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.

33. The Appeals Chamber emphasizes that the Rules of both this Tribunal and the ICTY generally reflect a preference for direct, live, in-court testimony. Nevertheless, the jurisprudence of both ad hoc Tribunals admits that Rule 89(C) of the Rules grants a Trial Chamber a broad discretion in assessing admissibility of evidence it deems relevant, including indirect evidence.[1] This discretion is not unlimited, considering that the test to be met before ruling evidence inadmissible is rigorous. It was thus ruled that “a piece of evidence may be so lacking in terms of the indicia of reliability that it is not 'probative’ and is therefore inadmissible.”[2] The Appeals Chamber is of the opinion that this principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. At the stage of admissibility, the beginning of proof that evidence is reliable, in other words, that sufficient indicia of reliability have been established, is quite admissible.[3]

See also para. 266.

524. As recalled by the Appeals Chamber of ICTY in Jelisic, the Statute[1] defines the specific intent required for the crime of genocide as “the intent to accomplish certain specific types of destruction”[2] against a targeted group. Pursuant to the Statute, therefore, specific intent implies that the perpetrator seeks to destroy, in whole or in part, a national, ethnic, racial or religious group as such, by means of the acts enumerated under Article 2 of the said Statute.[3] In order to prove specific intent, it must be established that the enumerated acts were directed against a group referred to under Article 2 of the Statute and committed with the intent to destroy, in whole or in part, the said group as such.

525. The crime of genocide sometimes implies several offenders participating in the commission of the crime. The Appeals Chamber concurs with the Appellant that in order to find a person guilty of genocide, it must be established that such a person was personally possessed of the specific intent to commit the crime at the time he did so. Nonetheless, as stated by the Appeals Chamber in Kayishema/Ruzindana, “explicit manifestations of criminal intent are […] often rare in the context of criminal trials”.[4] In the absence of explicit, direct proof, the dolus specialis may therefore be inferred from relevant facts and circumstances.[5] Such an approach prevents perpetrators from escaping convictions simply because such manifestations are absent.[6] The validity of this interpretation was confirmed by the Appeals Chambers of both ad hoc Tribunals.[7] With respect to the facts and circumstances from which specific intent may be inferred, the ICTY Appeals Chamber in Jelisic stated that such facts are, inter alia:

[…] the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.[8] (Emphasis added)

The ICTY Appeals Chamber also indicated that the existence of a plan or policy is not “a legal ingredient” of the crime of genocide,[9] but that proving the existence of such a plan or policy may facilitate proof of the crime.[10] Moreover, the Kayishema/Ruzindana Appeal Judgement reveals that making anti-Tutsi utterances or being affiliated to an extremist anti-Tutsi group is not a sine qua non for establishing dolus specialis.[11] The Appeals Chamber holds the view that establishing such a fact may, nonetheless, facilitate proof of specific intent.

528. […] The Appeals Chambers of the International Tribunal and the ICTY also confirmed that in the absence of explicit, direct evidence, specific intent may be inferred from other facts, such as the general context and the perpetration of other acts systematically directed against a given group. Such an approach does not imply that the guilt of an accused may be inferred only from his affiliation with “a guilty organisation.”

301. An Indictment is aimed at providing the accused with “a description of the charges against him with sufficient particularity to enable him to mount his defence.”[1] Accordingly, the indictment must be sufficiently specific, meaning that it must reasonably inform the accused of the material charges, and their criminal characterisation. The materiality of an alleged fact depends, above all, on the nature of the alleged criminal conduct charged to the accused.[2] Before the ICTY, these principles derive from Articles 17(4), 20(2), 20(4)(a) and (b) of the Statute, and Rule 47(C) of the Rules.

302. Although, a priori, the Prosecution is required to prove the facts alleged in the Indictment, the Appeals Chamber holds the view that the Indictment cannot have the degree of specificity of the evidence underpinning it. The Appeals Chamber therefore considers that, in general, minor differences between the indictment and the evidence presented at trial are not such as to prevent the Trial Chamber from considering the indictment in the light of the evidence presented at trial. Moreover, the Appeals Chamber notes that in Kunarac, the ICTY Appeals Chamber held that “minor discrepancies between the dates in the Trial Judgement and those in the Indictment […] go to prove […] that the events charged in the Indictment did not occur.”[3]

303. Such doctrines must, however, be assessed in the light of paragraphs 20(2), (4)(a) and (b) of the Statute, and take into account the specific circumstances of each case. Indeed, the Appeals Chamber is of the opinion that the right of the accused to be informed of the nature of the charge against him and the right to have adequate time for the preparation of his defence imply that an accused must be able to identify the criminal acts and conduct alleged in the indictment in all circumstances. Before holding that an event charged is immaterial[4] or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him. Depending on the specific circumstances of each case, the question to be to determined is whether an accused was reasonably able to identify the crime and criminal conduct alleged in each of the paragraphs of the Indictment.[5]

[…]

306. It is the opinion of the Appeals Chamber that the alleged variance between the evidence presented at trial and the Indictment in relation to the date of the commission of the offence cannot lead to invalidation of the Trial Chamber’s findings unless the said date is actually an essential part of the Appellant’s alleged offence.[6]

[…]

401. […] [W]here the Appellant makes serious allegations regarding the integrity of the judicial process, […], he must, inter alia, demonstrate the prejudice caused by the divergences between the facts alleged in the Indictment and the evidence adduced at trial in accordance with the relevant jurisprudence […].[7]

225. […] [T]he underlying purpose of [judicial notice] is to dispense with future proof of officially recorded facts that are indisputable.

