12. The Appellant challenges, on various grounds, a series of interlocutory decisions made by the Trial Chamber. The Appeals Chamber notes that none of the errors alleged was pleaded properly in the Appellant’s Notice of Appeal, which merely lists the decisions challenged and states with respect to each one that the Trial Chamber “erred” or “erred in law” in denying the defence motions underlying these decisions.[1] The notice thus fails to indicate the substance of the alleged errors and the relief sought as required by Rule 108 of the Tribunal’s Rules of Procedure and Evidence (“Rules”).[2] However, the Prosecution does not object to this failure, arguing instead that the Appeal Brief itself suffers from similar shortcomings. Where an Appellant fails to properly raise its argument and the Prosecution fails to object, the Appeals Chamber possesses the discretion to consider the Appellant’s arguments in order to ensure the fairness of the proceedings. It chooses to do so in the instant case.

70. Additionally, the Appeals Chamber recalls the finding in the Krnojelac Appeal Judgement that “[t]he Geneva Conventions are considered to be the expression of customary international law”.[1] In particular, it is well established that Common Article 3 of the Geneva Conventions, which is applicable to both international and non-international armed conflicts, is part of customary international law and therefore binds all parties to a conflict.[2] Common Article 3 enshrines the prohibition against any violence against the life and person of those taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The Appeals Chamber considers that Common Article 3 of the Geneva Conventions reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13,[3] which provides that:

Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. […]

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

71. The fundamental principle enshrined in Geneva Convention III, which is non-derogable, that prisoners of war must be treated humanely and protected from physical and mental harm,[4] applies from the time they fall into the power of the enemy until their final release and repatriation.[5] It thus entails the obligation of each agent in charge of the protection or custody of the prisoners of war to ensure that their transfer to another agent will not diminish the protection the prisoners are entitled to. This obligation is so well established that it is even reflected in Article 46 of Geneva Convention III,[6] which applies to the transfer of prisoners of war to another location by the Detaining Power, and furthermore in paragraphs 2 and 3 of Article 12 of Geneva Convention III,[7] which applies to the transfer of prisoners of war to another High Contracting Party. The Appeals Chamber recalls that besides the JNA, the TO was one of the two constituent elements of the armed forces of the former Yugoslavia, and they were both subordinated to the Supreme Defence Council.[8] Thus, the military police of the 80 mtbr of the JNA should have satisfied itself of the willingness and ability of the TOs to apply the principle enshrined in Geneva Convention III, before transferring custody of the prisoners of war. 

72. Although the duty to protect prisoners of war belongs in the first instance to the Detaining Power, this is not to the exclusion of individual responsibility. The first paragraph of Article 12 of Geneva Convention III places the responsibility for prisoners of war squarely on the Detaining Power; however, it also states that this is “[i]rrespective of the individual responsibilities that may exist”. The ICRC Commentaries clarify that “[a]ny breach of the law is bound to be committed by one or more individuals and it is normally they who must answer for their acts”.[9] The JNA Regulations further explicitly state that “[e]very individual – a member of the military or a civilian – shall be personally accountable for violations of the laws of war if he/she commits a violation or orders one to be committed”.[10] The Prosecution submits that “[t]hus, members of the armed forces ‛acquire’ these international obligations with regard to prisoners of war. There is no further requirement of ‛specific investment’” of authority as argued by Šljivančanin.[11] The Appeals Chamber agrees with this submission.

73. The Appeals Chamber thus finds that Geneva Convention III invests all agents of a Detaining Power into whose custody prisoners of war have come with the obligation to protect them by reason of their position as agents of that Detaining Power. No more specific investment of responsibility in an agent with regard to prisoners of war is necessary. The Appeals Chamber considers that all state agents who find themselves with custody of prisoners of war owe them a duty of protection regardless of whether the investment of responsibility was made through explicit delegation such as through legislative enactment or a superior order, or as a result of the state agent finding himself with de facto custody over prisoners of war such as where a prisoner of war surrenders to that agent.

74. The Appeals Chamber therefore considers that Šljivančanin was under a duty to protect the prisoners of war held at Ovčara and that his responsibility included the obligation not to allow the transfer of custody of the prisoners of a war to anyone without first assuring himself that they would not be harmed. Mrkšić’s order to withdraw the JNA troops did not relieve him of his position as an officer of the JNA. As such, Šljivančanin remained an agent of the Detaining Power and thus continued to be bound by Geneva Convention III not to transfer the prisoners of war to another agent who would not guarantee their safety.

