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Appeal Judgement - 05.05.2009 MRKŠIĆ & ŠLJIVANČANIN
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151. The Appeals Chamber recalls that it has previously recognised that the breach of a duty to act imposed by the laws and customs of war gives rise to individual criminal responsibility.[1] The Appeals Chamber further recalls that Šljivančanin’s duty to protect the prisoners of war was imposed by the laws and customs of war.[2] Thus, the Appeals Chamber considers that Šljivančanin’s breach of such duty gives rise to his individual criminal responsibility. Therefore, it is not necessary for the Appeals Chamber to further address whether the duty to act, which forms part of the basis of aiding and abetting by omission, must stem from a rule of criminal law.

[1] Blaškić Appeal Judgement, para. 663, fn. 1384.

[2] See supra Section III.(B)( 3).

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155. Relying on the Appeals Chamber Judgements in Orić and Blaškić, Šljivančanin submits that, at a minimum, aiding and abetting by omission requires an elevated degree of “concrete influence”.[1] He argues that this provides an objective standard for establishing whether his omission had a “substantial effect” on the mistreatment of prisoners[2] and that the contribution must be considered from the perspective of the perpetrators of the crime, not the omission itself.[3] Šljivančanin also appears to propose that the failure to act must have a “decisive effect” on the commission of the crime,[4] but fails to elaborate this point. The Prosecution responds that there is no indication that the “concrete influence” standard is in fact any higher than “substantial effect” which is the correct standard,[5] and that Šljivančanin’s reliance on the Orić case is misplaced, since in that case the Appeals Chamber used the term “concrete influence” in the context of its finding that aiding and abetting by omission requires more than a simple correlation between the omission and the crimes.[6] The Prosecution submits that to prove that an omission had a substantial effect on the crime, it must be shown that the crime would have been substantially less likely to have occurred had the accused acted.[7]

156. The Appeals Chamber recalls that, in the Orić case, it found that the actus reus for “commission by omission requires an elevated degree of ‘concrete influence’”,[8] as distinct from the actus reus for aiding and abetting by omission, the latter requiring that the omission had a “substantial effect” upon the perpetration of the crime.[9] The Appeals Chamber finds no merit in Šljivančanin’s attempt to conflate the substantial contribution requirement with the notion of an elevated degree of influence,[10] and notes that Šljivančanin himself does not provide any further support for his submission on this issue, beyond the vague statement that an “objective criteria” for assessing “substantial contribution” is warranted on the particular facts of his case.[11] Accordingly, Šljivančanin’s argument is dismissed.

[1] Šljivančanin Appeal Brief, para. 245, citing Orić Appeal Judgement, para. 41, Blaškić Appeal Judgement, para. 664. See also Šljivančanin Supplemental Brief in Reply, paras 46-50; AT. 145-146.

[2] Šljivančanin Supplemental Brief in Reply, paras 46-47.

[3] AT. 147.

[4] Šljivančanin Appeal Brief, para. 247(d).

[5] Prosecution Supplemental Respondent’s Brief, para. 29.

[6] Ibid.

[7] AT. 169.

[8] Orić Appeal Judgement, para. 41, citing Blaškić Appeal Judgement, para. 664.

[9] Orić Appeal Judgement, para. 43, citing Nahimana et al. Appeal Judgement, para. 482; Simić Appeal Judgement, para. 85.

[10] The Appeals Chamber emphasizes that the reference to the term “concrete influence” in the Orić case (Orić Appeal Judgement, para. 41) must be read in the context  of the Blaškić Appeals Chamber’s qualification to the effect that the degree of “concrete influence” of a superior over the crime in which his subordinates participate (namely, the time when the superior’s omission takes place vis-à-vis the occurrence of the crime), is a possible “distinguishing factor between the modes of responsibility expressed in Articles 7(1) and 7(3) of the Statute” since if the superior’s omission to prevent a crime occurs when “the crime has already become more concrete or currently occurs, his responsibility would also fall under Article 7(1) of the Statute” (Blaškić Appeal Judgement, para. 664).

[11] Šljivančanin Supplemental Brief in Reply, paras 47, 48.

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41. The Appeals Chamber recalls that once the requirement of a widespread or systematic attack against a civilian population is fulfilled, there must be a nexus between the acts of the accused and the attack itself. The Appeals Chamber considers that, as correctly noted by the Prosecution,[1] the requirement that the acts of an accused must be part of the “attack” against the civilian population does not, however, require that they be committed in the midst of that attack: a crime which is committed before or after the main attack against the civilian population or away from it could still, if sufficiently connected, be part of that attack.[2] Hence, the fact that the crimes committed in Ovčara took place after the widespread and systematic attack against the civilian population of Vukovar cannot in itself be determinative of whether the nexus requirement was met. Such a nexus consists of two elements:

(i) the commission of an act which, by its nature or consequences, is objectively part of the attack; coupled with

(ii) knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof.[3]

Thus, to convict an accused of crimes against humanity, it must be proven that his acts were related to a widespread or systematic attack against a civilian population and that he knew that his acts were so related. Such an assessment will be made on a case-by-case basis. For example, having considered the context and circumstances in which an act was committed, an act may be so far removed from the attack that no nexus can be established (so called “isolated act”) and hence cannot qualify as a crime against humanity.[4]

42. In the present case, after reviewing the evidence before it, the Trial Chamber concluded that the perpetrators of the crimes committed against the prisoners in Ovčara selected the individuals based on their involvement in the Croatian armed forces. The Trial Chamber found:

While there may have been a small number of civilians among the 194 identified murder victims charged in the Indictment, in the Chamber’s finding, the perpetrators of the offences against the prisoners at Ovčara on 20/21 November 1991 charged in the Indictment, acted in the understanding that their acts were directed against members of the Croatian forces.”[5]

