37.     Secondly, the principle nullum crimen sine lege is, as noted by the International Military Tribunal in Nuremberg, first and foremost, a “principle of justice”.[1]  It follows from this principle that a criminal conviction can only be based on a norm which existed at the time the acts or omission with which the accused is charged were committed.  The Tribunal must further be satisfied that the criminal liability in question was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time for it to warrant a criminal conviction and sentencing under the head of responsibility selected by the Prosecution. 

38.     This fundamental principle “does not prevent a court from interpreting and clarifying the elements of a particular crime”.[2]  Nor does it preclude the progressive development of the law by the court.[3]  But it does prevent a court from creating new law or from interpreting existing law beyond the reasonable limits of acceptable clarification.  This Tribunal must therefore be satisfied that the crime or the form of liability with which an accused is charged was sufficiently foreseeable and that the law providing for such liability must be sufficiently accessible at the relevant time, taking into account the specificity of international law when making that assessment. 

39.     The meaning and scope of the concepts of “foreseeability” and “accessibility” of a norm will, as noted by the European Court of Human Rights,[4] depend a great deal on “the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed”.[5]  The specificity of international criminal law in that respect has been eloquently noted by one American Military Tribunal in Nuremberg in the Justice case:

Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field.  […] International law is not the product of statute for the simple reason that there is yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence.  It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the events. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth.[6]

40.     […] This Tribunal does not apply the law of the former Yugoslavia to the definition of the crimes and forms of liability within its jurisdiction.  It does, as pointed out above, apply customary international law in relation to its jurisdiction ratione materiae.  It may, however, have recourse to domestic law for the purpose of establishing that the accused could reasonably have known that the offence in question or the offence committed in the way charged in the indictment was prohibited and punishable.  […]

41.     Although domestic law (in particular the law of the country of the accused) may provide some notice to the effect that a given act is regarded as criminal under international law, it may not necessarily provide sufficient notice of that fact.  Customary law is not always represented by written law and its accessibility may not be as straightforward as would be the case had there been an international criminal code.  But rules of customary law may provide sufficient guidance as to the standard the violation of which could entail criminal liability.[7]  […]

42.     […] Although the immorality or appalling character of an act is not a sufficient factor to warrant its criminalisation under customary international law, it may in fact play a role in that respect, insofar as it may refute any claim by the Defence that it did not know of the criminal nature of the acts.[8] 

See also para. 10.

25.     Joint criminal enterprise is different from membership of a criminal enterprise which was criminalised as a separate criminal offence in Nuremberg and in subsequent trials held under Control Council Law No 10.[1]  As pointed out by the United Nations War Crimes Commission, what was to be punished in relation to the latter was “no mere conspiracy to commit crimes but a knowing and voluntary membership of organisations which did in fact commit crimes, and those on a wide scale”.[2]  No such offence was included in the Tribunal’s Statute.  The Secretary-General made it clear that only natural persons (as opposed to juridical entities) were liable under the Tribunal’s Statute,[3] and that mere membership in a given criminal organization would not be sufficient to establish individual criminal responsibility:

The question arises, however, whether a juridical person, such as an association or organization, may be considered criminal as such and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal. The Secretary-General believes that this concept should not be retained in regard to the International Tribunal. The criminal acts set out in this Statute are carried out by natural persons; such persons would be subject to the jurisdiction of the International Tribunal irrespective of membership in groups.[4]

26.     Criminal liability pursuant to a joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.  […]

22.     A Trial Chamber of the International Tribunal is in nature both a trier of fact and an arbiter of questions of law.  Authorised by the Statute and the Rules to make factual findings on the basis of evidence presented by the parties, the Trial Chamber relies on the factual findings to determine the guilt or innocence of the accused.  In that sense, the factual findings, subject to appeal and review, are parts of the truth proved beyond reasonable doubt.[1]  It does not, however, follow that the Trial Chamber, by assessing evidence presented by the parties, will be discharging some of the prosecutorial responsibilities.

