114.   The Appeals Chamber notes that the Trial Chamber’s decisions setting time limits within which Lukić was required to file the translations of the exhibits on his Rule 65 ter list are discretionary decisions to which the Appeals Chamber must accord deference.[1] It further recalls that, pursuant to Rule 3(E) of the Rules, “[t]he Registrar shall make any necessary arrangements for interpretation and translation into and from the working languages” of the Tribunal. This obligation does not imply, however, that the parties have unlimited access to the translation resources of the Tribunal. Rather, a trial chamber may impose certain limitations provided that they are consistent with the right of the accused to have adequate time and facilities for the preparation of his defence.[2] Any such limitations must be based on a reasonable assessment of the Defence needs of each particular accused in a multi-accused trial, taking into account the legal and factual complexity of the case.[3] Accordingly, it is not appropriate to limit a party’s access to translation resources solely because of CLSS capacity restraints.[4]

CONSIDERING further that Counsel have no standing in their own right in circumstances where the appellant has died and the appellate proceedings before the Tribunal have been terminated;

147. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically directed to assist, encourage, or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.[1] The Appeals Chamber has explained that an individual can be found liable for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.[2] When this form of aiding and abetting has been a basis for a conviction, “it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it.” [3]

149. With respect to Ndahimana’s arguments regarding the number of perpetrators involved, the Appeals Chamber notes that the Trial Chamber made no specific finding on the number of assailants on 16 April 1994, only concluding that “thousands of persons (assailants and refugees alike) were present” at Nyange Parish. Regardless of the number of assailants, the Appeals Chamber considers that the Trial Chamber was not required to establish that Ndahimana’s presence was noticed by or provided moral support to all perpetrators to find that he substantially contributed to the killings. As for Ndahimana’s argument that his assistance was not necessary as the assailants were already fully determined to commit the crimes at Nyange Church, the Appeals Chamber recalls that proof of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, or proof that such conduct served as a condition precedent to the commission of the crime, is not required by law.

In footnote 526, the Appeals Chamber noted that:

[…] The Appeals Chamber also emphasises that, contrary to the Trial Chamber’s suggestion, Ndahimana’s contribution to the 16 April killings in the form of providing moral support by tacit approval is not to be characterised as an omission. See Trial Judgement, heading Section 4.3.2 and paras. 810, 811. See also Brđanin Appeal Judgement, para. 273; Ntagerura et al. Appeal Judgement, para. 338.

91. The Appeals Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt.[1] Rather, he must simply produce evidence tending to show that he was not present at the time of the alleged crime.[2] If the alibi is reasonably possibly true, it must be accepted.[3] Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[4]

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.