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Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

259. The Appeals Chamber notes that it has long been the practice of the Prosecution to merely quote the provisions of Article 6(1) of the Statute in the charges, leaving it to the Trial Chamber to determine the appropriate form of participation under Article 6(1) of the Statute. The Appeals Chamber reiterates that, to avoid any possible ambiguity, it would be advisable to indicate in relation to each individual count precisely and expressly the particular nature of the responsibility alleged.[1] Nevertheless, even if an individual count of the indictment does not indicate precisely the form of responsibility pleaded, an accused might have received clear and timely notice of the form of responsibility pleaded, for instance in other paragraphs of the indictment. […]

[1] Ntakirutimana Appeal Judgement, para. 473; Aleksovski Appeal Judgement, n. 319. 

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Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

194. At the time of the Decision on Judicial Notice, Rule 94 provided that “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.”[1]  The Rule was later amended[2] to provide, in addition, for the taking of judicial notice of adjudicated facts or documentary evidence.[3]  The provision relating to facts of common knowledge, provided under paragraph (A) of Rule 94, remained the same.[4]  As the ICTY Appeals Chamber explained in Prosecution v. Milošević, Rule 94(A) “commands the taking of judicial notice” of material that is “notorious.”[5]  The term “common knowledge” encompasses facts that are not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature.[6]  Such facts are not only widely known but also beyond reasonable dispute.[7]  As stated above, the fact that the Appellant did dispute some of the facts judicially noticed before the Trial Chamber did not prevent the Trial Chamber from qualifying the facts as facts of common knowledge since, as explained by the Trial Chamber, “[h]aving entered a plea of not guilty to all the counts in the indictment, the Accused has placed even the most patent of facts in dispute. However, this alone cannot rob the Chamber of its discretion to take judicial notice of those facts not subject to dispute among reasonable persons.”[8]  Having regard to the arguments submitted by the Appellant before the Trial Chamber to challenge the nature of the facts adduced by the Prosecution and to the facts themselves, the Appeals Chamber considers that the said facts were not the subject of a “reasonable” dispute. Therefore, the Appeals Chamber finds that the Trial Chamber did not err in considering that the facts enumerated in the Decision on Judicial Notice were “facts of common knowledge” within the meaning of Rule 94 of the Rules.

[1] Rule 94(A).

[2] See amendments adopted at the ninth session, 3 November 2000.

[3] Rule 94(B).

[4] Rule 94(A).

[5] [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5], “Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicative Facts,” 28 October 2003, p. 3. 

[6] Decision on Judicial Notice, para. 23.  See M. Cherif Bassiouni & P. Manikas, The Law of the International Tribunal for the Former Yugoslavia (United States of America, 1996), p. 952.

[7] Decision on Judicial Notice, para. 24.

[8] Decision on Judicial Notice, para. 31.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

192. The Statute of the Tribunal provides that “[t]he accused shall be presumed innocent until proven guilty according to the provisions of the . . . Statute.”[1] The Trial Chamber in this case was careful to note that it could take judicial notice of facts of common knowledge under Rule 94 of the Rules, but that it could not “take judicial notice of inferences to be drawn from the judicially noticed facts.”[2] The Chamber emphasized that the “burden of proving the Accused’s guilt, therefore, continue[d] to rest squarely upon the shoulders of the Prosecutor for the duration of the trial proceeding,” and it stated that “the critical issue [was] what part, if any, . . . the Accused play[ed] in the events that took place.”[3] As these passages suggest, the Trial Chamber struck an appropriate balance between the Appellant’s rights under Article 20(3) and the doctrine of judicial notice by ensuring that the facts judicially noticed were not the basis for proving the Appellant’s criminal responsibility. Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: that Rwandan citizens were classified by ethnic group between April and July 1994; that widespread or systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time; that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; that Rwanda became a state party to the Convention on the Prevention and Punishment of the Crime of Genocide (1948) on 16 April 1975; and that, at the time at issue, Rwanda was a state party to the Geneva Conventions of 12 August 1949 and their additional Additional Protocol II of 8 June 1977.[4] The Appeals Chamber finds that these judicially noted facts did not relieve the Prosecution of its burden of proof; they went only to the manner in which the Prosecution could discharge that burden in respect of the production of certain evidence which did not concern the acts done by the Appellant. When determining the Appellant’s personal responsibility, the Trial Chamber relied on the facts it found on the basis of the evidence adduced at trial.

