Non-compliance with obligations

Notion(s) Filing Case
Reconsideration Decision - 20.09.2010 NZABONIMANA Callixte
(ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2)

23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned.

24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration.

[1] See supra, para. 13 and references cited therein [Prosecutor v. Stanislav Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 13; The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion for Reconsideration of the Trial Chamber’s Oral Decisions Rendered on 23 September 2009, 7 July 2010, para. 16. The Appeals Chamber recalls, however, that there is no power to reconsider a final judgement. See Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Ferdinand Nahimana v.The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6].

[2] Nzabonimana’s Reply [Callixte Nzabonimana’s Reply to Prosecutor’s Response to Nzabonimana’s Interlocutory Appeal on the Order Rescinding the 4 March 2010 Decision, 21 June 2010], paras. 9-11.

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ICTR Rule Rule 7 bis ICTY Rule Rule 7 bis
Notion(s) Filing Case
Reconsideration Decision - 20.09.2010 NZABONIMANA Callixte
(ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2)

35. As recognised in the 5 May 2010 President’s Decision, the role of the President of the Tribunal under Rule 7bis (A) of the Rules is simply to transmit the judicial finding of the relevant Chamber to the Security Council.[1] The Appeals Chamber therefore agrees that “it is not within the jurisdiction of the President to replace the assessment of the Chamber about a Member State’s violation of Article 28 of the Statute at the request of a party with his own”.[2] Accordingly, once a Trial Chamber has rescinded its request under Rule 7bis of the Rules, the President is no longer seised of the matter and his subsequent decision not to report the matter to the Security Council cannot be successfully challenged on appeal.

[1] 5 May 2010 President’s Decision, para. 5 [The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on Nzabonimana’s Motion for the Implementation of the Order of Trial Chamber III of 4 March 2010 and for Allowing the Defence to Make Submissions Before the Security Council, 5 May 2010], referring to Blaškić Judgement on Request for Review [Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997], para. 37.

[2] 5 May 2010 President’s Decision, para. 9.

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ICTR Rule Rule 7 bis ICTY Rule Rule 7 bis
Notion(s) Filing Case
Reconsideration Decision - 20.09.2010 NZABONIMANA Callixte
(ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2)

23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned.

24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration.

[1] See supra, para. 13 and references cited therein [Prosecutor v. Stanislav Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 13; The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion for Reconsideration of the Trial Chamber’s Oral Decisions Rendered on 23 September 2009, 7 July 2010, para. 16. The Appeals Chamber recalls, however, that there is no power to reconsider a final judgement. See Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Ferdinand Nahimana v.The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6].

[2] Nzabonimana’s Reply [Callixte Nzabonimana’s Reply to Prosecutor’s Response to Nzabonimana’s Interlocutory Appeal on the Order Rescinding the 4 March 2010 Decision, 21 June 2010], paras. 9-11.

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