Interpretation

Notion(s) Filing Case
Reasons for Decision on Refusal to Order Joinder - 18.04.2002 MILOŠEVIĆ Slobodan
(IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73)

15. […] Rule 7 (“Authentic Texts”) provides that the English and French texts of the Rules are equally authentic.  In the case of a discrepancy, the Rule requires the version which is “more consonant with the spirit of the Statute and the Rules” to prevail, but this provision would normally be applied only where the discrepancy between the two versions is intractable. […]

16. Although neither the Tribunal’s Statute nor its Rules of Procedure and Evidence are, strictly speaking, treaties, the principles of treaty interpretation have been used by the Appeals Chamber as guidance in the interpretation of the Tribunal’s Statute, as reflecting customary rules.[1]  Such principles may also be used appropriately as guidance in the interpretation of the Tribunal’s Rules of Procedure and Evidence. […]

[1]    Tadić Conviction Appeal, par 282;  Delalić Appeal, pars 67-70. See also Aleksovski Appeal, par 98; [see infra footnotes 3, 10 for the full references] Prosecutor v Bagosora, ICTR-98-37-A, Decision on the Admissibility of the Prosecutor’s Appeal From the Decision of a Confirming Judge Dismissing an Indictment Against Théoneste Bagosora and 28 Others, 9 June 1998, par 28.

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ICTR Rule Rule 7 ICTY Rule Rule 7
Notion(s) Filing Case
Appeal Judgement - 08.04.2015 TOLIMIR Zdravko
(IT-05-88/2-A)

Fn. 587. The Appeals Chamber notes that views of a single signatory on the meaning of a particular term used in a treaty only bind that State for the purpose of domestic implementing legislation and do not necessarily suggest a universal consensus on this issue. Even if the United States of America had submitted an official reservation as to the use of the term “mental harm” in Article II of the Genocide Convention – which it did not – such a reservation would not have modified the Convention for other signatories in that respect. See VCLT, Art. 21(2) (“The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.”).

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Notion(s) Filing Case
Appeal Judgement - 01.06.2001 AKAYESU Jean Paul
(ICTR-96-4-A)

323.    The Appeals Chamber recalls that the Rules of the Tribunal have never contained any specific provision on the issue of leading questions. However, they do lay down general rules on examination and cross-examination of witnesses,[1]  which appear to be patterned on the United States Federal Rules of Evidence.[2]  True, under this system, leading questions are allowed and used during cross-examination whereas they are not permitted during examination-in-chief. Still in the opinion of the Appeals Chamber, the Rules take on a life of their own upon adoption.  Interpretation of the provisions thereof may be guided by the domestic system it is patterned after, but under no circumstance can it be subordinated to it.[3]

[1] These were adopted on 8 June 1998.  Sub-Rule 90(F) provides that: “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) Make the interrogation and presentation effective for ascertaining the truth; and (ii) needless consumption of time.”  Sub-Rule 90(G) provides, on the other hand, that “Cross-examination shall be limited to points raised in the examination-in-chief or matters affecting the credibility of the witness. The Trial Chamber may, if it deems advisable, permit enquiry into additional matters, as if on direct examination. [SUB-RULE 90(G) WAS AMENDED ON 27 MAY 2003 SO AS TO READ:

(G) (i) Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject-matter of the case.

(ii) In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness.

(iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters.]

[2] Rule 611 of the United States Federal Rules of Evidence reads as follows: “(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment; (b) Scope of the cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may in the exercise of discretion, permit inquiry into additional matters as if on direct examination; (c) Leading questions. Leading questions should not be used on the direct examination of a witness testimony. Ordinary leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions”.

[3] In this connection, the Appeals Chamber recalls Rule 89(A) of the Rules: “The rules of evidence set forth in this Section shall govern the proceedings before the Chambers.  The Chambers shall not be bound by national rules of evidence.  

