29. […] It is true that “widespread and systematic attack against a civilian population” and “armed conflict not of an international character” are phrases with legal meanings, but they nonetheless describe factual situations and thus can constitute “facts of common knowledge”.  The question is not whether a proposition is put in legal or layman’s terms (so long as the terms are sufficiently well defined such that the accuracy of their application to the described situation is not reasonably in doubt).  The question is whether the proposition can reasonably be disputed.  Neither the Trial Chamber nor any of the Accused has demonstrated any reasonable basis for disputing the facts in question. (emphasis added).

The Appeals Chamber found that, when the Trial Chamber does not expressly limit its certification to appeal a decision to a particular issue, the Appeals Chamber may decide to resolve other issues, provided that they “materially advance the proceedings” and that the purported error is not “inconsequential”.

The relevant paragraphs read:

16. It is not illogical or impermissible for a Trial Chamber to grant certification to appeal an entire decision on the basis of one issue which, in its view, satisfies the Rule 73(B) criteria.  To the contrary, such an approach is consistent with the text of that Rule, which requires only that the Trial Chamber identify “an issue” satisfying certain criteria in order to certify interlocutory review of a decision, but does not state that the review must be limited to the identified issue.  Thus, although the Appeals Chamber has found that the Trial Chamber can limit review to the issue(s) that it has found to specifically satisfy the Rule 73(B) criteria, it is not obligated to do so.

17. This approach is consistent with Rule 73’s objective of advancing the fair and expeditious conduct of the proceedings.  Interlocutory appeals under Rule 73 interrupt the continuity of trial proceedings and so should only be allowed when there is a significant advantage to doing so—that is, when, in the Trial Chamber’s judgement, there is an important issue meriting immediate resolution by the Appeals Chamber.  But once one such issue is identified and an interlocutory appeal is certified, allowing the Appeals Chamber to resolve related issues at the same time may cause little additional interruption and may ultimately serve the goals of fairness and expeditiousness.

21. […] the Appeals Chamber will not, in considering an interlocutory appeal that extends beyond the issues that the Trial Chamber found to specifically satisfy the Rule 73(B) standard, address matters in which its consideration will not, in fact, materially advance the proceedings.  The Appeals Chamber notes the related argument of Mr. Karemera that the Prosecution has as a general matter failed to demonstrate errors invalidating the Trial Chamber’s decision or occasioning a miscarriage of justice within the meaning of Article 24(1) of the Statute.[1]  Although the Article 24(1) standard applies specifically to post-trial appeals from final Trial Chamber decisions, it is likewise true that in interlocutory appeals, even where certification under Rule 73(B) has been granted, it is not the Appeals Chamber’s practice to pass on purported errors that are inconsequential.[2]  The Appeals Chamber will keep this standard in mind in addressing the individual allegations of error raised by the Prosecution.

The Appeals Chamber ruled that Trial Chambers must take judicial notice of the following facts:

-          Existence of Hutus, Tutsis and Twas as protected group falling under the Genocide Convention (para. 25);

-          Existence of widespread or systematic attacks against a civilian population based on Tutsi ethnic identification (paras 28-29, referring to Semanza Appeal Judgement, para. 192; see also para. 31);

-          Existence of Genocide against Tutsis in Rwanda between 6 April 1994 and 17 July 194 (paras 35-36).

At para. 20, the Appeals Chamber confirmed its earlier finding in the impugned decision:

All that is required under Article 5 of the Statute is that the Prosecution establish that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged. While, as previous jurisprudence of this Tribunal has held, there is no need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict, the Prosecution must establish a connection between the Article 5 crime itself and the armed conflict. Consistently with the object of the purpose of the Tribunal’s Statute, the jurisdictional requirement that Article 5 crimes be committed in armed conflict requires the Prosecution to establish that a widespread or systematic attack against the civilian population was carried out while an armed conflict in Croatia and/or Bosnia and Herzegovina was in progress. Whether the Prosecution can establish this connection in this case with respect to crimes against humanity in Vojvodina is a question of fact to be determined at trial.[1]

It recalled its constant jurisprudence that “the existence of an armed conflict is not a constitutive element of the definition of crimes against humanity, but only a jurisdictional prerequisite.[2]” (para. 21).