[1] Article 20(3).

[2] Decision on Judicial Notice [The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-I, Decision on the

Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000],para. 42.

[3] Ibid., para. 43.

[4] Ibid., Annex A, paras 1-6.

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

192. […] Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: […] that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; […]

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

192. […] Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: that Rwandan citizens were classified by ethnic group between April and July 1994; that widespread or systematic attacks against a civilian population based on Tutsi ethnic identification occurred during that time; […]

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ICTR Rule Rule 94 ICTY Rule Rule 94
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

398. The Appeals Chamber is of the view that it was within the Trial Chamber’s discretion to take into account as mitigation in sentencing the Appellant’s previous good character and accomplishments as bourgmestre. Precedent does not support the Prosecution’s position that “being a successful academic, politician or administrator is irrelevant” as a mitigating factor in crimes of genocide and crimes against humanity. Notwithstanding, the Appeals Chamber notes that in most cases the accused’s previous good character is accorded little weight in the final determination of determining the sentence.[1] […]

[1] Niyitegeka Appeal Judgement, paras 264-266; Kupreškić et al. Appeal Judgement, paras 428-430.

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ICTR Rule Rule 101(B)(ii) ICTY Rule Rule 101(B)(ii)
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

360. In its Judgement, the Trial Chamber considered the correct definition for ordering under Article 6(1) of the Statute to be as follows:

“Ordering” refers to a situation where an individual has a position of authority and uses that authority to order – and thus compel – another individual, who is subject to that authority, to commit a crime. Criminal responsibility for ordering the commission of a crime under the Statute implies the existence of a superior-subordinate relationship between the individual who gives the order and the one who executes it. [1]

361. Thus, in its definition, the Trial Chamber did not require proof of a formal superior-subordinate relationship for the Appellant to be found responsible for ordering. All that it required was the implied existence of a superior-subordinate relationship. The Trial Chamber’s approach in this case is consistent with recent jurisprudence of the Appeals Chamber. As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required.[2] It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order.[3] The Trial Chamber thus committed no legal error in its enunciation of the elements of ordering. 

363. It should be recalled that authority creating the kind of superior-subordinate relationship envisaged under Article 6(1) of the Statute for ordering may be informal or of a purely temporary nature. Whether such authority exists is a question of fact. […]

[1] Trial Judgement, para. 382.

[2] Kordić and Čerkez Appeal Judgement, para. 28.

[3] Kordić and Čerkez Appeal Judgement, para. 28. 

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

394. In relation to the submission that the sentences imposed by the Trial Chamber are disproportionate to those imposed in other cases before the International Tribunals and do not reflect the gravity of the crimes, the Appeals Chamber recalls that, as a general principle, comparison to other cases in support of a move to have the sentence increased may indeed provide guidance if it relates to the same offence, in particular if the crimes were committed in substantially similar circumstances. However, such comparison may be of limited value given that each case has its own particular circumstances and that the aggravating and mitigating factors may dictate different results.[1] Ultimately, the decision as to the length of sentence is a discretionary one, turning on the circumstances of the case.[2]

[1] Čelibići Appeal Judgement, para 717.

[2] Krstić Appeal Judgement, para. 248.

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Notion(s) Filing Case
Appeal Judgement - 20.05.2005 SEMANZA Laurent
(ICTR-97-20-A)

377. […] Following the Krstić Appeal Judgement, the Trial Chamber in this case was […] entitled to impose a greater or lesser sentence than that which would have been imposed by the Rwandan courts.[1]

380. […] Although his sentence may have been more severe in Rwandan courts, the Trial Chamber acted within its discretion when it imposed a lesser sentence. […]

[1] Krstić Appeal Judgement, paras 262, 270.