 

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ICTR Rule Rule 90 ICTY Rule Rule 90
Notion(s) Filing Case
Decision on Admission of Affidavits - 18.09.2000 KORDIĆ & ČERKEZ
(IT-95-14/2-AR73.6)

22. As a general principle, interpretation of the Rules of Evidence should “best favour a fair determination of the matter” and be “consonant with the spirit of the Statute and the general principles of law.”[1] In interpreting a particular Rule, a Trial Chamber should ensure that it is interpreted in accordance with its “ordinary meaning” and “in the light of [the] object and purpose” of the Statute and Rules.[2]

23. The Trial Chamber relied on the principle of effectiveness (interpretation par la méthode de 1’effet utile or ut res magis valeat quam pereat) in finding that “the Rules must be interpreted to give them useful effect.”[3] The question arises as to whether or not the Trial Chamber’s interpretation achieved this, without contravening the rights of the Appellant and the need to ensure a fair trial both of which requirements underline the object and purpose of the Statute and the Rules. As the International Court of Justice has stated:

The principle of interpretation expressed in the maxim: ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions...a meaning which...would be contrary to their letter and spirit.[4]

[…]

32. […] [T]he Rules must be interpreted with some degree of flexibility, the primary object being “to achieve justice, not to delay it, and not to permit mere technicalities to intrude where there has been no material prejudice caused by a non-compliance.”[5] Indeed, the Appeals Chamber has, in some other types of cases, accepted non-compliance with the precise terms of a Rule, provided it has no adverse effect upon the integrity of the proceedings or the rights of the accused.[6] […]

[1] Although this is the wording provided in Rule 89(B) of the Rules, which relates to “cases not otherwise provided for” in Section 3 of the Rules (the title of Section 3 being: “Rules of Evidence”), nevertheless the general principle is important.

[2] In interpretation, the Tribunal is guided by the principles which may be drawn from Article 31(1) of the Vienna Convention on the Law of Treaties (1969), U.N. Doc. A/CONF.39/27: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” These principles are considered today as general principles to be applied in the interpretation of all international instruments. See also Prosecutor v. Duško Tadić, Decision on the Prosecutor’s Motion requesting protective measures for victims and witnesses, Case No. IT-94-1-T, 10 August 1995, paras. 18 et seq., and Prosecutor v. Zejnil Delalić et al. Judgement, Case No. IT-96-21-T, 16 November 1998, para.158 et seq.

[3] Transcript p. 16487. The Trial Chamber referred to Case Concerning the Factory at Chorzów, (1927) P.C.I.J Series A, Vol 2, No.8 at p. 2 and The Corfu Channel Case, 1949 I.C.J. Rep., at p.4. In the former, the Court held that in interpreting a provision of a particular convention, “account must be taken not only of the historical development of arbitration treaties, as well as the terminology of such treaties, and of the grammatical and logical meaning of the words used, but also and more especially of the function which, in the intention of the contracting Parties, is to be attributed to this provision.” (p. 24).

[4] Interpretation of Peace Treaties (second phase), Advisory Opinion, I.C.J. Reports, 1950 p. 221, at p. 229.

[5] Kupreškić, Separate Opinion of Judge Hunt, para. 18.

[6] Examples are: Kupreškić, wherein the Appeals Chamber found inter alia, that although a decision had been rendered based on an oral motion for the taking of a deposition and although Rule 71(B) stipulated that such a motion should be in writing, this was “merely of a technical nature and ha[d] no adverse effects upon the integrity of the proceedings or the rights of the accused” (para. 15); while in Prosecutor v. Goran Jelisić, Order, Case No. IT-95-10-A, 21 March 2000, the Appeals Chamber, inter alia, rejected a request to strike out the Prosecution’s Notice of Appeal because it had not been served by the Prosecution itself (which a plain reading of Rule 108 would suggest is required) but rather through the Registry, finding that this was the standard practice of the Tribunal and that the Appellant in that case had “suffered no material prejudice.” These cases are however not comparable to the instant case as it is clear that on their particular facts the non-compliance found was indeed “merely of a technical nature” (Kupreškić, para. 15).

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Decision on Provisional Release - 31.10.2003 LIMAJ et al.
(IT-03-66-AR65)

11.       The ICTY is entrusted with bringing justice to the former Yugoslavia.  First and foremost, this means justice for the victims, their relatives and other innocent people.  Justice, however, also means respect for the alleged perpetrators’ fundamental rights. Therefore, no distinction can be drawn between persons facing criminal procedures in their home country or on an international level.

12.      Rules 65 (B) and (D) of the Rules must therefore be read in the light of the ICCPR and ECHR and the relevant jurisprudence.

13.     Moreover, when interpreting Rule 65(B) and (D) of the Rules, the general principle of proportionality must be taken into account. A measure in public international law is proportional only when it is (1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target. Procedural measures should never be capricious or excessive. If it is sufficient to use a more lenient measure than mandatory detention, it must be applied.[1]    

[1]See, among others, Prosecutor v. Darko Mđra, Case No.: IT-02-59-PT, “Decision on Darko Mđra on Request for Provisional Release”, 15 April 2002, Prosecutor v. Enver Hadžihasonivić, Mehmed Alagić and Amir Kubura, “Decision granting Provisional Release to Enver Hadžihasonivić”, 19 December 2001.

