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Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

721. [W]hile the Appeals Chamber does not discount the assistance that may be drawn from previous decisions rendered, it also concludes that this may be limited.  On the other hand, it reiterates that, in determination of sentence, “due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.”[1]

See also paragraphs 719-720.

756. Public confidence in the integrity of the administration of criminal justice (whether international or domestic) is a matter of abiding importance to the survival of the institutions which are responsible for that administration.  One of the fundamental elements in any rational  and fair system of criminal justice is consistency in punishment.  This is an important reflection of the notion of equal justice.  The experience of many domestic jurisdictions over the years has been that such public confidence may be eroded if these institutions give an appearance of injustice by permitting substantial inconsistencies in the punishment of different offenders, where the circumstances of the different offences and of the offenders being punished are sufficiently similar that the punishments imposed would, in justice, be expected to be also generally similar.

757. This is not to suggest that a Trial Chamber is bound to impose the same sentence in the one case as that imposed in another case simply because the circumstances between the two cases are similar.  As the number of sentences imposed by the Tribunal increase, there will eventually appear a range or pattern of sentences imposed in relation to persons where their circumstances and the circumstances of their offences are generally similar.  When such a range or pattern has appeared, a Trial Chamber would be obliged to consider that range or pattern of sentences, without being bound by it, in order only to ensure that the sentence it imposes does not produce an unjustified disparity which may erode public confidence in the integrity of the Tribunal’s administration of criminal justice.

758.    At the present time, there does not exist such a range or pattern of sentences imposed by the Tribunal.  The offences which the Tribunal tries are of such a nature that there is little assistance to be gained from sentencing patterns in relation to often fundamentally different offences in domestic jurisdictions, beyond that which the Tribunal gains from the courts of the former Yugoslavia in accordance with Article 24 of the Tribunal’s Statute.  At the present time, therefore, in order to avoid any unjustified disparity, it is possible for the Tribunal to have regard only to those sentences which have been imposed by it in generally similar circumstances as to both the offences and the offenders.  It nevertheless must do so with considerable caution.  As the Appeals Chamber discusses further below[2] comparisons with sentences imposed in other cases will be of little assistance unless the circumstances of the cases are substantially similar.  However, in cases involving similar factual circumstances and similar convictions, particularly where the sentences imposed in those other cases have been the subject of consideration in the Appeals Chamber, there should be no substantial disparity in sentence unless justified by the circumstances of particular accused.

See also paragraph 798.

[1]    Furund‘jia Appeal Judgement, para 237.

[2]    Infra, at para 798.

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Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

724. The Appeals Chamber reiterates that “[t]he appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.”[1]  Appeal proceedings are rather of a “corrective nature” and, contrary to Land‘o’s submissions, they do not amount to a trial de novo.[2]  Therefore, to the extent that the parties simply resubmit arguments presented at trial without pointing to a particular error, this misconceives the purpose of appellate review on sentence. 

725. The test to be applied in relation to the issue as to whether a sentence should be revised is that most recently confirmed in the Furund‘ija Appeal Judgement.[3]  Accordingly, as a general rule, the Appeals Chamber will not substitute its sentence for that of a Trial Chamber unless “it believes that the Trial Chamber has committed an error in exercising its discretion, or has failed to follow applicable law.”[4]  The Appeals Chamber will only intervene if it finds that the error was “discernible”.[5]  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence,[6] the Appeals Chamber will not intervene. […]

[1]    Prosecutor v Dra‘en Erdemović, Case No IT-96-22-A, Judgement, 7 Oct 1997, para 15.

[2]    Prosecutor v Duško Tadić, Case No IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 Oct 1998, paras 41 - 42.

[3]    Furund‘jia Appeal Judgement, para 239.

[4]    Serushago Sentencing Appeal Judgement, para 32.  See also Aleksovski Appeal Judgement, para 187 and Tadić Sentencing Appeal Judgement, paras 20-22.

[5]    Tadić Sentencing Appeal Judgement, para. 22. Aleksovski Appeal Judgement, para 187.

[6]    Tadić Sentencing Appeal Judgement, para. 20. 

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Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

771. Rule 101(C) of the Rules of Procedure and Evidence provided at the time relevant to the Trial proceedings in this case that:

The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently.

