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| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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139. As recently recalled by the Appeals Chamber: The fair trial requirements of the Statute include the right of each accused to a reasoned opinion by the Trial Chamber under Article 23 of the Statute and Rule 98ter(C) of the Rules. A reasoned opinion ensures that the accused can exercise his or her right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 25 to review these appeals. The reasoned opinion requirement, however, relates to a Trial Chamber’s judgement rather than to each and every submission made at trial.[1] As a general rule, a Trial Chamber “is required only to make findings on those facts which are essential to the determination of guilt on a particular count”;[2] it “is not required to articulate every step of its reasoning for each particular finding it makes”[3] nor is it “required to set out in detail why it accepted or rejected a particular testimony.”[4] However, the requirements to be met by the Trial Chamber may be higher in certain cases.[5] It will be “necessary for any appellant claiming an error of law because of the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which he submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.”[6] 141. […] The Trial Chamber does not have to refer to the testimony of every witness or every piece of evidence on the trial record; it is to be presumed that the Trial Chamber evaluated all the evidence before it.[7] In fact, the Trial Chamber specifically stated that it had “carefully deliberated” on the evidence presented to it. Both impugned passages merely stress the fact that the Trial Chamber could not present and discuss “all the evidence” in the judgement, a statement which cannot, by itself, be equated with a failure to examine the evidence in question, nor with a failure to provide sufficient reasons for the conclusions reached in the Trial Judgement. The Appeals Chamber considers that the approach taken by the Trial Chamber in the impugned paragraphs was not in error. 142. The Appeals Chamber also recalls that it is necessary for any appellant claiming an error of law based on the lack of a reasoned opinion to identify the specific issues, factual findings or arguments, which the appellant submits the Trial Chamber omitted to address and to explain why this omission invalidated the decision.[8] […] [1] Limaj et al. Appeal Judgement, para. 81 (references omitted). See also Hadžihasanović and Kubura Appeal Judgement, para. 13; Naletilić and Martinović Appeal Judgement, para. 603; Kvočka et al. Appeal Judgement, paras 23 and 288. [2] Hadžihasanović and Kubura Appeal Judgement, para. 13. [3] Musema Appeal Judgement, para. 18. See also Brđanin Appeal Judgement, para. 39. [4] Musema Appeal Judgement, para. 20. [5] Kvočka et al. Appeal Judgement, para. 24. [6] Kvočka et al. Appeal Judgement, para. 25 (reference omitted). See also Halilović Appeal Judgement, para. 7; Brđanin Appeal Judgement, para. 9. [7] Kvočka et al. Appeal Judgement, para. 23. [8] Halilović Appeal Judgement, para. 7; Brđanin Appeal Judgement, para. 9; Kvočka et al. Appeal Judgement, para. 25. |
ICTR Statute Article 22 ICTY Statute Article 23 ICTR Rule Rule 88(C) ICTY Rule Rule 98 ter(C) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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The Appeals Chamber found that while it can be sufficient to refer to categories or groups of persons in order to identify JCE members, in the case at hand the Trial Chamber made impermissibly vague identifications in relation to some of the JCE members: 156. While a Trial Chamber must identify the plurality of persons belonging to the JCE, it is not necessary to identify by name each of the persons involved. Depending on the circumstances of the case, it can be sufficient to refer to categories or groups of persons.[1] […] 157. The issue before the Appeals Chamber is whether the Trial Chamber’s finding in paragraph 1087 that the JCE included a “rank and file consist[ing] of local politicians, military and police commanders, paramilitary leaders, and others” was erroneously unspecific as far as this finding is not further specified by the rank and file JCE members individually named in paragraph 1088. The Appeals Chamber finds that the Trial Chamber indeed erred in this respect. The Trial Chamber failed to specify whether all or only some of the local politicians, militaries, police commanders and paramilitary leaders were rank and file JCE members. Furthermore, the finding in paragraph 1087 does not refer to any time period that could further specify who was found to be a rank and file JCE member. Also, the reference to the geographical scope (“regions and municipalities of the Bosnian-Serb Republic”) is too broad to dispel the ambiguity as to whom the Trial Chamber found was a rank and file JCE member in paragraph 1087. Therefore, inasmuch as the Trial Chamber included persons in the JCE merely by reference to the JCE “rank and file consist[ing] of local politicians, military and police commanders, paramilitary leaders, and others”, its identification of the JCE members is impermissibly vague. Sub-ground 3(A) submitted by Amicus Curiae is therefore granted.[2] [1] Limaj et al. Appeal Judgement, para. 99; Brđanin Appeal Judgement, para. 430. See also Stakić Appeal Judgement, para. 69. [2] As to the effect of this finding on Krajišnik’s convictions, see infra III.C.11. |
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| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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The Trial Chamber found that deportation, forcible transfer and persecution based thereon, were the original crimes of the common objective of the JCE 1. It further held that other, expanded crimes were added to the JCE, after leading members of the JCE became aware of them, accepted them and came to intend them. The Appeals Chamber was not satisfied, however, that the Trial Chamber found that Krajišnik incurred liability under JCE 3 for the first commissions of these expanded crimes. 167. The Appeals Chamber first notes that, in the Indictment, the Prosecution pled Krajišnik’s liability pursuant to JCE Category 1 and alternatively, pursuant to JCE Category 3.[1] However, the Appeals Chamber is not persuaded by the submission that the Trial Chamber found that Krajišnik incurred responsibility pursuant to JCE Category 3. First, although the Trial Chamber raised the question of whether Krajišnik incurred liability under JCE Category 3 for some of the crimes,[2] it never returned to answer that question. Instead, it focused its analysis on whether the expanded crimes became incorporated into the common objective,[3] thereby resulting in responsibility for Krajišnik under JCE Category 1 once they had been incorporated.[4] Had the Trial Chamber intended to find Krajišnik liable for the expanded crimes under JCE Category 3 before they had become part of the common objective, it would, at the very least, have made some distinction between the first commissions of the expanded crimes (when they were not yet part of the common objective) and their commission after they had become part of the common objective. However, the Trial Chamber made no such distinction. This indicates that the Trial Chamber found Krajišnik responsible under JCE Category 1 alone, and not under JCE Category 3. 