 

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision Concerning Rule 92bis(C) - 07.06.2002 GALIĆ Stanislav
(IT-98-29-AR73.2)

23. [...] [T]he maxim expressio unius est exclusio alterius[...][1] [...] must always be applied with great care in statutory interpretation, for it is not of universal application. [...]

[1]    The express mention of one person or thing is the exclusion of another (Co Litt 210a).

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Notion(s) Filing Case
Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraphs 46-47, 53-54, 61-63 of the decision.

See also paragraphs 48-51, 55-57, 64, 67 of the decision.

[RULE 40 bis OF THE ICTR STATUTE WAS AMENDED ON 26 JUNE 2000 AND 30 MAY 2001]

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

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ICTR Rule Rule 40;
Rule 40 bis
ICTY Rule Rule 40;
Rule 40 bis
Other instruments Article 9(2) International Covenant on Civil and Political Rights;
Article 14(3)(a) International Covenant on Civil and Political Rights
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

2135.            Article 3(h) of the Statute, which confers jurisdiction on the Tribunal over the crime of persecution as a crime against humanity, reads as follows:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: […] (h) Persecutions on political, racial and religious grounds[.]

2136.            The Appeals Chamber notes that Article 3(h) of the Statute limits the jurisdiction of the Tribunal over persecution as a crime against humanity to three listed discriminatory grounds, namely political, racial, and religious grounds.[1] While persecution as a crime against humanity under customary international law might not be restricted to these three discriminatory grounds, the Appeals Chamber recalls that “it [was] open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law.”[2] Whether or not the Security Council may have defined the crime of persecution as a crime against humanity more narrowly than necessary under customary international law, the Tribunal’s jurisdiction is limited to persecution on political, racial, and religious grounds.[3]

2137.            As ethnicity is not enumerated among the discriminatory grounds of persecution in Article 3(h) of the Statute, the question remains whether it is subsumed under one of the three listed discriminatory grounds, more specifically under the “racial” ground. The Appeals Chamber recalls that, while the Statute “is legally a very different instrument from an international treaty”,[4] it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law.[5] In this regard, the Appeals Chamber observes that the chapeau of Article 3 of the Statute distinguishes “ethnicity” from “race” in the listed discriminatory grounds for the attack against a civilian population.[6] The Appeals Chamber, Judge Agius dissenting, considers that, according to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. In the view of the Appeals Chamber, Judge Agius dissenting, this conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it clear that “ethnicity” cannot be encapsulated in “race”. Indeed, interpreting the discriminatory ground of “race” in Article 3(h) of the Statute as including “ethnicity” would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous.[7] According to a textual and contextual interpretation of Article 3(h) of the Statute, the Appeals Chamber, Judge Agius dissenting, therefore finds that “ethnicity” cannot be interpreted as being included in the list of discriminatory grounds enumerated therein.

2138. Moreover, the Appeals Chamber notes that the definition of persecution as a crime against humanity is well settled in the jurisprudence of the Tribunal. As reiterated by the Appeals Chamber in the Nahimana et al. case, “the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).”[8] Thus, in the Nahimana et al. case, the Appeals Chamber specified the mens rea requirement for persecution as a crime against humanity and, contrary to the Trial Chamber’s holding, did not extend it to include “ethnicity” as an additional discriminatory ground. The Appeals Chamber notes that to support its conclusion that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape”, the Trial Chamber relied, inter alia, on paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.[9] However, the Appeals Chamber observes that the Trial Chamber’s reliance on these paragraphs of the Nahimana et al. Appeal Judgement to define the mens rea of the crime of persecution is misplaced.[10] Contrary to the Trial Chamber’s finding, these paragraphs of the Nahimana et al. Appeal Judgement deal with the actus reus – and not the mens rea – of the crime of persecution, holding that hate speech targeting the population on the basis of ethnicity could constitute an act, which discriminates in fact.[11]

2139.            Accordingly, the Appeals Chamber finds that the Trial Chamber committed an error of law in considering that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape.”[12] […]

