Retrial

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Decision on Scope of Partial Retrial - 31.05.2011 HARADINAJ et al.
(IT-04-84bis-AR73.1)

24. Haradinaj is mistaken in his contention that the Impugned Decision’s finding that the Prosecution may seek the admission of evidence beyond that of the two witnesses who were the focus of the Appeal Judgement undermines principles of law geared to “securing certainty and finality in criminal litigation”.[1] The Muvunyi Decision held that “a retrial […] inherently includes the possibility of hearing evidence that was not presented during the initial proceedings” and underscored that the scope of a retrial is determined “by the Appeals Chamber in a particular instance.”[2] Thus the Appeals Chamber is able to set out the appropriate parameters of a retrial, taking into account the specific context of each case, including whether the retrial follows conviction or acquittal, as well as relevant principles of law.

[1] Appeal [Appeal Brief on Behalf of Ramush Haradinaj on Scope of Partial Retrial, 10 February 2011], para. 2. See also ibid., paras 22, 24, 28-29, 51, 54. These legal principles include res judicata, non bis in idem, and issue estoppel (collateral estoppel).

[2] The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR73, Decision on the Prosecutor’s Appeal Concerning the Scope of Evidence to be Adduced in the Retrial, 24 March 2009 (“Muvunyi Decision”), paras 12-13.

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Decision on Scope of Partial Retrial - 31.05.2011 HARADINAJ et al.
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25. The Appeals Chamber is unconvinced by Haradinaj’s contention that decisions regarding the admission of evidence made in the course of his first trial should be binding on the Trial Chamber conducting his retrial.[1] The different contexts in which the two trials are held mean that evidentiary decisions proper in one case may not be proper in the other. In this situation, the prospect of inconsistency on an evidentiary point between a trial and a retrial is not unfair and does not risk jeopardizing public confidence in the administration of justice by the Tribunal.

[1] See Appeal, paras 20, 22, 54.

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Decision on Scope of Partial Retrial - 31.05.2011 HARADINAJ et al.
(IT-04-84bis-AR73.1)

26. The Appeals Chamber underscores that whether a retrial follows acquittal or conviction is not necessarily insignificant. However the context of each retrial is unique, and the impact of a previous conviction or acquittal can only be addressed by taking into account this individual context. Any potential for undue prejudice to a defendant in a retrial following an acquittal should be addressed through both the Appeals Chamber’s careful delineation of a retrial’s parameters and the Trial Chamber’s continuing duty to apply fair trial principles.[1] In this context, the Appeals Chamber directs the Trial Chamber, when determining the admissibility of evidence in the retrial, to be particularly mindful of any potential prejudice that the admission of new evidence may cause to the fair trial rights of the Accused. Where the Prosecution seeks to introduce evidence that was excluded in prior proceedings, the Trial Chamber should explicitly consider whether re-litigation of this same issue in the retrial would be unduly prejudicial. If such is the case, the evidence must be excluded.

[1] See Muvunyi Decision, para. 18, which states: “[a]ll fair trial principles governing trial also apply to the retrial proceedings.”

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Decision on Scope of Partial Retrial - 31.05.2011 HARADINAJ et al.
(IT-04-84bis-AR73.1)

32. […] Since the Trial Chamber may not make findings with respect to Haradinaj’s responsibility beyond those in the six counts alleged, the Appeals Chamber finds […] that consideration of the broader JCE in the context of the partial retrial does not place him in potential double jeopardy or otherwise affect his fundamental rights and interests.

39. Since the Trial Chamber cannot make findings with respect to Haradinaj’s criminal responsibility beyond that alleged in the six counts which are the subject of the retrial, the Appeals Chamber considers […] that the inclusion of the […] general allegations in the “Statement of Facts” of the Operative Indictment does not expose Haradinaj to any additional charges or render the retrial unfair per se.[1]

40. It will be for the Trial Chamber, applying the normal rules of admissibility of evidence, to assess the relevance and probative value of evidence proffered by the Prosecution in relation to such general allegations, and to decide if consideration of such evidence would unduly prejudice Haradinaj in the context of retrial following acquittal.

Judge Robinson appended a partially dissenting opinion on the issue of double jeopardy.

[1] The Appeals Chamber notes that in the Muvunyi retrial, the Indictment from the original trial remained the operative indictment for the retrial without any amendment, despite the fact that at trial Muvunyi had been acquitted of one charge and another charge had been dismissed. See The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-I, Indictment, 23 December 2003; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Judgement and Sentence, signed on 12 September 2006 and filed on 18 September 2006, para. 531; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-T, Judgement, 11 February 2010, para. 2, fn. 3. 

