Pleading

Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

264. […] The Appeals Chamber has previously held that genocidal intent can be proven through inference from the facts and circumstances of a case.[1] Correspondingly, the Appeals Chamber has held that it is sufficient if the evidentiary facts from which the state of mind is to be inferred are pleaded.[2] […]

[1] Gacumbitsi Appeal Judgement, para. 40; Rutaganda Appeal Judgement, para. 525.

[2] Blaskić Appeal Judgement, para. 219 (internal footnotes omitted).

Download full document
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

74. […] the Appeals Chamber cannot find any merit in the Appellant’s argument that the Indictment fails to refer to any sort of “organization” among these individuals. It is well established that a JCE need not be previously arranged or formulated and may materialise extemporaneously.[1] Since “organization” is not an element of JCE, it need not be pleaded in the Indictment.

77. The Appeals Chamber recalls that while the JCE categories are mutually incompatible to the extent that a defendant may not be convicted of multiple categories based on the same conduct, an indictment may charge a defendant cumulatively with multiple categories.[2] The Appeals Chamber notes that the Appellant was convicted for his participation in a JCE based on the first category, and therefore restricts its inquiry to whether he was put on notice that the Prosecution intended to rely on that specific category.[3] In this regard, the Appeals Chamber recalls that the three categories of JCE vary only with respect to the mens rea element, not with regard to the actus reus.[4] Accordingly, an accused will have sufficient notice of the category of JCE with which he is being charged where the indictment pleads the mens rea element of the respective category.

see also Other Issues of Particular Interest” below citing para. 78 for application to the circumstances of the case.

[1] Kvočka et al. Appeal Judgement, para. 117; Tadić Appeal Judgement, para. 227 (ii). See also Vasiljević Appeal Judgement, para. 100.

[2] See, e.g. Delalic et al. Appeal Judgement, para. 400 ("Cumulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven. The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence. In addition, cumulative charging constitutes the usual practice of both this Tribunal and the ICTR.").

[3] The Appellant’s arguments concerning the other categories, including the contention that it is a “mission impossible” to prove the elements of all three categories since they are mutually incompatible, need not be addressed as they could not have had any impact on the verdict.

[4] Tadić Appeal Judgement, paras 227, 228.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2006 SIMIĆ Blagoje
(IT-95-9-A)

The Appeals Chamber addressed the issue of vagueness of an indictment following the principles laid out in the Kupreškić Appeal Judgement. The Appeals Chamber reaffirmed that the Prosecution should only plead the modes of responsibility on which it intends to rely, and that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment. Following ICTY and ICTR jurisprudence, the Appeals Chamber held that the mode of liability of joint criminal enterprise must be specifically pleaded in an indictment. The Appeals Chamber stressed that if the Prosecution is relying on the mode of liability of joint criminal enterprise, it is not sufficient for an indictment to charge an accused for “committing” the crimes in question under Article 7(1) of the Statute. It is not sufficient for the generic language of an indictment to encompass the possibility that joint criminal enterprise is being charged. See paragraphs 21 and 22.

21. The practice of both the International Tribunal and the ICTR requires that the Prosecution plead the specific mode or modes of liability for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from the practice of simply restating Article 7(1) of the Statute unless it intends to rely on all of the modes of liability contained therein, because of the ambiguity that this causes.[2] When the Prosecution is intending to rely on all modes of responsibility in Article 7(1), then the material facts relevant to each of those modes must be pleaded in the indictment. Otherwise, the indictment will be defective.[3]  The Appeals Chamber further reaffirms that the Prosecution should only plead the modes of responsibility on which it intends to rely,[4] and considers that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment.[5]

22. Similarly, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the said term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both.[6] It is not enough for the generic language of an indictment to “encompass” the possibility that joint criminal enterprise is being charged.[7] The Appeals Chamber reiterates that joint criminal enterprise must be specifically pleaded in an indictment.[8] Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute; such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility.[9] Also, if the Prosecution relies on this specific mode of liability, it must plead the following material facts: the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants in the enterprise, and the nature of the accused’s participation in the enterprise.[10] In order for an accused charged with joint criminal enterprise to fully understand the acts he is allegedly responsible for, the indictment should also clearly indicate which form of joint criminal enterprise is being alleged.[11] The Appeals Chamber considers that failure to specifically plead joint criminal enterprise in the indictment in a case where the Prosecution intends to rely on this mode of liability will result in a defective indictment.[12]

The Appeals Chamber reiterated that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. See paragraph 24.