The choice as to concurrent or consecutive sentencing is therefore a matter within the Trial Chamber’s discretion.  Rule 101(C) has now been removed from the Rules but the discretion of the Trial Chamber in relation to concurrent or consecutive sentencing is preserved in the amended Rule 87(C), which provides that the Trial Chamber will indicate whether separate sentences imposed in respect of multiple convictions shall be served consecutively or concurrently.[1]  However, it is clear that this discretion must be exercised by reference to the fundamental consideration, referred to above, that the sentence to be served by an accused must reflect the totality of the accused’s criminal conduct.  In this respect, the Appeals Chamber agrees with the Prosecution submission that a person who is convicted of many crimes should generally receive a higher sentence than a person convicted of only one of those crimes.

[1]    These amendments to the Rules derive from Revision 19, effective 19 January 2001.

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ICTR Rule Rule 87(C) ICTY Rule Rule 87(C)
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

745. Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence.  This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count.  Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).[1]  The Aleksovski Appeal Judgement has recognised both such matters as being factors which should result in an increased or aggravated sentence. […]

[1]    This observation applies only if the two types of responsibility are not independently charged under different counts, with separate sentences imposed on each.  A different situation may arise of two separate counts against an accused, one alleging Article 7(1) responsibility for direct or accessory participation in a particular criminal incident, and another alleging Article 7(3) responsibility for failure to prevent or punish subordinates for their role in the same incident.  If convictions and sentences are entered on both counts, it would not be open to aggravate the sentence on the Article 7(3) charge on the basis of the additional direct participation, nor the sentence on the Article 7(1) charge on the basis of the accused’s position of authority, as to do so would impermissibly duplicate the penalty imposed on the basis of the same conduct.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

732. […] As a practical matter, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates.  A failure to prevent or punish murder or torture committed by a subordinate must be regarded as being of greater gravity than a failure to prevent or punish an act of plunder, for example.[1]

See also paragraph 741.

735. It would be incorrect to state that, as a matter of law, responsibility for criminal conduct as a superior is less grave than responsibility as the subordinate perpetrator. […]

[1]    Mucić contends that the Prosecution’s approach indicates that it mischaracterises the offences of a superior as being the “same crime” as that of the subordinate upon which the superior’s offence is based: [Čelebići Case, Response of the Appellant Zdravko Mucić to the Prosecution’s Fourth Ground of Appeal Brief, 17 Sep 1999], para 10.  The Prosecution Brief does contain some references which could be understood in this way: e.g., para 5.24.  The Appeals Chamber’s conclusion, however, is not based on any such reasoning but simply recognises the inevitable relationship between the gravity of the superior’s failure to prevent or punish criminal conduct and the criminal conduct to which that failure relates.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

816. […] Trial Chambers are not bound by the practice of courts in the former Yugoslavia in reaching their determination of the appropriate sentence for a convicted person.  This principle applies to offences committed both before and after the Tribunal’s establishment. The Appeals Chamber can therefore see no reason why it should constitute a retrospective increase in sentence to impose a sentence greater than what may have been the maximum sentence available under domestic law in the former Yugoslavia at the time the offences were committed.

817. All of this is, however, subject to the proviso that any sentence imposed must always be, as stated by the Trial Chamber, “founded on the existence of applicable law”.[1]  “[T]he governing consideration for the operation of the nullem crimen sine lege principle is the existence of a punishment with respect to the offence.”[2]  There can be no doubt that the maximum sentence permissible under the Rules (“imprisonment for […] the remainder of a convicted person’s life”[3]) for crimes prosecuted before the Tribunal, and any sentence up to this, does not violate the principle of nulla poena sine lege.[4]  There can be no doubt that the accused must have been aware of the fact that the crimes for which they were indicted are the most serious violations of international humanitarian law, punishable by the most severe penalties.[5]

See also paragraphs 813-814.

[1]    [Čelebići] Trial Judgement, para 1210.

[2]    [Čelebići] Trial Judgement, para 1212.  See also the Nuremberg Judgement which found that it is “a principle of justice above all; where there can be do doubt that the defendants knew that they were committing a wrong condemned by the international community, it is not unjust to punish them despite the lack of highly specified international law.”  1 Trial of the Major War Criminals Before the International Military Tribunal, 218-223 (1947).  See Nuremberg Judgement, at 49.  Affirmed in Report of the Sixth Committee, UN GAOR, 1st Sess, pt. 2, 55th Plen mtg at 1144, U.N.Doc. A/236 (1946), GA Res. 95, UN Doc A/64/Add.1 (1946).

[3]    Rule 101(A) of the Rules.

