11. As recalled above, “[t]he specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that ‘special circumstances exist warranting such release’”.[1] In this regard, the Appeals Chamber emphasizes that the fact that some accused have been granted provisional release for comparable reasons pending their trial[2] cannot be automatically applied by analogy to persons who have already been convicted by a Trial Chamber and who are seeking provisional release pending the appellate proceedings.[3] Moreover, the Appeals Chamber has repeatedly reiterated that the discretionary assessments of the requirements under Rule 65 are made on a case-by-case basis.[4] Therefore, Strugar’s arguments concerning the comparison of his situation with that of the accused pending trial in the Prosecutor v. Milutinović et al. case (IT-05-87-T) cannot be seen as determinative.

12. In situations where an application for provisional release is made pending the appellate proceedings, the Appeals Chamber has concluded that special circumstances related to humane and compassionate considerations exist where there is an acute justification, such as the applicant’s medical need or a memorial service for a close family member.[5] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[6] While the Appeals Chamber agrees with Strugar that there is no finite list of situations which may qualify as special circumstances for the purposes of Rule 65(I)(iii) of the Rules, it considers the notion of acute justification to be inextricably linked to the scope of special circumstances which could justify provisional release on compassionate grounds at the appellate stage of the proceedings before the Tribunal. It is precisely for that reason that justifications such as wanting to spend time with family[7] or to visit a close relative in poor health condition[8] have explicitly not been recognized as special circumstances under Rule 65(I)(iii) of the Rules.

189. The Appeals Chamber recalls that extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale.[1] The Appeals Chamber stresses that in the jurisprudence of both ad hoc Tribunals, the necessary actus reus underlying the crime of extermination consists of any act, omission, or combination thereof which contributes directly or indirectly to the killing of a large number of individuals.[2] Therefore, as the Appeals Chamber has previously considered in the Ndindabahizi Appeal Judgement, for the actus reus of extermination to be fulfilled, it is sufficient that the accused participated in measures indirectly causing death.[3] The Appeals Chamber will therefore now turn to assess whether Athanase Seromba’s acts as established by the Trial Chamber amount to acts underlying the commission of extermination.

190. Notwithstanding the confinement of the Gacumbitsi dictum regarding committing to genocide, the Appeals Chamber, Judge Liu dissenting, can find no reason why its reasoning should not be equally applicable to the crime of extermination. The key question raised by the Gacumbitsi dictum is what other acts can constitute direct participation in the actus reus of the crime. As noted above, the Appeals Chamber is satisfied that the acts of Athanase Seromba set out in the Judgement were sufficient to constitute direct participation in the actus reus of the crime of genocide, and is equally satisfied that the same acts are sufficient to constitute direct participation in the crime of extermination, in line with the Ndindabahizi Appeal Judgement, as discussed above. With respect to Athanase Seromba’s mens rea, the Appeals Chamber is satisfied that the role he played in the events that led to the destruction of the church, his knowledge that such destruction would inevitably result in the death of a large number of Tutsi civilians,[4] as well as his awareness of the widespread and systematic attack against the Tutsi population[5] occurring at the time, all demonstrate that he possessed the required intent to commit extermination. The Appeals Chamber, therefore, finds, Judge Liu dissenting, that the Trial Chamber erred in concluding that Athanase Seromba had not committed extermination as a crime against humanity.[6]

Also see infra on Judge Liu’s Dissenting Opinion.

