Showing 2493 results (20 per page)

Notion(s) Filing Case
Reasons for Appeal Judgement - 06.04.2000 SERUSHAGO Omar
(ICTR-98-39-A )

30. It is the settled jurisprudence of the ICTR that the requirement that the ‘the Trial Chambers shall have recourse to the general principle regarding prison sentences in the courts of Rwanda’ does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial Chambers to take account of that practice. [...]

Download full document
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

41.     […] [I]t is clear from the Statute and the Rules[1] that, in order for a Chamber to carry out a review, it must be satisfied that four criteria have been met. There must be a new fact; this new fact must not have been known by the moving party at the time of the original proceedings; the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and it must be shown that the new fact could have been a decisive factor in reaching the original decision.

42.     The Appeals Chamber of the International Tribunal for the former Yugoslavia has highlighted the distinction, which should be made between genuinely new facts which may justify review and additional evidence of a fact [2]. In considering the application of Rule 119 of the Rules of the International Tribunal for the former Yugoslavia (which mirrors Rule 120 of the Rules [of the International Tribunal for Rwanda]), the Appeals Chamber held that:

Where an applicant seeks to present a new fact which becomes known only after trial, despite the exercise of due diligence during the trial in discovering it, Rule 119 is the governing provision. In such a case, the Appellant is not seeking to admit additional evidence of a fact that was considered at trial but rather a new fact…It is for the Trial Chamber to review the Judgement and determine whether the new fact, if proved, could have been a decisive factor in reaching a decision”.[3]

Further, the Appeals Chamber stated that-

a distinction exists between a fact and evidence of that fact. The mere subsequent discovery of evidence of a fact which was known at trial is not itself a new fact within the meaning of Rule 119 of the Rules.[4]

43.     The Appeals Chamber would also point out at this stage, that although the substantive issue differed, in Prosecutor v. Dra‘en Erdemović,[5] the Appeals Chamber undertook to warn both parties that “[t]he appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing”. The Appeals Chamber confirms that it notes and adopts both this observation and the test established in Prosecutor v. Duško Tadić in consideration of the matter before it now.

44.     […] [A] “new fact” cannot be considered as failing to satisfy the criteria simply because it occurred before the trial. What is crucial is satisfaction of the criteria which the Appeals Chamber has established will apply. If a “new” fact satisfies these criteria, and could have been a decisive factor in reaching the decision, the Appeals Chamber can review the Decision.

[1] Article 25, Rules 120 and 121.

[2] Prosecutor v. Duško Tadić, Decision of Appellant’s Motion for the extension of the time-limit and admission of additional evidence, Case no, IT-94-1-A, 15th October 1998.

[3] Ibid., at 30.

[4] Ibid., at 32.

[5] Judgement, Case no IT-96-22-A, 7 October 1997 at § 15. 

Download full document
ICTR Statute Article 25 ICTY Statute Article 25 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

49.     The Chamber considers it important to note that only a final judgement may be reviewed pursuant to Article 25 of the Statute and to Rule 120[1]. […] The Chamber would point out that a final judgement in the sense of the above-mentioned articles is one which terminates the proceedings; only such a decision may be subject to review. Clearly, the [decision sought to be reviewed] belongs to that category, since it dismissed the indictment against the Appellant and terminated the proceedings.

[1] In this respect, the Appeals Chamber does not agree with the Decision on the Alternative Request for Renewed Consideration of Delalić’s Motion for an Adjournment until 22 June or Request for Issue of Subpoenas to Individuals and Requests for Assistance to the Government of Bosnia and Herzegovina (IT-96-21-T, 22 June 1998), which suggests that interlocutory decisions can be subject to review. The Appeals Chamber confirms that the law is as stated above.

Download full document
ICTR Statute Article 25 ICTY Statute Article 25 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

65.     In the wholly exceptional circumstances of this case, and in the face of a possible miscarriage of justice, the Chamber construes the condition laid down in Rule 120, that the fact be unknown to the moving party at the time of the proceedings before a Chamber, and not discoverable through the exercise of due diligence, as directory in nature. In adopting such a position, the Chamber has regard to the circumstance that the Statute itself does not speak to this issue.

66.     There is precedent for taking such an approach. Other reviewing courts, presented with facts which would clearly have altered an earlier decision, have felt bound by the interests of justice to take these into account, even when the usual requirements of due diligence and unavailability were not strictly satisfied. While it is not in the interests of justice that parties be encouraged to proceed in a less than diligent manner, “courts cannot close their eyes to injustice on account of the facility of abuse”[1].