At para. 3, the ICTR Appeals Chamber confirmed the ICTY Appeals Chamber’s finding that the delay for filing an appeal brief in an appeal from a Rule 11bis decision is 15 days:

3. Rule 11bis(H) sets a time frame of fifteen days for the filing of a notice of appeal, but is silent on the period for filing an appeal brief. Under the equivalent provision of the Rules of Procedure and Evidence for the ICTY, the Appeals Chamber has followed a practice of allowing fifteen days from the filing of the notice of appeal for the filing of the appeal brief on the merits.[1] The Appeals Chamber sees no reason to depart from this practice in considering appeals under Rule 11bis in this Tribunal.

At para. 26, the Appeals Chamber recalled that Rule 94 of the Rules cannot be used to circumvent the requirements of Rule 115:

26. […] [T]he Appeals Chamber recalls that “Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general Rules governing the admissibility of evidence and litter the record with matters which would not be admitted otherwise.”[1] The Appeals Chamber emphasises that to admit on appeal a fact capable of judicial notice, the requirements provided for by Rule 115 of the Rules must also be satisfied,[2] which is not the case in this instance. Had the Medical Reports and the Silverman Report met the requirements of Rule 94(A), they would not have been admitted on appeal.

In this case, the Defendant sought to appeal the Tribunal Bureau’s decision not to disqualify a judge pursuant to Rule 15(B). The Appeals Chamber noted that the Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Tribunal’s Bureau pursuant to Rule 15(B).

4. The Statute and Rules of the Tribunal do not provide for an interlocutory appeal to the Appeals Chamber of a decision taken by the Bureau pursuant to Rule 15(B).[1] Rather, the Appeals Chamber’s consideration of whether a Trial Judge should have been disqualified is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[2]

5. Rule 15(B) envisions a specific two-stage process of consideration for a request to disqualify a Judge. As the Rule clearly states, an application for disqualification is to be made to the Presiding Judge of the Chamber seized of the proceedings, which in this case is Judge Khan, the Presiding Judge of Trial Chamber III.[3] The Presiding Judge is then to confer with the Judge in question. If the party disputes the Presiding Judge’s decision, the Bureau shall determine the matter in a de novo review.[4]

6. The Appeals Chamber observes that Mr. Seromba did not follow this procedure and filed his claim directly with the Bureau,[5] thereby depriving himself of the review procedure envisioned by the Rule. Although it would have been within the discretion of the Bureau to dismiss Mr. Seromba’s request as improperly filed,[6] the Appeals Chamber cannot conclude that it erred in considering the matter in the first instance.

At paras 6, 8 the Appeals Chamber held:

6. In order to consider NATO’s Request, the Appeals Chamber must find that NATO has standing to bring it before the Appeals Chamber. It is clear under Rule 108bis (A) that it is “a State” that “may […] file a request for review of the [Trial Chamber’s interlocutory] decision by the Appeals Chamber […].” Similar to Rule 108bis, the plain language of Rule 54bis only makes reference to issuance of a binding order to produce documents and information to “a State” who may then seek review of that order under Rule 108bis.[1] NATO, as an international organization formed by an alliance of 26 individual sovereign States joined by treaty,[2] does not meet the definition of a State under the International Tribunal’s Rules.[3] Therefore, in order to consider whether it has competence to review NATO’s Request under Rule 108bis, the Appeals Chamber must first determine, proprio motu, whether the Trial Chamber erred in issuing a Rule 54bis order against NATO as an international organisation.[4]