46. The Appeals Chamber recalls that “serious bodily or mental harm” is not defined in the Statute,[1] and that the Appeals Chamber has not squarely addressed the definition of such harm. The quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs.[2] Relatedly, serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[3] Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings.[4] To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5]

47. The Appeals Chamber notes that the Trial Chamber did not clearly differentiate the actus reus of the underlying crime and the actus reus for aiding and abetting that crime. The Trial Chamber suggested that “[Athanase] Seromba’s refusal to allow the refugees to get food from the banana plantation substantially contributed to their physical weakening”[6] and that “[Athanase] Seromba’s order prohibiting refugees from getting food from the banana plantation, his refusal to celebrate mass in Nyange church, and his decision to expel employees and Tutsi refugees” facilitated their “living in a constant state of anxiety”.[7] Beyond these vague statements, the only other reference in the Trial Judgement to the underlying acts that caused serious bodily or mental harm is the conclusory statement that “it is beyond dispute that during the events of April 1994 in Nyange church, the attackers and other Interahamwe militiamen [...] caused serious bodily or mental harm to [the Tutsi refugees] on ethnic grounds, with the intent to destroy them, in whole or in part, as an ethnic group.”[8]

48. The Trial Chamber failed to define the underlying crime to which Athanase Seromba’s actions supposedly contributed. It also had a duty to marshal evidence regarding the existence of the underlying crime that caused serious bodily or mental harm, and its parsimonious statements fail to do so. In the absence of such evidence, the Appeals Chamber cannot equate nebulous invocations of “weakening” and “anxiety” with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.

49. The Appeals Chamber finds that the Trial Chamber failed to establish with sufficient precision the crime of “causing serious bodily or mental harm”; therefore, Athanase Seromba’s conviction for aiding and abetting such a crime cannot stand. Accordingly, the Appeals Chamber grants this sub-ground of appeal and reverses the finding of the Trial Chamber that Athanase Seromba aided and abetted the causing of serious bodily or mental harm.

21. The Appeals Chamber further finds that the Trial Chamber committed a discernible error in considering that the justifications for release put forth by the Accused might be regarded as humanitarian grounds capable of justifying the granting of a short period of provisional release in the cases of Ćorić,[1] Praljak[2] and Petković.[3] In the cases of Stojić and Prlić the Trial Chamber considered Prlić’s request to visit his ailing father and brother and Stojić’s request to visit his ailing spouse, brother and parents, to be requests based on humanitarian grounds without offering any indication of how much weight it ascribed thereto.[4] Nonetheless, in all cases, the Appeals Chamber finds that the various justifications for release offered by the Accused are not sufficiently compelling, particularly in light of the 98bis Ruling, to warrant the exercise of the Trial Chamber’s discretion in favour of granting the Accused provisional release. The Appeals Chamber accordingly finds that the circumstances of this case indicate that a Trial Chamber properly exercising its discretion should have denied provisional release.

Petković argued that the only avenue for the Prosecution to seek a stay of the Trial Chamber’s decisions on provisional release was under Rule 65(E) of the Rules, which required the Prosecution to file its application for a stay of those decisions at the time of its consolidated response to the initial applications for provisional release. In this case, the Prosecution had not done so, but had filed a request for a stay directly with the Appeals Chamber after the Trial Chamber’s decision had been issued. The Appeals Chamber ruled:

11. Contrary to Petković’s arguments, the case law of the International Tribunal supports the competence of the Appeals Chamber to consider the Prosecution’s request for a stay, despite its failure to comply with Rule 65(E) of the Rules.[1] Furthermore, the Appeals Chamber has also recognized in other cases that the preservation of the object of an appeal by the Prosecution against the provisional release of the accused constitutes “good cause” within the meaning of Rule 127(A)(ii) and (B) of the Rules.[2] In this case, the Appeals Chamber – by staying the Impugned Decisions – considered the need to preserve the object of the Appeal to be justified and accordingly used its inherent power to render what was an ancillary order in aid of the exercise of its appellate function.[3]

32. The Tribunal’s professional Judges, as noted by the Trial Chamber, are competent to assess the truthfulness and to accord the proper weight to a witness’ evidence.[1] The decision as to whether a particular piece of evidence will be admitted for the purposes of assessing a witness’ credibility and/or for the substance therein must be left to the Trial Chamber’s discretion.

See also Delić Decision on Admission of Exhibits, para. 22.

