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Notion(s) Filing Case
Appeal Judgement - 29.07.2004 BLAŠKIĆ Tihomir
(IT-95-14-A)

186. It is, therefore, evident, both from the text of Article 4(2)[1] and the accompanying Commentary, that for Article 4(2) to be relevant, it must be demonstrated, first, that the States were allies, and second, that they enjoyed effective and satisfactory diplomatic representation with each other. In contrast, the Appellant submits that the Trial Chamber should have ignored the fact that “HVO and ABiH forces, at times, fought each other” and looked simply at the “formal diplomatic relations” between the two States.[2] Such an approach is not only inconsistent with the object and purpose of Article 4 of Geneva Convention IV, that is, “the protection of civilians to the maximum extent possible”,[3] but also conflates the distinction between co-belligerence and diplomatic representations.

187.    The Appellant makes no attempt to reconcile the apparent contradiction between the status of belligerent and that of co-belligerent, but instead refers the Appeals Chamber to allegedly “uncontroverted evidence establishing co-belligerence and diplomatic relations” between the two States.[4] The language of Article 4 of Geneva Convention IV is not so elastic as to allow the conclusion that two States could simultaneously be allies and belligerents with each other. In this case, the States of Croatia and Bosnia-Herzegovina were engaged in a conflict against each other. This, in itself, establishes that they were not co-belligerents within the meaning Article 4(2) for the purpose of crimes arising out of that conflict.

[1] It provides: “Nationals of a State which is not bound by the Conventions are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerentState, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

[2] Appellant’s Brief, p. 181.

[3] Tadić Appeal Judgement, para. 168.

[4] Appellant’s Brief, p. 181.

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Other instruments Geneva Convention IV: Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

53. The words “as such,” [in Article 2(2) of the ICTR Statute] however, constitute an important element of genocide, the “crime of crimes.”[1] It was deliberately included by the authors of the Genocide Convention in order to reconcile the two diverging approaches in favour of and against including a motivational component as an additional element of the crime. The term “as such” has the effet utile of drawing a clear distinction between mass murder and crimes in which the perpetrator targets a specific group because of its nationality, race, ethnicity or religion.[2] In other words, the term “as such” clarifies the specific intent requirement. It does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context. Thus the Trial Chamber was correct in interpreting “as such” to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership.

See also paragraphs 49–52.

[1] Prosecutor v. Kambanda, ICTR-97-23-S, Judgement and Sentence, 4 September 1998, para. 16; Prosecutor v. Jelisić, IT-95-10-A, Judgement, 14 December 1999, Partial Dissenting Opinion of Judge Wald, para. 2.

[2] See William A. Schabas, Genozid im Völkerrecht (2003), pp. 340-341; William A. Schabas, Genocide in International Law (2000), pp. 254-255.

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ICTR Statute Article 2(2)
Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

30. Pursuant to Rule 66(A)(ii) of the Rules, the Prosecutor has a duty, inter alia, to make available to the Defence copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial. The Appeals Chamber notes that neither the ICTR nor ICTY has provided a clear definition of the term “statement.” In particular, the jurisprudence has not made a clear distinction between “statements” and “internal documents prepared by a party [which] are not subject to disclosure or notification”[1] under Rules 66 and 67 of the Rules.[2]

31. A record of a witness interview, ideally, is composed of all the questions that were put to a witness and of all the answers given by the witness. The time of the beginning and the end of an interview, specific events such as requests for breaks, offering and accepting of cigarettes, coffee and other events that could have an impact on the statement or its assessment should be recorded as well.

32. Such an interview must be recorded in a language the witness understands. As soon as possible after the interview has been given, the witness must have the chance to read the record or to have it read out to him or her and to make the corrections he or she deems necessary and then the witness must sign the record to attest to the truthfulness and correctness of its content to the best of his or her knowledge and belief. A co-signature by the investigator and interpreter, if any, concludes such a record.

33. Records of questions put to witnesses by the Prosecution and of the answers given constitute witness statements pursuant to Rule 66(A)(ii) of the Rules. It is necessary to disclose the questions put to the witness in order to make the statement intelligible. This obligation also follows from the fair trial guarantees stipulated in Articles 19 and 20 of the Statute. Furthermore, an accused must have access to the questions put to the witness in order to be able to prepare for cross-examination properly. At times, it may be impossible to assess the probative value of the witness’s answer without juxtaposing it with the relevant question. This may also affect a Chamber’s assessment of the credibility of the witness and the reliability of a testimony in its development. The record of the first interview with a witness is of the highest value because it is most likely to capture the witness’s recollection accurately, being closest in time to the events and less vulnerable to any subsequent influence.