168. Likewise, the other findings of the Trial Chamber invoked by the Prosecution do not reveal that it found Krajišnik criminally responsible under JCE Category 3. The Trial Chamber found that “even before the Bosnian-Serb take-overs began in April 1992, the Accused and Radovan Karadžić were aware that an armed conflict between the ethnic groups would have devastating consequences”.[5] This finding falls short, however, of demonstrating Krajišnik’s mens rea for JCE Category 3. Similarly, the Trial Chamber’s finding that “the Accused’s criminal responsibility arises with the attack and crimes committed in Bijeljina municipality in the beginning of April 1992”[6] does not show that the commission of expanded crimes was a natural and foreseeable consequence of the common objective. Its broad, summary finding in paragraph 1119 of the Trial Judgement that Krajišnik “had the mens rea required for the commission of the crimes which the Chamber, in part 5 of this judgement, has found were committed” does not address whether and when his liability arose under JCE Category 1 or JCE Category 3.[7] The preceding paragraphs 1110 to 1118 of the Trial Judgement do not clarify the matter, as they only generally describe how JCE members became aware of the commission of the expanded crimes “during the course of the indictment period”.[8] The Trial Chamber also found that “[t]ake-overs, killings, detention, abuse, expulsions, and appropriation and destruction of property […] were launched in early April 1992, and were repeated throughout the claimed territories in the months to come. This was the Bosnian-Serb leadership’s goal”.[9] However, this finding was made in the context of rejecting the Prosecution’s interpretation of the “Six Strategic Goals”,[10] and before the Trial Chamber had even reached the question of whether Krajišnik incurred liability pursuant to JCE Category 3. 169. Thus, having considered the Trial Judgement as a whole, the Appeals Chamber is not satisfied that the Trial Chamber made a finding that Krajišnik incurred criminal liability under JCE Category 3 for the first commissions of the expanded crimes, that is, before they became part of the common objective. Instead, the Trial Chamber only held Krajišnik responsible under JCE Category 1 for their subsequent commissions, that is, once they had become part of the JCE. Furthermore, the Trial Chamber made insufficient findings as to when the expanded crimes became incorporated into the common objective. Hence, Krajišnik’s convictions for all expanded crimes were quashed. 171. The Appeals Chamber notes that in order to impute responsibility to leading JCE members, including Krajišnik, for the expanded crimes, the Trial Chamber was therefore required to make findings as to (1) whether leading members of the JCE were informed of the crimes, (2) whether they did nothing to prevent their recurrence and persisted in the implementation of this expansion of the common objective, and (3) when the expanded crimes became incorporated into the common objective. It is apparent that the Trial Chamber only made scarce findings in relation to each of these requirements. 172. The Appeals Chamber first notes that the Trial Judgement’s section on the common objective[11] offers only a few “illustrative” factual findings[12] on when “leading JCE members” – a term nowhere defined in the Trial Judgement[13] – became “aware” of the commission of expanded crimes.[14] Furthermore, the Trial Chamber did not make any findings in accordance with its prior statement that in order for expanded crimes to be included in the common objective, “leading JCE members” not only had to be informed of them but, additionally, took no effective measures to prevent their recurrence, and persist in the implementation of the common objective, thereby coming to intend these expanded crimes. 173. Even more significantly, while the Trial Chamber characterised “the common objective [of the JCE] as fluid in its criminal means”,[15] it did not explicitly find at which specific point in time the expanded crimes became part of the common plan and whether the JCE members had any intent in respect thereof. For instance, the Trial Chamber stated that the murder of civilians “was soon incorporated as an intended crime”,[16] that the Bosnian-Serb leadership “very soon came not only to accept killings […] but also to encourage them”,[17] and that the “appropriation of property […] had become a means of forcible ethnic recomposition”.[18] The Trial Chamber only generally found that these crimes “came to redefine the criminal means of the JCE’s common objective during the course of the indictment period.”[19] Similarly, in those instances where the Trial Chamber referred to a particular month in which leading JCE members became aware of the commission of expanded crimes, it did not specify the date when this happened or whether Krajišnik was among the leading JCE members who gained such awareness, let alone when leading JCE members went from being merely aware of the crime to intending it. 174. Furthermore, with respect to the “local component” of the JCE,[20] the Trial Chamber did not make any findings when members of this group became aware of the expanded crimes. Consequently, the Trial Chamber did not find at what point in time the expanded crimes became incorporated in the common objective through the involvement of the members of the local component of the JCE. 175. In light of these scarce – or entirely absent – findings, the Appeals Chamber is not able to conclude with the necessary preciseness how and at which point in time the common objective of the JCE expanded to include other crimes that originally were not included in it, and, consequently, on what basis the Trial Chamber imputed those expanded crimes to Krajišnik. 176. Neither the Appeals Chamber nor the Parties can be required to engage in speculation on the meaning of the Trial Chamber’s findings – or lack thereof – in relation to such a central element of Krajišnik’s individual criminal responsibility as the scope of the common objective of the JCE. Aside from merely stating that the common objective was “fluid”,[21] the Trial Chamber was required to precisely find how and when the scope of the common objective broadened in order to impute individual criminal responsibility to Krajišnik for those crimes that were not included in the original plan, i.e the expanded crimes. 177. In conclusion, the Appeals Chamber finds that the Trial Chamber committed a legal error[22] in failing to make the findings necessary for Krajišnik’s conviction in relation to the following expanded crimes, which were not included in the original common objective of the JCE. [1] Indictment, para. 5. [2] Trial Judgement, para. 1096. [3] Trial Judgement, paras 1100-1117. [4] Trial Judgement, para. 1098: “With acceptance of the actual commission of new types of crimes and continued contribution to the objective, comes intent, meaning that subsequent commission of such crimes by the JCE will give rise to liability under JCE form 1.” (emphasis added). [5] Trial Judgement, para. 1099. [6] Trial Judgement, para. 1124. [7] Trial Judgement, para. 1119. [8] Trial Judgement, para. 1118. For instance, the Trial Chamber found that JCE members became aware of extermination and killings in detention as late as August 1992 and November 1992, respectively (ibid., paras 1104 and 1109, respectively).
