Jurisdiction

Notion(s) Filing Case
Contempt Appeal Judgement - 27.09.2006 MARIJAČIĆ & REBIĆ
(IT-95-14-R77.2-A)

24. Marijačić was convicted of contempt for the disclosure of information in knowing violation of an order of a Chamber pursuant to Rule 77(A)(ii). The Trial Chamber rightly pointed out that the order in question applies to all persons coming into possession of the protected information, given that Rule 79 is directed at the public in general, including the press, being present in court or not. Also, Rule 77(A)(ii) as such gives jurisdiction to the International Tribunal to hold in contempt any person who discloses information relating to proceedings before the International Tribunal in knowing violation of an order of a Chamber. This is necessary in particular in order to comply with the International Tribunal’s obligation pursuant to Article 22 of the Statute to protect witnesses on whose behalf protective measures have been ordered, and it is ultimately necessary for the International Tribunal to fulfil its mandate.[1] […]

[1] See Prosecutor v. Duško Tadić, Case No. IT-94-1-A-AR77, Appeal Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 27 February 2001, p. 4: “[I] n order to function effectively and fairly, the International Tribunal must have the power to prosecute and punish contempt”.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Contempt Appeal Judgement - 19.05.2010 ŠEŠELJ Vojislav
(IT-03-67-R77.2-A)

17. […] In any event, the Appeals Chamber considers that the Trial Chamber did not exceed its jurisdiction in deciding upon the allegations of contempt in the present case. The Appeals Chamber recalls that the Tribunal possesses inherent jurisdiction to ensure that its exercise of judicial functions is safeguarded.[1] As the Trial Chamber explained and the Appeals Chamber has explicitly held, this inherent power extends to Rule 77 of the Rules governing contempt proceedings against conduct interfering with the Tribunal’s administration of justice.[2] […]

[1] See e.g. Prosecutor v. Duško Tadić, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (“Vujin Appeal Judgement”), paras 13-18; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Nobilo Appeal Judgement”), paras 30, 36; Marijačić and Rebić Appeal Judgement, para. 23.

[2] See Trial Judgement [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-R77.2, Judgement on Allegations of Contempt, 24 July 2009 (confidential; public version filed on the same day)], para. 7. See also Vujin Appeal Judgement, paras 13-18; Nobilo Appeal Judgement, paras 30, 36.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Decision on Validity of Appeal - 29.07.2004 ŠEŠELJ Vojislav
(IT-03-67-AR72.1)

2. The Appeal purports to proceed as an interlocutory appeal as of right under Rule 72(B)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), which states that preliminary motions are without interlocutory appeal, except “in the case of motions challenging jurisdiction.”[1] Rule 72(D) of the Rules expands on this provision by stating that, for purposes of Rule 72(B)(i) of the Rules, a “motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to” the personal, territorial or temporal jurisdiction of the Tribunal, or to any of the violations enumerated in Articles 2, 3, 4, 5 and 7 of the Statute.

7. The decisions of the Appeals Chamber, as well as the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda under an identical provision of that Tribunal’s Rules of Procedure and Evidence, make clear that an appeal concerning an issue whether a charge in an indictment falls within a statutory grant of jurisdiction meets the requirements of Rule 72(D) of the Rules and may proceed.[2] This Appeal satisfies the requirements of Rule 72(D)(iv) of the Rules and may therefore proceed.

[1] Rule 72(B)(i) [Rules of Procedure and Evidence, IT/32/Rev. 32, 12 August 2004].

[2] See e.g. Prosecutor v. Hadžihasanović et al., No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to Validity of

Appeal, 21 February 2003; Prosecutor v. Milutinović et al., No. IT-99-37-AR72, Decision Pursuant to Rule 72(E) as to

Validity of Appeal, 25 March 2003; Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction — Joint Criminal Enterprise, 21 May 2003; Prosecutor v. Rwamakuba, No. ICTR-98-44-AR72.4, Decision on Validity of Appeal of André Rwamakuba Against Decision Regarding Application of Joint Criminal Enterprise to the Crime of Genocide Pursuant to Rule 72(E) of the Rules of Procedure and Evidence, 23 July 2004.

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ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Decision on Custodial Visit - 10.11.2011 POPOVIĆ et al.
(IT-05-88-A)

p. 4: CONSIDERING that, while the Appeals Chamber has the authority to issue orders to States pursuant to Article 29 of the Statute of the Tribunal and Rules 54 and 107 of the Rules, an order by the Appeals Chamber on the Motion is not necessary for the purposes of an investigation or for the preparation of Pandurević’s appeal[1]

[1] The Appeals Chamber recalls that matters relating to the rights of detained persons and conditions of their detention are regulated by the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal, IT38/Rev.9, 21 July 2005 and fall primarily under the authority of the Registrar and the President of the Tribunal.

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ICTR Rule Rule 54 ICTY Rule Rule 54
Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

23.     [...] [T]he Applicants contend that the Appeals Chamber is authorised or at least not precluded by the Rules to issue an interlocutory decision that would terminate proceedings because of a violation of an accused’s rights. They rely on Rule 54, which, in conjunction with Rule 107 of the Rules, permits the Appeals Chamber to issue orders as necessary for the conduct of proceedings.[1] The Appeals Chamber notes that the application of Rule 54 is discretionary and dependent upon the necessity of the relevant order for the conduct of the proceedings.[2] The Appeals Chamber therefore finds that it has the authority to consider an allegation of judicial bias in an interlocutory decision at this stage in the appeal proceedings under this rule.

[1] See, e.g., Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Stay of “Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005”, 16 December 2005.

[2] Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, para. 558; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision sur la Requête de Ferdinand Nahimana aux fins de Communication d’Éléments de Preuve Disculpatoires et d’Investigations sur l’Origine et le Contenu de la Pièce à Conviction P 105, 12 September 2006, para. 13. 

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

[1] Rule 107 of the Rules provides that the rules of procedure and evidence that govern proceedings in the Trial

Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

[1] Rule 107 of the Rules provides that the rules of procedure and evidence that govern proceedings in the Trial

Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

With references to Articles 1 and 7 of the Statute, the Appeals Chamber held that an accused could only be held responsible by the Tribunal for a crime referred to in Article 2 to 4 of the Statue having been committed in 1994.[1] However, given the lack of clarity in the jurisprudence, the Appeals Chamber felt the need to elucidate the question of the Tribunal’s temporal jurisdiction “in a situation where an accused did not personally commit the crime, his acts or omissions establishing his responsibility for such a crime (pursuant to one or more of the modes of responsibility provided for in Article 6(1) and (3) of the Statute) must also have occurred in 1994”. Having examined the Statute’s travaux préparatoires and the 13 February 1995 UN Secretary-General’s Report, the Appeals Chamber held:

313. […] that it was the intention of the framers of the Statute that the Tribunal should have jurisdiction to convict an accused only where all of the elements required to be shown in order to establish his guilt were present in 1994.  Further, such a view accords with the principle that provisions conferring jurisdiction on an international tribunal[2] or imposing criminal sanctions should be strictly interpreted. Accordingly, the Appeals Chamber finds that it must be shown that:

    1. The crime with which the accused is charged was committed in 1994;
    2. The acts or omissions of the accused establishing his responsibility under any of the modes of responsibility referred to in Article 6(1) and (3) of the Statute occurred in 1994, and at the time of such acts or omissions the accused had the requisite intent (mens rea) in order to be convicted pursuant to the mode of responsibility in question.

314. The Appeals Chamber finds that the Trial Chamber was wrong insofar as it convicted the Appellants on the basis of criminal conduct which took place prior to 1994;  the Appeals Chamber will review those convictions below. […]

[1] In this regard, see Decision of 5 September 2000 [Hassan Ngeze and Ferdinand Nahimana v. The Prosecutor, Cases No. ICTR-97-27-AR72 and ICTR-96-11-AR72, Décision sur les appels interlocutoires, 5 September 2000], p. 6 (which states that no one may be indicted for a crime that was not committed between 1 January and 31 December 1994, even though an indictment can make reference, “as an introduction, to crimes previously committed by an accused”). See also Kajelijeli Appeal Judgement, para. 298; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-2001-70-AR72, Decision (Appeal against Decision of 26 February 2003 on the Preliminary Objections), 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Notice of Appeal against the Decision Dismissing the Defence Motion Objecting to the Jurisdiction of the Tribunal), 16 November 2001, p. 4; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-97-34-A, Decision on the Interlocutory Appeal against the Decision of 13 April 2000 of Trial Chamber III, 13 November 2000, p. 5; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Interlocutory Appeals against the Decision of the Trial Chamber dated 11 April and 6 June 2000), 14 September 2000 (“Decision of 14 September 2000 on the Interlocutory Appeals”), p. 4.

[2] In this regard, see Decision of 5 September 2000, Joint Separate Opinion of Judges Lal Chand Vohrah and Rafael Nieto-Navia, para. 17 and footnote 22.

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ICTR Statute Article 1
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

314. […] However, as will now be explained, it was open to the Trial Chamber to rely, for certain purposes, on evidence in respect of events prior to 1994.