7.       Two of the appellants (Landžo and Mucić) initially argued that the Appeals Chamber had no power to remit limited issues such as the adjustment of a sentence to a Trial Chamber for its determination.[1]  The third of the appellants (Delić) accepted that the Appeals Chamber had power to remit a limited issue to a Trial Chamber, but he submitted that it should not have done so in this case where none of the judges of the original Trial Chamber could be a member of the new Trial Chamber.[2]

9.       The argument originally put as to the power of the Appeals Chamber to remit limited issues to a new Trial Chamber would in any event have been rejected.  The Appeals Chamber considered its power to do so at the time when it exercised that power in its judgment in the earlier appeal.  An appeal from the Trial Chamber’s determination of those limited issues does not give to the parties the opportunity to appeal against the decision of the Appeals Chamber to remit those limited issues to the Trial Chamber.

10.     Nor does the Appeals Chamber consider it appropriate to reconsider its power to remit limited issues to a new Trial Chamber.  Its power to remit limited issues is clear. [….]

16.     The powers of the Appeals Chamber in relation to an appeal are not limited to those expressly stated in Article 25 of the Tribunal’s Statute or in Rule 117(C).  As part of the Tribunal, it also has an inherent power, deriving from its judicial function, to control its proceedings in such a way as to ensure that justice is done.[3]  The circumstances previously outlined prevented the Appeals Chamber from exercising its power to resolve those issues itself.  In those circumstances, it had the inherent power to remit those issues to be determined by another Chamber to ensure that justice was done to the parties in relation to the issues raised by the Appeals Chamber Judgment.[4]  The challenge to the power of the Appeals Chamber to remit limited issues is rejected.

See also para. 3.

12.     Where the nature of the error demonstrated is such that the Appeals Chamber is replacing the sentence with another which, in its view, the original Trial Chamber should have imposed, further evidence will not ordinarily be admitted.[1]  Such a course was followed by the Appeals Chamber in Prosecutor v Aleksovski,[2] in which the prosecution successfully argued that the sentence imposed by the Trial Chamber was manifestly inadequate because it gave insufficient weight to the gravity of the accused’s conduct and failed to treat his position as commander as an aggravating feature in relation to his responsibility under Article 7.1 of the Statute. Without hearing the parties further and without further evidence, the Appeals Chamber was able to revise the sentence imposed by increasing it.

13.     In Prosecutor v Kupreškić,[3] the Appeals Chamber had admitted additional evidence in the appeal by the appellant Vladimir Šantić against his conviction.  It reduced the sentence imposed upon that appellant because (i) the Trial Chamber in sentencing him had erroneously taken into account a fact which had not been established, (ii) the additional evidence on conviction demonstrated that Šantić had now, at least in part, accepted his guilt, and (iii) he had provided substantial co-operation to the prosecution after his conviction.  The Appeals Chamber stressed the absence of any de novo review, and it did not suggest that the appellant’s late acceptance of his guilt would have been admissible had it not become apparent from evidence otherwise admissible in the appeal.  The last consideration (co-operation after conviction) is expressly made relevant to sentencing by Rule 101(B)(ii), despite the absence of a de novo review of sentence.  The Appeals Chamber held that evidence of such co-operation was thereby made admissible, in appropriate cases, in a sentence appeal.[4]  The Appeals Chamber also held that, as all relevant information was already before it, it was unnecessary to remit the matter to a Trial Chamber,[5] having earlier stated that it had power to remit to a Trial Chamber the hearing of additional evidence which had been tendered pursuant to Rule 115.[6]  No other evidence falling within Rule 101(B) was adduced before the Appeals Chamber.

46.     It is inappropriate to describe a person in detention against whom the criminal proceedings have not yet been completed as habitually residing in detention.  The clear intention of this provision in Article 8(B) is to permit the Registrar to take into account the means of those with whom an accused habitually resided before entering detention and/or those with whom he would be residing were he not in detention.  For this purpose, the Registrar is entitled to take into account the information supplied by the accused in his declaration of means. […]  

[The Directive on the Assignment of Defence Counsel was amended since this decision was issued, and the relevant provision was moved from Article 8(B) to Article 10(A).]

12.     […] The burden upon the accused in the first instance to establish that he lacks the means to remunerate counsel, and upon the Registrar in the second instance to establish that the accused does have the means to do so, is not satisfaction beyond reasonable doubt, as in a criminal trial, but merely satisfaction that, more probably than not, what is asserted is true, or (as it is sometimes described) satisfaction on the balance of probabilities.  Satisfaction that what is asserted is more probably true than not will in turn depend on the nature and the consequences of the matter to be proved.  The more serious the matter asserted, or the more serious the consequences flowing from a particular finding, the more difficult it will be to satisfy the relevant tribunal that what is asserted is more probably true than not.