The Appeals Chamber concurs with the Trial Chamber’s assessment of the evidence in the trial record. The crimes in Ovčara were directed against a specific group of individuals,[6] the victims of the crimes were selected based on their perceived involvement in the Croatian armed forces,[7] and as such treated “differently from the civilian population”.[8] The Prosecution’s arguments that the crimes occurred two days after the fall of Vukovar, that Ovčara was located within the geographical scope of the attack against Vukovar, that the perpetrators of the crimes in Ovčara also participated in the attack against the civilian population in Vukovar, and that the perpetrators of the crimes “harboured intense feeling of animosity towards persons they perceived as enemy forces,[9] do not undermine the Trial Chamber’s findings, unchallenged by the Parties, that the perpetrators of the crimes in Ovčara acted in the understanding that their acts were directed against members of the Croatian armed forces. The fact that they acted in such a way precludes that they intended that their acts form part of the attack against the civilian population of Vukovar and renders their acts so removed from the attack that no nexus can be established.

43. The Appeals Chamber finds that the requirement of a nexus between the acts of the accused and the attack itself was not established and that, in the absence of the required nexus under Article 5 of the Statute between the crimes committed against the prisoners at Ovčara and the widespread or systematic attack against the civilian population of Vukovar, the crimes committed cannot be qualified as crimes against humanity. Thus, even though the Trial Chamber erred in law by adding a requirement that the victims of the underlying crimes under Article 5 of the Statute be civilians, the Appeals Chamber concurs with the Trial Chamber – albeit for different reasons – that the “jurisdictional prerequisites of Article 5 of the Statute have not been established”.[10]

[1] AT. 301.

[2] Kunarac et al. Appeal Judgement, para. 100.

[3] Tadić Appeal Judgement, paras 248, 251, 271; Kunarac et al. Appeal Judgement, para. 99. For the mens rea of crimes against humanity, see Kunarac et al. Appeal Judgement, paras 102-103.

[4] Kunarac et al. Appeal Judgement, para. 100. See also Blaškić Appeal Judgement, para. 101.

[5] Trial Judgement, para. 481. See also Trial Judgement, para. 207.

[6] Trial Judgement, para. 474.

[7] Trial Judgement, para. 475.

[8] Trial Judgement, para. 476.

[9] Prosecution Brief in Reply, paras 26, 39-40. See also AT. 238-241, 302.

[10] Trial Judgement, para. 482. 

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ICTR Statute Article 3 ICTY Statute Article 5
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27. The Trial Chamber was aware that the International Tribunal had not yet addressed the issue of whether the individual victims of the underlying crimes under Article 5 of the Statute must be civilians.[1] To support its above conclusion, it sought to rely on the finding in the Blaškić Appeal Judgement that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[2] However, as explained below, this finding cannot lend support to the conclusion that the underlying crimes under Article 5 of the Statute can only be committed against civilians.

28. The Appeals Chamber in Blaškić first stated that the Trial Chamber “correctly recognised that a crime against humanity applies to acts directed against any civilian population”.[3] It then addressed Tihomir Blaškić’s argument that he never ordered attacks directed against a civilian population but that the casualties were the unfortunate consequence of an otherwise legitimate and proportionate military operation.[4] In this context, the Appeals Chamber found that the Trial Chamber erred when it stated that “the specificity of a crime against humanity results not from the status of the victim but the scale and organisation in which it must be committed”.[5] It further found that “both the status of the victim as a civilian and the scale on which it is committed or the level of organization involved characterize a crime against humanity”.[6] The Appeals Chamber’s finding was therefore concerned with the issue of whether legitimate military targets were attacked and was not seized of the question of whether the victims of the underlying crimes under Article 5 of the Statute must be civilians. Accordingly the Appeals Chamber’s finding is to be understood as only reflecting the jurisdictional requirement of Article 5 of the Statute that crimes against humanity must be committed as part of a widespread attack against a civilian population.[7] It cannot be understood as implying that the underlying crimes under Article 5 of the Statute can only be committed against civilians as the Trial Chamber did in the present case.

29. The Appeals Chamber recently confirmed that “[t]here is nothing in the text of Article 5 of the Statute, or previous authorities of the Appeals Chamber that requires that individual victims of crimes against humanity be civilians”.[8] Further, it held that under customary international law, persons hors de combat can also be victims of crimes against humanity, provided that all the other necessary conditions are met.[9]

30. This is not to say that under Article 5 of the Statute the status of the victims as civilians is irrelevant. In fact, the status of the victims is one of the factors that can be assessed in determining whether the jurisdictional requirement that the civilian population be the primary target of an attack has been fulfilled,[10] along with, inter alia, the means and method used in the course of the attack, the number of victims, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.[11]

31. Further, the fact that a population under the chapeau of Article 5 of the Statute must be “civilian” does not imply that such population shall only be comprised of civilians. The status of the victims will thus also be relevant to determining whether the population against which the attack is directed is civilian. In Kordić and Čerkez, the Appeals Chamber stated:

The civilian population comprises all persons who are civilians and the presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.[12]

In Blaškić, the Appeals Chamber, relying on the ICRC Commentary to Article 50 of Additional Protocol I,[13] held that “in order to determine whether the presence of soldiers within a civilian population deprives the population of its civilian character, the number of soldiers, as well as whether they are on leave, must be examined”.[14]

32. Accordingly, whereas the civilian status of the victims, the number of civilians, and the proportion of civilians within a civilian population are factors relevant to the determination of whether the chapeau requirement of Article 5 of the Statute that an attack be directed against a “civilian population” is fulfilled, there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be “civilians”.

33. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in law at paragraphs 462 and 463 of the Trial Judgement in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute.