24. While the Tribunal is in no way bound by the rules of the common law[1] and the Rules do not provide clear guidance on the question of impeaching a party’s own witness, Rules 85 and 90 are nonetheless largely reflective of the common law system. It is the parties who call and question “their” witnesses in turn and who are then cross-examined by the opposing side.[2] Accordingly, recognizing that the procedure for the hearing of witnesses at the Tribunal is rooted in the adversarial process, it is important to be cautious in removing safeguards that belong to that process for reasons of fairness to the parties and for the purpose of ascertaining the truth; in this case, leaving the determination of adversity, and the green light to cross-examine, to the calling party rather than to the Trial Chamber.[3] 

26. The Appeals Chamber considers that notwithstanding the exact form the impeachment procedure takes, the Trial Chamber must be the one to determine whether to allow the calling party to cross-examine its witness. It must also be the one to limit the scope of the questioning, if and to the extent it considers appropriate, within its discretion. Despite the Prosecution’s assertion that the Trial Chamber has not abandoned or undermined its authority to control the nature and extent of a witness’ examination under Rule 90(F), it is difficult to interpret the Impugned Decision otherwise. By stating that “a party need not seek permission to challenge the credibility of its own witness nor is the process of having a witness declared “hostile” necessary before taking such a step”, the Trial Chamber leaves no room for objections to impeachment.[4] Furthermore, objections to the scope of the challenge also appear to be precluded by the Trial Chamber’s assertion that it “would not place any limitations on the way in which such a challenge may be conducted.”[5] This is the prejudice occasioned by the discernible error.

28. The Trial Chamber’s practice to date, as well as that of other Trial Chambers,[6] demonstrates a general if not altogether consistent approach that puts the decision to allow a party to put a prior statement to its own witness and cross-examine that witness in the hands of the Trial Chamber. This may or may not be done on the basis of a prior determination of hostility. In this light the Appeals Chamber considers that the Trial Chamber’s decision to put the determination to impeach in the hands of the calling party constitutes a discernible error. It further considers that the Trial Chamber committed a discernible error in deciding to leave the scope of the challenge to the discretion of the impeaching party. It may be that the Trial Chamber will decide to allow a calling party to put a prior inconsistent statement to its witness in order to clarify a particular contradiction without declaring the witness hostile. The interests of justice dictate a certain measure of flexibility. However, this again will be a matter for the Trial Chamber to determine in the circumstances before it.

20. In a recent Appeal Judgement issued in the Nahimana et al. case, the ICTR Appeals Chamber established that:

C’est à la Chambre de première instance de déterminer si, au vu des éléments présentés par les parties, la personne proposée peut être reconnue en qualité de témoin expert. L’expert est tenu de déposer « dans la plus stricte neutralité en respectant l’objectivité scientifique ». La partie qui souhaite contester la partialité d’un témoin expert peut le faire par la voie du contre-interrogatoire, en faisant comparaître ses propres témoins experts ou au moyen d’une contre-expertise. Comme pour tout moyen de preuve présenté, c’est à la Chambre de première instance qu’il revient d’apprécier la fiabilité et la valeur probante du rapport et de la déposition du témoin expert.[1]

In this Appeal Judgement, the ICTR Appeals Chamber also concurred with the principle set forth in the Brđanin Decision that “the mere fact that an expert witness is employed or paid by a party does not disqualify him or her from testifying as an expert witness”.[2]

21. As properly pointed out by the Trial Chamber, Rule 94bis of the Rules “does not provide specific guidelines on the admissibility of testimony given by expert witnesses, or criteria for the admission of their report”.[3] Trial Chambers have established the following requirements for the admissibility of expert statements or reports: (1) the proposed witness is classified as an expert; (2) the expert statements or reports meet the minimum standards of reliability; (3) the expert statements or reports are relevant and of probative value; (4) the content of the expert statements or reports fall within the accepted expertise of the expert witness.[4] As the Trial Chamber in this case,[5] Trial Chambers have also ruled that “concerns relating to the Witness’ independence and impartiality […] are matter of weight, not admissibility”.[6] Such a statement is consistent with the ICTR Appeals Chamber’s finding in the Nahimana et al. Appeal Judgement, quoted above, that a party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witness or by means of an expert opinion in reply.[7]

