9. The Appeals Chamber recalls that in granting extensions of time for the filing of appellants’ notices of appeal, the Pre-Appeal Judge in the present case held, inter alia, that:

[…] Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules […][1]

10. The Appeals Chamber considers that pending the receipt of the translation of the Trial Judgement, Pavković has been trying to understand the latter with the assistance of his defence team so that he can effectively contribute to the Appeal Brief.[2] Pavković asserts that the requested amendment of his Notice of Appeal became apparent to his defence team only as a result of this review process.[3] The Appeals Chamber notes that the variation sought concerns an alleged error of fact in the Trial Chamber’s finding that as a member of the Joint Command, Pavković “by-passed the chain of command.”[4] As such, it can be reasonably inferred that Pavković’s understanding of the Trial Judgement has been central to the identification of the alleged error, and that the unavailability of the B/C/S translation of the Trial Judgement at the time the Notice of Appeal was filed had prevented him from instructing his counsel to that effect.[5] The Appeals Chamber is therefore satisfied that good reason for not including the alleged error in the Notice of Appeal has been shown.

Cf. Ojdanić Decision on Amending Notice of Appeal, refusing to recognize good cause for not including the newly alleged error of law in the original notice of appeal.

17. Moreover, the Appeals Chamber notes that the Motion contains no arguments as to the conditions of admissibility of additional evidence on appeal recalled above. The general assertion that the proffered material is relevant to an argument raised on appeal and is likely to prove a fact that the Trial Chamber considered immaterial for the conviction, does not suffice for these purposes. […]

See remainder of para. 17, para. 21.

17. […] The Appeals Chamber finds that Milošević’s Counsel’s failure to at least attempt to satisfy any of the requirements of Rule 115 of the Rules, especially after his previous motions filed under the same provision were rejected for similar reasons,[1] amounts to professional negligence. The Appeals Chamber thus finds the Motion frivolous in the sense of Rule 73(D) of the Rules[2] and issues a warning to Milošević’s counsel under Rule 46(A) of the Rules.

[…]

21. For the foregoing reasons, the Appeals Chamber DISMISSES the Motion in its entirety, FINDS the Motion to be frivolous and IMPOSES A SANCTION against Milošević’s Counsel, pursuant to Rule 73(D) of the Rules, in the form of non-payment of fees associated with the Motion.

15. […] The Appeals Chamber recalls that “further analysis undertaken over the course of time”[1] cannot, in and of itself, constitute good cause for an amendment as this would effectively amount to allowing the appellant to “restart the appeal process at will.”[2] In addition, the Motion fails to explain how the newly alleged error resulted from Ojdanić’s personal insight. The alleged error concerns an issue of law and Ojdanić’s counsel is principally responsible for the assessment of potential legal errors in the Trial Judgement.[3] The Appeals Chamber therefore finds that Ojdanić fails to demonstrate good cause for not having alleged this error in his Notice of Appeal. Rather, the Appeals Chamber finds that the failure to present it in the Notice of Appeal constitutes inadvertence or negligence on the part of Ojdanić’s counsel.[4]

Cf. Pavković Decision on First Amended Notice of Appeal, recognizing the existence of good cause for a newly alleged error of fact.

16. In the circumstances of the present case, the Appeals Chamber observes that if Ojdanić indeed prevails on the merits of his argument, this would lead to the conclusion that the Trial Chamber convicted him on the basis of a legally erroneous interpretation of the mens rea element of crimes against humanity, which could have a direct implication on his criminal responsibility. Without pronouncing itself on the merits of the appeal, the Appeals Chamber concurs with Ojdanić’s submission that the amendment sought is “of substantial importance to the success” of his appeal, such that disallowing it would be prejudicial. It is therefore in the interests of justice that the proposed amendment be granted. The Appeals Chamber is further cognisant of the fact that none of the parties opposed the requested variation and that allowing for such variation would not unduly interfere with the expeditious administration of justice.

