9. [...] [R]equirement in Rule 28(B) that the duty Judge is to be “available at all times, including out of normal Registry hours, for dealing with applications pursuant to paragraphs (C) and (D)”. Rule 28 thus necessarily contemplates that the duty Judge will have power during normal Registry hours to deal with applications in cases which have already been assigned to a Trial Chamber. Rule 28(D) must be interpreted in a way which will correspond with what is clearly intended by Rule 28(B). It is therefore necessarily implicit in Rule 28(D) that the Judge will deal during normal Registry hours with applications which have already been assigned to a Trial Chamber. Rule 28(B) gives to the judge the discretion to refuse to do so where the application is not urgent. The exercise of that discretion will depend upon whether the application is of such a nature that it is appropriate that it be dealt with by the duty Judge rather than by the Trial Chamber to which the case has been assigned. This situation would usually arise during the official court recesses, but it would also arise where the Trial Chamber is, for reasons other than a court recess, not available to deal with the application.

10. The obvious example of where it would be appropriate – indeed, necessary – for the duty Judge to exercise the powers of the Trial Chamber (whether or not the relief sought should be granted) is where the application is an urgent one which cannot await for its resolution the return of the Trial Chamber to which the case is assigned. Another obvious example of where it would be at least appropriate for the duty Judge to exercise the power to deal with the application (again, whether or not the relief sought should be granted) is where it is an application pursuant to Rule 127 to enlarge the time prescribed by the Rules for the doing of an act, and where the time for doing that act expires during the unavailability of the Trial Chamber by reason of the court recess or other reason, or very shortly thereafter. In considering whether it is appropriate for the duty Judge to deal with any particular matter, it is important to keep in mind that the Trial Chamber will usually be in a better position to deal with a matter which requires detailed knowledge of the case.

[...]

14. Where a case has already been assigned to a Trial Chamber, urgency would usually be established where the subject matter of the application is of such a nature that the relief sought can only be granted if the application is determined at a time before that Trial Chamber is available to determine it, and where the applicant would suffer significant prejudice if the application is not determined within that time. The circumstances which could constitute urgency in any particular case cannot be precisely defined in advance. [...]

[...]

17. [...] Where an application is made in a case assigned to a Trial Chamber, but the Trial Chamber is not available to deal with it so that it comes before the duty Judge, and where that Judge correctly refuses to deal with that application because he or she has not been satisfied that it was urgent, the only ruling which should or could be made by that Judge is to refuse to deal with that application as the duty Judge. It would then be left to the Trial Chamber to deal with the application when the Trial Chamber is available to do so. This would appear to be so whether the application is addressed to the Trial Chamber or to the duty Judge directly. If the application is dismissed by the duty Judge, the Trial Chamber would necessarily be prevented from dealing with it in the ordinary course. That is not the intention of Rule 28.

13. The duty Judge’s decision as to whether to deal with an application out of normal Registry hours is a discretionary one once the Judge is satisfied as to its urgency.[1] […] [T]he finding of fact as to whether the matter is or is not urgent is, however, the same as any other finding of fact. The finding by the duty Judge that there was no urgency in the Appellant’s application cannot be reversed on appeal unless it is one which no reasonable tribunal of fact could have reached.[2] This is so whether the finding related to the application being dealt with out of, or during, normal Registry hours.

4. In the opinion of the Appeals Chamber, Rule 111 requires an appellant to identify in the Appellant’s Brief the authorities upon which he or she relies for the arguments put forward by name and citation (including the relevant page or paragraph of those authorities) only. A Book of Authorities is produced only in order to assist the Appeals Chamber in its consideration of the appeal. It is not an appendix to a party’s Brief. Provided that the Book of Authorities does not contain any legal or factual arguments, and contains only source materials, its length is not limited by any of the provisions of the Practice Direction. However, parties should include within it only those authorities to which they believe the Appeals Chamber will need to refer. It is not usually necessary to include within a Book of Authorities copies of decisions of the Tribunal itself.

13. A Trial Chamber may nevertheless always reconsider a decision it has previously made, not only because of a change of circumstances but also where it is realised that the
previous decision was erroneous or that it has caused an injustice.[1]  Where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision.

46.     The Appeals Chamber further finds that the failure to file an Appellant’s brief in support of a notice of appeal carries serious consequences as to the admissibility of the entire appeal. Rule 111 states that an Appellant’s brief shall contain all the argument and authorities. An appeal, which consists of a Notice of Appeal that lists the grounds of Appeal but is not supported by an Appellant’s brief, is rendered devoid of all of the arguments and authorities; the right to appeal may therefore be considered as having been waived if the Notice of Appeal is not followed by the timely filing of an Appellant’s brief. The Appeals Chamber notes that procedural time-limits are to be respected, and that they are indispensable to the proper functioning of the Tribunal and to the fulfilment of its mission to do justice.[1] Violations of these time-limits, unaccompanied by any showing of good cause, will not be tolerated.[2]

55.     As a rule, a fair trial requires that a set of procedural rules be established to ensure equality between the parties to the case and guarantee the independence of the Tribunal and the impartiality of the judges. A judge is presumed to be impartial until proven otherwise[1]. This is a subjective test: impartiality relates to the judge’s personal qualities, his intellectual and moral integrity. A judge is bound only by his conscience and the law. That does not mean that he rules on cases subjectively, but rather according to what he deems to be the correct interpretation of the law, ensuring for an unbiased and knowledgeable observer that his objectivity does not give the impression that he his impartial, even though, in fact, he is. Moreover, before taking up his duties, each judge makes a solemn declaration obliging him to perform his duties and exercise his powers as a judge “honourably, faithfully, impartially and conscientiously.”[2] The independence of the Tribunal is measured by an objective test: as a judicial organ with jurisdiction, as established by Security Council resolution 955, it is entirely independent of the organs of the United Nations.