22. [L]ike any evidence, expert evidence is subject to the provisions contained in Rule 89(C) and (D) of the Rules. While this Rule grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[8] The Appeals Chamber notes that in a limited number of instances, Trial Chambers have ruled inadmissible the evidence of a proposed expert witness on the ground that this evidence was so lacking in terms of the indicia of reliability because of lack of impartiality and independence or appearance of bias that it was not probative.[9] Such a determination has to be made on a case-by-case basis.[10] Finally, the Appeals Chamber reemphasizes that the decision by a Trial Chamber to admit evidence does not in any way constitute a binding determination as to its authenticity or credibility. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to be attached to the evidence in question.[11]

31. […] The extent of Butler’s involvement with the Prosecution in the investigation and preparation of this case can be explored during cross-examination, thus giving the Appellants full opportunity to challenge the admissibility of Butler’s reports.[12] In this respect, it is worth emphasizing again that the Trial Chamber stated that accepting Butler as an expert and calling him to give evidence does not automatically entail that his reports would be admitted as evidence.[13] It is also noteworthy recalling that Judges of the Tribunal, as professional judges, are able to weigh evidence and consider it in its proper context, or when applicable, to disregard any particular piece of evidence they have heard or read.[14] Furthermore, they are required to write a reasoned decision, which is subject to appeal.[15] 

On 28 November 2007, Trial Chamber I denied a motion by Ante Gotovina for provisional release. It considered that, in the specific circumstances of the case, the guarantees offered by the Government of Croatia were not sufficient to satisfy the Trial Chamber that Gotovina, if provisionally released, would return to the International Tribunal when ordered. In this respect, the Trial Chamber found that, whereas the incentives not to appear for trial remain unchanged, such guarantees “were not sufficiently effective”.

5. Rule 108 bis of the Rules of Procedure and Evidence (“Rules” or “Rule”) provides a mechanism by which a State affected by a decision of a Trial Chamber may request review of that decision by the Appeals Chamber. For such a request to be admissible, the State in question must demonstrate that (i) it is directly affected by the Trial Chamber’s Decision and
(ii) that the decision concerns issues of general importance relating to the powers of the Tribunal.[1] Only when this two-pronged test is met will the Appeals Chamber consider the merits of the State request for review.[2]

6. In particular, the Appeals Chamber recalls that Rule 108 bis was adopted for a State to seek review of a decision that has affected its legal rights. This remedy is unavailable to a State which claims that a decision has affected its legitimate political interests.[3]

12. The Appeals Chamber finds that Croatia is not affected by the Decision, since the principle of sovereign equality enshrined in Article 2(1) of the United Nations Charter is not actually at stake. The Trial Chamber’s consideration on what effect to be given to a State’s guarantees does not affect a State’s legal right, as such guarantees are not dispositive of provisional release determinations. Rather, the Trial Chamber is required to assess all relevant factors relating to individual circumstances of an accused.[4] Here, the Trial Chamber’s decision to reject Gotovina’s request for provisional release was based on Gotovina’s individual circumstances, of which Croatia’s guarantees were only a part.[5] Thus, a Trial Chamber’s provisional release decision is emphatically not an assessment of the reliability of any particular government or the guarantees that it offers.

13. Furthermore, the Trial Chamber’s assessment of the guarantees cannot be said to have affected Croatia’s legal rights since Croatia has no legally cognizable interest either in securing Gotovina’s provisional release or in ensuring that a Trial Chamber will assesses its guarantee in one particular manner.

414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows:

With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted].

417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3]

418. There is thus no obligation on the Prosecution to investigate the alibi. […]

In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement).