Scope

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

12. The Appellant challenges, on various grounds, a series of interlocutory decisions made by the Trial Chamber. The Appeals Chamber notes that none of the errors alleged was pleaded properly in the Appellant’s Notice of Appeal, which merely lists the decisions challenged and states with respect to each one that the Trial Chamber “erred” or “erred in law” in denying the defence motions underlying these decisions.[1] The notice thus fails to indicate the substance of the alleged errors and the relief sought as required by Rule 108 of the Tribunal’s Rules of Procedure and Evidence (“Rules”).[2] However, the Prosecution does not object to this failure, arguing instead that the Appeal Brief itself suffers from similar shortcomings. Where an Appellant fails to properly raise its argument and the Prosecution fails to object, the Appeals Chamber possesses the discretion to consider the Appellant’s arguments in order to ensure the fairness of the proceedings. It chooses to do so in the instant case.

[1] Simba Notice of Appeal, III-1 to III-6.

[2] See also Practice Direction on Appeals of 4 July 2005, para. 1(c)(i), providing that a Notice of Appeal shall contain “the grounds of appeal, clearly specifying in respect of each ground of appeal [...] any alleged error on a question of law invalidating the decision [...]”. 

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Notion(s) Filing Case
Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

82. The Appeals Chamber further recalls that aiding and abetting by omission implicitly requires that the accused had the ability to act but failed to do so.[1] In order to determine whether [ljivančanin had the ability to act but failed to do so, the Appeals Chamber must be satisfied beyond reasonable doubt that the Prosecution has provided sufficient evidence concerning which means were available to [ljivančanin to fulfil his continuing duty towards the prisoners of war.[2] […]

154. The Appeals Chamber considers that aiding and abetting by omission necessarily requires that the accused had the ability to act, or in other words, that there were means available to the accused to fulfil this duty.[3] […]

[1] Cf. Ntagerura et al. Appeal Judgement, para. 335. See also infra para. 154.

[2] Cf. Ntagerura et al. Appeal Judgement, para. 335. (Where the Appeals Chamber also held that the Prosecution had not indicated which possibilities were open to Bagambiki to fulfil his duties under the Rwandan domestic law).

[3] Cf. Ntagerura et al. Appeal Judgement, para. 335.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
(IT-95-13/1-A)

70. Additionally, the Appeals Chamber recalls the finding in the Krnojelac Appeal Judgement that “[t]he Geneva Conventions are considered to be the expression of customary international law”.[1] In particular, it is well established that Common Article 3 of the Geneva Conventions, which is applicable to both international and non-international armed conflicts, is part of customary international law and therefore binds all parties to a conflict.[2] Common Article 3 enshrines the prohibition against any violence against the life and person of those taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The Appeals Chamber considers that Common Article 3 of the Geneva Conventions reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13,[3] which provides that:

Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. […]

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

71. The fundamental principle enshrined in Geneva Convention III, which is non-derogable, that prisoners of war must be treated humanely and protected from physical and mental harm,[4] applies from the time they fall into the power of the enemy until their final release and repatriation.[5] It thus entails the obligation of each agent in charge of the protection or custody of the prisoners of war to ensure that their transfer to another agent will not diminish the protection the prisoners are entitled to. This obligation is so well established that it is even reflected in Article 46 of Geneva Convention III,[6] which applies to the transfer of prisoners of war to another location by the Detaining Power, and furthermore in paragraphs 2 and 3 of Article 12 of Geneva Convention III,[7] which applies to the transfer of prisoners of war to another High Contracting Party. The Appeals Chamber recalls that besides the JNA, the TO was one of the two constituent elements of the armed forces of the former Yugoslavia, and they were both subordinated to the Supreme Defence Council.[8] Thus, the military police of the 80 mtbr of the JNA should have satisfied itself of the willingness and ability of the TOs to apply the principle enshrined in Geneva Convention III, before transferring custody of the prisoners of war. 

72. Although the duty to protect prisoners of war belongs in the first instance to the Detaining Power, this is not to the exclusion of individual responsibility. The first paragraph of Article 12 of Geneva Convention III places the responsibility for prisoners of war squarely on the Detaining Power; however, it also states that this is “[i]rrespective of the individual responsibilities that may exist”. The ICRC Commentaries clarify that “[a]ny breach of the law is bound to be committed by one or more individuals and it is normally they who must answer for their acts”.[9] The JNA Regulations further explicitly state that “[e]very individual – a member of the military or a civilian – shall be personally accountable for violations of the laws of war if he/she commits a violation or orders one to be committed”.[10] The Prosecution submits that “[t]hus, members of the armed forces ‛acquire’ these international obligations with regard to prisoners of war. There is no further requirement of ‛specific investment’” of authority as argued by Šljivančanin.[11] The Appeals Chamber agrees with this submission.

73. The Appeals Chamber thus finds that Geneva Convention III invests all agents of a Detaining Power into whose custody prisoners of war have come with the obligation to protect them by reason of their position as agents of that Detaining Power. No more specific investment of responsibility in an agent with regard to prisoners of war is necessary. The Appeals Chamber considers that all state agents who find themselves with custody of prisoners of war owe them a duty of protection regardless of whether the investment of responsibility was made through explicit delegation such as through legislative enactment or a superior order, or as a result of the state agent finding himself with de facto custody over prisoners of war such as where a prisoner of war surrenders to that agent.

74. The Appeals Chamber therefore considers that Šljivančanin was under a duty to protect the prisoners of war held at Ovčara and that his responsibility included the obligation not to allow the transfer of custody of the prisoners of a war to anyone without first assuring himself that they would not be harmed. Mrkšić’s order to withdraw the JNA troops did not relieve him of his position as an officer of the JNA. As such, Šljivančanin remained an agent of the Detaining Power and thus continued to be bound by Geneva Convention III not to transfer the prisoners of war to another agent who would not guarantee their safety.

[1] Krnojelac Appeal Judgement, para. 220. See also Čelebići Appeal Judgement, paras 112-113: “It is indisputable that the Geneva Conventions fall within this category of universal multilateral treaties which reflect rules accepted and recognised by the international community as a whole. The Geneva Conventions enjoy nearly universal participation” (footnote omitted); Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, para. 35: “The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims […]”.

[2] Kunarac et al. Appeal Judgement, para. 68; Čelebići Appeal Judgement, paras 138-139, 147; Tadić Jurisdiction Decision, paras 89, 98. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, para. 218: “Article 3 which is common to al1 four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’”.

[3] Cf. ICRC Commentaries on Article 3 of Geneva Convention III which makes comparisons between Articles 3 and 13, pp. 39-40.

[4] Article 13 of Geneva Convention III provides that “[p]risoners of war must at all times be humanely treated”. This principle of humane treatment applies not only to physical integrity but also to mental integrity (see Article 13 of Geneva Convention III, para. 2 and commentary thereof, p. 141: “The concept of humane treatment implies in the first place the absence of any kind of corporal punishment. [...] The protection extends to moral values, such as the moral independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity)). It was enshrined in the same terms in Article 2 of the Convention relative to the Treatment of Prisoners of War (Geneva, 27 July 1929). See also Article 4 of the Hague Regulations (Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV of 18 October 1907). The Hague Regulations undoubtedly form part of customary international law (see Kordić and Čerkez Appeal Judgement, para. 92).

[5] See Article 5 of Geneva Convention III.

[6] See Article 46 of Geneva Convention III, which provides that when transferring prisoners of war from one location to another, “[t]he Detaining Power shall take adequate precautions […] to ensure their safety during transfer”.

[7] See Article 12 of Geneva Convention III, which provides: “Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody”.

