155. Relying on the Appeals Chamber Judgements in Orić and Blaškić, Šljivančanin submits that, at a minimum, aiding and abetting by omission requires an elevated degree of “concrete influence”.[1] He argues that this provides an objective standard for establishing whether his omission had a “substantial effect” on the mistreatment of prisoners[2] and that the contribution must be considered from the perspective of the perpetrators of the crime, not the omission itself.[3] Šljivančanin also appears to propose that the failure to act must have a “decisive effect” on the commission of the crime,[4] but fails to elaborate this point. The Prosecution responds that there is no indication that the “concrete influence” standard is in fact any higher than “substantial effect” which is the correct standard,[5] and that Šljivančanin’s reliance on the Orić case is misplaced, since in that case the Appeals Chamber used the term “concrete influence” in the context of its finding that aiding and abetting by omission requires more than a simple correlation between the omission and the crimes.[6] The Prosecution submits that to prove that an omission had a substantial effect on the crime, it must be shown that the crime would have been substantially less likely to have occurred had the accused acted.[7]

156. The Appeals Chamber recalls that, in the Orić case, it found that the actus reus for “commission by omission requires an elevated degree of ‘concrete influence’”,[8] as distinct from the actus reus for aiding and abetting by omission, the latter requiring that the omission had a “substantial effect” upon the perpetration of the crime.[9] The Appeals Chamber finds no merit in Šljivančanin’s attempt to conflate the substantial contribution requirement with the notion of an elevated degree of influence,[10] and notes that Šljivančanin himself does not provide any further support for his submission on this issue, beyond the vague statement that an “objective criteria” for assessing “substantial contribution” is warranted on the particular facts of his case.[11] Accordingly, Šljivančanin’s argument is dismissed.

27. The Trial Chamber was aware that the International Tribunal had not yet addressed the issue of whether the individual victims of the underlying crimes under Article 5 of the Statute must be civilians.[1] To support its above conclusion, it sought to rely on the finding in the Blaškić Appeal Judgement that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[2] However, as explained below, this finding cannot lend support to the conclusion that the underlying crimes under Article 5 of the Statute can only be committed against civilians.

28. The Appeals Chamber in Blaškić first stated that the Trial Chamber “correctly recognised that a crime against humanity applies to acts directed against any civilian population”.[3] It then addressed Tihomir Blaškić’s argument that he never ordered attacks directed against a civilian population but that the casualties were the unfortunate consequence of an otherwise legitimate and proportionate military operation.[4] In this context, the Appeals Chamber found that the Trial Chamber erred when it stated that “the specificity of a crime against humanity results not from the status of the victim but the scale and organisation in which it must be committed”.[5] It further found that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[6] The Appeals Chamber’s finding was therefore concerned with the issue of whether legitimate military targets were attacked and was not seized of the question of whether the victims of the underlying crimes under Article 5 of the Statute must be civilians. Accordingly the Appeals Chamber’s finding is to be understood as only reflecting the jurisdictional requirement of Article 5 of the Statute that crimes against humanity must be committed as part of a widespread attack against a civilian population.[7] It cannot be understood as implying that the underlying crimes under Article 5 of the Statute can only be committed against civilians as the Trial Chamber did in the present case.

29. The Appeals Chamber recently confirmed that “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”.[8] Further, it held that under customary international law, persons hors de combat can also be victims of crimes against humanity, provided that all the other necessary conditions are met.[9]

30. This is not to say that under Article 5 of the Statute the status of the victims as civilians is irrelevant. In fact, the status of the victims is one of the factors that can be assessed in determining whether the jurisdictional requirement that the civilian population be the primary target of an attack has been fulfilled,[10] along with, inter alia, the means and method used in the course of the attack, the number of victims, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.[11]

31. Further, the fact that a population under the chapeau of Article 5 of the Statute must be “civilian” does not imply that such population shall only be comprised of civilians. The status of the victims will thus also be relevant to determining whether the population against which the attack is directed is civilian. In Kordić and Čerkez, the Appeals Chamber stated:

The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.[12]

In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of Additional Protocol I,[13] held that “in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”.[14]

32. Accordingly, whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.

33. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in law at paragraphs 462 and 463 of the Trial Judgement 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.