[1] Blaškić Appeal Judgement, para. 215; Semanza Appeal Judgement, para. 357. See also Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, para. 171, fn. 319; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Objections by Momir Talić to the form of the Amended Indictment, 20 February 2001, para. 10; Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Decision on Preliminary Motion on Form of Amended Indictment, 11 February 2000, para. 60.

[2] Semanza Appeal Judgement, para. 357; see also Ntakirutimana Appeal Judgement, para. 473; Blaskić Appeal Judgement, para. 228; Krnojelac Appeal Judgement, para. 138.

[3] Kvočka et al. Appeal Judgement, para. 29.

[4] Kvočka et al. Appeal Judgement, para. 41.

[5] Blaškić Appeal Judgement, para. 215.

[6] Krnojelac Appeal Judgement, para. 138.

[7] Gacumbitsi Appeal Judgement, para. 167.

[8] Gacumbitsi Appeal Judgement, paras 163 and 167; Ntagerura et al. Appeal Judgement, para. 24 ; Kvočka et al. Appeal Judgement, para. 42.

[9] Kvočka et al. Appeal Judgement, para. 42.

[10]  Ntagerura et al. Appeal Judgement, para. 24; Kvočka et al. Appeal Judgement, para. 28.

[11] Ntagerura et al. Appeal Judgement, para. 24; Kvočka et al. Appeal Judgement, para. 28, referring to Krnojelac Appeal Judgement, para. 138.

[12] Gacumbitsi Appeal Judgement, paras 162-163; Ntagerura et al. Appeal Judgement, para. 24; see Kvočka et al. Appeal Judgement, para. 42.

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

In footnote 290, the Appeals Chamber noted that:

As Mugiraneza suggests, the Indictment was confirmed before the ICTY Appeals Chamber had recognized the theory of joint criminal enterprise. Compare Trial Judgement, Annex A, para. 6 (noting that the Indictment was confirmed on 12 May 1999) with Tadić Appeal Judgement, para. 220 (concluding, in a judgement issued on 15 July 1999, that the notion of joint criminal enterprise is firmly established in customary international law). See also Trial Judgement, para. 1920. However, he fails to show how this fact demonstrates that the elements of the theory of joint criminal enterprise were omitted from the Indictment or that the Trial Chamber erred in finding that the Indictment reflected the Prosecution’s intent to pursue such a theory.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.09.2011 MUNYAKAZI Yussuf
(ICTR-97-36A-A)

161. In cases where the Prosecution intends to rely on a theory of joint criminal enterprise, it must plead the purpose of the enterprise, the identity of its participants, the nature of the accused’s participation in the enterprise, and the period of the enterprise. The indictment should also clearly indicate which form of joint criminal enterprise is being alleged. Failure to specifically plead joint criminal enterprise, including the supporting material facts and the category, constitutes a defect in the indictment.

162. In the Simba Appeal Judgement, the Appeals Chamber determined that an indictment properly pleaded the identity of the participants by identifying the physical perpetrators by general category, such as Interahamwe, and then further identifying them with geographic and temporal details related to each massacre site.[4] The Indictment in the present case provides the same degree of specificity when the reference to the Bugarama Interahamwe in paragraph 4 of the Indictment is read together with paragraphs 13 and 14, alleging that Munyakazi and the Bugarama Interahamwe attacked and killed Tutsi civilians at Shangi and Mibilizi parishes, respectively, on 29 and 30 April 1994. Accordingly, the Trial Chamber erred in law in concluding that the reference to the Bugarama Interahamwe was too vague and in limiting its consideration of the evidence to only the named participants.

[1] Simba Appeal Judgement, para. 63.

[2] Simba Appeal Judgement, para. 63.

[3] Simba Appeal Judgement, para. 63.

[4] Simba Appeal Judgement, paras. 71, 72, quoting Simba Trial Judgement, paras. 392, 393.

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

344. […] Defined as an agreement between two or more persons to commit the crime of genocide,[1] the crime of conspiracy as set forth in Article 2(3)(b) of the Statute comprises two elements, which must be pleaded in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.[2] […]

[1] Ntagerura et al. Appeal Judgement, para. 92.