[8] See Trial Judgement, paras 83-84.

[9] ICRC Commentaries to Geneva Convention III, Article 12, p. 128.

[10] Exhibit P396, “Regulations on the Application of International Laws of War in the Armed Forces of the SFRY”, Article 20.

[11] Prosecution Brief in Reply, para. 72.

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Other instruments Geneva Convention: Common Article 3. Geneva Convention III: Article 5; 12; 13; 46.
Notion(s) Filing Case
Decision on Command Responsibility - 16.07.2003 HADŽIHASANOVIĆ et al.
(IT-01-47-AR72)

12.     […] [T]he Appeals Chamber […] appreciates that to hold that a principle was part of customary international law, it has to be satisfied that State practice recognized the principle on the basis of supporting opinio juris. However, it also considers that, where a principle can be shown to have been so established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle. Also, in determining whether a principle is part of customary international law and, if so, what are its parameters, the Appeals Chamber may follow in the usual way what the Tribunal has held in its previous decisions.

See also paragraph 52.

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

220. […] As to the right to have adequate time and facilities for the preparation of a defence, that right is enshrined in Article 20(4)(b) of the Statute. When considering an appellant’s submission regarding this right, the Appeals Chamber must assess whether the Defence as a whole, and not any individual counsel, was deprived of adequate time and facilities.[1] Furthermore, the Appeals Chamber agrees with the Human Rights Committee[2] that “adequate time” for the preparation of the defence cannot be assessed in the abstract and that it depends on the circumstances of the case. The Appeals Chamber is of the view that the same goes for “adequate facilities”. A Trial Chamber “shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”.[3] However, it is for the accused who alleges a violation of his right to have adequate time and facilities for the preparation of his defence to draw the Trial Chamber’s attention to what he considers to be a breach of the Tribunal’s Statute and Rules; he cannot remain silent about such a violation, then raise it on appeal in order to seek a new trial.

[1] Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41-AR72(C), Decision (Appeal of the Trial Chamber I “Decision on Motions by Ntabakuze for Severance and to Establish a Reasonable Schedule for the Presentation of Prosecution Witnesses” of 9 September 2003), 28 October 2004, p. 4. 

[2] Paul Kelly v. Jamaica, Communication No. 253/1987 (10 April 1991), UN Doc. CCPR/C/41/D253/1987, para. 5.9. See also Aston Little v. Jamaica, Communication No. 283/1988 (19 November 1991), UN Doc. CCPR/C/43/D/283/1988 (1991), para. 8.3; General Comment No. 13, UN Doc. HRI/GEN/1/Rev.1, 13 April 1984, para. 9.

[3] Tadić Appeal Judgement, para. 52.

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ICTR Statute Article 20(4)(b) ICTY Statute Article 21(4)(b)
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

43. Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious […]”. This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments:  the International Covenant on Civil and Political Rights (1966) (“ICCPR”),[1] the European Convention on Human Rights (1950),[2] and the American Convention on Human Rights (1969).[3]  The right to a fair trial is central to the rule of law: it upholds the due process of law.  The Defence submits that due process includes not only formal or procedural due process but also substantive due process.[4]

44. The parties do not dispute that the right to a fair trial guaranteed by the Statute covers the principle of equality of arms.  This interpretation accords with findings of the Human Rights Committee (“HRC”) under the ICCPR.  The HRC stated in Morael v. France[5] that a fair hearing under Article 14(1) of the ICCPR must at a minimum include, inter alia, equality of arms.  Similarly, in Robinson v. Jamaica[6] and Wolf v. Panama[7] the HRC found that there was inequality of arms in violation of the right  to a fair trial under Article 14(1) of the ICCPR.  Likewise, the case law under the ECHR cited by the Defence accepts that the principle is implicit in the fundamental right of the accused to a fair trial.  The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.  The Appeals Chamber finds that there is no reason to distinguish the notion of fair trial under Article 20(1) of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments. Consequently, the Chamber holds that the principle of equality of arms falls within the fair trial guarantee under the Statute.

46. The Defence contends that the minimum guarantee in Article 21(4)(b) of the Statute to adequate time and facilities for the preparation of defence at trial forms part of the principle of equality of arms, implicit in Article 20(1).  It argues that, since the authorities in the Republika Srpska failed to cooperate with the Defence, the Appellant did not have adequate facilities for the preparation of his defence, thereby prejudicing his enjoyment of equality of arms.

47. The Appeals Chamber accepts the argument of the Defence that, on this point, the relationship between Article 20(1) and Article 21(4)(b) is of the general to the particular.  It also agrees that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for his defence.  

In order to decide on the scope of application of the principle of equality of arms, the Appeals Chamber  carried out a review of the international case-law in paragraphs 48–50. It then continued as follows:-

51. The case law mentioned so far relates to civil or criminal proceedings before domestic courts.  These courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial.  It is a different matter for the International Tribunal.  The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures.[8] The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.  Moreover, without a police force, indictees can only be arrested or transferred to the International Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by the Prosecution or the appropriate international bodies.  Lacking independent means of enforcement, the ultimate recourse available to the International Tribunal in the event of failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute, is to report the non-compliance to the Security Council.[9]

52. In light of the above considerations, the Appeals Chamber is of the view that under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.  Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.  This includes the power to:

(1) adopt witness protection measures, ranging from partial to full protection;

(2) take evidence by video-link or by way of deposition;

(3) summon witnesses and order their attendance;

(4) issue binding orders to States for, inter alia, the taking and production of evidence; and

(5) issue binding orders to States to assist a party or to summon a witness and order his or her attendance under the Rules.

A further important measure available in such circumstances is:

(6) for the President of the Tribunal to send, at the instance of the Trial Chamber, a request to the State authorities in question for their assistance in securing the attendance of a witness.

In addition, whenever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu:

(7) order that proceedings be adjourned or, if the circumstances so require, that they be stayed. 

[1] Article 14(1) of the ICCPR provides in part:  “All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […].”

[2] Article 6(1) of the ECHR provides in part:  “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

[3] Article 8(1) of the American Convention on Human Rights provides in part:

“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal or any other nature.”

[4] T. 29-35 (19 April 1999).

[5] Morael v. France, Communication No. 207/1986, 28 July 1989, U.N. Doc. CCPR/8/Add/1, 416.

[6] Robinson v. Jamaica, Communication No. 223/1987, 30 March 1989, U.N. Doc. CCPR/8/Add.1, 426.

[7] Wolf v. Panama, Communication No. 289/1988, 26 March 1992, U.N. Doc. CCPR/11/Add.1, 399.

[8] See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-AR108bis, Appeals Chamber, 29 October 1997, para. 26.

[9] Ibid., para. 33.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1)
Notion(s) Filing Case
Decision on Trial Date - 12.05.2009 NGIRABATWARE Augustin
(ICTR-99-54-A)

28. The Appeals Chamber considers that it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case, such as, for example, the complexity of the case, the number of counts and charges, the gravity of the crimes charged, the individual circumstances of the accused, the status and scale of the Prosecution’s disclosure, and the staffing of the Defence team.[1] Ngirabatware’s comparison with other cases therefore provides very limited, if any, assistance. Likewise, the Appeals Chamber considers that Ngirabatware’s argument premised on the principle of equality of arms is ill-founded; the issue is not whether the parties had the same amount of time to prepare their respective cases, but rather if either party, and in particular the accused, is put at a disadvantage when presenting its case.[2] The principle of equality of arms invoked by Ngirabatware should not be interpreted to mean that the Defence is entitled to the exact same means as the Prosecution.

[1] Cf. Milošević Decision [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004], paras. 8-19.

