1604. For the foregoing reasons, the Appeals Chamber concludes that the Trial Chamber erred in failing to find Šainović and Lukić liable under Articles 5(h) and 7(1) of the Statute for committing, through their participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Beleg, Ćirez/Qirez, and Priština/Prishtina and thereby disallowing convictions against them under Count 5 in relation to these sexual assaults. The Appeals Chamber further concludes that the Trial Chamber erred in failing to find Pavković liable under Articles 5(h) and 7(1) of the Statute for committing, through his participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Priština/Prishtina and thereby disallowing convictions against him under Count 5 in relation to these sexual assaults. Consequently, the Appeals Chamber grants, in part, the Prosecution’s third ground of appeal and the Prosecution’s submissions in relation to Pavković’s responsibility pursuant to JCE III for persecution through sexual assaults committed in Priština/Prishtina.[1] However, in the circumstances of the present case, the Appeals Chamber, Judge Ramaroson dissenting, declines to enter new convictions on appeal in relation to the sexual assaults in question.[2]

See also para. 1766.

265. […] The Appeals Chamber recalls, Judge Pocar dissenting, that it is established jurisprudence that a new conviction may be entered at the appeal stage.[1]

106. The Appeals Chamber observes, Judge Pocar dissenting, that it has, on multiple occasions, entered convictions on the basis of alternate modes of liability.[1] In this respect, the Appeals Chamber notes that the plain text of Article 25(2) of the Statute, namely the power vested in the Appeals Chamber to “revise” a decision taken by a trial chamber, supports the Appeals Chamber’s authority to enter convictions on the basis of alternate modes of liability. One meaning of the term revise is “to alter (an opinion, judgement, etc.) after reconsideration, or in the light of further evidence.”[2] The practice of sustaining a conviction pursuant to an alternate mode of liability is effectively one such alteration to a trial chamber’s legal reasoning. The Appeals Chamber further observes that appellate bodies of various national jurisdictions are also empowered to enter convictions on an alternate basis of liability. For example, Section 3 of the England and Wales Criminal Appeal Act 1968 allows an appellate court to substitute a conviction for an alternative offence.[3] Other national jurisdictions have instituted similar practices.[4]

107. The Appeals Chamber, Judge Pocar dissenting, is not convinced that the Appellants have presented cogent reasons requiring departure from the practice of entering convictions on the basis of alternate forms of liability in appeals in certain circumstances. The Appeals Chamber further underscores that its power to enter convictions on the basis of alternate modes of liability is not dependent on whether the Prosecution appeals.[5] Finally the Appeals Chamber recalls that it has, on multiple occasions, rejected, Judge Pocar dissenting, the proposition that additional convictions on appeal violate an appellant’s right to a fair trial per se,[6] and notes that the Appellants do not raise new arguments that justify reconsideration of this position.[7] Accordingly, the Appeals Chamber denies the Alternate Liability Challenge.

108. Having dismissed the Appellants’ challenge to its general power to enter convictions on the basis of alternate modes of liability, the Appeals Chamber recalls that its exercise of this power is subject to the Statute’s fundamental protections of the rights of the accused.[8] The Appeals Chamber further recalls that, as set out in the Statute, its jurisdiction is focused on reviewing the findings of trial chambers for errors of law which invalidate a decision and errors of fact which occasion a miscarriage of justice.[9] The Appeals Chamber will not enter convictions under alternate modes of liability where this would substantially compromise the fair trial rights of appellants or exceed its jurisdiction as delineated in the Statute.[10]

155. The Appeals Chamber notes that the foregoing analysis does not per se preclude replacing convictions based on JCE with convictions based on alternate modes of liability. Indeed, the Appeals Chamber has on certain occasions revised trial judgements in this way. However the Appeals Chamber notes that in each of these appeals, the trial chamber’s errors had a comparatively limited impact. Thus in the Simić Appeal Judgement, the Appeals Chamber entered a conviction on the basis of aiding and abetting after finding that the indictment failed to plead participation in a JCE as a mode of liability. In both the Vasiljević Appeal Judgement and the Krstić Appeal Judgement, the Appeals Chamber entered a conviction on the basis of aiding and abetting after finding that the trial chamber erred in concluding that the relevant appellant shared the common purpose of the JCE. In none of these judgements was the trial chamber’s analysis concerning the factual basis underpinning the existence of a JCE materially reversed. By contrast, in the present case, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, has found that the Trial Chamber committed fundamental errors with respect to its findings concerning artillery attacks and by extension JCE, which stood at the core of findings concerning the Appellants’ criminal responsibility.

2516.            […] [I]t is apparent that the key source of Kanyabashi’s knowledge and the conduct by which he was alleged to have failed to prevent or punish the crimes on the basis of which he was convicted was materially different from the acts expressly pleaded in the Indictment. As such, the Appeals Chamber considers that the Trial Chamber’s findings were based upon a set of material facts different from those that were specifically pleaded in the Indictment, set forth in the Prosecution Pre-Trial Brief, and pursued throughout the trial. The Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi based on material facts that were not pleaded by the Prosecution in the Indictment and at trial.

See also para. 2518.

93. The Appeals Chamber recalls that the Rules are to be interpreted in accordance with their ordinary meaning in their context and in light of the object and purpose of the Statute and the Rules.[1] Under Rule 104 of the Rules, upon completion of the presentation of the parties’ cases, a single judge must deliberate and decide separately on each charge contained in the indictment on whether he is satisfied that guilt has been proven beyond reasonable doubt, and shall impose a sentence in respect of each finding of guilt if he finds the accused guilty on one or more of the charges contained in the indictment.[2] The Appeals Chamber considers that the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond reasonable doubt, a finding of guilt follows. Considering that the Rules apply mutatis mutandis to proceedings under Rule 90 of the Rules,[3] this principle similarly applies to contempt proceedings.

94. In addition, it is well established in the jurisprudence that “a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[4] While this principle emanates from jurisprudence concerning the crimes covered by Article 1(1) of the Statute, the Appeals Chamber sees nothing to suggest that the obligation of a single judge to enter a conviction does not equally apply to the crime of contempt, once all the elements of the crime have been proven. The Appeals Chamber further finds unpersuasive Munyeshuli’s argument that the language of Rule 90(A) of the Rules vests in a single judge the discretion not to enter a conviction for a proven crime. While a single judge has discretion to decide whether to initiate contempt proceedings,[5] neither the Rules nor prior jurisprudence support the conclusion that such discretion extends to the decision whether to enter a conviction for contempt, once all the elements of the offence have been proven.