8. […] The Appeals Chamber recalls that the basis for a Trial Chamber’s binding Rule 54bis order to produce is found in Article 29 and paragraph four of Security Council resolution 827 (1993).[5] On the face of those texts, only “States” have the obligation to cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law[6] and to comply with requests or orders for judicial assistance.[7] However, the Appeals Chamber agrees with the Trial Chamber in Simić that “States” refers to all Member States of the United Nations, whether acting individually or collectively and, under a “purposive construction” of the Statute of the International Tribunal, Article 29 applies to “collective enterprises undertaken by States” such as an international organization or its competent organ.[8] It is the general rule in the jurisprudence of the International Tribunal that the rules of treaty interpretation in international law apply to the Statute of the International Tribunal.[9] Article 31(1) of the Vienna Convention on the Law of Treaties[10] provides that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” The Appeals Chamber further agrees with the Simić Trial Chamber that “[t]he mere fact that the text of Article 29 is confined to States and omits reference to other collective enterprises of States does not mean it was intended that the International Tribunal should not also benefit from the assistance of States acting through such enterprises.”[11] Indeed, the Appeals Chamber recalls that “[i]n the final analysis, the International Tribunal may discharge its functions only if it can count on the bona fide assistance and cooperation”[12] of States and the purpose of Article 29 is to require the full cooperation of States with the International Tribunal in fulfilling its crucial mandate. To interpret Article 29 in such a way that the International Tribunal would be prevented from obtaining information or documents from a State when it was acting through an international organization, would undermine the essence of the International Tribunal’s functions. Thus, the Appeals Chamber finds that the International Tribunal’s Article 29 power to issue binding orders is as applicable to international organizations as collective enterprises of States, as it is to individual Member States.(emphasis added).

25. The Appeals Chamber considers that requiring an applicant to make a showing that he has exhausted all other possible avenues that may provide access to the information is too onerous and could inhibit the right to a fair trial. However, the Appeals Chamber recalls that it has held that a Trial Chamber’s binding order to a State to produce documents or information must be “strictly justified by the exigencies of the trial”[1] in light of the reliance of the International Tribunal on “the bona fide assistance and cooperation of sovereign States.”[2] Therefore, the Appeals Chamber holds that it is reasonable under the necessity requirement for an applicant to demonstrate either that: 1) it has exercised due diligence in [trying to obtain] the requested materials elsewhere and has been unable to obtain them; or 2) the information obtained or to be obtained from other sources is insufficiently probative for a fair determination of a matter at trial and thus necessitates a Rule 54bis order.

At para. 38 of the Impugned Decision, the Trial Chamber had found:

The target of such an Order [under Rule 54bis] is material that the organisation possesses. Questions of ownership and whether the material was initially obtained by another are irrelevant. As the Appeals Chamber explained in the Blaškić Subpoena Decision [Blaškić Judgement on Review Request], “the obligation under consideration [that of Article 29] concerns [inter alia] action that States may take only and exclusively through their organs (this, for instance, happens in case of an order enjoining a State to produce documents in the possession of one of its officials).” This applies equally to material received by one State from another. Of course, should a third-party holder of sensitive material assert that its legitimate security interests would be adversely affected by an order for production, it may seek appropriate protective measures.

The Appeals Chamber found that the Trial Chamber “erred […] when summarily dismissing the issues of ownership and origination of information as irrelevant to a Rule 54bis order.” (para. 43). It held:

43. […] Nothing in the text of Rule 54bis or the jurisprudence concerning the International Tribunal’s power to issue compelling orders to States[1] precludes consideration of these matters or indicates that the only question of concern for a Trial Chamber is whether or not the State is in possession of the requested information or documents. Furthermore, the Appeals Chamber recalls that the Rules of the International Tribunal have been intentionally drafted to take into account certain State interests and to provide safeguards for them in order to encourage States in the fulfilment of their obligation to cooperate with the International Tribunal under Article 29 of the Statute.[2] Indeed, under Rule 54bis, a Judge or a Trial Chamber is required to consider the national security interests raised by a State in determining whether to issue a Rule 54bis order or whether to direct, on national security interests grounds, protective measures for the documents or information to be produced by a State under a Rule 54bis order.[3]

It then held that “a properly tailored Rule 54bis order would necessarily avoid requiring production of information over which the United States does not have ownership” (para. 45).

See paras 44-45 for the complete reasoning.