[2] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.14, Decision on Matthieu Ngirumpatse’s Appeal From the Trial Chamber Decision of 17 September 2008, 30 January 2009 [“Karemera et al. Decision of 30 January 2009”], para. 29; The Prosecutor v. Elie Ndayambaje et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary his Witness List, 21 August 2007, para. 18; Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005 (“Orić Decision”), para. 7, citing Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 48. See also Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-PT, Decision on the Accused Naletilić’s Motion to Continue Trial Date, 31 August 2001, para. 7. 

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ICTR Statute Article 19(1) ICTY Statute Article 20(1)
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

10.     As to the scope of Rule 77 of the Rules raised in point (b), the Appeals Chamber notes that, while the rule does not specifically provide for holding in contempt those who are in possession of confidential material to which they were not granted access or make “confidential use” of unauthorized confidential material, it does generally provide for holding in contempt “those who knowingly and willfully interfere with [the Tribunal’s] administration of justice”.[1]

[1] Rule 77(A) of the Rules.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Decision on Review - 12.03.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

48. In relation to his request for review based on the Additional Statements, Niyitegeka also requests that the Appeals Chamber order that the identity of two victims that he was found to have killed be specified.[1] The Appeals Chamber recalls that the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal. Outside the review mechanism provided for under Article 25 of the Statute, it is not within the Appeals Chamber’s jurisdiction to re-open terminated proceedings to alter otherwise final findings.[2] Niyitegeka’s attempt to further contest the original findings is therefore dismissed. 

[1] Fourth Request for Review of the Judgement Rendered by the Appeals Chamber on 9 July 2004, and for Legal Assistance, paras. 55, 56, referring to Trial Judgement, para. 443. Niyitegeka bases this claim on the following finding from the Ntagerura et al. Appeal Judgement (The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 23): “[…] where the Prosecution alleges that an accused personally committed the criminal acts in questions, it must plead the identity of the victims”.    

[2] See Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motions and Requests Related to Reconsideration, 31 January 2008, p. 3. 

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ICTR Statute Article 25 ICTY Statute Article 26
Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

89. […] Article 3 [of the ICTY Statute] is a general clause covering all violations of humanitarian law not falling under Article 2 or covered by Articles 4 or 5, more specifically: (i) violations of the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventions other than those classified as "grave breaches" by those Conventions; (iii) violations of common Article 3 and other customary rules on internal conflicts; (iv) violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e., agreements which have not turned into customary international law (on this point see below, para. 143).

90. […] It is therefore appropriate to take the expression "violations of the laws or customs of war" to cover serious violations of international humanitarian law.

91. Article 3 thus confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provision laying down that any "serious violation of international humanitarian law" must be prosecuted by the International Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable.

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ICTY Statute Article 3
Notion(s) Filing Case
Consolidated Decision on Jurisdiction - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3)

The Appeals Chamber discussed the evolution of its jurisprudence regarding what types of challenges involve subject matter jurisdiction and thus qualify for appeal as of right.

33. The Appeals Chamber recalls that Karadžić’s challenges to the Tribunal’s jurisdiction focus on the mode by which liability is attributed to him. As these challenges do not relate to persons, territories, or time periods,[1] the core issue underlying the Appeals is whether they involve subject matter jurisdiction as defined in Rule 72(D)(iv) of the Rules, and thus may be appealed as of right.[2]

34. Karadžić makes extensive reference to certain decisions, such as Rwamakuba,[3] issued by three judge panels under a previous version of Rule 72 of the Rules.[4] Many of the decisions cited by Karadžić lend some support to the view that even relatively granular issues, such as the contours and elements of mode of liability, could be jurisdictional in nature.[5] However, other decisions issued by these three judge panels advanced a narrower view of jurisdiction under Rule 72 of the Rules.[6] In 2005, a revision to the Rules eliminated Rule 72(E) of the Rules and reverted the question of whether an appeal addressed jurisdictional issues to standard panels of five Appeals Judges.[7] Since that revision of the Rules, the Appeals Chamber’s jurisprudence has gradually resolved previous uncertainty relating to the issue of which questions qualified as jurisdictional challenges.

35. The Appeals Chamber’s most recent jurisprudence on the question of jurisdiction focuses narrowly on the plain text of Rule 72 of the Rules. For example, in Gotovina, the Appeals Chamber dismissed a challenge concerning the applicable mens rea of the third category of JCE, as it determined that the claim was not related to questions of jurisdiction.[8] To the extent the appeal was challenging the definition and interpretation of a particular element of the mode of liability, the Appeals Chamber found that “[s]uch an argument goes to the pleading practice and the form of the indictment and is not a challenge to jurisdiction”.[9] The Appeals Chamber also adopted this approach in its Tolimir Decision. There, the appellant challenged the applicability of JCE to establishing responsibility for the crimes of genocide and conspiracy to commit genocide. In rejecting his appeal, the Appeals Chamber concluded that “though at first glance [the appeal seemed] somewhat related to subject-matter jurisdiction”, it involved non-jurisdictional issues that could be resolved during the course of trial.[10]

36. As Tolimir and Gotovina demonstrate, the Appeals Chamber’s approach to subject matter jurisdiction now focuses on whether the crime charged is envisioned by the statute, and whether the mode of liability upholds the principle of individual criminal responsibility; the contours and elements of modes of liability are considered an “issue[ ] of law . . . which can be properly advanced and argued during the course of trial”.[11]

37. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the Appeals Chamber’s distillation of case law on the scope of jurisdictional appeals as set out in Gotovina and Tolimir.[12] For the foregoing reasons, the Appeals Chamber finds that Karadžić fails to raise a proper jurisdictional challenge pursuant to Rule 72 of the Rules.

The Appeals Chamber also recalled the standard of appellate review of decisions concerning jurisdictional challenge (paras 9-10).

[1] Rule 72(D)(i)-(iii) of the Rules, IT/32/Rev. 36 (21 July 2005).

[2] Karadžić does not contend that the Appeals related to personal, territorial or temporal jurisdiction.

[3] Rwamakuba Decision on Jurisdiction [André Rwamakuba v. The Prosecutor, Case 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] (commenting on the corresponding ICTR rule, which is equivalent in all relevant respects). 

[4] See, e.g., Rule 72(E) of the Rules, IT/32/Rev. 34 (22 February 2005).

[5] See, e.g., [ešelj Decision on Jurisdiction [The Prosecution v. Vojislav [ešelj, Case No. IT-03-67-AR72.1, Decision on Validity of Appeal of Vojislav [ešelj Challenging Jurisdiction and Form of Indictment, 29 July 2004]; Hadžihasanović Decision on Jurisdiction [Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to Validity of Appeal, 21 February 2003].

[6] See, e.g., Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR72, Decision Pursuant to Rule 72(E) of the Rules of Procedure and Evidence on Validity of Appeal of Joseph Nzirorera Regarding Chapter VII of the Charter of the United Nations, 10 June 2004 (rejecting an interlocutory appeal as failing to raise a jurisdictional challenge because Rule 72(D) is narrow in scope in permitting appeals as of right).

[7] Compare Rule 72 of the Rules, IT/32/Rev. 34 (22 February 2005), with Rule 72 of the Rules, IT/32/Rev. 36 (21 July 2005); see, e.g., [ešelj Decision on Jurisdiction.

[8] Gotovina Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction, 6 June 2007], para.24.

[9] Ibid. [Gotovina Decision] at para. 24.

