| Text search | Notions | Case | Filing | Date range | Tribunal |
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| Decision on Request for Clarification - 06.08.2003 |
NIKOLIĆ Dragan (IT-94-2-AR73) |
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CONSIDERING that the Appeals Chamber has an obligation to give reasoned opinions for its decisions but that this obligation does not require it to spell out every step in its reasoning;[1] [1] See, e.g., Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, Appeals Chamber, Judgement, 12 June 2002, para. 42. |
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| Decision on Communication with Potential Witnesses of Opposite Party - 30.07.2003 |
MRKŠIĆ Mile (IT-95-13/1-AR73) |
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16. When a person has declined to be interviewed, the Prosecution is entitled to take reasonable steps to persuade the person to reconsider his decision. However, the mere fact that the person has agreed to testify for the Defence does not preclude the Prosecution from interviewing him provided of course that there is no interference with the course of justice. Particular caution is needed where the Prosecution is seeking to interview a witness who has declined to be interviewed by the Prosecution, since in such a case the witness may feel coerced or intimidated. See also paragraphs 14-15. |
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| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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51. […] [T]he Appeals Chamber holds that an accused cannot be charged under Article 7(3) of the Statute for crimes committed by a subordinate before the said accused assumed command over that subordinate. […] See also paragraphs 45-50.
[1] See Ojdanić Decision, paras. 9-10. [2] See Prosecutor v. Milutinović, Sainović & Ojdanić, Case No. IT-99-37-AR72, “Decision on Dragolub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise,” 21 May 2003, para. 9 (“The scope of the Tribunal’s jurisdiction ratione materiae may therefore said to be determined both by the Statute, insofar as it sets out the jurisdictional framework of the International Tribunal, and by customary international law, insofar as the Tribunal’s power to convict an accused of any crime listed in the Statute depends on its existence qua custom at the time this crime was allegedly committed.”). See also Čelebići Appeal Judgment, para. 178. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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31. […] [C]ommand responsibility was at all times material to this case a part of customary international law in its application to war crimes committed in the course of an internal armed conflict. See also paragraphs 18, 20, 25-27, 29-30, 33. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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51. […] [T]he Appeals Chamber holds the view that this Tribunal can impose criminal responsibility only if the crime charged was clearly established under customary law at the time the events in issue occurred.[1] […] […] 55. […] [A]n expansive reading of criminal texts violates the principle of legality, widely recognized as a peremptory norm of international law, and thus of the human rights of the accused.[2] [1] Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Judgement (Reasons), 3 July 2003, para 34. [2] Cf. Rome Statute, art. 22, para. 2. |
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| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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12. […] [T]he Appeals Chamber […] appreciates that to hold that a principle was part of customary international law, it has to be satisfied that State practice recognized the principle on the basis of supporting opinio juris. However, it also considers that, where a principle can be shown to have been so established, it is not an objection to the application of the principle to a particular situation to say that the situation is new if it reasonably falls within the application of the principle. Also, in determining whether a principle is part of customary international law and, if so, what are its parameters, the Appeals Chamber may follow in the usual way what the Tribunal has held in its previous decisions. See also paragraph 52. |
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| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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34. […] As to foreseeability, the conduct in question is the concrete conduct of the accused; he must be able to appreciate that the conduct is criminal in the sense generally understood, without reference to any specific provision. As to accessibility, in the case of an international tribunal such as this, accessibility does not exclude reliance being placed on a law which is based on custom.[1] [1] See “Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction-Joint Criminal Enterprise”, Prosecutor v. Milan Milutinović et al, IT-99-37-AR72, 21 May 2003, paras. 37-39 (“Ojdanić Decision”). |
