11. With respect to the material listed in categories (b) and (d) of the Motion, namely, all inter partes confidential filings and submissions, all confidential Trial Chamber and Appeals Chamber decisions, and all closed session hearing transcripts, the Appeals Chamber recalls that it is incumbent on the party seeking access to avoid engaging in a “fishing expedition”.[1] Nonetheless, it finds that the Motion does not amount to such abuse. The Appeals Chamber finds that Karadžić will be able to better understand and make use of confidential evidentiary material in the Dragomir Milošević case, such as exhibits and testimony transcripts, if he has access to the filings, submissions, decisions and hearing transcripts relating to that material.[2] The Appeals Chamber recalls that the applicable standard is only that there be a “good chance” that the confidential materials will materially assist the case of the party seeking access and that it does not require “accused seeking access to inter partes confidential materials in other cases to establish a specific reason that each individual item is likely to be useful”.[3] The Appeals Chamber further recalls that  the principle of equality of arms supports giving the applicant a similar chance to understand the proceedings and evidence and evaluate their relevance to his own case, in common with the Prosecution which has access to all inter partes filings.[4] Accordingly, once an accused has been granted access to confidential exhibits and confidential or closed session testimonies of another case before the Tribunal, he should not be prevented from accessing filings, submissions, decisions and hearing transcripts which may relate to such confidential evidence. The Appeals Chamber therefore grants Karadžić’s request for access to the material listed in categories (b) and (d) of the Motion. It notes, however, that, as is the practice of the Tribunal,[5] the Prosecution and Milošević will have the opportunity to apply to the Appeals Chamber for any additional protective measures or redactions, as detailed below, should they deem it necessary.

The Prosecution requested that it be able to withhold material from Karadžić that may relate to protected witnesses in Dragomir Milošević who may be called in the Karadžić case and for whom delayed disclosure may be justified. The Prosecution therefore suggested that the Registry withhold access to this material in accordance with the time frames set out in such orders as may be issued by the Karadžić Trial Chamber or, at least, until the Prosecution is required to file its witness list in the Karadžić case. It further submitted that, should it subsequently decide to not call one or more protected witnesses from the Dragomir Milošević case in the Karadžić case, it will notify the Registry, which may allow access to the materials relating to those witnesses. The Appeals Chamber considered that the particular time frames of the Karadžić case favoured the approach suggested by the Prosecution and held:

14. […] The Appeals Chamber considers that the Trial Chamber seized of the Karadžić case is best placed to evaluate, pursuant to Rule 69 of the Rules, whether exceptional circumstances exist to warrant delayed disclosure of the materials related to Prosecution witnesses. Considering the fact that the Prosecution was to provide its witness list by 18 May 2009, the Appeals Chamber deems that, in these circumstances, it is in the interests of judicial expediency to adopt the suggested approach. Accordingly, the Appeals Chamber allows the Prosecution to withhold the material until the Trial Chamber seized of the Karadžić case decides on the Prosecution’s requests for delayed disclosure of inter partes confidential material from the Dragomir Milošević case. The Appeals Chamber holds that the Prosecution will have to file any such requests for delayed disclosure before the Trial Chamber seized of the Karadžić case by 26 May 2009.

In paragraphs 15-17, the Appeals Chamber restated its usual approach concerning access to Rule 70 material and other protective measures.

31. Time and resource constraints exist in all judicial institutions and it is legitimate for a Trial Chamber to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time.[1] However, the Appeals Chamber stresses that these considerations should never impinge on the rights of the parties to a fair trial.[2]

See also paras 22-24, 27 above.

In the present case, the Appeals Chamber was seized of an appeal against a Trial Chamber’s decision in review of the Registrar’s decision.