[10] Tolimir Decision [Prosecutor v. Zdravko Tolimir, 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], paras 7, 10; see also Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Six Preliminary Motions Challenging Jurisdiction, 28 April 2009], para. 31. In 2007, the Appeals Chamber also noted that a broad based challenge to indirect modes of perpetration and aiding and abetting was jurisdictional, though it initially dismissed this challenge on other grounds. See Prosecutor v. Jadranko Prlić et al, Case No. IT-04-74-AR72.2, Decision on Petković’s Appeal Against Decision on Defence Motion to Strike the Amended Indictment, 4 June 2007, paras 3-5;  Prosecutor v. Jadranko Prlić et al, Case No. IT-04-74-AR72.3, Decision on Petković’s Appeal on Jurisdiction, 23 April 2008, paras 19-22.    

[11] Tolimir Decision, paras 7, 10 (internal quotations omitted); see also Gotovina Decision, paras 22-24.

[12] Impugned Decision, paras 30-32.

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Decision on Trial Date - 13.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.5)

21. Reviewing the Trial Chamber’s reasoning as set out in both the Impugned Decision and various pre-trial proceedings demonstrates that it was well aware of the key issues impacting pre-trial preparation time: first, the size and scope of the Prosecution case, and the issues of disclosure and document review this raises, and, second, Karadžić’s decision to represent himself. In the 20 August 2009 and 8 September 2009 Status Conferences, and the 6 October 2009 Pre-Trial Hearing, the Trial Chamber specifically concerned itself with the parameters of the Prosecution case,[1] eventually reducing its scope and capping the number of hours for the Prosecution’s presentation.[2] These decisions were taken in the context of diverse efforts during the pre-trial period to facilitate document disclosure[3] and specific reminders to Karadžić that he prepare for trial[4] and request resources he needed to do so.[5] Given the Trial Chamber’s explicit consideration of the case’s size and the actions it took to reduce this, Karadžić’s contention that it ignored issues such as the case’s complexity, number of counts and charges, the gravity of the crimes and the status and scale of the disclosure process is not convincing.

24. Insofar as the Impugned Decision relied on reduced sitting times during trial to justify the October trial date, Karadžić fails to show that the Trial Chamber erred. The Appeals Chamber has included preparation time during trial as one factor in its assessment of whether defence teams were given adequate total preparation time,[6] and it was a valid factor for the Trial Chamber to take into consideration. […] While Karadžić’s defence team may have taken some time to recruit and may not be able to work on every trial issue he would wish them to, these advisors are a source of significant support, and their limitations are linked to Karadžić’s choice to be self-represented. The Appeals Chamber has explained that while “a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” to self-represented defendants, “[a] defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel”.[7]

[1] See Status Conference, T. 20 August 2009, pp. 400-403; Status Conference, T. 8 September 2009, pp. 445-452; Pre-Trial Hearing, T. 6 October 2009, pp. 467-68.

[2] Pre-Trial Hearing, T. 6 October 2009, p. 468.

[3] See, e.g., Pre-Trial Conference, T. 6 October 2009, pp. 479-82. The Trial Chamber also ordered that it be provided with periodic reports on the status of disclosure. Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Order on Proposed Disclosure Report, 19 December 2008. It actively managed disclosure efforts as they progressed. See, e.g, Status Conference, T. 2 April 2009, pp. 148-56.

[4] See, e.g., Status Conference, T. 20 August 2009, p. 434; see also Status Conference, T. 3 June 2009, p. 275.

[5] Status Conference, T. 20 August 2009, p. 432.

[6] See Krajišnik Decision [Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-AR73.1, Decision on Interlocutory Appeal of Decision on Second Defence Motion for Adjournment, 25 April 2005], para. 23. The Trial Chamber’s rough calculations concerning the Prosecution case during the pre-trial conference, which assumed sittings five days a week, were obviously meant to be for estimation purposes only. See Pre-Trial Conference, T. 6 October 2009, pp. 467-68. As the Trial Chamber noted at the 8 September 2009 Status Conference, logistical considerations will prevent sitting five days a week during some periods of the Prosecution case. See Status Conference, T. 8 September 2009, pp. 449-50.

[7] Milošević Decision, para. 19. 

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

The Appeals Chamber found that, when the Trial Chamber does not expressly limit its certification to appeal a decision to a particular issue, the Appeals Chamber may decide to resolve other issues, provided that they “materially advance the proceedings” and that the purported error is not “inconsequential”.

The relevant paragraphs read:

16. It is not illogical or impermissible for a Trial Chamber to grant certification to appeal an entire decision on the basis of one issue which, in its view, satisfies the Rule 73(B) criteria.  To the contrary, such an approach is consistent with the text of that Rule, which requires only that the Trial Chamber identify “an issue” satisfying certain criteria in order to certify interlocutory review of a decision, but does not state that the review must be limited to the identified issue.  Thus, although the Appeals Chamber has found that the Trial Chamber can limit review to the issue(s) that it has found to specifically satisfy the Rule 73(B) criteria, it is not obligated to do so.

17. This approach is consistent with Rule 73’s objective of advancing the fair and expeditious conduct of the proceedings.  Interlocutory appeals under Rule 73 interrupt the continuity of trial proceedings and so should only be allowed when there is a significant advantage to doing so—that is, when, in the Trial Chamber’s judgement, there is an important issue meriting immediate resolution by the Appeals Chamber.  But once one such issue is identified and an interlocutory appeal is certified, allowing the Appeals Chamber to resolve related issues at the same time may cause little additional interruption and may ultimately serve the goals of fairness and expeditiousness.

21. […] the Appeals Chamber will not, in considering an interlocutory appeal that extends beyond the issues that the Trial Chamber found to specifically satisfy the Rule 73(B) standard, address matters in which its consideration will not, in fact, materially advance the proceedings.  The Appeals Chamber notes the related argument of Mr. Karemera that the Prosecution has as a general matter failed to demonstrate errors invalidating the Trial Chamber’s decision or occasioning a miscarriage of justice within the meaning of Article 24(1) of the Statute.[1]  Although the Article 24(1) standard applies specifically to post-trial appeals from final Trial Chamber decisions, it is likewise true that in interlocutory appeals, even where certification under Rule 73(B) has been granted, it is not the Appeals Chamber’s practice to pass on purported errors that are inconsequential.[2]  The Appeals Chamber will keep this standard in mind in addressing the individual allegations of error raised by the Prosecution.

[1] Karemera Response, p. 2.

[2] See Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, para. 9 & fn. 25.

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Decision on Additional Grounds of Appeal - 17.08.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A )

50. In this respect, the Appeals Chamber adds that the purpose for setting forth the grounds, as provided for under Rule 108 of the Rules, is, inter alia, “to focus the mind of the Respondent, right from the day the notice of appeal is filed, on the arguments which will be developed subsequently in the Appeal brief” and “to give details of the arguments the parties intend to raise in support of the grounds of appeal”.[1]

[1] The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Decision on Motion to Have the Prosecution’s Notice of Appeal Declared Inadmissible, 26 October 2001, p. 3.

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

246. The Appeals Chamber further recalls that pursuant to Rule 108 of the Rules, a party seeking to appeal a judgement must set forth the grounds of appeal in a notice of appeal, indicating “the substance of the alleged errors and the relief sought.”[1] The notice of appeal does not need to detail the arguments that the parties intend to use in support of the grounds of appeal, as this has to be done in an appellant’s brief.[2] Instead, the notice of appeal must “focus the mind of the Respondent, right from the day the notice of appeal is filed, on the arguments which will be developed subsequently in the Appeal brief.”[3] In the present case, the Prosecution Notice of Appeal includes the Prosecution’s only ground of appeal. Furthermore, it indicates the relief sought and the substance of the alleged errors when it inter alia states that the Reports were insufficient to satisfy Boškoski’s obligation under Article 7(3) of the Statute.[4] The allegation that the Reports were unlikely to trigger an investigation into police criminal conduct is an argument that did not need to be included in the Prosecution Notice of Appeal and that was properly made in the Prosecution Appeal Brief.

