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| Decision on Appeal of Decision on the Suitability of Referral of a Case - 24.08.2026 |
ROBINSON, Peter (MICT-25-135-AR14.1) |
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13. The Appeals Chamber turns first to the Amicus Curiae’s argument that, by referring the matter for disciplinary proceedings before the California State Bar, the Referral Judge effectively dismissed the criminal charges against Robinson, thereby erroneously substituting his own determination for that of the Single Judge who issued the Order in Lieu of Indictment.[1] Pursuant to Article 1(4)(a) of the Statute, the Mechanism has the power to prosecute any person who knowingly and wilfully has interfered with the administration of justice by the Mechanism, the International Criminal Tribunal for the former Yugoslavia (“ICTY”), or the ICTR, and to hold such person in contempt. In accordance with Article 6(2) of the Statute, it is only after an indictment has been confirmed against a person covered by Article 1(4) of the Statute and prior to the commencement of trial, that the Mechanism shall determine whether the case should be referred to the authorities of a State. It follows that instituting contempt proceedings against a person covered by Article 1(4) of the Statute is a necessary precondition to the possible referral of such a case to the authorities of a State. The boundaries of the Referral Judge’s discretion should necessarily be considered in this procedural context. 14. In the present case, the Single Judge – specifically assigned to assess whether criminal prosecution for contempt or other disciplinary action against Robinson within the Mechanism framework was warranted[2] – decided to charge Robinson with contempt in relation to some of the alleged violations.[3] In relation to other “derivative violations”, he considered it neither necessary nor an efficient use of limited judicial resources to initiate contempt proceedings.[4] The Single Judge opined that a determination whether the “derivative violations” may be subject to disciplinary measures “should be deferred until the conclusion of the contempt proceedings against Robinson” for a decision by the Single Judge assigned to the matter. Subsequently, the President assigned the Referral Judge to, inter alia, conduct the proceedings and determine whether the case should be referred to the authorities of a State and whether the “derivative violations” should be subject to disciplinary measures.[6] Against this background, in deciding to refer the entire case to the authorities of a State for the conduct of disciplinary proceedings, the Referral Judge effectively altered the Single Judge’s decision charging Robinson with contempt of court in relation to some of the alleged violations, thus exceeding the authority conferred upon him. [1] See Appeal [In the Matter of Peter Robinson, Case No.: MICT-25-135-AR14.1, Appeal Brief Regarding Decision to Refer the Case, 8 December 2025], paras. 29-32. [2] See Prosecutor v. Anselme Nzabonimpa et al., Case Nos. MICT-18-116-R90.1 & MICT-18-116-T, Order Assigning a Single Judge to Consider a Matter Pursuant to Rule 90(C), 8 October 2021, p. 1. [3] See supra para. 3. [4] Decision on Allegations of Contempt [Prosecutor v. Anselme Nzabonimpa et al., Case No. MICT-18-116-R90.1, Decision on Allegations of Contempt, 25 February 2025], para. 32. [5] Decision on Allegations of Contempt, paras. 32, 41. [6] Order Assigning Referral Judge, p. 1, referring, inter alia, to Decision on Allegations of Contempt, para. 41. |
IRMCT Statute
Article 1(4) Article 6(2) |
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| Notion(s) | Filing | Case |
| Decision on Appeal of Decision on the Suitability of Referral of a Case - 24.08.2026 |
ROBINSON, Peter (MICT-25-135-AR14.1) |
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17. In considering the referral of a case, Article 6(2) of the Statute requires the Mechanism to determine whether the case should be referred to the authorities of a State: (i) where the crime was committed; (ii) where the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should immediately refer the case “to the appropriate court for trial within that State”. The Statute further mandates the monitoring of cases referred to “national courts” and provides for revocation of a referred case “before the accused is found guilty or acquitted by a national court” when it is clear that the conditions for referral of the case are no longer met and it is in the interests of justice.[1] Notably, the Appeals Chamber has held that if a competent domestic court determines that it does not have jurisdiction to prosecute an accused in relation to a referred contempt case, a formal request for deferral may be made in the interests of justice.[2] Accordingly, the Statute explicitly provides that a referred case shall be tried in criminal proceedings before an appropriate national court. 18. The Appeals Chamber considers the distinction drawn in the Impugned Decision between the referral of a contempt matter and the referral of a case concerning allegations of serious violations of international humanitarian law[3] to be unsupported by the language of the Statute and binding appellate jurisprudence. While the Referral Judge correctly observed that Article 6(2) of the Statute mirrors the language of Rule 11bis of the ICTR and ICTY Rules of Procedure and Evidence regulating the referral of core crimes cases,[4] the inference that the requirements set out therein apply solely to the referral of such cases fails to appreciate the full ambit of Article 6 of the Statute. Article 6(1) of the Statute explicitly provides for the Mechanism’s power to refer to national jurisdictions both cases concerning serious violations of international humanitarian law under Article 1(3) of the Statute, as well as cases concerning contempt of court and false testimony under Article 1(4) of the Statute. There is nothing in the text of Article 6(2) of the Statute implicating a differentiation in standards, or the application thereof, between referral of cases involving persons subject to Article 1(3) of the Statute, and those involving persons subject to Article 1(4) of the Statute. Accordingly, the ordinary meaning to be given to the terms of Article 6(2) of the Statute, in their context, is that the requirement of a criminal trial before an appropriate national court applies equally to referral of allegations of contempt as it does to referral of allegations of serious violations of international humanitarian law.[5] 19. In relation to the Statute’s object and purpose, as the Referral Judge correctly observed, the Statute indicates a strong preference for referral of a contempt case if all relevant conditions are met.[6] The Appeals Chamber has previously interpreted this to mean that “the Mechanism may only exercise jurisdiction [over a contempt case] after it has considered whether the case can be transferred to a national jurisdiction for trial” and that “where a State expresses a willingness and commitment to try a case over which it has jurisdiction […] it should be given the opportunity to do so, provided other relevant factors are satisfied”.[7] It follows that, with the Statute’s strong preference for referral in mind, the requirement of a criminal trial before an appropriate national court with jurisdiction over the case is not limited solely to the referral of cases concerning serious violations of international humanitarian law, but equally applies to the referral of contempt cases. This is also consistent with prior jurisprudence where the requirements set out in Article 6(2) of the Statute have been applied in the context of the referral of contempt cases, involving an examination of whether an adequate legal framework exists in the receiving State criminalizing the accused’s conduct and providing for an adequate penalty structure.