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]

35. Following the Prosecution’s decision not to pursue the second sub-ground of its first ground of appeal,[1] the Trial Chamber’s finding to the effect that the term “civilian” in Article 5 of the Statute has to be interpreted in accordance with Article 50 of Additional Protocol I and therefore does not include combatants or persons hors de combat,[2] remains unchallenged. This finding was based, inter alia, on the Appeals Chamber’s well-established jurisprudence,[3] reiterated in the Martić Appeal Judgement,[4] that the notion of “civilian” under Article 5 of the Statute excludes persons hors de combat. In Blaškić, the Appeals Chamber found:

Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law.[5]

Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.[6]

In Kordić and Čerkez, the Appeals Chamber found that “Article 50 of Additional Protocol I contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law”.[7] In Galić, the Appeals Chamber reiterated that “[e]ven hors de combat, however, [combatants] would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4(A)(1) of the Third Geneva Convention; as such, they are not civilians in the context of Article 50, paragraph 1, of Additional Protocol I”.[8] The notion of “civilian” under Article 5 of the Statute is defined through the above provisions of the law of armed conflict.[9] Whereas under Article 3 of the Statute the situation of a victim at the time of the offence may be relevant to its status,[10] the notion of “civilian” under Article 5 of the Statute, as correctly noted by the Trial Chamber,[11] is not determined by the position of the victims at the time of the commission of the underlying crime.[12]

36. Pursuant to this jurisprudence and in light of the facts of the case, the Trial Chamber found that the victims were predominantly non-civilians.[13] However, the Appeals Chamber has found that the Trial Chamber erred in law in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute. Accordingly, the Appeals Chamber must determine whether this error has the effect of invalidating the Trial Judgement. To that end and in light of the finding in the Martić Appeal Judgement that “[u]nder Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population”,[14] the Appeals Chamber will assess whether in the instant case all other necessary conditions to enter a conviction for crimes against humanity had been met.

413. In light of the foregoing, the Appeals Chamber finds that there was a discernible error in the Trial Chamber’s exercise of discretion in imposing the sentence.[1] Even though the Trial Chamber did not err in its factual findings, considering the above findings of the Trial Chamber on the gravity of the crimes, and in particular the consequences of the torture upon the victims and their families, the particular vulnerability of the prisoners, and the very large number of victims, the Appeals Chamber finds that the sentence of five years’ imprisonment is so unreasonable that it can be inferred that the Trial Chamber must have failed to exercise its discretion properly.[2] The Appeals Chamber thus finds that a five years’ imprisonment sentence does not adequately reflect the level of gravity of the crimes committed by Šljivančanin.

10. Rule 15(B) of the Rules prescribes a two-stage process for making a request to disqualify a Judge which consists of (i) an application to the Presiding Judge of the Trial Chamber seized with the proceedings, and (ii) a de novo determination by the Bureau.[1] The Appeals Chamber’s consideration of matters relating to disqualification is limited to an appeal on the merits of the case or, as here, where the issue properly arises in an interlocutory appeal certified by the Trial Chamber.[2]

11. Mr. Nzirorera has not filed a request to disqualify Judge Byron in accordance with Rule 15(B) of the Rules. Rather, he sought disclosure of material directly from the concerned Trial Chamber in order to assess the merits of making such a claim.[1] While the Statute and Rules do not explicitly provide for the disclosure of material from a Judge in connection with a request for disqualification, they also do not prevent a party from requesting disclosure of information in this regard. The Appeals Chamber recalls that a presumption of impartiality, which cannot be easily rebutted, attaches to the Judges of the Tribunal.[2] Bearing this in mind, a request for disclosure must specifically identify the material or information in the possession of the Judge and make a prima facie showing that it would demonstrate actual bias or the appearance of bias.