88. An indictment shall, pursuant to Article 18(4) of the Statute, contain “a concise statement of the facts and the crime or crimes with which the accused is charged”.  Similarly, Rule 47(C) of the Rules provides that an indictment, apart from the name and particulars of the suspect, shall set forth “a concise statement of the facts of the case”.  The Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and (4)(a) and (b) of the Statute.  These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.  In the jurisprudence of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.[1]  Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

25. The Appeals Chamber begins with the proposition that a party always has a right to be heard on its motion.  But the hearing need not always be oral.  In this regard, there is no provision in the Rules which provides for a right of a party to make oral submissions in connection with a written motion.  Similarly, the practice of the Tribunal allows for a decision on a written motion without any supplementary oral arguments, the motion itself being regarded as affording to the moving party a sufficient right to be heard. […]

36. [T]he notion of proof of guilt beyond reasonable doubt must be retained in the operation of Rule 98bis(B). This was recognised by Trial Chamber II’s decision in Kunarac.  The test applied in that case was correctly stated to be “whether there is evidence (if accepted) upon which a reasonable tribunal of fact could convict - that is to say, evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question. If the evidence does not reach that standard, then the evidence is, to use the words of Rule 98bis(B), ‘insufficient to sustain a conviction’”.[1] […]

37. The next question is how should the test of guilt beyond reasonable doubt be applied in this situation. The Appeals Chamber considers that the reference in Rule 98bis to a situation in which “the evidence is insufficient to sustain a conviction” means a case in which, in the opinion of the Trial Chamber, the prosecution evidence, if believed,[2] is insufficient for any reasonable trier of fact to find that guilt has been proved beyond reasonable doubt. In this respect, the Appeals Chamber follows its recent holding in the Delalić appeal judgement, where it said: “[t]he test applied is whether there is evidence (if accepted) upon which a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”.[3] The capacity[4] of the prosecution evidence (if accepted) to sustain a conviction beyond reasonable doubt by a reasonable trier of fact is the key concept; thus the test is not whether the trier would in fact arrive at a conviction beyond reasonable doubt on the prosecution evidence (if accepted) but whether it could.  At the close of the case for the prosecution, the Chamber may find that the prosecution evidence is sufficient to sustain a conviction beyond reasonable doubt and yet, even if no defence evidence is subsequently adduced, proceed to acquit at the end of the trial, if in its own view of the evidence, the prosecution has not in fact proved guilt beyond reasonable doubt.

See also paras. 33–35, 68.

Following its finding that the Trial Chamber’s acquittal for genocide did not meet the standard set forth in Rule 98bis(B), the Appeals Chamber used its discretion pursuant to Rule 117(C) of the Rules to order that there be no retrial on the one count of genocide:

73. […] [T]his discretion is recognised as well in the wording of Rule 117(C) of the Rules which provides that in “appropriate circumstances the Appeals Chamber may order that the accused be retried according to law”.[1] Similarly, national case law gives discretion to a court to rule that there should be no retrial.[2] The discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest.  These factors (and others) would be determined on a case by case basis. […]

The Trial Chamber convicted Jelisić of counts alleging violations of the laws or customs of war and crimes against humanity, to which he pleaded guilty. After the Prosecution presented its case on the remaining count of genocide, the Trial Chamber acquitted him pursuant to Rule 98bis(B) of the Rules. See paras. 1–5. Jelisić asserts that the sentence he received for the counts to which he pleaded guilty erroneously took into account the Prosecution’s evidence given at the trial for genocide. See para. 85. The Appeals Chamber held: 

87. The Appeals Chamber opines that in imposing sentence it was open to the Trial Chamber to take into account evidence presented during the genocide trial, insofar as that evidence was presented to demonstrate facts or conduct to which the cross-appellant had pleaded guilty.  The important point is that in considering evidence for the purpose of sentencing, the Trial Chamber should afford the cross-appellant an opportunity to test the evidence in cross-examination and/or by way of evidence adduced by the cross-appellant himself. 

114. Two sub-issues are involved. First, does [Article 24(1) of the Statute] require a Trial Chamber to have recourse to the general practice regarding prison sentences of the courts in entities emerging from the dissolution of the former Yugoslavia?  It appears to the Appeals Chamber that the answer is no, because courts in entities emerging from the dissolution of the former Yugoslavia are not “courts of the former Yugoslavia” within the meaning of Article 24(1) of the Statute.

115. The second sub-issue is whether paragraph 1 of Article 24 of the Statute requires the Trial Chamber to consider the position in each of the constituent republics of the former Yugoslavia.  As has been seen, that provision provides that “the Trial Chambers shall have regard to the general practice regarding prison sentences in the courts of the former Yugoslavia”.[1]  The state representing the former Yugoslavia was the Socialist Federal Republic of Yugoslavia (“the SFRY”).  The courts of the former Yugoslavia were bound by the law of the SFRY.  In the Delalić appeal judgement, it was to that law that the Appeals Chamber looked.[2]

116. No doubt, the Tribunal may be informed in an appropriate case by the sentencing practices of the courts of one or more of the constituent republics of the former Yugoslavia where it has reason to believe that such specific consideration would aid it in appreciating “the general practice [...] in the courts of the former Yugoslavia”. The latter phrase is obviously to be taken as a whole; individual divergences from the norm in particular republics do not show the “general practice”.  There was no reason in this case to undertake a full-scale consideration of the position in each of the several republics which constituted the former Yugoslavia.