[8] The application of the requirements set out in Article 6(2) of the Statute in the context of the referral of contempt cases has also been confirmed by the Appeals Chamber.[9] 20. Given the above, the Appeals Chamber considers that a proper construction of the Statute, in accordance with the ordinary meaning to be given to the terms in their context and in light of its object and purpose, provides that cases, including contempt cases, may only be referred to the authorities of a State for criminal trial before an appropriate national court. The Statute does not vest discretion to refer a contempt case to a State that has no criminal jurisdiction over the alleged conduct. [1] See Articles 6(5), 6(6) of the Statute; Rule 14(C) of the Rules. [2] See Jojić and Radeta Appeal Decision of 12 December 2018[In the Case Against Petar Jojić and Vjerica Radeta, Case No. MICT-17-111-R90, Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia, 12 December 2018], para. 20. See also Article 6(6) of the Statute. [3] See Impugned Decision [In the Matter of Peter Robinson, Case No. MICT-25-135-I, Decision on the Suitability of Referral of the Case, 7 November 2025], para. 14. [4] See, e.g., The Prosecutor v. Phénéas Munyarugarama, Case No. ICTR-02-79-R11bis, Decision on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda, 28 June 2012; The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 28 June 2011; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-PT, Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11 bis, 20 July 2005 (public with confidential annex); Prosecutor v. Radovan Stanković, Case No. IT-96-23-2-PT, Decision on Referral of Case Under Rule 11 bis, 17 May 2005 (partly confidential and ex parte). [5] In the same vein, the Appeals Chamber observes that Rule 90(E) of the Rules provides that the Rules “shall apply mutatis mutandis to proceedings” under Rule 90 of the Rules, which regulates contempt of court. See also Fatuma et al. Appeal Judgement, paras. 93 (“The Appeals Chamber considers that the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond reasonable doubt, a finding of guilt follows. Considering that the Rules apply mutatis mutandis to proceedings under Rule 90 of the Rules, this principle similarly applies to contempt proceedings.”), 94 (“[I]t is well established in the jurisprudence that ‘a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person’. While this principle emanates from jurisprudence concerning the crimes covered by Article 1(1) of the Statute, the Appeals Chamber sees nothing to suggest that the obligation of a single judge to enter a conviction does not equally apply to the crime of contempt, once all the elements of the crime have been proven.”). [6] See Jojić and Radeta Appeal Decision of 12 December 2018, para. 11. See also Impugned Decision, para. 10. [7] Jojić and Radeta Appeal Decision of 12 December 2018, paras. 11, 21 (emphasis added). [8] See, e.g., In the Matter of François Ngirabatware, Case No. MICT-24-131-I, Decision on the Suitability of Referral of the Case, 17 September 2024, pp. 3-5; Prosecutor v. Vojislav Šešelj et al., Case No. MICT-23-129-I, Decision on Referral of the Case to the Republic of Serbia, 29 February 2024, paras. 9-19; In the Case Against Petar Jojić and Vjerica Radeta, Case No. MICT-17-111-R90, Public Redacted Version of the 12 June 2018 Order Referring a Case to the Republic of Serbia, 12 June 2018, pp. 2, 4. [9] Jojić and Radeta Appeal Decision of 12 December 2018, paras. 12, 14-21. |
IRMCT Statute
Article 1(3) Article 1(4) Article 6(2) |
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| Decision on Prosecution Appeal or Motion for Reconsideration Concerning Félicien Kabuga’s Release - 28.04.2026 |
KABUGA Félicien (MICT-13-38-AR80.4) |
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11. The Appeals Chamber recalls that it has inherent jurisdiction over the enforcement of its orders and any decision rendered as a consequence thereof.[1] In the Decision of 7 August 2023, the Appeals Chamber remanded the matter to the Trial Chamber with an instruction to, inter alia, expeditiously address the issue of Kabuga’s detention on remand.[2] Having acknowledged that identifying a State that will accept Kabuga on its territory may present obstacles, the Appeals Chamber emphasized that such a consideration may not be the basis for Kabuga’s continuous detention on remand, pursuant to an order of the Mechanism.[3] It therefore invited the Trial Chamber to expeditiously consider the appropriate modalities and conditions for his release.[4] The Impugned Decision is directly related to the implementation of the Appeals Chamber’s instruction to this effect. Accordingly, the Appeals Chamber finds that it has inherent jurisdiction to consider the Appeal.
[1] See In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12. [2] [Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-AR80.3, Decision on Appeals of Further Decision on Félicien Kabuga’s Fitness to Stand Trial, 7 August 2023 (“Decision of 7 August 2023”)], para. 79. [3] Decision of 7 August 2023, para. 76. [4] Decision of 7 August 2023, paras. 76, 79. |
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| Decision on Prosecution Appeal or Motion for Reconsideration Concerning Félicien Kabuga’s Release - 28.04.2026 |
KABUGA Félicien (MICT-13-38-AR80.4) |
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13. Pursuant to paragraph 16 of the Practice Direction [on Length of Briefs and Motions, MICT/11/Rev.1, 20 February 2019], an appendix or book of authorities that contains references or other non-argumentative material does not count towards the word limit. Accordingly, the glossary, which identifies the short form references used in the Prosecution Submission, is excluded from the word limit. The confidential annex to the Prosecution Submission provides the citation of confidential references, accompanied by either a quotation or a summary of the relevant text.[1] The Appeals Chamber does not consider the annex argumentative in nature and is satisfied with the Prosecution’s explanation that it was filed separately for reasons of confidentiality.[2] [1] [Footnote omitted] [2] [Footnote omitted] |
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| Decision on Prosecution Appeal or Motion for Reconsideration Concerning Félicien Kabuga’s Release - 28.04.2026 |
KABUGA Félicien (MICT-13-38-AR80.4) |
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24. The Appeals Chamber turns next to the Prosecution’s argument that the Trial Chamber erroneously interpreted the Mechanism’s duty of care towards Kabuga as significantly higher than that required by relevant human rights standards. The authorities cited by the Prosecution in support of its submission concern cases that are distinguishable from the present one, in that they prescribe that States may not remove an individual from their territory if: (i) there is a real risk of irreparable harm to that individual as a result of human rights violations in the “country to which removal is to be effected or in any country to which the person may subsequently be removed”, or (ii) the individual is suffering from serious illness and is either at imminent risk of dying or would face a real risk on account of the absence of, or access to, appropriate treatment in the “receiving country” or “country of origin”. [2] In relation to Kabuga, however, the Trial Chamber did not base its conclusion on Rwanda’s capacity to provide safety or adequate care to Kabuga. Instead, its consideration was exclusively focused on whether Kabuga may be transported to Rwanda by air, without the flight itself posing a clear and substantial risk to his life.[4] 25. Nevertheless, the authorities cited by the Prosecution centre on the protection of the fundamental rights to life and to not being subjected to torture or cruel, inhuman or degrading treatment or punishment enshrined in Articles 6(1) and 7 of the International Covenant on Civil and Political Rights (“ICCPR”) and in Articles 2(1) and 3 of the European Convention on Human Rights (“ECHR”).