Both the accused and the Prosecution appealed the Trial Chamber’s Judgement of 7 May 1997. The accused also appealed the Sentencing Judgement.

In its Judgement of 15 July 1999, the Appeals Chamber denied Dusko Tadic’s appeal against the Trial Chamber’s Judgement of 7 May 1997 on all grounds. However, allowing the Prosecution’s cross-appeal, the Appeals Chamber reversed that Judgement in part and found the accused guilty on counts 8, 9, 12, 15, 21, 29 and 32 of the indictment charging him on the basis of individual criminal responsibility for grave breaches of the 1949 Geneva Conventions (Article 2 of the Statute), namely, wilful killing, torture or inhuman treatment, and wilfully causing great suffering or serious injury to body or health. The Appeals Chamber also reversed the Trial Chamber’s Judgement in respect of count 30, alleging a violation of the laws or customs of war (Article 3 of the Statute), namely, murder, and in respect of count 31, charging a crime against humanity (Article 5 of the Statute), namely, murder.1

This summary cannot address all the legal issues or be a substitute for the subtly formulated legal considerations and findings in the Judgement. The following merely highlights the most important legal aspects of the Judgement.

The parties did not dispute that the right to a fair trial covers the principle of equality of arms, but while the Prosecution maintained that this principle is restricted to procedural equality the Defence argued that the principle also extends to substantive equality.

In agreement with the Defence, the Appeals Chamber held that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for the preparation of his defence, a right embodied in Article 21(4)(b) of the Statute. The Appeals Chamber concluded from the jurisprudence of the European Court of Human Rights that the principle of equality of arms obligates a judicial body to ensure that in the presentation of its case neither party is put at a disadvantage. Furthermore, that jurisprudence does not suggest that the principle is applicable to conditions outside the control of the Court. The Appeals Chamber further found that the Human Rights Committee had interpreted the principle in a procedural sense only.

However, the Appeals Chamber considered that in contrast to national courts the Tribunal does not have enforcement powers. In order to hold trials it is dependent on the co-operation of States and the ultimate recourse in the case of the failure by a State to co-operate in violation of Article 29 of the Statute is a referral to the Security Council. The Appeals Chamber therefore held that the principle of equality of arms must be given a more liberal interpretation than in a domestic context. The assistance which a Trial Chamber must provide to either party includes inter alia adopting witness protection measures, issuing binding orders to States for the production of evidence and, ultimately, if so required by the circumstances, adjourning or staying the proceedings.

The Appeals Chamber held that a party cannot remain silent about any difficulties encountered in the presentation of its case and request a trial de novo before the Appeals Chamber, as the Defence did in this case. In the absence of evidence that the Trial Chamber failed to assist the Appellant when so requested, the Appeals Chamber found that it had not been established that the protection of the principle of equality of arms was not extended to the accused at trial. It consequently dismissed this ground of appeal.

2. The accused’s third ground of appeal3

The Trial Chamber found the accused guilty of the murder of two men on the basis of the testimony of only one witness. The Appeals Chamber first considered that it is the practice of this Tribunal and the International Criminal Tribunal for Rwanda to accept as evidence the testimony of a single witness on a material fact without corroboration.

However, according to the Defence submission, the witness was unreliable because he was introduced through the Government of Bosnia and Herzegovina, the same source as that used for another Prosecution witness who was withdrawn at trial for being untruthful. By contrast, reviewing the admission and treatment of the testimony at trial, the Appeals Chamber found that the Trial Chamber had not erred in having relied on that testimony. The Appeals Chamber also rejected a further assertion by the Defence that the evidence of the witness was inherently implausible.

Finding no reason to overturn the Trial Chamber’s finding, the Appeals Chamber consequently rejected the Appellant’s ground of appeal.

3. The Prosecution’s first ground of cross-appeal4

The Trial Chamber by majority acquitted the accused of all counts charging violations of Article 2 of the Statute on the ground that it had not been proved that the victims were "protected persons" pursuant to the applicable provisions of the Fourth Geneva Convention of 1949. On appeal, the Prosecution maintained that all relevant criteria under Article 2 of the Statute had been met.

The Appeals Chamber considered that in order for Article 2 of the Statute to apply there must first be an international armed conflict. This was held in the Appeals Chamber’s "Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction" of 2 October 1995 in the Tadic case. Second, the victims must be "protected persons" according to any of the four Geneva Conventions.

a) The nature of the conflict5

The Appeals Chamber considered that a conflict is international if it takes place between two or more States. Furthermore, an internal armed conflict may become international if another State intervenes through its troops or if some of the participants to the conflict act on behalf of another State. The Appeals Chamber found that there is sufficient evidence to justify the Trial Chamber’s finding that until 19 May 1992 the conflict between Bosnia and Herzegovina (BH) and the Federal Republic of Yugoslavia (FRY) was international in nature. The question was whether, after that date, Bosnian Serb forces, in whose hands the Bosnian victims found themselves, could be considered de jure or de facto organs of the FRY.

