case, and the Prosecution in preparing for cross-examination of the witnesses.

324. As stated above, once the Defence has called a witness to testify, it is for a Trial Chamber to ascertain his or her credibility.  If there is a witness statement, in the sense referred to above, it would be subject to disclosure only if so requested by the Prosecution and if the Trial Chamber considers it right in the circumstances to order disclosure.  The provisions of Rule 68 are limited to the Prosecution and do not extend to the Defence.  Disclosure would follow only once the Prosecution’s case has been closed.  Even then, Sub-rules 89(C),[5] (D)[6] and (E)[7] would still apply to such a disclosed witness statement, with the consequence that a Trial Chamber might still exclude it.  Furthermore, the provisions of Sub-rule 90(F)[8] relating to self-incrimination would of course apply.

325. The Appeals Chamber is also of opinion that no reliance can be placed on a claim to privilege.  Rule 97[9] relates to lawyer-client privilege; it does not cover prior Defence witness statements.

It concluded:

326. For the reasons set out above, it is the opinion of the Appeals Chamber that a Trial Chamber may order, depending on the circumstances of the case at hand, the disclosure of Defence witness statements after examination-in-chief of the witness. [10]

65. The Appeals Chamber notes that it has been the practice of this Tribunal and of the International Criminal Tribunal for Rwanda (“ICTR”)[1] to accept as evidence the testimony of a single witness on a material fact without need for corroboration. […]  

At paragraphs 91 to 97, the Appeals Chamber examined the conditions under which armed forces fighting against the central authorities of the same State in which they live and operate may be deemed to act on behalf of another State, in other words, the conditions under which those forces may be assimilated to the organs of a State other than that on whose territory they live and operate. It concluded:

96. […] [I]n cases such as that currently under discussion, what is required for criminal responsibility to arise is some measure of control by a Party to the conflict over the perpetrators.[1]

97. It is nevertheless imperative to specify what degree of authority or control must be wielded by a foreign State over armed forces fighting on its behalf in order to render international an armed conflict which is prima facie internal.  Indeed, the legal consequences of the characterisation of the conflict as either internal or international are extremely important.  Should the conflict eventually be classified as international, it would inter alia follow that a foreign State may in certain circumstances be held responsible for violations of international law perpetrated by the armed groups acting on its behalf.  

At paragraph 98 the Appeals Chamber gave the following explanation for the need to supplement international humanitarian law general international law rules concerning the criteria for considering individuals to be acting as de facto state organs:

98. International humanitarian law does not contain any criteria unique to this body of law for establishing when a group of individuals may be regarded as being under the control of a State, that is, as acting as de facto State officials.[2]  Consequently, it is necessary to examine the notion of control by a State over individuals, laid down in general international law, for the purpose of establishing whether those individuals may be regarded as acting as de facto State officials.  This notion can be found in those general international rules on State responsibility which set out the legal criteria for attributing to a State acts performed by individuals not having the formal status of State officials.

In the course of a review of the relevant rules of general international law in paragraphs 99–144, the Appeals Chamber observed:

120. One should distinguish the situation of individuals acting on behalf of a State without specific instructions, from that of individuals making up an organised and hierarchically structured group, such as a military unit or, in case of war or civil strife, armed bands of irregulars or rebels.  Plainly, an organised group differs from an individual in that the former normally has a structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group. Consequently, for the attribution to a State of acts of these groups it is sufficient to require that the group as a whole be under the overall control of the State.

The Appeals Chamber concluded:

137. In sum, the Appeals Chamber holds the view that international rules do not always require the same degree of control over armed groups or private individuals for the purpose of determining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State.  The extent of the requisite State control varies.  Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question; alternatively, it must be established whether the unlawful act had been publicly endorsed or approved ex post facto by the State at issue.  By contrast, control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training).  This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law.  The control required by international law may be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group.  Acts performed by the group or members thereof may be regarded as acts of de facto State organs regardless of any specific instruction by the controlling State concerning the commission of each of those acts.

229. In light of the preceding propositions it is now appropriate to distinguish between acting in pursuance of a common purpose or design to commit a crime, and aiding and abetting. 

(i) The aider and abettor is always an accessory to a crime perpetrated by another person, the principal.

(ii) In the case of aiding and abetting no proof is required of the existence of a common concerted plan, let alone of the pre-existence of such a plan.  No plan or agreement is required: indeed, the principal may not even know about the accomplice’s contribution.

(iii) 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.  By contrast, in the case of acting in pursuance of a common purpose or design, it is sufficient for the participant to perform acts that in some way are directed to the furthering of the common plan or purpose.

(iv) In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.  By contrast, in the case of common purpose or design more is required (i.e., either intent to perpetrate the crime or intent to pursue the common criminal design plus foresight that those crimes outside the criminal common purpose were likely to be committed), as stated above.

