321. The Appeals Chamber recalls that, pursuant to Rule 89(C) of the ICTY Rules, trial chambers have discretion to admit relevant evidence that has probative value.[1] The admissibility of evidence related to crimes committed by adversaries depends on the purpose for which it is adduced and whether it tends to refute allegations made in the indictment, while it is for the defence to clarify to the trial chamber the purpose of tendering such evidence.[2] In determining the admissibility of evidence, trial chambers enjoy considerable discretion and the Appeals Chamber must accord deference to their decisions in this respect.[3] The Appeals Chamber’s examination of challenges concerning a trial chamber’s refusal to admit material into evidence is limited to establishing whether the trial chamber abused its discretion by committing a discernible error.[4]

322. […] Considering that it is for the party tendering material to show the indicia of relevance required for it to be admissible under Rule 89(C) of the ICTY Rules,[5] […].

323. […] [C]onsidering that the criteria for admission of evidence set out in Rule 89(C) of the Rules are cumulative, that the tendering party bears the burden of showing that these are met, and the deference accorded to trial chambers on matters related to the admissibility of evidence,[6] […].

363. The Appeals Chamber will address Karadžić’s allegations in turn. Before doing so, the Appeals Chamber recalls that trial chambers have a broad discretion in weighing evidence[1] and are best placed to assess the credibility of a witness and the reliability of the evidence adduced.[2] In the context of the deference accorded to a trier of fact with respect to the assessment of evidence, it is within a trial chamber’s discretion, inter alia, to: (i) evaluate any inconsistencies that may arise within or among witnesses’ testimonies and consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence;[3] (ii) decide, in the circumstances of each case, whether corroboration of evidence is necessary or to rely on uncorroborated, but otherwise credible, witness testimony;[4] and (iii) accept a witness’s testimony, notwithstanding inconsistencies between the said testimony and the witness’s previous statements, as it is for the trial chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned.[5]

See also para. 530.

[…]

376. […] [T]he Appeals Chamber recalls that the mere assertion that the Trial Chamber failed to give sufficient weight to evidence or that it should have interpreted evidence in a particular manner is liable to be summarily dismissed.[6]

433. […] For liability under the third form of joint criminal enterprise, it is required that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and to participate in a common plan aimed at their commission, as well as that it was foreseeable to him or her that a crime falling outside the common purpose might be perpetrated by any other member of the joint criminal enterprise, or one or more of the persons used by the accused or other members of the joint criminal enterprise to further the common purpose, and that the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[1] The Appeals Chamber recalls that the ICTY Appeals Chamber has consistently declined to apply a standard requiring foreseeability that the crime falling outside the common criminal purpose would “probably” be committed for liability under the third form of joint criminal enterprise to attach but recognized instead that the possibility that a crime could be committed must be sufficiently substantial.[2] The Appeals Chamber also reiterates that, although not bound by decisions of the ICTY and the ICTR Appeals Chambers, in the interests of legal certainty, it should follow such previous decisions and depart from them only for cogent reasons in the interests of justice.[3] This would be the case where the previous decision was decided on the basis of a wrong legal principle or was given per incuriam, that is, it was wrongly decided, usually because the judges were not well-informed about the applicable law.[4]

434. The Appeals Chamber observes that it is not bound by the findings of other courts – domestic, international, or hybrid – or by the extrajudicial writings, separate or dissenting opinions of its Judges, or by views expressed in academic literature.[5] On review of the judgement in [R v. Jogee; Ruddock v. The Queen (“Jogee”)], the Appeals Chamber does not find any cogent reason for departing from the Appeals Chamber’s well-established jurisprudence. The Supreme Court of the United Kingdom and Judicial Committee of the Privy Council in Jogee changed the mens rea applicable in England and Wales and the jurisdictions bound by the jurisprudence of the Privy Council for accessorial liability resulting from participation in a joint enterprise.[6] However, the form of individual criminal responsibility under the third type of joint criminal enterprise is “commission”, resulting in liability as a perpetrator, not as an accessory.[7] In this sense, Jogee is not directly on point. […]