13.     […] A judicial review of such an administrative decision is not a rehearing.  Nor is it an appeal, or in any way similar to the review which a Chamber may undertake of its own judgment in accordance with Rule 119 of the Rules of Procedure and Evidence.  A judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which Registrar reached the particular decision and the manner in which he reached it.  The administrative decision will be quashed if the Registrar has failed to comply with the legal requirements of the Directive.  This issue may in the particular case involve a consideration of the proper interpretation of the Directive.  The administrative decision will also be quashed if the Registrar has failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or if he has taken into account irrelevant material or failed to take into account relevant material, or if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).  These issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled.  These standards for judicial review of administrative decisions rest on general principles of law derived from the principal legal systems.

14.     In the review, the accused bears the onus of persuasion.  He must persuade the Chamber conducting the review (a) that an error of the nature described has occurred, and (b) that such error has significantly affected the Registrar’s decision to his detriment.  If the accused fails to persuade the Chamber of either of these matters, the Registrar’s decision will be confirmed.  If the accused has persuaded the Chamber of both matters, the Registrar’s decision may be quashed and, if appropriate, the Chamber may also either rule that legal aid should be granted or, where it is satisfied that the accused has the means to remunerate counsel partially, refer the matter again to the Registrar for him to determine the portion of the cost of having counsel for which the accused does not have the means to pay.[1]  In some cases, it may be appropriate for the Chamber simply to quash the decision and to direct the Registrar to reconsider his decision in the light of the Chamber’s decision.  It is clear, from the implicit restriction that only the Registrar may determine the extent to which the accused has the means partially to remunerate counsel, that the power of the Chamber to substitute its own decision for that of the Registrar is limited.

56.     The Tribunal’s Statute provides that its working languages are English and French,[1] but it also provides that, in the determination of the charges upon which he is being tried, an accused is entitled to be informed of the nature and cause of the charge against him in a language he understands,[2] and to the free assistance of an interpreter if he cannot understand or speak the language of the Tribunal.[3]  None of these provisions support a right in an accused person to a translation of a judgment or decision of the Tribunal into a language which he understands, but it is common practice for at least some allowance to be made in relation to the times within which various steps have to be taken in an appeal against such a judgment where it is necessary for an accused who does not speak the language in which the judgment has been issued to play a significant part in that step.  It is therefore all the more important for an accused who does not speak the language in which a decision has been issued, and who is unrepresented, to have a translation of that decision in order to determine whether he should challenge that decision and to formulate the documents necessary for that purpose.

31. [...] Under Rule 54 of the Rules, a Trial Chamber may, at the request of either party or on its own initiative, issue a subpoena when it finds that doing so is “necessary for the purposes of an investigation or for the preparation or conduct of the trial.”  The discretion of the Trial Chambers, however, is not unfettered.  They must take into account a number of other considerations before issuing a subpoena.  Subpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.

32. In determining whether to issue a subpoena, a Trial Chamber has first of all to take into account the admissibility and potential value of the evidence sought to be obtained. Under Rule 89(C) of the Rules, a Trial Chamber “may admit any relevant evidence which it deems to have probative value,” and under Rule 89(D) may “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”  Secondly, the Trial Chamber may need to consider other factors such as testimonial privileges.  For instance, Rule 97 of the Rules states that “all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.”  Similarly, in the Simić case, the Trial Chamber made it clear that the ICRC has a right under customary international law to non-disclosure of information so that its workers cannot be compelled to testify before the International Tribunal.[1]

[...]

46. The Appeals Chamber considers that in order to decide whether to compel a war correspondent to testify before the International Tribunal, a Trial Chamber must conduct a balancing exercise between the differing interests involved in the case. On the one hand, there is the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial. On the other hand, there is the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.

[...]

50. [...] [T]he Appeals Chamber holds that in order for a Trial Chamber to issue a subpoena to a war correspondent a two-pronged test must be satisfied.  First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case.  Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.