As of right
|Decision on Validity of Appeal - 29.07.2004||
2. The Appeal purports to proceed as an interlocutory appeal as of right under Rule 72(B)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), which states that preliminary motions are without interlocutory appeal, except “in the case of motions challenging jurisdiction.” Rule 72(D) of the Rules expands on this provision by stating that, for purposes of Rule 72(B)(i) of the Rules, a “motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to” the personal, territorial or temporal jurisdiction of the Tribunal, or to any of the violations enumerated in Articles 2, 3, 4, 5 and 7 of the Statute.
7. The decisions of the Appeals Chamber, as well as the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda under an identical provision of that Tribunal’s Rules of Procedure and Evidence, make clear that an appeal concerning an issue whether a charge in an indictment falls within a statutory grant of jurisdiction meets the requirements of Rule 72(D) of the Rules and may proceed. This Appeal satisfies the requirements of Rule 72(D)(iv) of the Rules and may therefore proceed.
 Rule 72(B)(i) [Rules of Procedure and Evidence, IT/32/Rev. 32, 12 August 2004].
 See e.g. Prosecutor v. Hadžihasanović et al., No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to Validity of
Appeal, 21 February 2003; Prosecutor v. Milutinović et al., No. IT-99-37-AR72, Decision Pursuant to Rule 72(E) as to
Validity of Appeal, 25 March 2003; Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction — Joint Criminal Enterprise, 21 May 2003; Prosecutor v. Rwamakuba, No. ICTR-98-44-AR72.4, Decision on Validity of Appeal of André Rwamakuba Against Decision Regarding Application of Joint Criminal Enterprise to the Crime of Genocide Pursuant to Rule 72(E) of the Rules of Procedure and Evidence, 23 July 2004.
|ICTR Rule Rule 72 ICTY Rule Rule 72|
|Decision on Legality of Arrest - 12.03.2009||
11. The Appeals Chamber recalls that interlocutory appeals on jurisdiction lie as of right under Rule 72(B)(i) of the Rules only where they challenge an indictment on the ground that it does not relate to the Tribunal’s personal, territorial, temporal or subject-matter jurisdiction. The Appellant challenges the Tribunal’s jurisdiction over him because of the alleged illegality of his arrest. However, he does not challenge the Indictment on any of the above-listed grounds. Consequently, Rule 72(D) of the Rules “cannot provide a basis for appeal of the Impugned Decision”.
12. The alternative relief sought by the Appellant concerns the establishment of the circumstances of his arrest and a declaration as to its unlawful nature. These submissions equally go outside the scope of a jurisdictional challenge and therefore are not properly before the Appeals Chamber.
13. In light of the above, the Appeals Chamber considers that the Appellant should have requested the Trial Chamber’s authorization to lodge an appeal against the Impugned Decision[] under Rule 73(B). Absent certification to appeal under Rule 73(B) of the Rules, the Appeals Chamber has no jurisdiction to address the merits of the Appeal.
 Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR72.1, Decision on Tolimir’s “Interlocutory Appeal Against the Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concerning the Jurisdiction of the Tribunal”, 25 February 2009, para. 4.
 Appeal [Appeal Against the Decision on Submissions of the Accused Concerning Legality of Arrest, the B/C/S original filed on 23 January 2009, the English translation filed on 29 January 2009], para. 36.
 Prosecutor v. Dragan Nikolić, Case No. IT-94-2-AR72, Decision on Notice of Appeal, 9 January 2003 (“Nikolić Decision of 9 January 2003”), p. 3. The Appeals Chamber notes that a number of its decisions rendered in the ICTR prior to 27 May 2003, have adopted a different approach allowing comparable appeals to be filed as of right under Rule 72(D) (e.g. Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999, paras 11 and 72 citing Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 6; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-72, Decision and Scheduling Order, 5 February 1999, p. 3; see also the Dissenting Opinion of Judge Shahabuddeen attached to the Nikolić Decision of 9 January 2003 (paras 13 et seq.)). However, given that the Rules of Procedure and Evidence of the ICTR were amended on 27 May 2003 to include the provisions on certification of appeal referred to in the Nikolić Decision of 9 January 2003, the Appeals Chamber considers that these two approaches are not in contradiction.
 Appeal, para. 37.
 [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-PT, Decision on Submissions of the Accused Concerning Legality of Arrest, 18 December 2008 (the B/C/S translation was filed on 9 January 2009)].
 Nikolić Decision of 9 January 2003, p. 3.
|ICTR Rule Rule 72 ICTY Rule Rule 72|
|Decision on Judicial Notice - 16.06.2006||
KAREMERA et al.
The Appeals Chamber discussed for the first time whether the provisions of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal governing the content of a response apply identically to Interlocutory appeals “as of right and interlocutory appeals “with leave to appeal”. It held (Decision, footnote 7):
The Practice Direction on Written Submissions distinguishes between appeals that lie “as of right” and those that lie “only with the leave of a bench of three judges of the Appeals Chamber”. Appeals that have been certified by a Trial Chamber—pursuant to a procedure established by amendment to the Rules after the Practice Direction’s issuance—are not specifically mentioned, but the Appeals Chamber considers that, after the required certification has been issued, they lie “as of right”, in that they are authorized by Rule 73(B) of the Rules and the appellant need not apply to the Appeals Chamber for further leave to file them. In any event, the provisions of the Practice Direction governing the content of a response are the same for all categories of interlocutory appeal.
16 September 2002 (“Practice Direction on Written Submissions”).
|ICTR Rule Rule 73(B) ICTY Rule Rule 73(B) Other instruments Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal (ICTR).|