228.  By contrast, the mens rea element differs according to the category of common design under consideration.  With regard to the first category, what is required is the intent to perpetrate a certain crime  (this being the shared intent on the part of all co-perpetrators).  With regard to the second category (which, as noted above, is really a variant of the first), personal knowledge of the system of ill-treatment is required (whether proved by express testimony or a matter of reasonable inference from the accused’s position of authority), as well as the intent to further this common concerted system of ill-treatment.  With regard to the third category, what is required is the intention to participate in and further the criminal activity or the criminal purpose of a group and to contribute to the joint criminal enterprise or in any event to the commission of a crime by the group.  In addition, responsibility for a crime other than the one agreed upon in the common plan arises only if, under the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or other members of the group and (ii) the accused willingly took that risk.

43. Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious […]”. This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments:  the International Covenant on Civil and Political Rights (1966) (“ICCPR”),[1] the European Convention on Human Rights (1950),[2] and the American Convention on Human Rights (1969).[3]  The right to a fair trial is central to the rule of law: it upholds the due process of law.  The Defence submits that due process includes not only formal or procedural due process but also substantive due process.[4]

44. The parties do not dispute that the right to a fair trial guaranteed by the Statute covers the principle of equality of arms.  This interpretation accords with findings of the Human Rights Committee (“HRC”) under the ICCPR.  The HRC stated in Morael v. France[5] that a fair hearing under Article 14(1) of the ICCPR must at a minimum include, inter alia, equality of arms.  Similarly, in Robinson v. Jamaica[6] and Wolf v. Panama[7] the HRC found that there was inequality of arms in violation of the right  to a fair trial under Article 14(1) of the ICCPR.  Likewise, the case law under the ECHR cited by the Defence accepts that the principle is implicit in the fundamental right of the accused to a fair trial.  The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.  The Appeals Chamber finds that there is no reason to distinguish the notion of fair trial under Article 20(1) of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments. Consequently, the Chamber holds that the principle of equality of arms falls within the fair trial guarantee under the Statute.

46. The Defence contends that the minimum guarantee in Article 21(4)(b) of the Statute to adequate time and facilities for the preparation of defence at trial forms part of the principle of equality of arms, implicit in Article 20(1).  It argues that, since the authorities in the Republika Srpska failed to cooperate with the Defence, the Appellant did not have adequate facilities for the preparation of his defence, thereby prejudicing his enjoyment of equality of arms.

47. The Appeals Chamber accepts the argument of the Defence that, on this point, the relationship between Article 20(1) and Article 21(4)(b) is of the general to the particular.  It also agrees that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for his defence.  

In order to decide on the scope of application of the principle of equality of arms, the Appeals Chamber  carried out a review of the international case-law in paragraphs 48–50. It then continued as follows:-

51. The case law mentioned so far relates to civil or criminal proceedings before domestic courts.  These courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial.  It is a different matter for the International Tribunal.  The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures.[8] The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.  Moreover, without a police force, indictees can only be arrested or transferred to the International Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by the Prosecution or the appropriate international bodies.  Lacking independent means of enforcement, the ultimate recourse available to the International Tribunal in the event of failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute, is to report the non-compliance to the Security Council.[9]

52. In light of the above considerations, the Appeals Chamber is of the view that under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.  Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.  This includes the power to:

(1) adopt witness protection measures, ranging from partial to full protection;

(2) take evidence by video-link or by way of deposition;

(3) summon witnesses and order their attendance;

(4) issue binding orders to States for, inter alia, the taking and production of evidence; and

(5) issue binding orders to States to assist a party or to summon a witness and order his or her attendance under the Rules.

A further important measure available in such circumstances is:

(6) for the President of the Tribunal to send, at the instance of the Trial Chamber, a request to the State authorities in question for their assistance in securing the attendance of a witness.

In addition, whenever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu:

(7) order that proceedings be adjourned or, if the circumstances so require, that they be stayed. 

55. The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses central to the defence case do not appear due to the obstructionist efforts of a State.  In such circumstances, the defence, after exhausting all the other measures mentioned above, has the option of submitting a motion for a stay of proceedings. The Defence opined during the oral hearing that the reason why such action was not taken in the present case may have been due to trial counsel’s concern regarding the long period of detention on remand.  The Appeals Chamber notes that the Rules envision some relief in such a situation, in the form of provisional release, which, pursuant to Sub-rule 65(B),[1] may be granted “in exceptional circumstances”.  It is not hard to imagine that a stay of proceedings occasioned by the frustration of a fair trial under prevailing trial conditions would amount to exceptional circumstances under this rule. The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith so that the latter can determine whether any assistance could be provided under the Rules or Statute to relieve the situation.  The party cannot remain silent on the matter only to return on appeal to seek a trial de novo, as the Defence seeks to do in this case.