[5] The Appeals Chamber observes that, in deciding whether Kabuga can be released to Rwanda, the Trial Chamber recalled that the Mechanism’s “duty of care” requires it to ensure the welfare of released persons, including enquiring whether their life would be at risk upon relocation.[6] The Trial Chamber opined that, in the context of this case, it must satisfy itself that travel to Rwanda “would not place [Kabuga’s] life at significant risk”.[7] Having found that flying Kabuga to Rwanda “would pose a clear and substantial risk to [his] life”, the Trial Chamber concluded that ordering Kabuga’s release in Rwanda is “incompatible with the Mechanism’s duty of care to him”.[8] The Prosecution fails to demonstrate that the Trial Chamber erroneously interpreted the Mechanism’s duty of care towards Kabuga as significantly higher than that required by relevant human rights standards. [1] [Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-AR80.4, Prosecution Appeal or Motion for Reconsideration Concerning Kabuga’s Release, 28 November 2025 (public with confidential annex) (“Prosecution Submission”)], para. 10. [2] Prosecution Submission, para. 10, nn. 31-33, referring, inter alia, to J, K, L, and M v. Sweden, CCPR/C/140/D/2936/2017, Decision Adopted by the Committee under the Optional Protocol, Concerning Communication No. 2936/2017, 1 May 2024 (“Sweden Case”), paras. 6.1, 7.5, 7.7, General Comment No. 31, CCPR/C/21/Rev.1/Add. 13, The Nature of the General Legal Obligation Imposed on State Parties to the Covenant, 26 May 2004 (“General Comment No. 31”), para. 12, A.R.J v. Australia, CCPR/C/60/D/692/1996, Views, Communication No. 692/1996, 11 August 1997 (“Australia Case”), para. 6.8, Case of Savran v. Denmark, Application No. 57467/15, Judgment, 7 December 2021 (“Savran v. Denmark”), para. 134, Case of Paposhvili v. Belgium, Application No. 41738/10, Judgment, 13 December 2016 (“Paposhvili v. Belgium”), para. 183, Case of A.S. v. Switzerland, Application No. 39350/13, Judgment, 30 September 2015 (“A.S. v. Switzerland”), para. 31. [3] See [Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Decision of Félicien Kabuga’s Fitness to Travel to Rwanda, 14 November 2025 (“Impugned Decision”)], para. 31. [4] See Impugned Decision, paras. 30, 31. [5] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953). See Prosecution Submission, para. 10, referring, inter alia, to General Comment No. 31, para. 12 (requiring States Parties to respect the obligation “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the [ICCPR], either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.”), Sweden Case, para. 7.5 (“The [Human Rights] Committee recalls its [G]eneral [C]omment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the [ICCPR], in which it refers to the obligation of States parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the [ICCPR] (para. 12). According to the jurisprudence of the Committee, the risk must be personal, and there is a high threshold for providing substantial grounds to establish the existence of a real risk of irreparable harm. […].”), Australia Case, para. 6.8 (“What is at issue in this case is whether by deporting Mr. J. to Iran, Australia exposes him to a real risk (that is, a necessary and foreseeable consequence) of a violation of his rights under the [ICCPR]. […]. The right to life is the most fundamental of these rights.”), Paposhvili v. Belgium, para. 183 (“The [European Court of Human Rights (“ECtHR”)] considers that the ‘other very exceptional cases’ […] which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The [ECtHR] points out that these situations correspond to a high threshold for the application of Article 3 of the [ECHR] in cases concerning the removal of aliens suffering from serious illness.”), A.S. v. Switzerland, para. 31 (“With regard to the expulsion of seriously ill persons, […] [t]he fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to a breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may rise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.”), Savran v. Denmark, para. 134 (“[T]he [ECtHR] reiterates that the evidence adduced must be ‘capable of demonstrating that there are substantial grounds’ for believing that as a ‘seriously ill person’, the applicant ‘would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’ […].”). [6] Impugned Decision, para. 23, referring to In the Matter of Emmanuel Rukundo, Case No. MICT-23-128, Decision on Appeal of a Decision on Request for Temporary Humanitarian Aid, 15 August 2023, para. 22, In the Matter of Ferdinand Nahimana, Case No. MICT-23-127, Corrigendum to “Decision on an Appeal of a Decision on Request for Temporary Humanitarian Aid” Issued on 2 August 2023, 4 August 2023, para. 20, In the Matter of François-Xavier Nzuwonemeye et al., Case No. MICT-22-124, Decision on Motions to Appeal Decision of 8 March 2022, for Reconsideration of Decision of 15 March 2022, and to Appear as Amicus Curiae, 27 May 2022, para. 24, See also In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III of 15 May 2008, 18 November 2008, para. 19. [7] Impugned Decision, para. 23. [8] Impugned Decision, para. 30. |
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| Decision on Fulgence Kayishema’s Appeal Against Decisions on Defence Requests for Revocation of Referral and Assignment of Counsel - 24.03.2026 |
KAYISHEMA Fulgence (MICT-12-23) |
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20. […] [T]he Trial Chamber correctly relied on Articles 1(3) and 6(1) of the Statute,[1] […] The two provisions, which are to be read in conjunction,[2] demonstrate an indisputable preference for the referral of cases involving persons covered by Article 1(3) of the Statute to national jurisdictions. […] [1] First Impugned Decision [Prosecutor v. Fulgence Kayishema, Case No. MICT-MICT-12-23-R14.1. Decision on Fulgence Kayishema’s Requests for Revocation of Referral and Assignment of Counsel”, 29 October 2025], p. 6, n. 37. [2] See Article 1(3) of the Statute, which contains an explicit reference to Article 6 of the Statute. |
IRMCT Rule Rule 14 | |
| Notion(s) | Filing | Case |
| Decision on Fulgence Kayishema’s Appeal Against Decisions on Defence Requests for Revocation of Referral and Assignment of Counsel - 24.03.2026 |
KAYISHEMA Fulgence (MICT-12-23) |
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22. […] It is well established that the principle of equality of arms requires a trial chamber to ensure that neither party is put at a disadvantage when presenting its case.[1] It does not require, however, material equality between the parties in terms of financial or human resources.[2] […] [1] Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Judgement, 20 October 2010 (“Kalimanzira Appeal Judgement”), para. 34 and references cited therein. [2] See, e.g., Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Judgement, 20 March 2019, para. 147; Kalimanzira Appeal Judgement, para. 34 and references cited therein. |
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| Decision on Fulgence Kayishema’s Appeal Against Decisions on Defence Requests for Revocation of Referral and Assignment of Counsel - 24.03.2026 |
KAYISHEMA Fulgence (MICT-12-23) |
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24. […] The Trial Chamber correctly articulated the applicable law in that the Mechanism’s role is primarily to determine whether the conditions for a fair trial in the domestic jurisdiction no longer exist, and that revocation is a safeguard and remedy of last resort.[1] The Trial Chamber was also cognizant that the existence of domestic remedies for any procedural irregularities in the national proceedings, or the lack thereof, is relevant to the consideration of a revocation request.[2]