69. The Appeals Chamber notes that the Trial Chamber did not make a finding as to whether the armed conflict in the municipality of Vukovar at the material time was of an international or non-international nature.[1] However, even in the context of an internal armed conflict, Geneva Convention III applies where the parties to the conflict have agreed that the Convention shall apply.[2] In this respect, the Appeals Chamber recalls the ECMM instructions to its monitors on the implementation of the Zagreb Agreement which indicated that the Geneva Conventions were to be applied to the prisoners of war.[3] In an order issued on 18 November 1991, Lt. General Života Panić directed that JNA units in the Vukovar area, including OG South, were to observe all aspects of Geneva Convention III.[4] Furthermore, Colonel Nebojša Pavković advised the ECMM monitors of instructions from General Rašeta that Croat forces would not be evacuated with the rest of the humanitarian convoy but remain as prisoners of war and the Geneva Conventions would apply.[5] The Appeals Chamber considers that, while the Zagreb Agreement makes no mention of the application of Geneva Convention III to the Croat forces at the Vukovar hospital,[6] these documents provide sufficient evidence to conclude that the JNA had agreed that the Croat forces were to be considered prisoners of war and that Geneva Convention III was to apply.[7]

70. Additionally, the Appeals Chamber recalls the finding in the Krnojelac Appeal Judgement that “[t]he Geneva Conventions are considered to be the expression of customary international law”.[1] In particular, it is well established that Common Article 3 of the Geneva Conventions, which is applicable to both international and non-international armed conflicts, is part of customary international law and therefore binds all parties to a conflict.[2] Common Article 3 enshrines the prohibition against any violence against the life and person of those taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The Appeals Chamber considers that Common Article 3 of the Geneva Conventions reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13,[3] which provides that:

Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. […]

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

71. The fundamental principle enshrined in Geneva Convention III, which is non-derogable, that prisoners of war must be treated humanely and protected from physical and mental harm,[4] applies from the time they fall into the power of the enemy until their final release and repatriation.[5] It thus entails the obligation of each agent in charge of the protection or custody of the prisoners of war to ensure that their transfer to another agent will not diminish the protection the prisoners are entitled to. This obligation is so well established that it is even reflected in Article 46 of Geneva Convention III,[6] which applies to the transfer of prisoners of war to another location by the Detaining Power, and furthermore in paragraphs 2 and 3 of Article 12 of Geneva Convention III,[7] which applies to the transfer of prisoners of war to another High Contracting Party. The Appeals Chamber recalls that besides the JNA, the TO was one of the two constituent elements of the armed forces of the former Yugoslavia, and they were both subordinated to the Supreme Defence Council.[8] Thus, the military police of the 80 mtbr of the JNA should have satisfied itself of the willingness and ability of the TOs to apply the principle enshrined in Geneva Convention III, before transferring custody of the prisoners of war. 

72. Although the duty to protect prisoners of war belongs in the first instance to the Detaining Power, this is not to the exclusion of individual responsibility. The first paragraph of Article 12 of Geneva Convention III places the responsibility for prisoners of war squarely on the Detaining Power; however, it also states that this is “[i]rrespective of the individual responsibilities that may exist”. The ICRC Commentaries clarify that “[a]ny breach of the law is bound to be committed by one or more individuals and it is normally they who must answer for their acts”.[9] The JNA Regulations further explicitly state that “[e]very individual – a member of the military or a civilian – shall be personally accountable for violations of the laws of war if he/she commits a violation or orders one to be committed”.[10] The Prosecution submits that “[t]hus, members of the armed forces ‛acquire’ these international obligations with regard to prisoners of war. There is no further requirement of ‛specific investment’” of authority as argued by Šljivančanin.[11] The Appeals Chamber agrees with this submission.

73. The Appeals Chamber thus finds that Geneva Convention III invests all agents of a Detaining Power into whose custody prisoners of war have come with the obligation to protect them by reason of their position as agents of that Detaining Power. No more specific investment of responsibility in an agent with regard to prisoners of war is necessary. The Appeals Chamber considers that all state agents who find themselves with custody of prisoners of war owe them a duty of protection regardless of whether the investment of responsibility was made through explicit delegation such as through legislative enactment or a superior order, or as a result of the state agent finding himself with de facto custody over prisoners of war such as where a prisoner of war surrenders to that agent.

74. The Appeals Chamber therefore considers that Šljivančanin was under a duty to protect the prisoners of war held at Ovčara and that his responsibility included the obligation not to allow the transfer of custody of the prisoners of a war to anyone without first assuring himself that they would not be harmed. Mrkšić’s order to withdraw the JNA troops did not relieve him of his position as an officer of the JNA. As such, Šljivančanin remained an agent of the Detaining Power and thus continued to be bound by Geneva Convention III not to transfer the prisoners of war to another agent who would not guarantee their safety.