[1] Trial Judgement, para. 462: “The Chamber is aware of the fact that, to date, the Tribunal’s jurisprudence has not been called upon to address the question whether the individual victims of crimes against humanity need to be civilians”.

[2] Blaškić Appeal Judgement, para. 107, relied upon at paragraph 462 of the Trial Judgement.

[3] Blaškić Appeal Judgement, para. 107.

[4] Blaškić Appeal Judgement, para. 103.

[5] Blaškić Appeal Judgement, para. 107, quoting Blaškić Trial Judgement, para. 208.

[6] Blaškić Appeal Judgement, para. 107.

[7] Blaškić Appeal Judgement, Section IV(A)(2).

[8] Martić Appeal Judgement, para. 307. See also paras 303-306, 308. In Martić, the Appeals Chamber entered convictions for crimes committed against persons hors de combat, considering that they were victims of a widespread and systematic attack against the civilian population, and that all the elements of the offences were met (see Martić Appeal Judgement, paras 318-319, 346, 355).

[9] Martić Appeal Judgement, paras 311, 313.

[10] Kunarac et al. Appeal Judgement, para. 92: “The Appeals Chamber is satisfied that the Trial Chamber correctly defined and identified the “population” which was being attacked and that it correctly interpreted the phrase “directed against” as requiring that the civilian population which is subjected to the attack must be the primary rather than an incidental target of the attack”.

[11] Kunarac et al. Appeal Judgement, para. 91.

[12] Kordić and Čerkez Appeal Judgement, para. 50. See also Galić Appeal Judgement, para. 136.

[13] ICRC Commentary to Article 50 of Additional Protocol I, para. 1922: “[I]n wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example, soldiers on leave visiting their families. However, provided that these are not regular units with fairly large numbers, this does not in any way change the civilian character of a population”.

[14] Blaškić Appeal Judgement, para. 115. See also Galić Appeal Judgement, para. 137.

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ICTR Statute Article 3 ICTY Statute Article 5
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35. Following the Prosecution’s decision not to pursue the second sub-ground of its first ground of appeal,[1] the Trial Chamber’s finding to the effect that the term “civilian” in Article 5 of the Statute has to be interpreted in accordance with Article 50 of Additional Protocol I and therefore does not include combatants or persons hors de combat,[2] remains unchallenged. This finding was based, inter alia, on the Appeals Chamber’s well-established jurisprudence,[3] reiterated in the Martić Appeal Judgement,[4] that the notion of “civilian” under Article 5 of the Statute excludes persons hors de combat. In Blaškić, the Appeals Chamber found:

Article 50 of Additional Protocol I to the Geneva Conventions contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law.[5]

Read together, Article 50 of Additional Protocol I and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.[6]

In Kordić and Čerkez, the Appeals Chamber found that “Article 50 of Additional Protocol I contains a definition of civilians and civilian populations, and the provisions in this article may largely be viewed as reflecting customary law”.[7] In Galić, the Appeals Chamber reiterated that “[e]ven hors de combat, however, [combatants] would still be members of the armed forces of a party to the conflict and therefore fall under the category of persons referred to in Article 4(A)(1) of the Third Geneva Convention; as such, they are not civilians in the context of Article 50, paragraph 1, of Additional Protocol I”.[8] The notion of “civilian” under Article 5 of the Statute is defined through the above provisions of the law of armed conflict.[9] Whereas under Article 3 of the Statute the situation of a victim at the time of the offence may be relevant to its status,[10] the notion of “civilian” under Article 5 of the Statute, as correctly noted by the Trial Chamber,[11] is not determined by the position of the victims at the time of the commission of the underlying crime.[12]

36. Pursuant to this jurisprudence and in light of the facts of the case, the Trial Chamber found that the victims were predominantly non-civilians.[13] However, the Appeals Chamber has found that the Trial Chamber erred in law in concluding that, for the purposes of Article 5 of the Statute, the victims of the underlying crime must be civilians, and consequently erroneously creating an additional requirement under Article 5 of the Statute. Accordingly, the Appeals Chamber must determine whether this error has the effect of invalidating the Trial Judgement. To that end and in light of the finding in the Martić Appeal Judgement that “[u]nder Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population”,[14] the Appeals Chamber will assess whether in the instant case all other necessary conditions to enter a conviction for crimes against humanity had been met.

[1] See supra para. 20.

[2] Trial Judgement, para. 461.

[3] Trial Judgement, paras 451-453, citing Blaškić Appeal Judgement, paras 110, 113-114; Kordić and Čerkez Appeal Judgement, para. 97; Galić Appeal Judgement, para. 144, fn. 437.

[4] See Martić Appeal Judgement, paras 292-295.

[5] Blaškić Appeal Judgement, para. 110.

[6] Blaškić Appeal Judgement, para. 113. 

[7] Kordić and Čerkez Appeal Judgement, para. 97.

[8] Galić Appeal Judgement, fn. 437.

[9] See Kunarac et al. Appeal Judgement, para. 91: “To the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst”. See also Kordić and Čerkez Appeal Judgement, para. 96.

[10] Strugar Appeal Judgement, para. 178: “[I]n order to establish the existence of a violation of Common Article 3 under Article 3 of the Statute, a Trial Chamber must be satisfied beyond a reasonable doubt that the victim of the alleged offence was not participating in acts of war which by their nature or purpose are intended to cause actual harm to the personnel or equipment of the enemy’s armed forces. Such an enquiry must be undertaken on a case-by-case basis, having regard to the individual circumstances of the victim at the time of the alleged offence”. (footnote omitted).

[11] Trial Judgement, para. 455.

