35.     […] [T]he Appeals Chamber turns to the argument that it may order the termination of proceedings and release of an accused after interlocutory review of a denial of an accused’s rights, including during appellate proceedings. The doctrine of “abuse of process” allows a court to decline to exercise jurisdiction either because it will be impossible to give the accused a fair trial or because it offends the court’s sense of justice and propriety to try the accused in the circumstances of a particular case.[1] The question in cases of abuse of process is not whether it is “necessary” for a court to issue an interlocutory decision terminating proceedings (as for Rule 54 of the Rules examined above), but whether a court should continue to exercise jurisdiction over a case in light of serious and egregious violations of the accused’s rights that would prove detrimental to the court’s integrity.[2] The discretionary power of a court to stay or terminate proceedings by reason of abuse of process applies during the trial phase of a case, and is mostly concerned with prosecutorial misconduct, since its main purposes are to prevent wrongful convictions and preserve the integrity of the judicial system.[3] An allegation of partiality of a trial judge is a ground to appeal a conviction on the basis that it is unsafe.[4]

See also para. 22.

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

139. Finally, in support of his contention that the Trial Chamber violated Rule 87(B) of the Rules, Nzuwonemeye points to several paragraphs of the Trial Judgement, in which he claims that the Trial Chamber erred by making joint findings related to him and Sagahutu.[1]

140. The Appeals Chamber recalls that Rule 87(B) of the Rules provides in the pertinent part that “[i]f two or more accused are tried together under Rule 48, separate findings shall be made as to each accused”. Notwithstanding this provision, the Appeals Chamber observes that the Rules anticipate that two or more accused may be tried together on the basis of the same crimes.[2] Indeed, jurisprudence regarding the advantages of joint trials reflects that they may be used to ensure that the same evidence is available and assessed with regard to each accused and thus result in a greater likelihood of consistent evaluation of the evidence, findings, and verdicts on the basis of the same facts.[3] In this context, a trial chamber may make findings of guilt for more than one co-accused on the basis of the same evidence so long as a majority of the trial chamber is satisfied that each accused’s guilt is established beyond reasonable doubt.[4]

141. The Trial Chamber concluded that Nzuwonemeye’s involvement in the killings of the Prime Minister and the Belgian peacekeepers had been proved in light of the evidence before it.[5] It made individualized findings regarding the applicable forms of responsibility and separately identified the counts and crimes for which Nzuwonemeye was convicted.[6] Accordingly, the Appeals Chamber is not convinced that Nzuwonemeye has identified any violation of Rule 87(B) of the Rules.

22. The Appeals Chamber recalls that, at trial, determining the appropriate remedy in light of a violation of Rule 68 of the Rules falls within the broad discretion of the trial chamber.[1] A trial chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

23. In the view of the Appeals Chamber, Ndindiliyimana does not demonstrate that the Trial Chamber abused its discretion in fashioning the remedies for the Prosecution’s disclosure violations. Recalling witnesses[3] and admitting new evidence[4] are appropriate remedies where disclosure violations have resulted in prejudice to an accused.[5] Where an accused’s fair trial rights have been violated, a reduction of the sentence may be an appropriate remedy if the accused was convicted at trial.[6] However, the relief requested by Ndindiliyimana at trial and on appeal – dismissal of the charges against him – is not necessarily appropriate even where prejudice to the accused has been demonstrated.[7]

15. The Panel considers as insubstantial the argument of the Defence that Judge Liu, having disagreed with the majority in the decision to disqualify Judge Harhoff as a Judge in the Šešelj case, is not in a position to adjudicate the Motion to vacate the Trial Judgement without an unacceptable appearance of bias. The Panel, in this context, considers that Judge Liu's position on the bench of a special chamber deciding on the matter of Judge Harhoff's disqualification in the Šešelj case at trial level must be distinguished from his adjudication of the Motion to Vacate the Trial Judgement in the Stanišić and Župljanin case as a member of the Appeals Chamber. In this latter capacity Judge Liu is not, as the Defence argues, dealing with the issue of disqualification of Judge Harhoff as such.[1] Notwithstanding the fact that the basis for the disqualification of Judge Harhoff may be a relevant factor when considering the Motion to Vacate the Trial Judgement, the Panel finds that consideration of this factor does not of itself constitute a circumstance which would lead a reasonable and informed observer to be of the view that Judge Liu might not bring an impartial and unprejudiced mind to the issues to be adjudicated in that motion.

16. The Panel concludes that the Defence has not demonstrated, as required, a reasonable apprehension of bias on the part of Judge Liu from the standpoint of a reasonable observer. It is not convinced by the submissions of the Defence that Judge Liu, having previously dissented on the issue of disqualification of Judge Harhoff, would be unable to impartially decide on the Motion to Vacate the Trial Judgement. In this respect, the Panel concurs with the reasoning set out by the Acting President in his Decision on Motion for Recusal in that a motion to vacate a trial judgement involves issues that need not be addressed in the context of a motion to disqualify a Judge.[2]

533. The Appeals Chamber observes that the Trial Chamber recognised the territorial sovereignty of the FRY and the lack of a de jure border between Montenegro and Kosovo.[1] In reaching its conclusion that a de facto border existed between Montenegro and Kosovo, the Trial Chamber considered: (i) the degree of autonomy enjoyed by Kosovo; (ii) Montenegro’s status as a republic within the FRY; and (iii) the existence of “an armed conflict between forces of the FRY and Serbia on one hand and the KLA on the other”.[2] The Trial Chamber also considered that the displacement of Kosovo Albanians from Kosovo to Montenegro would have the same effect of “serious hardship” as the displacement across a state border, and that the displacement of Kosovo Albanians out of Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[3]

534. However, in finding that a de facto border existed between Montenegro and Kosovo, the Trial Chamber failed to articulate the basis in customary international law upon which it found that a de facto border could be established in these circumstances.[4] The Appeals Chamber considers this to constitute an error of law. Consequently, the Appeals Chamber will assess whether, in light of customary international law, the circumstances of this case support the finding that a de facto border existed within the territory of the FRY, between Kosovo and Montenegro. 