[2] See infra XIV. A.

Download full document
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

347. With respect to mens rea, the Appeals Chamber recalls that the indictment may either (i) plead the state of mind of the accused, in which case the facts by which that matter is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred.[1]

[1] Blaškić Appeal Judgement, para. 219.

Download full document
Notion(s) Filing Case
Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

136. […] The Appeals Chamber recalls that, with respect to mens rea, an indictment may plead either (1) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (2) the evidentiary facts from which the state of mind is to be inferred.[1]

137. In the instant case, the Indictment pleaded that the Appellant had “the intent to destroy, in whole or in part, an ethnic or racial group as such”,[2] thus providing sufficient notice to the Appellant of the allegation that he possessed the specific intent to commit genocide. The Indictment therefore did not have to plead that the Appellant participated in recruiting young Hutu men for militia training as Impuzamugambi.

[1] Nahimana et al. Appeal Judgement, para. 347. See also Blaškić Appeal Judgement, para. 219.

[2] Indictment [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T, Second Revised Amended Indictment (In conformity with Trial Chamber III Decision dated 7 December 2006), filed 11 December 2006], para. 19.

Download full document
Notion(s) Filing Case
Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

36. The Appeals Chamber recalls that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of crimes, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charges in question.[1] When the Prosecution pleads a case of “instigation”, it must precisely describe the instigating acts and the instigated persons or groups of persons.[2]

37. Paragraph 10 of the Amended Indictment does not fulfil these requirements. It merely states that the attack in Rwankeri cellule was carried out on Uwinkindi’s instigation without providing any details about when, where, and by what conduct Uwinkindi instigated this attack. Contrary to the Prosecution’s assertion, paragraph 10 of the Amended Indictment only specifies that the attack following Uwinkindi’s instigation occurred on 8 April 1994, not the act of instigation itself. Moreover, the Appeals Chamber considers that the Prosecution’s contention, that “the furtherance of the JCE” conveys by what means Uwinkindi instigated crimes, confuses the objective of his alleged instigation with the specific act or course of conduct that needed to be pleaded.

38. Apart from the broad category “armed assailants”, paragraph 10 of the Amended Indictment also does not specify to whom Uwinkindi’s instigation was directed. Furthermore, it does not indicate whether the alleged perpetrators of the killing of Paul Kamanzi were among those instigated by Uwinkindi. This manner of pleading does not inform Uwinkindi of the exact nature of the charges against him.

[1] Renzaho Appeal Judgement, para. 53; Karera Appeal Judgement, para. 292; Seromba Appeal Judgement, para. 27; Ntagerura et al. Appeal Judgement, para. 25; Blaškić Appeal Judgement, para. 213.

[2] Blaškić Appeal Judgement, para. 226.

Download full document
Notion(s) Filing Case
Decision on Indictment - 16.11.2011 UWINKINDI Jean
(ICTR-01-75-AR72(C))

11. The Appeals Chamber recalls that JCE must be specifically pleaded in the indictment.[1] The Prosecution must plead the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants, and the nature of the accused’s participation therein.[2] In order for an accused to fully understand the acts for which he is allegedly responsible, the indictment should further clearly indicate which form of JCE is being alleged: basic, systemic, or extended.[3] Since the three forms of JCE vary with respect to the mens rea element, the indictment must also plead the mens rea element of each category on which the Prosecution intends to rely.[4]

12. While the Amended Indictment states that Uwinkindi “willfully [sic] and knowingly participated in a joint criminal enterprise”, it does not specify which form of JCE is charged and consequently also fails to plead Uwinkindi’s mens rea.[5] This renders the Amended Indictment defective and the Trial Chamber erred in failing to find so.

[1] Gacumbitsi Appeal Judgement, para. 167; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, paras. 22, 31.

[2] Simba Appeal Judgement, para. 63; Gacumbitsi Appeal Judgement, para. 162; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, para. 22.

[3] Simba Appeal Judgement, para. 63; Ntagerura et al. Appeal Judgement, para. 24; Simić Appeal Judgement, para. 22.

[4] Simba Appeal Judgement, para. 77.

[5] See Amended Indictment [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-I, Amended Indictment, 23 November 2010 ], third chapeau paragraph under Counts 1 and 2.