[4]    The European Court of Human Rights has held that as long as the punishment is accessible and foreseeable, then the principle cannot be breached: SW v The United Kingdom and CR v The United Kingdom, Judgement of 22 November 1995, Series A, Vol 335-B, paras 34-36 and 43.

[5]    For example, it is noteworthy that the judgements rendered at Nuremberg and Tokyo and the other successor tribunals provide clear authority for custodial sentences up to and including life imprisonment (Nineteen defendants were convicted before the Nuremberg Tribunal, out of which seven received sentences of imprisonment ranging from ten years to life imprisonment).  Similarly, sentences in national jurisdictions of up to life imprisonment for crimes of the nature being prosecuted before the Tribunal are clearly recognised as being available.

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Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

433. Delić has filed two grounds of appeal in relation to each of the convictions which he has challenged.  The first is that the evidence was not what was described as legally sufficient to sustain the convictions; the second is that the evidence was not what was described as factually sufficient to sustain the convictions. 

434. The issue as to whether there is a legal basis to sustain a conviction usually arises at the close of the Prosecution case at trial, a situation now covered by Rule 98bis(B),[1] following the earlier practice of seeking a judgement of acquittal upon the basis that, in relation to one or more charges, there is no case to answer.  The test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question.[2]  In the present case, the Trial Chamber ruled that there was a case to answer,[3] and there was no appeal from that decision.  The test to be applied in relation to the issue as to whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached.[4] 

435. If an appellant is not able to establish that the Trial Chamber’s conclusion of guilt beyond reasonable doubt was one which no reasonable tribunal of fact could have reached, it follows that there must have been evidence upon which such a tribunal could have been satisfied beyond reasonable doubt of that guilt.  Under those circumstances, the latter test of legal sufficiency is therefore redundant, and the appeal must be dismissed.  Similarly, if an appellant is able to establish that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it, the appeal against conviction must be allowed and a judgement of acquittal entered.  In such a situation it is unnecessary for an appellate court to determine whether there was evidence (if accepted) upon which such a tribunal could have reached such a conclusion. 

[RULE 98BIS WAS AMENDED ON 8 DECEMBER 2004.]

[1]    Rule 98bis(B) provides:  “The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges”.

[2]    The jurisprudence of the Tribunal in relation to Rule 98bis(B) and the earlier practice was recently reviewed in Prosecutor v Kunarac, Case No IT-96-23-T, Decision on Motion for Acquittal, 3 July 2000, at paras 2-10.

[3]    Prosecutor v Delalić et al, Order on the Motions to Dismiss the Indictment at the Close of the Prosecutor’s Case, 18 Mar 1998.

[4]    Tadić Appeal Judgement, para 64; Aleksovski Appeal Judgement, para 63.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

458. A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him […].  Such a conclusion must be established beyond reasonable doubt.  It is not sufficient that it is a reasonable conclusion available from that evidence.  It must be the only reasonable conclusion available.  If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

576. [T]he Trial Chamber is said by Landžo to have violated the principles of certainty in the criminal law,[1] and of nullum crimen sine lege,[2] or ex post facto law (as it was described by counsel for Landžo).[3]  These objections are misconceived.  The law to be applied must be that which existed at the time the acts upon which the charges are based took place.  However, the subsequent identification or interpretation of that law by the Tribunal, whenever that takes place, does not alter the law so as to offend either of those principles.[4]

[1]    Landžo Brief, pp 88-89.

[2]    Restated in Article 15 of the International Covenant on Civil and Political Rights, 1966: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed”.

[3]    Appeal Transcript, pp 590, 595, 627.

[4]    Aleksovski Appeal Judgement, paras 126-127, 135.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

338. [The Trial Chamber’s findings could be interpreted as suggesting that the] Trial Chamber believed that, as a legal matter, there could be no liability for unlawful confinement under Article 7(1) without superior responsibility under Article 7(3) being established. Such a legal interpretation is clearly incorrect, as it entwines two types of liability, liability under Article 7(1) and liability under Article 7(3). As emphasised by the Secretary-General’s Report,[1] the two liabilities are different in nature. Liability under Article 7(1) applies to direct perpetrators of crimes and to accomplices. Article 7(3) applies to persons exercising command or superior responsibility. As has already been acknowledged by the Appeals Chamber in another context, these principles are quite separate and neither is dependent in law upon the other. In the Aleksovski Appeal Judgement, the Appeals Chamber rejected a Trial Chamber statement, made in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields, that the accused “cannot be held responsible under Article 7(1) in circumstances where he does not have direct authority over the main perpetrators of the crimes”.[2] There is no reason to believe that, in the context of the offence of unlawful confinement, there would be any special requirement that a position of superior authority be proved before liability under Article  7(1) could be recognised.

