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.

15. […] The Tribunal has an inherent power to stay proceedings which are an abuse of process, such a power arising from the need for the Tribunal to be able to exercise effectively the jurisdiction which it has to dispose of the proceedings.[1] […]

[T]he burden does lie upon the accused in an application for provisional release to satisfy the Trial Chamber that, if released, he will appear for trial;

7. The circumstances of each accused who applies for provisional release must be evaluated individually as they weigh upon the likelihood that he will appear for trial.  The weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position which he held prior to his arrest.  The Trial Chamber must assess these circumstances at the time when the decision on provisional release is being taken, but must also, as far as foreseeable, make an assessment as at the time when the case is due for trial and when the accused will be expected to return. 

[...]

9. [...] The position of an accused in the hierarchy and the consequence thereof upon the weight of governmental guarantees are indeed significant factors which the Trial Chamber is expected to address as they could have an important bearing upon a State’s willingness and readiness to arrest that person if he refuses to surrender himself; those factors therefore reduce the likelihood of his appearing at trial. [...]

18. […] [Paragraph (B) of Rule 70] prevents the disclosure of information provided to the Prosecutor on a confidential basis where that information has been used solely for the purposes of generating new evidence, without the consent of the provider. It was designed to encourage States and others (such as humanitarian organisations operating in the relevant territory) to assist the Prosecution (or, under paragraph (F) of the Rule, the Defence). The provider must consent before this information may be disclosed any further – by being presented in evidence or otherwise. If the information is to be disclosed in evidence, it must be disclosed to the accused in accordance with Rule 66, as paragraph (B) provides.[1] […]

19. The purpose of Rule 70(B) to (G) is to encourage States, organisations, and individuals to share sensitive information with the Tribunal. The Rule creates an incentive for such cooperation by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected.[2] As Trial Chamber I explained several years ago, “the exceptions to disclosure in Sub-rules 70(B) to (E) were introduced into the rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusable on account of its confidential nature or its origin.”[3] As another Trial Chamber has observed, without such guarantees of confidentiality, it is “almost impossible to envisage this Tribunal, of which the Prosecution is an integral organ, being able to fulfil its functions.”[4]

20. The phrases “information under this Rule” and “testimony, document or other material so provided” in paragraph (C),[5] and “information provided under this Rule” in paragraph (D),[6] are intended to relate back to the “information which has been provided” referred to in paragraph (B).[7] […] Paragraphs (C) and (D) deal with the situation where the provider has already given its consent to the information being disclosed further, by being presented in evidence in one form or another. By definition, the information is by this stage no longer being “used solely for the purpose of generating new evidence”. It becomes a matter of necessary textual interpretation, therefore, that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on a confidential basis […], and not that which was so provided and which has been used solely for the purpose of generating new evidence […]. […]

21. The Trial Chamber […] impermissibly introduced a requirement into Rule 70 that the sole purpose of providing the information was to generate new evidence, whereas paragraph (B) speaks only of the material having been used solely for that purpose. No doubt the purpose of providing information on a confidential basis will in many cases include a purpose (sole or otherwise) that new evidence will thereby be generated, but the limitations imposed by Rule 70(B) are not based upon the existence of such state of mind on the part of the provider.

[…]

23. The fact that information is provided in the form of testimony does not exclude it from being “information” or “initial information” provided under the Rule. Indeed, paragraph (C) of the Rule expressly refers to the “testimony, document, or other material so provided.” (emphasis added). […] When a person possessing important knowledge is made available to the Prosecutor on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the “information” shielded by Rule 70, but also the substance of the information shared by the person – often, as in this case, presented in summary form in a witness statement.

[…]

25. All that Rule 70 requires is that the information “was provided to the Prosecutor on a confidential basis.” As mentioned in paragraph 20 supra, for purposes of paragraph (B), the information must also be “used solely for the purpose of generating new evidence,” but for paragraphs (C) and (D) that requirement necessarily drops out, for once the information is introduced as evidence at trial, it by definition is no longer “used solely for the purpose of generating new evidence.”

26. […] The Appeals Chamber observes that two safeguards exist to ensure that any misuse does not deprive accused persons of their rights to challenge the evidence against them and to receive a fair trial.[8] First, as explained more fully below in section D.2, the Trial Chambers do possess a limited authority to police the application of Rule 70 in order to prevent its misapplication. Second, paragraph (G) of Rule 70 expressly empowers the Trial Chambers to “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.” Designed to ensure that the restrictions in paragraphs (C) and (D) do not undermine the bedrock requirement of fair trial when the Rule is properly invoked, paragraph (G) also gives Trial Chambers a tool to protect that requirement if the Rule has been misused.

[…]

29. […] Chambers of the Tribunal do indeed have the authority to assess whether information has been provided in accordance with Rule 70(B) and so benefits from the protections afforded by that Rule. However, such enquiry must be of a very limited nature: it only extends to an examination of whether the information was in fact provided on a confidential basis, bearing in mind that the providing of information may not be confined to a single act, but may consist of a process involving several acts. This is an objective test. The Chambers may be satisfied of this simply by a consideration of the information itself, or by the mere assertion of the Prosecutor, or they may require confirmation from the information provider or, where the information is in the form of a document, for example, there may be something on the face of the document which indicates that it was indeed provided on a confidential basis.