Approaching the issue from the viewpoint of international humanitarian law, the Appeals Chamber’s discussion started with Article 4 of the Third Geneva Convention of 1949 according to which paramilitary and other irregular troops may be regarded as lawful combatants if they "belong to a party to the conflict". International rules and State practice require both control over such troops by a party to an international armed conflict and a relationship of dependence and allegiance. International humanitarian law further holds accountable not only those having formal positions of authority but also those with de facto power or control over perpetrators of serious violations of its provisions.

However, international humanitarian law does not provide the criteria for determining when a group or individuals may be regarded as being under the control of a State, that is, acting as de facto State officials. The Appeals Chamber instead referred to general international rules on State responsibility and considered the Nicaragua case decided in the International Court of Justice, a case which dealt inter alia with the responsibility of the United States for violations of international humanitarian law by organised (para)military groups in Nicaragua. Since what is at stake is the legal imputability to a State of acts by non-State officials, as a preliminary matter the Appeals Chamber disagreed with the Prosecution that because Nicaragua deals with State responsibility it would be immaterial to the present case of individual criminal responsibility.

According to the Appeals Chamber’s interpretation, in Nicaragua the ICJ distinguished between 1) groups of individuals who have the status of State officials, which can be determined through an "agency" test, and 2) those who do not have that status. In the latter case, the test spelled out by the ICJ is "effective control" which, rather than providing an alternative test, entails the requirements for the test of "dependency and control". For State responsibility to arise under the second test, the State must not only pay or finance the private individuals and co-ordinate or supervise their action but also issue specific instructions concerning the perpetration of the unlawful acts at stake.

The Appeals Chamber did not consider persuasive the test enunciated in Nicaragua. First, on the basis of the International Law Commission’s Draft on State Responsibility, it found that international law on State responsibility is founded on a realistic concept of accountability which transcends legal formalities. A State is responsible for acts by individuals who make up an organised group under its overall control irrespective of whether or not it issued specific instructions.

Second, the Appeals Chamber found that the "effective control test" in Nicaragua as an exclusive and all-embracing test is at variance with judicial and State practice. Such institutions as the Mexico-United States General Claims Commission, the Iran-United States Claims Tribunal and the European Court of Human Rights have upheld Nicaragua in the case of individuals or unorganised groups of individuals acting on behalf of States but have accepted a lower degree of control in the case of (para)military groups.

Considering the facts as established by the Trial Chamber, the Appeals Chamber held that in 1992 "the armed forces of the Republika Srpska were to be regarded as acting under the overall control of and on behalf of the FRY." Consequently, the armed conflict in BH between the Bosnian Serbs and the central authorities of BH remained of an international character after 19 May 1992.

In his Separate Opinion6, Judge Shahabuddeen reached the same conclusion as the majority in the Appeals Chamber but for different reasons. In his view, the question was whether an armed conflict between the FRY and BH took place, that is, whether the FRY used force against BH through the Bosnian Serb army. In the circumstances of the Nicaragua case, the ICJ found that the arming and training of (para)military groups amounted to the use of force. Likewise, considering the facts of the present case, Judge Shahabuddeen held that the FRY and BH were in armed conflict. According to him, in challenging Nicaragua, the majority of the Appeals Chamber considered the distinguishable question of whether the FRY was responsible for violations of international humanitarian law committed by the Bosnian Serbs.

b) The status of the victims7

The Appeals Chamber then moved to the second requirement for the applicability of Article 2 of the Statute, namely, that the victims be "protected persons". Article 4 of the Fourth Geneva Convention defines such persons as those "in the hands of a party to the conflict or Occupying Power of which they are not nationals". According to its preparatory work, however, the Convention’s protection extends to refugees with the same nationality as the party in whose hands they find themselves but who do not owe allegiance to that party and enjoy its diplomatic protection. In the cases under Article 4(2) of the Fourth Geneva Convention, the absence of diplomatic protection automatically leads to granting the status of "protected persons". Hinging on substantial relations rather than formal bonds, the Appeals Chamber found that this legal approach is even more important in modern international armed conflicts in which nationality is no longer necessarily the primary ground for allegiance. Moreover, the Fourth Geneva Convention’s object and purpose support this approach.

The Appeals Chamber found that the victims in the instant case were therefore "protected persons" since they did not owe allegiance to and did not receive diplomatic protection from the FRY on whose behalf the Bosnian Serb armed forces were fighting. In its view, the argument that until October 1992 the nationals of the FRY and BH had the same nationality, namely, that of the Socialist Federal Republic of Yugoslavia, does not change that status.