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Notion(s) Filing Case
Oral Decision on Additional Evidence - 19.05.2005 KAMUHANDA Jean de Dieu
(ICTR-99-54A-A)

Transcript of 19 May 2005, pp. 49-50:

Over the past two days, we have heard from two Defence witnesses under Rule 115, provisions for hearing additional evidence on appeal.  We have also heard from two Prosecution witnesses who were presented in the rebuttal to the Appellant's additional evidence, and we are now presented with a new motion by the Appellant to call yet two more witnesses who, the Appellant alleges, will challenge the testimony of one of the Prosecution's rebuttal witnesses. […]

At today's Rule 115 hearing a Prosecution witness alleged that two Tribunal employees approached her at the United Nations safe house where she was staying while testifying before this Tribunal in another case.  She further alleged that these two Tribunal employees offered to pay her money and give her substantial assistance in other ways if she would come back to this Court and recant her trial testimony in the Kamuhanda case.  The Appellant would now like to call these two Tribunal employees, presumably, for the purpose of getting them to deny having offered any bribes to the Prosecution witness in question.

For two reasons, the Appeals Chamber is not persuaded that this is appropriate.  First, this is a Rule 115 hearing, which is intended to be a sharply delimited proceeding for entering discrete, specific evidence into the record; it is not intended to be a trial within a trial that opens the door to the exploration of every issue that might be raised during the hearing.  Presenting these two witnesses would be a rejoinder to a rebuttal to the Defence's original Rule 115 evidence, and there is no guarantee that it would end there.

Second, the Appeals Chamber is not convinced that the witness's testimony will make a material difference to the Defence's case.  The Appeals Chamber simply does not believe that such evidence on the record would be at all helpful in assessing the credibility of the Prosecution's rebuttal witnesses.  The Appeals Chamber does not foreclose the possibility that if sufficiently compelling or unexpected evidence surfaces during a Rule 115 hearing, it might be required in the interests of justice to expand the hearing beyond its original scope.  But under the circumstances of this case the Appellant has failed to convince the Chamber that such truly exceptional circumstances exist.  The Appellant's motion is denied.

The Appeals Chamber decided to refer the allegations of contempt and false testimony, which arose during the course of the Rule 115 proceedings, to the Prosecution for general investigation. See pp. 50-51.

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ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s) Filing Case
Order to Vary Protective Measures - 17.05.2005 BRĐANIN Radoslav
(IT-99-36-A)

CONSIDERING the Appeals Chamber’s inherent authority, as the Chamber currently seised of proceedings in this case, to modify orders entered earlier in these proceedings, including those issued pursuant to Rule 75(A) of the Rules;[1]

[1] Cf. Rule 54 of the Rules.

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ICTR Rule Rule 54 ICTY Rule Rule 54
Notion(s) Filing Case
Decision on Amendment of the Indictment - 12.05.2005 MUVUNYI Tharcisse
(ICTR-00-55A-AR73)

22. […] While confirming the principle that to avoid prejudice to an accused in the preparation of the defence case the Prosecution must plead the material facts in the indictment, it does not follow that a Trial Chamber must allow a Prosecution application to amend an indictment to expand the material facts alleged pre-trial if in all the circumstances prejudice would accrue to the accused by those amendments.  The fact that the expansion of counts charged may be derived from material already disclosed to the Accused also does not automatically nullify prejudice to the Accused.  It is to be assumed that an Accused will prepare his defence on the basis of material facts contained in the indictment, not on the basis of all the material disclosed to him that may support any number of additional charges, or expand the scope of existing charges.  In either circumstance, when a complaint is made on appeal about a failure to plead material facts, or objection is made to a Prosecution application to amend to add material facts or new charges, the issue is whether the accused has been or will be prejudiced.

