Petković argued that the only avenue for the Prosecution to seek a stay of the Trial Chamber’s decisions on provisional release was under Rule 65(E) of the Rules, which required the Prosecution to file its application for a stay of those decisions at the time of its consolidated response to the initial applications for provisional release. In this case, the Prosecution had not done so, but had filed a request for a stay directly with the Appeals Chamber after the Trial Chamber’s decision had been issued. The Appeals Chamber ruled:

11. Contrary to Petković’s arguments, the case law of the International Tribunal supports the competence of the Appeals Chamber to consider the Prosecution’s request for a stay, despite its failure to comply with Rule 65(E) of the Rules.[1] Furthermore, the Appeals Chamber has also recognized in other cases that the preservation of the object of an appeal by the Prosecution against the provisional release of the accused constitutes “good cause” within the meaning of Rule 127(A)(ii) and (B) of the Rules.[2] In this case, the Appeals Chamber – by staying the Impugned Decisions – considered the need to preserve the object of the Appeal to be justified and accordingly used its inherent power to render what was an ancillary order in aid of the exercise of its appellate function.[3]

32. The Tribunal’s professional Judges, as noted by the Trial Chamber, are competent to assess the truthfulness and to accord the proper weight to a witness’ evidence.[1] The decision as to whether a particular piece of evidence will be admitted for the purposes of assessing a witness’ credibility and/or for the substance therein must be left to the Trial Chamber’s discretion.

See also Delić Decision on Admission of Exhibits, para. 22.

24. While the Tribunal is in no way bound by the rules of the common law[1] and the Rules do not provide clear guidance on the question of impeaching a party’s own witness, Rules 85 and 90 are nonetheless largely reflective of the common law system. It is the parties who call and question “their” witnesses in turn and who are then cross-examined by the opposing side.[2] Accordingly, recognizing that the procedure for the hearing of witnesses at the Tribunal is rooted in the adversarial process, it is important to be cautious in removing safeguards that belong to that process for reasons of fairness to the parties and for the purpose of ascertaining the truth; in this case, leaving the determination of adversity, and the green light to cross-examine, to the calling party rather than to the Trial Chamber.[3] 

26. The Appeals Chamber considers that notwithstanding the exact form the impeachment procedure takes, the Trial Chamber must be the one to determine whether to allow the calling party to cross-examine its witness. It must also be the one to limit the scope of the questioning, if and to the extent it considers appropriate, within its discretion. Despite the Prosecution’s assertion that the Trial Chamber has not abandoned or undermined its authority to control the nature and extent of a witness’ examination under Rule 90(F), it is difficult to interpret the Impugned Decision otherwise. By stating that “a party need not seek permission to challenge the credibility of its own witness nor is the process of having a witness declared “hostile” necessary before taking such a step”, the Trial Chamber leaves no room for objections to impeachment.[4] Furthermore, objections to the scope of the challenge also appear to be precluded by the Trial Chamber’s assertion that it “would not place any limitations on the way in which such a challenge may be conducted.”[5] This is the prejudice occasioned by the discernible error.

28. The Trial Chamber’s practice to date, as well as that of other Trial Chambers,[6] demonstrates a general if not altogether consistent approach that puts the decision to allow a party to put a prior statement to its own witness and cross-examine that witness in the hands of the Trial Chamber. This may or may not be done on the basis of a prior determination of hostility. In this light the Appeals Chamber considers that the Trial Chamber’s decision to put the determination to impeach in the hands of the calling party constitutes a discernible error. It further considers that the Trial Chamber committed a discernible error in deciding to leave the scope of the challenge to the discretion of the impeaching party. It may be that the Trial Chamber will decide to allow a calling party to put a prior inconsistent statement to its witness in order to clarify a particular contradiction without declaring the witness hostile. The interests of justice dictate a certain measure of flexibility. However, this again will be a matter for the Trial Chamber to determine in the circumstances before it.

