12. The Appeals Chamber sees no error in the Referral Bench’s use of the currently operative indictment at the time of its decision (in this case, the Second Amended Indictment) in evaluating gravity and level of responsibility.  Indeed, the Appeals Chamber’s decisions in Prosecutor v. Mitar Rašević and Savo Todović plainly support this approach.[1]  In that case, the Appeals Chamber indicated that the Referral Bench should rely on the most recently confirmed version of the indictment, even where the Prosecution sought and received leave to use this version after the appointment of the Referral Bench.[2]

17. The Appeals Chamber agrees with the Appellant that, in assessing the Appellant’s level of responsibility, the Referral Bench relied solely on the factual allegations made in the Second Amended Indictment.[3]  But the Appeals Chamber disagrees with the Appellant’s suggestion that this approach was wrong. Existing case law clearly endorses the approach taken by the Referral Bench.[4] Indeed, in Prosecutor v. Gojko Janković, the Appeals Chamber explicitly rejected the accused’s argument that the Trial Chamber should have considered allegations that were not in the indictment in assessing the gravity of his alleged crimes.  The Appeals Chamber declines to revisit its existing approach, which is supported both by the text of the Rules and by sound policy reasons.  […] Were the Referral Bench required to look beyond the four corners of an indictment, it would find itself in the untenable position of making speculation upon speculation with regard to whether there are other possible charges that could be brought against the accused, whether these charges may in fact be brought, and how these possible charges might relate to the issues of gravity and level of responsibility.  Thus, at least in the absence of a showing that the Prosecution has withheld charges against an accused in order to promote the possibility of referral, the Referral Bench appropriately assesses gravity and level of responsibility solely in light of the allegations in the operative indictment. […]