[1] Berggren v Mutual Life Insurance Co., 231 Mass. at 177. The full passage reads:

“The mischief naturally flowing from retrials based upon the discovery of alleged new evidence leads to the establishment of a somewhat stringent practice against granting such motions unless upon a survey of the whole case a miscarriage of justice is likely to result if a new trial is denied. This is the fundamental test, in aid of which most if not all the rules upon the matter from time to time alluded to have been formulated. Ease in obtaining new trials would offer temptations to the securing of fresh evidence to supply former deficiencies. But courts cannot close "their eyes to injustice on account of facility of abuse’."

Download full document
ICTR Statute Article 25 ICTY Statute Article 25 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

162. [...] The Trial Chamber [in the Furundžija Appeal Judgement] had earlier stated the conclusion that it is not necessary to show that the aider and abettor shared the mens rea of the principal, but it must be shown that the aider and abettor was aware of the relevant mens rea on the part of the principal.[1]  It is clear that what must be shown is that the aider and abettor was aware of the essential elements of the crime which was ultimately committed by the principal.

[1] Ibid. [Furund`ija Appeal Judgement], para. 245.

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

185. […] While the Appeals Chamber accepts the general importance of deterrence as a consideration in sentencing for international crimes, it concurs with the statement in Prosecutor v. Tadić that “this factor must not be accorded undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal”.[1] An equally important factor is retribution.  This is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes.  This factor has been widely recognised by Trial Chambers of this International Tribunal as well as Trial Chambers of the International Criminal Tribunal for Rwanda.[2]  Accordingly, a sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question[3] and show “that the international community was not ready to tolerate serious violations of international humanitarian law and human rights”.[4]

[1] Ibid.[Tadi} Sentencing Appeal Judgement], para. 48.

[2] “Sentencing Judgement”, Prosecutor v. Erdemović, Case No.: IT-96-22-T, 24 Dec. 1996, para. 64; “Judgement”, Prosecutor v. Delalić et al., Case No.: IT-96-21-T, 16 Nov. 1998, para. 1234;  “Judgement”, Prosecutor v. Furundžija, Case No.: IT-95-17/1-T, 10 Dec. 1998, para. 288;  “Judgement and Sentence”, Prosecutor v. Kambanda, Case No.: ICTR 97-23-S, 4 Sept. 1998, para. 28;  “Sentence”, Prosecutor v. Akayesu, Case No.: ICTR-96-4-S, 2 Oct. 1998, para. 19;  Sentence, Prosecutor v. Serushago, Case No.: ICTR-98-39-S, 5 Feb. 1999, para. 20;  “Judgement and Sentence”, Prosecutor v. Rutaganda, Case No.: ICTR-96-3-T, 6 Dec. 1999, para. 456;  “Judgement and Sentence”, Prosecutor v. Musema, Case No.: ICTR-96-13-T, 27 Jan. 2000, para. 986.

[3] “Sentencing Judgement”, Prosecutor v. Erdemović, 24 Dec. 1996, paras. 64-65.

[4] “Judgement”, Prosecutor v. Kambanda, 4 Sept.1998, para. 28.

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

101. The fundamental purpose of the Tribunal is the prosecution of persons responsible for serious violations of international humanitarian law.[1]  The Appeals Chamber considers that this purpose is best served by an approach which, while recognising the need for certainty, stability and predictability in criminal law, also recognises that there may be instances in which the strict, absolute application of that principle may lead to injustice.

102. The principle of the continuity of judicial decisions must be balanced by a residual principle that ensures that justice is done in all cases. […]

107. The Appeals Chamber, therefore, concludes that a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.

108. Instances of situations where cogent reasons in the interests of justice require a departure from a previous decision include cases where the previous decision has been decided on the basis of a wrong legal principle or cases where a previous decision has been given per incuriam, that is a judicial decision that has been “wrongly decided, usually because the judge or judges were ill-informed about the applicable law.”[2]

109. It is necessary to stress that the normal rule is that previous decisions are to be followed, and departure from them is the exception.  The Appeals Chamber will only depart from a previous decision after the most careful consideration has been given to it, both as to the law, including the authorities cited, and the facts.

110. What is followed in previous decisions is the legal principle (ratio decidendi), and the obligation to follow that principle only applies in similar cases, or substantially similar cases.  This means less that the facts are similar or substantially similar, than that the question raised by the facts in the subsequent case is the same as the question decided by the legal principle in the previous decision.  There is no obligation to follow previous decisions which may be distinguished for one reason or another from the case before the court.

111. Where, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from both decisions for cogent reasons in the interests of justice.

See also paras. 102-106.

[1] See Article 1 of the Statute.

[2] Black’s Law Dictionary (7th ed., 1999).