[12] See Blaškić Appeal Judgement, para. 114, in which the Appeals Chamber overturned the Trial Chamber’s finding that the specific situation of the victim at the time the crimes were committed must be taken into account in determining his standing as a civilian. Relying on the ICRC Commentary to Article 43 of Additional Protocol I that “[a] civilian who is incorporated in an armed organization […] becomes a member of the military and a combatant throughout the duration of the hostilities” (ICRC Commentary, p. 515, para. 1676), the Appeals Chamber concluded: “[T]he specific situation of the victim at the time the crimes are committed may not be determinative of his civilian or non-civilian status. If he is indeed a member of an armed organization, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status”. See also Kordić and Čerkez Appeal Judgement para. 421:The Appeals Chamber recalls that during an armed conflict, until a soldier is demobilized, he is considered a combatant whether or not he is in combat, or for the time being armed”; Mart Appeal Judgement, paras 292-295.

[13] Trial Judgement, para. 481. The Trial Chamber found that the evidence indicated that of the 194 persons identified as among those alleged in the Indictment to have been murdered at Ovčara in the evening and night hours of 20/21 November 1991, 181 were known to be active in the Croatian forces in Vukovar. The Trial Chamber concluded that the effect of the evidence was that the majority of these men (and two women) were members or reserve members of ZNG (87) and that there was also a considerable number of members of the HV (30) and the Croatian MUP (17); there were some members of the Croatian protection force of Vukovar (9) and a few members of the Croatian paramilitary formation HOS (Croatian’s Liberation Forces, Hrvatske Oslobodilacke Snage); regarding the cases of nine other victims the Trial Chamber accepted evidence of their military involvement; there were also 13 persons in respect of whom no known military involvement was established by the evidence (Trial Judgement, para. 479).

[14] Martić Appeal Judgement, para. 313.

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69. The Appeals Chamber notes that the Trial Chamber did not make a finding as to whether the armed conflict in the municipality of Vukovar at the material time was of an international or non-international nature.[1] However, even in the context of an internal armed conflict, Geneva Convention III applies where the parties to the conflict have agreed that the Convention shall apply.[2] In this respect, the Appeals Chamber recalls the ECMM instructions to its monitors on the implementation of the Zagreb Agreement which indicated that the Geneva Conventions were to be applied to the prisoners of war.[3] In an order issued on 18 November 1991, Lt. General Života Panić directed that JNA units in the Vukovar area, including OG South, were to observe all aspects of Geneva Convention III.[4] Furthermore, Colonel Nebojša Pavković advised the ECMM monitors of instructions from General Rašeta that Croat forces would not be evacuated with the rest of the humanitarian convoy but remain as prisoners of war and the Geneva Conventions would apply.[5] The Appeals Chamber considers that, while the Zagreb Agreement makes no mention of the application of Geneva Convention III to the Croat forces at the Vukovar hospital,[6] these documents provide sufficient evidence to conclude that the JNA had agreed that the Croat forces were to be considered prisoners of war and that Geneva Convention III was to apply.[7]

[1] Trial Judgement, paras 422, 457.

[2] Geneva Convention III, Article 2: “Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof”. See also Article 3: “The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention”.

[3] Trial Judgement, para. 144, citing Exhibit P315, “ECMM fax to tasking cell regarding Zagreb Agreement, 19 November 1991”.

[4] Trial Judgement, para. 581, citing Exhibit P415, “Order from 1 MD, 18 November 1991”.

[5] Trial Judgement, para. 582, citing Exhibit D333, “ECMM Report of Evacuation of Vukovar, 19 November 1991”.

[6] Exhibit P40, “Zagreb Agreement, 18 November 1991”.

[7] See also Trial Judgement, paras 139, 189.

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413. In light of the foregoing, the Appeals Chamber finds that there was a discernible error in the Trial Chamber’s exercise of discretion in imposing the sentence.[1] Even though the Trial Chamber did not err in its factual findings, considering the above findings of the Trial Chamber on the gravity of the crimes, and in particular the consequences of the torture upon the victims and their families, the particular vulnerability of the prisoners, and the very large number of victims, the Appeals Chamber finds that the sentence of five years’ imprisonment is so unreasonable that it can be inferred that the Trial Chamber must have failed to exercise its discretion properly.[2] The Appeals Chamber thus finds that a five years’ imprisonment sentence does not adequately reflect the level of gravity of the crimes committed by Šljivančanin.

[1] Cf. Aleksovski Appeal Judgement, para. 187.

[2] Bralo Judgement on Sentencing Appeal, para. 9; Galić Appeal Judgement, para. 394; Momir Nikolić Judgement on Sentencing Appeal, para. 95; Babić Judgement on Sentencing Appeal, para. 44.

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70. Additionally, the Appeals Chamber recalls the finding in the Krnojelac Appeal Judgement that “[t]he Geneva Conventions are considered to be the expression of customary international law”.[1] In particular, it is well established that Common Article 3 of the Geneva Conventions, which is applicable to both international and non-international armed conflicts, is part of customary international law and therefore binds all parties to a conflict.[2] Common Article 3 enshrines the prohibition against any violence against the life and person of those taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause. The Appeals Chamber considers that Common Article 3 of the Geneva Conventions reflects the same spirit of the duty to protect members of armed forces who have laid down their arms and are detained as the specific protections afforded to prisoners of war in Geneva Convention III as a whole, particularly in its Article 13,[3] which provides that:

Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. […]

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

71. The fundamental principle enshrined in Geneva Convention III, which is non-derogable, that prisoners of war must be treated humanely and protected from physical and mental harm,[4] applies from the time they fall into the power of the enemy until their final release and repatriation.[5] It thus entails the obligation of each agent in charge of the protection or custody of the prisoners of war to ensure that their transfer to another agent will not diminish the protection the prisoners are entitled to. This obligation is so well established that it is even reflected in Article 46 of Geneva Convention III,[6] which applies to the transfer of prisoners of war to another location by the Detaining Power, and furthermore in paragraphs 2 and 3 of Article 12 of Geneva Convention III,[7] which applies to the transfer of prisoners of war to another High Contracting Party. The Appeals Chamber recalls that besides the JNA, the TO was one of the two constituent elements of the armed forces of the former Yugoslavia, and they were both subordinated to the Supreme Defence Council.[8] Thus, the military police of the 80 mtbr of the JNA should have satisfied itself of the willingness and ability of the TOs to apply the principle enshrined in Geneva Convention III, before transferring custody of the prisoners of war. 