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Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

The Appeals Chamber ordered a retrial for one count of direct and public incitement to commit genocide:

148. These aggregate errors in addressing the apparently inconsistent testimony of Witnesses YAI, CCP, and MO78 prevent the Appeals Chamber from determining whether the Trial Chamber assessed the entire evidence on this point exhaustively and properly. In such circumstances, the Appeals Chamber is forced to conclude that Muvunyi’s conviction for direct and public incitement to commit genocide on the basis of his alleged speech at the GikoreTradeCenter is not safe and, accordingly, quashes it. The Appeals Chamber further finds that the present situation gives rise to appropriate circumstances for retrial pursuant to Rule 118(C) of the Rules, limited to the allegations considered under this ground of appeal. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. In the present situation, the Appeals Chamber is well aware that Muvunyi has already spent over eight years in the Tribunal’s custody. At the same time, the alleged offence is of the utmost gravity and interests of justice would not be well served if retrial were not ordered to allow the trier of fact the opportunity to fully assess the entirety of the relevant evidence and provide a reasoned opinion. 

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Appeal Judgement I - 29.08.2008 MUVUNYI Tharcisse
(ICTR-2000-55A-A)

The Appeals Chamber also held that:

170. […] [G]iven that the order for retrial originated in the appeal by Muvunyi, the Appeals Chamber considers that the principle of fairness[1] demands that in the event that a new Trial Chamber was to enter a conviction for the respective charge, any sentence could not exceed the twenty-five years of imprisonment imposed by the first Trial Chamber.

[1] In some jurisdictions also specifically referred to as prohibition of reformatio in peius, meaning that a court solely seized of an appeal lodged by the accused cannot increase the sentence. See for instance for the United Kingdom: Criminal Appeal Act of 1968, Schedule 2, Section 2(1); Germany: Strafprozeßordnung (Code of Criminal Procedure), Sections 331 and 358(2); Austria: Strafprozeßordnung (Code of Criminal Procedure), Sections 290(2) and 293(3); Denmark: Retsplejeloven, Fjerde bog, Strafferetsplejen (Administration of Justice Act, Fourth Chapter, Criminal Proceedings), Sections 960(3)(2) and 965a(2).

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Appeal Judgement - 05.07.2001 JELISIĆ Goran
(IT-95-10-A)

Following its finding that the Trial Chamber’s acquittal for genocide did not meet the standard set forth in Rule 98bis(B), the Appeals Chamber used its discretion pursuant to Rule 117(C) of the Rules to order that there be no retrial on the one count of genocide:

 

73. […] [T]his discretion is recognised as well in the wording of Rule 117(C) of the Rules which provides that in “appropriate circumstances the Appeals Chamber may order that the accused be retried according to law”.[1] Similarly, national case law gives discretion to a court to rule that there should be no retrial.[2] The discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest.  These factors (and others) would be determined on a case by case basis. […]

 

[1] Cf. Rigby v. Woodward [1957] 1 WLR 250, and Griffith v. Jenkins and another, (1991) 156 JP 29.

[2] For a solution of this kind, see inter alia, Cosier case, Barking case.  See also United States v. Hooper, 432 F.2nd 604, 139 U.S.App.D.C.171 (1970), United States v. Lindsey, 47 F.3d 440, 310 U.S. App.D.C.300 (1995).

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Appeal Judgement - 09.05.2007 BLAGOJEVIĆ & JOKIĆ
(IT-02-60-A)

Blagojević requested a new trial to rectify alleged violations of his right to counsel of his choice, right to competent counsel, and right to appear as a witness in his own trial.

21. […] The Appeals Chamber considers that an appellant cannot premise a request for a new trial on a claim of a total breakdown in communication in circumstances where the appellant unjustifiably refused to cooperate with his or her assigned counsel throughout the trial proceedings.

