545.  The Appeals Chamber recalls that the primary goal in sentencing is to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.[1] While gravity of the offence is the primary factor in sentencing, the inherent gravity must be determined by reference to the particular circumstances of the case and the form and degree of the accused’s participation in the crime.[2] In this regard, the Appeals Chamber recalls that while a position of influence or authority, even at a high level, does not automatically warrant a harsher sentence, its abuse may constitute an aggravating factor.[3]

546.  The Appeals Chamber notes that, in assessing his liability, the Trial Chamber stated that “Mladić’s conduct and superior position [were] encapsulated within the conduct relied upon to establish his participation in the four [joint criminal enterprises]”.[4] The Trial Chamber did not enter convictions pursuant to superior responsibility under Article 7(3) of the ICTY Statute but indicated that it would consider Mladić’s superior position for the purposes of sentencing.[5] The Appeals Chamber is of the view that this legal approach is consistent with settled jurisprudence.[6] In the sentencing portion of the Trial Judgement, the Trial Chamber considered that Mladić’s participation in all four joint criminal enterprises “was undertaken in his official capacity as Commander of the VRS Main Staff”, and that he held this position throughout the entire Indictment period. The Trial Chamber then concluded that he therefore “abused his position” and found that “Mladić’s abuse of his superior position” added to the gravity of the offences.[8]

547.  Contrary to Mladić’s contention, the Appeals Chamber finds no indication that the Trial Chamber aggravated his sentence with superior responsibility under Article 7(3) of the ICTY Statute.[9] Rather, according to the Trial Chamber, it was the abuse of his position as Commander of the VRS Main Staff that aggravated the gravity of his offences.[10] The Appeals Chamber notes the Trial Chamber’s conclusion that Mladić was “responsible for having committed a wide range of criminal acts through his participation in four [joint criminal enterprises]”,[11] and that he did so while, inter alia: (i) commanding and controlling VRS units and other groups subordinated to the VRS; (ii) having knowledge of crimes committed by those under his command; (iii) placing severe restrictions on humanitarian aid; (iv) providing misleading information about crimes to representatives of the international community; and (v) failing to investigate crimes and/or punish perpetrators of the crimes.[12] Given the totality of the Trial Chamber’s findings on Mladić’s responsibility, the Appeals Chamber finds no discernible error in the Trial Chamber’s conclusion that Mladić abused his position of authority and that this added to the gravity of the crimes. […]

562. The Appeals Chamber recalls that, pursuant to Article 24(1) of the ICTY Statute, trial chambers “shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”.[1] Furthermore, according to Rule 101(A) of the ICTY Rules, a “convicted person may be sentenced to imprisonment for a term up to and including the remainder of the convicted person’s life”.[2] The Appeals Chamber also recalls that the principle of nulla poena sine lege prohibits retroactive punishment.[3] The principle of lex mitior prescribes that if the law relevant to the offence of the accused has been amended, the less severe law should be applied;[4] however, the relevant law must be binding upon the court.[5]

563. The Appeals Chamber considers that Mladić’s submission regarding “oversights in the jurisprudence” is based on the erroneous foundation that, having “recourse” to the sentencing practices of the former Yugoslavia meant that Article 24 of the ICTY Statute “incorporated” or “import[ed]” domestic sentencing practices into international law and the sentencing practice of the ICTY.[6] It is settled jurisprudence that the ICTY was not in any way bound by the laws or sentencing practices of the former Yugoslavia; rather, trial chambers were only obliged to take such practice into consideration.[7]

