172. A careful review of the record reveals that at no point in the trial proceedings did Ndahimana rely on duress as a special defence pursuant to Rule 67(A)(ii)(b) of the Rules. […]

173. The Appeals Chamber further notes that nothing in the Trial Judgement suggests that the Trial Chamber considered duress as a special defence. The Trial Judgement does not contain any discussion of the law applicable to duress as a special defence, nor does it refer to duress as a special defence.

174. It also bears noting that the Trial Chamber did not make any determinative finding on duress but merely stated that Ndahimana “might”, or “may”, have been motivated by duress when discussing whether he shared the criminal intent of the members of the JCE and whether his participation resulted from “extremism or ethnic hatred.” Read in context, the relevant parts of the Trial Judgement reveal that the Trial Chamber was not making findings on duress as a legal defence but simply considering an alternative reasonable inference from the circumstantial evidence on the record as to Ndahimana’s mens rea when participating in the events of 16 April 1994 at NyangeChurch.

175. The Appeals Chamber therefore finds no merit in the submissions raised by the Prosecution and Ndahimana regarding duress as a special defence and dismisses them.

53. As the Appeals Chamber has held, “[i]ndicators of effective control are ‘more a matter of evidence than of substantive law, and those indicators are limited to showing that the accused had the power to prevent [or]] punish’.”[1] In finding that Ndahimana had effective control over the communal policemen, the Trial Chamber first relied on the fact that Ndahimana possessed de jure authority, as bourgmestre, over the communal policemen under Rwandan law and that this authority encompassed disciplinary powers.[2] Ndahimana does not dispute that he possessed such de jure disciplinary powers,[3] nor does he demonstrate that it was unreasonable for the Trial Chamber to consider his de jure authority over the communal policemen as an indicator of his effective control over them. The Appeals Chamber recalls in this regard that the possession of de jure authority over subordinates, while not synonymous with effective control, may suggest a material ability to prevent or punish their criminal acts.[4]

54. The Trial Chamber further cited extensive evidence of Ndahimana’s ability to issue binding orders to the communal policemen and the compliance of the policemen with these orders, namely: (i) Ndahimana’s order to a communal policeman to escort a Tutsi refugee to safety on the night of 15 April 1994; (ii) Ndahimana’s assignment of communal policemen to protect the Les Soeurs de l’Assomption Convent in Kivumu on 16 April 1994; (iii) Ndahimana’s assignment of communal policemen to protect Tutsi refugees at the health center around 17 April 1994; and (iv) Ndahimana’s demotion of Brigadier Mbakilirehe and promotion of Abayisenga and Niyitegeka to brigadier and to deputy brigadier, respectively, on 29 April 1994.[5] Contrary to Ndahimana’s contention, the Trial Chamber therefore did not “wrongly define[] the parameters” of effective control by focusing on Ndahimana’s power to issue binding orders or take disciplinary measures.[6] The Trial Judgement reflects that the Trial Chamber also relied on the fact that Ndahimana’s orders were obeyed and his disciplinary measures implemented.[7] It is well-settled that these factors are indicative of a superior’s effective control over his subordinates.[8]

26. […] However, while Rule 68(ii) of the Rules clearly requires disclosure in electronic form, it neither designates a particular electronic form as an official disclosure method, nor does it or any other provision in the Rules stipulate that the Prosecutor must use a particular type of electronic disclosure to the exclusion of other electronic forms.

27. Similarly, the jurisprudence does not designate the EDS or any other form of electronic disclosure as the official method, nor does it support a conclusion that one method of electronic disclosure is to be used to the exclusion of other methods. On the contrary, the Appeals Chambers of the Tribunal and the International Criminal Tribunal for Rwanda as well as various trial chambers have found that the provision of non-EDS resources, such as descriptive indices and written notices of disclosed material, are precisely the types of assistance that make EDS materials reasonably available and accessible to the Defence […]. 

34.     The Appeals Chamber recalls that “[s]ubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of criminal sanction”.[1] Thus, the prerequisites for subpoena issuance, embodied in the evidentiary threshold, safeguard against the potentially oppressive deployment of subpoenas generally. However, the proposed use of subpoenas against accused persons and appellants raises the additional consideration of possible self-incrimination relative to their status as individuals with ongoing proceedings before the Tribunal. The question therefore is whether an accused or appellant compelled by subpoena to testify in another case before the Tribunal is in effect exposed, in relation to his own case, to the possibility of compelled self-incrimination in the form of either: (i) inadvertent self-incrimination, whereby the accused or appellant unwittingly makes self-incriminating statements; or (ii) deliberate self-incrimination whereby a Chamber may compel self-incriminating statements from the accused or appellant pursuant to Rule 90(E) of the Rules.

