177.    As stated by ICTY Appeals Chamber, an appeal is not, from the point of view of the Statute, a de novo review.[1] The Appeals Chamber may hear only appeals brought pursuant to Article 24 of the Statute. The standards applied by the Appeals Chamber to pass on both errors of fact and of law are derived from consistent ICTY Appeals Chamber case-law. The Appeals Chamber reiterates and upholds those standards in the instant Judgment.

179.    Where errors of law are concerned, the Appeals Chamber holds that the burden placed on the Appellant is somewhat different, although the Appellant must, similarly, prove the errors of law committed by the Trial Chamber and set forth arguments in support of his allegations:

A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point. The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.[1]

408.    Given the “considerable amount of discretion” vested in the Trial Chamber, the question arises as to what role the Appeals Chamber should play in the consideration of an appeal against sentence, that is in the instant case, the penalty imposed by the Trial Chamber on Akayesu. In this instance, this Appeals Chamber will follow the test which has recently been upheld by ICTY Appeals Chamber as the appropriate test:

The Appeals Chamber reiterates that “the appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.” Appeal proceedings are rather of a corrective nature and, […] they do not amount to a trial de novo

[…].

The test to be applied in relation to the issue as to whether a sentence should be revised is that moist recently confirmed in the Furundzija Appeal Judgment.  Accordingly, as a  general rule,  the Appelas Cahmber will not substitute its sentence for that of a Trial Chamber unless it believes that the Trial Chamber has committed an error in exercising its discretion or has failed to follow applicable law.” The Appeals Chamber will only intervene if it finds that the error was “discernible.”  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence, the Appeals Chamber will not intervene. [1]

409.    Consequently, before the Appeals Chamber is able to revise a sentence or substitute its own sentence for the one imposed by the Trial Chamber, it must be shown that the Trial Chamber ventured outside discretion in imposing sentence.

464.    In the opinion of the Appeals Chamber, except in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient for all crimes against humanity[1]. To that extent, the Appeals Chamber endorses the general conclusion and review contained in Tadic, as discussed above.[2]  However, though such is not a requirement for the crime per se, all crimes against humanity, may, in actuality, be committed in the context of a discriminatory attack against a civilian population.  As held in Tadic: “[i]t is true that in most cases, crimes against humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons”.[3]  It is within this context, and in light of the nature of the events in Rwanda (where a civilian population was actually the target of a discriminatory attack), that the Security Council decided to limit the jurisdiction of the Tribunal over crimes against humanity solely to cases where they were committed on discriminatory grounds.  This is to say that the Security Council intended thereby that the Tribunal should not prosecute perpetrators of other possible crimes against humanity.

465.    The Appeals Chamber found that in doing so, the Security Council did not depart from international humanitarian law[4] nor did it change the legal ingredients required under international humanitarian law with respect to crimes against humanity. It limited at the very most the jurisdiction of the Tribunal to a sub-group of such crimes, which in actuality may be committed in a particular situation.  By the same token, the Appeals Chamber notes that ICTY Statute contains in its Article 5 explicitly an express requirement for a nexus with an armed conflict. As held in Tadic, this “creates a narrower sphere of operation than that provided for crimes against humanity under customary international law”.[5]  Here again, by limiting the scope of the article, the Security Council did not, however, intend that the definition contained in ICTY Statute should constitute a departure from customary international law.  In the case at bench, the Tribunal was conferred jurisdiction over crimes against humanity (as they are known in customary international law), but solely “when committed as part of a widespread or systematic attack against any civilian population” on certain discriminatory grounds; the crime in question is the one that falls within such a scope.  Indeed, this narrows the scope of the jurisdiction, which introduces no additional element in the legal ingredients of the crime as these are known in customary international law.

466.    Consequently, apart from this restriction of jurisdiction, such crimes continue to be governed in the usual manner by customary international law, namely that discrimination is not a requirement for the various crimes against humanity, except where persecution is concerned.

467.    The meaning to be collected from Article 3 of the Statute is that even if the accused did not have a discriminatory intent when he committed the act charged against a particular victim, he nevertheless knew that his act could further a discriminatory attack against a civilian population; the attack could even be perpetrated by other persons and the accused could even object to it.  As a result, where it is shown that the accused had knowledge of such objective nexus, the Prosecutor is under no obligation to go forward with a showing that the crime charged was committed against a particular victim with a discriminatory intent. In this connection, the only known exception in customary international law relates to cases of persecutions.

468.    In light of this interpretation and the finding that persecution is the only crime which requires a discriminatory intent, the Appeals Chamber is of the view that any interpretation of the chapeau of Article 3 of the Statute such as would add a requirement for a showing of a discriminatory intent with respect to all crimes against humanity would likely render redundant the express if more succinct reference to discrimination – contained in Article 3 of the Statute (Persecutions), which reference is understood as a requirement of a discriminatory intent.[6]  As is known, one of the basic rules of interpretation requires that a provision or part thereof should not be interpreted in a manner to render it redundant or bereft of any object, unless such a conclusion is inevitable.  One must proceed from the assumption that the lawmakers intended to give some effect to each of the words used.

469.    For the foregoing reasons, the Appeals Chamber considers the present ground of appeal and finds that:

(1)         Article 3 of the Statute does no require that all crimes against humanity enumerated therein be committed with a discriminatory intent.

(2)         Article 3 restricts the jurisdiction of the Tribunal to crimes against humanity committed in a specific situation, that is, “as part of a widespread or systematic attack against any civilian population” on discriminatory grounds.