[1] Mrkšić and [ljivančanin Decision of 26 August 2008, para. 8. See also Practice Direction on Formal Requirements for Appeals from Judgement (IT/201), 7 March 2002, para. 1(c) (i), (ii) and (v).

[2] Mrkšić and [ljivančanin Decision of 26 August 2008, para. 8.

[3] Prosecutor v. Ignace Bagilishema, ICTR-95-1A-A, Decision on Motion to Have the Prosecution’s Notice of Appeal Declared Inadmissible, 26 October 2001, p. 3.

[4] Prosecution Notice of Appeal, paras 6-9.

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Decision on Jurisdiction - 08.12.2005 DELIĆ Rasim
(IT-04-83-AR72)

11. To the extent that the Appellant’s argument concerns not the sufficiency of the indictment but the sufficiency of the supporting evidence, the Appeals Chamber agrees with the Trial Chamber that this is an issue to be resolved at trial.  The question whether an indictment is supported by sufficient supporting material to make out a prima facie case is not a jurisdictional one within the meaning of Rule 72(B)(i), and the Appellant has no right to an interlocutory appeal of the confirming judge’s decision on this question.[1]  [….] Here […] the indictment’s allegations are legally sufficient, and the further question whether those allegations are supported by the evidence is a factual one that is inappropriate for interlocutory appeal.

[1] Prosecutor v Brđanin, Case No. IT-99-36-AR 72, Decision on Interlocutory Appeal From Decision on Motion to Dismiss Indictment Filed Under Rule 72, 16 November 1999.

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Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

49.       The Appeals Chamber notes that, as a general rule, a notice of appeal is not the proper vehicle for advancing in the first instance alleged disclosure violations identified only during the appeal proceeding. A notice of appeal is normally limited to challenges against a particular order, ruling, or decision taken by a trial chamber.[1] The Appeals Chamber recalls, however, that the Prosecution’s disclosure of material under Rule 68 of the Rules is a continuing obligation.[2] If a party identifies a potential disclosure violation after the conclusion of the trial and while appellate proceedings are ongoing, it may seek relief by bringing a motion before the Appeals Chamber.[3] Given the importance of the Prosecution’s disclosure obligation under Rule 68 of the Rules, the Appeals Chamber will nonetheless consider the arguments raised by Mugiraneza under his Fourth Ground of Appeal.

[1] See Rule 108 of the Rules (“A party seeking to appeal a judgement or sentence shall, not more than thirty days from the date on which the judgement or the sentence was pronounced, file a notice of appeal, setting forth the grounds. The Appellant should also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought.”) (emphasis added).

[2] See, e.g., Bagosora et al. Appeal Decision of 18 January 2011 ₣Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motions for Disclosure, 18 January 2011ğ, para. 7; Kamuhanda Appeal Decision ₣Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010ğ, para. 14.

[3] See Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, 8 December 2006 (“Practice Direction”), para. 12 (“Where an appeal has been filed from a judgement, a party wishing to move the Appeals Chamber for a specific ruling or relief […] shall file, in accordance with the Rules, a motion containing: (a) the precise ruling or relief sought; (b) the specific provision of the Rules under which the ruling or relief is sought; (c) the grounds on which the ruling or relief is sought.”). 

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Decision on Subpoena Application - 01.07.2003 KRSTIĆ Radislav
(IT-98-33-A)

26.     The reasoning of the Appeals Chamber in the Blaškić Subpoena Decision is that, as the State official has acted on behalf of the State, only the State can be responsible for the acts of that official,[1] and that, as a corollary, the State may demand for its State officials (where their acts are attributed only to the State) a “functional immunity from foreign jurisdiction”.[2]  Such a rule, the Appeals Chamber states, undoubtedly applies to relations between States inter se, but it must be taken into account and has always been respected by, inter alia, international courts.[3]  All of the authorities which the Appeals Chamber cited in support of the functional immunity upon which it relied relate to an immunity against prosecution.  It may be the case (it is unnecessary to decide here) that, between States, such a functional immunity exists against prosecution for those acts, but it would be incorrect to suggest that such an immunity exists in international criminal courts.[4]  The Charter of the International Military Tribunal in Nuremberg denied such an immunity to “Heads of State or responsible officials in Government Departments”,[5] as does this Tribunal’s Statute.[6]

27.     But it is abundantly clear from the passages already quoted from the Blaškić Subpoena Decision, and from pars 23-24, supra, that the statement made in par 38 of that Decision – that “The Appeals Chamber dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity” – can be justified only in relation to the production of documents in their custody in their official capacity.  The Appeals Chamber did not say that the functional immunity enjoyed by State officials includes an immunity against being compelled to give evidence of what the official saw or heard in the course of exercising his official functions.  Nothing which was said by the Appeals Chamber in the Blaškić Subpoena Decision should be interpreted as giving such an immunity to officials of the nature whose testimony is sought in the present case.  No authority for such a proposition has been produced by the prosecution, and none has been found.  Such an immunity does not exist.  No issue arises for determination in this case as to whether there are different categories of State officials to whom any such immunity may apply, and it is unnecessary to determine such an issue here.

See also paragraph 28.

[1]    [Prosecutor v Blaškić, IT-95-14-AR108bis, 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”).] See pars 38(iii) and 41, and footnotes 43-45, supra.

[2]    See par 41, supra.

[3]    See par 41, supra.

[4]    In Case Concerning the Arrest Warrant of 11 April 2002 (Democratic Republic of the Congo v Belgium), 14 Feb 2002 (the Yerodia Case), General List No 121 [unreported], at par 61, the International Court of Justice said:  “Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances.  [...] an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.  Examples include the International Criminal Tribunal for the Former Yugoslavia [...].”

[5]    Charter, Article 7:  “The official position of defendants whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.”  See also Article II of Control Council Law No 10.  In its Judgment, the Nuremberg Tribunal stated (at pp 222-223):  “It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, and where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State.  In the opinion of the Tribunal, both these submissions must be rejected.  […]  The principle of international law, which under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law.  The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings […].  On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State.  He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.”  Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945 – 1 October 1946 (1947).

[6]    Article 7.2:  “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”

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Decision on Jurisdiction - 06.06.2007 GOTOVINA et al.
(IT-06-90-AR72.1)

15. The Appeals Chamber finds that the Appellant fails to raise a proper jurisdictional challenge pursuant to Rule 72(D)(iv) of the Rules under his first ground of appeal or to demonstrate that the Trial Chamber erred in dismissing his argument as to “occupied territory” being a necessary requirement for the crimes of deportation and forcible transfer as crimes against humanity. Here, the Appellant is not contesting that the International Tribunal has jurisdiction over these crimes under Article 5 of the Statute, which are charged in the Joint Indictment according to their definitions and elements under customary international law as set out in the jurisprudence of the International Tribunal.[1] Rather, he argues that the interpretation of the definition for the actus reus of these crimes should be narrow and limited to displacement from occupied territory. As such, the Appellant may bring these arguments before the Trial Chamber to be considered on the merits at trial; however, they do not demonstrate the Tribunal’s lack of subject-matter jurisdiction.[2]

