Showing 2496 results (20 per page)

Notion(s) Filing Case
Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
(ICTR-97-36-R11bis)

5. The Trial Chamber has the discretion to decide whether to refer a case to a national jurisdiction and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.[1] As the Appeals Chamber has previously stated:

An appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

These provisions were reiterated verbatim in two subsequent decisions – The Prosecutor v. Gaspard Kanyarugika, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5 and The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-E11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5.

[1] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

[2] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Appeals Chamber considered whether persons hors de combat were within the term “civilian” in Article 5 of the Statute. It then considered whether a person hors de combat could be otherwise a victim of a crime under Article 5.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Prosecution submitted that the Trial Chamber defined “civilian” too narrowly by excluding persons hors de combat from the term “civilian” in Article 5 of the Statute. At paragraphs 292-296, the Appeal Chamber noted that the Appeal Judgments of Kordić and Čerkez, Blaškić and Galić applied the definition of civilians contained in Article 50 of Additional Protocol I to crimes against humanity. 

It then quoted the following passages from Blaškić:

Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war. (para. 110)

[…]

As a result, the specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status.  If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status. (para. 113)

The Appeals Chamber rejected the Prosecution’s assertion that Kordić and Čerkez departed from this principle.  It went on to consider whether the definition of Article 50 of AP I should be applied. 

297. […] the Appeals Chamber recalls that the Tribunal has consistently held, since its first cases, that provisions of the Statute must be interpreted according to the “natural and ordinary meaning in the context in which they occur”, taking into account their object and purpose.[1] In this regard, the Appeals Chamber observes that the definition of civilian found in Article 50(1) of Additional Protocol I accords with the ordinary meaning of the term “civilian” (in English) and “civil” (in French) as persons who are not members of the armed forces.[2] As such, the definition of civilians relied upon by the Prosecution is contrary to the ordinary meaning of the term “civilian.”

The Appeals Chamber concluded that:

302. In light of the above, the Appeals Chamber finds that the definition of civilian contained in Article 50 of Additional Protocol I reflects the definition of civilian for the purpose of applying Article 5 of the Statute and that the Trial Chamber did not err in finding that the term civilian in that context did not include persons hors de combat. This does not, however, answer the second contention raised by the Prosecution, i.e., whether the fact that persons hors de combat are not civilians for the purpose of Article 5 means that only civilians may be victims of crimes against humanity. The Appeals Chamber will turn to this second argument in the next section.

[1] Tadić Appeal Judgement, paras 282-283, 285 (quoting with approval the Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1949, ICJ Reports 1950, p. 8), in relation to the wording of Article 5 of the Statute.

[2] Oxford English Dictionary (Oxford: Oxford University Press, 2007), “civilian”: “One who does not professionally belong to the Army or the Navy; a non-military person.” Dictionnaire de l’Académie Française 9th Edition (Paris : Éditions Fayard, 1991), “civil”: “Par opposition à Militaire. ” (emphasis in the original).

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

303. The second issue raised by the Prosecution is whether the condition under the chapeau of Article 5 of the Statute – that the attack be directed against a civilian population – also requires that all victims of each individual crime under Article 5 have civilian status, and in particular, whether the chapeau excludes persons hors de combat who are present within the civilian population from constituting victims of a crime against humanity. […]

The Appeals Chamber considered the Kunarac et al. Appeal Judgement, para 91, and said:

305. When dealing with the expression “directed against any civilian population”, the Tribunal has interpreted it as requiring “that the acts be undertaken on a widespread or systematic basis”.[1] [… On] the face of it, the requirement that the acts of an accused must be part of a widespread or systematic attack directed against any civilian population does not necessarily imply that the criminal acts within this attack must be committed against civilians only. The chapeau rather requires a showing that an attack was primarily directed against a civilian population, rather than “against a limited and randomly selected number of individuals.”[2]

The Appeals Chamber referred to relevant interpretative sources, including the Reports of the Secretary-General recommending the establishment of the Tribunal and of the Commission of Experts Established Pursuant to Security Council Resolution 780. It then concluded:

313. Under Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population. Further, the Appeals Chamber is satisfied that the commission of crimes under Article 5 of the Statute against persons hors de combat attracted individual criminal responsibility under customary international law at the time of the commission of the offences. Therefore, the principle of nullum crimen sine lege is not violated.[3]

314. On the basis of the above, the Appeals Chamber finds that the Trial Chamber erred in finding that, under Article 5 of the Statute, persons hors de combat are excluded from the ambit of crimes against humanity when the crimes committed against them occur as part of a widespread or systematic attack against the civilian population. Provided this chapeau requirement is satisfied, a person hors de combat may be a victim of crimes against humanity.

