19.     The Appellants argue that international law developed to regulate the relations between States on the basis of reciprocity and that command responsibility for acts committed in the course of an internal conflict does not raise any questions of reciprocity.[1] The Appeals Chamber does not consider that the matter depends on notions of reciprocity. In the course of development, States have come to consider that they have a common interest in the observance of certain minimum standards of conduct in certain matters;[2] this includes certain aspects of conduct in an internal armed conflict. To that extent, internal armed conflict is now the concern of international law without any question of reciprocity.

9.       […] [M]edia reports have to be handled very carefully as far as their evidential weight is concerned.  But they are not to be excluded altogether.[1] […]

23.     […] A Chamber is required to give reasons for its finding on the facts which led to its conclusion but this does not mean that it has a duty to give a detailed analysis of each such factor.  In most applications for provisional release, it would be sufficient for a Chamber to state that the matters put forward by the applicant have not satisfied it that he will appear for trial, or that, if released, he will not pose a danger to any victim, witness or other person (as the case may be).  In the particular case, one or more of the particular matters put forward by the applicant will be of such a nature that, in the discharge of its duty to give reasons, the Chamber will be obliged to explain why it has not accepted one or more of the various matters as being sufficient to establish the relevant fact.  It is not possible to state in advance any specific test as when such an obligation will arise.  Each case will depend upon its own circumstances. […]

11. The assessment of the chance that the prospective witness will be able to give information which will materially assist the defence in its case will depend largely upon the position held by the prospective witness in relation to the events in question, any relationship he may have (or have had) with the accused which is relevant to the charges, the opportunity which he may reasonably be thought to have had to observe those events (or to learn of those events) and any statements made by him to the prosecution or to others in relation to those events.  The test would have to be applied in a reasonably liberal way but, just as in relation to such applications for access to confidential material, the defence will not be permitted to undertake a fishing expedition – where it is unaware whether the particular person has any relevant information, and it seeks to interview that person merely in order to discover whether he has any information which may assist the defence.

10.     Rule 54 permits a judge or a Trial Chamber to make such orders or to issue such subpoenas as may be “necessary […] for the preparation or conduct of the trial”.  Such a power clearly includes the possibility of a subpoena being issued requiring a prospective witness to attend at a nominated place and time in order to be interviewed by the defence where that attendance is necessary for the preparation or conduct of the trial.  By analogy with applications for access to confidential material produced in other cases (where a legitimate forensic purpose for that access must be shown), an order or a subpoena pursuant to Rule 54 would become “necessary” for the purposes of that Rule where a legitimate forensic purpose for having the interview has been shown.  An applicant for such an order or subpoena before or during the trial would have to demonstrate a reasonable basis for his belief that there is a good chance that the prospective witness will be able to give information which will materially assist him in his case, in relation to clearly identified issues relevant to the forthcoming trial.[1]

See also paragraphs 12-13.

23.     […] It is common place in the law that, where the documents to be produced are the documents of either a State or a corporation, only the State or the corporation can be required to produce them, and that it is for the State or the corporation to do so through its proper officer. […]

CONSIDERING that when[…] an applicant for provisional release did not raise any new issue which had not been discussed in his earlier application to the same effect, the Trial Chamber need not give its reasons anew in relation to the issues raised in the new application, if the new material before it does not impact upon its original decision;

NOTING that [...] the Appeals Chamber has laid down a non-exhaustive list of factors which a Trial Chamber must take into account before granting provisional release;

CONSIDERING that all these factors need to be considered when the Trial Chamber decides to grant provisional release, not when it decides to refuse it;

CONSIDERING in particular that all factors need not to be reviewed by a Trial Chamber if, for instance, the consideration of one of them is sufficient to satisfy the Chamber that, if released, the accused would not appear for trial;

6.         […] A heavy workload in other cases and inadequate resources to deal with them all is not an appropriate basis for seeking an extension of time.  Counsel for the prosecution in an appeal is expected to be provided by the Office of the Prosecutor with the resources necessary to carry the workload in the particular case, and his or her workload in other cases will ordinarily be rejected as the basis for an extension of time, just as it has ordinarily been rejected for counsel for the accused.  Where there are special circumstances personal to counsel in relation to the particular case (be it for the prosecution or the accused), the Appeals Chamber will always consider those circumstances in determining whether an extension of time will be granted.  However, a systemic failure by the Office of the Prosecutor to provide adequate resources for its counsel to do the work which is necessary in the particular case will not be considered.