72. Although the duty to protect prisoners of war belongs in the first instance to the Detaining Power, this is not to the exclusion of individual responsibility. The first paragraph of Article 12 of Geneva Convention III places the responsibility for prisoners of war squarely on the Detaining Power; however, it also states that this is “[i]rrespective of the individual responsibilities that may exist”. The ICRC Commentaries clarify that “[a]ny breach of the law is bound to be committed by one or more individuals and it is normally they who must answer for their acts”.[9] The JNA Regulations further explicitly state that “[e]very individual – a member of the military or a civilian – shall be personally accountable for violations of the laws of war if he/she commits a violation or orders one to be committed”.[10] The Prosecution submits that “[t]hus, members of the armed forces ‛acquire’ these international obligations with regard to prisoners of war. There is no further requirement of ‛specific investment’” of authority as argued by Šljivančanin.[11] The Appeals Chamber agrees with this submission.

73. The Appeals Chamber thus finds that Geneva Convention III invests all agents of a Detaining Power into whose custody prisoners of war have come with the obligation to protect them by reason of their position as agents of that Detaining Power. No more specific investment of responsibility in an agent with regard to prisoners of war is necessary. The Appeals Chamber considers that all state agents who find themselves with custody of prisoners of war owe them a duty of protection regardless of whether the investment of responsibility was made through explicit delegation such as through legislative enactment or a superior order, or as a result of the state agent finding himself with de facto custody over prisoners of war such as where a prisoner of war surrenders to that agent.

74. The Appeals Chamber therefore considers that Šljivančanin was under a duty to protect the prisoners of war held at Ovčara and that his responsibility included the obligation not to allow the transfer of custody of the prisoners of a war to anyone without first assuring himself that they would not be harmed. Mrkšić’s order to withdraw the JNA troops did not relieve him of his position as an officer of the JNA. As such, Šljivančanin remained an agent of the Detaining Power and thus continued to be bound by Geneva Convention III not to transfer the prisoners of war to another agent who would not guarantee their safety.

[1] Krnojelac Appeal Judgement, para. 220. See also Čelebići Appeal Judgement, paras 112-113: “It is indisputable that the Geneva Conventions fall within this category of universal multilateral treaties which reflect rules accepted and recognised by the international community as a whole. The Geneva Conventions enjoy nearly universal participation” (footnote omitted); Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, para. 35: “The part of conventional international humanitarian law which has beyond doubt become part of international customary law is the law applicable in armed conflict as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of War Victims […]”.

[2] Kunarac et al. Appeal Judgement, para. 68; Čelebići Appeal Judgement, paras 138-139, 147; Tadić Jurisdiction Decision, paras 89, 98. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, para. 218: “Article 3 which is common to al1 four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’”.

[3] Cf. ICRC Commentaries on Article 3 of Geneva Convention III which makes comparisons between Articles 3 and 13, pp. 39-40.

[4] Article 13 of Geneva Convention III provides that “[p]risoners of war must at all times be humanely treated”. This principle of humane treatment applies not only to physical integrity but also to mental integrity (see Article 13 of Geneva Convention III, para. 2 and commentary thereof, p. 141: “The concept of humane treatment implies in the first place the absence of any kind of corporal punishment. [...] The protection extends to moral values, such as the moral independence of the prisoner (protection against acts of intimidation) and his honour (protection against insults and public curiosity)). It was enshrined in the same terms in Article 2 of the Convention relative to the Treatment of Prisoners of War (Geneva, 27 July 1929). See also Article 4 of the Hague Regulations (Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV of 18 October 1907). The Hague Regulations undoubtedly form part of customary international law (see Kordić and Čerkez Appeal Judgement, para. 92).

[5] See Article 5 of Geneva Convention III.

[6] See Article 46 of Geneva Convention III, which provides that when transferring prisoners of war from one location to another, “[t]he Detaining Power shall take adequate precautions […] to ensure their safety during transfer”.

[7] See Article 12 of Geneva Convention III, which provides: “Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody”.

[8] See Trial Judgement, paras 83-84.

[9] ICRC Commentaries to Geneva Convention III, Article 12, p. 128.

[10] Exhibit P396, “Regulations on the Application of International Laws of War in the Armed Forces of the SFRY”, Article 20.

[11] Prosecution Brief in Reply, para. 72.

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Other instruments Geneva Convention: Common Article 3. Geneva Convention III: Article 5; 12; 13; 46.
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Decision on Assessment of Competencies - 05.05.2009 KAREMERA et al.
(ICTR-98-44-AR75.15)

10. Rule 15(B) of the Rules prescribes a two-stage process for making a request to disqualify a Judge which consists of (i) an application to the Presiding Judge of the Trial Chamber seized with the proceedings, and (ii) a de novo determination by the Bureau.[1] The Appeals Chamber’s consideration of matters relating to disqualification is limited to an appeal on the merits of the case or, as here, where the issue properly arises in an interlocutory appeal certified by the Trial Chamber.[2]

[1] The Prosecutor v. Athanase Seromba, ICTR-01-66-AR, Decision on Interlocutory Appeal of a Bureau Decision, 22 May 2006, para. 5 (“Seromba Appeal Decision”).

[2] Seromba Appeal Decision, para. 4.