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

104. The right of appeal is a component of the fair trial requirement[1] set out in Article 14 of the ICCPR, and Article 21(4) of the Statute. The right to a fair trial is, of course, a requirement of customary international law.[2]

105. An aspect of the fair trial requirement is the right of an accused to have like cases treated alike, so that in general, the same cases will be treated in the same way and decided as Judge Tanaka said, “possibly by the same reasoning.”[3]

106. The right to a fair trial requires and ensures the correction of errors made at trial.  At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement in any appeal in which a previous decision of an appellate body is being considered. 

[1] Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (1993) comments that the bundle of rights which constitute the right to a fair trial are those set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights 1966 (“ICCPR”) (ibid., Article 14, para. 19).

[2] See Article 6 of the 1949 European Convention on Human Rights, Article 8 of the 1969 American Convention on Human Rights and Article 7 of the 1981 African Charter on Human and People’s Rights.

[3] See footnote 243, Judge Tanaka’s Separate Opinion.

Download full document
ICTR Statute Article 20(4) ICTY Statute Article 21(4) Other instruments International Covenant on Civil and Political Rights: Article 14.
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

126. The Defence argument on the principle of legality or nullum crimen sine lege, is based on a misunderstanding of that principle.  The Appeals Chamber understands the Defence to be saying that reliance cannot be placed on a previous decision as a statement of the law, since that decision would necessarily have been made after the commission of the crimes, and for that reason would not meet the requirements of the principle of legality.  There is nothing in that principle that prohibits the interpretation of the law through decisions of a court and the reliance on those decisions in subsequent cases in appropriate circumstances.  The principle of legality is reflected in Article 15 of the ICCPR.[1]  What this principle requires is that a person may only be found guilty of a crime in respect of acts which constituted a violation of the law at the time of their commission. […]

127. There is, therefore, no breach of the principle of nullum crimen sine lege.  That principle does not prevent a court, either at the national or international level, from determining an issue through a process of interpretation and clarification as to the elements of a particular crime; nor does it prevent a court from relying on previous decisions which reflect an interpretation as to the meaning to be ascribed to particular ingredients of a crime.

 

[1] Article 15 of the ICCPR states in relevant part: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”

Download full document
Other instruments International Covenant on Civil and Political Rights: Article 15.
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

113. The Appeals Chamber considers that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers for the following reasons:

(i) the Statute establishes a hierarchical structure in which the Appeals Chamber is given the function of settling definitively certain questions of law and fact arising from decisions of the Trial Chambers.  Under Article 25, the Appeals Chamber hears an appeal on the ground of an error on a question of law invalidating a Trial Chamber’s decision or on the ground of an error of fact which has occasioned a miscarriage of justice, and its decisions are final;

(ii) the fundamental mandate of the Tribunal to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law; and

(iii) the right of appeal is, as the Chamber has stated before,[1] a component of the fair trial requirement, which is itself a rule of customary international law and gives rise to the right of the accused to have like cases treated alike.  This will not be achieved if each Trial Chamber is free to disregard decisions of law made by the Appeals Chamber, and to decide the law as it sees fit.  In such a system, it would be possible to have four statements of the law from the Tribunal on a single legal issue - one from the Appeals Chamber and one from each of the three Trial Chambers, as though the Security Council had established not a single, but four, tribunals.  This would be inconsistent with the intention of the Security Council, which, from a plain reading of the Statute and the Report of the Secretary-General, envisaged a tribunal comprising three trial chambers and one appeals chamber, applying a single, unified, coherent and rational corpus of law.  The need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing, and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regime in which cases are tried is even more pronounced.

[1] See para. 104, supra.

Download full document
ICTR Statute Article 24 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

114. The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

76. Article 7(3) provides the legal criteria for command responsibility, thus giving the word “commander” a juridical meaning, in that the provision becomes applicable only where a superior with the required mental element failed to exercise his powers to prevent subordinates from committing offences or to punish them afterwards.  This necessarily implies that a superior must have such powers prior to his failure to exercise them.  If the facts of a case meet the criteria for the authority of a superior as laid down in Article 7(3), the legal finding would be that an accused is a superior within the meaning of that provision.  In the instant appeal, the Appellant contends that, because he was appointed by the Ministry of Justice rather than the Ministry of Defence, he did not have such powers over the guards as a civilian prison warden,[1] whereas the Trial Chamber finds that he was the superior to the guards by reason of his powers over them.[2]  The Appeals Chamber takes the view that it does not matter whether he was a civilian or military superior,[3] if it can be proved that, within the Kaonik prison, he had the powers to prevent or to punish in terms of Article 7(3).  The Appeals Chamber notes that the Trial Chamber has indeed found this to be proven, thus its finding that the Appellant was a superior within the meaning of Article 7(3).