[1]    Secretary-General’s Report, paras 56-58.

[2]    Aleksovski Appeal Judgement, para 170.

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ICTR Statute Article 6(1);
Article 6(3)
ICTY Statute Article 7(1);
Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

193. The power or authority to prevent or to punish does not solely arise from de jure authority conferred through official appointment.  In many contemporary conflicts, there may be only de facto, self-proclaimed governments and therefore de facto armies and paramilitary groups subordinate thereto.  Command structure, organised hastily, may well be in disorder and primitive. To enforce the law in these circumstances requires a determination of accountability not only of individual offenders but of their commanders or other superiors who were, based on evidence, in control of them without, however, a formal commission or appointment.  A tribunal could find itself powerless to enforce humanitarian law against de facto superiors if it only accepted as proof of command authority a formal letter of authority, despite the fact that the superiors acted at the relevant time with all the powers that would attach to an officially appointed superior or commander.

[…]

197. In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles.[1]  This would equally apply in the context of criminal responsibility.  In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.  The Appeals Chamber considers that the ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility[2] and thus agrees with the Trial Chamber that the absence of formal appointment is not fatal to a finding of criminal responsibility, provided certain conditions are met.  Mucić’s argument that de facto status must be equivalent to de jure status for the purposes of superior responsibility is misplaced. Although the degree of control wielded by a de jure or de facto superior may take different forms, a de facto superior must be found to wield substantially similar powers of control over subordinates to be held criminally responsible for their acts. […]

[1]    In relation to State responsibility see ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports, 1971, p 16 at para 118.

[2]    At the hearing, Mucić referred with approval to the Aleksovski Judgement’s finding that “[A]nyone, including a civilian may be held responsible, pursuant to Article 7(3) of the Statute, if it is proved that the individual had effective authority over the perpetrators of the crimes. This authority can be inferred from the accused’s ability to give them orders and to punish them in the event of violations.” Appeal Transcript, p 238, referring to para 70 of the Aleksovski Appeal Judgement, quoting para 103 of the Aleksovski Judgement.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

266. The Appeals Chamber considers, therefore, that customary law has specified a standard of effective control, although it does not define precisely the means by which the control must be exercised.  It is clear, however, that substantial influence as a means of control in any sense which falls short of the possession of effective control over subordinates, which requires the possession of material abilities to prevent subordinate offences or to punish subordinate offenders, lacks sufficient support in State practice and judicial decisions.  Nothing relied on by the Prosecution indicates that there is sufficient evidence of State practice or judicial authority to support a theory that substantial influence as a means of exercising command responsibility has the standing of a rule of customary law, particularly a rule by which criminal liability would be imposed.

See also paragraphs 258-265.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

238. […] A showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he “had reason to know”. The ICRC Commentary (Additional Protocol I) refers to “reports addressed to (the superior), […] the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits” as potentially constituting the information referred to in Article 86(2) of Additional Protocol I.[1] As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.

239. Finally, the relevant information only needs to have been provided or available to the superior, or in the Trial Chamber’s words, “in the possession of”.  It is not required that he actually acquainted himself with the information. In the Appeals Chamber’s view, an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question. Thus, as correctly held by the Trial Chamber,[2] as the element of knowledge has to be proved in this type of cases, command responsibility is not a form of strict liability. A superior may only be held liable for the acts of his subordinates if it is shown that he “knew or had reason to know” about them.  The Appeals Chamber would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability.

See also paragraphs 225-237.

[1]    [Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. International Committee of the Red Cross, Geneva, 1987] (Additional Protocol I), para 3545.

