General criteria

Notion(s) Filing Case
Decision on Admission of Amicus Curiae Brief - 12.01.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At page 3, the Appeals Chamber restated its case-law regarding Rule 74 submissions:

[] granting leave to make submissions under Rule 74 is a matter within the discretion of the Chamber;[1]

[] the primary criterion for the Appeals Chamber in determining whether to grant leave to an amicus curiae to submit a brief or to offer oral argument is whether such submissions would assist the Appeals Chamber in its consideration of the questions at issue on appeal;[2]

[1] See Prosecutor v. Ante Gotovina et al., Case No. IT-60-90-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7; Prosecutor v. Jadranko Prlić, Case No. IT-04-74-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7. See also, by analogy, “Information Concerning the Submission of Amicus Curiae Briefs” before the International Criminal Tribunal for Former Yugoslavia, 27 March 1997, IT/122, paras 2 and 5(c).

[2] The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Association of Defence Counsel Request to Participate in Oral Argument, 7 November 2005, p. 3. See also Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Amicus Curiae Application of Paul Bisengimana, 30 March 2004, p. 3.

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Decision on Amicus Curiae Brief - 01.09.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

CONSIDERING that granting leave to make submissions under Rule 74 of the Rules is a matter within the discretion of the Appeals Chamber;[1]

CONSIDERING that the primary criterion in determining whether to grant leave to an amicus curiae to make submissions is whether this would assist the Appeals Chamber in its consideration of the appeal;[2]

[1] See The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on the Admissibility of the Amicus Curiae Brief Filed by the “Open Society Justice Initiative” and on its Request to be Heard at the Appeals Hearing, 12 January 2007 (“Nahimana Decision”), p. 3. See also Prosecutor v. Ante Gotovina et al., Case No. IT-06-80-AR108bis.1, Decision on the Prosecutor’s Motion to Strike Request for Review under Rule 108bis, 13 December 2006, para. 7.

[2] Nahimana Decision, p. 3; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Association of Defence Counsel Request to Participate in Oral Argument, 7 November 2005, p. 3. See also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision on Amicus Curiae Application of Paul Bisengimana, 30 March 2004, p. 3.

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Amicus Curiae Decision - 21.09.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

At pages 3-4 of the Decision, the Appeals Chamber denied the application for leave to submit an amicus curiae brief.

CONSIDERING that, although the victims of Karadžić’s alleged crimes may have a valuable “human and historical” perspective to offer[1] and have “a special interest in seeing that history accurately records their suffering and the reasons they suffered”,[2] a proposed amicus curiae’s “contentious application of th[e] law to the facts of the case and its conclusions that the Trial Chamber erred in a number of areas is not helpful to the Appeals Chamber”;[3]

CONSIDERING that the Applicants’ proposed amicus curiae brief is not limited to questions of law, but provides interpretations of evidence and repeats the task undertaken by the Trial Chamber and the parties in their submissions on appeal;[4]

FINDING, therefore, that the proposed amicus curiae brief does not assist the Appeals Chamber in the determination of the present appeal and, thus, is not admissible under Rule 74 of the Rules;

[1] Application [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1, Application for Leave to Submit an Amicus Brief on Behalf [of] Satko Mujagić, Fikret Alić and the Association of Witnesses and Survivors of Genocide Concerning Judgement of Acquittal Under Rule 98 bis, 31 August 2012], para. 9.

[2] Application, para. 14.

[3] Hartmann Decision [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Decision on Application for Leave to File Amicus Curiae Brief, 5 February 2010], para. 7. See also Gotovina Decision [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Application and Proposed Amicus Curiae Brief, 14 February 2012], para. 11.

[4] See Application, paras 7-13. See also Gotovina Decision, para. 11.

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

268. […] [T]he Appeals Chamber recalls that 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 the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.[3]

274. […] [T]he Appeals Chamber notes that the Trial Chamber’s conclusions that Milošević planned the shelling incidents are based on essentially the same set of facts. In the circumstances of this case, the Appeals Chamber proprio motu finds that Milošević’s responsibility for ordering fully encompasses his criminal conduct and thus does not warrant a conviction for planning the same crimes.[4]

[1] Nahimana et al. Appeal Judgement, para. 479, referring to Kordić and Čerkez Appeal Judgement, para. 26.

[2] Kordić and Čerkez Appeal Judgement, para. 26. Although the French version of the Judgement uses the terms “un élément déterminant”, the English version – which is authoritative – uses the expression “factor substantially contributing to”.

[3] Nahimana et al. Appeal Judgement, para. 479, referring to Kordić and Čerkez Appeal Judgement, paras 29, 31.

[4] Cf., with respect to ordering and aiding and abetting, Kamuhanda Appeal Judgement, para. 77, referring to Semanza Appeal Judgement, paras 353, 364; and, with respect to planning and committing, Brđanin Trial Judgement, para. 268, referring to Blaškić Trial Judgement, para. 278; Kordić and Čerkez Trial Judgement, para. 386.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Decision on Participation in Oral Argument - 07.11.2005 BRĐANIN Radoslav
(IT-99-36-A)

CONSIDERING that the main relevant criterion for the Appeals Chamber in determining whether to permit an amicus curiae to offer oral argument is whether that argument would assist the Appeals Chamber in its consideration of the question at issue;

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