315. It is well established that the provisions of the Statute on the temporal jurisdiction of the Tribunal do not preclude the admission of evidence on events prior to 1994, if the Chamber deems such evidence relevant and of probative value[1] and there is no compelling reason to exclude it. For example, a Trial Chamber may validly admit evidence relating to pre-1994 acts and rely on it where such evidence is aimed at:

- Clarifying a given context;[2]

- Establishing by inference the elements (in particular, criminal intent) of criminal conduct occurring in 1994;[3]

- Demonstrating a deliberate pattern of conduct.[4]

316. The Appeals Chamber accordingly dismisses the Appellants’ contentions that the Trial Chamber exceeded its jurisdiction or that it breached the fairness of the trial simply because it relied on evidence concerning pre-1994 events.

561. The Appeals Chamber recalls that it has already considered the Trial Chamber’s interpretation of the Tribunal’s temporal jurisdiction and reaffirmed that Article 7 of the Statute does not prevent the admission of evidence of events prior to 1 January 1994, insofar as the Trial Chamber deemed such evidence relevant and of probative value, and there was no compelling reason to exclude it. This applies inter alia to evidence of criminal intent.[5] […]

647. […] The Appeals Chamber considers that paragraph 975 of the Judgement is ambiguous because it does not clearly explain whether the Appellant’s participation in CDR meetings prior to 1 January 1994 is cited as a material element of instigation for which the Appellant incurs individual responsibility pursuant to Article 6(1) of the Statute – which would be ultra vires – or whether this fact is simply mentioned as a contextual fact, or as evidence demonstrating the Appellant’s criminal intent in 1994 – which is permissible.[6] […]

[1] Rule 89(C) of the Rules. See also Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 4 (“[…] it will be for the Trial Chamber to decide whether to admit evidence relating to events falling outside the temporal jurisdiction of the Tribunal in accordance with Rule 89(C) of the Rules of Procedure and Evidence of the Tribunal”).

[2] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-97-34-A, Decision on the Interlocutory Appeal against the Decision of 13 April 2000 of Trial Chamber III, 13 November 2000, p. 5; Decision of 14 September 2000 on the Interlocutory Appeals [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Interlocutory Appeals Against the Decisions of the Trial Chamber Dated 11 April and 6 June 2000), 14 September 2000), p. 4; Decision of 5 September 2000, p. 6, and Separate Opinion of Judge Shahabuddeen, paras. 21, 26, 32.

[3] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-2001-70-AR72, Decision (Notice of Appeal against Decision of 26 February 2003 on the Preliminary Objections), 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Appeal against the Decision of 13 March 2001 dismissing the Defence Motion Objecting to the Jurisdiction of the Tribunal), 16 November 2001, p. 4; Decision of 5 September 2000,  Separate Opinion of Judge Shahabuddeen, paras. 9-17.

[4] Rule 93 of the Rules. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Admissibility of Proposed Testimony of Witness DBY, 18 September 2003, paras. 11-14; Decision of 5 September 2000, Separate Opinion of Judge Shahabuddeen, paras. 20-26. In this respect, the Appeals Chamber recalls that there is a difference between trying to establish a specific deliberate pattern of conduct (expressly permitted under Rule 93 of the Rules) and trying to demonstrate an accused’s propensity to commit crimes (which is impermissible, in view of the low probative value of such a demonstration and its prejudicial effect: See The Prosecutor v. Théoneste Bagosora et al., Cases Nos. ICTR-98-41-AR93 and ICTR-98-41-AR93.2, Decision on Prosecutor’s Interlocutory Appeals Regarding the Exclusion of Evidence, 19 December 2003, paras. 13-14).

[5]Idem, citing Aloys Simba v. the Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. the Prosecutor, Case No. ICTR-2001-70-AR72, Décision (Acte d’appel relatif à la Décision du 26 février 2003 relative aux exceptions préjudicielles) [Decision (Notice of Appeal from the Decision of 26 February 2003 on the Preliminary Objections)], 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Appel de la Décision du 13 mars 2001 rejetant la “Defence Motion Objecting to the Jurisdiction of the Tribunal” [Appeal from the Decision of 13 March 2001 dismissing the “Defence Motion Objecting to the Jurisdiction of the Tribunal”]), 16 November 2001, p. 4; Separate Opinion of Judge Shahabuddeen to the Decision of 5 September 2000, paras. 9-17.

[6] See supra VIII. B.

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Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

317. The Appeals Chamber has held above that the Tribunal may only convict an accused for criminal conduct having occurred in 1994. The existence of continuing conduct is no exception to this rule. Contrary to what the Trial Chamber appears to have held in paragraph 104 of the Judgement, even where such conduct commenced before 1994 and continued during that year, a conviction may be based only on that part of such conduct having occurred in 1994.[1]  Judge Pocar dissents from this finding.

[1] In this respect, see Decision of 5 September 2000, Joint Separate Opinion of Judges Lal Chand Vohrah and Rafael Nieto-Navia, paras. 6,9 and 10.

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ICTR Statute Article 1
Notion(s) Filing Case
Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton
(IT-04-84-R77.5-A)

9. The Appeals Chamber recalls that the International Tribunal, pursuant to Rule 77 of the Rules and in accordance with the International Tribunal’s consistent jurisprudence, possesses the inherent power to address conduct interfering with its administration of justice. The International Tribunal has both the subject matter and personal jurisdiction to prosecute contempt.

[1] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 17 March 2007, para. 34 with further references. 

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

77. [W]e conclude that the conflicts in the former Yugoslavia have both internal and international aspects, that the members of the Security Council clearly had both aspects of the conflicts in mind when they adopted the Statute of the International Tribunal, and that they intended to empower the International Tribunal to adjudicate violations of humanitarian law that occurred in either context. To the extent possible under existing international law, the Statute should therefore be construed to give effect to that purpose.

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Notion(s) Filing Case
Contempt Appeal Judgement - 15.03.2007 JOVIĆ Josip
(IT-95-14 & 14/2-R77-A)

36. […] Rule 77(D)(i) provides in relevant part that that where a Chamber has directed the Prosecutor to investigate a potential matter of contempt with a view to preparing and submitting an indictment for contempt and “the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may […] direct the Prosecutor to prosecute the matter”. […] While Rule 77(D)(i) provides that a “Chamber” may direct the Prosecutor to prosecute a person for contempt, it does not preclude a Confirming Judge from authorizing the Prosecution to prosecute on behalf of the Trial Chamber that is seized with the matter.[1]

[1] Cf. Rule 47(F) of the Rules [Rules of Procedure and Evidence].

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

24. The doctrines of "political questions" and "non-justiciable disputes" are remnants of the reservations of "sovereignty", "national honour", etc. in very old arbitration treaties. They have receded from the horizon of contemporary international law, except for the occasional invocation of the "political question" argument before the International Court of Justice in advisory proceedings and, very rarely, in contentious proceedings as well. […]

25. The Appeals Chamber does not consider that the International Tribunal is barred from examination of the Defence jurisdictional plea by the so-called "political" or "non-justiciable" nature of the issue it raises.

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Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

18. This power, known as the principle of "Kompetenz-Kompetenz" in German or "la compétence de la compétence" in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its "jurisdiction to determine its own jurisdiction." It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done (see, e.g., Statute of the International Court of Justice, Art. 36, para. 6). But in the words of the International Court of Justice:

"[T]his principle, which is accepted by the general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal […] but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation." (Nottebohm Case (Liech. v. Guat.), 1953 I.C.J. Reports 7, 119 (21 March).)

This is not merely a power in the hands of the tribunal. In international law, where there is no integrated judicial system and where every judicial or arbitral organ needs a specific constitutive instrument defining its jurisdiction, "the first obligation of the Court - as of any other judicial body - is to ascertain its own competence." (Judge Cordova, dissenting opinion, advisory opinion on Judgements of the Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O., 1956 I.C.J. Reports, 77, 163 (Advisory Opinion of 23 October)(Cordova, J., dissenting).)

[…]

22. In conclusion, the Appeals Chamber finds that the International Tribunal has jurisdiction to examine the plea against its jurisdiction based on the invalidity of its establishment by the Security Council.

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Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

143. […] It should be emphasised again that the only reason behind the stated purpose of the drafters that the International Tribunal should apply customary international law was to avoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did not adhere to a specific treaty. (Report of the Secretary-General, at para. 34.) It follows that the International Tribunal is authorised to apply, in addition to customary international law, any treaty which: (i) was unquestionably binding on the parties at the time of the alleged offence; and (ii) was not in conflict with or derogating from peremptory norms of international law, as are most customary rules of international humanitarian law. […]

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ICTY Statute Article 3
Notion(s) Filing Case
Decision on Interlocutory Appeals - 13.09.2000 NGEZE & NAHIMANA
(ICTR 97-27-AR72, ICTR-96-11-AR72)

NOTING that Article 7 of the Statute of the Tribunal restricts the Tribunal's temporal jurisdiction to "a period beginning on 1 January 1994 and ending on 1 December 1994";

CONSIDERING therefore that no one may be indicted for a crime that was not committed between 1 January and 31 December 1994;

CONSIDERING however that the above cannot prevent an indictment from making reference, as an introduction, to crimes previously committed by an accused;

NOTING the decision by the Trial Chamber not to refer to events prior to 1994 except for historical purposes or as information and that it would not hold any accused accountable for crimes committed prior to 1994;

CONSIDERING that the question of the Tribunal's temporal jurisdiction does indeed fall within the scope of application of Rule 72 (D)[[1]] but that in the instant case the question lacks interest in that the Appeals Chamber is convinced that the Trial Chamber will not use events prior to 1994 as the sole factual basis for a count of the indictment; and that therefore the Trial Chamber did not overstep its temporal jurisdiction;

[1] [At the time this decision was issued, Rule 72(D) provided: “Decisions on preliminary motions are without interlocutory appeal, save in the case of dismissal of an objection based on lack of jurisdiction, where an appeal will lie as of right.”]