34. Questions that were put to a witness – thus being part of the witness statement – have to be distinguished from “internal documents prepared by a party”,[3] which are not subject to disclosure under Rule 70(A) of the Rules, as an exception to the general disclosure obligation pursuant to Rule 66(A)(ii) of the Rules. A question once put to a witness is not an internal note any more; it does not fall within the ambit and thereby under the protection of Rule 70(A) of the Rules. If, however, counsel or another staff member of the Prosecution notes down a question prior to the interrogation, without putting this question to the witness, such a question is not subject to disclosure. Similarly, any note made by counsel or another staff member of the Prosecution in relation to the questioning of the witness is not subject to disclosure, unless it has been put to the witness.

35. The fact that a particular witness statement does not correspond to the standard set out above does not free a party from its obligation to disclose it to the other party pursuant to Rule 66(A)(ii) of the Rules. Furthermore, a witness statement which does not correspond to the standard set out above does not necessarily render the proceedings unfair. The Prosecution is obliged to make the witness statement available to the Defence in the form in which it has been recorded. However, something which is not in the possession of or accessible to the Prosecution cannot be subject to disclosure: nemo tenetur ad impossibile (no one is bound to an impossibility).[4]

36. Also, a statement not fulfilling the ideal standard set out above is not inadmissible as such. Pursuant to Rule 89(C) of the Rules, a Chamber may admit any relevant evidence which it deems to have probative value. However, any inconsistency of a witness statement with the standard set out above may be taken into consideration when assessing the probative value of the statement, if necessary.

[1] See Rule 70(A) of the Rules.

[2] This does not of course affect the Prosecution’s obligation to disclose exculpatory material under Rule 68 of the Rules.

[3] Emphasis added.

[4] Black’s Law Dictionary, 7th Edition (St. Paul, West Group, 1999), Legal Maxims, p. 1662.

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ICTR Rule Rule 66(A) ICTY Rule Rule 66(A)
Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

197. Whether the Prosecution cured a defect in the indictment depends, of course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment’s failure to give notice of the charges asserted against the accused. Kupreškić considered that adequate notice of material facts might be communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial.[1] The timing of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant in determining whether subsequent communications make up for the defect in the indictment.[2] As has been previously noted, “mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[3]

[1] Kupreškić et al. Appeal Judgement, paras. 117-120.

[2] Kupreškić et al. Appeal Judgement, paras. 119-121.

[3] Prosecutor v. Brðanin and Talić, Case No. IT-99-36-PT, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001, para. 62.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

198. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. Although the Judgement in Kupreškić did not address this issue expressly, the Appeals Chamber’s discussion indicates that the burden in that case rested with the Prosecution. Kupreškić stated that, in the circumstances of that case, a breach of “the substantial safeguards that an indictment is intended to furnish to the accused” raised the presumption “that such a fundamental defect in the … Indictment did indeed cause injustice.”[1] The defect could only have been deemed harmless through a demonstration “that [the Accused’s] ability to prepare their defence was not materially impaired.”[2] Kupreškić clearly imposed the duty to make that showing on the Prosecution, since the absence of such a showing led the Appeals Chamber to “uph[o]ld the objections” of the accused.[3]

[1] Kupreškić et al. Appeal Judgement, para. 122.

[2] Ibid.

[3] Kupreškić et al. Appeal Judgement, paras. 124-125.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

199. It is noteworthy, however, that Kupreškić specifically mentioned the fact that the accused in that case had made a timely objection before the Trial Chamber to the admission of evidence of the material fact in question.[1] In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.”[2] Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.

200. The importance of the accused’s right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused’s ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[3]

[1] Kupreškić et al. Appeal Judgement, para. 123.

[2] Kayishema and Ruzindana Appeal Judgement, para. 91.

