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.

5. Rule 115 of the Rules provides for the admission of additional evidence on appeal where a party is in possession of material that was not before the trial chamber and which represents additional evidence of a fact or issue litigated at trial.[1] The Appeals Chamber considers that Rule 115 of the Rules is equally applicable to appeals from referral decisions under Rule 11 bis of the Rules.[2] […]

In footnote 290, the Appeals Chamber noted that:

As Mugiraneza suggests, the Indictment was confirmed before the ICTY Appeals Chamber had recognized the theory of joint criminal enterprise. Compare Trial Judgement, Annex A, para. 6 (noting that the Indictment was confirmed on 12 May 1999) with Tadić Appeal Judgement, para. 220 (concluding, in a judgement issued on 15 July 1999, that the notion of joint criminal enterprise is firmly established in customary international law). See also Trial Judgement, para. 1920. However, he fails to show how this fact demonstrates that the elements of the theory of joint criminal enterprise were omitted from the Indictment or that the Trial Chamber erred in finding that the Indictment reflected the Prosecution’s intent to pursue such a theory.

32.       The Appeals Chamber recalls that “because of the Tribunal’s mandate and of the inherent complexity of the cases before the Tribunal, it is not unreasonable to expect that the judicial process will not always be as expeditious as before domestic courts”.[1] In the circumstances of this case, which is one of the largest ever heard by the Tribunal, the significant period of time which elapsed during these proceedings can be reasonably explained by its size and complexity. The pace of the trial was not dissimilar from that of other multi-accused trials, where no undue delay has been identified.[2] As a result, the fact that some multi-accused cases may have proceeded at a more accelerated pace does not, in and of itself, demonstrate that the duration of proceedings in this case amounted to undue delay.

33.       Although the size and complexity of the case resulted from the Prosecution’s decision to jointly charge four senior government officials, Mugiraneza fails to demonstrate that this decision improperly prolonged his trial. The Appeals Chamber also considers speculative Mugenzi’s contention that investigative failings resulted in the size and complexity of the case or that the Prosecution acted impermissibly simply because much of the Prosecution’s case at trial was deemed unproven. The Appeals Chamber likewise dismisses Mugiraneza’s unsubstantiated contention that the Prosecution’s disclosure violations resulted in undue delay.

91.       In rejecting these alternative explanations, the Trial Chamber considered evidence that the war-front was relatively far from ButarePrefecture, that there was no legitimate threat of invasion by the RPF from neighbouring Burundi, and that the evidence of RPF infiltration in the area was general or pre-dated 1994.[1] The Appeals Chamber is not convinced, Judge Liu dissenting, that the considerations identified by the Trial Chamber eliminate the reasonable possibility that Mugenzi and Mugiraneza agreed to remove Habyalimana for political or administrative reasons rather than for the purpose of furthering the killing of Tutsis in Butare Prefecture. Consequently, the Appeals Chamber finds, Judge Liu dissenting, that the Trial Chamber erred in concluding that the only reasonable inference that could be drawn from the circumstantial evidence is that Mugenzi and Mugiraneza possessed the requisite mens rea for a conviction for conspiracy to commit genocide.

[…]

138.     The Appeals Chamber finds that the Trial Chamber erred in concluding that the only reasonable inference that could be drawn from the evidence on the record is that Mugenzi and Mugiraneza knew that Sindikubwabo’s speech at the ceremony would be aimed at sparking the killing of Tutsis and that, therefore, their presence at the ceremony demonstrates their shared genocidal intent. In this respect, the Appeals Chamber notes the Trial Chamber’s acknowledgment that there was no direct evidence that Mugenzi and Mugiraneza met with Sindikubwabo immediately prior to the ceremony or any other direct evidence of “pre-planning”.[2] Furthermore, the Appeals Chamber considers that, given that Mugenzi spoke at the ceremony before Sindikubwabo, it was unreasonable for the Trial Chamber to rely on the fact that Mugenzi did not contradict Sindikubwabo in support of its finding that Mugenzi must have known the intended message of the president’s speech.[3]

139.     The Appeals Chamber also considers that, based on the record, no reasonable trier of fact could have excluded the reasonable possibility that Mugenzi and Mugiraneza attended the installation ceremony for reasons other than because they shared a common criminal purpose of killing Tutsis in Butare Prefecture. Notably, Mugenzi and Mugiraneza submit that they attended the ceremony as a result of obligations arising from their positions as ministers.[4] Indeed, the Trial Chamber recounted evidence from Mugiraneza and Defence Witness André Ntagerura, a former minister, that their attendance at the installation ceremony resulted from obligations of protocol and custom.[5] The Trial Chamber did not discount this evidence and, in fact, took it into account in rejecting Mugenzi’s claim that Sindikubwabo’s attendance at the ceremony was unexpected.[6] Moreover, a review of the Trial Judgement reflects that Mugenzi also attended the installation ceremony of the new prefect of Gisenyi Prefecture on 20 April 1994 and that there is evidence that Kambanda and other ministers attended the installation ceremony of the prefect of Ruhengeri Prefecture in the second half of April 1994.[7]

140.     Furthermore, the Trial Chamber relied on its finding that Mugenzi and Mugiraneza acted with genocidal intent in agreeing on 17 April 1994 to remove Habyalimana as the prefect of Butare Prefecture to reinforce its conclusion that they would have thus known that Sindikubwabo’s message would be aimed at sparking the killings in Butare Prefecture in view of the coordinated nature of the events.[8] The Appeals Chamber recalls that it has reversed, Judge Liu dissenting, the Trial Chamber’s finding that Mugenzi and Mugiraneza possessed genocidal intent in taking the decision to replace Habyalimana.[9] The Appeals Chamber thus considers that Mugenzi’s and Mugiraneza’s participation in the decision could not support the finding of their mens rea for direct and public incitement to commit genocide.

141.     Accordingly, Mugenzi and Mugiraneza have demonstrated that the Trial Chamber erred in its assessment of the evidence related to their mens rea for convictions for direct and public incitement to commit genocide. The Appeals Chamber therefore dismisses their remaining arguments as moot.[10]

16. Turning to the parties’ central contentions, the Appeals Chamber, Judge Robinson dissenting, is satisfied that Karadžić has not demonstrated that 300 courtroom hours is an objectively inadequate amount of time for his defence. The Appeals Chamber recalls that, while the Trial Chamber was required to allocate sufficient time for Karadžić to present his defence,[1] it also has an obligation to ensure that proceedings do not suffer undue delays.[2] The Appeals Chamber further recalls that the allocation of time for the presentation of the defence case is based on a contextual analysis of the specific factors relevant to the case.[3] Considering that the Prosecution bears the burden of proof,[4] an allocation of time reasonably proportional to that granted to the Prosecution will often result in less time being granted to the defence for the presentation of its case.[5] The Appeals Chamber recalls that Karadžić and the Prosecution were each granted 300 hours to present their cases,[6] and further recalls that Karadžić has already used more than twice as much time as the Prosecution during the presentation of the Prosecution case.[7] In these circumstances, the Appeals Chamber, Judge Robinson dissenting, is not persuaded that Karadžić has demonstrated any objective unfairness in the Impugned Decision.