[1] Appellant’s Brief [Zlatko Aleksovski’s Appellant’s Brief in Opposition to the Condemnatory Part of the Judgement dated 25 June 1999, Case No.: IT-95-14/1-A, 24 September 1999], para. 22.

[2] Judgement, paras. 101-106.

[3] The Appellant relies in this regard on the 1998 ICC Statute in particular: Appellant’s Brief, para. 17.  Article 28 of the Statute clearly envisages responsibility for both military and civilian superiors.

Download full document
ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

The Appeals Chamber analysed the “overall control” test that it set out in Tadić, which is used to determine the circumstances in which the acts of a military group could be attributed to a State, such that the group could be treated as a de facto organ of that State, thereby internationalising a prima facie internal armed conflict. It held that the “overall control” test is the applicable law.

144. The test set forth in the Tadić Judgement of “overall control” and what is required to meet it constitutes a different standard from the “specific instructions” test employed by the majority in Aleksovski, or the reference to “direct involvement” in the Tadić Jurisdiction Decision.

145. The “overall control” test calls for an assessment of all the elements of control taken as a whole, and a determination to be made on that basis as to whether there was the required degree of control.  Bearing in mind that the Appeals Chamber in the Tadić Judgement arrived at this test against the background of the “effective control” test set out by the decision of the ICJ in Nicaragua,[1] and the “specific instructions” test used by the Trial Chamber in Tadi}, the Appeals Chamber considers it appropriate to say that the standard established by the “overall control” test is not as rigorous as those tests.

146. To the extent that it provides for greater protection of civilian victims of armed conflicts, this different and less rigorous standard is wholly consistent with the fundamental purpose of Geneva Convention IV, which is to ensure “protection of civilians to the maximum extent possible.”[2]

[1] See in this regard, the reference to the “higher standard” of Nicaragua [Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgement, ICJ Reports (1986), p. 14] in the Majority Opinion, para. 12.

[2] Tadić Judgement, para. 168.

Download full document
ICTR Statute Article 4 ICTY Statute Article 2
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

27. [...] [T]he Appeals Chamber does not interpret the observation in the ICRC Commentary on the Additional Protocols, that the term “outrages upon personal dignity” refers to acts “aimed at humiliating and ridiculing” the victim,[1] as necessarily supporting a requirement of a specific intent on the part of a perpetrator to humiliate, ridicule or degrade the victims.  The statement seems simply to describe the conduct which the provision seeks to prevent.  The Trial Chamber’s indication that the mens rea of the offence is the “intent to humiliate or ridicule” the victim[2] may therefore impose a requirement that the Prosecution was not obliged to prove and the Appeals Chamber does not, by rejecting this ground of appeal, endorse that particular conclusion.

[1] Sandoz et al. (eds.), ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) (“ICRC Commentary on the Additional Protocols”), para. 3047. This statement was referred to by the Trial Chamber at paras. 55 and 56.  There is no specific reference in the ICRC Commentaries to the Geneva Conventions to the mental element required in relation to the offence of outrages upon personal dignity.

[2] Judgement, para. 56.  The Trial Chamber also observed that an outrage against personal dignity is motivated “by contempt for the human dignity of another person” - para. 56.  Although this is no doubt true, it does not make such a motivation an element of the offence to be proved beyond reasonable doubt.

Download full document
ICTY Statute Article 3 Other instruments Geneva Convention III: Article 3(1)(c)
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

182. […] Consideration of the gravity of the conduct of the accused is normally the starting point for consideration of an appropriate sentence.  The practice of the International Tribunal provides no exception.  The Statute provides that in imposing sentence the Trial Chambers should take into account such factors as the gravity of the offence.[1]  This has been followed by Trial Chambers.  Thus, in the ^elebi}i Judgement, the Trial Chamber said that “[t]he most important consideration, which may be regarded as the litmus test for the appropriate sentence, is the gravity of the offence”.[2]  In the Kupreški} Judgement, the Trial Chamber stated that “[t]he sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused.  The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime”.[3]  The Appeals Chamber endorses these statements. 

[1] Article 24(2) of the Statute.

[2] ^elebi}i Judgement, para. 1225.

[3] Kupreški} Judgement, para. 852.