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ICTR Statute Article 7 ICTR Rule Rule 72(D)
Notion(s) Filing Case
Decision on Psychological Examination - 06.12.2005 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 4: FINDING also that, had the procedure of the Detention Rules been followed, the Appeals Chamber would only have jurisdiction to review a Registrar’s or President’s decision if the issues in question were closely related to the fairness of the proceedings on appeal;[1]

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No ICTR-99-52-A, Decision on Hassan Ngeze’s Motion to Set Aside President Møse’s Decision and Request to Consummate his Marriage, 6 December, p. 4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras. 4 and 7; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.

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Notion(s) Filing Case
Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.4)

34. The Appeals Chamber recalls that the UNSC, acting under Chapter VII of the UN Charter, has adopted the Statute by means of resolution and established the Tribunal as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.[1] The Statute, as the constitutive instrument of the Tribunal, defines the scope and limits of the Tribunal’s substantive jurisdiction.[2] In particular, Articles 1 to 9 of the Statute define the Tribunal’s jurisdiction ratione materiae, personae, loci and temporis. Article 1 of the Statute confers a general power for the Tribunal to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. There is no provision of the Statute which excludes any specific individual from the jurisdiction of the Tribunal.

[1] UNSC Resolution 808, S/RES/808(1992), 22 February 1993. See also, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Decision on Jurisdiction”), paras 37-38; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.2, Decision on Krajišnik’s Appeal Against the Trial Chamber’s Decision Dismissing the Defense Motion for a Ruling that Judge Canivell is Unable to Continue Sitting in This Case, 15 September 2006, (“Krajišnik Decision”), para. 15.

[2] For the distinction between the notions of “substantive” and “inherent” jurisdiction, see Tadić Decision on Jurisdiction, para. 14. 

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ICTY Statute Article 1
Notion(s) Filing Case
Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.4)

35. The Appeals Chamber considers that the Statute of the Tribunal can only be amended or derogated by means of UNSC resolution. This plainly derives from the actus contrarius doctrine, is established in the jurisprudence of the Tribunal,[1] and is confirmed by the practice of the UNSC.[2]

36. […] Therefore, contrary to what the Trial Chamber appears to concede,[3] the mere involvement of the UNSC in concluding the alleged Agreement [agreement allegedly reached between the accused Radovan Karadžić and Mr. Richard Holbrooke on 18-19 July 1996], without a ratification of the alleged Agreement by a UNSC resolution, could not limit the jurisdiction of the Tribunal. The Appeals Chamber notes that there is no UNSC resolution excluding the Appellant from the ambit the Tribunal’s jurisdiction.

37. In light of the foregoing, the Appeals Chamber finds that under no circumstance would the alleged Agreement in and of itself, even if its existence was proved, limit the jurisdiction of the Tribunal.

38. The Appellant’s argument that the applicability of the doctrine of apparent authority would prove that no UNSC resolution is necessary to amend the jurisdiction of the Tribunal is misplaced. As explained above, in the absence of a UNSC resolution, the alleged Agreement could not have any impact on the Tribunal’s jurisdiction, even if it were made with the actual authority of the UNSC. […] Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. A fortiori, even if one considered that the alleged Agreement was made with the apparent authority of the UNSC could not affect in any event the ambit of the Tribunal’s jurisdiction. In his submissions, the Appellant attempts to rely on analogy with jurisdictional matters in international criminal law a theory typical of contract law protecting the legitimate expectations of a contracting party believing without fault that a contract was validly concluded with a legitimate representative of the other party.[4] However, the Appellant ignores that one of the requirements for applying a doctrine by analogy is the existence of an eadem ratio, that is, the existence of sufficient similarities between two cases. The field of contract law is so distant from the question of jurisdiction in international criminal law that the two are effectively incomparable. Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. The Appeals Chamber considers that the Appellant’s submissions on apparent authority fall more squarely under the question of the applicability of the doctrine of abuse of process.[5]

[1] See Krajišnik Decision, where the Appeals Chamber considered that a UNSC resolution is necessary for altering the norms contained in the Statute. In this instance Krajišnik argued that ad litem Judge Canivell should not continue sitting in his case; paras 1, 4. Although Judge Canivell’s four-year mandate was due to expire, the UNSC Resolution 1581/2005 of 18 January 2005 and the General Assembly by its 20 January 2005 Decision decided that Judge Canivell could finish the case to which he was assigned before the expiry of his term of office; para. 5. When it became clear that the case could not be completed before the expiration of Judge Canivell’s cumulative three-year term, the Security Council further adopted Resolution 1668/2006 which confirmed that Judge Canivell could continue to sit on the case; para. 6. In dismissing the appeal, the Appeals Chamber noted that the Security Council is not required to amend the Tribunal’s Statute in order to reflect all of its resolutions; para. 17. The Appeals Chamber held that the Security Council can address an administrative matter either by amending the Statute or simply adopting a resolution; para. 17. The Appeals Chamber further considered the UNSC Resolution 1668/2006 was directed to administrative matters and did not interfere with the Tribunal’s judicial function; para. 16. In other words, the Appeals Chamber distinguished between the matters interfering within the Tribunal’s judicial functions and those of a mere administrative character. The Appeals Chamber clearly stressed that in case of the latter, the UNSC can address such an issue by either formal amendment of the Statute or merely by way of issuing a resolution. It follows that the form of UNSC resolution is in any event indispensable for ruling on matters disciplined by the Statute. The Appeals Chamber further observes that the issue of jurisdiction is not merely an administrative matter.

[2] The UNSC has always acted by resolution when intervening in matters addressed in the Statute. See UNSC Resolution 827, S/RES/827, 25 May 1993 (establishing the Tribunal); UNSC Resolution 1534, S/RES/1534, 26 March 2005, para. 5 (calling on the Prosecution to focus on the most senior leaders responsible for crimes within the Tribunal’s jurisdiction); UNSC Resolution 1786, S/RES/1786, 28 November 2007 (appointing the Prosecutor); UNSC Resolution 1837, S/RES/1837, 29 September 2008 (extending terms of office of Judges).

[3] See, e.g. Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on The Accused’s Holbrooke Agreement Motion, 8 July 2009], para. 61, where the Trial Chamber observes that “there is no evidence that the UNSC was involved directly in the making or implementation of the Agreement”; see also ibid, para. 62, where the Trial Chamber assumes “for the sake of argument that [...]] the UNSC can limit its jurisdiction by entering into immunity agreements through its agents and without the knowledge of the representatives of the Tribunal or without passing a resolution affirming such agreements(emphasis omitted).  

[4] Appeal [Appeal of Decision on Holbrooke Agreement, 27 July 2009], para. 44; Reply [Reply Brief: Appeal of Decision on Holbrooke Agreement, 10 August 2009, with public annex A and confidential annex B], paras 10-11.

[5] Infra, Section D. 

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Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.4)

39. Additionally, the Appeals Chamber considers that the Appellant is not advancing an argument concerning the scope of the Tribunal’s jurisdiction when he claims that the Prosecution’s discretion not to prosecute an individual demonstrates that no UNSC resolution is necessary in order to limit the jurisdiction of the Tribunal.[1] The Appellant confuses the two distinct notions of jurisdiction and prosecutorial discretion. The scope of the substantive jurisdiction of the Tribunal is entirely contingent upon the constitutive instrument of the Tribunal itself, that is, its Statute. On a different level, in systems of criminal law not based on the rule of compulsory prosecution, like that of the Tribunal, prosecutors possess the discretion not to bring before the court cases that theoretically fall within the court’s jurisdiction. In other words, the fact that the Prosecution may decide not to prosecute an individual does not necessarily mean that, had the Prosecution decided to prosecute that individual, the Tribunal would not have jurisdiction over him or her. Jurisdiction and prosecutorial discretion are two independent issues.

41. The Appeals Chamber considers that, as a logical consequence of the two premises above, it follows that the alleged Agreement could not bind the Tribunal even if it were to be attributed to the Prosecution. The Appeals Chamber recalls that, while “[i]t is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments”,[2] this discretion is not unlimited and must be exercised within the restrictions imposed by the Statute and the Rules.[3] Pursuant to the restrictions to the Prosecution’s discretion provided by Rule 51 of the Rules, the Prosecution was not in a position, at the time of the alleged Agreement, to withdraw the indictment against the Appellant without the leave of a Judge of the Tribunal.[4] Consequently, even if the involvement of the Prosecution in the making of the alleged Agreement were proved, the alleged Agreement would not be binding on the Tribunal, as an indictment against the Appellant had already been confirmed at the time.[5]

[1] Reply, para. 5.

[2] Prosecutor v. Zejnil Delalić et al., Case. No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 602.

[3] Čelebići Appeal Judgement, paras 602-603.