17. Article 24 of the Statute sets forth the circumstances under which a convicted person and/or the Prosecutor may appeal against the judgement and/or sentence of a Trial Chamber. Under this provision, a party wishing to appeal must specify the error alleged[1] and show that such error falls under the jurisdiction of the Appeals Chamber, it being understood that Article 24 of the Statute limits the jurisdiction of the Appeals Chamber in the following manner:

[…] appeals from persons convicted by the Trial Chamber or from the Prosecutor on the following grounds:

(a) An error on a question of law invalidating the decision; or

(b) An error of fact which has occasioned a miscarriage of justice. […]

18. Accordingly, where a party alleges that an error of law or of fact has been committed, that party must go on to show that the alleged error invalidates the decision or occasions a miscarriage of justice. Discharging this burden of proof is primordial for the appeal to succeed.[2] Indeed, the Appeals Chamber is, in principle, not required to consider the arguments of a party if they do not allege an error of law invalidating the decision, or an error of fact occasioning a miscarriage of justice.[3] It is therefore quite useless for a party to repeat on appeal arguments that did not succeed at trial, unless that party can demonstrate that rejecting them occasioned such error as would warrant the intervention of the Appeals Chamber. Where a party is unable to explain in what way an alleged error invalidates a decision or occasions a miscarriage of justice, it should, as a general rule, refrain from appealing on grounds of such error.[4] Logically, therefore, where the arguments presented by a party do not have the potential to cause the impugned decision to be reversed or revised, the Appeals Chamber may immediately dismiss them as being misconceived, and would not have to consider them on the merits.[5]

19. With regard to requirements as to form, the ICTY Appeals Chamber in the Kunarac case stated that “[O]ne cannot expect the Appeals Chamber to give detailed consideration to submissions of the parties if they are obscure, contradictory, vague, or if they suffer from other formal and obvious insufficiencies.”[6] An appellant must therefore clearly set out his grounds of appeal as well as the arguments in support of each ground; he must also refer the Appeals Chamber to the precise parts of the record on appeal invoked in support of his allegations.[7] From a procedural point of view, the Appeals Chamber has the inherent discretion, pursuant to Article 24 of the Statute, to determine which submissions of the parties merit a “reasoned opinion in writing”.[8] The Appeals Chamber cannot be expected to provide comprehensively reasoned opinions in writing on evidently unfounded submissions. The Appeals Chamber should focus its attention on the essential issues of the appeal.[9] In principle, therefore, the Appeals Chamber will dismiss, without providing detailed reasons, those submissions made by appellants in their briefs or in their replies, or presented orally during the appeal hearing, which are evidently unfounded.[10]

[…]

505. […] [T]he Appeals Chamber, in accordance with the established practice of the Tribunal, cannot substitute its own finding for that of the Trial Chamber.[11] It is settled case-law that an appeal is not a de novo review.[12] Based on this principle, therefore, it does not fall to the Appeals Chamber to conduct a de novo trial of the Appellant […] and/or to determine whether a different assessment of the evidence presented at trial would have sustained a finding guilt. According to the standards applicable on appeal, the Appeals Chamber must enter a judgement of acquittal “if an appellant is able to establish that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it.” [13] Considering the Judgement in the instant case, such a standard requires the Appeals Chamber to assess the evidence presented at trial as an indivisible whole.

21. With regard to errors of fact, the party alleging this type of error in support of an appeal against conviction must show the error that was committed and the miscarriage of justice resulting therefrom.[1] It is an established principle that a high degree of deference must be shown to the factual findings of a Trial Chamber, and the Appeals Chamber has regularly recalled that it will not lightly disturb findings of fact by a Trial Chamber.[2] Such deference is based essentially on the fact that the Trial Chamber has the advantage of observing witnesses in person and hearing them when they are testifying,[3] and so are better placed to choose between divergent accounts of one and the same event. Trial Judges are better placed than the Appeals Chamber to assess witness reliability and credibility,[4] and to determine the probative value to ascribe to the evidence presented at trial.[5]

[…]

367. […] In the absence of any showing by the Appellant that no reasonable trier of fact could have discounted [the] evidence, the Appeals Chamber must a priori give a margin of deference to the Trial Chamber’s assessment of the evidence presented at trial and to its factual findings, as the Trial Chamber is best placed to hear the witnesses and assess the probative value of their evidence.[6] […]

[…]

512. The Appeals Chamber recalls that with regard to errors of fact, the appealing party must show both the error that was committed and the miscarriage of justice resulting there from.[7] It is therefore futile on appeal to repeat arguments that failed at trial, unless it can be demonstrated that the dismissal of such arguments actually resulted in an error. With respect to miscarriage of justice, the Appeals Chamber has already specified that the Appellant must show that it was critical to the verdict reached by the Trial Chamber[8] or that the assessment of the evidence was totally erroneous,[9] and that, therefore, flagrant injustice resulted there from.

See also paras. 362, 386.