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| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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35. […] The obligation of the Tribunal to rely on customary international law excludes any necessity to cite conventional law where customary international law is relied on.[1] […] […] 44. […] [I]t has always been the approach of this Tribunal not to rely merely on a construction of the Statute to establish the applicable law on criminal responsibility, but to ascertain the state of customary law in force at the time the crimes were committed.[2] See also paragraph 55. [1] See Ojdanić Decision, paras. 9-10. [2] See Prosecutor v. Milutinović, Sainović & Ojdanić, Case No. IT-99-37-AR72, “Decision on Dragolub Ojdanić’s Motion Challenging Jurisdiction—Joint Criminal Enterprise,” 21 May 2003, para. 9 (“The scope of the Tribunal’s jurisdiction ratione materiae may therefore said to be determined both by the Statute, insofar as it sets out the jurisdictional framework of the International Tribunal, and by customary international law, insofar as the Tribunal’s power to convict an accused of any crime listed in the Statute depends on its existence qua custom at the time this crime was allegedly committed.”). See also Čelebići Appeal Judgment, para. 178. |
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| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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13. […] Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status.[1] […] [1] See Corfu Channel, Merits, I.C.J. Reports 1949, p.22, and Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, pp. 112 and 114. |
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| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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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. [1] Interlocutory Appeal, para. 39. [2] See Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J.Reports 1951, p. 23; and Military and Paramilitary Activities in and against Nicaragua, I.C.J. Reports 1986, pp. 112 and 114. |
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| Notion(s) | Filing | Case |
| Decision on Command Responsibility - 16.07.2003 |
HADŽIHASANOVIĆ et al. (IT-01-47-AR72) |
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16. […] It is evident that there cannot be an organized military force save on the basis of responsible command. It is also reasonable to hold that it is responsible command which leads to command responsibility. Command responsibility is the most effective method by which international criminal law can enforce responsible command. See also paragraphs 17-18, 20, 22-23. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |
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| Decision Refusing Leave to Appeal - 03.07.2003 |
MILUTINOVIĆ Milan (IT-99-37-AR65.3) |
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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] […] [1] Prosecutor v Milutinović et al, IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, par 10 (“Šainović and Ojdanić Appeals Decision”). |
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| Decision Refusing Leave to Appeal - 03.07.2003 |
MILUTINOVIĆ Milan (IT-99-37-AR65.3) |
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12. […] if an accused decides to cooperate with the Prosecution, this matter may weigh in his favour when he seeks to be provisionally released, regardless of the fact that it is not explicitly listed in Rule 65, insofar as it shows his general attitude of cooperation towards the Tribunal which is relevant to the issue that he will appear. It is wrong to suggest, however, that an accused should be penalised because he declines to cooperate with the Prosecution.[1] […] [1] Šainović and Ojdanić Appeals Decision, par 8: “An accused person may, if he decides to do so, co-operate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his giving such an interview while still in custody.” |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision Refusing Leave to Appeal - 03.07.2003 |
MILUTINOVIĆ Milan (IT-99-37-AR65.3) |
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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. […] |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision Refusing Leave to Appeal - 03.07.2003 |
MILUTINOVIĆ Milan (IT-99-37-AR65.3) |
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5. […] The fact that an accused may have surrendered voluntarily to the Tribunal is relevant to […] whether he will appear for trial, to the extent that his voluntary surrender demonstrates his readiness to cooperate with the Tribunal and increases the likelihood that he will appear for trial if released. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Subpoena Application - 01.07.2003 |
KRSTIĆ Radislav (IT-98-33-A) |
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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. |