Also see infra on Judge Shahabuddeen’s Dissenting Opinion.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

625. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research.  Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems.  The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy.[1]  The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber.[2]

626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep.[3]  […]

[…]

630. […] As stated earlier, the national jurisprudence indicates that, before a remedy will be granted on the basis that a judge has been asleep or otherwise inattentive, it must be proved that some identifiable prejudice was caused thereby to the complaining party.[4]  In some continental systems where the sleeping or inattention of a judge may form the basis for a ground of appeal or revision of a judgement – for example, because the court was thereby not properly constituted[5] – no separate reference is made to the necessity to demonstrate prejudice before such a ground would succeed.  However, in order to establish a violation in those cases, a party must prove that the judge in question was unable to perceive “essential” or “crucial” events in the hearing.[6]  If such a standard of judicial inattention has been proved, some actual prejudice must necessarily have been incurred, or at least the proceedings must necessarily have been defective in a material way.  The complaining party must prove the relevant prejudice by clear evidence.[7]  Indeed, it has been held that to grant a new trial on the basis of the inattention of a juror without clear proof of any prejudice caused thereby constitutes “a clear abuse of discretion”.[8]

631. The prejudice which must be proved may be manifested where the judge fails in some identifiable way to assess the evidence properly or expresses an incorrect understanding of the evidence which was given or the submissions which were put.[9]  Elsewhere, it has been held that what must be proved is that the judge is completely inattentive to such a substantial or significant part of the proceedings that there has been a “significant defect” in the proceedings.[10]  The failure of counsel to object or to call attention to a judge’s sleeping or inattention during the proceedings is relevant to the question as to whether prejudice has been established.  Failure of counsel to object will usually indicate that counsel formed the view at the time that the matters to which the judge was inattentive were not of such significance to his case that the proceedings could not continue without attention being called thereto.[11]

632. The necessity that an appellant establish that some prejudice has actually been caused by a judge’s inattention before a remedy will be granted is simply a matter of common sense.  It is clear that there are a number of legitimate reasons why a judge’s attention may briefly be drawn away from the court proceedings before him or her, including taking a note of the evidence or of a particular submission or looking up the transcript to check evidence previously given.  It has been recognised in national jurisprudence that instances of inattention of that nature do not cause prejudice or undermine the fairness of the trial, but are an integral part of a judge’s task in assessing the case before him or her.[12]

633. Moreover, where a judge of this Tribunal misses any evidence, there is not only a transcript to be read but also a video-tape to be viewed if the demeanour of the witness needs to be checked, and there are the observations of the other two judges to assist.  Indeed, for these reasons it has been recognised in the Rules of Procedure and Evidence of the Tribunal that the short absence of a judge from trial proceedings need not necessarily prevent the continuation of the proceedings in the presence of the remaining two judges.  Rule 15bis(A) states: 

If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Trial Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than three days.

Although this rule was not in force at the time of the Čelebići trial proceedings,[13] the fact of its adoption is a clear demonstration that the judges of the Tribunal meeting in plenary considered it to be consistent with the principles of a fair trial and with the Statute of the Tribunal to permit proceedings to be conducted in the temporary absence of one judge.

[…]

637. Reliance was also placed by Landžo on the principle that there must be the appearance of a fair trial,[14] with the implication that even proof of an appearance that a judge was sleeping during proceedings is an adequate foundation for relief without proof of prejudice. […]

638. […] The Appeals Chamber does not accept that this was the correct approach.  In relation generally to the right to a fair trial under Article 6 of the European Convention on Human Rights, the European Court of Human Rights has held that, despite

[…] the importance of appearances in the administration of justice, […] the standpoint of the persons concerned is not in itself decisive.  The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified […].[15]

See also paragraphs 640-649.

 

[1]    Cases relating to jurors alleged to have been asleep during a trial are included in the present consideration.

[2]    [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A (“Čelebići Case”), Supplemental Brief of the Appellant, Esad Landžo, in Support of the Fourth Ground of Appeal (Sleeping Judge), 7 December 1999], pp 7-8; [Čelebići Case, Respondent’s Brief of the Prosecution in Relation to Esad Landžo’s Fourth Ground of Appeal, 28 Jan 2000], para 3.3.

[3]    R v Caley [1997] WCBJ 1714 (British Columbia Supreme Court), at para 25 (to grant relief on the basis of the inattention of the judge there must be “clear and overwhelming evidence”); Sanborn v Commonwealth 975 SW 2d 905 (1998), at 911 (Supreme Court of Kentucky); Commonwealth v Keaton, 36 Mass App Ct 81 (1994), at 87; Bundesgerichtshof, Vol 11, p 74, Judgement of 22 November 1957 (German Federal Supreme Court of Justice); Bundesverwaltungsgericht, Judgement of Supreme Administrative Court, 24 Jan 1986 at para 12; [1986] Neue Juristiche Wochenschrift 2721, at 2721; Illinois v McCraven 97 Ill App 3d 1075 (1981) (Appellate Court of Illinois), at 1076; People v Thurmond 175 Cal App 3d 865 (1985) (Court of Appeal, 2d District), at 874; Commonwealth Bank of Australia v Falzon [1998] VSCA 79, para 10 (Supreme Court of Victoria, Court of Appeal).