220. […] As to the right to have adequate time and facilities for the preparation of a defence, that right is enshrined in Article 20(4)(b) of the Statute. When considering an appellant’s submission regarding this right, the Appeals Chamber must assess whether the Defence as a whole, and not any individual counsel, was deprived of adequate time and facilities.[1] Furthermore, the Appeals Chamber agrees with the Human Rights Committee[2] that “adequate time” for the preparation of the defence cannot be assessed in the abstract and that it depends on the circumstances of the case. The Appeals Chamber is of the view that the same goes for “adequate facilities”. A Trial Chamber “shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”.[3] However, it is for the accused who alleges a violation of his right to have adequate time and facilities for the preparation of his defence to draw the Trial Chamber’s attention to what he considers to be a breach of the Tribunal’s Statute and Rules; he cannot remain silent about such a violation, then raise it on appeal in order to seek a new trial.

28. The Appeals Chamber considers that it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case, such as, for example, the complexity of the case, the number of counts and charges, the gravity of the crimes charged, the individual circumstances of the accused, the status and scale of the Prosecution’s disclosure, and the staffing of the Defence team.[1] Ngirabatware’s comparison with other cases therefore provides very limited, if any, assistance. Likewise, the Appeals Chamber considers that Ngirabatware’s argument premised on the principle of equality of arms is ill-founded; the issue is not whether the parties had the same amount of time to prepare their respective cases, but rather if either party, and in particular the accused, is put at a disadvantage when presenting its case.[2] The principle of equality of arms invoked by Ngirabatware should not be interpreted to mean that the Defence is entitled to the exact same means as the Prosecution.

48. In relation to his request for review based on the Additional Statements, Niyitegeka also requests that the Appeals Chamber order that the identity of two victims that he was found to have killed be specified.[1] The Appeals Chamber recalls that the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal. Outside the review mechanism provided for under Article 25 of the Statute, it is not within the Appeals Chamber’s jurisdiction to re-open terminated proceedings to alter otherwise final findings.[2] Niyitegeka’s attempt to further contest the original findings is therefore dismissed. 

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).

The Appeals Chamber found that, when the Trial Chamber does not expressly limit its certification to appeal a decision to a particular issue, the Appeals Chamber may decide to resolve other issues, provided that they “materially advance the proceedings” and that the purported error is not “inconsequential”.

The relevant paragraphs read:

16. It is not illogical or impermissible for a Trial Chamber to grant certification to appeal an entire decision on the basis of one issue which, in its view, satisfies the Rule 73(B) criteria.  To the contrary, such an approach is consistent with the text of that Rule, which requires only that the Trial Chamber identify “an issue” satisfying certain criteria in order to certify interlocutory review of a decision, but does not state that the review must be limited to the identified issue.  Thus, although the Appeals Chamber has found that the Trial Chamber can limit review to the issue(s) that it has found to specifically satisfy the Rule 73(B) criteria, it is not obligated to do so.

17. This approach is consistent with Rule 73’s objective of advancing the fair and expeditious conduct of the proceedings.  Interlocutory appeals under Rule 73 interrupt the continuity of trial proceedings and so should only be allowed when there is a significant advantage to doing so—that is, when, in the Trial Chamber’s judgement, there is an important issue meriting immediate resolution by the Appeals Chamber.  But once one such issue is identified and an interlocutory appeal is certified, allowing the Appeals Chamber to resolve related issues at the same time may cause little additional interruption and may ultimately serve the goals of fairness and expeditiousness.

21. […] the Appeals Chamber will not, in considering an interlocutory appeal that extends beyond the issues that the Trial Chamber found to specifically satisfy the Rule 73(B) standard, address matters in which its consideration will not, in fact, materially advance the proceedings.  The Appeals Chamber notes the related argument of Mr. Karemera that the Prosecution has as a general matter failed to demonstrate errors invalidating the Trial Chamber’s decision or occasioning a miscarriage of justice within the meaning of Article 24(1) of the Statute.[1]  Although the Article 24(1) standard applies specifically to post-trial appeals from final Trial Chamber decisions, it is likewise true that in interlocutory appeals, even where certification under Rule 73(B) has been granted, it is not the Appeals Chamber’s practice to pass on purported errors that are inconsequential.[2]  The Appeals Chamber will keep this standard in mind in addressing the individual allegations of error raised by the Prosecution.