38. While the Appeals Chamber has determined that the Trial Chamber erred in classifying some of the proposed amendments as new charges, this does not necessarily mean that the Trial Chamber erred in the decision that it reached to reject the proposed amendments.  As the Trial Chamber acknowledged in its decision, new charges do not prohibit a Chamber from granting the Prosecution leave to amend an indictment.  Conversely, the fact that an amendment to an indictment does not amount to a new charge does not automatically obligate the Trial Chamber to permit it.  Rule 50 (A), which governs the permissibility of amendments to indictments, does not distinguish between amendments that add new charges and those that merely add or clarify material facts.  Rather, whether to permit either kind of indictment is a multi-factor discretionary decision for the Trial Chamber.  In this case, the Trial Chamber’s decision did not turn principally on the fact that new charges were involved, but rather on the prejudice to the Accused that would result from permitting the amendments and on the Prosecution’s failure to request the amendments at a date consistent with due diligence.  Thus, the Appeals Chamber’s conclusion that the Trial Chamber incorrectly categorised some of the amendments as new charges does not require setting aside the Trial Chamber’s decision; instead, the Appeals Chamber must assess the issues of prejudice and prosecutorial diligence.

 

51. […] As the Appeals Chamber held in the Karemera case, “although Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason”.[1]  Under some circumstances, the Prosecution might justifiably wait to file an amendment while it continues its investigation so as to determine whether further evidence either strengthens its case or weakens it.  […] Where the Prosecution has delayed unnecessarily in bringing particular allegations, and this delay has caused prejudice to the defendant, it is within the Trial Chamber’s discretion to find that this delay constitutes sufficient ground to refuse an amendment to an indictment.[2]

[1]     Prosecutor v Karemera, No ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 December 2003 Denying Leave to File An Amended Indictment, 19 December 2003, para. 20.

[2]     The Trial Chamber may consider lack of prosecutorial diligence as a factor supporting denial of an amendment even if no bad faith is demonstrated on the part of the prosecution – that is, even if the prosecution did not deliberately delay the amendment in order to seek a strategic advantage. See id. at para. 23 (holding that in such circumstances, the “Prosecution’s failure to show that the amendments were brought forward in a timely manner must be “measured within the framework of the overall requirement of the fairness of the proceedings”).

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ICTR Rule Rule 50 ICTY Rule Rule 50
Notion(s) Filing Case
Decision on Amendment of the Indictment - 12.05.2005 MUVUNYI Tharcisse
(ICTR-00-55A-AR73)

19. There is a clear distinction between counts or charges made in an indictment and the material facts that underpin that charge or count.  The count or charge is the legal characterisation of the material facts which support that count or charge.  In pleading an indictment, the Prosecution is required to specify the alleged legal prohibition infringed (the count or charge) and the acts or omissions of the Accused that give rise to that allegation of infringement of a legal prohibition (material facts).  The distinction between the two is one that is quite easily drawn.

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Notion(s) Filing Case
Decision on Dismissing Prosecution's Ground 1 - 05.05.2005 BRĐANIN Radoslav
(IT-99-36-A)

CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamber’s Judgement or factual errors occasioning a miscarriage of justice,[1] it has repeatedly held that it may also consider legal issues that are “of general significance to the Tribunal’s jurisprudence,”[2] even if they do not affect the verdict, so long as they have a “nexus with the case at hand,”[3] and that such determinations do not constitute impermissible “advisory opinions,”[4] but are instead necessary means of moving forward this ad hoc International Tribunal’s jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;[5]

[1] Statute of the International Tribunal, Art. 25.

[2] Prosecutor v. Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 247 and 281; Prosecutor v. Jean-Paul Akeyesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement), para. 19; Prosecutor v. Delalić, Mucić, Delić, and Landžo et al., Case No. IT-96-21-A, Judgement, 20 February 2001, paras. 218 and 221.

[3] Akayesu Appeal Judgement, para. 24.

[4] Id. para 23.

[5] Id. paras. 21-22.