[2]    [Čelebići] Trial Judgement, para 383.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

283.    The Appeals Chamber agrees that the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application.  If it is shown that the evidence could not have been found with the exercise of reasonable diligence before the close of the case, the Trial Chamber should exercise its discretion as to whether to admit the evidence by reference to the probative value of the evidence and the fairness to the accused of admitting it late in the proceedings.  These latter factors can be regarded as falling under the general discretion, reflected in Rule 89 (D) of the Rules, to exclude evidence where its probative value is substantially outweighed by the need to ensure a fair trial.  […]

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

320.    The offence of unlawful confinement of a civilian, a grave breach of the Geneva Conventions which is recognised under Article 2(g) of the Statute of the Tribunal, is not further defined in the Statute.  As found by the Trial Chamber, however, clear guidance can be found in the provisions of Geneva Convention IV.  The Trial Chamber found that the confinement of civilians during armed conflict may be permissible in limited cases, but will be unlawful if the detaining party does not comply with the provisions of Article 42 of Geneva Convention IV, which states:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

Thus the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.  Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[1]  That article provides:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.  If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. 

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or have been released from internment or assigned residence.  The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.

321.    In its consideration of the law relating to the offence of unlawful confinement, the Trial Chamber also referred to Article 5 of Geneva Convention IV, which imposes certain restrictions on the protections which may be enjoyed by certain individuals under the Convention.[2]  It provides, in relevant part:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

[…]

In each case, such persons shall nevertheless be treated with humanity, and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.  They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.[3]

This provision reinforces the principle behind Article 42, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk. 

322.    The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42, and where the provisions of Article 43 are complied with.[4]  Thus the detention or confinement of civilians will be unlawful in the following two circumstances:

(i)       when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, ie they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii)       where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.

See also paragraphs 327, 329.

[1]    [Čelebići] Trial Judgement, para 583.

[2]    [Čelebići] Trial Judgement, paras 566-567.

[3]    Emphasis added.

[4]    This does not preclude the existence of other circumstances which may render confinement of a civilian unlawful, but that question does not now arise for determination by the Appeals Chamber.

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ICTY Statute Article 2(g) Other instruments Geneva Convention IV: Articles 5; 42; 43.
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

378. [T]he Appeals Chamber considers that a person in the position of Mucić [a prison camp commander] commits the offence of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where

(i)          he has no reasonable grounds to believe that the detainees do not pose a real risk to the security of the state;[1] or

(ii)         he knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not).[2]

379. Where a person who has authority to release detainees knows that persons in continued detention have a right to review of their detention[3] and that they have not been afforded that right, he has a duty to release them.  Therefore, failure by a person with such authority to exercise the power to release detainees, whom he knows have not been afforded the procedural rights to which they are entitled, commits the offence of unlawful confinement of civilians, even if he is not responsible himself for the failure to have their procedural rights respected.

[1]    This relates to the first “category” of the offence.

[2]    This relates to the second “category”.

[3]    It is unnecessary that he is aware of the legal source of this right.

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ICTY Statute Article 2(g) Other instruments Geneva Convention IV: Articles 5; 42; 43.
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

150. It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical. In the Appeals Chamber’s view, something which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader. The Appeals Chamber is thus not convinced by the arguments raised by the appellants and finds no cogent reasons to depart from its previous conclusions.

See also paragraphs 143-149.

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ICTY Statute Article 3 Other instruments Geneva Conventions: common Article 3.
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Decision on Leave to Appeal - 16.02.2001 KVOČKA et al.
(IT-98-30/1-AR73.5)

P. 3: CONSIDERING that it is for the Defence to show the Bench that the proposed appeal raises an issue of general importance to proceedings before the International Tribunal or in international law generally;

FINDING that there has been such showing in that the questions as to

i)  whether proceedings in the Trial Chamber should be suspended pending determination of the same
    or an allied issue by the International Court [of] Justice; and

ii)  the impact of decisions by each judicial body on the other constitute issues of general importance
    to proceedings before the International Tribunal and in international law generally;

constitute issues of general importance to proceedings before the International Tribunal and in international law generally;

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
Notion(s) Filing Case
Decision on Time-Limit - 14.12.2000 TADIĆ Duško
(IT-94-1-A-AR77)

CONSIDERING that […] in principle, Counsel must organise his commitments in such a way that he is able to meet deadlines […]

CONSIDERING that, in general, the Appeals Chamber need not take into account Counsel’s commitments when setting deadlines […]

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ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Decision on Additional Evidence - 15.11.2000 JELISIĆ Goran
(IT-95-10-A)

CONSIDERING that Rule 107 of the Rules extends the application of the Rules that govern proceedings in the Trial Chambers to proceedings in the Appeals Chamber mutatis mutandis, but that such extension does not apply as the presentation of evidence on appeal is governed by Rule 115;

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ICTR Rule Rule 107;
Rule 115
ICTY Rule Rule 107;
Rule 115