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| Notion(s) | Filing | Case |
| Decision on Subpoena Application - 01.07.2003 |
KRSTIĆ Radislav (IT-98-33-A) |
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8. The Appeals Chamber accepts that, in a situation where the defence is unaware of the precise nature of the evidence which a prospective witness can give and where the defence has been unable to obtain his voluntary cooperation, it would not be reasonable to require the defence to use “all mechanisms of protection and compulsion available” to force the witness to give evidence “cold” in court without first knowing what he will say. That would be contrary to the duty owed by counsel to their client to act skilfully and with loyalty.[1] Accordingly, it is generally inappropriate in this situation to consider orders to the prospective witness to attend to give evidence (Rule 54) or for taking his evidence by way of deposition for use later in the trial (Rule 71).[2] 9. The Reply, however, wrongly assumes that Rule 54 is limited to making orders that the prospective witness attend to give evidence before the relevant Chamber. It is clear, both from the terms of the Rule itself and from what the Appeals Chamber said in the Tadić Rule 115 Decision,[3] that the requirement that “all mechanisms of protection and compulsion available” be used by the defence was not intended to be limited to the situation where the defence is aware of what evidence the prospective witness can give but where the prospective witness is unwilling (for whatever reason) to cooperate. In the exercise of due diligence, the appropriate mechanisms must also be used in the situation where the defence is unaware of the precise nature of the evidence the prospective witness can give and where the defence is unable to obtain his cooperation by speaking to it. See also paragraphs 14-16. [1] Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (IT/125 Rev 1) 12 July 2002, Article 3(ii) and (iii). That duty of loyalty must, of course, be discharged consistently with the duty owed by counsel to the Tribunal to act with independence in the administration of justice. [2] In par 12, infra, it is suggested that Rule 54 could be utilised so that a judge could explain to the prospective witness the importance of his cooperation and how he will be afforded protection by the Tribunal if it is required. [3] See footnote 6, supra [Prosecutor v Tadić, IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time Limit and Admission of Additional Evidence, 15 Oct 1998 (“Tadić Rule 115 Decision”)]. |
ICTR Rule
Rule 54; Rule 71 ICTY Rule Rule 54; Rule 71 |
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| Notion(s) | Filing | Case |
| Decision on Subpoena Application - 01.07.2003 |
KRSTIĆ Radislav (IT-98-33-A) |
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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. [1] cf Prosecutor v Hadžihasanović et al, Decision on Motion by Mario Čerkez for Access to Confidential Supporting Material, 10 Oct 2001, par 10; Prosecutor v Kordić & Čerkez, Order on Paško Ljubičić’s Motion for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić and Čerkez Case, 19 July 2002, p 4; Prosecutor v Blaškić, Decision on Appellant’s Dario Kordić and Mario Čerkez Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Trial Pleadings and Hearing Transcripts filed in the Prosecutor v Blaškić, 16 May 2002, par 14; Prosecutor v Kvočka et al, Decision on Momčilo Gruban’s Motion for Access to Material, 13 Jan 2003, par 5; Prosecutor v Kordić & Čerkez, Decision on Motion by Hadžihasanović, Alagić, and Kubura for Access to Confidential Supporting Material, Transcripts and Exhibits in the Kordić & Čerkez Case, 23 Jan 3003, p 3. |
ICTR Rule Rule 54 ICTY Rule Rule 54 | |
| Notion(s) | Filing | Case |
| Decision on Subpoena Application - 01.07.2003 |
KRSTIĆ Radislav (IT-98-33-A) |
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17. Where […] an appellant seeks the issue of a subpoena to a prospective witness to be interviewed in anticipation of tendering that person’s evidence on appeal pursuant to Rule 115, the legitimate forensic purpose to be established must be slightly adapted. An appellant must establish that there is 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 relation to clearly identified issues arising in his appeal against conviction, that the defence has been unable to obtain the cooperation of the witness, and that it is at least reasonably likely that an order would produce the degree of cooperation needed for the defence to interview the witness. If those matters are established, then […] the appellant would be entitled to the orders which he seeks pursuant to Rule 54. |
ICTR Rule
Rule 54; Rule 115 ICTY Rule Rule 54; Rule 115 |
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| Notion(s) | Filing | Case |
| Decision on Subpoena Application - 01.07.2003 |
KRSTIĆ Radislav (IT-98-33-A) |
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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. […] |
ICTY Statute Article 29 | |