18. The Appeals Chamber considers that the Appellant […] fails to raise a proper jurisdictional challenge under Rule 72(D)(iv) of the Rules. The Appellant does not dispute that the International Tribunal has jurisdiction over crimes charged under Articles 3 and 5 of the Statute as violations of Common Article 3 of the Geneva Conventions. Furthermore, he does not dispute that “committed against persons taking no active part in the hostilities” is a proper element of such crimes under customary international law. Rather, he contests the definition of that element and argues that the jurisprudence of the International Tribunal demonstrates that it should be interpreted narrowly to require that such persons be shown to be in the hands of a party to the conflict akin to the “protected person” element for crimes alleged to be grave breaches of the Geneva Conventions under Article 2 of the Statute.  Such arguments are properly raised on the merits at trial[3] and do not demonstrate that the International Tribunal lacks subject-matter jurisdiction over the crimes and the elements of those crimes under Counts 8 and 9 of the Joint Indictment. […]

21. The Appeals Chamber finds that the Appellant […] fails to raise a proper jurisdictional objection within the meaning of Rule 72(D)(iv) of the Rules and to demonstrate that the Trial Chamber erred in rejecting it. Clearly, the Joint Indictment provides that a state of armed conflict existed at all times with respect to the violations of international humanitarian law alleged therein. Whether an armed conflict actually existed post-Operation Storm is a factual determination to be made at trial. It was well within the discretion of the Trial Chamber to consider that determining this issue pre-trial is premature and can only be decided upon hearing and weighing all of the evidence.[4] To the extent that the Appellant claims that the provisions of the  Joint Indictment on this issue are inconsistent or do “not plead any facts supporting the existence of an armed conflict after Operation Storm”,[5] these arguments may constitute allegations of defects in the form of the indictment, which may be challenged under Rule 72(A)(ii) of the Rules.[6] […]

24. The Appeals Chamber considers that the Appellant fails to […] raise[…] a proper jurisdictional objection pursuant to Rule 72(D)(i) of the Rules. Here, the Appellant does not contest the International Tribunal’s jurisdiction over JCE as a mode of liability under Article 7(1) of the Statute, which, as the Trial Chamber noted, is clearly established in the jurisprudence of the International Tribunal.[7] In the Joint Indictment, the Prosecution alleges JCE and its elements, as they are set out in the Tribunal’s jurisprudence, and the Appellant merely challenges the definition and interpretation of a particular element as established in cases subsequent to the Tadić Appeals Judgement.[8] The Appeals Chamber agrees with the Trial Chamber that such a challenge is to be considered on the merits at trial.[9] To the extent that the Appellant submits that the Prosecution has failed to plead an element of this mode of liability properly, such an argument goes to pleading practice and the form of the indictment and is not a challenge to jurisdiction.[10] […]

[1] See Stakić Appeal Judgement, paras 278-303, 317.

[2] See Prlić et al. [Interlocutory] Decision on Jurisdiction, para. 13, which states:

 

In his Appeal, the Appellant says that he accepts that the crimes charged and the modes of liability alleged in the Indictment do fall within the jurisdiction of the Tribunal but questions whether they ‘nevertheless could be misdefined and misapplied in the particular Indictment and thus transform into some other crimes and/or forms of liability falling outside the Tribunal’s jurisdiction’. The Appellant’s complaint therefore is not whether the Tribunal has jurisdiction over the crimes and modes of liability alleged [. . .].

 

See also Prosecutor v. Delalić et al., Case No. IT-96-21-AR72.5, Decision on Application for Leave to Appeal by Hazim Delić (Defects in the Form of the Indictment), 6 December 1996 at para. 27 (“Delalić et al. Decision”) (holding that “Articles 2, 3, 4 and 5 of the Statute are shorthand for the corresponding norms of international humanitarian law, and if there is any dispute as to those norms, that is a matter for trial not for pre-trial objections to the form of the Indictment.”). 

[3] Cf. Delalić et al. Decision at para. 27 (holding that “Articles 2, 3, 4 and 5 of the Statute are shorthand for the corresponding norms of international humanitarian law, and if there is any dispute as to those norms, that is a matter for trial not for pre-trial objections to the form of the Indictment.”). See e.g., Prosecutor v. Anto Furundžija, Case No. IT-05-17/1-T, Judgement, 10 December 1998 at paras. 172-186 (“Furundžija Trial Judgement”) (wherein the Trial Chamber further defines the elements of rape as a crime against humanity under Article 5(g) of the Statute as found in customary international law and broadens its definition); Prosecutor v. Dragoljub Kunarac et al., Case Nos. IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001 at paras. 436-460 (expanding upon the definition of the element “by coercion or force or threat of force against the victim or a third person” for rape as a crime against humanity under Article 5(g) of the Statute as established in the Furundžija Trial Judgement).

[4] See Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-AR72.1, Decision on Interlocutory Appeal on Jurisdiction, 22 July 2005, paras. 11-13. Cf. Prosecutor v. Rasim Delić, Case No. IT-04-83-AR72, Decision on Interlocutory Appeal Challenging the Jurisdiction of the Tribunal, 8 December 2005, para. 11(holding that “[t]o the extent that the Appellant’s argument concerns not the sufficiency of the indictment, but the sufficiency of the supporting evidence, the Appeals Chamber agrees with the Trial Chamber that this is an issue to be resolved at trial.”); Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR72.1, Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 14 (holding that whether the Prosecution can establish a connection between alleged Article 5 crimes in Vojvodina and an armed conflict in Croatia and/or Bosnia and Herzegovina is a question of fact to be determined at trial).

[5] Reply, para. 11.

[6] Cf. Prlić et al. [Interlocutory] Decision on Jurisdiction, para. 13.

[7] See Impugned Decision, fn. 19.

[8] See Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 at para. 204 (using the phrase “predictable consequence”). But see Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-A, Judgement, 25 February 2004 at para. 101 (using the phrases “might be” and “possible consequence”); Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 at para. 33 (“Blaškić Appeals Judgement”) (referring to “possible consequence”); and Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement, 22 March 2006 at paras. 65, 87 (referring to “might be perpetrated” and “possible consequence”).

[9] See Impugned Decision, para. 22 & fn. 25 citing to Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Decision on Ojdanić’s Motion Challenging Jurisdiction: Indirect Co-Perpetration, 22 March 2006, para. 23 (“[l]ike challenges concerning the contours of a substantive crime, challenges concerning the contours of a form of responsibility are matters to be addressed at trial.”). The Trial Chamber also cited to the Blaškić Appeal Judgement at paras. 34-42 wherein the Appeals Chamber considered whether the Trial Chamber’s articulations of the definition for the mental element of “ordering” pursuant to Article 7(1) of the Statute were in error.  

[10] See Prlić et al. [Interlocutory] Decision on Jurisdiction, para. 13, which states:

 

In his Appeal, the Appellant says that he accepts that the crimes charged and the modes of liability alleged in the Indictment do fall within the jurisdiction of the Tribunal but questions whether they ‘nevertheless could be misdefined and misapplied in the particular Indictment and thus transform into some other crimes and/or forms of liability falling outside the Tribunal’s jurisdiction’. The Appellant’s complaint therefore is not whether the Tribunal has jurisdiction over the crimes and modes of liability alleged, but whether the Prosecution has pleaded those crimes and modes of liability properly. The Trial Chamber did not err in determining that this argument was addressed in its Decision on Defence Motions on the Form of the Indictment. Accordingly, the Trial Chamber was not required to address this argument in the Impugned Decision. (Footnotes omitted).

 

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Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-AR73)

11. […] The Appeals Chamber notes that in the Blaškić case, the Appeals Chamber of the ICTY considered that “the purpose of a response is to give a full answer to the issues raised in a motion by the moving party”.[1] […]

12. […] Most of the submissions in Mr. Ndayambaje’s Response relate solely to his case and challenge the Impugned Decision with regard to its order to him to file a revised witness list containing a maximum of thirty witnesses.[2] The Appeals Chamber finds that these arguments are inadmissible with respect to the appeal of the Appellant as they are not made in response to that appeal. For Mr. Ndayambaje to raise these arguments on his own behalf with respect to the restriction on the number of witnesses he is permitted to call, he needs to have obtained certification. He cannot attempt to appeal the Impugned Decision with the objective of having the Trial Chamber’s reduction of the number of his witnesses reversed by filing a response to a certified appeal of a co-accused.