Download full document
Notion(s) Filing Case
Appeal Judgement - 18.12.2014 NGIRABATWARE Augustin
(MICT-12-29-A)

249.     The Appeals Chamber recalls that, in determining whether an accused was adequately put on notice of the nature and cause of the charges against him, the indictment must be considered as a whole.[1] Ngirabatware was charged with participation in a joint criminal enterprise with the common purpose to exterminate the Tutsis under Count 5 of the Indictment.[2] Count 6 of the Indictment charges Ngirabatware with rape as a natural and foreseeable consequence of the execution of the common purpose to exterminate the Tutsi civilian population.[3] Accordingly, despite the minor nuances in the language,[4] the nature of the common purpose under Count 5 of the Indictment is identical to that under Count 6. In fact, Count 5 and Count 6 are the only counts in the Indictment alleging that the common purpose of the joint criminal enterprise was the crime of extermination. A plain reading of the Indictment thus indicates that the common purpose of exterminating the Tutsi civilian population pleaded under Count 6 of the Indictment was linked to the charge of extermination contained in Count 5 of the Indictment. In these circumstances, the mention in the chapeau of Count 6 of the particulars concerning Ngirabatware’s participation in the joint criminal enterprise “as set forth above”[5] can be interpreted to refer solely to Ngirabatware’s alleged contribution to the joint criminal enterprise to commit extermination as set forth in Count 5 of the Indictment.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 182; Seromba Appeal Judgement, para. 27. The Appeals Chamber observes that the Trial Chamber was cognizant of the law in this regard: “In assessing an indictment, each paragraph should not be read in isolation but rather should be considered in the context of other paragraphs in the indictment”. The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion to Dismiss Based Upon Defects in Amended Indictment, 8 April 2009 (“Decision on Motion to Dismiss the Indictment”), para. 21, referring to Rutaganda Appeal Judgement, para. 304.

[2] Indictment [The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Amended Indictment, 13 April 2009], pp. 12-13.

[3] Indictment, p. 15.

[4] Count 5 of the Indictment describes the common criminal purpose as “the extermination of the Tutsi” (Indictment, p. 12), whereas Count 6 of the Indictment describes the common criminal purpose as “the extermination of the Tutsi civilian population” (Indictment, p. 15).

[5] Indictment, p. 15.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

41. […] The Appeals Chamber reaffirms that the Prosecution should only plead those modes of responsibility which it intends to rely on. Although the Indictment relies on all modes of individual criminal responsibility found in Article 7(1) of the Statute, the Prosecution has failed to plead the material facts necessary to support each of these modes. For example, despite pleading ordering as a mode of responsibility, the Indictment does not include any material facts which allege that any Accused ordered the commission of any particular crime on any occasion. Thus, the Appeals Chamber finds that in pleading modes of responsibility for which no corresponding material facts are pleaded, the Indictment is vague and is therefore defective.

42. The Appeals Chamber also considers that the Indictment is defective because it fails to make any specific mention of joint criminal enterprise, although the Prosecution’s case relied on this mode of responsibility. As explained above, joint criminal enterprise responsibility must be specifically pleaded. Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute. Such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility. Moreover, in the Indictment the Prosecution has failed to plead the category of joint criminal enterprise or the material facts of the joint criminal enterprise, such as the purpose of the enterprise, the identity of the participants, and the nature of the accused’s participation in the enterprise.[1]

[1] See, e.g., Prosecutor v. Stanišić, Case No. IT-03-69-PT, Decision on Defence Preliminary Motions, 14 November 2003, p. 5; Prosecutor v. Meakić et al., Case No. IT-02-65-PT, Decision on Duško Kne‘ević’s Preliminary Motion on the Form of the Indictment, 4 April 2003, p. 6; Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Prosecution’s Motion for Leave To Amend the Consolidated Indictment, 4 March 2002, para. 13.

Download full document
ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Decision on Death of Co-Accused - 24.09.2010 KAREMERA et al.
(ICTR-98-44-AR50)

16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] […]

[1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006, para. 22; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 24.