246. The Appeals Chamber further recalls that pursuant to Rule 108 of the Rules, a party seeking to appeal a judgement must set forth the grounds of appeal in a notice of appeal, indicating “the substance of the alleged errors and the relief sought.”[1] The notice of appeal does not need to detail the arguments that the parties intend to use in support of the grounds of appeal, as this has to be done in an appellant’s brief.[2] Instead, the notice of appeal must “focus the mind of the Respondent, right from the day the notice of appeal is filed, on the arguments which will be developed subsequently in the Appeal brief.”[3] In the present case, the Prosecution Notice of Appeal includes the Prosecution’s only ground of appeal. Furthermore, it indicates the relief sought and the substance of the alleged errors when it inter alia states that the Reports were insufficient to satisfy Boškoski’s obligation under Article 7(3) of the Statute.[4] The allegation that the Reports were unlikely to trigger an investigation into police criminal conduct is an argument that did not need to be included in the Prosecution Notice of Appeal and that was properly made in the Prosecution Appeal Brief.

49.       The Appeals Chamber notes that, as a general rule, a notice of appeal is not the proper vehicle for advancing in the first instance alleged disclosure violations identified only during the appeal proceeding. A notice of appeal is normally limited to challenges against a particular order, ruling, or decision taken by a trial chamber.[1] The Appeals Chamber recalls, however, that the Prosecution’s disclosure of material under Rule 68 of the Rules is a continuing obligation.[2] If a party identifies a potential disclosure violation after the conclusion of the trial and while appellate proceedings are ongoing, it may seek relief by bringing a motion before the Appeals Chamber.[3] Given the importance of the Prosecution’s disclosure obligation under Rule 68 of the Rules, the Appeals Chamber will nonetheless consider the arguments raised by Mugiraneza under his Fourth Ground of Appeal.

15. The Appeals Chamber finds that the Appellant fails to raise a proper jurisdictional challenge pursuant to Rule 72(D)(iv) of the Rules under his first ground of appeal or to demonstrate that the Trial Chamber erred in dismissing his argument as to “occupied territory” being a necessary requirement for the crimes of deportation and forcible transfer as crimes against humanity. Here, the Appellant is not contesting that the International Tribunal has jurisdiction over these crimes under Article 5 of the Statute, which are charged in the Joint Indictment according to their definitions and elements under customary international law as set out in the jurisprudence of the International Tribunal.[1] Rather, he argues that the interpretation of the definition for the actus reus of these crimes should be narrow and limited to displacement from occupied territory. As such, the Appellant may bring these arguments before the Trial Chamber to be considered on the merits at trial; however, they do not demonstrate the Tribunal’s lack of subject-matter jurisdiction.[2]

18. The Appeals Chamber considers that the Appellant […] fails to raise a proper jurisdictional challenge under Rule 72(D)(iv) of the Rules. The Appellant does not dispute that the International Tribunal has jurisdiction over crimes charged under Articles 3 and 5 of the Statute as violations of Common Article 3 of the Geneva Conventions. Furthermore, he does not dispute that “committed against persons taking no active part in the hostilities” is a proper element of such crimes under customary international law. Rather, he contests the definition of that element and argues that the jurisprudence of the International Tribunal demonstrates that it should be interpreted narrowly to require that such persons be shown to be in the hands of a party to the conflict akin to the “protected person” element for crimes alleged to be grave breaches of the Geneva Conventions under Article 2 of the Statute.  Such arguments are properly raised on the merits at trial[3] and do not demonstrate that the International Tribunal lacks subject-matter jurisdiction over the crimes and the elements of those crimes under Counts 8 and 9 of the Joint Indictment. […]

21. The Appeals Chamber finds that the Appellant […] fails to raise a proper jurisdictional objection within the meaning of Rule 72(D)(iv) of the Rules and to demonstrate that the Trial Chamber erred in rejecting it. Clearly, the Joint Indictment provides that a state of armed conflict existed at all times with respect to the violations of international humanitarian law alleged therein. Whether an armed conflict actually existed post-Operation Storm is a factual determination to be made at trial. It was well within the discretion of the Trial Chamber to consider that determining this issue pre-trial is premature and can only be decided upon hearing and weighing all of the evidence.[4] To the extent that the Appellant claims that the provisions of the  Joint Indictment on this issue are inconsistent or do “not plead any facts supporting the existence of an armed conflict after Operation Storm”,[5] these arguments may constitute allegations of defects in the form of the indictment, which may be challenged under Rule 72(A)(ii) of the Rules.[6] […]