[1] Tadić Trial Judgement, para. 626.

[2] Kunarac et al. Appeal Judgement, para. 90, also cited in Kordić and Čerkez Appeal Judgement, para. 95; Blaškić Appeal Judgement, para. 105.

[3] Cf. Hadžihasanović et al. Appeal Decision on Command Responsibility, para. 44.

Download full document
ICTR Statute Article 3 ICTY Statute Article 5
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić claimed that his actions were in response to persecution of the Serb population by the Croatian authorities.  Accordingly, he submitted defences of reciprocity or tu quoque; reprisal; and self-defence.

The Appeals Chamber held that reciprocity or tu quoque could not be used to justify a serious violation of international humanitarian law.

109. Martić argues that Serbs in SAO Krajina, for historical reasons, had a right to claim self-determination in accordance with international law and that instead of being able to exercise this right, they ended up being persecuted by the Croatian authorities in the 1990s in a way similar to the persecutions and massacres of Serbs by Croats during the 1940s.[1]

[…]

111. To the extent that Martić’s argument is an attempt to plead a defence of tu quoque, i.e., to plead that the acts for which he was found responsible should not be considered criminal because they were in response to crimes committed against him and his people, it must be rejected. It is well established in the jurisprudence of the Tribunal that arguments based on reciprocity, including the tu quoque argument, are no defence to serious violations of international humanitarian law.[2]

[1] Defence Appeal Brief, paras 80-85 and 91. See also AT. 41-42.

[2] See, for example, Kupreškić et al. Trial Judgement, paras 515-520, as confirmed by Kupreškić et al. Appeal Judgement, para. 25.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić claimed that his actions were in response to persecution of the Serb population by the Croatian authorities.  Accordingly, he submitted defences of reciprocity or tu quoque; reprisal; and self-defence. 

Martić claimed reprisal in respect of the shelling of Zagreb.  The Appeals Chamber upheld the Trial Chamber’s finding that the two requirements for reprisal – (i) the actions in question were a valid measure of last resort and (ii) a formal warning had been given to the other side – were not met.

263. On the question of reprisals, the Trial Chamber first recalled that a belligerent reprisal is an otherwise unlawful act rendered lawful by the fact that it is made in response to a violation of international humanitarian law by another belligerent.[1] It stated that a reprisal is subject to strict conditions and is only to be used as an exceptional measure.[2] Moreover, the Trial Chamber held that, even if Croatian units had committed serious violations of international humanitarian law as alleged by Martić, two of the other conditions that justify a reprisal would not have been met. First, the shelling was not a measure of last resort, because peace negotiations were conducted during Operation Flash until 3 May 1995.[3] Second, the RSK authorities had not formally warned the Croatian authorities before shelling Zagreb.[4] As a result, the Trial Chamber held that the shelling of Zagreb was illegal because it was not shown that the conditions justifying a reprisal had been met.[5]

At paras. 265-267 the Appeals Chamber held that Martić had failed to show that the Trial Chamber erred in interpreting the evidence in relation to the two conditions.

[1] Trial Judgement, para. 465 referring to Claude Pillot, Yves Sandoz, Christophe Swinarski and Bruno Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, (Geneva/Dordrecht: ICRC/Martinus Nijhoff Publishers, 1987) (“ICRC Commentary on Additional Protocols”), para. 3457; Kupreškić et al. Trial Judgement, para. 535.

[2] Trial Judgement, paras 465-467.

[3] Trial Judgement, paras 302 and 468, fn. 943 referring to Witness MM-117, 13 Oct 2006, T. 9402-9403.

[4] Trial Judgement, para. 468.                                              

[5] Trial Judgement, para. 468.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić claimed that his actions were in response to persecution of the Serb population by the Croatian authorities.  Accordingly, he submitted defences of reciprocity or tu quoque; reprisal; and self-defence. 

Similarly, the Appeals Chamber found that self-defence could not be used to justify deliberately targeting a civilian population.