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Notion(s) Filing Case
Decision on Dismissing Prosecution's Ground 1 - 05.05.2005 BRĐANIN Radoslav
(IT-99-36-A)

CONSIDERING that, therefore, although the Prosecution would ordinarily be estopped from changing its position on appeal, this equitable doctrine of estoppel has no application where a change in position does not prejudice the opposing party, which is not obligated even to contest the issue; 

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Notion(s) Filing Case
Decision on Judicial Notice - 01.04.2005 NIKOLIĆ Momir
(IT-02-60/1-A)

17. The Appeals Chamber emphasizes that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general Rules governing the admissibility of evidence and litter the record with matters which would not be admitted otherwise. Accordingly, on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted.  For a fact capable of judicial notice to be admitted on appeal, the requirements provided for by Rule 115 of the Rules need to be satisfied.

18. Accordingly, the Appeals Chamber finds that a motion filed solely under Rule 94 of the Rules, without addressing the requirements of Rule 115 of the Rules, is an incorrect way to seek to have facts or documentary evidence admitted on appeal. Contrary to the argument of the Appellant, the Appeals Chamber finds that this will not “eviscerate” Rule 94 of the Rules in relation to all appellate proceedings, since the legal consequences attached to the taking of judicial notice remain the same. In this respect, the Appeals Chamber recalls that the taking of judicial notice under Rule 94(A) or 94(B) of the Rules entails specific consequences for the moving party.

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ICTR Rule Rule 94;
Rule 115
ICTY Rule Rule 94;
Rule 115
Notion(s) Filing Case
Decision on Judicial Notice - 01.04.2005 NIKOLIĆ Momir
(IT-02-60/1-A)

45. With respect to the Prosecution’s argument to the effect that documentary evidence must also be adjudicated evidence, the Appeals Chamber concurs with the Trial Chamber in the Bizimungu case which concluded that the wording of Rule 94(B) of the Rules suggests that the term “adjudicated” only relates to “facts” and does not extend to “documentary evidence”. Thus, the Trial Chamber held that:

“…under Sub-Rule 94(B), both facts (which have been previously adjudicated) and documents (which have been received and admitted in previous proceedings) may be judicially noticed. Therefore, to be taken judicial notice of, the facts must be adjudicated facts, meaning facts upon which, on a previous occasion, in another case, this Tribunal in any of its several Chambers has deliberated and made a decision. Such decision must be conclusive in that it is not under challenge before the Appeals Chamber or if challenged, the Appeals Chamber upheld it. Regarding the second part of Sub-Rule 94(B), to be taken judicial notice of, documents must constitute “documentary evidence from other proceedings of the Tribunal” and must “relate to the matter at issue in this case”. [1]

[…] Documents do not need to be “adjudicated” i.e. the Chamber in other proceedings does not need to have pronounced a specific and unchallenged or unchallengeable decision on the admissibility of the document. It is enough that the document was admitted into evidence or “admis lors d’autres affaires portées devant le Tribunal”[2]

[…]

47. The Appeals Chamber notes that concerning “documentary evidence”, Rule 94(B) of the Rules enables a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement.[3] Accordingly, the Appeals Chamber could take judicial notice of the section of the report proffered […] if it was satisfied that it meets the requirements set out in Rules 94(B) and 115 of the Rules. […] The Appeals Chamber finds nonetheless, that it would not serve judicial economy to grant the Appellant’s request and judicially notice entire sections of a report or document, since the Appellant has not  demonstrated  exactly which part of the section is relevant to the current proceedings.  The mere reference to whole sections or paragraphs of “documentary evidence” of a previous judgement is insufficient to trigger the exercise of the Chamber’s discretion under Rule 94(B) of the Rules.[4]

[…]

55. […] Bearing in mind the text of Rule 94(B) of the Rules, the Appeals Chamber notes that one paragraph in a judgement can contain more than one fact. Accordingly, a request pursuant to Rule 94(B) of the Rules must be specific if the facts sought to be judicially noticed are to be clearly determined. A motion under Rule 94(B) of the Rules should specify exactly which fact is sought to be judicially noticed and how each fact relates to the matters at issue in the current proceedings, in the instant case, to the grounds of appeal raised.[5]

[1] Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on Prosecution’s Motion for Judicial Notice Pursuant to Rules 73, 89 and 94,  2 December 2003, para. 34.