24. The Appeals Chamber considers that the Appellant fails to […] raise[…] a proper jurisdictional objection pursuant to Rule 72(D)(i) of the Rules. Here, the Appellant does not contest the International Tribunal’s jurisdiction over JCE as a mode of liability under Article 7(1) of the Statute, which, as the Trial Chamber noted, is clearly established in the jurisprudence of the International Tribunal.[7] In the Joint Indictment, the Prosecution alleges JCE and its elements, as they are set out in the Tribunal’s jurisprudence, and the Appellant merely challenges the definition and interpretation of a particular element as established in cases subsequent to the Tadić Appeals Judgement.[8] The Appeals Chamber agrees with the Trial Chamber that such a challenge is to be considered on the merits at trial.[9] To the extent that the Appellant submits that the Prosecution has failed to plead an element of this mode of liability properly, such an argument goes to pleading practice and the form of the indictment and is not a challenge to jurisdiction.[10] […]

Fn. 881. […] Because Nizeyimana raised this contention for the first time in his Reply Brief, and thereby deprived the Prosecution of an opportunity to respond, the Appeals Chamber will not address it.

8. […] In addition, the Appeals Chamber recalls that a reply should be limited to arguments contained in the response and that, to the extent the Rule 115 Reply included any completely new submission of law or fact, it was improper.[1]

15. […] However, the Appeals Chamber will only take into account arguments pertaining to documents referred to in the Rule 115 Motion but not initially annexed to it or to alleged changes between the documents filed with the Rule 115 Motion and those filed with the Corrigendum to Rule 115 Motion. The Appeals Chamber notes that the Prosecution Request of 10 February 2006 and the reply thereto may not be used indirectly as a vehicle to make new submissions that should have been made in the Response to Rule 115 Motion or in a timely reply to it. In conformity with this principle, the Appeals Chamber also denies the Appellant’s request to file “a full reply given that the original reply has been expunged from the record”.[2]

70. Moreover, ordinarily a reply is restricted to dealing with issues raised in an opposing party’s response. If a party raises a new argument or request for the first time in a reply then the opposing party is deprived of an opportunity to respond. This could harm the fairness of the appeal proceedings.

At paras 174 and 175, the Appeals Chamber recalled that, when facts upon which a finding of guilt or the sentence depend are under consideration, such finding must be made beyond reasonable doubt.

See also :

-          Stakić Appeal Judgement, para. 219: “A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.[1]”

-          Čelebići Appeal Judgement, para. 763: “[O]nly those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence.”

56.     The Appeals Chamber wishes to recall that it is not its place to interpret the actions of the United Nations in general and that, as an ad hoc United Nations judicial organ, the Tribunal issues decisions within its jurisdiction, as established by Security Council resolution 955,[1] and within the inherent jurisdiction of any tribunal[2].

468. As a preliminary matter, the Appeals Chamber clarifies that it considers that the Prosecution did not exceed the scope of its response brief by arguing that the Indictment was not defective regarding the count of conspiracy to commit genocide. The purpose of a response brief is to give a full answer to the issues raised in the relevant appeal brief[1] and there is nothing in the Rules or the relevant practice directions prohibiting a party from raising an allegation of error in the Trial Judgement in response to an issue raised by the other party. Therefore, the Appeals Chamber finds no merit in Nyiramasuhuko’s argument that the Prosecution should have requested leave to argue that the Trial Chamber erred in finding that the Indictment was defective as regards the charge of conspiracy to commit genocide.

36. [...] [T]he charges against Mladić did not implicate him as a physical perpetrator, concerned a vast amount of territory of Bosnia and Herzegovina, and spanned over three years. Relevant jurisprudence dictates that, while an indictment is required to plead material facts through which the Prosecution seeks to establish an accused’s criminal liability, as the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the Prosecution relies to establish his responsibility as an accessory or a superior to the persons who personally committed the acts giving rise to the charges against him. Indeed, in cases concerning extensive and continuous criminality, specificity with respect to the timing, victims, and location of “representative” incidents of criminality may satisfy the obligation of providing sufficient notice of the nature of the crime to effectively prepare his defence.