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ICTR Rule Rule 15 ICTY Rule Rule 15
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Decision on Assessment of Competencies - 05.05.2009 KAREMERA et al.
(ICTR-98-44-AR75.15)

21. The Trial Chamber characterized Mr. Nzirorera’s motion as “vexatious” and “frivolous” and noted that it showed disrespect for the Trial Chamber.[1] It then denied fees in addition to dismissing the motion.[2] The Appeals Chamber has held that the power to impose sanctions on counsel should be imposed cautiously.[3] It is most appropriate where a motion is frivolous or an abuse of process. The Appeals Chamber has previously held that there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.[4] However, the specific situation in this instance is different. Since Judge Byron was both the Judge and subject of the underlying disclosure dispute, the Appeals Chamber considers that the decision is subject to independent review.[5]

22. A review of the pleadings underlying the Impugned Decision does not reflect that counsel for Mr. Nzirorera submitted a disrespectful or frivolous application.[6] As the Appeals Chamber held above, the Statute and Rules do not foreclose a party from seeking limited disclosure from a Judge on matters related to disqualification. In his submissions at trial and on appeal, Mr. Nzirorera pointed to one jurisdiction where providing an assessment could require a Judge to withdraw. Additionally, the Tribunal has not had the occasion to consider this issue previously. Therefore, it cannot be said that there was no good faith legal basis for making the request for disclosure. Furthermore, the Appeals Chamber has rejected the Trial Chamber’s characterization of the assessment as constituting judicial function, which was one of the reasons for describing the motion as disrespectful. In view of the foregoing, the Appeals Chamber considers that the decision to deny fees associated with the motion was unreasonable. Thus, the Trial Chamber made a discernible error in this respect.

[1] Impugned Decision, paras. 7, 8.

[2] Impugned Decision, para. 9, p. 4.

[3] François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Decision on the Appellant’s Request to Admit Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 28 October 2008, para. 14; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on Request to Admit Additional Evidence of 1 August 2008, 1 September 2008, para. 12.

[4] Decision on Interlocutory Appeals Regarding Participation of Ad Litem Judges, 11 June 2004, p. 2 (“[A] decision to impose monetary sanctions on counsel for frivolous motions or abuse of process pursuant to Rule 73(F) of the Rules is not subject to appeal under the Statute of the International Tribunal or the Rules”); Decision on Counsel’s Appeals From Rule 73(F) Decisions, 9 June 2004, p. 3 (“[N]either the Statute nor Rules provide for a right of appeal from sanctions imposed pursuant to Rule 73(F) of the Rules”).

[5] Cf. Nahimana et al. Appeal Judgement, paras. 73, 74.

[6] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Joseph Nzirorera’s Motion for Disclosure of Letter of Recommendation, 1 December 2008; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Reply Brief: Joseph Nzirorera’s Motion for Disclosure of Letter of Recommendation, 8 December 2008.

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ICTR Rule Rule 73(F) ICTY Rule Rule 73(D)
Notion(s) Filing Case
Decision on Assessment of Competencies - 05.05.2009 KAREMERA et al.
(ICTR-98-44-AR75.15)

11. Mr. Nzirorera has not filed a request to disqualify Judge Byron in accordance with Rule 15(B) of the Rules. Rather, he sought disclosure of material directly from the concerned Trial Chamber in order to assess the merits of making such a claim.[1] While the Statute and Rules do not explicitly provide for the disclosure of material from a Judge in connection with a request for disqualification, they also do not prevent a party from requesting disclosure of information in this regard. The Appeals Chamber recalls that a presumption of impartiality, which cannot be easily rebutted, attaches to the Judges of the Tribunal.[2] Bearing this in mind, a request for disclosure must specifically identify the material or information in the possession of the Judge and make a prima facie showing that it would demonstrate actual bias or the appearance of bias.

[1] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Motion for Disclosure of Letter of Recommendation, 11 February 2009], para. 3.

[2] Nahimana et al. Appeal Judgement, para. 48.

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ICTR Rule Rule 15 ICTY Rule Rule 15
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Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

4. The Appeals Chamber recalls that “a party is always entitled to seek material from any source, including from another case before the Tribunal, to assist in the preparation of its case if the material sought has been identified or described by its general nature and if a legitimate forensic purpose for such access has been shown”.[1]

5. The Appeals Chamber further notes that access to confidential material may be granted when a Chamber is satisfied that the party seeking access has established that such material “is likely to assist the [party’s] case materially, or […] there is a good chance that it would”.[2] This standard is met by showing the existence of a factual nexus between the two cases such as a “geographical, temporal or otherwise material overlap”.[3]

[1] See Prosecutor v. Milan Martić, Case No. IT-95-11-A, Decision on Motion by Jovica Stanišić for Access to Confidential Testimony and Exhibits in the Martić Case Pursuant to Rule 75(G)(i), 22 February 2008 (“Martić Decision”), para. 9; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on “Motion by Mićo Stanišić for Access to All Confidential Materials in the Krajišnik Case”, 21 February 2007, p. 4.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Motions for Access to Confidential Materials, 16 November 2005 (“Blagojević and Jokić Decision”), para. 8.

[3] Prosecutor v. Dario Kordić and Mario Ćerkez, Case No. IT-95-14/2-A, Decision on Motion by Hadžihasanović, Alagić and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić and Ćerkez Case, 23 January 2003, p. 4; see also Martić Decision, para. 9.

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Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

14. The Appeal Chamber notes that protective measures ordered in one proceeding “shall continue to have effect mutatis mutandis in any other proceeding before the Tribunal”.[1] It further recognises that once the Appeals Chamber has granted access to confidential materials from another case, it then determines if and what additional protective measures are necessary in order to “strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information”.[2]

15. The Appeals Chamber finds that existing protective measures should continue to apply to any material released to Perišić. It will further give the opportunity to the parties to the Dragomir Milošević case to request additional protective measures, if they so choose.