117. In passing, the Appeals Chamber notes that, in keeping with the settled jurisprudence, the cross-appellant correctly recognised that “general practice” provides general guidance and does not bind a Trial Chamber to act exactly as a court of the former Yugoslavia would. […]

178.    With respect to errors of fact, the Appeals Chamber confirms that the standard to be applied is the standard of reasonableness of the impugned finding, it being understood that “it is not any and every error of fact which will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but one which has led to a miscarriage of justice.”[1] The onus is therefore on the Appellant to show that an error was committed by the Chamber, which error occasioned a miscarriage of justice. ICTY Appeals Chamber has, on several occasions, applied this standard which can be summed up as follows:

[..].  The test to be applied in relation to the issue as to whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached.  If an appellant is not able to establish that the Trial Chamber’s conclusion of guilt beyond reasonable doubt was one which no reasonable tribunal of fact could have reached, it follows that there must have been evidence upon which such a tribunal could have been satisfied beyond reasonable doubt of that guilt.  Under those circumstances, the latter test of legal sufficiency is therefore redundant, and the appeal must be dismissed.  Similarly, 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, the appeal against conviction must be allowed and a Judgment of acquittal entered.  In such a situation it is unnecessary for an appellate court to determine whether  there was evidence (if accepted) upon which  such a tribunal could have reached such a conclusion.[2]

[…]

232.    […] [T]he Appeals Chamber recalls that appellate proceedings are not intended as a trial de novo.  In this case, the Appeals Chamber is guided by the following standard: “The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber. […] It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber”.[3]

323.    The Appeals Chamber recalls that the Rules of the Tribunal have never contained any specific provision on the issue of leading questions. However, they do lay down general rules on examination and cross-examination of witnesses,[1]  which appear to be patterned on the United States Federal Rules of Evidence.[2]  True, under this system, leading questions are allowed and used during cross-examination whereas they are not permitted during examination-in-chief. Still in the opinion of the Appeals Chamber, the Rules take on a life of their own upon adoption.  Interpretation of the provisions thereof may be guided by the domestic system it is patterned after, but under no circumstance can it be subordinated to it.[3]

443.    The Appeals Chamber is of the view that the minimum protection provided for victims under common Article 3 [of the Geneva Conventions of 1949] implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.

444.    In paragraph 630 of the Judgment, the Trial Chamber found that the four Conventions “were adopted primarily to protect the victims as well as potential victims of armed conflicts”.  It went on to hold that “[t]he category of persons to be held accountable in this respect then, would in most cases be limited to commanders, combatants and other members of the armed forces”. Such a finding is prima facie not without reason. In actuality authors of violations of common Article 3 will likely fall into one of these categories. This stems from the fact that common Article 3 requires a close nexus between violations and the armed conflict.  This nexus between violations and the armed conflict implies that, in most cases, the perpetrator of the crime will probably have a special relationship with one party to the conflict.  However, such a special relationship is not a condition precedent to the application of common Article 3 and, hence of Article 4 of the Statute. In the opinion of the Appeals Chamber, the Trial Chamber erred in requiring that a special relationship should be a separate condition for triggering criminal responsibility for a violation of Article 4 of the Statute.

See also paras 435-442.

477.    Article 6(1) of the Statute both texts of which are authoritative, provides that:

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.[1]

478.    There is a glaring disparity between the English text and the French text: indeed, the English word “instigated” is translated into French as “incité”. That said, the Appeals Chamber is of the opinion that linguistically the two terms are synonymous. The Appeals Chamber points out in particular that neither text contains any suggestion or recommendation that incitement must be direct and public. Consequently, by interpreting this provision “in accordance with [its] ordinary meaning”,[2] the Appeals Chamber holds that, although instigation may, in certain circumstances, be direct and public, this does not, however, constitute a requirement. Nothing in Article 6 (1) suggests that there is such a requirement. The Appeals Chamber concurs with the Prosecution’s argument that “[…] [i]f the drafters of the Statute had wished to similarly confine instigation’ to situations where it was public and direct’, it would be reasonable to expect that they would have specifically required it”.[3] It goes without saying that “[a] special meaning shall be given to a term if it is established that the parties so intended”.[4] Such an intent has not been established.

479.    Furthermore, the Appeals Chamber is of the view that this interpretation is supported by Article 2(3)(c) of the Statute, where the Security Council specifically chose the same wording as that of the corresponding provision of the Convention on Genocide.[5] Article 2(3)(c) reads:

The following acts shall be punishable:

[…]

(c) Direct and public incitement to commit genocide.[6]

480.    With respect specifically to incitement to commit the crime of genocide, the Statute makes clear that the act must be direct and public, which plainly excludes any other form of incitement to commit genocide, including private incitement to commit genocide. Such additional element is not included in the text of Article 6(1) of the Statute.  The Appeals Chamber is of the opinion that if such a requirement were to be included also in Article 6(1) of the Statute, then the specification contained in Article 2(3)(c) of the Statute would be superfluous.[7]

481.    In this connection, it would be erroneous to superimpose this wording on the (discrete) wording of Article 6(1) of the Statute, so as to import into the latter language to the effect that Article 2(3)(c) of the Statute provides explicitly that incitement to commit genocide must be public.  As stated above, this would run counter to the well-established rules of interpretation under, which, in general, disparities in meaning are seen as tantamount to disparities in language.

482.    Consequently, the Appeals Chamber finds that there is no cause to hold that the Security Council intended Article 6(1) of the Statute to include an additional element (absent from the explicit language of the provision), which would require an interpretation inconsistent with its plain and ordinary meaning.

483.    For the foregoing reasons, having considered this ground of appeal the Appeals Chamber finds that “incitement”, as set out in Article 6(1) of the Statute, need not be “direct and public”.