[4] At the time of the alleged Agreement, Rule 51(A) of the Rules read as follows: “[t]]he Prosecutor may withdraw an indictment, without leave, at any time before its confirmation, but thereafter only with the leave of the Judge who confirmed it or, if at trial, only with the leave of the Trial Chamber”; UN Doc. IT/32/Rev. 8, 23 April 1995. The current version of Rule 51 of the Rules maintains the same requirements. 

[5] Prosecutor v. Radovan Karadžić and Ratko Mladić, Case No. IT-95-5-I, Indictment, 24 July 1995; Prosecutor v. Radovan Karadžić and Ratko Mladić, Case No. IT-95-18-I, Indictment, 15 November 1995. 

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Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.4)

45. As the parties note, the jurisprudence of the Tribunal has relied in several instances on the common law rooted doctrine of abuse of process.[1] In the Barayagwiza case, the Appeals Chamber recalled that under the doctrine of abuse of process “proceedings that have been lawfully initiated may be terminated after an indictment has been issued if improper or illegal procedures are employed in pursuing an otherwise lawful process”.[2] The Appeals Chamber specified that the doctrine of abuse of process may be relied on by a court, as a matter of discretion, in two distinct situations: (i) where a fair trial for the accused is impossible, usually for reasons of delay; and (ii) where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct.[3] The applicable standard was further clarified by stating that a court may discretionally decline to exercise jurisdiction “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity”.[4] The Barayagwiza Review Decision confirmed the applicable law on abuse of process as stated in the Barayagwiza Appeal Decision.[5]

46. In the Nikolić Appeal Decision, the Appeals Chamber contextualised the doctrine of abuse of process by the Tribunal in the following conceptual framework: 

Universally Condemned Offences[6] are a matter of concern to the international community as a whole. There is a legitimate expectation that those accused of these crimes will be brought to justice swiftly. Accountability for these crimes is a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts.[7] 

It then considered how this legitimate expectation should be addressed in two distinct hypotheses, relevant to the case before it: (i) under what circumstances a violation of State sovereignty requires jurisdiction to be set aside, when the violation is brought about by the apprehension of fugitives from international justice;[8] and (ii) under what circumstances a human rights violation requires jurisdiction to be set aside.[9] As to the former question, the Appeals Chamber did not identify any hypothesis justifying that jurisdiction be set aside.[10] As to the latter, the Appeals Chamber considered that, apart from “exceptional cases” of serious violations of human rights, the remedy of setting aside jurisdiction will usually be disproportionate, as “the correct balance must be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.[11]  

47. The Appeal Chamber considers that the Appellant correctly submitted that the jurisprudence of the Appeals Chamber did not introduce a dual standard for the abuse of process doctrine, depending on the nature of the entity which carried out the alleged misconduct. The Appeals Chamber also notes however that, in addressing the Appellant’s submission, the Trial Chamber adopted the common standard established by the Appeals Chamber in the Barayagwiza Decision and in the Nikolić Appeal Decision, and not a higher one, by considering whether the Appellant suffered a serious mistreatment or if there was any other egregious violation of his rights. The jurisprudence of the Appeals Chamber does not allow the abuse of process doctrine to deploy a standard lower than this, irrespective of the author of the alleged misconduct.

[…]

49. The Appeals Chamber recalls that the Appellant is charged with genocide, crimes against humanity and war crimes.[12] The public interest in the prosecution of an individual accused of such offences, universally condemned, is unquestionably strong. Against the legitimate interest of the international community in the prosecution of the Appellant for Universally Condemned Offences stands the alleged violation of the Appellant’s expectation that he would not be prosecuted by the Tribunal, pursuant to the alleged Agreement.

[…]

52. The Appeals Chamber recalls that one of the fundamental aims of international criminal courts and tribunals is to end impunity and ensure that serious violations of international humanitarian law are prosecuted and punished.[13] Individuals accused of such crimes can have no legitimate expectation of immunity from prosecution. The Appeals Chamber considers that the facts that allegedly gave rise to the Appellant’s expectations of impunity do not constitute an exception to this rule.

53. In light of the foregoing, the Appeals Chamber considers that the Appellant’s allegations, even if proved, would not trigger the doctrine of abuse of process justifying a stay of the proceedings against the Appellant.

[1] Barayagwiza Appeal Decision; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, (“Barayagwiza Review Decision”); Nikolić Appeal Decision [Prosecutor v. Dragan Nikolić, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003].

[2] Barayagwiza Appeal Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 74.

[3] Barayagwiza Appeal Decision, paras 74, 77.

[4] Barayagwiza Appeal Decision, para. 74.

[5] Barayagwiza Review Decision, para. 51.

[6] For the definition of “Universally Condemned Offences”, see Nikolić Appeal Decision, para. 24 referring to crimes such as genocide, crimes against humanity and war crimes “which are universally recognised and condemned as such”.

[7] Nikolić Appeal Decision, para. 25.

[8] Nikolić Appeal Decision, paras 20-27.

[9] Nikolić Appeal Decision, paras 28-33.

[10] Nikolić Appeal Decision, para. 26.

[11] Nikolić Appeal Decision, para. 30.

[12] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s Third Amended Indictment, 27 February 2009.

[13] The UNSC Resolution establishing the Tribunal expressed a determination “to put an end to [flagrant violations of international humanitarian law]] and to take effective measures to bring to justice the persons who are responsible for them”; UNSC Resolution 827 (1993), 25 May 1993; see also Rome Statute Preamble, which affirms “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” and further emphasises the determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”.

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Decision on Legality of Arrest - 12.03.2009 TOLIMIR Zdravko
(IT-05-88/2-AR72.2)

11. The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) of the Rules only where they challenge an indictment on the ground that it does not relate to the Tribunal’s personal, territorial, temporal or subject-matter jurisdiction.[1] The Appellant challenges the Tribunal’s jurisdiction over him because of the alleged illegality of his arrest.[2] However, he does not challenge the Indictment on any of the above-listed grounds. Consequently, Rule 72(D) of the Rules “cannot provide a basis for appeal of the Impugned Decision”.[3]

12. The alternative relief sought by the Appellant concerns the establishment of the circumstances of his arrest and a declaration as to its unlawful nature. These submissions equally go outside the scope of a jurisdictional challenge and therefore are not properly before the Appeals Chamber.

13. In light of the above, the Appeals Chamber considers that the Appellant should have requested the Trial Chamber’s authorization to lodge an appeal against the Impugned Decision[[5]] under Rule 73(B). Absent certification to appeal under Rule 73(B) of the Rules, the Appeals Chamber has no jurisdiction to address the merits of the Appeal.

[1] Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR72.1, Decision on Tolimir’s “Interlocutory Appeal Against the Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concerning the Jurisdiction of the Tribunal”, 25 February 2009, para. 4.

[2] Appeal [Appeal Against the Decision on Submissions of the Accused Concerning Legality of Arrest, the B/C/S original filed on 23 January 2009, the English translation filed on 29 January 2009], para. 36.

[3] Prosecutor v. Dragan Nikolić, Case No. IT-94-2-AR72, Decision on Notice of Appeal, 9 January 2003 (“Nikolić Decision of 9 January 2003”), p. 3. The Appeals Chamber notes that a number of its decisions rendered in the ICTR prior to 27 May 2003, have adopted a different approach allowing comparable appeals to be filed as of right under Rule 72(D) (e.g. Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999, paras 11 and 72 citing Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 6; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-72, Decision and Scheduling Order, 5 February 1999, p. 3; see also the Dissenting Opinion of Judge Shahabuddeen attached to the Nikolić Decision of 9 January 2003 (paras 13 et seq.)). However, given that the Rules of Procedure and Evidence of the ICTR were amended on 27 May 2003 to include the provisions on certification of appeal referred to in the Nikolić Decision of 9 January 2003, the Appeals Chamber considers that these two approaches are not in contradiction.

[4] Appeal, para. 37.

[5] [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-PT, Decision on Submissions of the Accused Concerning Legality of Arrest, 18 December 2008 (the B/C/S translation was filed on 9 January 2009)].

[6] Nikolić Decision of 9 January 2003, p. 3.

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ICTR Rule Rule 72 ICTY Rule Rule 72
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Decision on Judicial Notice - 16.06.2006 KAREMERA et al.
(ICTR-98-44-AR73(C))

The Appeals Chamber discussed for the first time whether the provisions of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal[1] governing the content of a response apply identically to Interlocutory appeals “as of right and interlocutory appeals “with leave to appeal”. It held (Decision, footnote 7):

The Practice Direction on Written Submissions distinguishes between appeals that lie “as of right” and those that lie “only with the leave of a bench of three judges of the Appeals Chamber”.  Appeals that have been certified by a Trial Chamber—pursuant to a procedure established by amendment to the Rules after the Practice Direction’s issuance—are not specifically mentioned, but the Appeals Chamber considers that, after the required certification has been issued, they lie “as of right”, in that they are authorized by Rule 73(B) of the Rules and the appellant need not apply to the Appeals Chamber for further leave to file them.  In any event, the provisions of the Practice Direction governing the content of a response are the same for all categories of interlocutory appeal.

[1]16 September 2002 (“Practice Direction on Written Submissions”).