[2] Ibid., para. 35.

[3] Ibid. [Prosecutor v. Zoran Kupreškić et al,  IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 And For Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001, para. 6, ad finem.]]

[4] Regarding “adjudicated facts” sought to be judicially noticed through the reproduction of whole paragraphs of a judgement, see: Bizimungu 10 December 2004 Decision on Defence Motion [Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on Prosper Mugiraneza’s First Motion for Judicial Notice Pursuant to Rule 94(B), 10 December 2004]], para. 13 and Bizimungu 10 December 2004 Decision on Prosecution Motion [Prosecutor v. Casimir Bizimungu et al., ICTR-99-50-I, Decision on the Prosecutor’s Motion and Notice of Adjudicated Facts (Rule 94(B) of the Rules of Procedure and Evidence),10 December 2004]], para. 19.

[5] Bizimungu 10 December 2004 Decision on Defence Motion, para. 13; Bizimungu 10 December 2004 Decision on Prosecution’s Motion, para. 19.

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ICTR Rule Rule 94(B) ICTY Rule Rule 94(B)
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

A. Pleading Practices of the Prosecution

9. The interlocutory appeal of the Appellants does relate to issues that should have been raised in a preliminary motion filed pursuant to Rule 72 of the Rules. The first complaint is directed to the pleading practices of the Prosecution. In relation to each of the Counts challenged on this Appeal, the Appellants argue that the Prosecution failed to satisfy the first requirement of the Tadić Jurisdiction Decision by not identifying the rule of international humanitarian law alleged to have been breached, or indicating whether the legal basis for that count was the laws of war (conventional) or customary international law (customs of war).[1]

10. While the Appeals Chamber agrees that an accused is entitled to know the jurisdictional basis for the charge against him, the Appellants in this case did not complain of the Prosecution’s pleading prior to the commencement of this trial pursuant to Rule  72 of the Rules.[2] Given that it was clear at that time that the Prosecution was not expressly pleading the nature of the armed conflict, and that the Prosecution was proceeding on the basis that Article 3 applied to both international and non-international conflicts, it might be inferred that the Appellants saw a tactical advantage in waiting until this time. While the Appellants say that, during the pre-trial stage, they made no challenge to the pleading because of the holding of the Tadić Jurisdiction Decision regarding the application of Article 3 offences to both types of conflict, they also say that the Tadić Jurisdiction Decision did not establish the applicability of all Article 3 offences to non-international armed conflicts, because Tadić was not charged with any property offences under Article 3.[3] Hence, the Appellants’ reliance on the Tadić Jurisdiction Decision as a reason for not bringing a pre-trial motion challenging the Prosecution’s pleading is not persuasive. The Appellants knew at the time of the issuing of the Indictment that their argument would be that the Tadić Jurisdiction Decision did not establish the application of the Article 3 offences subject of Counts 5, 6 and 7 to non-international armed conflicts, and that complaint should have been made pre-trial.

11. The Appellants further complain that the Prosecution did not identify the legal basis for the Counts charged because it did not want to commit itself to proving that the armed conflict was either international or non-international.[4] This is also a complaint about the pleading practice of the Prosecution that should have been brought by the Appellants during the pre-trial stage. By not pleading the nature of the armed conflict in the Indictment, the Prosecution left the issue to the Trial Chamber to determine. The Prosecution also made it clear to the Appellants that it did not consider the Tribunal’s jurisdiction over Counts 5, 6, and 7 to be dependent on a finding that an international armed conflict occurred. If the Appellants required greater clarification than this, they should have filed a pre -trial motion pursuant to Rule 72.