13. […] Accordingly, Mr. Ntahobali’s Response challenges the Impugned Decision and the Trial Chamber’s use of its discretion.[3] The Appeals Chamber considers that, as Mr. Ntahobali did not seek and was not granted certification to appeal from the Impugned Decision, his arguments in this regard are inadmissible before the Appeals Chamber.

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on the Prosecution’s Motion Seeking a Declaration, 20 June 2006, p. 4; Prosecutor v. Ante Gotovina et al, Case No. IT-06-90-AR73.2, Decision on Ivan Čermak’s Interlocutory Appeal against Trial Chamber’s Decision on Conflict of Interest of Attorneys Čedo Prodanović and Jadranka Sloković, 29 June 2007, para. 12 (“Gotovina Decision”).

[2] See Ndayambaje’s Response, paras. 16 - 49.

[3] Ntahobali’s Response, paras. 15 – 35.

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Appeal Judgement - 29.09.2014 NIZEYIMANA Ildéphonse
(ICTR-00-55C-A)

Fn. 881. […] Because Nizeyimana raised this contention for the first time in his Reply Brief, and thereby deprived the Prosecution of an opportunity to respond, the Appeals Chamber will not address it.

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Decision on Motions to Strike Parts of Response Brief - 22.07.2015 PRLIĆ et al.
(IT-04-74-A)

NOTING that the contested paragraphs of the Prlić Response Brief make submissions on the merits of certain arguments advanced in the ]orić Appeal Brief and the Stojić Appeal Brief;[1]

RECALLING that paragraph 5 of the Practice Direction[[2]]] provides that the “opposite party” shall file a “Respondent’s Brief”, the content of which “shall be limited to arguments made in response to [the Appellant’s Brief]”;

CONSIDERING that the “opposite party” means the Prosecution when the appellant is a convicted person, and a defendant when the appellant is the Prosecution, and that arguments made in response must be limited to those raised by the relevant opposite party;

CONSIDERING that the Appeals Chamber will only consider the arguments raised in the Prlić Response Brief to the extent that they respond to the arguments raised by the Prosecution in its appeal against Prlić;

FINDING that to the extent that the Prlić Response Brief contains submissions on the merits of the ]orić Appeal Brief and the Stojić Appeal Brief, the Appeals Chamber will disregard these submissions for the purposes of adjudicating the Prosecution’s appeal against ]orić and Stojić, without prejudice to any possible similar arguments advanced by the Prosecution in its appeal against ]orić and Stojić;

[1] [Jadranko Prlić’s Respondent’s Brief, 7 May 2015 (confidential)]], paras 58(f), 96-97, 116-117, 123-127 (Stojić), 142-146 (]orić).

[2] Practice Direction on Formal Requirements for Appeals from Judgement, IT/201, 7 March 2002. 

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Other instruments Practice Direction on Formal Requirements for Appeals from Judgement (ICTY); para 5
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Decision on Additional Evidence - 05.05.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

8. […] In addition, the Appeals Chamber recalls that a reply should be limited to arguments contained in the response and that, to the extent the Rule 115 Reply included any completely new submission of law or fact, it was improper.[1]

15. […] However, the Appeals Chamber will only take into account arguments pertaining to documents referred to in the Rule 115 Motion but not initially annexed to it or to alleged changes between the documents filed with the Rule 115 Motion and those filed with the Corrigendum to Rule 115 Motion. The Appeals Chamber notes that the Prosecution Request of 10 February 2006 and the reply thereto may not be used indirectly as a vehicle to make new submissions that should have been made in the Response to Rule 115 Motion or in a timely reply to it. In conformity with this principle, the Appeals Chamber also denies the Appellant’s request to file “a full reply given that the original reply has been expunged from the record”.[2]

[1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Prosecution’s Motion to Strike Portion of Reply, 30 September 2002, p. 3. Cf. generally, Practice Direction on Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005, para. 6. Cf. also Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Prosecution’s Motion to Strike Parts of the Brief in Reply, 27 September 2004, p. 3; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Prosecution’s Motion to Strike New Argument Alleging Errors by Trial Chamber Raised for First Time in Appellant’s Reply Brief, 28 January 2005, p. 3; Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005, para. 145.

[2] [“Appellant’s Reply to the Prosecutor’s Request to File a Response to [sic] Limited to Fresh Additionla [sic] Evidence Appended to ‘The Appellant Jean-Bosco Barayagwiza’s Extremely Urgent Corrigendum to the Rule 115 Motion Filed 28 December 2005, Pursuant to the Order of the Pre Trial [sic] Appeal Judge of 23rd January 2006’”, 16 February 2006 (“Reply to the Prosecution Request of 10 February 2006”), para. 1.]

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ICTR Rule Rule 115 ICTY Rule Rule 115
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Decision on Leave to Respond to Oral Arguments - 05.03.2007 BRALO Miroslav
(IT-95-17-A)

13. The Appeals Chamber recalls that a brief in reply must be “limited to arguments in reply to the Respondent’s Brief” and therefore that it should not contain new allegations of error[1] Consequently, the Second Supplemental Reply Brief should have been limited to the Prosecution’s arguments in response to the Appellant’s supplemental arguments, which in turn should have been limited to the potential impact of the three elements of additional evidence admitted on appeal.[2] Without having sought leave from the Appeals Chamber, the Appellant chose to include in his Second Supplemental Reply Brief a “reply to assertions raised by the [P]rosecution for the first time during oral arguments that certain of Appellant’s factual arguments under the sub-heading 1.2(1) lack evidentiary support in the certified trial record”.[3] This procedure was improper.

[1] Practice Direction on Formal Requirements for Appeals from Judgement, para. 6; see Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-A, Judgement on Sentencing Appeal, 20 July 2005, paras 145-146; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Prosecution’s Motion to Strike New Argument Alleging Errors by Trial Chamber Raised for First Time in Appellant’s Reply Brief, 28 January 2005; Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Decision on Prosecution’s Motion to Strike, 20 January 2005, para. 18; Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Prosecution’s Motion to Strike Parts of the Brief in Reply, 27 September 2004.

Decision of 12 January 2007, paras 5, 20, 21 and 27. This evidence consists of: (i) “Prosecutor’s Motion for an ex parte in camera Hearing in Respect of the Admission of Newly-Discovered Evidence”, filed ex parte and under seal on 11 December 1997 in Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, and made public on 13 January 2006 (“Item 1”); (ii) public redacted version of “Prosecutor’s Revised Reply to Defense’s ‘Response to Prosecutor’s Request for Review or Reconsideration’”, filed on 4 September 2006 in Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R (“Item 2”); and (iii) Letter dated 6 October 2006, from Peter M. Kremer, Q.C., Senior Appeals Counsel (“Item 3”).

The Appeals Chamber found that those Items “reveal[ed] the use of documents provided by the Appellant in 1997 and 2005 in other proceedings by the Prosecution” and were therefore “relevant to […] sub-ground of appeal 1.2, relating to the assessment of his cooperation with the Prosecution”. Finally, the Appeals Chamber found that, “had Items 1 to 3 been adduced at trial, those elements could have been a decisive factor in weighing his co-operation as a mitigating factor and could have changed the sentence”.

[3] Second Supplemental Reply Brief, para. 4.