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Decision on Motion to Void Trial Chamber Decisions - 30.09.2011 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

NOTING that the Decision Varying Protective Measures was a ruling on an application filed before the Trial Chamber on 7 June 2011, prior to the pronouncement of the Trial Judgement;

CONSIDERING that, when a Chamber pronounces its judgement on the merits of a case before it, it retains jurisdiction to dispose of pending ancillary matters of which it is properly seised;

FINDING, therefore, that the Trial Chamber had jurisdiction over the matters it ruled upon in the Decision Varying Protective Measures;

NOTING further that the proceedings subject of the Decision Concerning Witness QA and the Decision Concerning Witnesses QY and SJ were initiated in 2008 and 2009, respectively, prior to the pronouncement of the Trial Judgement, and that proceedings for contempt and false testimony “are independent of the proceedings out of which they arise”;

FINDING, therefore, that the Trial Chamber had jurisdiction over the matters it ruled upon in the Decision Concerning Witness QA and the Decision Concerning Witnesses QY and SJ;

[1] See Decision Varying Protective Measures [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Decision on the Re-Filing of Prosecutor’s Ex-Parte Motion to Vary Protective Measures for Witnesses, 1 September 2011], p. 2, referring to the Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Re-filing of Prosecutor’s Ex Parte Motion to Vary Protective Measures for Witnesses, Art. 28 and Rule 75, 7 June 2011.

[2] See Decision Concerning Witness QA [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Confidential Decision Following Amicus Curiae Report Related to Allegations of Contempt of the Tribunal and False Testimony and Witness QA, 2 September 2011 (confidential)], para. 1; Decision Concerning Witnesses QY and SJ [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Confidential Decision Following Amicus Curiae Report Related to Allegations of Contempt of the Tribunal and False Testimony and Witnesses QY and SJ, 2 September 2011 (confidential)], para. 1.

[3] Karemera et al. Decision [Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR91.2, Decision on Joseph Nzirorera’s and the Prosecutor’s Appeals of Decision Not to Prosecute Witness BTH for False Testimony, 16 February 2010], para. 25 and references cited therein. Cf. The Prosecutor v. Hormisdas Nsengimana, Case Nos. ICTR-01-69-A and ICTR-10-92, Decision on Prosecution Appeal of Decision Concerning Improper Contact with Prosecution Witnesses, 16 December 2010, in which the Appeals Chamber considered an appeal against a decision related to contempt allegations issued by Trial Chamber I after the rendering of the trial judgement in Mr. Nsengimana’s case.

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Decision on Challenge by Croatia - 29.11.2002 BOBETKO Janko
(IT-02-62-AR54bis & IT-02-62-AR108bis)

15. […] The Tribunal has an inherent power to stay proceedings which are an abuse of process, such a power arising from the need for the Tribunal to be able to exercise effectively the jurisdiction which it has to dispose of the proceedings.[1] […]

[1] See Prosecutor v Tadić, IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 Jan 2000, par 13.

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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

Tarčulovski contended that purely domestic acts carried out by a sovereign State in self-defence were outside the jurisdiction of the Tribunal. The Appeals Chamber dismissed his argument.

31. […] The fact that a State resorted to force in self-defence in an internal armed conflict against an armed group does not, in and of itself, prevent the qualification of crimes committed therein as serious violations of international humanitarian law.[1] As the Appeals Chamber has stated, “whether an attack was ordered as pre-emptive, defensive or offensive is from a legal point of view irrelevant […]. The issue at hand is whether the way the military action was carried out [during an armed conflict] was criminal or not.”[2]

32. […] In the present case, having been satisfied that there had been an armed conflict in the FYROM at the times relevant to the Indictment and that the alleged crimes had been sufficiently linked with the armed conflict, the Trial Chamber correctly concluded that all the charged crimes (murder, wanton destruction and cruel treatment) constitute serious violations of international humanitarian law,[3] irrespective of the question whether the FYROM was conducting a lawful operation in self-defence against “terrorists” on its territory.[4]

[1] Tarčulovski’s argument that the crimes committed in the present case do not implicate the “international concerns” as outlined in Tadić is not supported by the Tadić Jurisdiction Decision [Prosecutor v. Duško Tadić a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995]. In this decision, the Appeals Chamber found in relation to inter alia crimes allegedly committed in an internal armed conflict, that “the offences alleged against [Tadić] do not affect the interests of one State alone but shock the conscience of mankind” (Tadić Jurisdiction Decision., para. 57).

[2] Martić Appeal Judgement, para. 268. See also Kordić and Čerkez Appeal Judgement, para. 812; Kordić and Čerkez Trial Judgement, para. 452. See also international instruments affirming the applicability of international humanitarian law regardless of the legality of the use of force concerned: Geneva Conventions, Common Article 1; Additional Protocol I, Preamble, para. 5 and Article 1; ICRC Commentary on Additional Protocols, paras 48 and 1927; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para. 42. The Appeals Chamber notes that Article 51 of the UN Charter concerns an inherent right of self-defence in the case of armed attack by one State against another State (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, para. 139). Since it is not alleged in the present case that the concerned operation was against an action by another State, this provision is not relevant to this case.  

[3] Trial Judgement, paras 297-300.

[4] The Appeals Chamber further recalls that, provided that the alleged crimes are sufficiently linked with an armed conflict, the application of Article 3 of the Statute only depends on the four Tadić conditions. Thus, it is irrelevant if such violations have been committed in the context of a State’s operation in self-defence against an armed group operating in its territory (cf. Tadić Jurisdiction Decision, para. 94). In light of this finding, the Appeals Chamber dismisses Tarčulovski’s arguments that the Trial Chamber erred in law and fact “in determining that certain protocols that apply to the destruction of civilian property necessarily apply to situations where domestic terrorists are hiding among the civilian population, and in failing to consider whether the Government of Macedonia was justified in acting in self-defense in engaging in firings that had the effect of destroying houses” (Tarčulovski Amended Notice of Appeal, para. 86 (citing Trial Judgement, paras 352-358 and 380)). See also Tarčulovski Reply Brief, para. 42.

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ICTY Statute Article 3(b) Other instruments UN Charter: Article 51
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

33. Furthermore, the Appeals Chamber recalls that while the UN shall not “intervene in matters which are essentially within the domestic jurisdiction of any State [,] this principle shall not prejudice the application of enforcement measures under Chapter VII [of the UN Charter]”.[1] This Tribunal was established by the UN Security Council acting under Chapter VII for the purpose of prosecuting serious violations of international humanitarian law.[2] Thus, even if the FYROM conducted an “anti-terrorist” operation in Ljuboten on its own territory, it cannot, based on its sovereignty, claim that the Tribunal does not have jurisdiction over any serious violations of international humanitarian law committed during this operation, provided it was in the context of an armed conflict. Consequently, the Trial Chamber’s findings on NLA activities[3] did not affect the Trial Chamber’s determination on its jurisdiction over the present case.

34. The Appeals Chamber further notes that the presidential statements and resolutions of the UN Security Council cited by Tarčulovski called for international involvement, stating that violence by Albanian extremists was affecting the peace and stability in the entire region.[4] […] The Security Council did not state that the situation in the FYROM was a purely domestic matter or distinguishable from other conflicts in the region. Nor did it state that it was outside the Tribunal’s jurisdiction.

35. Furthermore, while the Security Council mentioned the need to respect the sovereignty and territorial integrity of the FYROM and underlined the responsibility of its Government for the rule of law in its territory,[5] this does not show that the Security Council excluded the Tribunal’s jurisdiction for any serious violations of international humanitarian law committed during the internal armed conflict on the territory of the FYROM.

[1] Article 2(7) of the UN Charter. See also Tadić Jurisdiction Decision, para. 56.

[2] UN Security Council Resolution 827, 25 May 1993 (S/RES/827 (1993)).

[3] E.g., Trial Judgement, paras 30-31, 103, 133, 138-140, 153-154, 161, 163, 229, 232 and 279.

[4] Ex. 1D230 (UN Security Council Press Release, SC/7026, and UN Security Council Resolution 1345, 21 March 2001, S/RES/1345(2001)); Ex. 1D343 (Statement by the President of the UN Security Council, 12 March 2001, S/PRST/2001/7) and Ex. 1D346 (UN Security Council Resolution 1371, 26 September 2001, S/RES/1371(2001)).

[5] Ex. 1D230 (UN Security Council Press Release, SC/7026, and UN Security Council Resolution 1345, 21 March 2001, S/RES/1345(2001)); Ex. 1D343 (Statement by the President of the UN Security Council, 12 March 2001, S/PRST/2001/7) and Ex. 1D346 (UN Security Council Resolution 1371, 26 September 2001, S/RES/1371(2001)). In this context, the Appeals Chamber recalls that the Security Council required “all parties [to the conflict in the FYROM] to act with restraint and full respect for international humanitarian law and human rights” (Ex. 1D230 (pp. 11-12), UN Security Council Resolution 1345, 21 March 2001, S/RES/1345 (2001)).

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Other instruments UN Charter: Article 2(7); Chapter VII
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Appeal Judgement - 19.05.2010 BOŠKOSKI & TARČULOVSKI
(IT-04-82-A)

52. The Appeals Chamber recalls that pursuant to Article 1 of the Statute, the Tribunal is not limited in its jurisdiction to prosecute persons of a specific level of authority.[1] Indeed, a number of accused who had low-ranking positions in the military or the police or did not have any official position at all have been prosecuted and convicted by the Tribunal.[2] Hence, the subordinate role of an accused is legally irrelevant in determining his individual criminal responsibility. […]

[1] Article 1 of the Statute provides: […].”