[1] First Impugned Decision, p. 6, referring to Referral Decision [The Prosecutor v. Fulgence Kayishema, Case No. ICTR-2001-67-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 22 February 2012], para. 157; Uwinkindi Decision of 4 October 2016 [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-AR14.1, Decision on an Appeal Concerning a Request for Revocation of a Referral, 4 October 2016], para. 12. [2] First Impugned Decision, p. 6, referring to Uwinkindi Decision of 4 October 2016, para. 13. |
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| Decision on Félicien Kabuga’s Request for Translation and Extension of Time - 30.12.2025 |
KABUGA Félicien (MICT-13-38-AR80.4) |
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Page 2 CONSIDERING that, unless otherwise stipulated, responses to appeal-related motions, including requests to reconsider decisions on appeal, shall be filed within ten days of the filing of the motion;[1] CONSIDERING that, unless otherwise stipulated, the recipient of a filing is deemed notified of the filing on the day the filing is electronically distributed by the Registry,[2] and that the calculation of the time limit has been found to run from the date of distribution;[3] […] EMPHASISING that the Mechanism’s deadlines are essential to ensure that proceedings are conducted in a fair and expeditious manner, and that parties are expected to plan and allocate resources as may be appropriate to comply with the prescribed timelines;[4]
[1] See Practice Direction on Requirements and Procedures for Appeals, MICT/10/Rev.1, 20 February 2019 (“Practice Direction on Appeals”), paras. 15, 19, 23, 26; Rule 153(B) of the Rules; Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Public Redacted Version of the “Decision on a Motion for Reconsideration and Certification to Appeal Decision on a Request for Provisional Release” Filed on 22 May 2018, 8 June 2018 (“Mladić Decision of 8 June 2018”), p. 2, n. 12. [2] Practice Direction on Judicial Records, MICT/42, 25 May 2023, para. 17(3). [3] See Mladić Decision of 8 June 2018, n. 12. See also Practice Direction on Appeals, para. 28. [4] See Prosecutor v. Gérard Ntakirutimana, Case No. MICT-12-17-R, Decision on Gérard Ntakirutimana’s Request for an Extension of Time to File a Reply, 6 March 2024, p. 3; Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. MICT-15-96-A, Decision on Prosecution Motion for Extension of Time to File Reply Briefs, 4 February 2022, p. 2 and references cited therein. |
IRMCT Rule Rule 153(B) Other instruments Practice Direction on Requirements and Procedures for Appeals | |
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| Decision on Prosecution Motion for Registry Information - 13.11.2024 |
NTAKIRUTIMANA, Gérard (MICT-12-17-R) |
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Page 2 RECALLING that, pursuant to Rule 55 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), at the request of either a party or proprio motu, a Judge or a Trial Chamber may issue such orders as may be necessary for the purposes of an investigation or for the preparation or conduct of trial, and that this provision applies mutatis mutandis to proceedings in the Appeals Chamber;[1] CONSIDERING that an order pursuant to Rule 55 of the Rules is “necessary” where the Prosecution demonstrates a reasonable basis for its belief that there is a good chance that the information sought will likely assist its case materially in relation to clearly identified issues relevant to the [] Review Hearing;[2] [1] See Rule 131 of the Rules; Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Krstić Decision of 1 July 2003”), para. 2. See also Prosecutor v. Radovan Karadžić, Case No. MICT‑13‑55‑A, Judgement, 20 March 2019 (confidential; public redacted version filed on the same date) (“Karadžić Appeal Judgement”), paras. 148, 277. [2] See Krstić Decision of 1 July 2003, para. 10 (wherein the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia stated that an order would become “necessary” where a “legitimate forensic purpose” is shown, and that “[a]n applicant […] before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the forthcoming trial”). See also Karadžić Appeal Judgement, paras. 148, 277, referring to, inter alia, Prosecutor v. Sefer Halilović, Case No. IT-01-48-AR73, Decision on the Issuance of Subpoenas, 21 June 2004, paras. 6. 7. |
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| Decision on Prosecution Appeal of Decision on Reconsideration of Reclassification - 01.10.2024 |
KAYISHEMA Fulgence (MICT-12-23-AR53) |
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11. The Appeals Chamber considers that the decision of a single judge concerning reclassification of filings is a discretionary one to which the Appeals Chamber must accord deference.[1] […] [1]See Prosecutor v. Maximilien Turinabo et al., Prosecutor v. Augustin Ngirabatware, Prosecutor v. Jean de Dieu Kamuhanda, Case Nos. MICT-18-116-AR80.1, MICT-12-29-R, MICT-13-33, Decision on Appeals of the Decision in Relation to Material Seized from Dick Prudence Munyeshuli, 19 August 2019 (“Munyeshuli Decision of 19 August 2019”), para. 24. See also Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.5, Decision on Vojislav Šešelj’s Interlocutory Appeal Against the Trial Chamber’s Decision on Form of Disclosure, 17 April 2007, para. 14 (wherein the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia recalled that trial chambers “exercise discretion in many different situations, including ‘when deciding points of practice or procedure’”). |
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| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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24. The Appeals Chamber further recalls that an accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer.[1] Processing the wealth of complex information, inherent in international criminal proceedings, is the role of defence counsel in order to advise their clients.[2] Indeed, the standard of fitness to stand trial indicates that “a defendant may sometimes require assistance to participate in the proceedings”.[3] […] 28. […]The Appeals Chamber recalls that an accused’s ability to meaningfully participate in trial is contingent on whether he or she possesses the mental capacity to communicate, and thus consult, with counsel.[4] Indeed, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) has expressly acknowledged that an accused’s capacity to instruct counsel is among a non-exhaustive list of rights “essential for determination of an accused’s fitness to stand trial”.[5] […]. [1] Strugar Appeal Judgement, para. 60. [2] Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Public Redacted Version of the “Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings” Filed on 30 April 2018, 8 June 2018 (“Mladić Decision of 8 June 2018”), p. 3; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), para. 22; Strugar Appeal Judgement, para. 60 (wherein the Appeals Chamber of the ICTY held that “[e]ven persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”). [3] Popović et al. Decision of 16 January 2013, para. 22. [4] Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11. See also Popović et al. Decision of 16 May 2011, para. 14. [5] Strugar Appeal Judgement, paras. 41, 55. |
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| Notion(s) | Filing | Case |
| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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58. [T]he Appeals Chamber recalls that, in principle, trial chambers enjoy considerable discretion in relation to the management of proceedings before them.[1] Such discretion is exercised in a plethora of circumstances, for instance, in relation to the joinder of cases, the scheduling of trials, the admission and evaluation of evidence, in deciding points of practice and procedure, including in assignment of counsel, in determining whether an accused should be granted provisional release, and in imposing a sentence.[2] The unprecedented nature of a procedure, which is neither expressly allowed for nor specifically prohibited in the Statute or the Rules, does not per se indicate that such procedure falls outside a trial chamber’s discretionary power.[3] 59. In the present case, relying on its discretion to manage the proceedings before it, the Trial Chamber decided to adopt “an alternative finding procedure that resembles a trial as closely as possible”.[4] The Trial Chamber explained that, in the course of this procedure: (i) Kabuga’s attendance would be unnecessary due to his lack of fitness to participate effectively in the trial coupled with the fact that the procedure will not result in a conviction;[5] and (ii) the Prosecution would retain the burden to prove beyond reasonable doubt both the actus reus and mens rea elements of each charge against Kabuga.[6] The Appeals Chamber considers that, although seemingly procedural in nature, the essential elements of the “alternative finding procedure”, as defined by the Trial Chamber, impact Kabuga’s substantive rights “in the sense of there being a legitimate expectation to be tried in a certain way in order to achieve the fundamental objective of a fair trial”.[7] The Appeals Chamber therefore considers that whether the Trial Chamber is vested with discretion to conduct such an “alternative finding procedure” in lieu of a trial is ultimately a question of statutory interpretation.[8] 60. The Appeals Chamber recalls that the Statute is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in light of its object and purpose.[9] Turning first to the terms of the Statute […]. 61. The Appeals Chamber considers that a proper construction of the Statute, in accordance with the ordinary meaning to be given to the terms in their context, provides for the conduct of trials, without the possibility of conducting procedures that merely resemble trials in lieu of such trials.[10] This interpretation is also consistent with the object and purpose of the Statute as envisaged in United Nations Security Council Resolution 1966, in which the United Nations Security Council reaffirmed the need for the establishment of the Mechanism to carry out a number of essential functions of the ICTR, including “the trial of fugitives who are among the most senior leaders suspected of being most responsible for crimes”.[11] 62. The Appeals Chamber further recalls that the Statute and the Rules of the Mechanism reflect normative continuity with the statutes and rules of procedure and evidence of the ICTR and the ICTY.[12] In establishing the ICTR and adopting its statute, the United Nations Security Council appears to have intended to give the ICTR jurisdiction to prosecute persons responsible for serious violation of international humanitarian law through the conduct of trials.[13] […] 63. The Appeals Chamber echoes the Trial Chamber’s emphasis on the purpose for which the ICTR was established, which includes contributing to the process of national reconciliation in Rwanda and to the restoration and maintenance of peace.[14] Indeed, the United Nations Security Council unequivocally expressed its conviction in this regard when adopting the Statute of the ICTR (“ICTR Statute”), which is also reflected in the statements of various delegates at the meeting, who supported the establishment of the ad hoc tribunal as an instrument of national reconciliation.[15] Notwithstanding, a holistic reading of the relevant United Nations Security Council resolutions concerning the establishment of the ICTR and the Mechanism reflects that the framers intended to effect these goals through combating impunity by way of creating tribunals that would investigate, prosecute, and conduct proceedings, for the “sole purpose” of holding individuals criminally accountable for serious violations of international humanitarian law.[16] It is pertinent to recall in this regard that the fundamental mandate of the Mechanism 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.[17] [1] See, e.g., Stanišić and Simatović Appeal Judgement, para. 295; Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Judgement, 8 June 2021 (public redacted) (“Mladić Appeal Judgement”), para. 107; Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Judgement, 20 March 2019 (public redacted) (“Karadžić Appeal Judgement”), para. 72. [2] See, e.g., Stanišić and Simatović Appeal Judgement, paras. 288, 320; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-AR80.2, Decision on an Appeal of a Decision on Félicien Kabuga’s Representation, 4 November 2022, para. 16; Mladić Appeal Judgement, paras. 84, 539; Karadžić Appeal Judgement, para. 198; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 29; Prosecutor v. Slobodan Milošević, Case No. IT-99-37-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 3. [3] Cf. Stanišić and Simatović Appeal Judgement, paras. 583, 592; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.11, Decision on Appeal Against the Decision on the Accused’s Motion to Subpoena Zdravko Tolimir, 13 November 2013, para. 47; The Prosecutor v. Arséne Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73, Decision on “Appeal of Accused Arséne Shalom Ntahobali Against the Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 27 October 2006, para. 12. [4] Impugned Decision [Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Further Decision on Félicien Kabuga’s Fitness to Stand Trial, 6 June 2023], paras. 45, 57. [5] Impugned Decision, para. 58. [6] Impugned Decision, para. 57. [7] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis(D), 24 September 2003, para. 12. [8] See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”), para. 98 (wherein, in discussing a question not expressly provided in its statute, the Appeals Chamber of the ICTY held that “[r]eferences to the law and practice in various countries and in international institutions are not necessarily determinative of the question as to the applicable law” and that “[u]ltimately, that question must be answered by an examination of the [ICTY] Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and theology) set out in the 1969 Vienna Convention on the Law of Treaties”). [9] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 2137, referring to Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331. See also Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, paras. 67, 68; Aleksovski Appeal Judgement, para. 98; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”), para. 282. [10] See Impugned Decision, para. 57 (wherein the Trial Chamber decided to adopt “an alternative finding procedure that resembles a trial as closely as possible”). [11] United Nations Security Council, Resolution 1966 (2010), U.N. Doc. S/RES/1966(2010), 22 December 2010 (“UNSC Resolution 1966 (2010)”), p. 1 (emphasis added). [12] Augustin Ngirabatware v. The Prosecutor, Case No. MICT-12-29-A, Judgement, 18 December 2014 (“Ngirabatware Appeal Judgement”), para. 6, referring to Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”), para. 5. [13] Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc S/25704, 3 May 1993 (“Secretary-General’s Report of 3 May 1993”), paras. 16, 99-107 (emphasis added). [14] See Impugned Decision, paras. 45, 51. See also UNSC Resolution 955 (1994), p. 1; UNSC Resolution 1966 (2010), p. 1. [15] See UNSC Resolution 1966 (2010), p. 1. See also, e.g., UN Doc. S/PV.3453 (8 November 1994), pp. 6, 8, 10, 12. [16] UNSC Resolution 1966 (2010), p. 1; UNSC Resolution 955 (1994), pp. 1, 2. See also United Nations Security Council Resolution 827 (1993), U.N. Doc. S/RES/827(1993), pp. 1, 2. [17] See Aleksovski Appeal Judgement, para. 113 (ii). |