[3] See Kupreškić et al. Appeal Judgement, para. 122 as well as United States v. Cotton, 535 U.S. 625, 631-634 (2002), Rippingdale v. The Queen, 109 A Crim R 304 (1999), at paras. 51-55 and R. v. Nisbet, (1971) 55 Cr. App. R. 490, 499-500.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

14. The Tribunal’s instruments do not prescribe qualification requirements for members of the staff of the Office of the Prosecutor appearing before it. While Rule 44(A) of the Tribunal’s Rules of Procedure and Evidence (“Rules”) stipulates that a counsel engaged by a suspect or an accused “shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law,” the Rules and other instruments of the Tribunal contain no corresponding qualification provision for Prosecution counsel. In consequence, the integrity of the trial process before the Tribunal cannot be undermined, per se, by the status a Prosecution counsel may or may not have as a member of the bar in any State.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

16. […] [Counsel Pollard] was entitled to exercise such powers of the Prosecutor as have been entrusted to her under Rule 37(B) of the Rules. In the exercise of such powers, Counsel Pollard was required to adhere to the standards of professional conduct set out in Regulation No. 2 [Prosecutor’s Regulation No. 2, Standards of Professional Conduct for Prosecution Counsel (1999)]. In addition, as a staff member of the United Nations, she also had a duty to act in accordance with the Charter of the United Nations, its Staff Rules and its Staff Regulations, which include a duty to act with integrity and honesty.[1] Similar standards are imposed upon defence counsel appearing before the Tribunal who have a duty to “act honestly, fairly, skilfully, diligently and courageously”.[2] However, the Appeals Chamber stresses that the integrity of the judicial process demands that these ethical standards be applicable to all counsel appearing before the Tribunal. All counsel have a duty to adhere, as a minimum, to these ethical standards. This is independent of formal provisions or counsel’s membership of a national bar.

[…]

20. […] Counsel Pollard, like all Prosecution counsel, was required to follow the standards of professional conduct expected of all counsel appearing before the Tribunal in addition to those prescribed in Regulation No. 2, which include the duty to demonstrate candour before the Tribunal and not knowingly to make incorrect statements of material facts to the Tribunal.[3] It is, of course, essential that the Chambers of the Tribunal be able to rely on the integrity of counsel on both sides and that counsel be able to rely on each other’s statements.[4] Dereliction in the duty of honesty may, in appropriate cases, be cause for sanctions or for contempt proceedings. Such dereliction by Prosecution counsel may also be contrary to the Charter of the United Nations and a breach of the relevant Staff Regulations and Staff Rules. […]

[1] For example, article 101 of the Charter of the United Nations provides that “The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity.” The United Nations Staff Regulations (ST/SGB/2003/5) 7/2/03, regulation 1.2 provides that “staff members shall uphold the highest standards of efficiency, competence and integrity. The concept of integrity includes, but is not limited to, probity, impartiality, fairness, honesty and truthfulness in all matters affecting their work and status.”

[2] ICTR Code of Professional Conduct for Defence Counsel, 8/6/98, Introduction, point 2.

[3] See Regulation No. 2, para. 2(e).

[4] See R. v. Early, [2002] EWCA Crim 1904, [2003] 1 Cr App R 288 at para. 10 (“Judges can only make decisions and counsel can only act and advise on the basis of the information with which they are provided. The integrity of our system of criminal trial depends on judges being able to rely on what they are told by counsel and on counsel being able to rely on what they are told by each other. This is particularly crucial in relation to disclosure ….”).

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

45. Following the Judgement of the ICTY Appeals Chamber in the case of Prosecutor v. Furundžija, the Appeals Chamber held in Akayesu that “there is a presumption of impartiality that attaches to a Judge or a Tribunal and, consequently, partiality must be established on the basis of adequate and reliable evidence.”[1] On appeal, it is for the appealing party to rebut this presumption of impartiality. As stated in Furundžija in respect of a reasonable apprehension of bias, the Appellant bears the burden of adducing sufficient evidence to satisfy the Appeals Chamber that the Judges were not impartial.[2] In Furundžija the ICTY Appeals Chamber held that there is “a high threshold to reach in order to rebut the presumption of impartiality” and recalled that “disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established’”.[3] The Appeals Chamber recently confirmed this position in the Judgement in the case of Rutaganda v. Prosecutor.[4]

[1] Akayesu Appeal Judgement, para. 91, following Furundžija Appeal Judgement, paras. 196, 197.