Download full document
Notion(s) Filing Case
Decision on Exclusion of Evidence - 23.03.2010 KANYARUKIGA Gaspard
(ICTR-02-78-AR73.2)

The Appellant Kanyarukiga requests the exclusion of Witness YAU’s evidence as in his submission this evidence relates to material facts not properly pleaded in the operative indictment.[1]

9. The Appeals Chamber recalls that there are two ways in which mens rea may be pleaded: (i) either the specific state of mind itself should be pleaded as a material fact, in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred, should be pleaded.[2]

10. In the present case, the Indictment pleads as a material fact the specific state of mind alleged in relation to the counts of genocide and complicity in genocide, in particular that Kanyarukiga acted “with the intent to destroy the Tutsi population in whole [or] in part”.[3] Given that the Indictment pleads as a material fact the specific state of mind alleged, the facts by which his mens rea is to be established are matters of evidence and need not be pleaded.[4]

[1] The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-I, Amended Indictment, 14 November 2007 (“Indictment”).

[2] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), para. 347; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 219.

[3] Indictment, para. 4. See also Indictment, paras. 7 (“Gaspard KANYARUKIGA, with intent to destroy, in whole or in part, the Tutsi racial or ethnic group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnical group…”), 8 (“Gaspard KANYARUKIGA, with intent to destroy in whole or in part, the Tutsi racial or ethical [sic] group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnic group, and knowing that his assistance would contribute to the crime of genocide…”).

[4] Nahimana et al. Appeal Judgement, para. 347; Blaškić Appeal Judgement, para. 219.

Download full document
Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

At para. 161, the Appeals Chamber recalled its previous case-law in Ntakirutimana, based on the Krnojelac Appeal Judgement:

With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment--for instance in a pre-trial brief--the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial.[1]

At para. 162, the Appeals Chamber then relied on the ICTY Appeals Chamber’s holding in Kvocka to find that “failure to plead a JCE theory, including the category of JCE and the material facts supporting the theory, constitutes a defect in the indictment” which can however be cured by the Prosecution’s subsequent submissions.[2] It then held:

163. The Appeals Chamber adopts the holding and rationale of the ICTY Appeals Chamber in Kvočka. The mode of liability under Article 6(1) (including the JCE theory) must be pleaded in the indictment, or the indictment is defective. As Krnojelac makes clear, however, such defects may be cured by the provision of timely, clear, and consistent information -- for example, in a pre-trial brief.[3] This approach is consistent with the Appeals Chamber’s approach to all other pleading failures.[4]

For example, while the words “joint criminal enterprise” need not be contained in the indictment, other wordings may be used:

165. The words “joint criminal enterprise” are not contained in the Indictment. This absence does not in and of itself indicate a defect. As the Appeals Chamber noted in Ntakirutimana, the Tadić Appeal Judgement used interchangeably the expressions “joint criminal enterprise”, “common purpose”, and “criminal enterprise”.[5] It is possible that other phrasings might effectively convey the same concept.[6] The question is not whether particular words have been used, but whether an accused has been meaningfully “informed of the nature of the charges” so as to be able to prepare an effective defence.[7]

In the present case, however, the Appeals Chamber noted that such language was not sufficient because other language in the indictment dispelled the clarity that language could have provided.  (paras 171-172).

[1] Krnojelac Appeal Judgement, para. 138. See also Ntakirutimana Appeal Judgement, para. 475.

[2] Kvočka et al. Appeal Judgement, paras 28, 42-54.

[3] Krnojelac Appeal Judgement, para. 138.

[4] See supra section II.B.2.

[5] Ntakirutimana Appeal Judgement, n. 783.

[6] See Ntakirutimana Appeal Judgement, n. 783.

[7] Ntakirutimana Appeal Judgement, para. 470. The Appeals Chamber notes, however, that because today ICTY and ICTR cases routinely employ the phrase “joint criminal enterprise”, that phrase should for the sake of maximum clarity preferably be included in future indictments where JCE is being charged.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

1099.            […] The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged.[1] The Appeals Chamber considers that when the Prosecution intends to prove that an accused ordered particular crimes, it must identify in the indictment, at least by category, to whom the accused is alleged to have given orders[2] and all detail it possesses regarding the location of the incidents.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 150; Ntagerura et al. Appeal Judgement, para. 23; Kupreškić et al. Appeal Judgement, para. 89.

[2] Cf. Uwinkindi Appeal Decision [Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72(C), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011], para. 36 (“When the Prosecution pleads a case of ‘instigation’, it must precisely describe the instigating acts and the instigated persons or groups of persons”), referring to Blaškić Appeal Judgement, para. 226. See also Ndindiliyimana et al. Appeal Judgement, para. 174.