[…]

31. […] Where […] there is any doubt upon the face of the material placed before a Trial Chamber when the protections of Rule 70 are sought, the Trial Chamber should invite the party which provided the information and the Prosecutor to supply evidence upon these issues before ruling upon the application of Rule 70 to the information in question. The Trial Chamber should give the information provider an opportunity to be heard on the question by filing written submissions, but need not allow additional oral submissions by the information provider unless the Trial Chamber determines that the interests of justice so require.

The Trial Chamber denied admission into evidence of the conclusions drawn by a Prosecution investigator based on his summaries of written witness statements. See paras 16-17.

17. [...] [Those conclusions are] facts which the Trial Chamber is obliged to consider and in relation to which it must make its own findings before coming to the issue of the accused’s guilt in relation to them.  That task does not require expertise beyond that which is within the capacity of any tribunal of fact, that of analysing the factual material put forward by the witnesses.  Whatever expertise the OTP investigator may claim to have in relation to such a task, the Trial Chamber was entitled to decline his assistance in the very task which it had to perform for itself.

CONSIDERING that the quality and effectiveness of appeal briefs does not depend on their length but on the clarity and cogency of the presented arguments and that, therefore, excessively long briefs do not necessarily serve the cause of an efficient administration of justice; 

79. […] [I]t is well settled that “the testimony of a single witness on a material fact may be accepted as evidence without the need for corroboration.”[1] However, the Appeals Chamber considers that this jurisprudence cannot be interpreted to mean that a Trial Chamber cannot resort to corroboration; the Trial Chamber can do so by virtue of its discretion. […]

50. Under Article 6(3), a commander or superior is the one who possesses the power or authority in either a de jure or a de facto form to prevent a subordinate’s crime or to punish the commission of a crime by a subordinate after the crime is committed”.[1] The power or authority to prevent or to punish does not arise solely from a de jure authority conferred through official appointment.[2] Hence, “as long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control.” [3] The effective control test applies to all superiors, whether de jure or de facto, military or civilian.[4]

51. Indeed, it emerges from international case-law that the doctrine of superior responsibility is not limited to military superiors, but also extends to civilian superiors. In the Čelebići case, it was held that:

[…] the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.[5]

In this respect, the Appeals Chamber notes that the Musema Trial Judgement, which took into consideration the Rwandan situation, pointed out that “it is appropriate to assess on a case-by-case basis the power of authority actually devolved on an accused to determine whether or not he possessed the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish their perpetration.”[6]

52. Hence, the establishment of civilian superior responsibility requires proof beyond reasonable doubt that the accused exercised effective control over his subordinates, in the sense that he exercised a degree of control over them which is similar to the degree of control of military commanders. It is not suggested that “effective control” will necessarily be exercised by a civilian superior and by a military commander in the same way, or that it may necessarily be established in the same way in relation to both a civilian superior and a military commander.

[…]

55. The Appeals Chamber holds the view that the Trial Chamber’s approach to the notion of “effective control” in relation to civilian superior was erroneous in law, to the extent that it suggested that the control exercised by a civilian superior must be of the same nature as that exercised by a military commander.[7] As the Appeals Chamber has already stated, this is not the case. It is sufficient that, for one reason or another, the accused exercises the required “degree” of control over his subordinates, namely, that of effective control. […]

56. The Appeals Chamber notes the ambiguity of the expression a contrived de jure-like authority (in French, “autorité quasi-de jure factice”)[8] and acknowledges that it is difficult to grasp the meaning thereof. In the context of paragraph 152 of the Judgement, the concept seems to form part of the reasoning used by the Trial Chamber in examining the de jure authority exercised by the Accused, but it can be interpreted in different ways. The Appeals Chamber reiterates that the case law of the International Tribunals makes it mandatory to use the effective control test for both de jure and de facto superiors. Creating intermediate levels of authority is unnecessary and it would impair the legal analysis of the criminal liability of a superior under Article 6(3) of the Statute, as well as heighten the confusion in identifying the various forms of authority and instituting effective control. […]

[…]

61. The Appeals Chamber is of the view that, when the Trial Chamber came to apply the test of “effective control” to the facts of the case, it made little allowance for the possibility that the Accused could be considered as a superior on the basis of a de facto power or authority over his or her subordinates.[9] Furthermore, in paragraph 151 of the Judgement, the Trial Chamber wrongly held that both de facto and de jure authority need to be established before a superior can be found to exercise effective control over his or her subordinates. The Appeals Chamber reiterates that the test in all cases is whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority.[10] The ICTY Appeals Chamber held in the Čelebići Appeal Judgement that “[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control”.[11]

62. The Appeals Chamber is therefore of the view that the lack of proper consideration of the de facto character of the Accused’s responsibility by the Trial Chamber was incorrect and upholds the Appellant’s third submission. […]

57. There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved.[1] A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting.[2]  It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict.[3]

58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed.  It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed.  Hence, if it can be established […] that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. […]

59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.