[2] Furundžija Appeal Judgement, para. 197.

[3] Furundžija Appeal Judgement, para. 197 (quoting Mason J. in Re JRL; Ex parte CJL (1986) CLR 343, p. 352).

[4] See Rutaganda Appeal Judgement, paras. 39-125.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

96. It is not a legal error per se to accept and rely on evidence that varies from prior statements or other evidence. However, a Trial Chamber is bound to take into account inconsistencies and any explanations offered in respect of them when weighing the probative value of the evidence.[1] […]

[1] See Kupreškić et al. Appeal Judgement, para. 31. 

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

98. The ordinary meaning of the term “accomplice” is “an associate in guilt, a partner in crime.”[1] Nothing in the Statute or the Rules of the Tribunal prohibits a Trial Chamber from relying upon testimony of those who were partners in crime of persons being tried before it. As stated above, a Chamber may admit any relevant evidence which it deems to have probative value.[2] Accomplice testimony is not per se unreliable, especially where an accomplice may be thoroughly cross-examined.[3] However, considering that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal, a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the circumstances in which it was tendered.[4] In the view of the Appeals Chamber, reliance upon evidence of accomplice witnesses per se does not constitute a legal error.

[1] Oxford English Dictionary (2nd ed.).

[2] See Rule 89(C) of the Rules.

[3] See Media Case[Nahimana et al.]., Case No. ICTR-99-52-I, Decision on the Defence Motion Opposing the Hearing of the Ruggiu Testimony against Jean Bosco Barayagwiza, 31 January 2002, pp. 2-3.

[4] See Kordić and Čerkez Trial Judgement, para. 629. See also Media Case [Nahimana et al.]. Trial Judgement, para. 824.

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Notion(s) Filing Case
Appeal Judgement - 09.07.2004 NIYITEGEKA Eliézer
(ICTR-96-14-A)

267. […] As the Appeals Chamber stated in Musema, “[i]f a Trial Chamber finds that mitigating circumstances exist, it is not precluded from imposing a sentence of life imprisonment, where the gravity of the offence requires the imposition of the maximum sentence provided for.”[1] Proof of mitigating circumstances does not automatically entitle the Appellant to a “credit” in the determination of the sentence; rather, it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination. […]

[1] Musema Appeal Judgement, para. 396.

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Notion(s) Filing Case
Decision on Admissibility of Evidence - 02.07.2004 NTAHOBALI & NYIRAMASUHUKO
(ICTR-97-21-AR73)

14. […] [W]hilst it may be the case that the allegation of witness RV in relation to Nyiramasuhuko’s presence at the installation of Ndayambaje in Muganza commune is not specifically pleaded in the indictment, this alone does not render the evidence inadmissible.

15. Indeed, pursuant to Rule 89(C) of the Rules, the Trial Chamber may admit any relevant evidence which it deems to have probative value. It should be recalled that admissibility of evidence should not be confused with the assessment of the weight to be accorded to that evidence, an issue to be decided by the Trial Chamber after hearing the totality of the evidence. Consequently, although on the basis of the present indictment it is not possible to convict Nyiramasuhuko in respect of her presence at the installation of Ndayambaje, evidence of this meeting can be admitted to the extent that it may be relevant to the proof of any allegation pleaded in the Indictment.

16. The Appeals Chamber considers therefore that the Trial Chamber acted within its discretion in dismissing the Appellants’ request to declare the evidence of witness RV inadmissible.

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ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Decision on Issuance of Subpoenas - 21.06.2004 HALILOVIĆ Sefer
(IT-01-48-AR73)

10. While a preparation for cross-examination is undeniably a part of the overall preparation for trial, it is not, in and of itself, a sufficient basis for an issuance of subpoena. […] In entertaining a request for a subpoena, a Trial Chamber is therefore entitled to take into account the fact that a witness whom a party seeks to subpoena is scheduled to testify during the trial, and to refuse the request where its sole rationale is to prepare for a more effective cross-examination. A subpoena involves the use of judicial power to compel, and as such, it must be used where it would serve the overall interests of the criminal process, not where it would merely facilitate a party’s task in litigation […].