8. The Prosecution’s second ground of cross-appeal8

The Trial Chamber found the accused not guilty of killing five men from the village of Jaskici. While the Prosecution accepted the factual findings of the Trial Chamber, it argued that the Trial Chamber had misdirected itself on the application of the law on the standard of proof beyond reasonable doubt and the application of the common purpose doctrine.

As to the first ground, the Trial Chamber found that the accused was a member of an armed group responsible for the "ethnic cleansing" of the village after which the five men were found killed. Although no witness suggested this, because another armed group might have killed those victims, the Trial Chamber held that the Prosecution had not discharged its burden of proof. The Appeals Chamber disagreed and held that on the basis of the facts the only reasonable conclusion could have been that the group of which the accused was a member was responsible for the killing. The question was whether the accused can be held criminally responsible for the deaths of the five men despite the absence of evidence that he personally killed any one of them.

The basic principle nulla poena sine culpa, according to which nobody may be held criminally responsible for acts or transactions in which he has not personally engaged or in some way participated, is enshrined in Article 7(1) of the Statute. The Appeals Chamber considered that this provision first and foremost covers the physical perpetration of a crime or the culpable omission of an act mandated by a rule of criminal law. However, the Statute’s object and purpose, the wording of Articles 7(1) and 2 to 5, which set forth the Tribunal’s subject matter jurisdiction, and the Secretary-General’s Report led the Appeals Chamber to the conclusion that a person who contributes to the commission of a crime by (members of) a group in execution of a common criminal purpose bears criminal liability. This is further warranted by the common manifestations of collective criminality in wartime.

In order to identify the required actus reus and the mens rea for this form of collective responsibility the Appeals Chamber turned to customary international law. Post-World War II case-law points to three categories of collective responsibility. In the first category cases the co-defendants voluntarily participate in one aspect of the common design and intend its result. In the second category, in actuality really a variant of the first, the accused actively participates in the enforcement of a system of repression with the knowledge of the nature of that system and the intent to further the common concerted design. Cases in the third category, which is relevant to the present case, are categorised by "a common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose."

In addition to case-law, the notion of common plan has been upheld in at least two treaties: the International Convention for the Suppression of Terrorist Bombing and the Statute of the International Criminal Court. Although not yet in force, the Appeals Chamber held that both instruments constitute significant evidence of the legal views of many States. It further held that the notion of common purpose in international criminal law is underpinned in many national legal systems although such support is not strong enough to form a basis for relying on the doctrine of the "general principles of law recognised by the nations of the world" as a source of international principles or rules.

Applying the "third category" notion of "common purpose" to the facts of the case, the Appeals Chamber found that the Trial Chamber should have found the accused guilty under Article 7(1) of the Statute of the ICTY.

The Trial Chamber held that for a conviction of crimes against humanity, a nexus between the armed conflict and the acts in question must be proved. This means inter alia that a crime against humanity must not have been committed for the purely personal motives of the perpetrator. It is against this finding that the Prosecution appealed. Although the parties did not dispute that the matter had no bearing on the Judgement in terms of Article 25(1) of the Statute, the Appeals Chamber nevertheless set forth its view on the issue because it is of general significance for the Tribunal’s jurisprudence.

According to the Appeals Chamber, Article 5 of the Statute requires only that the acts must comprise part of a pattern of widespread or systematic crimes directed against any civilian population and that the accused must have known that his acts fit into such a pattern. The existence of an armed conflict is a jurisdictional requirement rather than a substantive element of the mens rea of crimes against humanity. It is incorrect to require that the motives of the accused not be unrelated to the armed conflict. Indeed, proof of the accused’s motives is not required at all, except at the sentencing stage.

In the Appeals Chamber’s view, the weight of the post-World War II case law reviewed, including so called "denunciation cases", warrants the proposition that under customary international law purely private motives are not relevant for establishing whether or not a crime against humanity has been perpetrated.

In his Separate Opinion10, Judge Shahabuddeen held that where an accused acted out of purely personal motives, the act might not qualify as a crime against humanity. However, this is not because the absence of personal reasons is an element to be proved by the Prosecution, which it is not, but because the evidence may show that the act was not directed against a civilian population. Judge Nieto-Navia appended a Declaration11 in which he joined in the reasoning and conclusion of Judge Shahabuddeen. However, he added that "there must be a proximate connection between the underlying act(s) and the surrounding armed conflict. An unlawful act perpetrated in the context of an armed conflict, but unrelated to the hostilities, is a common crime under national law."

10. The Prosecution’s fourth ground of cross-appeal12

The Prosecution submitted that the Trial Chamber erred in finding that crimes against humanity must be committed with a discriminatory intent. As it did with the third ground of cross-appeal, although not prima facie falling within the scope of Article 25 of the Statute, the Appeals Chamber nevertheless set forth its views on the issue since it is of general significance for the Tribunal’s jurisprudence.