268. As for Martić’s alternative argument that the shelling of Zagreb was a lawful military action conducted in self-defence,[1] the Appeals Chamber recalls that “whether an attack was ordered as pre-emptive, defensive or offensive is from a legal point of view irrelevant […]. The issue at hand is whether the way the military action was carried out was criminal or not.”[2] […] As Martić has failed to show any error in the Trial Chamber’s conclusion that he deliberately targeted the civilian population of Zagreb,[3] his argument that the shelling of Zagreb was conducted in self-defence must fail. The Appeals Chamber takes note of Martić’s arguments in his concluding statement at the appeal hearing that “the Serbs were not aggressors but rather defended themselves in a situation when the United Nations made no attempt to protect them […].”[4] However, in particular in light of the fact that the prohibition against attacking civilians is absolute,[5] the Appeals Chamber fails to see how this claim could justify Martić’s actions in relation to the shelling of Zagreb.

[1] Defence Appeal Brief, paras 233-234.

[2] Kordić and Čerkez Appeal Judgement, para. 812. See also Kordić and Čerkez Trial Judgement, para. 452 and ICRC Commentary on Additional Protocols, para. 1927.

[3] Trial Judgement, para. 472.

[4] AT. 163.

[5] Strugar Appeal Judgement, para. 275 and references cited in fn. 688.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Appeals Chamber found that a statement admitted pursuant to Rule 92 bis may only be used as the sole basis for a conviction when the accused was provided a chance to cross-examine the witness in question.

FN486. [… The] Trial Chamber admitted this witness statement under Rule 92 bis of the Rules, without providing Martić the opportunity to cross-examine the witness in question.[1] As noted above, much of the findings in relation to the crimes in Cerovljani […] depend exclusively on this statement, with no corroboration. Thus, this evidence is pivotal to Martić’s responsibility and, lacking sufficient corroboration, Martić should have been granted the opportunity to cross-examine the witness in question.[2] The Appeals Chamber finds that the failure to accord Martić a right to cross-examine this witness constitutes a miscarriage of justice and accordingly his convictions for the crimes in Cerovljani would have been reversible on this ground, too.

[1] Decision on Prosecution’s Motions for the Admission of Written Evidence Pursuant to Rule 92 bis of the Rules, 16 January 2006, paras 16-17, 26, 28 and 37 (where the witness is identified as MM-019).

[2] Prosecutor v. Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis(C), 7 June 2002, paras 13-15. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007, especially paras 53 and 59.

Download full document
ICTR Rule Rule 92 bis ICTY Rule Rule 92 bis
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić was convicted in relation to the beating of Croats in detention in Benkovac and the detaining of children in a kindergarten. The Appeals Chamber reversed these convictions as they were not included in indictment.

162. The Appeals Chamber recalls that, in accordance with Article 21(4)(a) of the Statute, an accused has the right “to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”. The Prosecution is required to plead in an indictment all the material facts underpinning the charges in an indictment, but not the evidence by which the material facts are to be proven.[1]

163. The prejudicial effect of a defective indictment may only be “remedied” if the Prosecution provided the accused with clear, timely and consistent information that resolves the ambiguity or clarifies the vagueness, thereby compensating for the failure of the indictment to give proper notice of the charges.[2] Whether the Prosecution has cured a defect in an indictment and whether the defect has caused any prejudice to the accused are questions aimed at assessing whether the trial was rendered unfair.[3] In this regard, the Appeals Chamber reiterates that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. The defect may only be deemed harmless through demonstrating that the accused’s ability to prepare his defence was not materially impaired.[4]

[1] Simić Appeal Judgement, para. 20; Muvunyi Appeal Judgement, para. 18; Naletilić and Martinović Appeal Judgement, para. 23; Kvočka et al. Appeal Judgement, para. 27; Kupreškić et al. Appeal Judgement, para. 88.

[2] Simić Appeal Judgement, para. 23; Muvunyi Appeal Judgement, para. 20; Gacumbitsi Appeal Judgement, para. 163; Ntagerura et al. Appeal Judgement, para. 29; Naletilić and Martinović Appeal Judgement, para. 26; Kvočka et al. Appeal Judgement, paras 33-34; see also Kupreškić et al. Appeal Judgement, para. 114. 

[3] See Ntagerura et al. Appeal Judgement, para. 30. On the applicable burden of proof in relation to this issue, see Simić Appeal Judgement, para. 25.

[4] Ntagerura et al. Appeal Judgement, para. 30; Ntakirutimana Appeal Judgement, paras 27-28 and 58; Kupreškić et al. Appeal Judgement, paras 119-122. Simić Appeal Judgement, para. 24; Kordić and Čerkez Appeal Judgement, para. 169; Kupreškić et al. Appeal Judgement, paras 117-118.     