[…]

12. Where a witness is listed by one party as expected to testify on its behalf with respect to certain issues, it does not necessarily follow that this witness will have no information of value to the opposing party on other issues related to the case. The opposing party may have a legitimate expectation of interviewing such witness in order to obtain this information and thereby better prepare a case for its client. To deprive this expecting party of such ability would hand an unfair advantage to the opposing party, which would be able to block its opponent’s ability to interview crucial witnesses simply by placing them on its witness list.

13. Moreover, the party which placed the witness in question on its list of witnesses may then decide not to call the witness at all. While the other party, such as the Defence in this case, could subsequently petition the Trial Chamber for a subpoena to obtain information from the witness, that party would have lost valuable time in procuring this information and may therefore end up at an unfair disadvantage with respect to the preparation of its case.

14. […] [D]uring cross-examination, the party conducting cross-examination can elicit from the witness evidence exceeding the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness, provided that “the witness is able to give evidence relevant to the case for the cross-examining party.”[1] Given that during cross-examination the Defence can elicit from the Prosecution witness information which is relevant to its own case and goes beyond the scope of the Prosecution’s examination-in-chief, the Defence may have a legitimate need to interview this witness prior to trial in order to properly prepare its case.

[1] Rule 90(H)(i) of the Rules of Procedure and Evidence. 

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Rule 15bis(D) Decision - 21.06.2004 KAREMERA et al.
(ICTR-98-44-A15bis)

9.       First, it is a matter of principle that the parties to a case have a right to be heard before a decision is made which can affect their rights.  The ICTY Appeal Judgment in Jelisić states thus:

In the view of the Appeals Chamber, the fact that a Trial Chamber has a right to decide proprio motu entitles it to make a decision whether or not invited to do so by a party; but the fact that it can do so does not relieve it of the normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made.  Failure to hear a party against whom the Trial Chamber is provisionally inclined is not consistent with the requirement to hold a fair trial.  The Rules must be read on this basis, that is to say, that they include a right of the parties to be heard in accordance with the judicial character of the Trial Chamber.  The availability of this right to the prosecution and its exercise of the right can be of importance to the making of a correct decision by the Trial Chamber: the latter could benefit in substantial ways from the analysis of the evidence made by the prosecution and from its argument on the applicable law.[1]

10.     Secondly, Rule 15bis (D) provides for a right of appeal from a decision made by the remaining judges of a Trial Chamber pursuant to that provision.  The existence of such a right of appeal itself implies that the parties have a right to be heard at the making of the decision from which they appeal.  

[1] Judgement, Case No. IT-95-10-A, 5 July 2001, para. 27.

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ICTR Rule Rule 15 bis(D) ICTY Rule Rule 15 bis(D)
Notion(s) Filing Case
Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

138. […] As the Trial Chamber observed, there is an overlap between Article 4(3) as the general provision enumerating punishable forms of participation in genocide and Article 7(1) as the general provision for criminal liability which applies to all the offences punishable under the Statute, including the offence of genocide.[1]  There is support for a position that Article 4(3) may be the more specific provision (lex specialis) in relation to Article 7(1).[2]  There is, however, also authority indicating that modes of participation enumerated in Article 7(1) should be read, as the Tribunal’s Statute directs, into Article 4(3), and so the proper characterization of such individual’s criminal liability would be that of aiding and abetting genocide.[3]

139. The Appeals Chamber concludes that the latter approach is the correct one in this case. 

140. This […] raises the question of whether, for liability of aiding and abetting to attach, the individual charged need only possess knowledge of the principal perpetrator’s specific genocidal intent, or whether he must share that intent.  The Appeals Chamber has previously explained, on several occasions, that an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime.[4]  This principle applies to the Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent.  The conviction for aiding and abetting genocide upon proof that the defendant knew about the principal perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.

[…]

142. […] there is authority to suggest that complicity in genocide, where it prohibits conduct broader than aiding and abetting, requires proof that the accomplice had the specific intent to destroy a protected group.  Article 4 of the Statute is most naturally read to suggest that Article 4(2)’s requirement that a perpetrator of genocide possess the requisite “intent to destroy” a protected group applies to all of the prohibited acts enumerated in Article 4(3), including complicity in genocide.[5]  There is also evidence that the drafters of the Genocide Convention intended the charge of complicity in genocide to require a showing of genocidal intent.  […]  The texts of the Tribunal’s Statute and of the Genocide Convention, combined with the evidence in the Convention’s travaux préparatoires, provide additional support to the conclusion that the drafters of the Statute opted for applying the notion of aiding and abetting to the prohibition of genocide under Article 4.[6]

[1] See ibid. [Trial Judgement], para. 640; see also Semanza Trial Judgement, paras. 394 - 395 & n. 655.

