35.     The critical issue is whether Rule 90(E) of the Rules adequately protects an accused or appellant from the direct and indirect use against him of any compelled self-incriminating information, arising as a result of deliberate or inadvertent self-incrimination. In this regard, the Appeals Chamber notes Tolimir’s contention that Rule 90(E) of the Rules “is not a complete protection from self-incrimination”,[1] and that compelling him to testify pursuant to Rule 90(E) of the Rules would constitute a violation of his right against self-incrimination under Article 21(4)(g) of the Statute.[2]

[…]

43.     The immunity from prosecution guaranteed under Rule 90(E) of the Rules clearly prohibits the subsequent direct use of any self-incriminating statements compelled under the provision against the witness in criminal proceedings other than those concerned with false testimony. Thus, where an accused or appellant is compelled to make self-incriminating statements under Rule 90(E) of the Rules, the Prosecution is prohibited from directly relying on such statements in the accused’s or appellant’s own case. Furthermore, in view of the fact that the underlying purpose of the immunity under Rule 90(E) of the Rules is to protect a witness from the subsequent use of such statements against him, and considering that the laws of various national and international jurisdictions reflect that incriminating statements may be compelled from a witness only where adequate safeguards exist against the subsequent use of such statements against the witness, the Appeals Chamber finds that the immunity under Rules 90(E) of the Rules must be interpreted also as a prohibition against the derivative or indirect use of the compelled statements in any subsequent prosecution of the witness other than for false testimony. Testimony compelled under Rule 90(E) of the Rules therefore cannot be used by the Prosecution as a basis for subsequent investigations from which other incriminating evidence may be derived and then used against the accused or appellant.

44.     Furthermore, regarding the issue of inadvertent self-incrimination, the Appeals Chamber emphasizes that in the Impugned Decision the Trial Chamber expressed that it “will be cognisant of the fact that Tolimir is currently involved in appeals proceedings before the Appeals Chamber and will ensure his rights are safeguarded.”[3] Moreover, in the interests of justice in this particular case, particularly in view of the fact that Tolimir is a self-represented appellant, any self-incriminating testimony inadvertently provided during Tolimir’s testimony in the Karadžić case shall not be used as evidence during his appeal or any subsequent proceedings against him, except for false testimony.

45.     Accordingly, […] considering that national and international jurisdictions have recognised that the right against self-incrimination is adequately protected if adequate immunity from prosecution for compelled self-incriminating statements is provided and taking into account the nature of the protection provided by Rule 90(E) of the Rules, the Appeals Chamber finds that the compulsion of an accused’s or appellant’s testimony under Rule 90(E) of the Rules in another case before the Tribunal is not inconsistent with the right against self-incrimination under Article 21(4)(g) of the Statute. Any self-incriminating information potentially emerging during Tolimir’s testimony in the Karadžić case, therefore, could not be used directly or indirectly against Tolimir in his own case. Thus the Prosecution would be prohibited from attempting, pursuant to Rule 115 of the Rules, to tender into evidence in the Tolimir case any self-incriminating information derived from Tolimir’s testimony in the Karadžić case, or any evidence derived therefrom. […]

51.     Finally, the Appeals Chamber recalls that in certain limited instances testimonial privilege and immunity from subpoena, have been granted to specific classes of persons.[1] However, in such instances, the grant of testimonial privilege was justified either as a matter of law[2] or because the necessity of testimonial privilege for the protection of some critical interest was demonstrated.[3] However, in the instant case, Tolimir has failed to demonstrate that such immunity is necessary, particularly in view of the fact that Rule 90(E) of the Rules adequately safeguards him, through the immunity guaranteed under this Rule, from the adverse consequences of any potentially self-incriminating statements that he might make while testifying in the Karadžić case.