9. The Prosecution raised the issue of whether the Appeals Chamber should be seised of this appeal by pointing to the Blagojević Appeal Decision which, in its submission, suggests that an appeal of a judicial review would “amount to one review too many”.[1] However, while the Appeals Chamber in Blagojević suggested that a review by the Appeals Chamber of the Trial Chamber’s judicial review of the Registrar’s decision amounted to an “additional” review,[2] the Appeals Chamber in that case nonetheless proceeded to undertake the judicial review on the merits thereby indicating that it considered itself to be properly seised of the appeal.[3] Similarly, in this case the Appeals Chamber considers that it is properly seised of this appeal of the Trial Chamber’s judicial review.

11. Turning to the standard of review to be applied to an appeal of a judicial review of an administrative decision, the Appeals Chamber notes that past appeals of judicial reviews have not always clearly stated the standard of review applicable on a second review of an administrative decision.[4] However, it recalls that decisions relating to the general conduct of trial proceedings are matters that fall within the discretion of the Trial Chamber.[5] In order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber has committed a “discernible error” resulting in prejudice to that party.[6] The Appeals Chamber will only overturn a Trial Chamber’s discretionary decision where it is found to be (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.[7]

16. The Krajišnik Appeal Decision recognised that “[t]o the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates”, it “should adequately reimburse the legal associates for their coordinating work and for related legal consultation.”[1] However, it concluded that “[s]uch funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused)”.[2] While the Krajišnik Appeal Decision does contemplate the provision of legal consultation by a legal associate, it makes clear that this is not to be equated with the comprehensive work of counsel which is to be undertaken by the accused himself. The mere fact that a legal associate may provide legal consultation does not necessarily imply that he or she will undertake the functions and tasks for which counsel is normally responsible. Indeed, much of the work undertaken by legal assistants in a regular defence team, such as researching and preparing memoranda on legal issues, could fall within the meaning of legal consultation yet their role is to support and assist the assigned counsel.

17. While the provision of legal consultation would normally imply that a legal associate be either admitted to practice law in a state or be a university professor of law, it does not a priori require that the legal associate possess the full expertise and experience required under Rule 45 of the Rules. Indeed, the Krajišnik Appeal Decision stated that “[t]he Registry may impose additional criteria on designated legal associates who seek funding from the Tribunal (comparable to the Registry’s ability to require that Tribunal-funded counsel meet the requirements of Rule 45 of the Rules as well as of Rule 44 of the Rules)”[3] but it did not require the Registry to do so.

18. The Remuneration Scheme which followed from the Krajišnik Appeal Decision does in fact require that legal associates be “a member of the Association of Defence Counsel Practicing before the ICTY” (“ADC”).[4] Such membership requires that applicants “possess at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings.”[5] On its face this requirement implies that a legal associate must possess experience comparable to that of assigned counsel, thereby suggesting that if this is a comparable minimum experience requirement, such a legal associate should in fairness be compensated comparably to an assigned counsel. However, experience alone does not determine the rate of pay; the functions and tasks undertaken are also important as is the level of responsibility assumed. For example, the Appeals Chamber notes that the Directive on the Assignment of Defence Counsel contemplates the possibility of legal assistants with 10 years or more of experience.[6] A legal assistant with such experience could thus be considered to have comparable experience to counsel but is not paid at the same rate of pay as counsel because he or she fulfils a different function on the defence team.

20. In any event, contrary to the Appellant’s arguments, the rationale for the ADC membership requirement does not appear to be a reflection on the type of work and tasks expected to be undertaken by legal associates. As noted by the Trial Chamber, this is further supported by the fact that the Registrar has demonstrated flexibility in the application of the Remuneration Scheme, in particular with regard to the qualification requirements under of the Remuneration Scheme.[7]