[11] Trial Judgement, paras 1089-1119. [12] Trial Judgement, para. 1100 (fn. 2223). [13] The Trial Chamber apparently did make a distinction between a “Pale-based leadership component” of the JCE (para. 1087) and a “local component” (para. 1088) but it is unclear whether the term “leading JCE members” (para. 1098) accords with either of these two groups. [14] See e.g. paras 1108 (murder of civilians outside detention); 1109 (extermination), 1111 (plunder and appropriation of property), 1114 (destruction of cultural monuments and sacred sites). [15] Trial Judgement, para. 1098. [16] Trial Judgement, para. 1108 (emphasis added). [17] Ibid. [18] Trial Judgement, para. 1113 (emphasis added). [19] Trial Judgement, para. 1118 (emphasis added). [20] See Trial Judgement, para. 1088. [21] Trial Judgement, para. 1098. [22] As to the effect of this legal error, see infraIII.C.11. |
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| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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215. The Appeals Chamber recalls that the participation of an accused person in a JCE need not involve the commission of a crime, but that it may take the form of assistance in, or contribution to, the execution of the common objective or purpose.[1] The contribution need not be necessary or substantial, but it should at least be a significant contribution to the crimes for which the accused is found responsible.[2] 218. […] Moreover, the fact that it was not criminal to be involved in the setting up of SDS structures is irrelevant: as explained above, the participation of an accused in the JCE need not involve the commission of a crime, what is important is that it furthers the execution of the common objective or purpose involving the commission of crimes.[3] […]. 675. The Trial Chamber held that a contribution of the accused to the JCE need not, as a matter of law, be substantial.[4] The Appeals Chamber agrees and rejects JCE counsel’s contention to the contrary. It also recalls that the accused’s contribution to the crimes for which he is found responsible should at least be significant.[5] As such, JCE counsel is wrong to suggest that JCE criminalises the mere holding of beliefs supportive of crimes. 676. In Kvočka et al., the Appeals Chamber held that “there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the [JCE]”.[6] However, its application of this exception to Zoran Žigić was strictly confined to the facts of that case.[7] Therefore, Kvočka et al. does not represent the broad legal recognition of a substantiality requirement JCE counsel allege. 680. The Appeals Chamber in Kvočka et al. held that, “[i]n practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose.”[8] This, however, does not amount to a legal requirement that the Trial Chamber take the significance ‑ or, in the words of JCE counsel, the “substantiality or nature” ‑ of an accused’s contribution into account in assessing his intent. That assessment is more a matter of evidence than of substantive law. In any case, the Trial Chamber did note the significance of Krajišnik’s contribution in concluding on his mens rea.[9] It did not err in doing so. 695. The Appeals Chamber finds that contrary to JCE counsel’s allegation, the Trial Chamber did not find that the political activities of Krajišnik formed the actus reus of any of the crimes against humanity of which he was convicted. Instead, Krajišnik was convicted for crimes for which he was found criminally responsible under the mode of liability of JCE, which requires that the defendant “has made a significant contribution to the crime’s commission.”[10] The Tribunal’s jurisprudence does not require such contribution to be criminal per se. Indeed, the Appeals Chamber has explicitly held that the contribution “need not involve commission of a specific crime” under the Statute.[11] Moreover, the Appeals Chamber has repeatedly found that contribution to a JCE “may take the form of assistance in, or contribution to, the execution of the common purpose,”[12] and that it is not required that the accused physically committed or participated in the actus reus of the perpetrated crime.[13] It is sufficient that the accused “perform acts that in some way are directed to the furthering” of the JCE[14] in the sense that he significantly contributes to the commission of the crimes involved in the JCE. For these reasons, the Appeals Chamber holds that the contribution to a JCE need not, in and of itself, be criminal. JCE counsel’s claim to the contrary is dismissed. 696. JCE counsel further assert that Krajišnik’s speeches cannot, as a matter of law, constitute a contribution to a JCE, because they were protected under his right to freedom of speech.[15] The Appeals Chamber disagrees. What matters in terms of law is that the accused lends a significant contribution to the commission of the crimes involved in the JCE.[16] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to the common purpose. Within these legal confines, the question of whether the accused contributed to a JCE is a question of fact to be determined on a case-by-case basis.[17] As JCE counsel’s present argument is limited to a question of law, the Appeals Chamber need not address it further. [1] Kvočka et al. Appeal Judgement, para. 99; Babić Appeal Judgement, para. 38; Ntakirutimana Appeal Judgement, para. 466; Vasiljević Appeal Judgement, para. 100; Krnojelac Appeal Judgement, paras 31 and 81; Tadić Appeal Judgement, para. 227(iii). [2] Brđanin Appeal Judgement, para. 430. [3] Kvočka et al. Appeal Judgement, para. 99; Babić Appeal Judgement, para. 38; Ntakirutimana Appeal Judgement, para. 466; Vasiljević Appeal Judgement, para. 100; Krnojelac Appeal Judgement, paras 31 and 81; Tadić Appeal Judgement, para. 227(iii). [4] Trial Judgement, para. 883 (iii). [5] Brđanin Appeal Judgement, para. 430. Kvočka et al. Appeal Judgement, para. 97. [6] Kvočka et al. Appeal Judgement, para. 97. [7] Kvočka et al. Appeal Judgement, para. 599 (footnote omitted): In the view of the Appeals Chamber, it would not be appropriate to hold every visitor to the camp who committed a crime there responsible as a participant in the joint criminal enterprise. The Appeals Chamber maintains the general rule that a substantial contribution to the joint criminal enterprise is not required, but finds that, in the present case of “opportunistic visitors”, a substantial contribution to the overall effect of the camp is necessary to establish responsibility under the joint criminal enterprise doctrine. [8] Kvočka et al. Appeal Judgement, para. 97. [9] Trial Judgement, para. 1119, noting that Krajišnik “held a central position in the JCE” and that he “was one of the driving forces behind it”. [10] Brđanin Appeal Judgement, para. 431. [11] Tadić Appeal Judgement, para. 227. [12] Brđanin Appeal Judgement, para. 424, with reference to Vasiljević Appeal Judgement, para. 100. [13] Brđanin Appeal Judgement, paras 424, 427; Babić Judgement on Sentencing Appeal, para. 38; Vasiljević Appeal Judgement, para. 100; Kvočka et al. Appeal Judgement, paras 99, 263; Knojelac Appeal Judgement, paras 31, 81; Tadić Appeal Judgement, para. 227. [14] Tadić Appeal Judgement, para. 229. [15] AT. 213-214, 225, 230. [16] Brđanin Appeal Judgement, para. 430. [17] As JCE counsel himself appears to concede: see AT. 231-233. |