564. There is also no merit in Mladić’s submissions that the introduction of Rule 101(A) of the ICTY Rules created another sentencing regime within the jurisdiction of the ICTY and “retroactively” provided for life imprisonment,[8] or that life imprisonment was not “accessible or foreseeable” to accused, including himself, at the ICTY.[9] His contention that Rule 101(A) of the ICTY Rules, which was adopted subsequent to the ICTY Statute, established a different sentencing regime is misguided. The Appeals Chamber recalls that judicial power to adopt rules of procedure and evidence at the ICTY was subject to the principles and parameters set out in the ICTY Statute and international law.[10] Given that Article 24 of the ICTY Statute does not adopt or incorporate the sentencing practices of the former Yugoslavia into the ICTY’s sentencing practices, Mladić fails to establish that the creation of Rule 101(A) of the ICTY Rules deviates from the principle set out in the ICTY Statute.[11] Regarding the foreseeability of life imprisonment, Mladić ignores jurisprudence that the imposition of life imprisonment has been available for the most serious violations of international humanitarian law since at least the tribunals established after World War II.[12] Additionally, the Appeals Chamber finds no merit in Mladić’s submission that the ICTY Appeals Chamber in the Čelebići case conflated issues of liability (nullem crimen sine lege) and punishment (nulla poena sine lege).[13] The ICTY Appeals Chamber specifically considered the question of penalty independent of liability, concluding that there could be no doubt that the accused must have been aware that the crimes for which they were indicted were the most serious violations of international humanitarian law, punishable by the most severe penalties.[14] Furthermore, since the establishment of the ICTY, convicted persons before it have received sentences of life imprisonment pursuant to the ICTY Statute and Rules.[15] Most recently, the Appeals Chamber imposed a sentence of life imprisonment in the Karadžić case before the Mechanism.[16] The Appeals Chamber thus finds that Rule 101(A) of the ICTY Rules did not create another sentencing regime inconsistent with Article 24(1) of the ICTY Statute,[17] and Mladić fails to demonstrate that life imprisonment was not an accessible or foreseeable punishment. 

50.  In articulating its approach to evidence presented in rebuttal to adjudicated facts, the Trial Chamber specified, in part, as follows:

The Trial Chamber analysed the evidence and considered, as an initial step, whether evidence contradicted the Adjudicated Facts. The Trial Chamber required evidence to be unambiguous in its meaning in order to be termed as ‘contradicting the Adjudicated Facts’. For example, evidence suggesting mere possibilities was deemed not to reach that threshold. In other words, merely pointing at the possibility of alternative scenarios was in itself not sufficient ground to reopen the evidentiary debate. A contradiction can exist in either presenting evidence on a specific alternative scenario, as opposed to a mere suggestion of one or more possible alternative scenarios, or in the unambiguous demonstration that the scenario as found in the Adjudicated Fact must reasonably be excluded as true. […] The Trial Chamber was mindful that evidence contradicting adjudicated facts does not automatically rebut the adjudicated fact. The presumption of accuracy of the adjudicated fact is only rebutted by ‘reliable and credible’ contradictory evidence.[1]

[…]

54. […] The ICTR Appeals Chamber in the Karemera et al. case has clarified that “the effect [of judicially noticing an adjudicated fact] is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may then put the point into question by introducing reliable and credible evidence to the contrary”.[2]  In this respect, Mladić contends that “[t]he need for rebuttal evidence to be ‘credible and reliable’ […] must be read in light of the general standard for the admissibility of evidence”,[3] which is “relatively low”,[4] and “was never intended to be applied in conjunction with an additional requirement that the evidence be 'unambiguous’”.[5] He argues that the Trial Chamber’s error in heightening the standard resulted in his evidence being deemed “insufficient to enliven the rebuttal procedure or to rebut the accuracy of the adjudicated fact”.[6]

55.   In the Appeals Chamber’s view, Mladić confuses the standard for the admissibility of evidence with the final evaluation thereof. A reading of the Trial Judgement shows that the Trial Chamber’s criterion of unambiguity was not related to the reliability or credibility of evidence, but rather to its contrary nature.[7] In accordance with the standard elucidated by the ICTR Appeals Chamber in the Karemera et al. case, in order for evidence presented in rebuttal of an adjudicated fact to be admissible, and thereby bringing the presumption of its accuracy into dispute, such evidence must be contrary to the adjudicated fact and bear sufficient indicia of prima facie reliability and credibility.[8] The Appeals Chamber stresses, however, that “adjudicated facts that are judicially noticed […] remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial”.[9] As such, the final evaluation of the probative value of rebuttal evidence, which includes a final assessment of its reliability and credibility, as well as the extent to which it is consistent with or contradicts adjudicated facts, “will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it”.[10]