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| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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64. The Appeals Chamber further recalls that it is bound to interpret the Statute and the Rules of the Mechanism in a manner consistent with the jurisprudence of the ICTR and the ICTY.[1] Mindful of its obligation in this regard, the Appeals Chamber observes that the elements of the “alternative finding procedure”, as defined by the Trial Chamber, appear to circumvent certain statutory guarantees afforded to all accused appearing before the Mechanism. In particular, the Trial Chamber’s conclusion that Kabuga’s attendance would be unnecessary in the course of the “alternative finding procedure” appears incompatible with the plain reading of Article 19(4)(d) of the Statute, which provides accused appearing before the Mechanism with the right to be tried in their presence. Binding jurisprudence has interpreted this statutory guarantee to mean that an accused has the right to be physically present at trial.[2] The Appeals Chamber has emphasized that the accused’s right to be tried in his or her presence is an “indispensable cornerstone of justice” and that the physical presence of an accused before the court, as a general rule, is one of the most basic and common precepts of a fair criminal trial.[3] 65. The Appeals Chamber is cognizant that the right of an accused to be present at trial is not absolute as it may be waived or forfeited by the accused or otherwise restricted based on substantial trial disruptions on the part of an accused that are unintentional in nature.[4] However, in assessing a particular limitation on the right of an accused to be physically present, trial chambers are required to take into account the proportionality principle, pursuant to which any restriction of a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.[5] The Appeals Chamber considers that, under the Mechanism’s legal framework, this assessment can be made only in relation to an accused who is fit to stand trial.[6] For to continue a trial against an unfit accused is to deny him or her the statutory guarantee to be tried in his or her presence.[7] Indeed, the Appeals Chamber of the ICTY and the ICTR has cautioned against holding proceedings in the absence of an accused falling under the primary jurisdiction of the ad hoc tribunals, unless the accused has waived his or her right to be present.[8] Combined with the inability of an unfit accused to instruct counsel,[9] the jurisprudence is clear that the prejudice to an accused resulting from continuing the trial, while he or she is unfit to stand, would amount to a miscarriage of justice.[10] 66. The Appeals Chamber further notes that, under the “alternative finding procedure”, the Prosecution would be required to prove beyond reasonable doubt both the actus reus and mens rea of the charged crimes without, however, the possibility of Kabuga being convicted.[11] The Appeals Chamber recalls that, under Rule 104 of the Rules, upon completion of the presentation of the parties’ cases, a trial chamber must deliberate and decide separately on each charge contained in the indictment on whether it is satisfied that guilt has been proven beyond reasonable doubt, and shall impose a sentence in respect of each finding of guilt if it finds the accused guilty on one or more of the charges. As the Appeals Chamber has previously held, the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond a reasonable doubt, a finding of guilt follows.[12] The jurisprudence is clear that “a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[13] The “alternative finding procedure”, as delineated by the Trial Chamber, appears incompatible with this requirement. In addition, while the difference between a trial resulting in a conviction and proceedings in which all elements of the offence are proven but no conviction entered may appear marginal on its face, the second scenario essentially runs counter to the prohibition of holding trials in absentia.[14] The Appeals Chamber recalls that trials in absentia were intentionally excluded from the statutory framework of the Mechanism and its predecessor tribunals.[15] 67. The incompatibility of the “alternative finding procedure” with the existing Mechanism’s legal framework is also highlighted by the potential consequence that, if Kabuga were to be found responsible for the charged crimes but not convicted, he would be precluded from challenging such finding on appeal or from seeking a review. Significantly, under Articles 23 and 24 of the Statute, such remedies are afforded only to convicted persons and the Prosecution. It is uncertain in these circumstances how, under the “alternative finding procedure”, the accused’s right to an effective remedy would be ensured.[16] […] [1] Ngirabatware Appeal Judgement, para. 6; Munyarugarama Decision of 5 October 2012, para. 6. [2] See Hadžić Decision of 4 March 2016, para. 8; Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision on Future Course of Proceedings, 16 May 2008 (“Stanišić and Simatović Decision of 16 May 2008”), para. 6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision of 30 October 2006”), paras. 11-13. [3] Zigiranyirazo Decision of 30 October 2006, paras. 8, 11, referring to Milošević Decision of 1 November 2004 [Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004], paras. 11, 13. [4] Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision of 16 May 2008, paras. 6, 15; Zigiranyirazo Decision of 30 October 2006, para. 14. The Appeals Chamber notes that the right of an accused who is fit to stand trial to be present can be restricted on the basis of substantial trial disruptions, which need not be intentional. See Milošević Decision of 1 November 2004, para. 14, n. 42 (wherein the Appeals Chamber of the ICTY considered the assignment of counsel to an accused who was considered fit to stand trial but “whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work”). [5] See Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Decision on the Scheduling of the Appeal Hearing and a Status Conference, 17 July 2020, para. 15; Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision of 16 May 2008, para. 6; Zigiranyirazo Decision of 30 October 2006, para. 14. [6] See Hadžić Decision of 4 March 2016, para. 31 (wherein the Appeals Chamber of the ICTY invited the trial chamber to “reassess, based on the available and updated medical records, whether Hadžić is fit for trial, and if it finds this to be the case”, it ordered the trial chamber to “assess all reasonably available modalities for continuing the trial under the proportionality principle” (emphasis added)). [7] See Zigiranyirazo Decision of 30 October 2006, para. 11 (wherein the Appeal Chamber of the ICTR held that the physical presence of an accused before the ICTR “as a general rule, is one of the most basic and common precepts of a fair criminal trial”). [8] See Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010, n. 19; Nahimana et al. Appeal Judgement [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (original filed in French, English translation filed on 16 May 2008)], paras. 