[4]    R v Moringiello [1997] Crim LR 902; R v Edworthy [1961] Crim LR 325; R v Tancred 14 April 1997, Court of Appeal (Criminal Division); Kozlowski v City of Chicago 13 Ill App 513 (the fact that a juror fell asleep during proceedings, absent an affirmative showing of prejudice to the complainant, is not a ground for a new trial); State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio) (must be a showing of “material prejudice”).

[5]    See, in Germany, the Strafprozeßordnung, which provides by Article 338 (1) that an absolute ground for revision of a judgement is that the trial court was not constituted as provided.  Article 338 (1) may be violated where a judge or lay assessor is asleep or otherwise “absent”.

[6]    Bundesverwaltungsgericht (Supreme Administrative Court) Judgement of 24 January 1986, [1986] Neue Juristiche Wochenschrift 2721, at 2721; Bundesgerichtshof (Federal Supreme Court of Justice) Vol 2, p 14, Judgement of 23 November 1951.

[7]    State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio); United States of America v White and Keno 589 F 2d 1283 (1979) (Court of Appeals, 5th Circuit), at 1289.

[8]    Ferman v Estwing Manufacturing Company, 31 Ill App 3d 229, at 233.

[9]    See, e.g., Espinoza v The State of Texas, Tex App Lexis 5343, Judgement of 21 July 1999.

[10]   Stathooles v Mount Isa Mines Ltd [1997] 2 Qd R 106 (Queensland Court of Appeal), at 113.

[11]   The Chicago City Railway Company v John Anderson 193 Ill 9 (1901), at 13.

[12]   Bundesgerichtshof (Federal Supreme Court of Justice) Vol 11 p 74, 22 November 1957, at 77:  “There are numerous matters of behaviour and other circumstances by which a judge may give the impression to participants, especially to a defendant who is a layman in law, that he did not pay attention to a part of the events of the proceedings.  Such an impression can even be made by actions to which the judge is legally obliged [sic]”.

[13]   It was adopted at the Twenty-first Plenary Session, 15-17 Nov 1999, (Revision 17 of the Rules) and entered into force on 7 Dec 1999.  The words “or for reasons of authorised Tribunal business” were inserted by Revision 19 of the Rules, with effect from 19 Jan 2001.

[14]   Appeal Transcript, p 692.

[15]   Kraska v Switzerland, Case No 90/1991/342/415, Judgement of 19 April 1993, para 32.

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Appeal Judgement - 09.12.2015 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-A)

122. The Appeals Chamber recalls that it has found, Judge Afanđe dissenting, that the Trial Chamber erred in law in failing to make the necessary findings on the existence and scope of a common criminal purpose shared by a plurality of persons.[1] The Appeals Chamber further recalls that it has found, Judge Agius and Judge Afanđe dissenting, that the Trial Chamber erred in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[2] In accordance with the well-established standard of appellate review, where the Appeals Chamber finds an error of law in the trial judgement arising from the application of a wrong legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.[3]

123. In light of the nature and scale of the errors of law identified by the Appeals Chamber in this case, Judge Agius dissenting with respect to the Error on Aiding and Abetting Liability and Judge Afanđe dissenting with respect to the Error on JCE Liability and the Error on Aiding and Abetting Liability, were the Appeals Chamber to conduct its own review of the relevant factual findings of the Trial Chamber, applying the correct legal standards, it would first have to turn to the Error on JCE Liability and make findings on the existence and scope of a common criminal purpose shared by a plurality of persons and then proceed to assess Stanišić’s and Simatović’s contribution and intent for JCE liability. Depending on the result of such an analysis, the Appeals Chamber might then have to turn to the Error on Aiding and Abetting Liability.