[2] Cf. Erdemović Sentencing Judgement, paras 92-95; Tadić Sentencing Judgement, para. 60; Banović Sentencing Judgement, paras 45 and 91; Češić Sentencing Judgement, para. 37; Mrđa Sentencing Judgement, para. 53. See also Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993) and Annex thereto, U.N. Doc. S/25704, para. 54: “all persons who participate in the planning, preparation or execution of serious violations of international humanitarian law in the former Yugoslavia contribute to the commission of the violation and are, therefore, individually responsible” (emphasis added).

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ICTY Statute Article 1
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Interlocutory Decision on Jurisdiction - 22.07.2005 BOŠKOSKI & TARČULOVSKI
(IT-04-82-AR72.1)

10.     […] The Statute of the Tribunal extends the Tribunal's jurisdiction to those entities that were a part of the former Yugoslavia prior to its dissolution. This includes Macedonia, which was part of the former Yugoslavia prior to its succession. Further, the Statute of the Tribunal confers jurisdiction on the Tribunal over persons responsible for serious violations of international humanitarian law since 1991. The  UN  Security  Council  has  decided  in  Resolution  827  (1993)  that the temporal jurisdiction of the Tribunal covers the period "between 1 January  1991  and  a  date  to be determined by the Security Council upon restoration of peace."[1] At present,  no  such  end  date has been determined; therefore, the Tribunal's temporal jurisdiction is open-ended  and  does extend to allegations of serious violations of international humanitarian law occurring after 2001.

[1] S/RES/827 (1993), 25 May 1993.

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Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

13. There is no mention in the Tribunal’s Statute of its power to deal with contempt. The Tribunal does, however, possess an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded.[1] As an international criminal court, the Tribunal must therefore possess the inherent power to deal with conduct which interferes with its administration of justice. The content of that inherent power may be discerned by reference to the usual sources of international law.

14. There is no specific customary international law directly applicable to this issue. There is an international analogue available, by way of conventional international law, in the Charter of the International Military Tribunal (an annexure to the 1945 London Agreement)[2] which gave to that tribunal the power to deal summarily with “any contumacy” by “imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges”.[3] Although no contempt matter arose before the International Military Tribunal itself, three contempt matters were dealt with by United States Military Tribunals sitting in Nurnberg in accordance with the Allied Control Council Law No 10 (20 December 1945), whereby war crimes trials were heard by the four Allied Powers in their respective zones of occupation in Germany. That Law incorporated the Charter of the International Military Tribunal. The US Military Tribunals interpreted their powers as including the power to punish contempt of court.[4]

15. It is otherwise of assistance to look to the general principles of law common to the major legal systems of the world, as developed and refined (where applicable) in international jurisprudence.[5] Historically, the law of contempt originated as, and has remained, a creature of the common law. The general concept of contempt is said to be unknown to the civil law, but many civil law systems have legislated to provide offences which produce a similar result.

See also paras. 16-17.

18. A power in the Tribunal to punish conduct which tends to obstruct, prejudice or abuse its administration of justice is a necessity in order to ensure that its exercise of the jurisdiction which is expressly given to it by its Statute is not frustrated and that its basic judicial functions are safeguarded. Thus the power to deal with contempt is clearly within its inherent jurisdiction.[6] That is not to say that the Tribunal’s powers to deal with contempt or conduct interfering with the administration of justice are in every situation the same as those possessed by domestic courts, because its jurisdiction as an international court must take into account its different setting within the basic structure of the international community.[7]

19. This Tribunal has, since its creation, assumed the right to punish for contempt. The original Rules of Procedure and Evidence, adopted on 11 February 1994, provided by Rule 77 (“Contempt of Court”) for a fine or a term of imprisonment where — subject to the provisions of what is now Rule 90(F), which permits a witness to object to making any statement which may tend to incriminate him or her — a witness “refuses or fails contumaciously to answer a question relevant to the issue before a Chamber”. In January 1995, such punishment was also made applicable to a person who attempts to interfere with or intimidate a witness, and any judgment of a Chamber under Rule 77 was made subject to appeal.[8] In July 1997, such punishment was also made applicable to any party, witness or other person participating in proceedings before a Chamber who discloses information relating to the proceedings in violation of an order of the Chamber. Both of these additions expressly identified the relevant conduct as “contempt”.

24. Care must be taken not to treat the considerable amount of elaboration which has occurred in relation to Rule 77 over the years as if it has produced a statutory form of offence enacted by the judges of the Tribunal, notwithstanding the form in which Sub-rules (A) to (D) may be expressed. Article 15 of the Tribunal’s Statute gives power to the judges to adopt only-

[…] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.[9]

That power does not permit rules to be adopted which constitute new offences, but it does permit the judges to adopt rules of procedure and evidence for the conduct of matters falling within the inherent jurisdiction of the Tribunal as well as matters within its statutory jurisdiction.[10] As stated earlier, the content of these inherent powers may be discerned by reference to the usual sources of international law, but not by reference to the wording of the rule.

25. Sub-rules (A) to (D) are statements of what was seen by the judges at Plenary meetings of the Tribunal to reflect the jurisprudence upon those aspects of the law of contempt as are applicable to the Tribunal. Those statements do not displace the underlying law; both the Tribunal and the parties remain bound by that underlying law.[11]

26. In the opinion of the Appeals Chamber:

(a) the inherent power of the Tribunal as an international criminal court to deal with contempt is for present purposes adequately encompassed by the wording of the reservation inserted in Rule 77 in November 1997 — that the Tribunal has the power “to hold in contempt those who knowingly and wilfully interfere with its administration of justice” — as such conduct would necessarily fall within the general concept of contempt, being “conduct which tends to obstruct, prejudice or abuse the administration of justice”;[12] and

(b) each of the formulations in the current Rules 77(A) to (D), when interpreted in the light of that statement of the Tribunal’s inherent power, falls within — but does not limit — that inherent power, as each clearly amounts to knowingly and wilfully interfering with the Tribunal’s administration of justice.

28. […] The inherent power of the Tribunal to deal with contempt has necessarily existed ever since its creation, and the existence of that power does not depend upon a reference being made to it in the Rules of Procedure and Evidence. As the Appeals Chamber is satisfied that the current formulation of Rules 77(A) to (D) falls within that inherent power, the amendments made in December 1998 did not increase the nature of the conduct which amounts to contempt to the prejudice of the Respondent’s rights.[13]

See also paras. 20-23.

NOTE: IN NOVEMBER 1997 SHORTLY AFTER THE BEGINNING OF THE RELEVANT PERIOD IN THIS CASE, RULE 77 WAS AMENDED AND IT PROVIDED AS FOLLOWS:

(A) Any person who

(i) being a witness before a Trial Chamber, contumaciously refuses or fails to answer a question,

(ii) interferes with or intimidates a witness who is giving, has given, or is about to give evidence before a Trial Chamber,

(iii) discloses information relating to those proceedings in knowing violation of an order of the Chamber, or

(iv) without just excuse fails to comply with an order to attend before or produce documents before a Chamber,

commits a contempt of the Tribunal.

(B) When a Chamber has good reason to believe that a person may be in contempt of the Tribunal it may call on that person that he or she may be found to be in contempt. After affording such person an opportunity to appear and answer personally or by counsel, the Chamber may, if satisfied beyond reasonable doubt, find the person to be in contempt of the Tribunal and impose a fine not exceeding Dfl. 20,000 or a term of imprisonment not exceeding six months, to be served as provided in Rule 103.

(C) Any person so called upon shall, if that person satisfies the criteria for determination of indigency established by the Registrar, be assigned counsel in accordance with Rule 45.

(D) Any decision rendered under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Applications for leave to appeal shall be filed within seven days of the impugned decision.

(E) Payment of a fine shall be made to the Registrar to be held in a separate account.

(F) Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.

AT THE TIME OF THIS JUDGMENT, FOLLOWING AMENDMENTS IN DECEMBER 1998 RULE 77 (A) TO (E) PROVIDED:

(A) Any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question,

(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber, or

(iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber,

commits a contempt of the Tribunal.

(B) Any person who threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness, commits a contempt of the Tribunal.

(C) Any person who threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber, commits a contempt of the Tribunal.

(D) Incitement to commit, and attempts to commit, any of the acts punishable under this Rule are punishable as contempts of the Tribunal with the same penalties.

(E) Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.

FURTHER AMENDMENTS WERE MADE TO RULE 77 IN DECEMBER 2000, DECEMBER 2001, JULY 2002 AND JULY 2009.

[1] Nuclear Tests Case, ICJ Reports 1974, pp 259-260, par 23, followed by the Appeals Chamber in Prosecutor v Blaškić, Case IT-95-14-ARlO8bis, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 Oct 1997 (“Blaškić Subpoena Decision”), footnote 27 at par 25. See also Northern Cameroons Case, ICJ Reports 1963, p 29.

[2] Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945.

[3] Article 18 (c).

