[1] See supra [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016], paras. 2, 3.

[2] Rule 80(B) of the Rules reads: “Decisions rendered on such motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber an immediate resolution by the Appeals Chamber may materially advance the proceedings.” See also Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008 (“Niyitegeka Decision of 20 June 2008”), para. 13 (interpreting the parallel for certification in the ICTR Rules of Procedure and Evidence (“ICTR Rules”), Rule 73(B) of the ICTR Rules).

[3] See Niyitegeka Decision of 20 June 2008, para. 14. See also Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009, p. 2.

[4] See [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33] Decision on a Motion for a Public Redacted Version of the 27 January 2010 Decision on Application of The Prosecutor of the Tribunal for Variation of Protective Measures, 11 May 2016, p. 2; Prosecutor v. Dragoljub Kunarac et al., Case Nos. MICT-15-88-R86H.1/MICT-15-88-R86H.2, Decision on Prosecution Requests for a Public Redacted Version of a Decision on Applications Pursuant to Rule 86(H), 9 February 2016, p. 1 and references cited therein.

[1] Protective Measures Decision, paras. 14, 16, p. 6.

[1] See Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Decision on a Motion for Redacted Versions of Decisions Issued under Rule 75(H) of the ICTY Rules, 18 July 2016, p. 4 and references cited therein; The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Decision on the Kingdom of Belgium’s Application to File an Amicus Curiae Brief and on the Defence Application to Strike Out the Observations of the Kingdom of Belgium Concerning the Preliminary Response by the Defence, 12 February 2001, para. 11.

[2] Specifically, Trial Chamber III of the ICTR subsequently confirmed the initial indictment against Uwinkindi but ordered the Prosecution to amend it to clearly indicate what facts could support Uwinkindi’s involvement in the crime of complicity in genocide; the decision did not require the Prosecution to drop the charge. See The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I, Confirmation of Indictment, 3 September 2001, paras. 7, 9.

[1] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 24.

[2] See, e.g., The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-A, Judgement, 28 September 2011, para. 115; Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011, para. 43. See also Kyprianou v. Cyprus [2005] ECHR 873, para. 119.

[3] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015, paras. 95, 405 and references cited therein; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 (“Niyitegeka Appeal Judgement”), para. 45.

[4] Niyitegeka Appeal Judgement, para. 45 and references cited therein.

[1] See Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s First and Second Motions for Admission of Additional Evidence, 25 February 2013 (“Munyagishari Decision of 25 February 2013”), para. 5; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence before the Appeals Chamber pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Decision of 16 November 2005”), para. 6.

[2] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24; Munyagishari Decision of 25 February 2013, para. 5.

[3] Ngirabatware Decision of 21 November 2014, para. 25; Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10.

[4] Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. Cf. Ngirabatware Decision of 21 November 2014, para. 26.

[5] Cf. Ngirabatware Decision of 21 November 2014, para. 27; Munyagishari Decision of 25 February 2013, para. 6; Mejakić et al. Decision of 16 November 2005, para. 12.

[6] Cf. Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

[7] Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

[1] See, e.g., Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Théoneste Bagosora’s Motion for Admission of Additional Evidence, 7 February 2011 (“Bagosora et al. Decision of 7 February 2011”), para. 8; Renzaho Decision of 27 September 2010, para. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR‑01‑70-A, Decision on Rukundo’s Motion for the Admission of Additional Evidence on Appeal, 4 June 2010, para. 5; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, 2 October 2008 (“Hategekimana Decision of 2 October 2008”), para. 5; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006 (“Nahimana et al. Decision of 5 May 2006”), para. 20; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B), 8 May 2001 (“Kupreškić et al. Decision of 8 May 2001”), para. 5.

[2] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Prosecutor v. Dragomir Milošević, Case No. IT‑98‑29/1-A, Decision on Dragomir Milošević’s Further Motion to Present Additional Evidence, 9 April 2009, para. 18; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 13; Hategekimana Decision of 2 October 2008, paras. 7, 8. See also Practice Direction on Requirements and Procedures for Appeals, MICT/10, 6 August 2013, para. 12(e), providing that a party applying to present additional evidence pursuant to Rule 142 of the Rules shall do so by way of a motion filed containing “an appendix with copies of the evidence the party is applying to present before the Appeals Chamber”.

[3] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20. Kupreškić et al. Decision of 8 May 2001, para. 5.

[4] See, e.g., Bagosora et al. Decision of 7 February 2011, para. 8; Nahimana et al. Decision of 5 May 2006, para. 20; Kupreškić et al. Decision of 8 May 2001, paras. 5, 10.

[5] See, e.g., Bagosora et al. Decision of 7 February 2011, paras. 8, 9; Nahimana et al. Decision of 5 May 2006, para. 20. Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence before the Appeals Chamber, 30 June 2005 (“Galić Decision of 30 June 2005”), para. 87; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on the Request for Presentation of Additional Evidence, 18 November 2003, para. 13. 