23. The Krajišnik Appeal Decision is not explicit as to whether it was referring to the volume or the rate of pay when it concluded that legal associates’ pay “should not be comparable to that paid to counsel for represented accused” and left open what would constitute adequate reimbursement.[8] However, the Appeals Chamber recalls that it has already concluded that there was no error in the Trial Chamber’s finding that the Krajišnik Appeal Decision did not require the Registrar to fund “high-level” assistants[9] particularly given the Krajišnik Appeal Decision’s finding that “where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance [...]”.[10] With regard to the Appellant’s submission that “even if an accused assumes full responsibility for written filings, there are hundreds of other tasks which […] require the expertise of experienced lawyers”[11], the Appeals Chamber considers that the Krajišnik Appeal Decision’s reference to the Appellant drafting his own written filings was merely an example of the many tasks he is expected to undertake himself given his choice to be self-represented. While the Appeals Chamber acknowledges that by reason of his detention there are certain tasks normally undertaken by counsel which he will not be able to complete himself, in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel. Acknowledgement of an appellant’s disadvantage based on his detention can reasonably be understood as one of the reasons for the provision of legal associates, but should not be confused with the role of counsel. In light of these findings, the Appeals Chamber concludes that the Appellant has failed to show that it was unreasonable for the Trial Chamber to conclude based on the Krajišnik Appeal Decision that the Registry was not required to pay legal associates at the same rate as counsel for a represented accused.

134. The Appeals Chamber recalls that while individual criminal responsibility generally requires the commission of a positive act, this is not an absolute requirement.[1] In particular, the Appeals Chamber has previously found that “the omission to act where there is a legal duty to act can lead to individual criminal responsibility under Article 7(1) of the Statute”.[2] Moreover, the Appeals Chamber has consistently found that, in the circumstances of a given case, the actus reus of aiding and abetting may be perpetrated through an omission.[3]

135. Accordingly, the Appeals Chamber finds that the Trial Chamber properly considered aiding and abetting by omission as a recognised mode of liability under the International Tribunal’s jurisdiction.[4]

49. At the outset, the Appeals Chamber recalls that to enter a conviction for aiding and abetting murder by omission, at a minimum, all the basic elements of aiding and abetting must be fulfilled.[1] In this regard, the Appeals Chamber in Orić recalled that “omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act”.[2] The actus reus of aiding and abetting by omission will thus be fulfilled when it is established that the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime and had a substantial effect on the realisation of that crime.[3] The Appeals Chamber recalls that aiding and abetting by omission implicitly requires that the accused had the ability to act, such that there were means available to the accused to fulfil his duty.[4] Meanwhile, the required mens rea for aiding and abetting by omission is that “[t]he aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal”.[5] As the Appeals Chamber held in the  Simić case,

it is not necessary that the aider and abettor knows either the precise crime that was intended or the one that was, in the event, committed. If he is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abetter.[6]

[…].

146. As Šljivančanin argues,[7] the Appeals Chamber has never set out the elements for a conviction for omission in detail.[8] In the Orić case, the Appeals Chamber considered the Trial Chamber’s findings in order to determine whether Atif Krdžić, Naser Orić’s subordinate, had been found responsible for aiding and abetting by omission.[9] It concluded that no such finding had been entered as the issue of whether Naser Orić’s subordinate had incurred criminal responsibility had not been resolved by the Trial Chamber.[10] In this context, with regard to the mode of liability of aiding and abetting by omission, the Appeals Chamber held that:

at a minimum, the offender’s conduct would have to meet the basic elements of aiding and abetting. Thus, his omission must be directed to assist, encourage or lend moral support to the perpetration of a crime and have a substantial effect upon the perpetration of the crime (actus reus). The aider and abettor must know that his omission assists in the commission of the crime of the principal perpetrator and must be aware of the essential elements of the crime which was ultimately committed by the principal (mens rea).[11]

Accordingly, the Appeals Chamber in Orić acknowledged that the basic elements of aiding and abetting apply notwithstanding whether this form of liability is charged as “omission”. The mens rea and actus reus requirements for aiding and abetting by omission are the same as for aiding and abetting by a positive act.[12] The critical issue to be determined is whether, on the particular facts of a given case, it is established that the failure to discharge a legal duty assisted, encouraged or lent moral support to the perpetration of the crime, and had a substantial effect on it. In particular, the question as to whether an omission constitutes “substantial assistance” to the perpetration of a crime requires a fact based enquiry.[13]

93. [T]he Appeals Chamber considers that even though Šljivančanin no longer had de jure authority over the military police deployed at Ovčara, had he ordered the military police not to withdraw, these troops may well have, in effect, obeyed his order to remain there, considering he had been originally vested with the authority for the entire evacuation of the Vukovar Hospital and entrusted with responsibility for protecting the prisoners of war. In particular, Šljivančanin could have informed the military police deployed at Ovčara that Mrkšić’s order was in breach of the overriding obligation under the laws and customs of war to protect the prisoners of war, and thus constituted an illegal order.

94. Indeed, issuing an order contrary to Mrkšić’s to the military police of the 80 mtbr was a course of action that would have required Šljivančanin to go beyond the scope of his de jure authority, which had been effectively removed by virtue of Mrkšić withdrawal order.[1] Nonetheless, the illegality of Mrkšić’s order required [ljivančanin to do so. To further support this conclusion, the Appeals Chamber recalls the analysis in the Čelebići Trial Judgement which implies that in the context of preventing the commission of a war crime, an officer may be expected to act beyond the strict confines of his de jure authority:

Likewise, the finding in the High Command case that a commander may be held criminally liable for failing to prevent the execution of an illegal order issued by his superiors, which has been passed down to his subordinates independent of him, indicates that legal authority to direct the actions of subordinates is not seen as an absolute requirement for the imposition of command responsibility. Similarly, the finding in the Toyoda case, whereby the tribunal rejected the alleged importance of what it called the "theoretical" division between operational and administrative authority, may be seen as supporting the view that commanders are under an obligation to take action to prevent the commission of war crimes by troops under their control despite a lack of formal authority to do so. An officer with only operational and not administrative authority does not have formal authority to take administrative action to uphold discipline, yet in the view of the tribunal in the Toyoda case; "[t]he responsibility for discipline in the situation facing the battle commander cannot, in the view of practical military men, be placed in any hands other than his own.”[2]

Although the Trial Chamber in Čelebići discussed this in the context of superior responsibility, the Appeals Chamber considers that the principle that an officer may be required, within the limits of his capacity to act, to go beyond his de jure authority to counteract an illegal order is equally applicable to the present case.

See also footnote 331:

It is a principle of international humanitarian law that subordinates are bound not to obey manifestly illegal orders or orders that they knew were illegal. See Hostage Case (United States v. Wilhelm List et al., Trials of War Criminals, Vol. XI, p. 1236): “[T]he general rule is that members of the armed forces are bound to obey only the lawful orders of their commanding officers and they cannot escape criminal liability by obeying a command which violates international law and outrages fundamental concepts of justice”. See also Erdemović 1996 Sentencing Judgement, para. 18 (“Although the accused did not challenge the manifestly illegal order he was allegedly given, the Trial Chamber would point out that according to the case-law referred to, in such an instance, the duty was to disobey rather than to obey.”), fn. 12 (“Trial of Rear-Admiral Nisuke Masuda and four others of the Imperial Japanese Navy, Jaluit Atoll Case, U.S. Military Commission, U.S. Naval Air Base, Kwajalein Island, Kwajalein Atoll, Marshall Islands, 7-13 December 1945, Case No. 6, L.R.T.W.C., Vol. I, pp. 74-76, pp. 79-80. See also Trial of Wilhelm List and Others, U.S. Military Tribunal, Nuremberg, 8 July 1947-19 February 1948, L.R.T.W.C., Case No. 47, Vol. VIII, pp. 50-52 […].); Mrđa Sentencing Judgement, para. 67 (“As to the related issue of superior orders, Article 7(4) of the Statute states that ‛[t]he fact that an accused person acted pursuant to an order of a government or of a superior […] may be considered in mitigation of punishment if the Tribunal determines that justice so requires.’ […] [T]he orders were so manifestly unlawful that Darko Mrđa must have been well aware that they violated the most elementary laws of war and the basic dictates of humanity. The fact that he obeyed such orders, as opposed to acting on his own initiative, does not merit mitigation of punishment.”).