According to the Appeals Chamber, the ordinary meaning of the text of Article 5 of the Statute makes clear that a discriminatory intent is required only for the crime of persecutions punishable under Article 5(h). This is further warranted by a logical interpretation and by the object and purpose of Article 5.

The Appeals Chamber further held that this conclusion is consonant with customary international law. The text of various post-World War II international instruments is clear and indisputable and support can also be found in the International Law Commission’s (hereinafter "ILC") Draft Code of Offences Against the Peace and Security of Mankind, and the Statute of the International Criminal Court. The conclusion is also upheld by national jurisprudence.

Although the Appeals Chamber recognised that the conclusion is not supported by the Report of the Secretary-General, it held that that Report does not have the same legal status and binding authority as the Statute. It also found that the Report does not provide sufficient evidence that the Statute deviates from customary international law. Despite the conspicuous discrepancy between the Report and the Statute, it would seem that the latter’s unambiguous language makes it unnecessary to consider the former. Finally, it may be argued that the Report describes rather than legally stipulates a definition of crimes against humanity binding on the Tribunal.

The Appeals Chamber also acknowledged that its interpretation of Article 5 is not in keeping with statements three members of the Security Council made prior to adopting the Statute. While recognising their interpretative weight, the Appeals Chamber held inter alia that those statements should not be taken to form part of the "context" of the Statute within the meaning of Article 31 of the Vienna Convention on the Law of Treaties. It held that it may further be argued that the statements actually aimed at stressing the "widespread and systematic" nature of crimes against humanity while also pointing out that, in actual fact, most atrocities in the former Yugoslavia were committed with a discriminatory intent. Lastly, although the statements may be interpreted as travaux préparatoires under customary law as codified in Article 32 of the Vienna Convention, the travaux préparatoires may be resorted to only in cases of ambiguity or obscurity of the principal normative instrument.

11. The Prosecution’s fifth ground of cross-appeal13

This ground of appeal arose out of a Trial Chamber Decision14 dated 27 November 1996 in which the majority rejected a Prosecution motion for disclosure of a prior statement of a Defence witness after he had testified. Lacking the powers under Article 25 of the Statute, the Appeals Chamber nevertheless ruled on the matter since it involves an important point of law.

The issue in point is the credibility of evidence which the Trial Chamber must be able to ascertain in order to fulfil its mandate. Also relevant are inter alia Article 20(1), 21 and 22 of the Statute concerning the need to ensure a fair and expeditious trial, the rights of the accused, and the protection of victims and witnesses, respectively.

The question is whether the Tribunal has the power to order disclosure of a Defence witness statement after his testimony in court. The Appeals Chamber found that this power is inherent in the Tribunal’s jurisdiction because it is "essential for the carrying out of judicial functions and ensuring the fair administration of justice". Although not yet in force at the time of the Decision under discussion, Sub-rule 73 ter (B) of the Rules of Procedure and Evidence, on the production of a Defence witness’ statement summary before his testimony, supports this finding. Rule 97 relates to lawyer-client privilege and cannot be relied on.

Depending on the circumstances, the Trial Chamber may order disclosure of a witness statement only if so requested by the Prosecution. The Appeals Chamber noted that, pursuant to Rule 68, only the Prosecution is obliged to disclose exculpatory evidence. The provisions of Sub-rules 89(C), (D) and (E), regarding the admission of evidence, and 90(F), relating to self-incrimination of a witness, are still applicable.

Judge Shahabuddeen,15 joined by Judge Nieto-Navia,16 agreed with the conclusion of the Appeals Chamber but elaborated on its reasoning. He held that while the Prosecution is bound to provide to the Defence not only exculpatory evidence but also copies of statements of Prosecution witnesses, Sub-rule 66(C) does not grant the Prosecution the right to inspect Defence witness statements. Sub-rule 73 ter (B) further implies that the Prosecution does not have such a right. Accordingly, the Defence litigation privilege is only lost where it is waived, as when the Defence puts a Defence witness statement in issue. Only on a similarly limited basis and where in the particular circumstances it would assist in ascertaining the truth may the disclosure of Defence witness statements be ordered. According to Judge Shahabuddeen, it is not clear that this conclusion is inconsistent with the position taken by the majority of the Trial Chamber.

Finally and on a general note, in his Declaration based on a brief survey of domestic practice, Judge Nieto-Navia held that there is no general principle of law prohibiting prosecution appeals against acquittals.17 He therefore did not analyse whether Article 25 of the Statute is consistent with the principle of non bis in idem, but opined that the Appeals Chamber should analyse at the sentencing stage "whether a successful Prosecution appeal should put the person in a worse position than that at the end of trial ("reformatio in pejus")."