 435. In addition, the Appeals Chamber does not find persuasive arguments that the shift in the law of England and Wales on this point warrants reconsideration and possible reversal of established appellate jurisprudence of the ICTY. Although the common law notion of liability due to participation in a joint enterprise may have been influential in the development of ICTY case law, Karadžić’s argument that the relevant principles in ICTY jurisprudence were derived from English law is not accurate. The ICTY Appeals Chamber in the Tadić case extensively examined a series of post-World War II cases from various domestic jurisdictions concerning war crimes and concluded that the relevant actus reus and mens rea for liability under the three forms of joint criminal enterprise were firmly established in customary international law.[8] With regard to the mens rea standard for the third form of joint criminal enterprise, it found that customary international law required that: (i) the accused could foresee that the crime not agreed upon in the common plan “might be perpetrated” by one or other members of the group; and (ii) the accused willingly took that risk.[9] It also clarified that, what was required was intent to pursue the common plan in addition to “foresight that those crimes outside the criminal common purpose were likely to be committed”.[10] Thus, while the ICTY Appeals Chamber in Tadić considered domestic case law in determining customary international law,[11] contrary to Karadžić’s claim, it found that the relevant principles were derived from customary international law, not the law of England and Wales.[12] A shift in the law of England and Wales and the jurisdictions bound by the Privy Council on this point therefore does not per se warrant the reversal of established appellate jurisprudence.

436. The ICTY Appeals Chamber in Tadić also assessed whether domestic legislation or case law could be relied upon as a source of international principles or rules under the doctrine of general principles of law recognized by the major legal systems of the world.[13] Its survey led it to conclude that, although the common purpose doctrine “was rooted in the national law of many States”, major domestic jurisdictions did not adopt a common approach with regard to the third form of joint criminal enterprise and that therefore “national legislation and case law cannot be relied upon as a source of international principles or rules” in this context.[14] The shift in the law in Jogee, which has not been followed in other common law jurisdictions,[15] confirms rather than undermines the conclusion in Tadić that different approaches at a domestic level reflect that domestic case law, in such circumstances, cannot be relied upon as a source of international principles.[16] The Appeals Chamber finds that the shift in Jogee does not provide a sufficient basis to revisit Tadić or the relevant mens rea standard as applied in established case law.

584. The Appeals Chamber recalls that the mens rea required for liability under the first category of joint criminal enterprise is that the accused shares the intent with the other participants to carry out the crimes forming part of the common purpose.[1] […]

585. […] [T]he Appeals Chamber recalls that, while it was necessary for the Trial Chamber to find that Karadžić shared the intent to forcibly displace the population, the Trial Chamber was not required to establish that he intended the specific acts of coercion causing the forcible removal of Bosnian Muslims.[2] […]

[…]

672. The Appeals Chamber recalls that, while an accused’s knowledge of particular crimes combined with continued participation in the execution of the common plan from which those crimes result may be a basis to infer that he or she shared the requisite intent for the crimes in question, this does not necessarily compel such a conclusion.[3] Whether intent can be inferred depends on all the circumstances of the case.[4] Further, where intent is inferred from circumstantial evidence, it must be the only reasonable inference available on the evidence.[5]

[…]

688. […] The Appeals Chamber […] recalls that, although knowledge of crimes in combination with failure to intervene to prevent them may be a basis for inferring intent, it does not compel such a conclusion.[6]

599.     […] The Appeals Chamber recalls that where a fact on which a conviction relies is established on the basis of an inference, that inference must be the only reasonable one available on the evidence.[1]

[…]

669.     The Trial Chamber observed that, when the Prosecution relied upon proof of a certain fact, such as the state of mind of the accused by inference, it considered whether that inference was the only reasonable inference that could have been made based on the evidence and that, where that inference was not the only reasonable one, it found that the Prosecution had not proved its case.[2] The Appeals Chamber finds that the Trial Chamber correctly set out the applicable law.[3]

727. […] The Appeals Chamber recalls that the intent to destroy a group as such is circumscribed by the “area of the perpetrators’ activity and control” and the “extent of [the perpetrators’] reach”.[1] Absent direct evidence of genocidal intent, the “scale of the atrocities committed” is one of several factors relevant to determining genocidal intent[2] and the fact that more members of a targeted group could have been, for example, killed, but were not, may indicate a lack of the dolus specialis required to prove such intent.[3] 

728. […] The Trial Chamber recalled that conduct not constituting acts of genocide may be considered when assessing genocidal intent.[4] Furthermore, when assessing the mens rea for genocide, the Trial Chamber extensively detailed criminal conduct committed against Bosnian Muslims and Bosnian Croats that resulted in both immediate physical destruction as well as the remaining conduct which the Prosecution argues would have impacted the long-term survival of the targeted groups.[5] The Appeals Chamber finds that the Trial Chamber acted within the bounds of the law and its discretion when contrasting the number of Bosnian Muslims and Bosnian Croats displaced versus those who were victims of conduct falling within Article 4(2) of the ICTY Statute in assessing whether genocidal intent had been established.[6]

See also para. 729.