[2] See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal [Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Decision on Rule 98bis Motion for Judgement of Acquittal, 31 October 2002], para. 47; Semanza Trial Judgement, paras. 394 – 395.

[3] See Stakić Trial Judgement, para. 531; Stakić Decision on Rule 98 Bis Motion for Judgement of Acquittal, para. 47.

[4] See Krnojelac Appeal Judgement, para. 52 (“the aider and abettor in persecution, an offence with a specific intent, must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need not share th[at] intent”); Vasiljević Appeal Judgement, para. 142 (“In order to convict [the accused] for aiding and abetting the crime of persecution, the Appeals Chamber must establish that [he] had knowledge that the principal perpetrators of the joint criminal enterprise intended to commit the underlying crimes, and by their acts they intended to discriminate . . . .”); see also Tadić Appeal Judgement, para. 229 (“In the case of aiding and abetting, the requisite mental element is knowledge that the acts performed by the aider and abettor assist the commission of a specific crime by the principal.”).

[5] The same analysis applies to the relationship between Article II of the Genocide Convention, which contains the requirement of specific intent, and the Convention’s Article III, which lists the proscribed acts, including that of complicity.

[6] As it is not at issue in this case, the Appeals Chamber takes no position on the mens rea requirement for the conviction for the offence of complicity in genocide under Article 4(3) of the Statute where this offense strikes broader than the prohibition of aiding and abetting.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
Notion(s) Filing Case
Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

8. It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. […]

9. The question has also been considered by Trial Chambers of the ICTR, whose Statute contains an identical definition of the crime of genocide.  These Chambers arrived at the same conclusion.  In Kayishema, the Trial Chamber concluded, after having canvassed the authorities interpreting the Genocide Convention, that the term “‘in part’ requires the intention to destroy a considerable number of individuals who are part of the group.”  This definition was accepted and refined by the Trial Chambers in Bagilishema and Semanza, which stated that the intent to destroy must be, at least, an intent to destroy a substantial part of the group.

[…]

12. The intent requirement of genocide under Article 4 of the Statute is therefore satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group.  The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations.  The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry.  The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.  In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration.  If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.

13. The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered.  Nazi Germany may have intended only to eliminate Jews within Europe alone; that ambition probably did not extend, even at the height of its power, to an undertaking of that enterprise on a global scale.  Similarly, the perpetrators of genocide in Rwanda did not seriously contemplate the elimination of the Tutsi population beyond the country’s borders.  The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him.  While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis.

14. These considerations, of course, are neither exhaustive nor dispositive.  They are only useful guidelines.  The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case.

See also para. 8 (part) and paras. 9–11.

32. In determining that genocide occurred at Srebrenica, the cardinal question is whether the intent to commit genocide existed.  While this intent must be supported by the factual matrix, the offence of genocide does not require proof that the perpetrator chose the most efficient method to accomplish his objective of destroying the targeted part.  Even where the method selected will not implement the perpetrator’s intent to the fullest, leaving that destruction incomplete, this ineffectiveness alone does not preclude a finding of genocidal intent.  The international attention focused on Srebrenica, combined with the presence of the UN troops in the area, prevented those members of the VRS Main Staff who devised the genocidal plan from putting it into action in the most direct and efficient way.  Constrained by the circumstances, they adopted the method which would allow them to implement the genocidal design while minimizing the risk of retribution.

33. The Trial Chamber - as the best assessor of the evidence presented at trial - was entitled to conclude that the evidence of the transfer [of women, children, and elderly within the Sebrenica enclave to other areas of Muslim-controlled Bosnia] supported its finding that some members of the VRS Main Staff intended to destroy the Bosnian Muslims in Srebrenica.  The fact that the forcible transfer does not constitute in and of itself a genocidal act[6] does not preclude a Trial Chamber from relying on it as evidence of the intentions of members of the VRS Main Staff.  The genocidal intent may be inferred, among other facts, from evidence of “other culpable acts systematically directed against the same group.”