[1] Rule 75(F)(i) of the Rules; see also Galić Decision, para. 11.

[2] Blagojević and Jokić Decision, para. 16, referring to Naletilić Decision, p. 7. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
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Decision on Access (Perišić) - 27.04.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

13. The Appeals Chamber notes that, under Rule 70(B) of the Rules, information “provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence […] shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information”. The same restriction may be applied to information in possession of the Defence under Rule 70(F) of the Rules. In respect of motions seeking access to confidential material in another case, the Appeals Chamber has previously ruled that material provided under Rule 70 of the Rules shall not be released to the accused in another case unless the provider consents to such disclosure.[1] Accordingly, the Appeals Chamber holds that any material that has been provided to the Prosecution under Rule 70(B) of the Rules, in addition to any material that may have been provided to Milošević under Rule 70(F) of the Rules, shall not be released to Perišić unless and before the providers give their consent.

[1] Galić Decision [Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Galić Case, 16 February 2006], para. 12, referring to Prosecutor v. Mladen Naletilić, aka “Tuta” and Vinko Martinović, aka “Štela”, Case No. IT-98-34-A, Decision on “Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Naletilić and Martinović” and “Jadranko Prlić’s Notice of Joinder to Slobodan Praljak’s Motion for Access”, 13 June 2005 (“Naletilić Decision”) p. 8.

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ICTR Rule Rule 70 ICTY Rule Rule 70
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Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

6. Rule 75(J) of the Rules of Procedure and Evidence (“Rules”), provides that decisions under paragraph (G) are subject to appeal directly to a full bench of the Appeals Chamber by either party.

10. The Appeals Chamber recalls that where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose for accessing it must be demonstrated.[1] Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought.[2] Such a factual nexus may be established, for example, “if the cases stem from events alleged to have occurred in the same geographic area at the same time,”[3] although this may not always be necessary or sufficient.[4] Rather, a case-specific analysis is required in each instance.[5] A Chamber must be satisfied that the requesting party has established that this material is likely to assist its case materially or that there is at least a good chance that it would.[6]

11. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case, and guaranteeing the protection and integrity of confidential information.[7] Failure by the Trial Chamber to apply this approach amounts to a discernible error based on an incorrect interpretation of the governing law.[8]

[1] Nahimana et al. Decision, para. 12.

[2] See Niyitegeka Decision of 23 October 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Eliézer Niyitegeka’s Appeal Concerning Access to Confidential Materials in the Muhimana and Karemera et al. Cases, 23 October 2008], para. 21, referring to Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts filed in the Prosecutor v. Blaškić, 16 May 2002 (“Blaškić Decision”), para. 15.

[3] See Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Decision on Momčilo Perišić’s Motion Seeking Access to Confidential Material in the Blagojević and Jokić Case, 18 January 2006 (“Blagojević and Jokić Decision”), para. 4 (internal quotations and citations omitted); Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Momcilo Perisić’s Motion Seeking Access to Confidential Material in the Galić Case, 16 February 2006, para. 3.

[4] Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Haradinaj Motion for Access, Balaj Motion for Joinder, and Balaj Motion for Access to Confidential Materials in the Limaj Case, 31 October 2006 (“Limaj et al. Decision”), para. 7, citing Blaškić Decision, paras. 15, 16.

[5] Limaj et al. Decision, para. 7.

[6] Niyitegeka Decision of 23 October 2008, referring to Blaškić Decision Decision, para. 15. For discussion of the circumstances which would be relevant to establishing the requisite nexus, see, e.g., Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Motion by Mićo Stanišić for Access to All Confidential Material in the Krajišnik Case, 21 February 2007, p. 5; Blagojević and Jokić Decision, para. 5; Blaškić Decision, para. 16; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Decision on Motion by Jovica Stanišić for Access to Confidential Testimony and Exhibits in the Martić Case, 22 February 2008, para. 10.

[7] See Niyitegeka Decision of 23 October 2008, para. 21, citing Prosecutor v. Mladen Naletilić et al., Case No. IT-98-34-A, Decision on “Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents in Prosecutor v. Naletilić and Martinović” and “Jadranko Prlić’s Notice of Joinder to Slobodan Praljak’s Motion for Access”, 13 June 2005, p. 7; Blagojević and Jokić Decision, para. 7.

[8] Niyitegeka Decision of 23 October 2008, para. 23.

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ICTR Rule Rule 75 ICTY Rule Rule 75
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Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

23. In its Impugned Decision [The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31, Decision on Request for Closed Session Testimony and Sealed Exhibits, 3 April 2008], the Trial Chamber noted that “a significant factual, geographical and temporal overlap” between the cases constitutes a legitimate forensic purpose.[1] The Appeals Chamber emphasises that a requesting party is not required to establish a “significant” overlap between the cases - be it factual, geographic or temporal - in order to demonstrate a legitimate forensic purpose. However, the Appeals Chamber further notes that the Trial Chamber, having reviewed the requested material, went on to conclude that the Appellant’s conviction in relation to Cyahafi concerned the distribution of weapons, and that since the requested material shed no light on the Appellant’s conduct in this regard, it was unlikely to materially assist him.[2] The Appeals Chamber is satisfied with the Trial Chamber reasoning in this respect. Moreover, the Appeals Chamber is not persuaded by the Appellant’s contention that the lack of reference to him in the evidence of Witness AWE in and of itself makes this evidence exculpatory within the meaning of Rule 68 and is therefore of “material assistance” to his case. The Appeals Chamber accordingly finds that the Trial Chamber did not abuse its discretion and dismisses this ground of appeal.

[1] Impugned Decision, para. 6 (internal citations omitted).

[2] Impugned Decision, para. 6, referring to Trial Judgement, paras. 174 et seq. See also Rutaganda Appeal Judgement, paras. 294-341, 589 and Disposition. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
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Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

28. The Appeals Chamber recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal which cannot be easily rebutted.[1] It is for the party challenging the impartiality of a Judge to adduce reliable and sufficient evidence to rebut this presumption of impartiality.[2] The Appeals Chamber will consider, inter alia, whether the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[3]

29. The Appeals Chamber finds that the Appellant makes generalized allegations that are unsupported by any evidence which would lead a reasonable observer to apprehend bias on the part of the Trial Chamber with regard to its findings related to disclosure. The Appeals Chamber further observes that the Trial Chamber’s findings on this issue were in fact in response to a submission on this issue which the Appellant made in his original motion.[4] The Appeals Chamber therefore dismisses this ground of appeal.

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), para. 48; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 41; The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 para. 55; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”), para. 91; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 707; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000 (“Furundžija Appeal Judgement”), paras. 196, 197.

[2] Nahimana et al. Appeal Judgement, para. 48; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 13; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, para. 45; Akayesu Appeal Judgement, para. 91; Čelebići Appeal Judgement, para. 707; Furundžija Appeal Judgement, para. 197.

[3] Nahimana et al. Appeal Judgement, para. 49(B)(ii), citing Akayesu Appeal Judgement, para. 203. See also id. paras. 47, 48, 50; Furundžija Appeal Judgement, para. 189; Galić Appeal Judgement, paras. 38, 39; Rutaganda Appeal Judgement, para. 39; Čelebići Appeal Judgement, para. 682.

[4] See Rutaganda’s Urgent Motion to Obtain Transcripts of the Closed Session Testimony and the Exhibits Under Seal of witness “AWE” in the Case of Tharcisse Renzaho (ICTR-97-31-T) of 5 February 2008, para. 7.

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Decision on Access to Confidential Material - 22.04.2009 RUTAGANDA George
(ICTR-96-3-R)

31. The Appeals Chamber recalls that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel at the Tribunal’s expense if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings at the preliminary examination stage.[1] The Appellant has already made detailed submissions with regard to his request for access to the confidential materials of Witness AWE, and the Appeals Chamber is not satisfied that additional submissions would be of assistance to the present inquiry. In such circumstances, the Appeals Chamber considers that the assignment of counsel under the auspices of the Tribunal’s legal aid scheme is not warranted. The Appeals Chamber therefore dismisses the request.

[1] Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-R, Decision on Request for Assignment of Counsel, 27 February 2009, pp. 2, 3; Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R, Decision on Emmanuel Ndindabahizi’s Motion for Assignment of Counsel and the Prosecution’s Request to Place the Motion Under Seal, 24 September 2008, p. 2; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-99-52A-R, Decision on Jean-Bosco Barayagwiza’s Motion of 6 March 2008, 11 April 2008, p. 3; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motion To Obtain Assistance From Counsel, 28 February 2008, p. 2; Eliézer Niyitegeka v. The Prosecutor, Decision on Third Request for Review, 23 January 2008, para. 12. The Appeals Chamber recalls that it has rejected a previous request from the Appellant to have counsel assigned under the Tribunal’s legal aid scheme to assist him in the post-appeal phase. See Decision of 8 December 2006, paras. 40-42.

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Decision on Accused's Statement - 20.04.2009 PRLIĆ et al.
(IT-04-74-AR73.15)

23. While the Appeals Chamber considers that a statement made pursuant to Rule 84 bis may touch upon any aspect of the case against the accused, including expert reports, the scope and length of such statements remain under the control of the Trial Chamber.

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ICTY Rule Rule 84 bis
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Decision on Accused's Statement - 20.04.2009 PRLIĆ et al.
(IT-04-74-AR73.15)

28. […] While statements made under Rule 84 bis are a type of evidence – the probative value of which is decided by the Trial Chamber[1]– the admission of such statements, or their scope, are subject to the authority and control of the Trial Chamber.

29. The Rules do not provide explicitly for a written supplement to an accused’s Rule 84 bis statement to be admitted into evidence in the trial of that person and other accused. A Chamber is therefore called in such a case to apply rules of evidence that “will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”.[2] As the Appeals Chamber has previously noted, “[t]his is a delicate exercise for, while the system under which the Tribunal’s rules of evidence operates is predominantly adversarial, the jurisprudence – and the Rules themselves – have recognized from the beginning the necessity, and desirability, of certain features which do not accord with a strictly adversarial criminal procedure.”[3] Rule 84 bis is one such feature.[4] […]

[1] See, e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-T, Judgement, 12 June 2007, para. 23, in which the Trial Chamber considered whether the accused’s Rule 84 bis statement had any probative value, and concluded that it did not.

[2] Rule 89(B).

[3] Prosecution v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007, para. 40. 

[4] See Giuliano Turone, The Denial of the Accused’s Right to Make Unsworn Statements in Delalić, 2 J. Int’l Crim. J. (2004) 455-458. The Appeals Chamber, notes, however, that the possibility of an accused to make an unsworn statement is not purely a creature of the civil law, and in fact was part of the common law system in many countries, although the tendency has been to abolish the rule. The US Army Manual for Courts Martial (2008), R.C.M. 1001(c)(2)(C) provides for the possibility of an accused to make an unsworn statement, either orally or in writing, though the statement is not considered as evidence and an accused making an unsworn statement is not a “witness”. See Trial of Albert Bury and Wilhelm Hafner, United States Military Commission, Freising, Germany, 15 July 1945, Law Reports of Trials of War Criminals, The United Nations War Crimes Commission, Vol. III, London, HMSO, 1948, p. 63. 

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ICTY Rule Rule 84 bis