Download full document
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such.[1] […]

[…]

473. The Appeals Chamber is of the view that, contrary to the Trial Chamber’s determination,[2] there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended. The crime of conspiracy to commit genocide is an inchoate offence, the actus reus of which is “a concerted agreement to act for the purpose of committing genocide”,[3] and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify “when the conspiracy ended”.

474. […] Moreover, contrary to Nyiramasuhuko’s assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused.[4]

[1] Nzabonimana Appeal Judgement, para. 255; Nahimana et al. Appeal Judgement, para. 344.

[2] See Trial Judgement, para. 5661.

[3] See Karemera and Ngirumpatse Appeal Judgement, para. 643, quoting Nahimana et al. Appeal Judgement, para. 896. See also Nzabonimana Appeal Judgement, para. 391; Gatete Appeal Judgement, para. 260; Nahimana et al. Appeal Judgement, para. 894.

[4] Cf. Nzabonimana Appeal Judgement, para. 400; Karemera and Ngirumpatse Appeal Judgement, para. 370. The Appeals Chamber further finds that the fact that other members of the Interim Government were not convicted for conspiracy before the Tribunal is irrelevant to the question of whether Nyiramasuhuko was put on notice of the charges against her and is not inconsistent with the fact that Nyiramasuhuko was charged with having conspired with other members of the Interim Government. Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 121.

Download full document
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

A. Pleading Practices of the Prosecution

9. The interlocutory appeal of the Appellants does relate to issues that should have been raised in a preliminary motion filed pursuant to Rule 72 of the Rules. The first complaint is directed to the pleading practices of the Prosecution. In relation to each of the Counts challenged on this Appeal, the Appellants argue that the Prosecution failed to satisfy the first requirement of the Tadić Jurisdiction Decision by not identifying the rule of international humanitarian law alleged to have been breached, or indicating whether the legal basis for that count was the laws of war (conventional) or customary international law (customs of war).[1]

10. While the Appeals Chamber agrees that an accused is entitled to know the jurisdictional basis for the charge against him, the Appellants in this case did not complain of the Prosecution’s pleading prior to the commencement of this trial pursuant to Rule  72 of the Rules.[2] Given that it was clear at that time that the Prosecution was not expressly pleading the nature of the armed conflict, and that the Prosecution was proceeding on the basis that Article 3 applied to both international and non-international conflicts, it might be inferred that the Appellants saw a tactical advantage in waiting until this time. While the Appellants say that, during the pre-trial stage, they made no challenge to the pleading because of the holding of the Tadić Jurisdiction Decision regarding the application of Article 3 offences to both types of conflict, they also say that the Tadić Jurisdiction Decision did not establish the applicability of all Article 3 offences to non-international armed conflicts, because Tadić was not charged with any property offences under Article 3.[3] Hence, the Appellants’ reliance on the Tadić Jurisdiction Decision as a reason for not bringing a pre-trial motion challenging the Prosecution’s pleading is not persuasive. The Appellants knew at the time of the issuing of the Indictment that their argument would be that the Tadić Jurisdiction Decision did not establish the application of the Article 3 offences subject of Counts 5, 6 and 7 to non-international armed conflicts, and that complaint should have been made pre-trial.

11. The Appellants further complain that the Prosecution did not identify the legal basis for the Counts charged because it did not want to commit itself to proving that the armed conflict was either international or non-international.[4] This is also a complaint about the pleading practice of the Prosecution that should have been brought by the Appellants during the pre-trial stage. By not pleading the nature of the armed conflict in the Indictment, the Prosecution left the issue to the Trial Chamber to determine. The Prosecution also made it clear to the Appellants that it did not consider the Tribunal’s jurisdiction over Counts 5, 6, and 7 to be dependent on a finding that an international armed conflict occurred. If the Appellants required greater clarification than this, they should have filed a pre -trial motion pursuant to Rule 72.

[1]           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], para. 45.

[2]           Prosecutor v Pavle Strugar, et al., IT-01-42-AR72, 22 November 2002, para. 13.

[3]           Defence Appeal, para. 56.

[4]           Ibid., paras. 50, 66, 72, 78.

Download full document
ICTY Statute Article 3 ICTR Rule Rule 72 ICTY Rule Rule 72