Inferring intent from the factual circumstances of the crime:

[…]

34. The Defence also argues that the record contains no statements by members of the VRS Main Staff indicating that the killing of the Bosnian Muslim men was motivated by genocidal intent to destroy the Bosnian Muslims of Srebrenica.[8]  The absence of such statements is not determinative.  Where direct evidence of genocidal intent is absent, the intent may still be inferred from the factual circumstances of the crime.[9]  The inference that a particular atrocity was motivated by genocidal intent may be drawn, moreover, even where the individuals to whom the intent is attributable are not precisely identified.  If the crime committed satisfies the other requirements of genocide, and if the evidence supports the inference that the crime was motivated by the intent to destroy, in whole or in part, a protected group, a finding that genocide has occurred may be entered.

35. In this case, the factual circumstances, as found by the Trial Chamber, permit the inference that the killing of the Bosnian Muslim men was done with genocidal intent.  As already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica and with the other actions the Main Staff took to ensure that community’s physical demise, is a sufficient factual basis for the finding of specific intent.  The Trial Chamber found, and the Appeals Chamber endorses this finding, that the killing was engineered and supervised by some members of the Main Staff of the VRS.[10]  The fact that the Trial Chamber did not attribute genocidal intent to a particular official within the Main Staff may have been motivated by a desire not to assign individual culpability to persons not on trial here.  This, however, does not undermine the conclusion that Bosnian Serb forces carried out genocide against the Bosnian Muslims.

[1] See Art. 2 of the ICTR Statute (defining the specific intent requirement of genocide as the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”).

[2] Kayishema and Ruzindana Trial Judgement, para. 97.

[3] See Bagilishema Trial Judgement, para. 64 (“the intention to destroy must target at least a substantial part of the group”) (citing Kayishema and Ruzindana Trial Judgement, para. 97); Semanza Trial Judgement and Sentence, para. 316 (“The intention to destroy must be, at least, to destroy a substantial part of the group”) (citing Bagilishema Trial Judgement, para. 64).  While Kayishema used the term “considerable number” rather than “substantial part,” Semanza and Bagilishema make it clear that Kayishema did not intend to adopt a different standard with respect to the definition of the term “a part.”  The standard adopted by the Trial Chambers of the ICTR is therefore consistent with the jurisprudence of this Tribunal.

[4] The Trial Chambers in Jelisić and Sikirica referred to this factor as an independent consideration which is sufficient, in and of itself, to satisfy the requirement of substantiality.  See Jelisić Trial Judgement, para. 82; Sikirica Trial Judgement, para. 65.  Properly understood, this factor is only one of several which may indicate whether the substantiality requirement is satisfied.

[5] For a discussion of these examples, see William A. Schabas, Genocide in International Law (2000), p. 235.

[6] See Stakić Trial Judgement, para. 519 & nn. 1097 - 1098 (citing K. Kreß, Münchner Kommentar zum StGB, Rn 57, section 6 VStGB (2003); William A. Schabas, Genocide in International Law (2000), p. 200; BGH v. 21.2.2001 – 3 StR 244/00, NJW 2001, 2732 (2733)).

[7] Jelisić Appeal Judgement, para. 47.

[8] Defence Appeal Brief [Defence Appeal Brief, 7 May 2002], paras. 74-77.

[9] Jelisić Appeal Judgement, para. 47; see also Rutaganda Appeal Judgement, para. 528.

[10] Trial Judgement, paras. 591 - 599.

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ICTR Statute Article 2(2) ICTY Statute Article 4(2)
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Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

Two witnesses were called by the Trial Chamber proprio motu pursuant to its powers under Rule 98. Both of these witnesses were at the time the subject of separate Prosecution investigations. Upon appeal, the Defence argued that the Prosecution’s failure to disclose information relating to the investigations of these witnesses constituted a breach of Rule 68 of the Rules in that the information may have affected their credibility. (See paras 201-203.)

The Appeals Chamber considered:

204. While the Prosecution did disclose to the Trial Chamber the fact that the two witnesses were under investigation, it has not been established that the Prosecution also disclosed to the Trial Chamber any other evidence that may have been of relevance to the credibility of those same witnesses. The Appeals Chamber does not accept that evidence called proprio motu by a Trial Chamber can relieve the Prosecution of its obligation under Rule 68 in relation to that evidence. The scope of Rule 68 is clear: It applies to any material known to the Prosecution that either suggests the innocence or mitigates the guilt of the accused, or evidence that may affect the credibility of Prosecution evidence.