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber upheld the application of the third category of JCE.

83. […] For a finding of responsibility under the third category of JCE, it is not sufficient that an accused created the conditions making the commission of a crime falling outside the common purpose possible; it is actually necessary that the occurrence of such crime was foreseeable to the accused and that he willingly took the risk that this crime might be committed. […]

84. Turning to Martić’s claim that the third category of JCE is controversial as it “lowers the mens rea required for commission of the principal crime without affording any formal diminution in the sentence imposed”,[1] the Appeals Chamber recalls that it has already found that “in practice, this approach may lead to some disparities, in that it offers no formal distinction between JCE members who make overwhelmingly large contributions and JCE members whose contributions, though significant, are not as great.”[2] It is up to the trier of fact to consider the level of contribution – as well as the category of JCE under which responsibility attaches – when assessing the appropriate sentence, which shall reflect not only the intrinsic gravity of the crime, but also the personal criminal conduct of the convicted person and take into account any other relevant circumstance. This argument thus stands to be rejected.

[1] See, in particular, Defence Appeal Brief, para. 61.

[2] Brđanin Appeal Judgement, para. 432.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber considered the mens rea requirement of JCE and, in particular, its application to omissions and whether there is a requirement of intent as to result.

139. As noted above,[1] the Trial Chamber did not convict Martić for his failure to intervene against the perpetrators of crimes committed against non-Serbs. Indeed, the Trial Chamber referred to Martić’s knowledge of and reaction to crimes committed against the non-Serb population, among other factors, to establish that the mens rea requirement for the JCE had been met.[2]

140. The Appeals Chamber notes that the issue of whether the Trial Chamber imposed something akin to an obligation of result upon Martić is of limited relevance to the issue of his mens rea. Whether or not Martić had an obligation of result or to intervene against the perpetrators of crimes committed against non-Serbs is unrelated to the issue of his knowledge of the existence of such crimes and his disposition towards them and the non-Serb population generally.

[1] See supra, para. 28.

[2] See Trial Judgement, paras 337-342, 451 and 454 […].

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber considered the link between Martić and the principal perpetrators of crimes who were not proven to be members of the JCE.

168. In Brđanin, the Appeals Chamber held that the decisive issue under the basic form of JCE was not whether a given crime had been committed by a member of the JCE, but whether this crime fell within the common criminal purpose of the JCE.[1] For the extended form of JCE, the accused may be found responsible provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk.[2] The Appeals Chamber thus held that members of a JCE could be held liable for crimes committed by principal perpetrators who were not members of the JCE provided that it had been shown that the crimes could be imputed to at least one member of the JCE and that this member, when using a principal perpetrator, acted in accordance with the common plan.[3]

171. In order to convict a member of a JCE for crimes committed by non-members of the JCE, a Trial Chamber must be satisfied beyond a reasonable doubt that the commission of the crimes by non-members of the JCE formed part of a common criminal purpose (first category of JCE), or of an organised criminal system (second category of JCE), or were a natural and foreseeable consequence of a common criminal purpose (third category of JCE).[4]

The application of the law is clear from the distinction between events in Cerovljani and Lipovača. The appeal was upheld in relation to events in Cerovljani:

191. The Trial Chamber also found that on 13, 21 and 24 September 1991, armed Serbs from Živaja led by Nikola Begović burnt ten houses and damaged the Catholic church in the village of Cerovljani. The Trial Chamber […] convicted Martić on the basis that the commission of the [corresponding] crimes was a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[5]

192. The Appeals Chamber finds that a reasonable trier of fact could not have reached the conclusion that Martić was responsible for the acts of destruction perpetrated by armed Serbs from Živaja led by Nikola Begović. Having due regard to the Trial Chamber’s findings and the evidence on which they relied,[6] the Appeals Chamber concludes that the Trial Chamber erred in establishing a link between Martić and these perpetrators. In particular, Exhibit 273, a witness statement of Antun Blažević, on which much of these findings depend, only suggests that the armed men under Begović had received weapons from the JNA, without any evidence of additional control or influence by Martić or other members of the JCE.[7] Without any further elaboration on the link between these forces and the JNA, no reasonable trier of fact could have held that the only reasonable conclusion in the circumstances was that these crimes could be imputed to a member of the JCE. The link between the principal perpetrators of these crimes and members of the JCE is therefore too tenuous to support Martić’s conviction.

However, the Appeal was dismissed in relation to events in Lipovača:

194. The Trial Chamber found that Serb paramilitary forces intentionally killed seven civilians in Lipovača towards the end of October 1991. The Trial Chamber […] convicted Martić on the basis that [the corresponding] crimes were a natural and foreseeable consequence of the implementation of the common purpose of the JCE.[8]

195. The Appeals Chamber finds that a reasonable trier of fact could have reached the conclusion that Martić was responsible for the killings perpetrated in Lipovača by Serb paramilitary forces. The Appeals Chamber notes that, in its findings on the killings in Lipovača, the Trial Chamber referred to evidence establishing that the JNA had warned the villagers to beware of Serb paramilitary units that would arrive after the JNA left, that the Serb paramilitary units arrived after the JNA as warned and that these paramilitary units were called “reserve forces, Martić’s troops or Martić’s army” and wore uniforms like those of the army.[9] The Appeals Chamber is therefore satisfied that a reasonable trier of fact could have been satisfied beyond a reasonable doubt that the Serb paramilitary forces in question were in fact JNA or TO soldiers or were at least acting in concert with the JNA. Taking into account the warning provided by the JNA, the denomination of these troops and their uniforms, as well as the general pattern of take-over and criminal conduct in the area, it was reasonable for the Trial Chamber to conclude that these crimes were committed by a member of a paramilitary group with a link to a member of the JCE, and, therefore, that they were imputable to Martić as a participant in that JCE.

[1] Brđanin Appeal Judgement, paras 410, 418 and 431.

[2] Brđanin Appeal Judgement, para. 411.

[3] Brđanin Appeal Judgement, para. 413. See also Brđanin Appeal Judgement, para. 430.

[4] Brđanin Appeal Judgement, paras 410, 411 and 418.

[5] Trial Judgement, paras 454-455.

[6] Trial Judgement, paras 186-188, 360-361 and 363.

[7] See Trial Judgement, paras 186-188.

[8] Trial Judgement, paras 454-455.

[9] Trial Judgement, paras 202-203.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić contested the purpose of the attack on the village of Kijevo. In response to Martić’s submission that the destruction of a church was due to its being used as a bell-tower for machine guns, the Appeals Chamber considered the legitimacy of attacking a church:

98. The […] Trial Chamber [relied] upon the evidence that the church was attacked as part of a pattern of persecutions against the non-Serb population of Kijevo. In relying upon the evidence for this purpose, the Trial Chamber did not consider whether the church was a legitimate military target[1] and disregarded the evidence that it might have been a legitimate military objective. The Appeals Chamber finds that in so doing, the Trial Chamber erred as this evidence was “clearly relevant to the findings” in question.[2] However, as the Appeals Chamber considers that the destruction of the church was not a decisive factor in the overall findings of the Trial Chamber on persecution, which included findings of torching of civilian buildings, looting and the effect of the ultimatum on the civilian population of Kijevo and other villages, the error of the Trial Chamber is not such as to warrant the interference of the Appeals Chamber.[3]

[1] Trial Judgement, para. 169; see also Trial Judgement, para. 426.

[2] See Limaj et al. Appeal Judgement, para. 86, referring to Kvočka et al. Appeal Judgement, para. 23.

[3] See, in general, Trial Judgement, paras 166-169, 426-430 and 432.

Download full document
ICTR Statute Article 3(h) ICTY Statute Article 5(h)
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

The Appeals Chamber summarily dismissed a number of grounds on the following basis:

14. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties’ submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing.[1] […] A party may not merely repeat on appeal arguments that did not succeed at trial. […] Additionally, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party’s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies.[2]

The Appeals Chamber will dismiss the following categories of errors, as outlined in paras. 16-21:

  • challenges to factual findings on which a conviction does not rely;
  • arguments that fail to identify the challenged factual findings, that misrepresent the factual findings, or that ignore other relevant factual findings;
  • mere assertions that the Trial Chamber failed to give sufficient weight to evidence or failed to interpret evidence in a particular manner;
  • mere assertions unsupported by any evidence; and
  • arguments that challenge a Trial Chamber’s reliance or failure to rely on one piece of evidence.

[1] Strugar Appeal Judgement, para. 16; Orić Appeal Judgement, para. 13; Halilović Appeal Judgement, para. 12; Brđanin Appeal Judgement, para. 16; Gacumbitsi Appeal Judgement, para. 10; Kamuhanda Appeal Judgement, para. 10.