[1]           Defence Appeal [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Joint Defence Interlocutory Appeal of Trial Chamber Decision on Enver Hadžihasanović and Amir Kubura’s Rule 98bis Motions for Acquittal, 2 November 2004], para. 45.

[2]           Prosecutor v Pavle Strugar, et al., IT-01-42-AR72, 22 November 2002, para. 13.

[3]           Defence Appeal, para. 56.

[4]           Ibid., paras. 50, 66, 72, 78.

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ICTY Statute Article 3 ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

B. Jurisdiction of the Tribunal over Article 3 Offences

12. The second complaint of the Appellants relates to the jurisdiction of the Tribunal over Counts 5, 6 and 7 in non-international armed conflicts. This is also a complaint that should have been made by the Appellants pre-trial pursuant to Rule 72. However, because the resolution of this issue will assist both the Appellants and the Prosecution in the further conduct of the trial proceedings, and the Trial Chamber in the rendering of its judgment, the Appeals Chamber resolves to determine this issue. 

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ICTY Statute Article 3 ICTR Rule Rule 72 ICTY Rule Rule 72
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-AR73.3)

1. Scope of Article 3

13. The Appellants’ challenge to the Tribunal’s jurisdiction over Counts 5, 6 and 7 of the Indictment stems from the Appellants’ interpretation of the Tadić Jurisdiction Decision regarding the scope of jurisdiction under Article 3 of the Statute. In the Tadić Jurisdiction Decision, the Appeals Chamber held that Article 3 confers jurisdiction over any serious offence against international humanitarian law committed in non-international or international armed conflict not covered by Articles 2, 4, or 5.[1] The Appeals Chamber prescribed a four-prong test to ensure that offences charged under Article 3 lie within the International Tribunal’s jurisdiction.[2] On appeal the Appellants argue that the jurisdictional grant embodied in the enumerated provisions of Article 3 only refers to the conventional law from which that text is derived. The Appellants claim that as that conventional law underpinning Articles 3(b), (d) and (e), charged in Counts 5, 6 and 7 of the Indictment respectively, relates to international armed conflicts and situations in occupied territory, the Tribunal does not have jurisdiction over these offences in non-international armed conflicts.[3]

14. The Appellants’ position is an unnecessarily narrow reading of the Appeals Chamber’s jurisprudence with respect to the scope of the enumerated provisions in Article 3. In the Tadić Jurisdiction Decision, the Appeals Chamber stated, with respect to the list of enumerated violations, that “this list may be construed to include other infringements of international humanitarian law”,[4] demonstrating that the enumerated crimes of the list itself should be considered to encompass rules in addition to the conventional law from which their text originates.[5] Accordingly, properly understood, Article 3 confers jurisdiction over violations of rules that are expressed by the provisions of the Article, but which are not limited to the conditions of the rule’s origin in conventional instruments applicable to international armed conflicts only.[6]

See also para. 45.

[1]           Tadić Jurisdiction Decision [Prosecutor v. Dusko Tadić., Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], paras. 89-91 (and noting the Secretary-General’s Report, which stated that “Article 3 is taken to cover all violations of international humanitarian law other than [those covered by other provisions of the Statute]”).

[2]           See supra, para. 5 [apparently intending to refer to supra, para. 6:

“i) the violation must constitute an infringement of a rule of international law;

ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions must be met;

iii) the violation must be serious; and

iv) the violation of the rule must entail, under customary or conventional law, the individual criminal responsibility of the person breaching the rule.” (footnote omitted)].

[3] Defence Appeal [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Joint Defence Interlocutory Appeal of Trial Chamber Decision on Enver Hadžihasanović and Amir Kubura’s Rule 98bis Motions for Acquittal, 2 November 2004], paras. 25-29.

[4]           Tadić Jurisdiction Decision, para. 87 (emphasis added).

[5]           Regulations annexed to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 […].

[6]           Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex containing the Charter of the International Military Tribunal, art. 6, Aug. 8, 1945, 59 Stat. 154, 82 U.N.T.S. 279 […].

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ICTY Statute Article 3