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

29.     The Appeals Chamber considers that in light of the specific circumstances of the case, the prolongation of Ntabakuze’s appeal by approximately ten months does not amount to an undue delay capable of causing serious prejudice. The trial proceedings were highly complex, encompassing a vast amount of alleged crimes in different locations, and corresponding evidence assessed at trial. All three co-Appellants were high-ranking military staff and were convicted for a number of crimes for which they received substantial sentences. It can be expected that the Appeals Chamber will have to assess a large amount of different grounds of appeal of all co-Appellants, encompassing a variety of issues.

30.     The Appeals Chamber further considers that Ntabakuze fails to substantiate how the delay could infringe on his right to make his appeal submissions adequately. Likewise, he fails to demonstrate how the fact that the Prosecution would de facto have 11 months to respond instead of the statutory 40 days would cause him prejudice serious enough to warrant the severance of his case.

42.     The Appeals Chamber finds that it was open to the Prosecution to rely on paragraph (C)(1)(b) of the Practice Direction for the determination of the scheduling deadline. The Appeals Chamber agrees that paragraph (C)(1)(b) of the Practice Direction authorizes the Prosecution to elect to file a consolidated response brief in cases involving a plurality of co-accused without first obtaining leave from the Appeals Chamber to do so.[5] The finding of the Appeals Chamber in Hadžihasanović was, contrary to Ntabakuze’s contention, of a general nature and is further reflected in the Pre-Appeal Judge’s express finding that “under the Practice Direction on the Length of Briefs and Motions on Appeal of 8 December 2006, the Prosecution may elect to file a consolidated brief in response to all three appeal briefs” and that the time-limit for the filing of such brief would only run from the filing date of the last appeal brief in this case.[6] The wording of paragraph (C)(1)(b) specifies and further defines the provision of Rule 112(A) of the Rules in the event of a plurality of accused. […]

44.     Rules 108, 111, and 112 of the Rules establish an equilibrated system for the appellant and the respondent regarding the timetable for filing their submissions, according an appropriate amount of time to each party. This filing schedule is envisaged to facilitate and expedite the Appeals Chamber’s assessment of the parties’ submissions in order to guarantee swift and fair appeal proceedings. If the briefing schedule pursuant to paragraph (C)(1)(b) of the Practice Direction were to be maintained in the present case, several months would lapse without any progress on Ntabakuze’s appeal. Additionally, this would leave the Prosecution with approximately 11 months to respond to Ntabakuze’s appeal brief instead of 40 days as prescribed under Rule 112(A) of the Rules, which would further contradict the filing schedule prescribed in the Rules.

46.     The Appeals Chamber further considers that an earlier submission of the Prosecution’s response brief will add to the enforcement of equality of arms, as enshrined in Article 20(4) of the Statute. Therefore, the Appeals Chamber finds that it is in the interests of justice to adjust the briefing schedule to correspond to the specific circumstances of this case. Moreover, this will allow the Appeals Chamber to expedite the assessment of Ntabakuze’s appeal as well as the appeals of his co-Appellants, which, as a result, will have a positive effect on the setting of the appeals hearing date and the appeals proceedings as a whole.

The Appeals Chamber emphasised that the considerations in relation to the Completion Strategy must be without impact upon the right to fair trial.

38.     Lastly, the Appeals Chamber dismisses Ntabakuze’s argument that a severance of his case would be supported by the “Security Council’s Completion Strategy”.[1] The Appeals Chamber recalls that although the “Completion Strategy” is reflected in Security Council Resolutions,[2] considerations of judicial economy may not impinge on the right of the parties to a fair trial.[3] Moreover, the “Completion Strategy” has no impact whatsoever upon a Chamber’s duty to ensure that the proceedings before it are conducted in a fair and expeditious manner.