67.     The right of an accused to a fair trial implies the principle of equality of arms between the Prosecution and the Defence[1]. The Appeals Chamber finds that the Trial Chamber rightly held that:

“The notion of equality of arms is laid down in Article 20 of the Statute. Specifically, Article 20(2) states, “… the accused shall be entitled to a fair and public hearing… Article 20(4) also provides, “…the accused shall be entitled to the following minimum guarantees, in full equality…,” then follows a series of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence.”[2]

[…]

69.     The Appeals Chamber observes in this regard that equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources[3]. In deciding on the scope of the principle of equality of arms, ICTY Appeals Chamber in Tadić held that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”[4].

[…]

73.     The Appeals Chamber concurs with ICTY Appeals Chamber's position expressed in Tadić, that the principle of equality of arms does not apply to “conditions, outside the control of a court”,[5] that prevented a party from securing the attendance of certain witnesses. […]

106.    The Appeals Chamber considers that the defence of alibi implies that the person who raises it should establish before the Trial Chamber that objectively he was not in a position to commit the crime, particularly because he was in a place different from the one at which it was committed.  Rule 67 (A) (ii) of the Rules, same as the corresponding provision in ICTY Rules, covers the “Defence of alibi”. However, an alibi is based on evidence which the Accused intends to rely upon for an in-depth analysis of the Prosecution’s case in order to show that the Prosecution has failed to discharged the burden of proof that rests on it.  Now, since the Prosecution cannot anticipate the argument the Defence will raise, it is incumbent on the Defence to give the Prosecution notice of such argument. But this does not constitute an actual “defence”.  As ICTY Appeals Chamber pointed out in Čelebići:

“It is a common misuse of the word to describe an alibi as a “defence”.  If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged.  That is not a defence in its true sense at all.  By raising that issue, the defendant does not more that require the Prosecution to eliminate the reasonable possibility that the alibi is true”.[1]  (Emphasis added)

107.    The Appeals Chamber stresses that this position was followed recently in the Foca case, where ICTY Trial Chamber held that

“The Prosecution bore the onus of establishing the facts alleged in the Indictment.  Having raised the issue of alibi, the accused bore no onus in establishing that alibi.  It was for the Prosecution to establish that, despite the evidence of the alibi, the facts alleged in the Indictment were nevertheless true”.[2]]

          The Appeals Chamber recalls that in conformity with the principle of presumption of innocence, as enunciated in the Judgement,[3] supra, it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt.

108.    […] [T]he Appeals Chamber recalls that in a criminal case, the accused’s role at the level of preparation of the case should not be confused with his role at the trial stage before the Trial Chamber.

109.    Indeed, the Appeals Chamber notes that Rule 67 (A) (ii) of the Rules of Procedure and Evidence provides that when the Defence intends to enter the defence of alibi, in addition to the duty to notify the Prosecutor thereof, the accused must also provide the evidence upon which he intends to rely to establish his alibi.[4] This rule, which applies at the level of case-preparation, only governs the reciprocal disclosure of evidence.

110.    The Appeals Chamber is therefore of the opinion that this provision places no onus of proof on the Defence, in that it does not require the Defence to prove the existence of the facts, but rather provides for disclosure of evidence in support of the alibi.  Thus, as reflected in Rule 67 referred to above, the Defence is required to disclose to the Prosecutor the place or places at which the accused claims to have been present at the time of the alleged crimes and, if it so desires, produce probative evidence tending to show that since the accused was at a particular location at a specific time, there was cause for reasonable doubt as to his presence at the scene of the crime at the alleged time.  The accused is therefore at liberty to provide the Prosecution with such evidence as may establish the credibility of the alibi raised.

111.    Consequently, it is the opinion of the Appeals Chamber that 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.

112.    […] The Appeals Chamber is aware of the fact that failure to prove an alibi must not be construed as an indication of the Accused’s guilt.[5] However, the Chamber affirms that the issue of disclosure of evidence falls within the preparation of the case and precedes the production of evidence at trial. If the Defence is not in a position to produce evidence of the accused’s whereabouts, it is, nevertheless, at liberty to disclose to the Prosecutor, and then produce before the Trial Chamber, all evidentiary material likely to raise doubts as to the accused’s responsibility for the crimes charged.  Accordingly, the Appeals Chamber holds that this cannot be considered as shifting the burden of proof at the trial.

113.    The Appeals Chamber recalls that at the trial stage, the Trial Chamber limited itself to assessing the evidence presented by the parties.  The Prosecutor must always prove the existence of the facts charged as well as the accused’s responsibility therefor.  The Defence, for its part, must produce evidence before the Chamber in support of its claims that the crimes charged cannot be imputed to the accused because of his alibi.  However, in that case, the burden of proof is not shouldered by the Defence. It is merely required to produce evidence likely to raise reasonable doubt regarding the case of the Prosecution.

138.    […] [The Trial Chamber] further opined (and the Appeals Chamber agrees) that even though a genocidal plan is not a constituent element of the crime of genocide, the existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide.[1]

163.    The Appeals Chamber notes that a “persistent pattern of conduct” is not a legal ingredient of the crime of genocide as defined in Article 2 of the Statute […].