[…]

206. […] The Prosecution’s obligation to disclose under Rule 68 is a continuing obligation,[1] precisely because the relevance to the case of certain material held by the Prosecution may not be immediately clear. Rule 68 prima facie obliges the Prosecution to monitor the testimony of witnesses, and to disclose material relevant to the impeachment of the witness, during or after testimony. If the amount of material is extensive, the parties are entitled to request an adjournment in order to properly prepare themselves.

[1] Kordić & Čerkez Order on Motion to Compel Compliance by the Prosecution with Rules 66 (A) and 68 [Prosecutor v. Dario Kordić and Mario Čerkez, Order on Motion to Compel Compliance by the Prosecution with Rules 66 (A) and 68, Case No. IT-95-14/2, Trial Chamber, 26 February 1999].

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ICTR Rule Rule 68 ICTY Rule Rule 68
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Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

189. The Defence submits that the Rule 68 disclosures of 25 June 2000 and 5 March 2001 made during trial were buried beneath other material provided at the time, and that the failure of the Prosecution to identify the disclosed material as being disclosed under Rule 68 breached the spirit and letter of that Rule.[1] In response, the Prosecution argues that there is no specific requirement obliging it to indicate the provision in accordance with which a disclosure of documents occurs, or to identify the specific material disclosed as exculpatory.[2]

190. The Appeals Chamber agrees with the Prosecution that Rule 68 does not require the Prosecution to identify the material being disclosed to the Defence as exculpatory. The jurisprudence of the Tribunal shows that while some Trial Chambers have recognised that it would be fairer for the Prosecution to do so,[3] there is no prima facie requirement, absent an order of the Trial Chamber to that effect, that it must do so.

191. However, the fact that there is no prima facie obligation on the Prosecution to identify the disclosed Rule 68 material as exculpatory does not prevent the accused from arguing, as a ground of appeal, that he suffered prejudice as a result of the Prosecution’s failure to do so.

[1] Defence Appeal Brief, para. 128.

[2] Prosecution Response [Prosecution Response to the Defence Appeal Brief, 8 May 2002], para. 3.53.

[3] Krajišnik & Plavšić Decision on Motion from Momcilo Krajisnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68 [Prosecutor v. Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39&40-PT, Decision on Motion from Momčilo Krajišnik to Compel Disclosure of Exculpatory Evidence Pursuant to Rule 68, 19 July 2001], p. 2: “as a matter of practice and in order to secure a fair and expeditious trial, the Prosecution should normally indicate which material it is disclosing under the Rule and it is no answer to say that the Defence are in a better position to identify it.”

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ICTR Rule Rule 68 ICTY Rule Rule 68
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Appeal Judgement - 19.04.2004 KRSTIĆ Radislav
(IT-98-33-A)

The Prosecution argued that the Trial Chamber erred in deciding that Krstić deserved a lesser sentence than other perpetrators of the crimes of which Krstić had been found guilty whose guilt was not adjudicated in the case. The Prosecution argued that by elevating this factor to a “pivotal” level, the Trial Chamber failed to give appropriate consideration to Krstić’s individual responsibility. (para. 253).

254. The Appeals Chamber agrees that Radislav Krstić’s guilt should have been assessed on an individual basis. The Appeals Chamber further agrees that the comparative guilt of other alleged co-conspirators, not adjudicated in this case, is not a relevant consideration. The Appeals Chamber does not, however, share the Prosecution’s interpretation of the Trial Judgement.[1] The Trial Chamber was entitled to consider the conduct of Krstić in the proper context, which includes the conduct of any alleged co-perpetrators. A comprehensive understanding of the facts of a particular case not only permits a consideration of the culpability of other actors; indeed, it requires it in order to accurately comprehend the events in question and to impose the appropriate sentence.[2] While the wording of the Trial Judgement may be misleading, the Trial Chamber did not consider the allegedly higher culpability of others in an inappropriate way.

[1] Ibid. [Prosecution Appeal Brief, 14 November 2001, para. 4.91].

[2] The Tribunal has recognised the practice of ‘gradation of sentence’; cf. the Aleksovski Appeal Judgement, para. 184.

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