10. In reviewing this exercise of discretion, the question is not whether the Appeals Chamber agrees with the Trial Chamber’s conclusion, but rather “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[1]  In order to challenge a discretionary decision, appellants must demonstrate that “the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of the discretion,” or that the Trial Chamber “[gave] weight to extraneous or irrelevant considerations, . . . failed to give weight or sufficient weight to relevant considerations, or . . . made an error as to the facts upon which it has exercised its discretion,” or that the Trial Chamber’s decision was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”[2]  In practice, this array of factors boils down to the following simple algorithm:  a Trial Chamber’s exercise of discretion will be overturned if the challenged decision was (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.  Absent an error of law or a clearly erroneous factual finding, then, the scope of appellate review is quite limited:  even if the Appeals Chamber does not believe that counsel should have been imposed on Milošević, the decision below will stand unless it was so unreasonable as to force the conclusion that the Trial Chamber failed to exercise its discretion judiciously.

479. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[1] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.[2] The mens rea for this mode of responsibility entails the intent to plan the commission of a crime or, at a minimum, the awareness of substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.[3]

225. […] the Appeals Chamber recalls that expert witnesses are ordinarily afforded significant latitude to offer opinions within their expertise; their views need not be based upon first-hand knowledge or experience.[1] In general, an expert witness lacks personal familiarity with the particular case and offers a view based on his or her specialised knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[2]

25. The Appeals Chamber notes that the Trial Chamber convicted Kordić for planning, instigating, and ordering crimes pursuant to Article 7(1) of the Statute.[1] The Trial Chamber’s legal definitions of these modes of responsibility have not been appealed by any of the Parties. However, the Appeals Chamber deems it necessary to set out and clarify the applicable law in relation to these modes of responsibility insofar as it is necessary for its own decision.

26. The actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[2] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.

27. The actus reus of “instigating” means to prompt another person to commit an offence.[3] While it is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused, it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[4]

28. The actus reus of “ordering” means that a person in a position of authority instructs another person to commit an offence.[5] A formal superior-subordinate relationship between the accused and the perpetrator is not required.[6]

29. The mens rea for these modes of responsibility is established if the perpetrator acted with direct intent in relation to his own planning, instigating, or ordering. 

30. In addition, the Appeals Chamber has held that a standard of mens rea that is lower than direct intent may apply in relation to ordering under Article 7(1) of the Statute. The Appeals Chamber held that a person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.[7]

31. A person who plans an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that plan, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to planning. Planning with such awareness has to be regarded as accepting that crime.

32. A person who instigates another person to commit an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that instigation, has the requisite mens rea for establishing responsibility under Article 7(1) of the Statute pursuant to instigating.  Instigating with such awareness has to be regarded as accepting that crime.

17.    The Appeals Chamber notes that, pursuant to Rule 74 of the Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may, “if it considers it desirable for the proper determination of the case”, invite submissions from an amicus curiae “on any issue specified by the Chamber”.  The Appeals Chamber further considers that, as was done in Slobodan Milošević, the Appeals Chamber can ask the amicus curiae to argue in favour of the interests of a particular party where this approach will serve the interests of justice.[1]

18.    As part of the choice to self-represent, Mr. Krajišnik must “accept[] responsibility for the disadvantages this choice may bring.”[2]   He is not entitled to amicus curiae.  Rather, the issue is whether, in being “particularly attentive to its duty of ensuring that the [appeal] be fair,”[3] the Appeals Chamber deems the appointment of amicus curiae to be warranted.  The Appeals Chamber considers that in this case the answer is yes.  The appointment of amicus curiae will not infringe on any rights of Mr. Krajišnik, such as the right to self-represent or the right to a speedy appeal.  Moreover, such an appointment will help ensure that the appeal is a fair one.  Of course, a fair appeal could well occur in the absence of amicus curiae, but this is an issue better judged with hindsight rather than with foresight.  Since Mr. Krajišnik is the first defendant seeking to self-represent on appeal, the Appeals Chamber deems it prudent to appoint amicus curiae to keep an eye on his interests.

19.    Accordingly, pursuant to Rule 74, the Appeals Chamber invites the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.  Amicus curiae is not requested to conduct any new factual investigations.  Rather, in light of the evidence at issue in the trial record, amicus curiae is to put forth grounds of appeal seeking reversal of convictions or reduction in sentence and to argue against grounds of appeal advanced by the Prosecution.  Amicus curiae is to work independently from Mr. Krajišnik. 

20.    The Appeals Chamber emphasizes that amicus curiae is not a party to the proceedings.[4]  The Appeals Chamber is therefore under no obligations to address all arguments raised by amicus curiae.  Rather, the Appeals Chamber will look to the arguments raised by amicus curiae in assessing whether the interest of justice requires the Appeals Chamber to consider, proprio motu, issues not raised in Mr. Krajišnik’s appeal or in his responses to the Prosecution’s appeal.

The Appeals Chamber also considered the status of an amicus curiae and the modalities of him participating in the appeal, paras 21-22:

21.    In the absence of other instructions from the Pre-Appeal Judge or the Appeals Chamber, amicus curiae is to make submissions to the Appeals Chamber similar to those which a party would make (including a notice of appeal, appeal brief, response brief, and reply brief) and pursuant to the requirements set out in the Rules and the relevant Practice Directions,[5] with one exception.  This exception is that the word counts for amicus curiae are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  Amicus curiae is to attend Status Conferences, either in person or via tele-conference, and to appear at the oral hearing of the appeal.  Amicus curiae is also to have access to all inter partes confidential material in the case.

22.    The Prosecution is entitled to respond to amicus curiae in the same way that, pursuant to the Rules and the relevant Practice Directions, it is entitled to respond to the other party, save that the word counts for its responses are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  The Appeals Chamber notes that the Prosecution may choose to respond separately to Mr. Krajišnik and to amicus curiae or instead choose to file consolidated responses and replies (with word counts for these consolidated filings equal to one and two-thirds those set forth in the Practice Direction on the Length of Briefs and Motions).  In oral proceedings, the Prosecution will similarly have a right of response with regard to amicus curiae. 

218. The Appeals Chamber notes that other Trial Chambers have held that an accused’s proximity to an area of criminal activity can be a factor from which an accused’s knowledge of the crimes can be inferred.[1] However, in this case, the Appeals Chamber finds that the Trial Chamber reasonably refused to find that the alleged occasional presence of Fatmir Limaj in the immediate proximity of the Llapushnik/Lapušnik prison camp during and after the battle of 29 May 1998, and at one oath ceremony in June-July 1998,[2] proved his knowledge of the existence of the prison camp or his participation in it.

31. Turning to the Appellant’s contention in relation to Witness YH,[1] the Appeals Chamber recalls that the Prosecutor has independent authority to initiate investigations on statutory crimes and to assess whether the information forms a sufficient basis to proceed against persons suspected of having committed such crimes.[2] However, Rule 91(B)(i) of the Rules specifically provides that “[i]f a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony”. Such action lies within the discretion of the Trial Chamber and is contingent on its conviction that a witness “has knowingly and wilfully given false testimony”.[3] On the other hand, a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[4]

32. The Appeals Chamber stresses that the mere existence of discrepancies between a witness’s testimony and his earlier statements does not constitute strong grounds for believing that a witness may have knowingly and wilfully given false testimony.[5] […]

33. In any event, the Appeals Chamber is only required to grant relief for a violation of the Rules where a party has objected in a timely manner and has suffered material prejudice.[6] The Appellant clearly fails to show how the Oral Decision of 23 September 2004 has prejudiced him. The Appeals Chamber recalls that an investigation for false testimony is only ancillary to proceedings and does not necessarily affect the rights of an accused.