21. The Trial Chamber characterized Mr. Nzirorera’s motion as “vexatious” and “frivolous” and noted that it showed disrespect for the Trial Chamber.[1] It then denied fees in addition to dismissing the motion.[2] The Appeals Chamber has held that the power to impose sanctions on counsel should be imposed cautiously.[3] It is most appropriate where a motion is frivolous or an abuse of process. The Appeals Chamber has previously held that there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.[4] However, the specific situation in this instance is different. Since Judge Byron was both the Judge and subject of the underlying disclosure dispute, the Appeals Chamber considers that the decision is subject to independent review.[5]

22. A review of the pleadings underlying the Impugned Decision does not reflect that counsel for Mr. Nzirorera submitted a disrespectful or frivolous application.[6] As the Appeals Chamber held above, the Statute and Rules do not foreclose a party from seeking limited disclosure from a Judge on matters related to disqualification. In his submissions at trial and on appeal, Mr. Nzirorera pointed to one jurisdiction where providing an assessment could require a Judge to withdraw. Additionally, the Tribunal has not had the occasion to consider this issue previously. Therefore, it cannot be said that there was no good faith legal basis for making the request for disclosure. Furthermore, the Appeals Chamber has rejected the Trial Chamber’s characterization of the assessment as constituting judicial function, which was one of the reasons for describing the motion as disrespectful. In view of the foregoing, the Appeals Chamber considers that the decision to deny fees associated with the motion was unreasonable. Thus, the Trial Chamber made a discernible error in this respect.

4. The Appeals Chamber recalls that “a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown”.[1]

5. The Appeals Chamber further notes that access to confidential material may be granted when a Chamber is satisfied that the party seeking access has established that such material “is likely to assist the [party’s] case materially, or […] there is a good chance that it would”.[2] This standard is met by showing the existence of a factual nexus between the two cases such as a “geographical, temporal or otherwise material overlap”.[3]

13. The Appeals Chamber notes that, under Rule 70(B) of the Rules, information “provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence […] shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information”. The same restriction may be applied to information in possession of the Defence under Rule 70(F) of the Rules. In respect of motions seeking access to confidential material in another case, the Appeals Chamber has previously ruled that material provided under Rule 70 of the Rules shall not be released to the accused in another case unless the provider consents to such disclosure.[1] Accordingly, the Appeals Chamber holds that any material that has been provided to the Prosecution under Rule 70(B) of the Rules, in addition to any material that may have been provided to Milošević under Rule 70(F) of the Rules, shall not be released to Perišić unless and before the providers give their consent.

23. In its Impugned Decision [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31, Decision on Request for Closed Session Testimony and Sealed Exhibits, 3 April 2008], the Trial Chamber noted that “a significant factual, geographical and temporal overlap” between the cases constitutes a legitimate forensic purpose.[1] The Appeals Chamber emphasises that a requesting party is not required to establish a “significant” overlap between the cases - be it factual, geographic or temporal - in order to demonstrate a legitimate forensic purpose. However, the Appeals Chamber further notes that the Trial Chamber, having reviewed the requested material, went on to conclude that the Appellant’s conviction in relation to Cyahafi concerned the distribution of weapons, and that since the requested material shed no light on the Appellant’s conduct in this regard, it was unlikely to materially assist him.[2] The Appeals Chamber is satisfied with the Trial Chamber reasoning in this respect. Moreover, the Appeals Chamber is not persuaded by the Appellant’s contention that the lack of reference to him in the evidence of Witness AWE in and of itself makes this evidence exculpatory within the meaning of Rule 68 and is therefore of “material assistance” to his case. The Appeals Chamber accordingly finds that the Trial Chamber did not abuse its discretion and dismisses this ground of appeal.

31. The Appeals Chamber recalls that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel at the Tribunal’s expense if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings at the preliminary examination stage.[1] The Appellant has already made detailed submissions with regard to his request for access to the confidential materials of Witness AWE, and the Appeals Chamber is not satisfied that additional submissions would be of assistance to the present inquiry. In such circumstances, the Appeals Chamber considers that the assignment of counsel under the auspices of the Tribunal’s legal aid scheme is not warranted. The Appeals Chamber therefore dismisses the request.

28. […] While statements made under Rule 84 bis are a type of evidence – the probative value of which is decided by the Trial Chamber[1]– the admission of such statements, or their scope, are subject to the authority and control of the Trial Chamber.

29. The Rules do not provide explicitly for a written supplement to an accused’s Rule 84 bis statement to be admitted into evidence in the trial of that person and other accused. A Chamber is therefore called in such a case to apply rules of evidence that “will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”.[2] As the Appeals Chamber has previously noted, “[t]his is a delicate exercise for, while the system under which the Tribunal’s rules of evidence operates is predominantly adversarial, the jurisprudence – and the Rules themselves – have recognized from the beginning the necessity, and desirability, of certain features which do not accord with a strictly adversarial criminal procedure.”[3] Rule 84 bis is one such feature.[4] […]