151. The Appeals Chamber recalls that it has previously recognised that the breach of a duty to act imposed by the laws and customs of war gives rise to individual criminal responsibility.[1] The Appeals Chamber further recalls that Šljivančanin’s duty to protect the prisoners of war was imposed by the laws and customs of war.[2] Thus, the Appeals Chamber considers that Šljivančanin’s breach of such duty gives rise to his individual criminal responsibility. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law.

41. The Appeals Chamber recalls that once the requirement of a widespread or systematic attack against a civilian population is fulfilled, there must be a nexus between the acts of the accused and the attack itself. The Appeals Chamber considers that, as correctly noted by the Prosecution,[1] the requirement that the acts of an accused must be part of the “attack” against the civilian population does not, however, require that they be committed in the midst of that attack: a crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack.[2] Hence, the fact that the crimes committed in Ovčara took place after the widespread and systematic attack against the civilian population of Vukovar cannot in itself be determinative of whether the nexus requirement was met. Such a nexus consists of two elements:

(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.[3]

Thus, to convict an accused of crimes against humanity, it must be proven that his acts were related to a widespread or systematic attack against a civilian population and that he knew that his acts were so related. Such an assessment will be made on a case-by-case basis. For example, having considered the context and circumstances in which an act was committed, an act may be so far removed from the attack that no nexus can be established (so called “isolated act”) and hence cannot qualify as a crime against humanity.[4]

42. In the present case, after reviewing the evidence before it, the Trial Chamber concluded that the perpetrators of the crimes committed against the prisoners in Ovčara selected the individuals based on their involvement in the Croatian armed forces. The Trial Chamber found:

While there may have been a small number of civilians among the 194 identified murder victims charged in the Indictment, in the Chamber’s finding, the perpetrators of the offences against the prisoners at Ovčara on 20/21 November 1991 charged in the Indictment, acted in the understanding that their acts were directed against members of the Croatian forces.”[5]

The Appeals Chamber concurs with the Trial Chamber’s assessment of the evidence in the trial record. The crimes in Ovčara were directed against a specific group of individuals,[6] the victims of the crimes were selected based on their perceived involvement in the Croatian armed forces,[7] and as such treated “differently from the civilian population”.[8] The Prosecution’s arguments that the crimes occurred two days after the fall of Vukovar, that Ovčara was located within the geographical scope of the attack against Vukovar, that the perpetrators of the crimes in Ovčara also participated in the attack against the civilian population in Vukovar, and that the perpetrators of the crimes “harboured intense feeling of animosity towards persons they perceived as enemy forces,[9] do not undermine the Trial Chamber’s findings, unchallenged by the Parties, that the perpetrators of the crimes in Ovčara acted in the understanding that their acts were directed against members of the Croatian armed forces. The fact that they acted in such a way precludes that they intended that their acts form part of the attack against the civilian population of Vukovar and renders their acts so removed from the attack that no nexus can be established.

43. The Appeals Chamber finds that the requirement of a nexus between the acts of the accused and the attack itself was not established and that, in the absence of the required nexus under Article 5 of the Statute between the crimes committed against the prisoners at Ovčara and the widespread or systematic attack against the civilian population of Vukovar, the crimes committed cannot be qualified as crimes against humanity. Thus, even though the Trial Chamber erred in law by adding a requirement that the victims of the underlying crimes under Article 5 of the Statute be civilians, the Appeals Chamber concurs with the Trial Chamber – albeit for different reasons – that the “jurisdictional prerequisites of Article 5 of the Statute have not been established”.[10]