Download full document
ICTR Statute Article 23 ICTY Statute Article 24
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

63. Trial Chambers are best placed to hear, assess and weigh the evidence, including witness testimonies, presented at trial.  Whether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.[1]  In a similar vein, it is for a Trial Chamber to consider whether a witness is reliable and whether evidence presented is credible.  The Appeals Chamber, therefore, has to give a margin of deference to the Trial Chamber’s evaluation of the evidence presented at trial.  The Appeals Chamber may overturn the Trial Chamber’s finding of fact only where the evidence relied on could not have been accepted by any reasonable tribunal[2] or where the evaluation of the evidence is wholly erroneous.

[1] Tadi} Judgement, para. 65.

[2] Ibid.

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

51. The Appeals Chamber considers that, in general, accused before this Tribunal have to raise all possible defences, where necessary in the alternative, during the trial, and where so required under the Rules of Procedure and Evidence of the International Tribunal (“Rules”), before trial.[1]  It follows that accused, generally, cannot raise a defence for the first time on appeal.[2]  This general obligation to raise all possible defences during trial stems from the Rules – in particular Rules 65ter and 67 - as well as the obligation upon accused to plead to the charges against them.[3]  It is also important that the Prosecution should be allowed the opportunity to cross-examine witnesses testifying in support of any defence put forward and to call rebuttal witnesses, if necessary.  The Appeals Chamber may also have some difficulty in properly assessing a Trial Chamber’s judgement where the Defence failed to raise a defence expressly, despite evidence having been led that may support such a defence.  However, all of this is not to say that the right of accused to be presumed innocent is in any way impaired or that the Prosecution does not bear the burden of proving its cases. […]

[1] See Rule 67(A) and (B) of the Rules in relation to alibi and special defences. This Rule was in force at the time of the trial in this case.  Also see Rule 65 ter (F) of the Rules, which came into force after the trial in this case and reads, in part: “…the pre-trial Judge shall order the defence … to file a pre-trial brief addressing factual and legal issues, and including a written statement setting out: (i) in general terms, the nature of the accused’s defence; (ii) the matters with which the accused takes issue in the Prosecutor’s pre-trial brief; and (iii) in the case of each such matter, the reason why the accused takes issue with it."

[2] Tadi} Judgement, para. 55; The Prosecutor v. Zlatko Aleksovski, “Decision on Prosecutor’s Appeal on Admissibility of Evidence”, Case No.: IT-95-14/1-AR73, Appeals Chamber, 16 Feb. 2000, paras. 18-20.

[3] Rule 62 of the Rules (“Initial Appearance of Accused”).

Download full document
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

62. Neither the Statute nor the Rules oblige a Trial Chamber to require medical reports or other scientific evidence as proof of a material fact.  Similarly, the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration.  The only Rule directly relevant to the issue at hand is Rule 89.  In particular, sub-Rule 89(C) states that a Chamber “may admit any relevant evidence which it deems to have probative value”, and sub-Rule 89(D) states that a Chamber “may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial”. 

Download full document
ICTR Rule Rule 89(C)
Rule 89(D)
ICTY Rule Rule 89(C)
Rule 89(D)
Notion(s) Filing Case
Order on Additional Evidence - 14.02.2000 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

The Appellant sought to have admitted pursuant to Rule 115 of the Rules of Procedure and Evidence a document described as an “expert opinion” on the interpretation of the Constitution of Costa Rica.

CONSIDERING that Rule 115 is not applicable to the material now sought to be admitted into evidence, which relates to the Second Ground of Appeal concerned with the ineligibility of one of the members of the Trial Chamber to serve as a Judge of the International Tribunal and not with the guilt or innocence of the Appellant;

CONSIDERING that the Appeals Chamber possesses the competence to receive evidence of this nature, provided that it meets the general criteria for admissibility under sub-Rule 89(C);

[…]

CONSIDERING that points of national law are questions of fact to be decided by the Judges of the International Tribunal;

CONSIDERING that the International Tribunal may receive evidence, including expert evidence, on such questions where relevant;

Download full document
ICTR Rule Rules 89(C);
Rule 115
ICTY Rule Rule 89(C);
Rule 115
Notion(s) Filing Case
Vujin Contempt Appeal Judgement - 31.01.2000 TADIĆ Duško
(IT-94-1-A-R77)

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

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

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

See also paras. 16-17.

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

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

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

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

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

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

26. In the opinion of the Appeals Chamber:

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

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

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

See also paras. 20-23.

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

(A) Any person who

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

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

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

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

commits a contempt of the Tribunal.

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

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

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

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

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

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

(A) Any person who

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

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

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

commits a contempt of the Tribunal.

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

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

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

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

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

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

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

[3] Article 18 (c).

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

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

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

[7] Blaškić Subpoena Decision, par 40.

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

[9] The emphasis has been added.

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

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

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

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

Download full document
ICTR Rule Rule 77 ICTY Rule Rule 77