96-109 and references cited therein; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Decision of 29 October 1997”), para. 59. [9] See Popović et al. Decision of 16 May 2011, para. 11; Zigiranyirazo Decision of 30 October 2006, para. 21 (wherein the Appeals Chamber of the ICTR held that the attempts of the trial chamber in that case “to give full respect to both the right to counsel and the principle of equality of arms do not compensate for the failure to accord the accused what is a separate and distinct minimum guarantee: the right to be present at his own trial”). Moreover, it is in circumstances where an accused’s refusal to communicate or instruct counsel frustrates the fair and expeditious trial that “[w]hat is required of counsel is that they act in what they perceive to be the best interests of the Accused” and that this “is […] all that can be reasonably expected of counsel in such circumstances”. See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 45. [10] Strugar Appeal Judgement, para. 34 (wherein the Appeals Chamber of the ICTY considered that the issue of an accused’s fitness to stand trial is of such importance that the immediate resolution by the Appeals Chamber of any question of fitness would appear to be essential as “the prejudice to the accused resulting from continuing the trial while he or she is unfit to stand trial would amount to a miscarriage of justice”). [11] Impugned Decision, para. 57. [12] See Prosecutor v. Marie Rose Fatuma et al., Case No. MICT-18-116-A, Judgement, 29 June 2022, para. 93. [13] See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Judgement, 29 November 2017, para. 399; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 538; Jean Baptiste Gatete v. The Prosecutor, Case No. ICTR-00-61-A, Judgement, 9 October 2012, para. 261. See also Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 711, referring, inter alia, to Strugar Appeal Judgement, para. 324, citing Stakić Appeal Judgement [Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement, 22 March 2006], para. 358. [14] See supra paras. 64 [Impugned Decision, nn. 65, 79, 124, referring, inter alia, to Witness Mezey, T. 23 March pp. 9-12, Witness Kennedy, T. 15 March 2023 p. 7, First Joint Monitoring Report, p. 4 (confirming that there was “evidence of vascular disease affecting the brain and previous cerebrovascular accidents, evidenced on the MRI by patchy ischemic and other age related changes to Mr. Kabuga’s brain”). See also Decision of 13 June 2022, para. 25], 65 [Impugned Decision, nn. 76, 78, 79, 124, 151, referring, inter alia, to Witness Kennedy, T. 15 March 2023 p. 7, Witness Mezey, T. 23 March 2023 p. 10, First Joint Monitoring Report, p. 4, Joint Statement of Dr. Kennedy and Dr. Mezey, 16 May 2022, p. 2. See also Decision of 13 June 2022, paras. 14, 15, 25, 35, 50, referring, inter alia, to Dr. Mezey’s Report of 28 January 2022, pp. 19, 20, paras. 53, 56, 57, 64, Witness Mezey, T. 1 June 2022 pp. 4, 5]. [15] See Secretary-General’s Report of 3 May 1993, para. 101 (stating that “[t]here is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence” (internal reference omitted)). [16] See Article 14(5) of the International Covenant on Civil and Political Rights. See also Articles 13 and 14 of the Convention on the Rights of Persons with Disabilities. |
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| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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68. […] [T]he Appeals Chamber finds that neither the Statute nor the jurisprudence of the Mechanism and its predecessor tribunals allow for the conduct of an “alternative finding procedure”, as defined by the Trial Chamber, in lieu of a trial. […] The Appeals Chamber observes that treaty provisions and state legislative practice, while of significance, are not necessarily determinative of the scope of the Mechanism’s jurisdiction. It is the Statute, as the constitutive instrument of the Mechanism, that defines the scope and limits of its mandate and can only be amended or derogated by means of a United Nations Security Council resolution.[1] 69. The Appeals Chamber is further not persuaded by the Prosecution’s argument that the “alternative finding procedure” falls within the Mechanism’s inherent powers to issue such rulings as necessary to exercise its express jurisdiction.[2] As recalled above, the Statute, as the constitutive instrument of the Mechanism, defines the scope and limits of the Mechanism’s substantive jurisdiction as set out in Articles 1 to 7 of the ICTR Statute.[3] As with the statutes of its predecessor tribunals, the Appeals Chamber recognizes that the Statute of the Mechanism “is not and does not purport to be […] a meticulously detailed code providing explicitly for every possible scenario and every solution, thereto” and that it sets out in general terms the jurisdictional framework within which the Mechanism has been mandated to operate.[4] Included in this framework is the inherent jurisdiction to ensure that its exercise of judicial functions is safeguarded.[5] In this regard, it has been indeed recognized that judges are not limited strictly and narrowly to the text of the Rules in carrying out their mandateand have the inherent authority to render orders that are reasonably related to the task before them and that derives automatically from the exercise of the judicial function.[6] 70. The Appeals Chamber notes that, in support of its submission, the Prosecution points to the authority of the Mechanism’s predecessor tribunals in adjudicating joint criminal enterprise liability and allegations of contempt, despite the fact that the two notions were not expressly prescribed in their respective statutes and/or rules of procedure and evidence.[7] The Appeals Chamber recalls, however, that the authority to exercise jurisdiction over joint criminal enterprise liability falls within the ICTR’s substantive jurisdiction, prescribed under Article 6(1) of the ICTR Statute, to hold individuals criminally responsible for “committing” crimes referred to in Articles 2 to 4 of the ICTR Statute.[8] As for the authority to exercise jurisdiction over allegations of contempt, the Appeals Chamber recalls that the inherent jurisdiction of the ad hoc tribunals in this respect is derived from their judicial function to ensure that the exercise of jurisdiction, which was expressly given to them by their respective statutes, was not frustrated and that their basic judicial functions were safeguarded.[9] 71. As explained above, the Statute does not expressly give the Mechanism jurisdiction to conduct proceedings other than trial, appellate, and review proceedings.[10] In accordance with the principle ubi lex voluit dixit, had the drafters of the Statute intended to vest the Mechanism with the power to conduct proceedings similar to trials, they would have expressly provided for it. The Appeals Chamber considers that, in the case of an international criminal tribunal, this is not a power that can be regarded as inherent to its function.[11] [1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, 12 October 2009 (“Karadžić Decision 12 October 2009”), paras. 34-36 (concerning the statute of the ICTY). [2] See Prosecution Response, para. 12. [3] Article 1(1) of the Statute. See also Karadžić Decision 12 October 2009, para. 34. [4] Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003 (“Milutinović et al. Decision of 21 May 2003”), para. 18. [5] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgement on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Nobilo Contempt Appeal Judgement”), para. 30. [6] See Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Decision of 1 September 2005”), para. 51, nn. 97, 98 (stating that the ICTY’s inherent authority includes, for instance, the power to examine its own jurisdiction, to admit evidence on appeal even if it was available at trial in cases where its exclusion would lead to a miscarriage of justice, and to hold persons in contempt to ensure the fairness of the proceedings and to provide for the proper administration of justice), referring to Nobilo Contempt Appeal Judgement, para. 30, Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 November 2000, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 14. [7] See Prosecution Response, para. 12. [8] See Milutinović et al. Decision of 21 May 2003, paras. 18-20 (concerning equivalent Article 7(1) of the Statute of the ICTY). See also The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. ICTR-96-10-A & ICTR-96-17-A, Judgement, 13 December 2004, paras. 461, 462, 468 (wherein the Appeals Chamber of the ICTR noted that: “while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY this is only the second ICTR case in which the Appeals Chamber has been called upon to address this issue. Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute.”); Tadić Appeal Judgement, paras. 186-194, 226. [9] See Prosecutor v. Duško Tadić, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, paras. 13, 18. [10] See Articles 18, 23, and 24 of the Statute. [11] Cf. Blaškić Decision of 29 October 1997, para. 25 (concerning the power of the ICTY to issue subpoenas to States, which is not expressly provided in its statute). |