92.    The Appeals Chamber held in the Kupreškić et al. case that proposed facts may be subject to judicial notice if the original judgement has not been appealed or where the judgement is finally settled on appeal.[1] It clarified that:

Since the Appeals Chamber may in the course of that appeal revise the findings of the Trial Chamber, the Appeals Chamber thinks it unwise to assume that the facts contained in the Trial Chamber’s judgement are ‘adjudicated’. Only facts in a judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed ‘adjudicated facts’ within the meaning of Rule 94(B).[2]

In a subsequent Appeals Chamber decision, Judge Shahabuddeen appended a separate opinion, elaborating that “if a particular finding on a fact is not the subject of appeal, judicial notice may be taken of it in other proceedings notwithstanding the pendency of an appeal on other aspects.”[3] In addition, trial chambers have interpreted the holding in the Kupreškić et al. Appeal Decision broadly to allow judicial notice of adjudicated facts from judgements pending appeal or review which are not themselves clearly at issue in the appeal, before the appeal is finally concluded.[4] The Appeals Chamber finds this interpretation of the Kupreškić et al. Appeal Decision to be persuasive. However, when determining whether proposed facts are subject to appeal or review, the Appeals Chamber emphasises that trial chambers should take a cautious approach and err on the side of excluding proposed facts which could be altered on appeal.

[…]

94.    While it is within a trial chamber’s discretion to determine whether proposed facts are subject to appeal or review for the purposes of taking judicial notice pursuant to Rule 94(B) of the Rules, as with all discretionary decisions, that discretion is subject to review.[5] The Appeals Chamber recalls that judicial notice of adjudicated facts is an exception to the ordinary burden of producing evidence.[6] Consequently, the Appeals Chamber considers that trial chambers should err on the side of exclusion of proposed facts which could be altered on appeal because judicial economy is poorly served in circumstances where parties in one proceeding are required to follow the status of another proceeding on appeal to determine which adjudicated facts are operative in their case.

[…]

96.    The Appeals Chamber has reviewed the grounds of appeal raised by the Popović et al. appellants to which Mladić refers^[] and has found that some of those grounds could have a bearing not only on general issues of trial fairness, but also on the veracity of specific Proposed Facts. […] The Appeals Chamber notes the difficulty in assessing the likely outcome of grounds of appeal in a separate proceeding and considers that it is not for this Bench of the Appeals Chamber to do so. The question before the Appeals Chamber is merely whether, if these grounds of appeal were successful, the integrity of the entire Popović et al. Trial Judgement could be undermined such that Proposed Facts from the judgement could not be considered truly adjudicated.[7] In these circumstances, the Appeals Chamber considers that it could potentially be so undermined. Consequently, the Appeals Chamber finds that the Trial Chamber failed to give these grounds of appeal sufficient weight in determining whether the Proposed Facts in question are subject to appeal, and therefore committed a discernible error.[8]

13. Footnotes, of course, count toward the overall word limit, pursuant to paragraph C(4) of the Practice Direction on Length of Briefs.[1] I note that many spaces between numbers and punctuation marks were omitted from the footnotes of the Appeal Brief. The Appeal Brief indicates a word count of 39,866 words, such that if all the necessary spaces were included, the Appeal Brief would exceed the word limit set out in the Appeal Decision of 16 April 2013. The Appeals Chamber has previously held that such conduct is contrary to both the spirit and letter of the relevant Practice Directions.[2]

[…]

15. Turning to the Prosecution's assertion that Mr. Nizeyimana improperly included argumentation in the Annexes, the Appeals Chamber has previously held that the proper place for arguments in support of a particular ground of appeal, as well as any supporting authority, is the appeal brief.[3] An appellant therefore cannot simply refer in his appeal brief to other documents and expect those grounds of appeal to be preserved.[4]

16. Pursuant to paragraph C(4) of the Practice Direction on Formal Requirements for Appeals from Judgement, appendices do not count towards the word limit provided they do not contain legal or factual arguments, but only non-argumentative material.[5] Furthermore, an annex that provides description for some references cited does not necessarily lead to the conclusion that the annex has argumentative content.[6] The interests of justice may even allow for a very limited amount of argumentative material in an annex, for which the parties have some discretion, as long as it is not abused and which will be determined on a case-by-case basis.[7] In this regard, even if an annex provides a clear overview of a party's positions, this does not necessarily prove that the annex is argumentative.[8]     

[…]

19. […] [A]n appellant has discretion as to how to develop arguments and how to allot the allowed space between arguments.