[2] Brđanin Appeal Judgement, para. 16; Orić Appeal Judgement, para. 14; Limaj et al. Appeal Judgement, para. 15; Blagojević and Jokić Appeal Judgement, para. 11.

Download full document
Notion(s) Filing Case
Appeal Judgement - 08.10.2008 MARTIĆ Milan
(IT-95-11-A)

Martić contested the Trial Chamber’s use of the term “high degree of probability” as being the applicable standard of proof. The Appeal Chamber dismissed this ground of appeal but provided guidance as to the applicable standard.

55. The Appeals Chamber observes that for a finding of guilt on an alleged crime, a reasonable trier of fact must have reached the conclusion that all the facts which are material to the elements of that crime have been proven beyond reasonable doubt by the Prosecution. At the conclusion of the case, the accused is entitled to the benefit of the doubt as to whether the offence has been proved.[1]

56. In its Judgement, the Trial Chamber clearly referred to the principle laid down in Article 21(3) of the Statute that an accused must be considered innocent until proven guilty.[2] Moreover, the Trial Chamber recalled that, according to Rule 87(A) of the Rules, it is for the Prosecution to prove beyond reasonable doubt that the accused is guilty.[3] In a footnote, the Trial Chamber specified that it interpreted the “beyond reasonable doubt” standard as a “high degree of probability”, but not as “certainty or proof beyond a shadow of doubt”.[4]            

57. The Appeals Chamber finds that the Trial Chamber’s reference to a “high degree of probability” in one of the footnotes to the section on standard of proof is confusing and not in accordance with the standard of proof of a criminal trial. […]

61. […] the Appeals Chamber notes that it is unhelpful to try and explain the standard of proof other than by stating that the standard requires a finder of fact to be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused.[5]

[1] Čelebići Trial Judgement, para. 601. See also Halilović Appeal Judgement, para. 109.

[2] Trial Judgement, para. 21.

[3] Trial Judgement, para. 21, referring, inter alia, to Krnojelac Trial Judgement, para. 66.

[4] Trial Judgement, fn. 19.

[5] Cf. Halilović Appeal Judgement, para. 109.

Download full document
ICTR Statute Article 20(3) ICTY Statute Article 21(3) ICTR Rule Rule 87(A) ICTY Rule Rule 87(A)
Notion(s) Filing Case
Decision on Amicus Submission - 08.10.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

On appeal, Krajišnik raised allegations regarding his former trial counsel’s negligence and incompetence. The amicus curiae raised the issue of fairness to the former counsel and the right of the latter to respond to such allegations.[1] The Prosecution responded in opposition, arguing inter alia  that former counsel have sufficient notice of the allegations against them on the basis of the public redacted version of the amicus curiae’s appeal brief and that former counsel, being on notice of the allegations against them, could have requested the Appeals Chamber to be heard on the ineffective assistance claim but have not done so.[2] In this regard and mindful of the fact that some relevant submissions were only filed confidentially (thus inaccessible to the former counsel), the Appeals Chamber held:

pp. 1-2: NOTING the reply by Amicus Curiae in which he argues that it would be fundamentally unfair to deny former counsel the opportunity to comment on any assertions made against them, and that a submission by former counsel without an invitation by the Appeals Chamber cannot be expected;[3]

NOTING that Amicus Curiae concedes that no precedent exists for such a right of response by former counsel;[4]

CONSIDERING that the public and redacted version of the Amicus Curiae’s Appeal Brief provides former counsel with sufficient notice of the allegations against them for the purpose of assessing whether they would like to make submissions relating to those allegations;[5]

CONSIDERING that neither former counsel have indicated that they would like to be heard on the said allegations and that the Appeals Chamber, at this juncture and pending the examination of evidence adduced by the parties pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”), does not find it in the interests of justice to call the former counsel to appear under Rules 98 and 107 of the Rules;

HEREBY DISMISSES the Motion.

Judge Mohamed Shahabuddeen appended a declaration to the decision :

I support today’s decision dismissing amicus curiae’s motion that, inter alia, the Appeals Chamber should ‘invite former counsel to respond to Amicus Curiae’s Appeal Brief’. That would give former counsel a locus in the proceedings as an additional party; there is no basis for giving him that locus. But I do not understand that the dismissal concludes the question whether the Appeals Chamber should bring former counsel as its own witness and so give him an opportunity to answer the allegations against him. In my view, the consideration that no request to be heard has been made by former counsel is not pertinent; the question relates to the duty of the Court itself.

[1] Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 6 August 2008.

[2] Prosecution Response to Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 11 August 2008, paras 3-4.