[4] All references are taken from “Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No 10”: US v Karl Brandt, 27 June 1947, at 968-970 (where a prosecution witness assaulted one of the accused in court); US v Joseph Altstoetter, 17 July 1947, at 974-975, 978, 992 (where defence counsel and a private individual attempted improperly to influence an expert medical witness by making false representations, and mutilated an expert report in an attempt to influence the signatories of the report to join in altering it); and US v A/fried Krupp von Bohien und Halbach, 21 Jan 1948, at 1003, 1005-1006, 1088, 1011 (where defence counsel staged a walk out, and then failed to appear, in protest of a ruling against their clients, but which conduct was ultimately dealt with on a disciplinary basis).

[5] cf Prosecutor v Blaškić, Case IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, TC II, 18 July 1997, par 152; Prosecutor v Furundžija, Case IT-95-17/1, 10 Dec 1998, Judgment, pars 177-178.

[6] The Appeals Chamber has already held this to be so, but as an obiter dictum only, in the Blaškić Subpoena Decision, par 59.

[7] Blaškić Subpoena Decision, par 40.

[8] The heading of the rule was corrected to read “Contempt of the Tribunal”.

[9] The emphasis has been added.

[10] Rule 91, which deals with false testimony, is another provision in the Rules concerning the conduct of a matter falling within the inherent jurisdiction of the Tribunal.

[11] Rule 96, which deals with evidence in cases of sexual assault, is a similar statement insofar as it deals with the admissibility of evidence of consent by the victim.

[12] See footnote 16 [Report of the Committee on Contempt of Court, UK Cmnd 5794 (1974) (“Phillimore Committee Report”), par 1.  That passage has been accepted as a correct assessment of the purpose and scope of the law of contempt by the European Court of Human Rights, in Sunday Times v United Kingdom, Series A Vol 30 at pars 18 and 55, (1979) 2 EHRR 245 at 256, 274, by the English House of Lords, in Attorney-General v Times Newspaper Ltd [1992] 1 AC 191 at 207-209 (per Lord Ackner), and by the Ontario Court of Appeal, in Regina v Glasner (1994) 119 DLR (4th) 113 at 128-129.  See also AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106 (High Court of Australia);  Witham v Holloway (1995) 183 CLR 525 at 533 (per joint judgment), 538-539 (per McHugh J) (High Court of Australia);  US v Dixon & Foster 509 US 688 (1993) at 694 (Supreme Court of the United States).].

[13] The ruling given on 26 April 1999 during the hearing (at Transcript page 33) expressly left open the issue as to whether the amendments made after the relevant period did indeed introduce a new standard of conduct.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
JCE Decision - 21.05.2003 MILUTINOVIĆ et al.
(IT-99-37-AR72)

9.       […] the Tribunal only has jurisdiction over a listed crime if that crime was recognised as such under customary international law at the time it was allegedly committed.[1] The scope of the Tribunal’s jurisdiction ratione materiae may therefore be said to be determined both by the Statute, insofar as it sets out the jurisdictional framework of the International Tribunal, and by customary international law, insofar as the Tribunal’s power to convict an accused of any crime listed in the Statute depends on its existence qua custom at the time this crime was allegedly committed.[2]

[…]

18.     […] A crime or a form of liability which is not provided for in the Statute could not form the basis of a conviction before this Tribunal.[3] The reference to that crime or to that form of liability does not need, however, to be explicit to come within the purview of the Tribunal’s jurisdiction.[4] The Statute of the ICTY is not and does not purport to be, unlike for instance the Rome Statute of the International Criminal Court, a meticulously detailed code providing explicitly for every possible scenario and every solution thereto. It sets out in general terms the jurisdictional framework within which the Tribunal has been mandated to operate.

[1] See Secretary-General’s Report [Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)], par. 29.

[2] See, for instance, treatment of “violence to life and person” in the Vasiljević Trial Judgment (Prosecutor v Vasiljević, Case No. IT98-32-T, Judgment, 29 November 2002, pars 193 et seq.).  This matter has not been appealed by either party.

[3] The defence correctly refers to the example of the crime of piracy (Ojdanić’s Appeal [General Ojdanić’s Appeal from Denial of Preliminary Motion to Dismiss for Lack of Jurisdiction: Joint Criminal Enterprise], par 43).

[4] The Tribunal has accepted, for instance, that Article 3 of the Statute was a residual clause and that crimes which are not explicitly listed in Article 3 of the Statute could nevertheless form part of the Tribunal’s jurisdiction (ref to Tadić). 

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JCE Decision - 21.05.2003 MILUTINOVIĆ et al.
(IT-99-37-AR72)

21.     […] In order to come within the Tribunal’s jurisdiction ratione personae, any form of liability must satisfy three pre-conditions: (i) it must be provided for in the Statute, explicitly or implicitly; (ii) it must have existing under customary international law at the relevant time; (iii) the law providing for that form of liability must have been sufficiently accessible at the relevant time to anyone who acted in such a way; and (iv) such person must have been able to foresee that he could be held criminally liable for his actions if apprehended.

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Decision on Motion for Stay - 02.03.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

12. […] The Appeals Chamber further recalls that

where the Directive expressly provides for a review of the Registrar’s decision, the Trial Chamber cannot interfere in the Registrar’s decision, and its only option is to stay the trial until that procedure has been completed. Where, however, the Directive does not expressly provide for a review of the Registrar’s decision, the Trial Chamber, pursuant to its statutory obligation to ensure the fairness of the trial, is competent to review the Registrar’s decision in the light of its effect upon the fairness of the trial.[1]

In the present case, as Pavković himself points out, no definitive decision has yet been rendered by the Registry on the merits of his request for additional hours.[2] Therefore, the Appeals Chamber can only intervene in the matter once a decision is rendered by the Registry and the review procedure in relation to such a decision under Article 31 of the Directive is completed, and if it is satisfied that the matter affects the fairness of the appeal proceedings.

[1] Ibid. (footnotes omitted).

[2] Motion [General Pavković’s Motion for Stay of Proceedings Pending Action by the Registrar, 19 February 2010], paras 8-9. The Appeals Chamber further notes the background provided in the Registry’s Submission [Registry Submission Pursuant to Rule 33 (B) Concerning General Pavković’s Motion for Stay of Proceedings Pending Action by the Registrar, 26 February 2010 (confidential)], including the fact that the first request for additional hours submitted by Pavković’s Counsel on 2 February 2010 was denied by the Registry on 10 February 2010 as it lacked sufficient detail and that his second request submitted on 17 February 2010 is currently under consideration (Registry’s Submission, paras 8-16, 21, 23; Annex VI).

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Other instruments Directive on the Assignment of Defence Counsel (ICTY): Article 31.
Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ
(IT-95-14/2-A)

41. The Appeals Chamber notes that the Trial Chamber considered that Article 3 of the Statute covers not only violations which are based in customary international law but also those based on treaties. It found that Additional Protocol I constituted applicable treaty law in the present case,[1] and found that “whether [Additional Protocol I] reflected customary law at the relevant time in this case is beside the point.”[2]

42. The Appeals Chamber holds that the Trial Chamber’s approach is correct.

43. This approach is consistent with the language of Article 1 of the Statute granting the International Tribunal “competence to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia”. It is also consistent with Security Council Resolution 827 (1993) in which the Security Council expressed its determination “to take effective measures to bring to justice the persons who are responsible for [violations of international humanitarian law]”.[3] These instruments do not impose any restriction to customary international law, which is in line with the statements made in the Security Council at the time the Statute was adopted.[4]

44. The Trial Chamber’s approach is also in line with the Report of the Secretary-General in which he stated that:

the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise.[5]

The maxim of nullum crimen sine lege is also satisfied where a State is already treaty-bound by a specific convention, and the International Tribunal applies a provision of that convention irrespective of whether it is part of customary international law.[6]

[1] Trial Judgement, para. 167.

[2] Trial Judgement, para. 167.

[3] S/Res/827 (1993).

[4] See in particular the position expressed by the representatives of France: “Article 3 of the Statute covers specifically […] all the obligations that flow from the humanitarian law agreements in force on the territory of the former Yugoslavia”; United States: “’laws or customs of war’ referred to in Article 3 include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia”; United Kingdom: “The Statute does not, of course, create new law, but reflects existing international law in this field. In this connection, it would be our view that the reference to the laws or customs of war in Article 3 is broad enough to include applicable international conventions and that Article 5 covers acts committed in time of armed conflict”; Hungary: “the jurisdiction of the Tribunal covers the whole range of international humanitarian law”; Spain: “jurisdiction limited […] materially, in that it will be circumscribed to applying the international law in force”; Russian Federation: “Those guilty of mass crimes covered by the Geneva Protocols [sic], violations of the laws and customs of war, crimes of genocide and crimes against humanity must be duly punished” (Provisional Verbatim Record of the UN SCOR, 3217th Meeting, at 11, 15, 19, 20, 41, 44 U.N. Doc. S/PV.3217 (25 May 1993)). See also the position expressed by the representative of the Netherlands: “the Netherlands favours a system whereby the ad hoc tribunal would prosecute suspects on the basis of violations of substantive norms under international law,” (Note Verbale, dated 30 April 1993 from the Permanent Representative of the Netherlands to the United Nations addressed to the Secretary-General, U.N. Doc. S/25716 (4 May 1993)).

[5] Report of the Secretary-General, para. 34.