[…]

745. […] Evidence demonstrating ethnic bias, however reprehensible, does not necessarily prove genocidal intent.[7] Utterances that fall short of expressly calling for a group’s physical destruction might constitute evidence of genocidal intent but a perpetrator’s statements must be understood and assessed in their proper context.[8] […]

684. […] [T]he Appeals Chamber recalls that it is not required that members of a joint criminal enterprise agree upon a particular form through which the forcible displacement is to be effectuated or that its members intend specific acts of coercion causing such displacement, so long as it is established that they intended to forcibly displace the victims.[1]

753. The Appeals Chamber recalls that a trial chamber is required to consider any mitigating circumstance when determining the appropriate sentence, but it enjoys considerable discretion in determining what constitutes a mitigating circumstance and the weight, if any, to be accorded to the factors identified.[1] The existence of mitigating factors does not automatically imply a reduction of sentence or preclude the imposition of a particular sentence.[2]

754. Turning to Karadžić’s submissions regarding the purported violation of the non-prosecution agreement, the Appeals Chamber observes that the Trial Chamber considered the Holbrooke Agreement[3] and Karadžić’s reliance on it for two purposes: (i) to demonstrate his good character and conduct after the conflict; and (ii) to receive a remedy for the violation of his rights resulting from his prosecution at the ICTY in alleged breach of this agreement.[4] The Trial Chamber concluded that Karadžić’s decision to step down from public office in July 1996 had a “positive influence on the establishment of peace and stability” in Bosnia and Herzegovina and the region and found this to be a mitigating factor.[5] The Trial Chamber also examined evidence that Karadžić verbally agreed to step down from public office in order to not be prosecuted by the ICTY[6] but considered his reasons for resigning irrelevant to determining mitigating factors in sentencing.[7]

755. The Appeals Chamber finds no error in this approach. The Appeals Chamber recalls that the ICTY Appeals Chamber issued a decision on 12 October 2009 finding that, even if the Holbrooke Agreement provided that Karadžić would not be prosecuted before the ICTY, “it would not limit the jurisdiction of the [ICTY], it would not otherwise be binding on the [ICTY] and it would not trigger the doctrine of abuse of process”.[8] The Appeals Chamber of the ICTY considered that a fundamental aim of international criminal tribunals is to end impunity by ensuring that serious violations of international humanitarian law are prosecuted and punished.[9] Consequently, it held that individuals accused of such crimes “can have no legitimate expectation of immunity from prosecution” and that Karadžić’s “expectations of impunity do not constitute an exception to this rule”.[10] Accordingly, the Trial Chamber correctly did not take into account any purported non-prosecution agreement when assessing the mitigating factors. The Appeals Chamber finds that Karadžić does not demonstrate any error on the part of the Trial Chamber in this respect.

759. As to Karadžić’s submissions relating to his good conduct during the war, the Appeals Chamber recalls that this may be a relevant factor in sentencing,[1] but that good character or conduct of a convicted person often carries little weight in the determination of the sentence.[2] The Appeals Chamber observes that the Trial Chamber noted Karadžić’s submission on this point, recalled the relevant jurisprudence, and found that, given the gravity of his crimes and his central involvement in them, it did not “consider his conduct during the war to be mitigating in any way”.[3] The Appeals Chamber also recalls the Trial Chamber’s findings that Karadžić’s participation was integral to crimes committed in furtherance of four joint criminal enterprises, as well as a finding, in one instance, that his “contribution was so instrumental that, without his support, the SRK’s attacks on civilians could not have in fact occurred”.[4] In light of the above, Karadžić has failed to demonstrate that the Trial Chamber erred in not giving weight to his submission of good conduct during the war in mitigation of his sentence.

Pages 2, 3:

RECALLING that, pursuant to Rule 3(F) of the Rules, if a party is required to take any action within a specified time after the filing or service of a document by another party, and pursuant to the Rules, that document is filed in a language other than one of the working languages of the Mechanism, time shall not run until the party required to take action has received from the Registrar a translation of the document into one of the working languages of the Mechanism;

RECALLING FURTHER that, pursuant to paragraph 12 of the Practice Direction, where a party applies to present additional evidence pursuant to Rule 142 of the Rules, the “relevant documents and exhibits, where applicable, shall be translated into one of the languages of the Mechanism”;

[…]

CONSIDERING that, pursuant to Rule 3(F) of the Rules, the time for the Prosecution to respond to the relevant Rule 142 Motions should not run until it has received a translation of the Affected Annexes into one of the working languages of the Mechanism;

CONSIDERING FURTHER that it is in the interests of justice and effective case management to synchronise the briefing schedule for the Rule 142 Motions;[1]

FINDING, therefore, that it is justified that the time for the filing of the Prosecution’s response(s), if any, to the Rule 142 Motions shall run from the date of service on the Prosecution of the final translation of the Affected Annexes;

[…]