20. In a recent Appeal Judgement issued in the Nahimana et al. case, the ICTR Appeals Chamber established that:

C’est à la Chambre de première instance de déterminer si, au vu des éléments présentés par les parties, la personne proposée peut être reconnue en qualité de témoin expert. L’expert est tenu de déposer « dans la plus stricte neutralité en respectant l’objectivité scientifique ». La partie qui souhaite contester la partialité d’un témoin expert peut le faire par la voie du contre-interrogatoire, en faisant comparaître ses propres témoins experts ou au moyen d’une contre-expertise. Comme pour tout moyen de preuve présenté, c’est à la Chambre de première instance qu’il revient d’apprécier la fiabilité et la valeur probante du rapport et de la déposition du témoin expert.[1]

In this Appeal Judgement, the ICTR Appeals Chamber also concurred with the principle set forth in the Brđanin Decision that “the mere fact that an expert witness is employed or paid by a party does not disqualify him or her from testifying as an expert witness”.[2]

21. As properly pointed out by the Trial Chamber, Rule 94bis of the Rules “does not provide specific guidelines on the admissibility of testimony given by expert witnesses, or criteria for the admission of their report”.[3] Trial Chambers have established the following requirements for the admissibility of expert statements or reports: (1) the proposed witness is classified as an expert; (2) the expert statements or reports meet the minimum standards of reliability; (3) the expert statements or reports are relevant and of probative value; (4) the content of the expert statements or reports fall within the accepted expertise of the expert witness.[4] As the Trial Chamber in this case,[5] Trial Chambers have also ruled that “concerns relating to the Witness’ independence and impartiality […] are matter of weight, not admissibility”.[6] Such a statement is consistent with the ICTR Appeals Chamber’s finding in the Nahimana et al. Appeal Judgement, quoted above, that a party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witness or by means of an expert opinion in reply.[7]

22. [L]ike any evidence, expert evidence is subject to the provisions contained in Rule 89(C) and (D) of the Rules. While this Rule grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[8] The Appeals Chamber notes that in a limited number of instances, Trial Chambers have ruled inadmissible the evidence of a proposed expert witness on the ground that this evidence was so lacking in terms of the indicia of reliability because of lack of impartiality and independence or appearance of bias that it was not probative.[9] Such a determination has to be made on a case-by-case basis.[10] Finally, the Appeals Chamber reemphasizes that the decision by a Trial Chamber to admit evidence does not in any way constitute a binding determination as to its authenticity or credibility. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to be attached to the evidence in question.[11]

31. […] The extent of Butler’s involvement with the Prosecution in the investigation and preparation of this case can be explored during cross-examination, thus giving the Appellants full opportunity to challenge the admissibility of Butler’s reports.[12] In this respect, it is worth emphasizing again that the Trial Chamber stated that accepting Butler as an expert and calling him to give evidence does not automatically entail that his reports would be admitted as evidence.[13] It is also noteworthy recalling that Judges of the Tribunal, as professional judges, are able to weigh evidence and consider it in its proper context, or when applicable, to disregard any particular piece of evidence they have heard or read.[14] Furthermore, they are required to write a reasoned decision, which is subject to appeal.[15] 

On 28 November 2007, Trial Chamber I denied a motion by Ante Gotovina for provisional release. It considered that, in the specific circumstances of the case, the guarantees offered by the Government of Croatia were not sufficient to satisfy the Trial Chamber that Gotovina, if provisionally released, would return to the International Tribunal when ordered. In this respect, the Trial Chamber found that, whereas the incentives not to appear for trial remain unchanged, such guarantees “were not sufficiently effective”.

5. Rule 108 bis of the Rules of Procedure and Evidence (“Rules” or “Rule”) provides a mechanism by which a State affected by a decision of a Trial Chamber may request review of that decision by the Appeals Chamber. For such a request to be admissible, the State in question must demonstrate that (i) it is directly affected by the Trial Chamber’s Decision and
(ii) that the decision concerns issues of general importance relating to the powers of the Tribunal.[1] Only when this two-pronged test is met will the Appeals Chamber consider the merits of the State request for review.[2]

6. In particular, the Appeals Chamber recalls that Rule 108 bis was adopted for a State to seek review of a decision that has affected its legal rights. This remedy is unavailable to a State which claims that a decision has affected its legitimate political interests.[3]

