The Appeals Chamber discussed the evolution of its jurisprudence regarding what types of challenges involve subject matter jurisdiction and thus qualify for appeal as of right.

33. The Appeals Chamber recalls that Karadžić’s challenges to the Tribunal’s jurisdiction focus on the mode by which liability is attributed to him. As these challenges do not relate to persons, territories, or time periods,[1] the core issue underlying the Appeals is whether they involve subject matter jurisdiction as defined in Rule 72(D)(iv) of the Rules, and thus may be appealed as of right.[2]

34. Karadžić makes extensive reference to certain decisions, such as Rwamakuba,[3] issued by three judge panels under a previous version of Rule 72 of the Rules.[4] Many of the decisions cited by Karadžić lend some support to the view that even relatively granular issues, such as the contours and elements of mode of liability, could be jurisdictional in nature.[5] However, other decisions issued by these three judge panels advanced a narrower view of jurisdiction under Rule 72 of the Rules.[6] In 2005, a revision to the Rules eliminated Rule 72(E) of the Rules and reverted the question of whether an appeal addressed jurisdictional issues to standard panels of five Appeals Judges.[7] Since that revision of the Rules, the Appeals Chamber’s jurisprudence has gradually resolved previous uncertainty relating to the issue of which questions qualified as jurisdictional challenges.

35. The Appeals Chamber’s most recent jurisprudence on the question of jurisdiction focuses narrowly on the plain text of Rule 72 of the Rules. For example, in Gotovina, the Appeals Chamber dismissed a challenge concerning the applicable mens rea of the third category of JCE, as it determined that the claim was not related to questions of jurisdiction.[8] To the extent the appeal was challenging the definition and interpretation of a particular element of the mode of liability, the Appeals Chamber found that “[s]uch an argument goes to the pleading practice and the form of the indictment and is not a challenge to jurisdiction”.[9] The Appeals Chamber also adopted this approach in its Tolimir Decision. There, the appellant challenged the applicability of JCE to establishing responsibility for the crimes of genocide and conspiracy to commit genocide. In rejecting his appeal, the Appeals Chamber concluded that “though at first glance [the appeal seemed] somewhat related to subject-matter jurisdiction”, it involved non-jurisdictional issues that could be resolved during the course of trial.[10]

36. As Tolimir and Gotovina demonstrate, the Appeals Chamber’s approach to subject matter jurisdiction now focuses on whether the crime charged is envisioned by the statute, and whether the mode of liability upholds the principle of individual criminal responsibility; the contours and elements of modes of liability are considered an “issue[ ] of law . . . which can be properly advanced and argued during the course of trial”.[11]

37. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the Appeals Chamber’s distillation of case law on the scope of jurisdictional appeals as set out in Gotovina and Tolimir.[12] For the foregoing reasons, the Appeals Chamber finds that Karadžić fails to raise a proper jurisdictional challenge pursuant to Rule 72 of the Rules.

The Appeals Chamber also recalled the standard of appellate review of decisions concerning jurisdictional challenge (paras 9-10).

9. […] The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) only where they challenge an indictment on the ground that it does not relate to: (i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute (“personal jurisdiction”); (ii) the territories indicated in Articles 1, 8 and 9 of the Statute (“territorial jurisdiction”); (iii) the period indicated in Articles 1, 8 and 9 of the Statute (“temporal jurisdiction”); or (iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute (“subject-matter jurisdiction”).[1]

2. It has been the practice in this Tribunal that appeals against decisions of a Trial Chamber denying an accused’s Rule 98bis motion require certification of the Trial Chamber for the Appeals Chamber to be properly seised.[1] Motions to the Trial Chamber to acquit an accused at the end of the Prosecution case are other motions falling within the purview of Rule 73 of the Rules.

3. In this Appeal, however, the Appellant says that the amendment to Rule 98bis removes the requirement of certification.[2] The Appellant grounds this argument on the removal of the word “motion” from Rule 98bis. He says that under the previous Rule the accused would move the Trial Chamber by way of motion to enter a judgement of acquittal. The amended version of the Rule does not require the submission of a motion by a party. Instead it places an obligation on a Trial Chamber, “after hearing the oral submissions of the parties, to enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction”.[3] The Appellant claims that the practical effect of the amendment is that any appeal pursuant to the amended version of Rule 98bis falls within the scope of Rule 108.[4] That Rule states:

 A party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgment was pronounced, file a notice of appeal, setting forth the grounds. The Appellant shall also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought. The Appeals Chamber may, on good cause being shown by the motion, authorise a variation of the grounds of appeal.

[…]

5. The amendment to Rule 98bis was not intended to impinge upon the already established practice of the Tribunal that appeals against judgements denying acquittal require certification of a Trial Chamber. The Appellant is correct to point out that under the old Rule 98bis the accused was required to submit a motion to the Trial Chamber to enter a judgement of acquittal and that there is no such requirement under the amended Rule. However, the logical extension of the Appellant’s argument is that every time a Trial Chamber acts (or declines to act) propio motu an accused would have a right to appeal. That is clearly not the case. Under the Rules of the Tribunal the only time a party has a right of interlocutory appeal is under the specific grounds identified in Rule 72 or when another rule specifically so provides. All other interlocutory appeals have to go through the certification procedure set forth by Rule 73.

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] ₣…ğ

8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] [...]

9. The ICTY Appeals Chamber has previously stated that it was “satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process”.[4] [...] Šešelj limits his arguments to the impropriety of being convicted on appeal and to asserting his consequent right to appeal[...] without articulating any deficiencies in the existing procedures for review of appeal judgements provided for in the Statute and the Rules or [...] attempt[ing] to demonstrate that the Appeal Judgement contains any errors.[5]