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| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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74. Having upheld the Trial Chamber’s finding that Kabuga is not fit to stand trial and that it is very unlikely he would regain fitness in the future,[1] the Appeals Chamber considers that the most appropriate way to proceed in the circumstances of the present case is to remand the matter to the Trial Chamber with an instruction to impose an indefinite stay of proceedings. Imposing an indefinite stay of proceedings is consistent with prior practice and strikes the appropriate balance between upholding the statutory guarantees afforded to all accused before the Mechanism and ensuring that an accused, who is allegedly responsible for some of the most egregious crimes and who has evaded justice for over two decades, remains under the Mechanism’s jurisdiction. [1] See supra para. 48 [Prosecution Appeal, paras. 3, 31]. |
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| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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77. The Appeals Chamber recalls that the ICTR was established as a measure contributing to the process of national reconciliation in Rwanda and to the restoration and maintenance of peace. Appeals Chamber jurisprudence also reflects that there is indeed strong public interest to conduct proceedings against persons accused of serious international crimes, including genocide and crimes against humanity. Notwithstanding, the Appeals Chamber is mindful that the essential interests of the international community to prosecute individuals charged with serious violations of international humanitarian law must be balanced with the fundamental rights of the accused. This balance must be achieved within the scope of the Mechanism’s mandate. [1] See UNSC Resolution 1966 (2010), Preamble; UNSC Resolution 955 (1994), p. 1. [2] See Karadžić Decision of 12 October 2009, paras. 49, 52; Prosecutor v. Dragan Nikolić, Case No. IT-94-2-AR73, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003 (“Nikolić Decision of 5 June 2003”), para. 25. [3] See Nyiramasuhuko et al. Appeal Judgement, n. 943; Karadžić Decision of 12 October 2009, para. 46; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 206; Nikolić Decision of 5 June 2003, paras. 26, 30. |
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| Notion(s) | Filing | Case |
| Corrigendum to Decision on an Appeal of a Decision on Request for Temporary Humanitarian Aid Issued on 2 August 2023 - 04.08.2023 |
NAHIMANA, Ferdinand (MICT-23-127) |
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8. […] neither the Statute nor the Rules of the Mechanism […] expressly provides for an appeal as of right against a decision issued by a Single Judge on a matter concerning financial assistance to a convicted person released pending his relocation. Nonetheless, the Appeals Chamber considers that the matter before it relates to the Mechanism’s duty to ensure the welfare of released persons pending their relocation.[1] Further, the Appeals Chamber notes that it has considered appeals of decisions rendered by a Single Judge in matters that dispose of discrete litigation after the close of trial and appeal proceedings.[2] Accordingly, the Appeals Chamber finds that the present matter raises issues over which the Appeals Chamber may exercise jurisdiction and will consider the Appeal. […] 15. […] there is nothing in the Mechanism’s legal framework. including in the Appeals Chamber’s binding jurisprudence on the matter, or in the provisions in the Mali Enforcement Agreement that requires the Mechanism to provide financial assistance to a convicted person who has completed serving his or her sentence and has been released on the territory of the enforcement State. [1] See In the Matter of François-Xavier Nzuwonemeye et al., Case No. MICT-22-124, Decision on Motions to Appeal Decision of 8 March 2022, For Reconsideration of Decision of 15 March 2022, and to Appear as Amicus Curiae, 27 May 2022, paras. 14, 24 and references cited therein. [2] See, e.g., Prosecutor v. François-Xavier Nzuwonemeye, Case No. MICT-13-43, Decision on the Appeal of the Single Judge’s Decision of 22 October 2018, 17 April 2019; Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016, para. 6. |
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| Notion(s) | Filing | Case |
| Corrigendum to Decision on an Appeal of a Decision on Request for Temporary Humanitarian Aid Issued on 2 August 2023 - 04.08.2023 |
NAHIMANA, Ferdinand (MICT-23-127) |
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20. […] the Appeals Chamber recalls that the Mechanism has the duty to ensure the welfare of acquitted or released persons pending their relocation, and to that extent enquire whether their life or liberty would be at risk upon relocation.[1] The Appeals Chamber, however emphasizes that this duty neither continues indefinitely nor dictates what the obligation entails – the extent of the enquiry is limited to the circumstances at hand and the applicable legal framework. […][2] [1] Nzuwonemeye et al. Decision of 27 May 2022 [In the Matter of François-Xavier Nzuwonemeye et al., Case No. MICT-22-124, Decision on Motions to Appeal Decision of 8 March 2022, For Reconsideration of Decision of 15 March 2022, and to Appear as Amicus Curiae, 27 May 2022], para. 24. [2] Nzuwonemeye et al. Decision of 27 May 2022, para. 24. Cf. Nzuwonemeye Decision of 17 April 2019 [Prosecutor v. François-Xavier Nzuwonemeye, Case No. MICT-13-43, Decision on the Appeal of the Single Judge’s Decision of 22 October 2018, 17 April 2019], para. 29 (“Domestic jurisdictions or other international institutions tasked with adjudicating claims of violations of human rights must evaluate such claims in their full context and are better suited to address the issues raised by Nzuwonemeye, including alleged violations to his human right to family life.”). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 31.05.2023 |
STANIŠIĆ & SIMATOVIĆ (MICT-13-96-A) |
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33. […] The Appeals Chamber recalls that there is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, and it is not required that such conduct serve as a condition precedent to the commission of the crime.[1] It is sufficient for the aider and abettor’s assistance or encouragement to have had a substantial effect on the realization of that crime, the establishment of which is a fact-based inquiry.[2] […] Stanišić argues that the limited number of men he was found to have deployed, as compared to the numerous JNA [Yugoslav People’s Army] personnel and other Serb forces involved in the takeover of Bosanski Šamac, undermines the reasonableness of the conclusion that the assistance he provided had a substantial effect on the crimes. However, the Appeals Chamber recalls that the “limited scope” of the practical assistance provided does not preclude a conclusion that it had a substantial effect on the perpetration of a crime.[3] [See also paras. 93, 97] [1] Popović et al. Appeal Judgement, para. 1783; Šainović et al. Appeal Judgement, n. 5336; Rukundo Appeal Judgement, para. 52. See also Nyiramasuhuko et al. Appeal Judgement, para. 3343; Ndindiliyimana et al. Appeal Judgement, para. 373. [2] Šainović et al. Appeal Judgement, n. 5336; Rukundo Appeal Judgement, para. 52. [3] See Blagojević and Jokić Appeal Judgement, para. 134. |
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