[1] Statute of the Tribunal, Arts 1, 6-7. See also Gotovina and Markač Decision of 8 February 2012 [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8 February 2012], para. 12.

[1] See Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 202 (“The doctrine [of res judicata] refers to a situation when ‘a final judgement on the merits’ issued by a competent court on a claim, demand or cause of action between parties constitutes an absolute bar to a ‘second lawsuit on the same claim’ between the same parties”). See also, e.g., Brumărescu v. Romania [1999] ECHR 105 at para. 61, (“[o]ne of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question”); Ryabykh v. Russia [2003] ECHR 396 at para. 52 (“Legal certainty presupposes respect for the principle of res judicata, that is the principle of finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case”).

[1] Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, paras 259-260. See Trial Judgement [Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-T, Judgement, 27 March 2013]], vol. 1, para. 45.

[2] Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, para. 260. See Popović et al. Appeal Judgement, para. 701.

[3] Kvočka et al. Appeal Judgement, para. 261.

[4] In this regard, the Appeals Chamber also recalls that “[t]]he principle of individual guilt requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime” (Boškoski and Tarčulovski Appeal Judgement, para. 66, quoting Naletilić and Martinović Appeal Judgement, para. 114). Thus, for a conviction of extermination, not only the actus reus but also the mens rea must encompass the large scale element.

[1] See Šainović et al. Appeal Judgement, para. 179.

[2] Furundžija Appeal Judgement, paras 189-191; Šainović et al. Appeal Judgement, paras 179-181. See Furundžija Appeal Judgement, para. 175 (noting that Rule 15(A) of the Rules calls for a Judge to withdraw from a particular case if he or she believes that his or her impartiality is in question).

[3] See Čelebići Appeal Judgement, para. 683 (stating that the “relevant question to be determined by the Appeals Chamber is whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the circumstances to make a reasonable judgement) would be that [the Judge]] might not bring an impartial and unprejudiced mind to the issues arising in the case” (emphasis added)). See also Delalić et al. Disqualification and Recusal Decision [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision of the Bureau on Motion to Disqualify Judges Pursuant to Rule 15 or in the Alternative that Certain Judges Recuse Themselves, 25 October 1999]], para. 9 (“If the Judge does not fulfil the requirements referred to in Rule 15(B), he or she is disqualified from hearing that particular case, although he or she is fully entitled to continue to exercise the functions of a Judge of the Tribunal and sit in other cases”).

[4] See Delalić et al. Disqualification and Recusal Decision, paras 9-10. See also Prosecutor v. Chea Nuon et al., Case No. 002/19-09-2007/ECCC/TC, Decision on Ieng Sary’s Application to Disqualify Judge Nil Nonn and Related Requests, 28 January 2011, para. 7 (“It follows that a finding of bias in a case does not by itself require the judge’s disqualification from other, unrelated cases.”).

[5] See Furundžija Appeal Judgement, paras 197 (“It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that Judge Mumba was not impartial in his case”), 200 (“even if it were established that Judge Mumba expressly shared the goals and objectives […]] in promoting and protecting the human rights of women, that inclination, being of a general nature, is distinguishable from an inclination to implement those goals and objectives as a Judge in a particular case”).

[6] See Decision on Mićo Stanišić’s Motion requesting a Declaration of Mistrial and Stojan Župljanin’s Motion to Vacate Trial Judgement, 2 April 2014 (“Mistrial Decision”), para. 25.

[7] Decision on Mićo Stanišić’s Motion Seeking Reconsideration of Decision on Stanišić’s Motion for Declaration of Mistrial and Župljanin’s Motion to Vacate Trial Judgement, 24 July 2014, para. 15, referring to Mistrial Decision, para. 25.

[8] See Mistrial Decision, para. 25 (with references cited therein).

[9] See supra [Stanišić and Župljanin Appeal Judgement]], para. 30.

[10] See Furundžija Appeal Judgement, para. 197; supra [Stanišić and Župljanin Appeal Judgement]], para. 44.

[11] See e.g. Šešelj Decision on Disqualification [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Defence Motion for Disqualification of Judge Frederik Harhoff and Report to the Vice-President, 28 August 2013]], paras 2 (the Šešelj Defence argued that Judge Harhoff had a strong inclination to convict accused persons of Serbian ethnicity, and contended that contempt proceedings should be initiated), 8-14 (no consideration in the Šešelj case of the Rebuttal Material); Šešelj Reconsideration Decision [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration of Decision on Disqualification, Requests for Clarification, and Motion on Behalf of Stanišić and Župljanin, 7 October 2013]], paras 12‑20 (no consideration in the Šešelj case of the Media Articles, but the Special Chamber found that the Memorandum was immaterial and not probative).

[12] See supra [Stanišić and Župljanin Appeal Judgement]], para. 30; Šešelj Order Replacing Judge Harhoff [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013]].

[13] Šešelj Order Replacing Judge Harhoff, p. 1.