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| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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The Appeals Chamber considered the link between Krajišnik and other JCE members and the principal perpetrators of crimes who were not proven to be members of the JCE. 225. In the Brđanin Appeal Judgement, the Appeals Chamber held that members of a JCE can incur liability for crimes committed by principal perpetrators who were non-JCE members, provided that it has been established that the crimes can be imputed to at least one member of the JCE and that this member – when using the principal perpetrators – acted in accordance with the common objective.[1] Such a link is established by a showing that the JCE member used the non-JCE member to commit a crime pursuant to the common criminal purpose of the JCE.[2] 226. The establishment of a link between the crime in question and a member of the JCE is a matter to be assessed on a case-by-case basis.[3] Factors indicative of such a link include evidence that the JCE member explicitly or implicitly requested the non-JCE member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-JCE member to commit the crime. However, it is not determinative whether the non-JCE member shared the mens rea of the JCE member or that he knew of the existence of the JCE; what matters in JCE Category 1 is whether the JCE member used the non-JCE member to commit the actus reus of the crime forming part of the common purpose.[4] 235. The Appeals Chamber recalls its finding in Brđanin that all JCE members are responsible for a crime committed by a non-JCE member if it is shown that the crime can be imputed to at least one JCE member, and that this JCE member – when using the non-JCE member – acted in accordance with the common objective.[5] 236. At paragraphs 883(ii), 1082 and 1086 of the Trial Judgement, the Trial Chamber held that a JCE member could incur liability for crimes committed by other JCE members or by principal perpetrators “procured” by a JCE member to commit crimes which further the common objective. The Appeals Chamber is satisfied that this standard corresponds in substance to the standard outlined in the Brđanin Appeal Judgement which was rendered after the Trial Judgement in the present case.[6] Amicus Curiae therefore fails to show an error by the Trial Chamber in this respect. The Appeals Chamber held, however, that the Trial Chamber, in relation to the majority of crimes, erroneously failed to make findings on the link between the principal perpetrators and the members of the JCE: 237. The Appeals Chamber will now analyse whether the Trial Chamber made the necessary factual findings establishing links between the principal perpetrators of the crimes and the JCE members identified above;[7] in other words, whether the JCE members used the principal perpetrators to commit crimes in furtherance of the common purpose in the sense that the crimes can be imputed to the JCE members.[8] At the outset, the Appeals Chamber observes that the Trial Chamber did not explicitly state that JCE members procured or used principal perpetrators to commit specific crimes in furtherance of the common purpose. The Appeals Chamber finds that, while the Trial Chamber should have made such a finding, this omission, in the circumstances of this case, does not as such invalidate the Trial Judgement,[9] because the Trial Chamber otherwise established a link between JCE members and principal perpetrators of crimes forming part of the common objective. However, in relation to a large number of principal perpetrators, the Trial Chamber did not reach any definite finding on their link with one of the JCE members. The Appeals Chamber will take this into account when reviewing the Trial Chamber’s findings. This analysis must be conducted on the basis of the Trial Judgement as a whole. […] See also, paras 598 and 714. [1] Brđanin Appeal Judgement, paras 413, 430. See also Martić Appeal Judgement, para. 168. [2] Brđanin Appeal Judgement, para. 413. See also Limaj et al. Appeal Judgement, para. 120. [3] Brđanin Appeal Judgement, para. 413. Martić Appeal Judgement, para. 169. [4] Brđanin Appeal Judgement, para. 410. [5] Brđanin Appeal Judgement, paras 413, 430. Martić Appeal Judgement, para. 168. [6] Ibid. [7] Whether those findings withstand other challenges on appeal – in particular, whether they were open to a reasonable trier of fact – is left for later consideration as necessary. [8] Brđanin Appeal Judgement, paras 413, 430. Martić Appeal Judgement, para. 168. [9] Cf. Martić Appeal Judgement, para. 181. |
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| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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655. In any event, the Appeals Chamber considers that JCE counsel advance no cogent reason[1] why it should depart from its holding that “the Statute provides, albeit not explicitly, for joint criminal enterprise as a form of criminal liability”.[2] First, they do not address the teleological interpretation of the Statute as applied by the Tribunal that extends jurisdiction over all those responsible for serious violations of international humanitarian law, including those who did not actually carry out the actus reus of the crimes, and that this may amount to “committing” under Article 7(1) of the Statute. Second, the fact that Articles 7(2) and 7(3) of the Statute apply to government officials and others who might be removed from the actual crime does not mean that these persons are exempted from other forms of liability under the Statute. Indeed, quite the contrary to JCE counsel’s claim, the Secretary-General’s Report explicitly called for individual criminal responsibility for “all persons who participate” in the planning, preparation or execution of crimes under the Statute.[3] As such, there is also no merit to JCE counsel’s argument that JCE “circumvents” Article 7(3) of the Statute. Finally, because JCE does not go beyond the Statute and forms part of custom as explained below, JCE counsel’s claim that the Judges “created” this form of liability fails. 659. The Appeals Chamber recalls that it provided a detailed reasoning for inferring the grounds for conviction in the WWII cases it cited in Tadić.[4] JCE counsel do not address this reasoning. The Appeals Chamber further recalls that both the Einsatzgruppen and Justice cases show that JCE apply to large-scale cases,[5] and that JCE is legally distinct from conspiracy and organisational liability.[6] JCE counsel address neither one of these holdings. Their further claim that the Tadić Appeals Chamber “molded” precedent to convict the accused is unsubstantiated. This sub-ground is dismissed. 662. The Appeals Chamber has consistently held that participation in a JCE is a form of “commission” under Article 7(1) of the Statute.[7] Although the facts of a given case might establish the accused’s liability under both JCE and other forms of liability under Article 7(1), the legal elements of JCE distinguish it from these other forms. In the first place, none of the other forms require a plurality of persons sharing a common criminal purpose. Moreover, whereas JCE requires that the accused intended to participate and contribute to such a purpose,[8] an accused may be found responsible for planning, instigating or ordering a crime if he intended that the crime be committed or acted with the awareness of the substantial likelihood that a crime would be committed.[9] In terms of actus reus, planning and instigating consists of acts “substantially contributing” to the perpetration of a certain specific crime[10] and ordering means “instructing” a person commit an offence.[11] By contrast, JCE requires that the accused contributes to the common purpose in a way that lends a significant contribution to the crimes.[12] The differences between JCE and aiding and abetting are well-established and need not be repeated here.[13] JCE counsel’s argument that JCE renders the other forms of liability under the Article 7(1) nugatory is thus without merit. 669. As a preliminary matter, the Appeals Chamber notes that Krajišnik did not challenge but, in fact, expressly recognised at trial that the fact that Tadić was rendered after his alleged acts took place does not lead to a conflict between JCE and the nullum crimen sine lege principle.[14] Therefore, as far as JCE counsel now argue that the Tadić Appeal Judgement violated that principle, Krajišnik may be deemed to have waived his right to bring this challenge on appeal.[15] In any event, JCE counsel fail to address the jurisprudence holding that the notion of JCE as established in Tadić does not violate the nullum crimen sine lege principle.[16] 670. Regarding JCE counsel’s challenge that the alleged “expansion” of JCE after Tadić violates the principle, which challenge Krajišnik did raise at trial,[17] the Appeals Chamber first recalls that when it interprets the JCE doctrine, it does not create new law. Instead, similarly to other provisions under the Statute, it merely identifies what the proper interpretation of that doctrine has always been, even though not previously expressed that way.[18] This does not contravene the nullum crimen sine lege principle, which “does not prevent a court from interpreting and clarifying the elements of a particular crime.” Nor does it preclude the progressive development of the law by the court. But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.[19] 671. Turning to the present case, the Appeals Chamber notes that, although Tadić concerned a relatively low-level accused, the legal elements of JCE set out in that case remain the same in a case where JCE is applied to a high-level accused. Therefore, JCE counsel are wrong to speak about an “expansion” of JCE to cases such as the one of Krajišnik. Moreover, the Appeals Chamber considers that, while pronounced in relation to acts allegedly committed in 1999, its holding in the Ojdanić Decision on Joint Criminal Enterprise applies also to Krajišnik in this case: Article 26 of the Criminal Law of the Federal Republic of Yugoslavia, coupled with the extensive state practice noted in Tadić, the many domestic jurisdictions which provide for such a form of liability under various names and which forms of liability run parallel to custom, and the egregious nature of the crimes charged would have provided notice to anyone that the acts committed by the accused […] would have engaged criminal responsibility on the basis of participation in a joint criminal enterprise.[20] 672. JCE counsel’s additional argument that the imposition of JCE liability is vulnerable to political influence is unsupported and dismissed. This sub-ground is dismissed. See also Judge Shahabuddeen’s Separate Opinion annexed to the Appeals Judgement. [1] Galić Appeal Judgement, para. 117; Aleksovski Appeal Judgement, para. 107. [2] Ojdanić Decision on Joint Criminal Enterprise, para. 21. See also Tadić Appeal Judgement, paras 187-193. [3] Tadić Appeal Judgement, para. 190, citing Secretary-General’s Report, para. 54. [4] Tadić Appeal Judgement, paras 195-219; see more particularly paras 202-203, 208-209, 212-213. [5] Brđanin Appeal Judgement, paras 422-423; Prosecutor v. André Rwamakuba, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004 (“Rwamakuba Appeal Decision”), para. 25. [6] Ojdanić Decision on Joint Criminal Enterprise, paras 23, 25-26. [7] E.g. Kvoèka et al. Appeal Judgement, paras 79-80; Tadić Appeal Judgement, paras 188; Ojdanić Decision on Joint Criminal Enterprise, para. 20. [8] Kvočka et al. Appeal Judgement, paras 82-83. In the case of JCE Catergory 3, it must also have been foreseeable to the accused that a crime other than the one agreed upon in the common objective might be perpetrated by a member of the JCE, or by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose, and the accused willingly took that risk by joining or continuing to participate in the enterprise. [9] Nahimana et al. Appeal Judgement, paras 479-481; Kordić and Čerkez Appeal Judgement, paras 30-32. [10] Kordić and Čerkez Appeal Judgement, paras 26-27. [11] Kordić and Čerkez Appeal Judgement, para. 28. [12] Brđanin Appeal Judgement, para. 430; Kvočka et al. Appeal Judgement, paras 96-97. [13] Kvočka et al. Appeal Judgement, paras 89-90; Vasiljević Appeal Judgement, para. 102. [14] Defence Final Trial Brief, para. 134, referencing Ojdanić Decision on Joint Criminal Enterprise, para. 8. [15] See Blaškić Appeal Judgement, para. 222; Niyitegeka Appeal Judgement, para. 200; Akayesu Appeal Judgement, para. 361; Furundžija Appeal Judgement, para. 174. [16] Stakić Appeal Judgement, para. 101; Ojdanić Decision on Joint Criminal Enterprise, para. 41. [17] Defence Final Trial Brief, para. 134(b). [18] See Kordić and Čerkez Appeal Judgement, para. 310; Aleksovski Appeal Judgement, para. 135. [19] Ojdanić Decision on Joint Criminal Enterprise, para. 38 (footnotes omitted). [20] Ojdanić Decision on Joint Criminal Enterprise, para. 43 (footnote omitted). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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697. […] The Appeals Chamber finds that the Trial Chamber did not hold that Krajišnik’s mere knowledge of crimes was sufficient to establish his mens rea. Instead, the Trial Chamber found that [t]he information the Accused received during this period is an important element for the determination of his responsibility, because knowledge combined with continuing participation can be conclusive as to a person’s intent.[1] JCE counsel fail to show that the Trial Chamber erred in this respect. 707. With regard to Krajišnik’s mens rea, the Appeals Chamber has already found that the Trial Chamber correctly required proof that “the JCE participants, including the accused, had a common state of mind, namely the state of mind that the statutory crime(s) forming part of the objective should be carried out.”[2] Under this standard, there is no room to argue, as JCE counsel do,[3] that JCE liability can attach for mere adherence to a lawful objective. To the extent they claim that JCE liability requires an agreement, additional to the common purpose, between the JCE participants to commit the crimes,[4] this argument is erroneous in law.[5] The “bridge”, to use JCE counsel’s term,[6] between the JCE’s objective and Krajišnik’s criminal liability, as far as his mens rea is concerned, consisted of the shared intent that the crimes involved in the common objective be carried out. Such intent was both pleaded in the Indictment[7] and required by the Trial Chamber.[8] JCE counsel’s additional, bare assertion that the evidence regarding Krajišnik’s objective for Sarajevo is insufficient for criminal liability is dismissed.[9] [1] Trial Judgement, para. 890 (emphasis added). [2] Trial Judgement, para. 883(ii), referring to Tadić Appeal Judgement, para. 228. See supra III.C.9(b). [3] Dershowitz Brief, paras 56-57. [4] Dershowitz Brief, para. 57. [5] Brđanin Appeal Judgement, para. 418. See Tadić Appeal Judgement, para. 227(ii). See also supraIII.C.5(b). [6] Dershowitz Brief, para. 58. [7] Indictment, para. 5. [8] Trial Judgement, para. 883(ii). [9] See e.g. Trial Judgement, paras 898, 1115-1116, 1119. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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304. The Appeals Chamber has held “that the actus reus of deportation is the forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, without grounds permitted under international law”[1] and that the mens rea of that crime does not require an intention to displace the persons across the border on a permanent basis.[2] The Trial Chamber correctly identified the applicable law on deportation.[3] 305. […] As conceded by the Prosecution,[4] in finding that deportation had occurred in several municipalities, the Trial Chamber did not examine whether the forced displacement occurred across a de facto border such that the displacement amounted to deportation. Thus, if any finding of deportation is to be maintained, it is on the basis that the displacement occurred across a de jure state border. Therefore, the Appeals Chamber refrains from deciding this question. [1] Stakić Appeal Judgement, para. 278. See also para. 300, which adds that “[c]ustomary international law also recognises that displacement from ‘occupied territory’, as expressly set out in Article 49 of Geneva Convention IV and as recognised by numerous Security Council Resolutions, is also sufficient to amount to deportation” (footnotes omitted). [2] Stakić Appeal Judgement, paras 278, 307; Brđanin Appeal Judgement, para. 206. [3] Trial Judgement, paras 722-726. [4] Prosecution’s Response to Amicus Curiae, paras 127, 135-139. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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308. At the outset, the Appeals Chamber notes that the Trial Chamber correctly set out that “[d]eportation and forcible transfer both entail the forcible displacement of persons from the area in which they are lawfully present, without grounds permitted under international law”,[1] adding that international humanitarian law recognises limited circumstances under which the displacement of civilians during armed conflict is allowed.[2] The Trial Chamber was thus clearly aware of the requirement that the forced displacement be “without grounds permitted under international law”. While the Trial Chamber did not explicitly find that the forced displacements in the case at hand were “without grounds permitted under international law”, the Appeals Chamber is not satisfied that this defect of the Trial Judgement invalidates the verdict. Indeed, several sections of the Trial Judgement make clear that the Trial Chamber implicitly found that the forced displacements were “without grounds permitted under international law”, and that they occurred as a direct result of the ”severe living conditions” created by the Serb authorities and forces.[3] The Appeals Chamber agrees: clearly, the forced displacements could not be justified under international law.[4] In fact, Amicus Curiae does not even suggest that they could. These arguments are rejected. 309. […] With regard to the latter, the Appeals Chamber agrees with the statement in the Stakić Trial Judgement that deportation does not require “that a minimum number of individuals must have been forcibly transferred for the perpetrator to incur criminal responsibility” as such a requirement would be “tantamount to negating the protective effect of the prohibition against deportation.”[5] The Appeals Chamber also recalls that, except for extermination, it is not necessary that a crime be carried out against a multiplicity of victims to constitute a crime against humanity: an act directed against a limited number of victims or even against a single victim can constitute a crime against humanity, provided it forms part of a widespread or systematic attack directed against a civilian population.[6] […] [1] Trial Judgement, para. 723. [2] Trial Judgement, para. 725. [3] See Trial Judgement, Part 4 (describing systematically the forced displacements in the Indictment municipalities) and paras 727-732. [4] In this connection, the Appeals Chamber recalls that the displacement for humanitarian reasons “is not justifiable [under international law] where the humanitarian crisis that caused the displacement is itself the result of the accused’s own unlawful activity”: Stakić Appeal Judgement, para. 287. [5] Stakić Trial Judgement, para. 685. [6] Nahimana et al. Appeal Judgement, para. 924; Deronjić Appeal Judgement, para. 109; Kordić and Čerkez Appeal Judgement, para. 94; Blaškić Appeal Judgement, para. 101; Kunarac et al. Appeal Judgement, para. 96. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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When finding that a forcible transfer amounts to “other inhumane acts” under Article 5(i) of the Statute, the Trial Chamber has to be convinced that the forcible transfer in question is of a similar seriousness to other enumerated crimes against humanity. 330. The Appeals Chamber has held that “acts of forcible transfer may be sufficiently serious as to amount to other inhumane acts”.[1] Accordingly, a Trial Chamber should examine if the specific instances of forcible transfer in the case before it were sufficiently serious to amount to “other inhumane acts” under Article 5(i) of the Statute. The Trial Chamber did not do so in the present case; rather, it seemed to have assumed that the acts of forcible transfer amounted to “other inhumane acts” under Article 5(i) of the Statute.[2] The Appeals Chamber finds that this was in error, but is not convinced that this error invalidates the Appellant’s conviction for other inhumane acts (forcible transfer). 331. When finding that specific acts of forcible transfer amount to “other inhumane acts” under Article 5(i) of the Statute, a Trial Chamber has to be convinced that the forcible transfer is of a similar seriousness to other enumerated crimes against humanity.[3] This condition is satisfied in the present case. The acts of forcible transfer[4] were of similar seriousness to the instances of deportation,[5] as they involved a forced departure from the residence and the community, without guarantees concerning the possibility to return in the future, with the victims of such forced transfers invariably suffering serious mental harm.[6] [1] Stakić Appeal Judgement, para. 317 (emphasis added). [2] Trial Judgement, paras 722-726. [3] Blagojević and Jokić Trial Judgement, para. 626; Galić Trial Judgement, para. 152; Vasiljević Trial Judgement, para. 234; Krnojelac Trial Judgement, para. 130. See also Kupreškić Trial Judgement, para. 566, and Kayishema and Ruzindana Trial Judgement, paras 151, 154 (stating that the acts or omissions must be as serious as the other crimes against humanity). [4] See Trial Judgement paras 309 (Bijeljina), 402 (Bosanska Krupa), 314 (Bratunac), 533 (Sanski Most), 693 (Sokolac), 593 (Trnovo) and 365 (Zvornik). [5] See Trial Chamber Judgement paras 380 (Banja Luka), 611 (Bileća), 419 (Bosanski Novi), 621 (Čajniče), 637 (Foča), 658-659 (Gacko), 507 (Prnjavor) and 366 (Zvornik). [6] In this connection, see Blagojević and Jokić Trial Judgement, para. 629; Krstić Trial Judgement, para. 523; Kupreškić et al. Trial Judgement, para. 566. |
ICTR Statute Article 3(i) ICTY Statute Article 5(i) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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388. Addressing the more specific issue of intra-Article 5 cumulative convictions, the Kordić and Čerkez Appeal Judgement ruled that a correct application of the Čelebići test required “an examination, as a matter of law, of the elements of each offence in the Statute that pertain to that conduct for which the accused has been convicted.” Based on this reasoning, the Appeals Chamber admitted that convictions for the crimes against humanity of persecution on the one hand, and murder, other inhumane acts and imprisonment on the other hand, could be cumulated, since all of these offences contained “an element that requires proof of a fact not required by the other[s]”.[1] 389. In the instant case, Amicus Curiae alleges that the Kordić and Čerkez Appeal Judgement is an incorrect application of the Čelebići test and should therefore not be used as a precedent. The Appeals Chamber cannot agree with this interpretation. While prior jurisprudence adopted another point of view,[2] in the Kordić and Čerkez Appeal Judgement the Appeals Chamber clearly explained the reasons that warranted the departure from previous cases.[3] Subsequent appeal judgements in the Stakić, Naletilić and Martinović and Nahimana et al. cases confirmed the approach adopted in Kordić and Čerkez.[4] The Appeals Chamber therefore sees no cogent reason to depart from the current jurisprudence with respect to intra-Article 5 cumulative convictions. 390. In the Trial Judgement, the Trial Chamber determined that: [p]ersecution as a crime against humanity has a materially distinct element from murder as a crime against humanity in that persecution requires proof that an act or omission discriminates in fact, and proof that the act or omission was committed with specific intent to discriminate. Conversely, murder as a crime against humanity requires proof that the accused caused the victim’s death, which is not an element required for proof of persecution. As a result, a cumulative conviction for persecution and murder under Article 5 of the Statute is permissible. The same reasoning applies to extermination, deportation, and forced transfer as an inhumane act.[5] 391. The Appeals Chamber, by majority, Judge Güney dissenting,[6] considers that this is a correct application of the law on cumulative convictions. Therefore, the Trial Chamber did not err in cumulating the conviction for persecution as a crime against humanity with the convictions for the crimes against humanity of murder, extermination, deportation and inhumane acts (forcible transfer). This ground of appeal is dismissed. [1] Kordić and Čerkez Appeal Judgement, paras 1040-1043. [2] See Krstić Appeal Judgement, paras 230-233; Vasiljević Appeal Judgement, paras 144-146; Krnojelac Appeal Judgement, para. 188. [3] Kordić and Čerkez Appeal Judgement, para. 1040. [4] See Nahimana et al. Appeal Judgement, paras 1026-1027; Naletilić and Martinović Appeal Judgement, paras 587-591; Stakić Appeal Judgement, paras 355-367. [5] Trial Judgement, para. 1130. [6] See Nahimana et al. Appeal Judgement, Partly Dissenting Opinion of Judge Güney, para. 5. |
ICTR Statute Article 3 ICTY Statute Article 5 | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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775. It is well established that, at the Tribunal and at the ICTR, retribution and deterrence are the main objectives of sentencing.[1] As to retribution, the Appeals Chamber has explained that “[t]his is not to be understood as fulfilling a desire for revenge but as duly expressing the outrage of the international community at these crimes”;[2] retribution should be seen as an objective, reasoned and measured determination of an appropriate punishment which properly reflects the […] culpability of the offender, having regard to the international risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more.[3] Thus, retribution has to be understood in the more modern sense of “just desert” and the punishment has to be proportional to the gravity of the crime and the guilt of the accused.[4] The Trial Chamber was clearly aware of these principles.[5] 776. With respect to deterrence, a sentence should be adequate to discourage an accused from recidivism (individual deterrence) as well as to ensure that those who would consider committing similar crimes will be dissuaded from doing so (general deterrence).[6] Whether a sentence provides sufficient deterrence cannot be divorced from the gravity of the criminal conduct at hand. In other words, if the sentence is too lenient in comparison to the gravity of the criminal conduct, then it will not properly achieve the objective of deterrence.[7] 77. Thus, both retribution and deterrence include a reference to proportionality with the criminal conduct. Further, the Appeals Chamber is of the view that a sentence proportional to the gravity of the criminal conduct will necessarily provide sufficient retribution and deterrence. As recognised by the Prosecution, “a Trial Chamber’s duty is to impose punishment proportionate to the gravity of the crimes and the individual culpability of the accused. In this way, the sentencing principles of retribution and deterrence are met.”[8] The Appeals Chamber concludes that the Prosecution’s assertions with respect to the objectives of retribution and deterrence in fact collapse into its arguments that the sentence imposed was not proportionate to the gravity of Krajišnik’s conduct. The Appeals Chamber will now consider those arguments. See also “De novo sentence on appeal” under “Other issues of particular interest” below. [1] Nahimana et al. Appeal Judgement, para. 1057; Stakić Appeal Judgement, para. 402; Deronjić Judgement on Sentencing Appeal, paras 136-137; Kordić and Čerkez Appeal Judgement, para. 1074; Čelebići Appeal Judgement, para. 806. In the case at hand, the Trial Chamber duly noted that the objective of rehabilitation was less important than those of retribution and deterrence: Trial Judgement, para. 1138. [2] Aleksovski Appeal Judgement, para. 185. [3] Kordić and Čerkez Appeal Judgement, para. 1075, citing R. v. M. (C.A.), [1996] 1 S.C.R. 500, para. 80 (emphasis in original). [4] Kordić and Čerkez Appeal Judgement, para. 1075, citing with approval Erdemović 1996 Sentencing Judgement, para. 65. [5] Trial Judgement, para. 1135. [6] Dragan Nikolić Judgement on Sentencing Appeal, para. 45; Kordić and Čerkez Appeal Judgement, paras 1076-1078. The Trial Chamber duly took notice of these principles: Trial Judgement, paras 1136-1137. [7] Similarly, a sentence should not be disproportionately severe in comparison to the criminal conduct at hand just to ensure maximum deterrence, as this would be unfair and contrary to the basic principle that an accused must be punished solely on the basis of his or her wrongdoing. It is in this sense that the Appeals Chamber has stated that the objective of deterrence should not be given undue prominence in the overall assessment of the sentences to be imposed on persons convicted by the International Tribunal: Kordić and Čerkez Appeal Judgement, para. 1078; Dragan Nikolić Judgement on Sentencing Appeal, para. 46; Čelebići Appeal Judgement, para. 801; Aleksovski Appeal Judgement, para. 185; Tadić Judgement on Sentencing Appeal, para. 48. [8] Prosecution’s Appeal Brief, para. 15. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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The Appeals Chamber summarily dismissed a number of grounds on the following basis: 16. The Appeals Chamber recalls that it has an inherent discretion to determine which of the parties’ submissions merit a reasoned opinion in writing and that it may dismiss arguments which are evidently unfounded without providing detailed reasoning in writing. Indeed, the Appeals Chamber’s mandate cannot be effectively and efficiently carried out without focused contributions by the parties. […] As well, the Appeals Chamber may dismiss submissions as unfounded without providing detailed reasoning if a party’s submissions are obscure, contradictory, vague or suffer from other formal and obvious insufficiencies. The Appeals Chamber further identified the following categories of errors that it would dismiss summarily, as outlined in paras. 18-27:
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| Notion(s) | Filing | Case |
| Appeal Judgement - 17.03.2009 |
KRAJIŠNIK Momčilo (IT-00-39-A) |
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Although the Appeals Chamber has quashed the majority of Krajišnik’s convictions, it decided not to remand the case for retrial and to determine the appropriate sentence for the remaining convictions itself (paras 797-801). In so doing, the Appeals Chamber took into account the following factors: retribution, deterrence, rehabilitation, individual and affirmative prevention, the general practice regarding prison sentences in the courts of the former Yugoslavia, the gravity of the crime(s) of the totality of an accused’s conduct, and the individual circumstances of an accused (paras 802-817). |
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| Notion(s) | Filing | Case |
| Decision on Review - 12.03.2009 |
NIYITEGEKA Eliézer (ICTR-96-14-R) |
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11. The Appeals Chamber considers it necessary to remind the Registrar of his obligation to ensure efficient communication with detainees and convicted persons, even after they have been transferred to a State in which their sentence is to be served, so as to ensure that they may exercise their rights provided for under the Statute and the Rules in full.[1] [1] See Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-R, Decision on Emmanuel Ndindabahizi’s Motion of 1 December 2008, 17 December 2008, pp. 3, 4. |
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| Notion(s) | Filing | Case |
| Decision on Review - 12.03.2009 |
NIYITEGEKA Eliézer (ICTR-96-14-R) |
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21. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and Rules 120 and 121 of the Rules. The Appeals Chamber strongly emphasizes that review of a final judgement is an exceptional procedure and not an additional opportunity for a party to re-litigate arguments that failed at trial or on appeal.[1] In order for review to be granted, the moving party must show that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of a lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decision.[2] In wholly exceptional circumstances, the Appeals Chamber may nonetheless grant review, even where the new fact was known to the moving party at the time of the original proceedings or the lack of discovery of the fact was the result of a lack of due diligence by the moving party, if ignoring the new fact would result in a miscarriage of justice.[3] [1] Decision on Third Request for Review, 23 January 2008 (“Third Review Decision”), para. 13; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Review Decision”), para. 8. See also First Review Decision, paras. 5-7; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43. [2] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on Aloys Simba’s Requests for Suspension of Appeal Proceedings and Review, 9 January 2007, para. 8; First Review Decision, paras. 5-7. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (“Blaškić Review Decision”), para. 7; Prosecutor v. Mlađo Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006, paras. 9-11; Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Duško Tadić, Case No. IT-94-1-R, Decision on Request for Review, 30 July 2002 (“Tadić Review Decision”), para. 20. [3] Third Review Decision, para. 13; Rutaganda Review Decision, para. 8; Blaškić Review Decision, para. 8; Tadić Review Decision, paras. 26, 27. |
ICTR Statute
Article 25
ICTY Statute
Article 26
ICTR Rule
Rule 120; Rule 121 ICTY Rule Rule 119; Rule 120 |
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| Notion(s) | Filing | Case |
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Decision on Review - 12.03.2009 |
NIYITEGEKA Eliézer (ICTR-96-14-R) |
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22. The Appeals Chamber further recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not in issue during the trial or appeal proceedings.[1] The requirement that the fact was not in issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3] 47. This being said, the Appeals Chamber does not find it necessary to order Niyitegeka to file the Additional Statements or information concerning the identity of their authors. Niyitegeka makes clear that, in his view, the information contained in the Additional Statements reveals that Witness GGV was not credible. The Appeals Chamber notes that Witness GGV’s credibility is a matter that was litigated at trial and on appeal. While the Additional Statements may constitute material of an evidentiary nature, in light of what Niyitegeka discloses of their content they do not constitute “new facts” within the meaning of Article 25 of the Statute. Accordingly, Niyitegeka’s attempt to have them admitted as new facts for the purposes of review is bound to fail. [1] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25. [2] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, paras. 14, 15; Tadić Review Decision, para. 25. [3] Third Review Decision, para. 14; Rutaganda Review Decision, para. 9; Blaškić Review Decision, para. 14. |
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119 | |
| Notion(s) | Filing | Case |
| Decision on Review - 12.03.2009 |
NIYITEGEKA Eliézer (ICTR-96-14-R) |
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46. The Appeals Chamber is not in a position to properly assess the merits of Niyitegeka’s request regarding the Additional Statements since he did not provide them. In the absence of the relevant material, the Appeals Chamber is not only unable to fully assess whether they constitute “new facts”, but is also unable to order their admission into the record. While an applicant may have legitimate concerns regarding the security of potential witnesses, those concerns are not justified when it comes to disclosing information to the Appeals Chamber. As regards disclosures to the Prosecution, the Appeals Chamber reminds Niyitegeka that he could have requested the application of protective measures by the Appeals Chamber pursuant to Rule 75 of the Rules prior to filing his Request.[1] Further, Niyitegeka elected not to attach the Additional Statements to his request on the additional ground that he intended to first give the material to his assigned counsel. In doing so, Niyitegeka hindered the Appeals Chamber’s ability to provide a thorough analysis of his claim that the Additional Statements constitute “new facts” and thwarted his own request to have the statements admitted for purposes of review. Similarly, Niyitegeka prevented the Appeals Chamber from considering his claim that the Prosecution violated its disclosure obligations under Rule 68 of the Rules and his related request for disciplinary action. [1] The Appeals Chamber recalls that a request for protective measures pursuant to Rule 75 of the Rules must demonstrate a real likelihood that the person may be in danger or at risk. See The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Order, 2 June 2004, p. 2 and decisions cited therein. |
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120 ICTY Rule Rule 119 | |
| Notion(s) | Filing | Case |
| Decision on Review - 12.03.2009 |
NIYITEGEKA Eliézer (ICTR-96-14-R) |
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48. In relation to his request for review based on the Additional Statements, Niyitegeka also requests that the Appeals Chamber order that the identity of two victims that he was found to have killed be specified.[1] The Appeals Chamber recalls that the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal. Outside the review mechanism provided for under Article 25 of the Statute, it is not within the Appeals Chamber’s jurisdiction to re-open terminated proceedings to alter otherwise final findings.[2] Niyitegeka’s attempt to further contest the original findings is therefore dismissed. [1] Fourth Request for Review of the Judgement Rendered by the Appeals Chamber on 9 July 2004, and for Legal Assistance, paras. 55, 56, referring to Trial Judgement, para. 443. Niyitegeka bases this claim on the following finding from the Ntagerura et al. Appeal Judgement (The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 23): “[…] where the Prosecution alleges that an accused personally committed the criminal acts in questions, it must plead the identity of the victims”. [2] See Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motions and Requests Related to Reconsideration, 31 January 2008, p. 3. |
ICTR Statute Article 25 ICTY Statute Article 26 | |
| Notion(s) | Filing | Case |
| Decision on Review - 12.03.2009 |
NIYITEGEKA Eliézer (ICTR-96-14-R) |
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51. The Appeals Chamber recalls that review is an exceptional remedy and that an 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 to ensure the fairness of the proceedings.[1] 52. As a matter of principle, it is not for the Tribunal to assist a convicted person whose case has reached finality with any new investigation he would like to conduct or any new motion he may wish to bring by assigning him legal assistance at the Tribunal’s expense. It is only in exceptional circumstances that a convicted person will be granted legal assistance by the Tribunal after a final judgement has been rendered against him. At the preliminary examination stage of a request for review, such assistance will be granted only if the Appeals Chamber deems it “necessary to ensure the fairness of the proceedings”. This necessity is, to a great extent, assessed in light of the grounds for review put forward by the applicant. In the present case, the Appeals Chamber considers that none of Niyitegeka’s grounds for review has any chance of success. [1] 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; 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; Third Review Decision, para. 12; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 41. |
ICTR Statute Article 25 ICTY Statute Article 26 | |