56.   In light of the above, and considering that, once judicially noticed, an adjudicated fact is presumed to be true, the Appeals Chamber finds no dissonance in the Trial Chamber’s requirement that evidence produced in rebuttal thereof should be “unambiguous in its meaning” – namely that it must either point to “a specific alternative scenario” or “unambiguous[ly] demonstrat[e] that the scenario as found in the Adjudicated Fact must reasonably be excluded as true”[11] – in order to successfully contradict it. […]

Pages 2, 3

RECALLING that, pursuant to Rule 144(D) of the Rules of Procedure and Evidence of the Mechanism […], the judgement on appeal shall be pronounced in public by the Appeals Chamber or a Judge thereof, on a date of which notice shall be given to the parties and counsel and at which they shall be entitled to be present;

[…]

OBSERVING that the Rules do not restrict the scheduling or conduct of appeal proceedings, including the pronouncement of judgement, on the basis of a stayed status conference;[14]

[…]

CONSIDERING that, during the Pronouncement of Judgement, a Judge of the Appeals Chamber will read a summary of the written judgement and publicly pronounce the verdict, with no action required from the parties or counsel;[18]

Page 3

RECALLING that counsel have an obligation to represent their client and to comply with orders of the Appeals Chamber,[16] and that, where the client is represented by counsel and co-counsel, either one may assume the responsibility for participating in proceedings;[17]  

[…]

CONSIDERING that, notwithstanding Co-Counsel’s unavailability, the Defence has failed to demonstrate that Mr. Mladić or his Lead Counsel cannot be present for the Pronouncement of Judgement, in court or via videoconference;[19]

[…]

CONSIDERING that […] Mr. Mladić has been able to communicate with his legal team and provide instructions following the issuance of the Scheduling Order, and in doing so he, inter alia, “spoke definitively” and “provided his unwavering position”;[21]

FINDING that, in light of the considerations above, the Defence has failed to justify the request to stay the Pronouncement of Judgement and postpone it until a time when both counsel can be present in court in person with Mr. Mladić;

[…]

63. [...] The Appeals Chamber emphasizes, however, that it will not lightly disturb on review a trial chamber’s credibility assessment, which was subjected to appellate review, based on a witness’s subsequent conduct occurring more than five years after their original testimony. To do so, would in fact provide incentives to convicted persons, or individuals close to them, to interfere with susceptible witnesses with the hope that it will not be discovered and the convicted person will be released or, if discovered, that the witnesses will then be so thoroughly discredited that their original testimony cannot be trusted and the convicted person will be released. To put it simply, an applicant bears a heavy burden in showing that the conduct of a witness, occurring significantly post trial testimony, taints their original testimony. [...] 

9. […] [N]either Article 1(4) of the Statute nor Rule 90 of the Rules incorporates the modes of liability that apply to the core crimes that are encompassed in the jurisdiction of the Mechanism pursuant to Article 1(1) of its Statute.[1] Specifically, Article 1(4) of the Statute provides for the Mechanism’s power to prosecute any person who knowingly and wilfully interferes or has interfered with the administration of justice by the Mechanism or the ad hoc Tribunals and to hold such person in contempt. Rule 90 of the Rules provides that the Mechanism may hold in contempt those who knowingly and wilfully interfere with the administration of justice and enumerates what conduct can amount to such interference.

10. The Appeals Chamber understands the Prosecution’s submission to be that the Single Judge should have interpreted the phrase “interferes with the administration of justice” to include interference committed through a joint criminal enterprise. The Appeals Chamber does not find this interpretation to be persuasive.

[…] [W]hile the doctrine of joint criminal enterprise is not referred to in the Statute or the Rules of the Mechanism and the ad hoc Tribunals, it has been specifically applied to the core crimes of genocide, crimes against humanity, and war crimes as a form of commission under Article 6(1) of the ICTR Statute and Article 7(1) of the ICTY Statute after a detailed review of customary international law. […] In addition […] jurisdiction over joint criminal enterprise liability was limited to the core crimes as, inter alia: (i) Articles 6(1) and 7(1) of the ICTR and the ICTY Statutes, respectively, only apply to the core crimes by their plain language; and (ii) Article 1(4) of the Statute, Rule 90 of the Rules, or Rule 77 of the ICTR and the ICTY Rules of Procedure and Evidence do not cross reference Articles 6(1) and 7(1), respectively, of the ICTR and the ICTY Statutes.[3]

11. […] [R]eferences to “attempt” and “incitement” in the language of Rule 90(B) of the Rules indicate that these specific offences expressly fall within the Mechanism’s jurisdiction and they cannot be construed as incorporating other offences or modes of liability in the scope of this provision.