12. The Appeals Chamber finds that Croatia is not affected by the Decision, since the principle of sovereign equality enshrined in Article 2(1) of the United Nations Charter is not actually at stake. The Trial Chamber’s consideration on what effect to be given to a State’s guarantees does not affect a State’s legal right, as such guarantees are not dispositive of provisional release determinations. Rather, the Trial Chamber is required to assess all relevant factors relating to individual circumstances of an accused.[4] Here, the Trial Chamber’s decision to reject Gotovina’s request for provisional release was based on Gotovina’s individual circumstances, of which Croatia’s guarantees were only a part.[5] Thus, a Trial Chamber’s provisional release decision is emphatically not an assessment of the reliability of any particular government or the guarantees that it offers.

13. Furthermore, the Trial Chamber’s assessment of the guarantees cannot be said to have affected Croatia’s legal rights since Croatia has no legally cognizable interest either in securing Gotovina’s provisional release or in ensuring that a Trial Chamber will assesses its guarantee in one particular manner.

414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows:

With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted].

417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3]

418. There is thus no obligation on the Prosecution to investigate the alibi. […]

In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement).

478. The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, but also participation in a joint criminal enterprise.[1] […]

896. The Appeals Chamber recalls that the actus reus of the crime of conspiracy to commit genocide is a concerted agreement to act for the purpose of committing genocide. While such actus reus can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence.[1] In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators.[2] However, as in any case where the Prosecutor seeks, on the basis of circumstantial evidence, to prove a particular fact upon which the guilt of the accused depends,[3] the existence of a conspiracy to commit genocide must be the only reasonable inference based on the totality of the evidence.

897. The Appeals Chamber takes the view that the concerted or coordinated action of a group of individuals can constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important: as the Trial Chamber recognized, these words are “the central element that distinguishes conspiracy from ‘conscious parallelism’, the concept put forward by the Defence to explain the evidence in this case”.[4] The Appeals Chamber thus considers that the Appellants were not found guilty by association or by reason of the similarity of their conduct: rather, the Trial Chamber found that there had been a concerted or coordinated action and, on the basis inter alia of this factual finding, it inferred the existence of a conspiracy. […]

898. Turning to Appellant Barayagwiza’s argument, the Appeals Chamber considers that the agreement need not be a formal one.[5] It stresses in this respect that the United States Supreme Court has also recognized that the agreement required for conspiracy “need not be shown to have been explicit”.[6] The Appellant is thus mistaken in his submission that a tacit agreement is not sufficient as evidence of conspiracy to commit genocide. The Appeals Chamber recalls, however, that the evidence must establish beyond reasonable doubt a concerted agreement to act, and not mere similar conduct.

906. The Appeals Chamber finds that, even if this evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants, on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would also have been reasonable to find, on the basis of this evidence, that the Appellants had collaborated and entered into an agreement with a view to promoting the ideology of “Hutu power” in the context of the political struggle between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far as their destruction in whole or in part. Consequently, a reasonable trier of facts could not conclude that the only reasonable inference was that the Appellants had conspired together to commit genocide.

894. Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been defined as “an agreement between two or more persons to commit the crime of genocide”.[1] The existence of such an agreement between individuals to commit genocide (or “concerted agreement to act”[2]) is its material element (actus reus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea).[3]

127. The Appeals Chamber would begin by noting that Rule 45 quater of the Rules expressly states that a “Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”. However, this rule was introduced by an amendment of 6 July 2002 and was therefore not applicable to the situation of Appellant Barayagwiza before this date. Nevertheless, the Appeals Chamber finds that Article 19(1) of the Statute already at that time allowed a Trial Chamber to instruct the Registry to assign a counsel to represent the interests of the accused, even against his will, when the accused had waived his right to be present and participate at the hearings. […]In the instant case, it was open to the Trial Chamber to fulfil this obligation by requesting the Registrar to assign counsel to represent the interests of Appellant Barayagwiza.[1] The Appeals Chamber can find no error or abuse of power on the part of the Trial Chamber.