124. However, the Appeals Chamber, Judge Afanđe dissenting, is of the view that it would be inappropriate to conduct this analysis as it would have to analyse the entire trial record without the benefit of having directly heard the witnesses in order to determine whether it is itself satisfied with respect to the requirements of JCE liability and, depending on the result of such an analysis, with respect to the requirements of aiding and abetting liability. Indeed, the evidence on which the Prosecution relies to establish the common criminal purpose and the mens rea for JCE liability is of a circumstantial nature[4] and it would not be sufficient for the Appeals Chamber to focus on limited pieces of evidence or the existent findings in the Trial Judgement, which do not thoroughly address the evidence relevant to the common criminal purpose or the plurality of persons.[5] In this regard, the Appeals Chamber also notes the scale and complexity of the case, with a trial record containing 4,843 exhibits[6] and the testimony and/or written statements of 133 witnesses,[7] the contents of which span wide swaths of Croatia and Bosnia and Herzegovina over a four and a half year time period (April 1991 – 31 December 1995) and pertain to multiple statutory crimes, numerous armed groups, and various high-ranking alleged JCE members.[8] Assessing this trial record in its entirety without having directly heard the witnesses would not allow the Appeals Chamber to fairly and accurately determine Stanišić’s and Simatović’s criminal responsibility.

125. In light of the above, in determining the subsequent course of action, the Appeals Chamber may exercise a certain discretion.[9] In accordance with Rule 117(C) of the Rules, the Appeals Chamber may order a retrial in appropriate circumstances.[10] In addition, the Appeals Chamber also has an inherent power to control its proceedings in such a way as to ensure that justice is done by remitting limited issues to be determined by either the original or a newly composed trial chamber.[11]

126. The Appeals Chamber notes that, of the three judges of the original Trial Chamber, who directly heard the witnesses at trial, Judge Picard and Judge Gwaunza no longer hold office at the Tribunal. Therefore, it is impractical to remit the case to the original Trial Chamber composed of the same three Judges, who would have been best placed to make the necessary findings on the basis of the original trial record. Should the case be remitted to a newly composed trial chamber to do this exercise solely on the basis of the original trial record, it would encounter similar difficulties to those which would be encountered by the Appeals Chamber as a result of not having directly heard the witnesses.

127. Accordingly, and recalling that an appeal is not a trial de novo,[12] the Appeals Chamber, Judge Afanđe dissenting, finds that this case gives rise to appropriate circumstances for a retrial pursuant to Rule 117(C) of the Rules. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. While the Appeals Chamber is well aware that Stanišić and Simatović have spent nearly five years and four years and eight months, respectively, in detention, it is of the view that the alleged offences are of the utmost gravity and considers, Judge Afanđe dissenting, that, in the circumstances of this case, the interests of justice would not be well served if a retrial were not ordered.

[1] See supra, paras 80, 88, 90.

[2] See supra, paras 106, 108.

[3] See supra, para. 17.

[4] See Prosecution Appeal Brief, paras 44-101, 104.

[5] See supra, paras 27-61, 83, fn. 320. The Appeals Chamber further stresses that the Prosecution relies on the evidence “in its totality”. See, e.g., Prosecution Appeal Brief, paras 100, 104. In addition, due to the circumstantial nature of the evidence, the same impediment would arise if the Appeals Chamber were to assess the requirements of aiding and abetting liability.

[6] Trial Judgement, para. 12.

[7] Trial Judgement, paras 8-10.

[8] See, e.g., supra, paras 4, 28.

[9] Jelisić Appeal Judgement, para. 73.

[10] Haradinaj et al. Appeal Judgement, paras 50, 377; Muvunyi I Appeal Judgement, paras 148, 171. See also Orić Appeal Judgement, para. 187; Jelisić Appeal Judgement, para. 73.

[11] Čelebići Appeal Judgement, paras 711, 713, p. 306 (Disposition, items nos 2-4); Mucić et al. Appeal Judgement on Sentence, paras 3, 9-10, 16-17.

[12] See supra, para. 15.

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Appeal Judgement - 09.12.2015 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-A)

128. Finally, Judge Afanđe dissenting, if the new trial chamber were to examine the responsibility of Stanišić and Simatović for aiding and abetting the crimes, the Appeals Chamber, Judge Agius and Judge Afanđe dissenting, instructs it to apply the correct law on aiding and abetting liability as set out above, which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[1] In this regard, the Appeals Chamber notes that the principle of lex mitior, as alleged by Simatović, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law,[2] as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the Tribunal has to apply.[3] Accordingly, the Appeals Chamber dismisses Simatović’s argument in this respect.[4]

[1] See supra, paras 104-106.

[2] Deronjić Appeal Judgement, para. 96; D. Nikolić Appeal Judgement, para. 81.

[3] See supra, paras 104-105.

[4] See supra, para. 119. 

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