12. […] [T]he terms “interferes” or “has interfered with the administration of justice” […] […] does not limit the jurisdiction of the Mechanism to actual commission of contempt, but instead includes “all conduct” that interferes with the Mechanism’s administration of justice. […] [T]he Mechanism’s subject matter jurisdiction encompassed incitement to commit contempt as this offence was specifically recognised in the Rules of Procedure and Evidence of both ad hoc Tribunals and Article 1(4)(a) of the Statute codifies jurisdiction over offences that interfere with the administration of justice.[6]

[…]

15. [T]he Single Judge rightly concluded that “the doctrine of joint criminal enterprise has never been applied in any contempt case before the Tribunals.”[7] In addition […] [t]he context in which liability under the doctrine of joint criminal enterprise was applied by the ad hoc Tribunals […] was specifically done in relation to the core crimes of genocide, crimes against humanity, and war crimes.

15. The Appeals Chamber reiterates that the Mechanism is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ad hoc Tribunals[.][1]

25. The Appeals Chamber notes that Karadžić did not raise his arguments about the alleged breach of his right to represent himself during trial or seek reconsideration or certification to appeal the impugned decision.[1] In this respect it recalls that, if a party raises no objection to a particular issue before a trial chamber when it could have reasonably done so, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to raise the issue on appeal.[2] However, in view of the fundamental importance of the right to self-representation, the Appeals Chamber holds that it would not be appropriate to apply the waiver doctrine to Karadžić’s allegation of error and will consider the matter.[3]

See also para. 298.

35. The Appeals Chamber recalls that Article 21(4)(d) of the ICTY Statute guarantees the fundamental right of an accused to be tried in his presence. This right is not absolute, however, and may be subject to limitations.[1] As with other qualified statutory rights of an accused, including the right to be self-represented, any limitation on the right of the accused to be tried in his presence must serve a sufficiently important aim that is compatible with the ICTY Statute and must not impair the right more than necessary to accomplish such aim.[2]

[…] 

37. […] In view of the above, the Appeals Chamber finds no error in the Trial Chamber’s consideration that conducting the site visits in Sarajevo and Srebrenica in the presence of Karadžić would inevitably pose a considerable security risk for Karadžić as well as the other participants in the site visit delegations.[3] The Appeals Chamber therefore finds that the Trial Chamber’s decision to conduct the site visits without Karadžić being present served the sufficiently important aim of ensuring its ability to perform its functions in the given circumstances and did not impair his right more than necessary to accomplish it.[4]

[…]

39. The Appeals Chamber finds that the minutes of the site visits therefore reveal the exchange of submissions between the parties and the Trial Chamber’s interactions with various persons at some of the sites. The minutes also confirm that, although the impugned decisions indicated that the purpose of the site visits was not to gather evidence or hear submissions but to enable the Trial Chamber to familiarize itself with the locations referred to in the Indictment, the conduct during the visits did not comply with the limitations imposed by the Trial Chamber. Consequently, the Appeals Chamber finds that the two site visits formed part of the trial proceedings,[5] and that, in light of the conduct during them, the site visits violated Karadžić’s right to be tried in his presence. The Appeals Chamber will proceed to examine whether Karadžić suffered prejudice as a result of this violation.

40.  […] Although Karadžić submits that “[t]he observations made during the site visit undoubtedly affected the Trial Chamber’s overall assessment of the events, and its findings in the judgement”,[6] he does not point to any concrete disadvantage or prejudice suffered as a result of the site visits having been conducted in his absence.[7]

41. The Appeals Chamber reiterates that any violation of the right to a fair trial of an accused requires a remedy.[8] The nature and form of the effective remedy should be proportional to the gravity of the harm suffered.[9] The Appeals Chamber also recalls that, in situations where a violation of the accused’s fair trial rights has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[10] For the reasons set out above, the Appeals Chamber considers that its recognition of the violation of Karadžić’s right to be present during the site visits constitutes an effective remedy.