327. The Appeals Chamber recalls that Rule 103(C) of the Rules provides that sentencing submissions shall be addressed during closing arguments, and the Trial Chamber correctly stated that a trial chamber is under no obligation to search for information that counsel did not put before it at the appropriate time in assessing mitigating factors.[1] […]

359.     […] [T]he Appeals Chamber recalls that the ICTR Appeals Chamber noted that the length of the proceedings is not one of the factors that a trial chamber must consider, even as a mitigating circumstance, when determining a sentence.[1] Indeed, the ICTR Appeals Chamber has held that where a trial chamber had not found a violation of an accused’s fundamental right to an expeditious trial, it abused its discretion in considering as a mitigating circumstance the length of the proceedings, even when they had been lengthened unnecessarily.[2] […]

397. […] The Appeals Chamber considers that, in the specific context of th[e] case, the Trial Chamber’s approach is consistent with the requirement that, although an accused’s contribution to the common criminal purpose need not be necessary or substantial, “it should at least be a significant contribution to the crimes for which the accused is found responsible”.[1]

Footnote 1248. Whether an accused contributed to the joint criminal enterprise and whether an accused’s conduct amounts to a significant contribution upon which joint criminal enterprise liability may be based are questions of fact to be determined on a case-by-case basis. See Mladić Appeal Judgement, para. 228; Stanišić and Župljanin Appeal Judgement, para. 110; Krajišnik Appeal Judgement, para. 696. See also Brđanin Appeal Judgement, para. 427 (noting that “not every type of conduct would amount to a significant enough contribution for this to create criminal liability for the accused regarding the crime in question”).

[For the specific context of the case see paras. 396-400, footnote 1246]

413. […] The Appeals Chamber observes that, while distinct conduct has been assessed collectively when evaluating the significance of an accused’s contributions to the crimes of the joint criminal enterprise,[2] what amounts to a significant contribution upon which joint criminal enterprise liability may be based is a question of fact to be considered on a case-by-case basis.[3] In this context, the Appeals Chamber is not persuaded by the Prosecution’s submission that the Trial Chamber, when making a factual assessment, applied an incorrect legal standard in assessing, on a case-by-case basis, the significance of the alleged contributions to the common criminal purpose in paragraphs 455 and 465 of the Trial Judgement.

[See also para. 470]

520. The Appeals Chamber recalls that the significance of an accused’s contribution to the common criminal purpose is relevant to assessing his or her mens rea in connection with his or her alleged joint criminal enterprise liability.[1] […].

522. The Appeals Chamber recalls that the mens rea element for the first category of joint criminal enterprise liability requires that an accused share the intent to commit the crimes that form part of the common criminal purpose of the joint criminal enterprise and the intent to participate in a common plan aimed at their commission.[2]

544. […] [T]he Appeals Chamber recalls that when all the elements of joint criminal enterprise liability are met, each member is “appropriately held liable also for those actions of other [joint criminal enterprise] members, or individuals used by them, that further the common criminal purpose”.[1] However, an individual cannot be held responsible for the crimes of the joint criminal enterprise committed during a time when he or she was not a member of it.[2] […]

545. The Appeals Chamber further recalls that, to hold a member of a joint criminal enterprise liable for crimes committed by principal perpetrators who are not members of the joint criminal enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan.[3] Such a link is established by showing that the member of the joint criminal enterprise used the non-member to commit the actus reus of the crime forming part of the common criminal purpose.[4] The establishment of a link between the crime in question and a member of the joint criminal enterprise is a matter to be assessed on a case-by-case basis.[5] Factors indicative of such a link include evidence that the member of the joint criminal enterprise explicitly or implicitly requested the non-member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-member to commit the crime.[6] As a matter of law, there is no requirement that a chamber establish how each physical perpetrator was used to commit the crimes, provided that the chamber identifies that one or more members of the joint criminal enterprise used the forces to which these physical perpetrators belonged in furtherance of the common plan.[7]

583. […] [N]either the Statute nor the Rules address the scope of evidence to be adduced in a retrial. In any retrial, the new trial chamber is vested with the discretion to determine the scope of the evidence to be admitted, subject to the Rules and jurisprudence concerning the admission of evidence, as well as any additional restrictions imposed by the Appeals Chamber.[1] While the case law reflects that the Prosecution may adduce evidence in a retrial that was not adduced in the original trial,[2] the Appeals Chamber observes that appellate jurisprudence, particularly in the context of a retrial following an acquittal: (i) emphasizes that any potential for undue prejudice to a defendant should be addressed through the Appeals Chamber’s careful delineation of a retrial’s parameters and by the trial chamber’s continuing duty to apply fair trial principles;[3] and (ii) directs the relevant trial chamber to be “particularly mindful of any potential prejudice that the admission of new evidence may cause to the fair trial rights of the Accused”.[4] 

586. […] it nevertheless must be recalled that the context of each retrial is “unique”.[5] […]

590. […] The Appeals Chamber recalls that Rule 105(C) of the Rules provides that a trial chamber may admit any relevant evidence which it deems to have probative value, while Rule 105(D) of the Rules provides that a trial chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. As is evident from a plain reading of these two rules, any determination that prospective evidence appears to be relevant does not require the trial chamber to admit it.

659. Pursuant to Article 22 of the Statute, the Appeals Chamber has taken into account the general sentencing practice of the former Yugoslavia, the gravity of the offence, and the individual circumstances of Stanišić and Simatović, including relevant health issues.[1] However, the gravity of the offence is the primary factor to be taken into account in imposing a sentence, and the inherent gravity of a crime must be determined by reference to the particular circumstances of the case and the form and degree of the accused’s participation in the crime.[2]

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NOTING that – given the urgency of the matter, the imminence of the judgement on the appeals, and in order to not prejudice Stanišić – the substance of the Prosecution response, filed on 30 May 2023, was not considered and the present decision is being issued without awaiting Stanišić’s reply;

15.       With respect to the Trial Chamber’s assessment of Stanišić’s mens rea for joint criminal enterprise liability, the Appeals Chamber notes that the Trial Chamber found that it was not established that Stanišić shared the intent to further the common criminal purpose of the joint criminal enterprise.[1] The proposed additional evidence is, in material respects, cumulative of evidence the Trial Chamber considered in assessing Stanišić’s mens rea as it pertained to the joint criminal enterprise.[2] […] Stanišić does not demonstrate that the Book Excerpts would have compelled a different finding, and he has not demonstrated that, in view of the Prosecution’s appeal seeking to establish his mens rea for joint criminal enterprise liability, the exclusion of the proposed additional evidence would result in a miscarriage of justice in view of the evidence already on the record.[3]