61. The right to cross-examination is not absolute.[1] The Appeals Chamber has held that "as a matter of principle nothing bars the admission of evidence that is not tested or might not be tested through cross-examination."[2] Nevertheless, the Appeals Chamber has recognized that "[u]nacceptable infringements of the rights of the defence [...] occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial."[3] Therefore, "[i]t would run counter to the principles of fairness [...] to allow a conviction based on evidence of this kind without sufficient corroboration."[4]

62. Whether untested evidence is sufficiently corroborated is necessarily a fact specific inquiry and varies from case to case. Accordingly, the Appeals Chamber declines to impose any specific legal requirement as to the source of the corroboration. Therefore, the Appeals Chamber can identify no error of law in the above quoted legal principles adopted by the Trial Chamber for assessing untested evidence. The main question, however, is whether the conviction rests decisively on untested evidence. Furthermore, it follows from jurisprudence that not all evidence characterized as hearsay can be considered untested or unreliable.[5] Indeed, as a matter of law, it is permissible to base a conviction on hearsay or circumstantial evidence, but caution is warranted in such circumstances.[6]

Count 11 of the operative Indictment in this case charges the Appellant with hostage taking of UN personnel as a war crime under common Article 3 of the Geneva Conventions of 1949.[1] The Appellant requested that Count 11 be dismissed as defective. He claimed that the allegations in Count 11 relate to Prisoners of War (“POWs”) while the scope of application of common Article 3 to international armed conflicts is limited to the hostage-taking of civilians. In particular, the Appellant observed that the Third Geneva Convention does not include an express prohibition of hostage taking of POWs. He argued that this lacuna could not be fulfilled by considering that common Article 3 is also applicable to international armed conflicts. In the Appellant’s view, the Third Geneva Convention should be considered as lex specialis to common Article 3, thus excluding the applicability of the crime of hostage-taking to POWs. The Appeals Chamber dismissed the Appeal in light of the following considerations.

21. First, the Appeals Chamber considers that the prohibition of hostage-taking cannot be considered as extraneous to the Third Geneva Convention. As the Prosecution correctly points out, the protection of POWs is covered by an extensive net of provisions within the Third Geneva Convention which, read together, lead to the conclusion that any conduct of hostage-taking involving POWs could not but be in violation of the Third Geneva Convention. Although not per se conclusive, the analysis of the drafting of the Geneva Conventions further substantiates this consideration.[2] The main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of common Article 3, which expresses the shared principles which govern the Conventions and establishes a minimum set of mandatory rules in non-international armed conflict.[3]

22. Common Article 3 clearly states that the conduct listed in subparagraphs (a) to (d) of paragraph 1, including in subparagraph (b) the “taking of hostages”, is prohibited “with respect to the above-mentioned persons”, that is “[p]ersons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed ‘hors de combat’ [...]”. In light of the clear definition of the reach of this paragraph, which according to its plain wording applies without exception to all of the prohibitions listed in subparagraphs (a) to (d) of paragraph 1, the Appeals Chamber considers that the Appellant’s argument that the prohibition of hostage-taking in common Article 3 “is no other than the prohibition of civilian hostage-taking in the Fourth Geneva Convention”[4] is unsubstantiated. Conversely, common Article 3 clearly refers the prohibition on taking hostage of any person taking no active part in the hostilities.[5]  

25. In any event, the Appeals Chamber recalls that the well-established jurisprudence of the Tribunal confirms that, under customary international law, the protections enshrined in common Article 3 apply in both international and non-international armed conflicts.[6] The Appeals Chamber considers that the Appellant fails to provide any sensible argument suggesting an exception to, or limitation on, the prohibition on hostage-taking for a particular category of persons in a particular type of conflict. Specifically, the Appeals Chamber considers the Applicant’s attempt to read the Tadić Decision on Jurisdiction as only justifying the extension of protections from the framework of international armed conflicts to the context of non-international armed conflict, and not vice versa, as without merit.[7] The Applicant only focuses on one part of the reasoning in the Tadić Decision on Jurisdiction, unduly disregarding its ultimate conclusion. In particular, of the entire Appeals Chamber’s discussion on the existence of customary rules of international law governing armed conflicts, the Appellant fixates on the Appeals Chamber’s observation of a tendency towards the blurring of the distinction between international and non-international armed conflicts in a certain historical moment. However, the Appellant fails to appreciate the full meaning of the Appeals Chamber’s conclusive finding that “at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant”,[8] which unequivocally refers to all of the rules contained in common Article 3, including the prohibition of hostage-taking.