[3] Reply to Prosecution Response to Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, 12 August 2008, paras 4, 8.

[4] Motion [Amicus Curiae Submission Regarding Procedural Fairness for Former Counsel in Ineffective Assistance Claim, filed publicly on 6 August 2008], para. 12.

[5] Public and Redacted Amicus Curiae’s Appellate Brief, 31 August 2007, paras 3-68. These submissions were reiterated publicly during the appeal hearing on 21 August 2008, cf. AT. 300-309.

Download full document
Notion(s) Filing Case
Decision on Examination of Witnesses - 11.09.2008 PRLIĆ et al.
(IT-04-74-AR73.11)

19. The Appeals Chamber has already held that when an accused is effectively represented by counsel, it is, in principle, for the counsel to conduct the examination of witnesses.[1] It has however recognized that Trial Chambers may, under exceptional circumstances, authorize an accused to participate in the examination in person.[2] It has also been established that the Trial Chambers are entitled under Rule 90(F) of the Tribunal’s Rules of Procedure and Evidence (“Rules”) to exercise control over the manner in which such examination is conducted,[3] including ensuring that it “is not impeded by useless and irrelevant questions”.[4]

20. […] In these circumstances, the real issue currently before the Appeals Chamber is whether the Trial Chamber committed a discernable error in defining those “exceptional circumstances” by providing its clarification of the term “specific expertise”.

21. […] The Appeals Chamber reiterates that it is within the Trial Chamber’s discretionary power to define the circumstances under which it can allow the Appellant to intervene in the examination of witnesses. However, it did not need, at this stage of the proceedings, to further restrict the criteria that would apply to all his future requests for personal intervention. Although the Trial Chamber based its decision on its experience concerning previous interventions of the Appellant, the Appeals Chamber considers that the Trial Chamber should have allowed more flexibility for its assessment of the notion of specific expertise and perform such assessment on a case-by-case basis when faced with a specific request. The approach taken by the Trial Chamber could potentially lead to violation of the Appellant’s rights under Article 21 of the Statute and thus constitutes an abuse of discretion.

22. Moreover, the Appeals Chamber emphasizes that both Guideline C (as amended by the Trial Chamber’s Decision of 10 May 2007) and Guideline 1 refer to “exceptional circumstances” which relate in particular to the events in which the Appellant participated personally or issues falling within his specific expertise, and should therefore not be read as restricting those circumstances to these two scenarios.[5] Indeed, various other circumstances may still arise during the proceedings which may justify the Appellant’s participation in the examination.[6]

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (“Nahimana et al. Appeal Judgement”), para. 267 and fn. 651; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order, 16 November 2006, pp. 3-4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Hassan Ngeze’s Motions Concerning Restrictive Measures of Detention, 20 September 2006 (confidential), p. 7: “Article 20(d) of the Statute provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who has a counsel assigned to him/her to choose at whim when to accept or not his/her counsel’s advice” (footnotes omitted).

[2] Appeals Chamber’s Decision of 24 August 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007], paras 9, 11, 13; Nahimana et al. Appeal Judgement, paras 267, 269-270, 274, 276.

[3] Rule 90(F) of the Rules provides:

         “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to

(i) make the interrogation and presentation effective for the ascertainment of the truth; and

(ii) avoid needless consumption of time.”

[4] Nahimana et al. Appeal Judgement, paras 182, 270 ; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, paras 45, 99, 102; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeal Judgement, 1 June 2001, para. 318.

[5] Recalling the Trial Chamber’s Decisions of 10 May 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on the Mode of Interrogating Witnesses, 10 May 2007] and 24 April 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision Adopting Guidelines for the Presentation of Defence Evidence, 24 April 2008], the French original of the Impugned Decision reads “[…] dans des circonstances exceptionnelles notamment liées, soit à l’examen d’événements auxquels un Accusé a personnellement participé, soit à l’examen de questions au sujet desquelles il possède des compétences spécifiques” (p. 2, emphasis added). The English translation however erroneously reads “[…] under exceptional circumstances linked either to the examination of events in which an Accused personally took part or to the examination of issues about which he has specific expertise”.