[…]

36.     The Appeals Chamber notes that the chapeau to Article 21(4) of the Statute relates the rights listed thereunder to “the determination of any charge” against an accused. Thus, whereas Article 21(4)(g) of the Statute operates to prohibit the compulsion of an accused’s testimony in his own proceedings, it does not, sensu stricto, preclude the possibility of an accused being compelled to testify in other proceedings, which do not involve the determination of charges against him. Thus, Article 21(4)(g) of the Statute does not as such operate to prohibit the compulsion of Tolimir’s testimony in the Karadžić case.[2]

[…]

50.     […] international law and the laws of various national jurisdictions indicate the permissibility of distinguishing between an accused’s own case and the cases of other accused persons for the purposes of compelling an accused’s testimony. The Appeals Chamber emphasises that an accused or appellant may be compelled to testify in other cases before the Tribunal due to the fact that any self-incriminating information elicited in those proceedings cannot be directly or derivatively used against him in his own case. By contrast, an accused or appellant is not compellable in his own case, whether at the request of his co-accused or the Prosecution, as this may violate his right under Article 21(4)(g) of the Statute. […]

47.     The Appeals Chamber also notes Tolimir’s assertion that the fact that no accused in an ongoing case before the Tribunal has ever been subpoenaed to testify in another case before the Tribunal, and the fact that neither the Prosecution nor any of the defence teams in any of the cases in the Tribunal’s history has ever made such a request, is indicative of a binding Tribunal policy against the measure.[1] The unprecedented nature of a proposed measure does not per se equate to a policy of binding abstention from that measure. The decision whether to call a witness to testify is contingent upon a range of considerations, which may or may not result in a witness being called. This is equally applicable to the measure of summoning an accused or convicted person to testify in another case before the Tribunal. As the Prosecution submits, Tolimir’s argument “ignores the factors such as reliability, credibility and necessity, which inform the decision to call an accused or convicted person to testify in the trial of another accused”.[2]

9.       Rule 73(C) of the Rules, pursuant to which this appeal is brought, entitles a “party” to appeal a trial chamber’s decision after having requested and obtained certification. Rule 2 of the Rules defines “parties” as “[t]he Prosecutor and the Defence”. The Impugned Decision was issued in the Karadžić case and Tolimir is neither part of the Prosecution nor the Defence in that case. Thus, sensu stricto, he is not entitled to use Rule 73(C) of the Rules to bring an interlocutory appeal.

10.     However, the Appeals Chamber recalls the Milošević Appeal Decision[1] in which it decided to consider an interlocutory appeal filed by amici curiae in that case.[2] The Appeals Chamber determined that, although amici curiae operate in proceedings “solely as assistants” to the court and not as actual parties, it would nonetheless adjudicate the amici curiae’s interlocutory appeal on the basis that, in the circumstances of the particular case, consideration of the appeal served the interests of justice.[3] Additional factors underlying the Appeals Chamber’s decision to adjudicate the matter included: (i) the existence of an alignment of interests between the amici curiae and the accused in that case; (ii) the fact that consideration of the appeal would not infringe the accused’s interests; (iii) that there was no “danger of unfairness to the Prosecution”; and (iv) that the Prosecution did not oppose consideration of the appeal and in fact expressed “its willingness to accept the amici as a party for these purposes”.[4] The Appeals Chamber also notes the Brđanin Appeal Decision in which it adjudicated an interlocutory appeal, filed by a non-party to the proceedings, against a subpoena decision.[5]

11.     The Appeal raises concerns regarding, inter alia, Tolimir’s right against self-incrimination under Article 21(4)(g) of the Statute of the Tribunal (“Statute”).[6] Neither Karadžić nor the Prosecution have objected to the filing of the Appeal and in fact both have indicated their willingness to accept Tolimir as having standing to appeal the Impugned Decision.[7] Thus, neither the interests of Karadžić nor the Prosecution stand to be compromised by adjudication of the Appeal. In these circumstances and emphasising in particular that the Appeal raises concerns about a fundamental right of an accused before the Tribunal, the Appeals Chamber finds that consideration of the Appeal serves the interests of justice.

26.    Although not clearly contested by either party, the Appeals Chamber will address the issue of whether and to what extent it is within a trial chamber’s discretion to reformulate proposed adjudicated facts prior to taking judicial notice of them. The Appeals Chamber notes that several trial chambers have held that it is within their discretion to make minor corrections to proposed facts to render their formulation consistent with the meaning intended by the original judgement, as long as the corrections do not introduce any substantive changes.[1] For example, the Popović et al. Trial Chamber held that:

[…] if the moving party’s formulation contains only a minor inaccuracy or ambiguity as a result of its abstraction from the context of the original judgement, the Chamber may, in its discretion, correct the inaccuracy or ambiguity proprio motu. In such circumstances, the correction should introduce no substantive change to the proposed fact, and the purpose of such correction should be to render the formulation consistent with the meaning intended by the original Chamber. The fact corrected in this manner may then be judicially noticed, as long as it fulfils all the other admissibility requirements of Rule 94(B).[2]

Moreover, in the Mićo Stanišić Decision, the Trial Chamber corrected proposed facts by adding information on their temporal and/or geographic scope drawn from the trial judgement from which the proposed fact was taken.[3]

27.    The Appeals Chamber also recalls that:

[a] Trial Chamber can and indeed must decline to take judicial notice of facts if it considers that the way they are formulated – abstracted from the context in the judgement from whence they came – is misleading or inconsistent with the facts actually adjudicated in the cases in question. A fact taken out of context in this way would not actually be an ‘adjudicated fact’ and thus is not subject to judicial notice under Rule 94(B).[4]

28.    The Appeals Chamber, Judge Robinson dissenting, considers that the approach taken by the trial chambers as set out above would not fall outside a chamber’s discretion to take judicial notice of adjudicated facts. However, only minor modifications or additions, which do not alter the meaning of the original judgement from which the proposed adjudicated fact originates, are permissible.

[…]

32.    The Appeals Chamber notes that the Trial Chamber frequently corrected or added information to Proposed Facts which it found did not meet one or more of the criteria for judicial notice. The Appeals Chamber is mindful of the Trial Chamber’s discretion to take judicial notice of adjudicated facts on a proprio motu basis pursuant to Rule 94(B) of the Rules. However, the Appeals Chamber considers that this does not provide the Trial Chamber with the authority to substantively alter facts as proposed by a moving party and that any such exercise of a trial chamber’s discretion should form a separate analysis.[5]

33.    As indicated above, the Appeals Chamber considers that it is within a trial chamber’s discretion to make minor corrections or additions to proposed facts to render them clearer and consistent with the meaning intended in the original judgement.[6] However, the Appeals Chamber considers that it is not permissible for a trial chamber to do so in a manner that introduces new information, which is extraneous to the proposed fact as submitted by the moving party.

33.     […] I first note that the neither the Directive nor the Rules require the Registrar to provide Praljak with an itemized specification of the expenses he is required to reimburse the Tribunal. Nevertheless, I am of the view that an accused should have access to a detailed account of the costs he is expected to reimburse, if so requested. As Praljak has now requested such an itemization, I consider it reasonable that the Registrar provide him with one. […]

[…]

39. Finally, turning to the Registrar’s authority to order the reimbursement of legal aid provided to Praljak, I recall that Rule 45(E) of the Rules provides that:

[w]here a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may, on application by the Registrar, make an order of contribution to recover the cost of providing counsel.[1]

In this regard, I observe that the Decision on Means states that the Registrar “decides that the Accused shall reimburse the Tribunal […] and directs the Accused to do so promptly”.[2] A plain reading of the Decision on Means reflects that the Registrar ordered Praljak to reimburse the Tribunal for the amount owed. While this may constitute “Registry practice” to avoid “unnecessary motion practice”,[3] the Registrar’s order contravenes the clear wording of Rule 45(E) of the Rules, which requires the Registrar to apply to the relevant chamber, which may then make an order of contribution to recover the cost of providing counsel. I therefore consider that the Registrar exceeded his authority by ordering Praljak to reimburse the Tribunal, rather than applying to the relevant chamber. […]

9. The appeals chamber recalls that an appeal against an acquittal entered at the Rule 98 bis stage of a case is an appeal against a judgement.[1] Thus, in an appeal of a rule 98 bis judgement of acquittal, the proceedings are governed by Article 25 of the Statute and by the standards of appellate review for alleged errors of law and alleged errors of fact. The Appeals Chamber further recalls that the test to be applied by the trial chamber at the Rule 98 bis stage is “whether there is evidence (if accepted) upon which a reasonable [trier] of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”,[2] not whether an accused’s guilt has been established beyond reasonable doubt.[3]

10. The Appeals Chamber does not consider that the parties’ relevant submissions impel adoption of a different standard of review. The passage in the Halilović Appeal Judgement which Karadžić discusses simply confirms that appeals challenging factual findings shall be subject to the same standard of deferential review whether the appeals are lodged by the Prosecution or by a convicted person.[4] The Appeals Chamber’s holding in Halilović does not demonstrate that judgements of acquittal pursuant to Rule 98 bis of the Rules are exclusively reviewed under the standard of review for alleged errors of fact, as Karadžić appears to argue. Likewise, and contrary to the Prosecution’s submission, the Jelisić Appeal Judgement does not hold that the Appeals Chamber must always engage in an evidentiary assessment de novo when reviewing a challenge to a Rule 98 bis judgement of acquittal. In Jelisić, the Appeals Chamber merely concluded that the trial chamber had erred as a matter of law at the Rule 98 bis stage of a trial by failing to take the evidence at its highest, and, in view of this conclusion, proceeded to articulate the correct standard and apply that standard to the evidence on the record.[5]

79. The Indictment alleges that JCE members, including Karadžić, used others to carry out the crimes forming part of the JCE’s common purpose, including members of the Bosnian Serb forces.[1] The Appeals Chamber recalls that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member—when using the principal perpetrators—acted in accordance with the common objective.[2] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[3] The Appeals Chamber further recalls that the relevant question in the context of JCE I liability is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose; it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that the non-JCE member knew of the existence of the JCE.[4] Therefore, in accordance with the allegations underlying Count 1 of the Indictment, it is the genocidal intent of Karadžić and other alleged JCE members, not the physical perpetrators of the underlying alleged genocidal acts, that is determinative for purposes of JCE I.