535. The Appeals Chamber in Stakić previously undertook a survey of customary international law pertaining to the crime of deportation. The various sources considered in Stakić, however, do not provide any examples of an instance in which a displacement of persons from an autonomous region within a federal state to another republic within the same federal state constituted deportation.[5] Additional studies of customary international law regarding the crime of deportation were also undertaken in Judge Schomburg’s Partly Dissenting Opinion in the Naletilić and Martinović Appeal Judgement and Judge Shahabuddeen’s Partly Dissenting Opinion in the Stakić Appeal Judgement.[6] The authorities cited in these opinions, however, also do not address the issue of forcible displacement of individuals within the confines of a sovereign state by the government of that state but, instead, involve the presence of an occupying power or a contested border between two states.[7] The Appeals Chamber observes that the presence of an occupying power or of a contested border between states is not at issue in the present case.[8] The Appeals Chamber has found no support in customary international law for the proposition that a de facto border can be found within the confines of a sovereign state even where a certain degree of autonomy is exercised by portions of that state. Accordingly, the Trial Chamber’s finding that a de facto border existed based on the degree of autonomy enjoyed by Kosovo’s or Montenegro’s status as a republic within the state of the FRY finds no support in customary international law.[9]

536. In addition, the other factors considered by the Trial Chamber do not support a finding on the existence of a de facto border in customary international law. The Appeals Chamber does not intend to diminish the importance of the “serious hardship”[10] placed upon Kosovo Albanians forcibly displaced from Kosovo to Montenegro, as considered by the Trial Chamber, nor does it deny the presence of an armed conflict or the conclusion by the Trial Chamber that the displacement of Kosovo Albanians from Kosovo would have made it easier for FRY and Serbian authorities to control Kosovo.[11] However, the Appeals Chamber finds no basis in customary international law, including in any of the materials considered by the Stakić Appeal Judgement or in the Partly Dissenting Opinions of Judge Schomburg and Judge Shahabuddeen, to infer the presence of a de facto border in these circumstances.[12]

The Appeals Chamber examined the issue of "specific direction", namely whether a chamber must determine whether the accused's alleged acts and omissions were specifically directed to assist the commission of the concerned crimes.

1622.  The Appeals Chamber recalls that where it is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.[1] In view of the divergence between the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements, on one hand, and the Perišić Appeal Judgement, on the other hand, [with regard to the issue of whether “specific direction” is an element of the actus reus of aiding and abetting liability] the Appeals Chamber, Judge Tuzmukhamedov dissenting, will determine the correct approach.[2] In so doing, mindful of its duty to act in the interests of legal certainty and predictability while ensuring that justice is done in all cases,[3] the Appeals Chamber will consider the jurisprudence of the Tribunal and the ICTR as well as customary international law to ascertain where the law stands on the issue of specific direction.

[…]

1649.  Based on the foregoing, the Appeals Chamber, Judge Tuzmukhamedov dissenting, comes to the compelling conclusion that “specific direction” is not an element of aiding and abetting liability under customary international law. Rather, as correctly stated in the Furundžija Trial Judgement and confirmed by the Blaškić Appeal Judgement, under customary international law, 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.”[4] The required mens rea is “the knowledge that these acts assist the commission of the offense”.[5] The Appeals Chamber reaffirms the position taken by the Blaškić Appeal Judgement in this regard.

1650.  Accordingly, the Appeals Chamber confirms that the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that “‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”,[6] accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability.[7] Consequently, the Appeals Chamber, Judge Tuzmukhamedov dissenting, unequivocally rejects the approach adopted in the Perišić Appeal Judgement as it is in direct and material conflict with the prevailing jurisprudence on the actus reus of aiding and abetting liability and with customary international law in this regard.[8]

See also paras 1618-1621, 1623-1648, in which the Appeals Chamber examined the jurisprudence of the Tribunal and the ICTR as well as customary international law.

1677. The Appeals Chamber recalls that a person may be held criminally responsible for aiding and abetting by omission where he or she fails to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime.[1] Additionally, aiding and abetting by omission necessarily requires that the accused has “the ability to act, or in other words, that there were means available to the accused to fulfil this duty”.[2]

1678. The Appeals Chamber considers that while Lazarević’s failure to take investigative and punitive measures against the commission of forcible displacement may have had an effect on the ability of the military prosecutor to pursue perpetrators of such crimes, this in itself is not conclusive for the purposes of establishing aiding and abetting liability. Rather as recalled above, in order to fulfil the actus reus of aiding and abetting, it must be demonstrated that any such omission substantially contributed to the continued commission of forcible displacement.[3] […]

558. […] the Appeals Chamber recalls that although the identity of a victim is information that is valuable to the preparation of a defence,[1] convictions may be entered for unidentified victims[2] […]