[6] Cf. Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T where the Trial Chamber allowed Momčilo Krajišnik to put questions to witnesses as “an experiment” to consider whether or not to allow him to represent himself (T. 13439; T.17205). See also Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T where the Trial Chamber accorded Hassan Ngeze the permission to cross-examine witnesses (under the control of the Chamber) as a temporary measure pending the consideration of his request for the withdrawal of his counsel (T. 15 May 2001, pp. 95-96); or – on a different occasion – allowed him to put additional questions to the witness through the Chamber on the basis of – otherwise unidentified – exceptional circumstances, provided that the questions were relevant and admissible (T. 27 November 2001, pp. 1-8); or allowed Hassan Ngeze to sit next to his Co-Counsel so as to participate actively in the cross-examination (T. 4 July 2002, pp. 3-12). The Appeals Chamber has found no error in the approach taken by the latter Trial Chamber (Nahimana et al. Appeal Judgement, paras 266-276).

Download full document
ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Decision on Leave to Appeal - 11.09.2008 NTAGERURA André
(ICTR-99-46-A28)

Following his acquittal, Ntagerura remained under the authority of the Tribunal pending relocation to a third country. He filed a motion before the President of the Tribunal in which he claimed that Canada ignored the Registrar’s requests for his relocation to that country, and requested that the President of the Tribunal order Canada to comply with these requests and notify the United Nations Security Council of Canada’s refusal to implement them, if it still failed to do so. The President denied the motion in part, and referred the matter to a Trial Chamber for consideration under Article 28 of the Statute of the Tribunal. The Trial Chamber denied the motion in its entirety. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

Ntagerura was acquitted by the Trial Chamber in 2004, and this decision was subsequently affirmed on appeal in July 2006. However, Ntagerura has since remained under the authority of the Tribunal pending relocation to a third country. He has consequently seized the Registrar and the President of the Tribunal with requests for assistance in this regard. These requests were denied and the Ntagerura’s request for assistance of the MemberState was referred by the President to the Trial Chamber which then denied it as well. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

12. […] While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof. […]

Download full document
ICTR Statute Article 28
Notion(s) Filing Case
Decision on Leave to Appeal - 11.09.2008 NTAGERURA André
(ICTR-99-46-A28)

12. […] The Appeals Chamber also recalls that it has inherent jurisdiction to review decisions issued by the President of the Tribunal in certain instances, including where such decisions are closely related to issues involving the fairness of proceedings before the Appeals Chamber.[1] 

13. The Appeals Chamber recalls that, on 8 February 2006, it affirmed the Trial Chamber’s acquittal of the Applicant and ordered the Registrar to take, without delay, all necessary steps to effect such acquittal.[2] The Decision of the President and the Decision of the Trial Chamber are thus related to the order given to the Registrar to effect the Applicant’s acquittal. Furthermore, the Applicant claims that he remains in de facto custody of the Tribunal and that full effect has not yet been given to his acquittal. The Appeals Chamber is concerned by this claim, in particular as to whether it raises an issue regarding the effectiveness of its judgements acquitting an accused. The Appeals Chamber considers this issue to be closely related to the fairness of the proceedings. Accordingly, the Appeals Chamber has inherent jurisdiction to review the Decision of the President and the Decision of the Trial Chamber.[3]

[1] See The Prosecutor v. Ferdinand Nahimana et al., Case No. IT-99-52-A, Decision on “Appellant’s Ngeze Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3; The Prosecutor v. Ferdinand Nahimana et al., Case No. IT-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras. 4, 7; The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar relating to the Withdrawal of Co-Counsel, 23 November 2006 (“Barayagwiza Decision”), para. 9.

[2] Disposition, p. 2.

[3] The Appeals Chamber recalls that a review of decisions closely related to issues involving the fairness of proceedings “is neither a rehearing, nor an appeal, nor is it in any way similar to the review, which a Chamber may undertake of its own judgement in accordance with Rule 119 of the Rules”, Barayagwiza Decision, para. 9. 

Download full document
Notion(s) Filing Case
Decision on Nathan Dershowitz Participation - 08.09.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

Krajišnik insisted to represent himself in the appellate proceedings. The Appeals Chamber accepted this choice but assigned an amicus curiae (see Krajišnik Decision on Self-Representation). Later, the Appeals Chamber also permitted Krajišnik to use the services of Mr. Alan M. Dershowitz who would act as Krajišnik’s counsel on matters related to his JCE convictions (see Krajišnik Decision on Alan Dershowitz Participation). When Krajišnik’s request to call Radovan Karadžić as a witness under Rule 115 of the Rules was granted by the Appeals Chamber, he also applied for authorisation to have Mr. Nathan Dershowitz as counsel examining Karadžić alongside Mr. Alan M. Dershowitz.

Download full document