240. The procedure to be followed where an accused intends to enter an alibi in his defence is covered by Rule 67(A)(ii) and (B) of the Rules which provide inter alia that:

Subject to the provisions of Rules 53 and 69:

(A) As early as reasonably practicable and in any event prior to the commencement of the trial:

[...]

(ii) The defence shall notify the Prosecutor of its intent to enter:

(a) The defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi;

[...]

(B) Failure of the defence to provide such notice under this Rule shall not limit the right of the accused to rely on the above defences.

241. Rule 67(A)(ii) relates to the reciprocal disclosure of evidence at the pre-trial stage of the case and places upon the Defence the obligation to notify the Prosecution of its intent to enter a defence of alibi and to specify the evidence upon which it intends to rely to establish the alibi.[1] This allows the Prosecution to organise its evidence and to prepare its case prior to the commencement of the trial on the merits. As the Appeals Chamber explained in Kayishema and Ruzindana:

[…] the purpose of entering a defence of alibi or establishing it at the stage of reciprocal disclosure of evidence is only to enable the Prosecutor to consolidate evidence of the accused’s criminal responsibility with respect to the crimes charged. Thus during the trial, it is up to the accused to adopt a defence strategy enabling him to raise a doubt in the minds of the Judges as to his responsibility for the said crimes, and this, by adducing evidence to justify or prove the alibi.[2]

242. Rule 67(A)(ii) does not require the Defence to produce the probative evidence to be used to establish the accused’s whereabouts at the time of the commission of the offence. The extent and nature of the evidence that the Defence uses to cast doubt on the prosecution case is a matter of strategy which is for the Defence to decide.[3] The Appeals Chamber recalls that the strategy adopted by the person who raises an alibi may have an impact on a Trial Judge in reaching his or her conclusion.[4] Nevertheless, the requirements of Rule 67(A)(ii) are satisfied when the Defence has notified the Prosecution of the required particulars of the alibi, without necessarily producing the evidence.

243. To ensure a good administration of justice and efficient judicial proceedings, any notice of alibi should be tendered in a timely manner, ideally before the commencement of the trial. However, were the Defence to fail in this regard, Rule 67(B) provides that the Defence may still rely on evidence in support of an alibi at trial. Consequently, the obligations laid down by Rule 67 (A)(ii) must be read in conjunction with the caveat provided for by Rule 67(B).[5]

244. There is no requirement under Rule 67(A)(ii) for the Defence to notify the Chamber, in addition to the Prosecutor, of its intent to enter an alibi. A fortiori, the Defence is not required to provide the Chamber with details of the alibi witnesses and of the locations at which the accused is said to have been at the time the alleged crimes were committed. Prior to the commencement of the trial, the Defence is obliged to disclose alibi evidence only to the Prosecution and not to the Trial Chamber.

245. Considering the foregoing, unless one of the parties chooses to make the notice available to the Chamber or to file it with the Registry, there will be no written record of the notice within the case file at the pre-trial stage of the proceedings. It is only prior to the commencement of the Defence case that the Rules, specifically Rule 73ter (Pre-Defence Conference), require the Defence to provide details of its evidence to the Chamber.[6]

246. It is at this stage of the proceedings that the Trial Chamber will receive information relevant to the alibi. Although the Rules do not specify that a notice of alibi be provided, the materials filed in conformity with Rule 73ter should enable the Trial Chamber to avail itself of the Defence’s intention to enter an alibi. Furthermore, read together, the list of witnesses, the summary of their testimonies and the points in the indictment as to which they will testify, should provide the Chamber with particulars sufficient to determine the extent of the alibi.