5. The Appeals Chamber notes that, while Nteziryayo filed the public redacted version of his Corrected Amended Appeal Brief with two annexes containing the index of authorities and source materials, he failed to append the relevant annexes to the confidential version of his Corrected Amended Appeal Brief. Nteziryayo had likewise failed to append the relevant annexes to his Amended Appeal Brief. The Appeals Chamber considers that a public redacted version of a confidential filing cannot contain more source materials than the original confidential filing. […]

37. The Appeals Chamber recalls that a judgement of acquittal shall only be entered pursuant to Rule 98 bis of the Rules “if there is no evidence capable of supporting a conviction”.[1] Moreover, the Appeals Chamber recalls that pursuant to Rule 98 bis of the Rules, a trial chamber is required to “assume that the prosecution’s evidence [is] entitled to credence unless incapable of belief” and “take the evidence at its highest”.[2] The Appeals Chamber notes that the evidence reviewed by the Trial Chamber, taken at its highest, indicates that Bosnian Muslims and/or Bosnian Croats suffered injuries, including rape and severe non-fatal physical violence which are, on their face, suggestive of causing serious bodily harm.[3] While the commission of individual paradigmatic acts does not automatically demonstrate that the actus reus of genocide has taken place, the Appeals Chamber considers that no reasonable trial chamber reviewing the specific evidence on the record in this case, including evidence of sexual violence and of beatings causing serious physical injuries,[4] could have concluded that it was insufficient to establish the actus reus of genocide in the context of Rule 98 bis of the Rules. Accordingly, the Trial Chamber failed to take the evidence at its highest.

80. The Appeals Chamber also recalls that by its nature, genocidal intent is not usually susceptible to direct proof.[1] As recognised by the Trial Chamber,[2] in the absence of direct evidence, genocidal intent may be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy.[3]

37. The Appeals Chamber is mindful that the principle of equality of arms must be interpreted in light of the particular circumstances surrounding cases of contempt under Rule 77(D) of the Rules[1] where there is no opposing party to an accused and where a trial chamber prosecutes the alleged contempt itself. As the prosecuting authority, a trial chamber acting pursuant to Rule 77(D) of the Rules drafts the charges contained in the order in lieu of indictment, may present evidence on those charges and examine witnesses led by the defence. As the judicial authority, a trial chamber acting pursuant to Rule 77(D) of the Rules decides on defence motions and objections during the pre-trial and trial stages, and delivers a judgement after the close of the evidence and the hearing of defence arguments. Notwithstanding the dual prosecutorial and judicial roles contemplated under Rule 77(D) of the Rules, the Appeals Chamber recalls that a trial chamber continues to abide by the principle of equality of arms in ensuring that the accused is not substantially disadvantaged in the presentation of his case and that he likewise benefits from the fair trial guarantees embodied in the Statute[2].

6.[…] Accordingly, the Appeals Chamber considers that, having found that the death of an appellant results in the termination of proceedings and given that no appeal judgement can be rendered with respect to Gvero, nothing can undermine the finality of the Trial Judgement as it concerns Gvero.[1] As a consequence, the Trial Judgement shall be considered final in relation to Gvero.

36. Accordingly, despite the ambiguity of the Mrkšić and Šljivančanin Appeal Judgement, the Appeals Chamber, Judge Liu dissenting, considers that specific direction remains an element of the actus reus of aiding and abetting liability. The Appeals Chamber, Judge Liu dissenting, thus reaffirms that no conviction for aiding and abetting may be entered if the element of specific direction is not established beyond reasonable doubt, either explicitly or implicitly.[1]

See also paras 26-35, 48.

The Appeals Chamber discussed the circumstances in which specific direction must be explicitly considered:

37. At the outset, the Appeals Chamber, Judge Liu dissenting, recalls that the element of specific direction establishes a culpable link between assistance provided by an accused individual and the crimes of principal perpetrators.[2] In many cases, evidence relating to other elements of aiding and abetting liability[3] may be sufficient to demonstrate specific direction and thus the requisite culpable link.

38. In this respect, the Appeals Chamber notes that previous appeal judgements have not conducted extensive analyses of specific direction. The lack of such discussion may be explained by the fact that prior convictions for aiding and abetting entered or affirmed by the Appeals Chamber involved relevant acts geographically or otherwise proximate to, and thus not remote from, the crimes of principal perpetrators.[4] Where such proximity is present, specific direction may be demonstrated implicitly through discussion of other elements of aiding and abetting liability, such as substantial contribution. For example, an individual accused of aiding and abetting may have been physically present during the preparation or commission of crimes committed by principal perpetrators and made a concurrent substantial contribution.[5] In such a case, the existence of specific direction, which demonstrates the culpable link between the accused aider and abettor’s assistance and the crimes of principal perpetrators, will be self-evident.

39. However, not all cases of aiding and abetting will involve proximity of an accused individual’s relevant acts to crimes committed by principal perpetrators. Where an accused aider and abettor is remote from relevant crimes, evidence proving other elements of aiding and abetting may not be sufficient to prove specific direction. In such circumstances, the Appeals Chamber, Judge Liu dissenting, holds that explicit consideration of specific direction is required.[6]

40. The factors indicating that acts of an accused aider and abettor are remote from the crimes of principal perpetrators will depend on the individual circumstances of each case. However, some guidance on this issue is provided by the Appeals Chamber’s jurisprudence. In particular, the Appeals Chamber has previously concluded, in discussing aiding and abetting liability, that significant temporal distance between the actions of an accused individual and the crime he or she allegedly assisted decreases the likelihood of a connection between that crime and the accused individual’s actions.[7] The same rationale applies, by analogy, to other factors separating the acts of an individual accused of aiding and abetting from the crimes he or she is alleged to have facilitated. Such factors may include, but are not limited to, geographic distance.

See also paras 42, 70.

The Appeals Chamber also discussed types of evidence that may prove specific direction.

44. The Appeals Chamber notes that previous judgements have not provided extensive analysis of what evidence may prove specific direction. However, the Appeals Chamber recalls again that the Tadić Appeal Judgement indicated that specific direction involves finding a closer link between acts of an accused aider and abettor and crimes committed by principal perpetrators than is necessary to support convictions under JCE.[8] The types of evidence required to establish such a link will depend on the facts of a given case. Nonetheless, the Appeals Chamber observes that in most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators.[9] In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.

48. […] [T]he Appeals Chamber acknowledges that specific direction may involve considerations that are closely related to questions of mens rea. Indeed, as discussed below, evidence regarding an individual’s state of mind may serve as circumstantial evidence that assistance he or she facilitated was specifically directed towards charged crimes.[10] However, the Appeals Chamber recalls again that the mens rea required to support a conviction for aiding and abetting is knowledge that assistance aids the commission of criminal acts, along with awareness of the essential elements of these crimes.[11] By contrast, as set out above, the long-standing jurisprudence of the Tribunal affirms that specific direction is an analytically distinct element of actus reus.[12]

56. The Appeals Chamber notes the Prosecution’s suggestion that the magnitude of VJ aid provided to the VRS is sufficient to prove Perišić’s actus reus with respect to the VRS Crimes in Sarajevo and Srebrenica.[13] However, the Appeals Chamber observes that while the Trial Chamber considered evidence regarding volume of assistance in making findings on substantial contribution,[14] this analysis does not necessarily demonstrate specific direction, and thus such evidence does not automatically establish a sufficient link between aid provided by an accused aider and abettor and the commission of crimes by principal perpetrators.[15] In the circumstances of this case, indicia demonstrating the magnitude of VJ aid to the VRS serve as circumstantial evidence of specific direction; however, a finding of specific direction must be the sole reasonable inference after a review of the evidentiary record as a whole.[16]

68. […] [T]he Appeals Chamber, Judge Liu dissenting, recalls that evidence regarding knowledge of crimes, alone, does not establish specific direction, which is a distinct element of actus reus, separate from mens rea.[17] Indicia demonstrating that Perišić knew of the VRS Crimes in Sarajevo and Srebrenica may serve as circumstantial evidence of specific direction; however, a finding of specific direction must be the sole reasonable inference after a review of the evidentiary record as a whole.[18]

72. […] [A]ssistance from one army to another army’s war efforts is insufficient, in itself, to trigger individual criminal liability for individual aid providers absent proof that the relevant assistance was specifically directed towards criminal activities.[19] The Appeals Chamber underscores, however, that this conclusion should in no way be interpreted as enabling military leaders to deflect criminal liability by subcontracting the commission of criminal acts. If an ostensibly independent military group is proved to be under the control of officers in another military group, the latter can still be held responsible for crimes committed by their puppet forces.[20] Similarly, aid from one military force specifically directed towards crimes committed by another force can also trigger aiding and abetting liability. However, as explained above, a sufficient link between the acts of an individual accused of aiding and abetting a crime and the crime he or she is charged with assisting must be established for the accused individual to incur criminal liability. […]

See also paras 46-47, 49-55, 57-67.