[1] Cf. Tadić Appeal Judgement, para. 284; Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Appeal Decision on Jurisdiction”), paras. 78, 140-141. The Appeals Chamber notes that this is similar to the Statute of the ICTY. See Article 5(h) of the Statute of the ICTY. On the contrary, the Appeals Chamber observes that the Rome Statute does not limit the jurisdiction of the ICC to an exhaustive list of discriminatory grounds on which persecution as a crime against humanity must be committed. Indeed, Article 7(1)(h) of the Rome Statute contains an illustrative (open-ended) list of prohibited grounds for persecution as a crime against humanity, which reads as follows: “For the purpose of this Statute, ‘crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. The Appeals Chamber further notes that the Statute of the Special Court for Sierra Leone (“SCSL”), which was adopted after the Rome Statute, limits the jurisdiction of the SCSL over the crime of persecution as a crime against humanity to an exhaustive list of four discriminatory grounds, namely political, racial, ethnic, and religious grounds. See Article 2(h) of the Statute of the SCSL.

[2] Tadić Appeal Judgement, para. 296. See also Tadić Appeal Decision on Jurisdiction, paras. 78, 140, 141. Cf. also Tadić Appeal Judgement, paras. 249, 251.

[3] Cf. Tadić Trial Judgement, para. 711 (“There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. The grounds in the Statute are based on the Nürnberg Charter which included race, religion and politics as the three grounds, as did Control Council Law No. 10, both of which were drafted to address the European situation. In contrast the Tokyo Charter excluded religion as a basis for persecution, given its inapplicability to the Pacific theatre of operation while, alternatively, the Convention on the Prevention and Punishment of the Crime of Genocide contains the additional ground of ethnicity as do the 1991 and 1996 versions of the I.L.C. Draft Code, whereas the original 1954 Draft Code included culture as a basis for persecution. The possible discriminatory bases which the International Tribunal is empowered to consider are limited by the Statute to persecutions undertaken on the basis of race, religion and politics.”) (internal references omitted).

[4] Tadić Appeal Judgement, para. 282.

[5] Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331 (“Vienna Convention”). See also Tadić Appeal Judgement, para. 282, referring to International Court of Justice, Competence of the General Assembly for the admission of a State to the United Nations, Advisory Opinion: I.C.J. Reports 1950, p. 4; Aleksovski Appeal Judgement, para. 98, referring to Article 31(1) of the Vienna Convention (“Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology) set out in the 1969 Vienna Convention on the Law of Treaties.”); Čelebići Appeal Judgement, para. 67 and references cited therein (reiterating that Article 31 of the Vienna Convention reflects customary international law); Jelisić Appeal Judgement, para. 35 (“Following the settled jurisprudence of the Tribunal, those words [(of Rules 98bis(B) of the ICTY Rules of Procedure and Evidence)] are to be ‘interpreted in good faith in accordance with the ordinary meaning to be given to [them] in their context and in the light of [their] object and purpose’, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties 1969.” (alteration in the original)).

[6] See supra, para. 2135.

[7] The Appeals Chamber recalls that “it is an elementary rule of interpretation that one should not construe a provision or a part of [it] as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements.” See Tadić Appeal Judgement, para. 284. The Appeals Chamber further observes that the distinction between “race” and “ethnicity” is also clearly established in the definition of genocide given in Article 2 of the Statute (“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […].”).

[8] Nahimana et al. Appeal Judgement, para. 985. See also, e.g., Kvočka et al. Appeal Judgement, para. 320; Kordić and Čerkez Appeal Judgement, para. 101; Blaškić Appeal Judgement, para. 131; Krnojelac Appeal Judgement, para. 185.

[9] Trial Judgement, para. 6097, referring to Bagosora et al. Trial Judgement, para. 2209, Nahimana et al. Appeal Judgement, paras. 986-988, 1002. The Appeals Chamber notes that paragraph 2209 of the Bagosora et al. Trial Judgement also refers to paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.

[10] See Trial Judgement, para. 6097.

[11] See Nahimana et al. Appeal Judgement, para. 986. The Appeals Chamber further notes that, in the Nahimana et al. case, the convictions for persecution as a crime against humanity were based on the Trial Judgement’s finding that “the discriminatory intent of the Accused falls within the scope of crime against humanity of persecution on political grounds of an ethnic character”, noting that “RTLM, Kangura and CDR […] essentially merged political and ethnic identity, defining their political target on the basis of ethnicity and political positions relating to ethnicity.” See Nahimana et al. Trial Judgement, para. 1071. This finding was not challenged on appeal.

[12] Trial Judgement, para. 6097.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h) Other instruments Article 31(1) of the Vienna Convention on the Law of Treaties of 1969