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Decision on Additional Evidence - 26.02.2001 KUPREŠKIĆ et al.
(IT-95-16-A )

70. Moreover, ordinarily a reply is restricted to dealing with issues raised in an opposing party’s response. If a party raises a new argument or request for the first time in a reply then the opposing party is deprived of an opportunity to respond. This could harm the fairness of the appeal proceedings.

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Decision on Additional Evidence - 20.10.2011 POPOVIĆ et al.
(IT-05-88-A)

31. Finally, with respect to Popović’s attempt to submit another piece of additional evidence as part of his Reply,[1] the Appeals Chamber recalls that “a reply should be limited to arguments contained in the response” and that including any completely new submission of law or fact in a reply to a motion filed pursuant to Rule 115 of the Rules is improper.[2] Consequently, the Appeals Chamber rejects Popović’s request to admit the document contained in Annex 1 to the Reply as additional evidence on appeal.[3] In light of this conclusion, there is no need for the Appeals Chamber to address the parties’ arguments on the merits of admitting this document.

[1] Reply [Vujadin Popović’s Consolidated Reply to the Prosecution’s Response to Rule 115 Motion and Second Rule 115 Motion, 13 July 2011 (confidential)], paras 1, 12-13, Annex 1.

[2] Nahimana et al. Decision of 5 May 2006, paras 8, 15.

[3] This conclusion is without prejudice to Popović’s right to file a new motion under Rule 115 of the Rules in full compliance with the requirements recalled in this Decision. […]

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Appeal Judgement - 07.07.2006 NTAGERURA et al. (Cyangugu)
(ICTR-99-46-A)

At paras 174 and 175, the Appeals Chamber recalled that, when facts upon which a finding of guilt or the sentence depend are under consideration, such finding must be made beyond reasonable doubt.

See also :

-          Stakić Appeal Judgement, para. 219: “A Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime (as defined with respect to the relevant mode of liability) beyond a reasonable doubt.[1]”

-          Čelebići Appeal Judgement, para. 763: “[O]nly those matters which are proved beyond reasonable doubt against an accused may be the subject of an accused’s sentence or taken into account in aggravation of that sentence.”

[1] Vasiljević Appeal Judgement, para. 120; Ntakirutimana Appeal Judgement, para. 171; Semanza Trial Judgement, para. 148; Musema Trial Judgement, para. 108; Čelebići Trial Judgement, para. 601.

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Review Decision - 23.11.2006 BLAŠKIĆ Tihomir
(IT-95-14-R)

22.     The Appeals Chamber recalls that “[t]he jurisprudence of the Tribunal with respect to proceedings under Article 26 of the Statute and Rule 119 is clear”: “review is only available with respect to final judgement.”[1] A “final judgement” in the sense of those provisions under the Statute and Rules is a decision “which terminates the proceedings; only such a decision may be subject to review.”[2] […]

23. The Appeals Chamber considers that the above cited jurisprudence establishes that the scope of review proceedings before the International Tribunal does not extend to decisions reached during the ongoing proceedings in a case prior to the rendering of the final judgement or final decision. Indeed, in the Barayagwiza Review Decision, the Appeals Chamber explicitly held that interlocutory decisions are not subject to review after the rendering of the final judgement or final decision.[3] Review proceedings are, by their very nature, extraordinary and exceptional because they allow for the re-opening of a closed case and thus, are limited to the final judgement or decision in a case, especially in light of the fact that there is no time-limit for an accused seeking review. If decisions reached prior to the final judgement or final decision were also subject to review, the outcome of a case would always be in question and the parties would never reach resolution. […]

[1] Josipović Review Decision, para. 15; see also Niyitegeka Review Decision, para. 8; Tadić Review Decision, para. 14; Barayagwiza Review Decision, para. 49.

[2] Barayagwiza Review Decision, para. 49.

[3] Barayagwiza Review Decision, fn. 64.

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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 Continuation of Proceedings - 04.03.2016 HADŽIĆ Goran
(IT-04-75-AR73.1)

20.     The Appeals Chamber is of the view that Hadžić cannot be permitted to challenge findings of an impugned decision in a response to a Prosecution appeal. Hadžić has chosen to refrain from seeking certification to appeal and thus does not have standing as an appellant. Accordingly, to the extent Hadžić’s challenges are aimed at appealing the Trial Chamber’s finding on Hadžić's fitness to stand trial, the Appeals Chamber will not consider them. […]

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

468. As a preliminary matter, the Appeals Chamber clarifies that it considers that the Prosecution did not exceed the scope of its response brief by arguing that the Indictment was not defective regarding the count of conspiracy to commit genocide. The purpose of a response brief is to give a full answer to the issues raised in the relevant appeal brief[1] and there is nothing in the Rules or the relevant practice directions prohibiting a party from raising an allegation of error in the Trial Judgement in response to an issue raised by the other party. Therefore, the Appeals Chamber finds no merit in Nyiramasuhuko’s argument that the Prosecution should have requested leave to argue that the Trial Chamber erred in finding that the Indictment was defective as regards the charge of conspiracy to commit genocide.

[1] Cf. 21 August 2007 Appeal Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007], para. 11. See also Practice Direction on Formal Requirements on Appeal [Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005], para. 5.

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Decision on Motion to Strike - 20.01.2005 NIKOLIĆ Momir
(IT-02-60/1-A)

32.     […] A three-stage process is established by the Rules and the relevant Practice Directions for the filing of written submissions before the International Tribunal. For motions filed during appeals from judgement, as is the case here, the moving party is requested to file a motion containing (i) the precise ruling or relief sought; (ii) the specific provision of the Rules under which the ruling or relief is sought; and (iii) the grounds on which the ruling or relief is sought.[1] The opposite party is entitled to file a response stating whether or not the motion is opposed and the grounds therefore,[2] and the moving party may file a reply[3] restricted to dealing with issues raised in the opposite party’s response.[4]  The Appeals Chamber recognizes that it is not possible to require a party to anticipate all the arguments made in response by the opposite party. The very purpose of a reply is to permit the moving party to rebut the arguments raised in opposition by the other party. Subject to a rejoinder, this can sometime necessitate submitting an argument not developed in the initial motion. However, this right to fully address the opposing party’s arguments does not allow the moving party to use its reply to make new claims or to raise totally new arguments. As the Appeals Chamber has already stated, if a party raises in a reply an argument or request for the first time, then the opposing party is deprived of an opportunity to respond and this can harm the fairness of the proceedings.[5] That is notably why the core of the moving party’s arguments must be provided in the initial motion and not raised for the first time in the reply.

[1] Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal, IT/155/Rev. 1, 7 March 2002 (“Practice Direction”), para. 10.

[2] Practice Direction, para. 11.

[3] Practice Direction, para. 12.

[4] Decision on Motion to Strike [Decision (Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record, Motion to Enlarge Time, Motion for Leave to File a Rejoinder to the Prosecution’s Reply), 1 September 2004], para. 10. See also Kupreškić Decision [Prosecutor v. Kupreškić et al., IT-95-16-A, Decision on the Motions of Appellants Vlatko Kupreškić, Drago Josipović, Zoran Kupreškić and Mirjan Kupreškić to Admit Additional Evidence, filed confidentially on 26 February 2001], para. 70; Kordić Decision [Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Decision on Prosecution’s Motion to Strike out Portions of Kordić’s Reply filed 13 April 2004, 11 May 2004], para. 14. See, mutatis mutandis, Practice Direction on Formal Requirements for Appeals From Judgement, 7 March 2002, IT/201, para. 6. 

[5] Decision on Motion to Strike, para. 10. See also Kupreškić Decision, para. 70; Kordić Decision para 14. 

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