[6] The Appeals Chamber notes that Additional Protocol I and Additional Protocol II were ratified by the SFRY on 11 June 1979. Bosnia and Herzegovina deposited its Declaration of Succession on 31 December 1992, declaring it became party to the Geneva Conventions and the Additional Protocols as of the date of its independence, 6 March 1992. Croatia deposited its Declaration of Succession on 11 May 1992 and declared to be a party to the conventions to which the SFRY was a party as of 8 October 1991.

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Decision on the Outcome of Proceedings - 29.06.2010 DELIĆ Rasim
(IT-04-83-A)

6. First, the personal jurisdiction of the Tribunal is limited to “natural persons”,[1] which, read in the context and in light of the Statute’s object and purpose, should be understood in its ordinary meaning, i.e., the living. Second, Article 25 of the Statute clearly states that “[t]he Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor”, thus leaving no room for other persons interested in the outcome of the appeal.[2] Third, neither the Statute nor the Rules allow for Tribunal’s jurisdiction in relation to any procedures initiated by the convicted person’s heirs or victims. The Appeals Chamber is of the view that this clearly demonstrates that the Tribunal’s jurisdiction ratione personae is limited to living accused or convicted persons.[3]

In Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on Motion for Continuation of the Appellate Proceedings, 29 June 2010, the Appeals Chamber denied the motion seeking the continuation of the proceedings on behalf of Rasim Delić’s son and considered that

[…] the plain reading of the Motion indicates that the entirety of the submissions therein are made on behalf of Delić’s son,[4] who is not and cannot qualify as a party to any existing proceedings before the Tribunal;

[…] Delić’s son has no standing to submit a motion before the Tribunal and cannot be represented by Counsel assigned to Delić;

[…] consequently, […] the Motion is not validly filed before the Appeals Chamber and […] the Appeals Chamber has no jurisdiction to consider its merits;

[1] Article 6 of the Statute.

[2] See also, Decision of 29 June 2010 [Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on Motion for Continuation of the Appellate Proceedings, 29 June 2010], p. 2.

[3] In addition, trials and appeals before this Tribunal, as such, are not conducted in absentia, unless a living accused or the appellant waives his right to be present in the courtroom (see Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, paras 97-99 and references therein). The Appeals Chamber further notes that Rule 118(B) of the Rules provides for the possibility of the appeal judgement being rendered in the absence of the accused. However and in light of the above, the Appeals Chamber considers that this provision only deals with the issue of a living accused who is not physically present in the courtroom and therefore does not apply to the present situation.

[4] E.g., Motion, paras 3, 7; Response, para. 2.

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ICTR Statute Article 5;
Article 24(1)
ICTY Statute Article 6;
Article 25(1)
Notion(s) Filing Case
Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

At paras 81-84, the Appeals Chamber clarified its position in that respect. It concluded:

85. […] while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction, in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom.

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Appeal Judgement - 30.11.2006 GALIĆ Stanislav
(IT-98-29-A)

At paras 81-84, the Appeals Chamber clarified its position in that respect. It concluded:

85. […] while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction, in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom.

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Decision on Consummation of Marriage - 06.12.2005 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

P. 4: CONSIDERING that the Appeals Chamber has the statutory duty to ensure the fairness of the proceedings on appeal[1] and, thus, has jurisdiction to review decisions of the Tribunal’s Registrar and President;

P. 4: CONSIDERING, however, that the exercise of such jurisdiction should be closely related to the fairness of proceedings on appeal and should not be used as a substitute for a general power of review which has not been expressly provided by the Rules of Detention;[2]

P. 4: CONSIDERING that the Appellant has not identified any impact by the issues raised in his Motion on his right to fair proceedings;

P. 4: FINDING that the detention conditions raised by the Appellant are not related to the fairness of proceedings on appeal and that, therefore, the Appellant’s right to fair proceedings has not been infringed by the outcome of the President’s Decision;

P. 4: FINDING, therefore, that the Appellant has exhausted all available remedies and that the Appeals Chamber has no jurisdiction in this matter

[1] Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras 4 and 7; Ferdinand Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.

[2] See, by analogy, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 20.

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Decision on Croatia's Amicus Curiae Application - 18.07.2016 PRLIĆ et al.
(IT-04-74-A )

9.          […] The Appeals Chamber further observes that the Tribunal’s jurisdiction is restricted to “natural persons” and the Tribunal does not have the competency to make findings on state responsibility.[1] […]

[1] Statute of the Tribunal, Arts 1, 6-7. See also Gotovina and Markač Decision of 8 February 2012 [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8 February 2012], para. 12.

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Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

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].

[1] S/RES/955 of 8 November 1994, Annex, Statute of the International Tribunal for Rwanda.

[2] Tadić Appeal Judgement (Lack of jurisdiction), paras. 12 to 22.

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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

12.     […] the Trial Chamber’s statement that “the Mechanism’s role is not to act as an independent level of appellate review for the national proceedings, but rather to determine primarily whether the conditions for a fair trial in the domestic jurisdiction no longer exist” is entirely consistent with Article 6(6) of the Statute and Rule 14(C) of the Rules, which govern the Mechanism’s authority to revoke cases referred to national jurisdictions.

[…]

64.     The Appeals Chamber finds that Uwinkindi demonstrates no error in the Trial Chamber’s statement that it was not within its purview to scrutinize the Rwandan legal aid budget, inquire into its sufficiency, or verify its administration and disbursement, particularly in light of the conclusion that the circumstances in Rwanda ensured Uwinkindi’s right to free legal assistance.[1]

[1] See The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2013, para. 71 (recalling that a Referral Chamber must “satisif[y] itself that the State would supply defence counsel to accused who cannot afford their own representation” and is “not obligated […] to itemize the provisions of the [State’s] budget once it has learned there is financial support for that representation”). See also Prosecutor v. Mitar Rašević and Savo Todović, Case No. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals against Decisions on Referral under Rule 11bis, 4 September 2006, para. 59; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11bis, 7 April 2006, para. 70; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 21. 

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MICT Statute Article 6(6) MICT Rule Rule 14(C)
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Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

B. Jurisdiction of the Tribunal over Article 3 Offences

12. The second complaint of the Appellants relates to the jurisdiction of the Tribunal over Counts 5, 6 and 7 in non-international armed conflicts. This is also a complaint that should have been made by the Appellants pre-trial pursuant to Rule 72. However, because the resolution of this issue will assist both the Appellants and the Prosecution in the further conduct of the trial proceedings, and the Trial Chamber in the rendering of its judgment, the Appeals Chamber resolves to determine this issue. 

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ICTY Statute Article 3 ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

1. Scope of Article 3

13. The Appellants’ challenge to the Tribunal’s jurisdiction over Counts 5, 6 and 7 of the Indictment stems from the Appellants’ interpretation of the Tadić Jurisdiction Decision regarding the scope of jurisdiction under Article 3 of the Statute. In the Tadić Jurisdiction Decision, the Appeals Chamber held that Article 3 confers jurisdiction over any serious offence against international humanitarian law committed in non-international or international armed conflict not covered by Articles 2, 4, or 5.[1] The Appeals Chamber prescribed a four-prong test to ensure that offences charged under Article 3 lie within the International Tribunal’s jurisdiction.[2] On appeal the Appellants argue that the jurisdictional grant embodied in the enumerated provisions of Article 3 only refers to the conventional law from which that text is derived. The Appellants claim that as that conventional law underpinning Articles 3(b), (d) and (e), charged in Counts 5, 6 and 7 of the Indictment respectively, relates to international armed conflicts and situations in occupied territory, the Tribunal does not have jurisdiction over these offences in non-international armed conflicts.[3]

14. The Appellants’ position is an unnecessarily narrow reading of the Appeals Chamber’s jurisprudence with respect to the scope of the enumerated provisions in Article 3. In the Tadić Jurisdiction Decision, the Appeals Chamber stated, with respect to the list of enumerated violations, that “this list may be construed to include other infringements of international humanitarian law”,[4] demonstrating that the enumerated crimes of the list itself should be considered to encompass rules in addition to the conventional law from which their text originates.[5] Accordingly, properly understood, Article 3 confers jurisdiction over violations of rules that are expressed by the provisions of the Article, but which are not limited to the conditions of the rule’s origin in conventional instruments applicable to international armed conflicts only.[6]

See also para. 45.

[1]           Tadić Jurisdiction Decision [Prosecutor v. Dusko Tadić., Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras. 89-91 (and noting the Secretary-General’s Report, which stated that “Article 3 is taken to cover all violations of international humanitarian law other than [those covered by other provisions of the Statute]”).

[2]           See supra, para. 5 [apparently intending to refer to supra, para. 6:

“i) the violation must constitute an infringement of a rule of international law;

ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;

iii) the violation must be serious; and

iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.” (footnote omitted)].

[3] Defence Appeal [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Joint Defence Interlocutory Appeal of Trial Chamber Decision on Enver Hadžihasanović and Amir Kubura’s Rule 98bis Motions for Acquittal, 2 November 2004], paras. 25-29.

[4]           Tadić Jurisdiction Decision, para. 87 (emphasis added).

[5]           Regulations annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 […].

[6]           Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex containing the Charter of the International Military Tribunal, art. 6, Aug. 8, 1945, 59 Stat. 154, 82 U.N.T.S. 279 […].

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ICTY Statute Article 3