27. Subject to the limitations imposed by Rule 115, the Appeals Chamber may, in the same way as a Trial Chamber, admit evidence which is relevant and probative of the issues which it has to determine.[1]  Rule 115, however, limits the admissibility of such evidence in the Appeals Chamber where it relates to an issue or a fact litigated in the trial, and where it is additional to the evidence presented at the trial.  The Appeals Chamber will admit such additional evidence upon application by the party seeking to tender it where it was not available to that party at the trial by the exercise of reasonable diligence, and where the Appeals Chamber considers that the interests of justice require its admission in the appeal.  It is in the interests of justice to admit such evidence where it is relevant to a material issue, it is credible, and it is such that it would probably show that the conviction or sentence was unsafe (in the sense that, had the Trial Chamber had such evidence before it, it would probably have come to a different result).  The Appeals Chamber also has the inherent power to admit such evidence even when it was available at trial where its exclusion would lead to a miscarriage of justice.  The party seeking the admission of additional evidence carries the burden of persuasion in relation to these matters.[2]

55. There has been some debate concerning the procedure laid down by Rule 77(F)[1] under which it is for a Chamber, proprio motu, to initiate the proceedings whereby a person is called upon to answer the allegations against him when the Chamber has reason to believe he may be in contempt.  This is in contrast with the procedure laid down by Rule 91[2], whereby a Chamber may direct the Prosecutor to investigate whether a witness has knowingly and wilfully given false testimony, with a view to the preparation and submission of an indictment for false testimony.  The suggestion has been made that it should be for the Prosecutor to initiate proceedings for contempt by way of indictment or, where the alleged contemnor is associated with the prosecution, for an amicus curiae appointed by a Chamber to do so.

56. It is not the intention of the Appeals Chamber to enter this debate, but its existence underlines the danger of a Chamber being both the prosecutor and the judge in relation to a charge of contempt, and the possibility in such a case that the ordinary procedures and protections for the parties are overlooked. […] It is therefore essential that, where a Chamber initiates proceedings for contempt itself, it formulates at an early stage the nature of the charge with the precision expected of an indictment, and that it gives the parties the opportunity to debate what is required to be proved. It is only in this way that the alleged contemnor can be afforded a fair trial.[3]

48. Where a Trial Chamber has not made a particular finding, the party seeking to have the Appeals Chamber make that finding for itself must demonstrate that such a finding is the only reasonable conclusion available.[1] […]

The Appeals Chamber cited the consideration in paragraph 24 of the ^elebi}i Appeal Judgement of whether the International Tribunal should follow a decision issued by the International Court of Justice on a question of law (para. 16). It determined that there was no reason to depart from these conclusions. It further held:

17. […] No legal basis exists for suggesting that the International Tribunal must defer to the International Court of Justice such that the former would be legally bound by decisions of the latter.

18. Nonetheless, decisions of the International Court of Justice addressing general questions of international law are of the utmost significance and the International Tribunal will consider such decisions, giving due weight to their authority. However, the International Tribunal has its own competence. Thus, the International Tribunal would consider any decisions of the International Court of Justice, subject to its competence to make its own findings. As a result the International Tribunal may arrive at different conclusions, and differences in holdings may occur. This does not justify suspension of the present proceedings until the International Court of Justice has decided any matters pending before that Court.

22. Finally, the Appeals Chamber considers that it is not necessary for it to await the rendering of an advisory opinion by the International Court of Justice or the issuing of a decision by the General Assembly of the United Nations before it decides on any legal or factual questions, even if these happen to be the same as questions raised in any pending case before the International Court of Justice. 

6. […] The Rules are silent on this point of whether a judgement of a Trial Chamber can amount to either “adjudicated facts” or “documentary evidence” within the province of Rule 94(B).[1] The Appeals Chamber notes that the judgement in Prosecutor v. Kordić and Cerkez is currently being appealed by both the accused and the Prosecution. Since the Appeals Chamber may in the course of that appeal revise the findings of the Trial Chamber, the Appeals Chamber thinks it unwise to assume that the facts contained in the Trial Chamber’s judgement are “adjudicated”. Only facts in a judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed “adjudicated facts” within the meaning of Rule 94(B). As to Rule 94(B)’s authorisation for judicial notice of “documentary evidence” in a different set of proceedings, the Appeals Chamber believes this Rule envisioned permitting a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement.

12. […] The Appeals Chamber considers that a vague and generalised request to take notice of an entire judgement is insufficient to invoke Rule 94(B). A request must specifically point out the paragraph(s) or parts of the judgement of which it wishes judicial notice to be taken, and refer to facts, as found by the Trial Chamber. Equally, as expressed earlier with regard to the Second Josipovi} Request, an entire judgement may not be the object of judicial notice.

6. [...] The admission of evidence is in the “interests of justice” if it is relevant to a material issue, if it is credible and it is such that it would probably show that the conviction or sentence was unsafe. The Appeals Chamber has interpreted this latter criterion to mean that had the Trial Chamber had such evidence before it, it probably would have come to a different result. This is the standard we have applied in our earlier decisions and which we will apply in this case.[1]

8. The Appeals Chamber further notes that Rule 115(B)’s insistence that admission of new material be “in the interests of justice” is one that the Appeals Chamber should apply at a relatively early stage of the Appeal, that is before all the briefs have been received and argument taken place. That means in practical terms that the Appeals Chamber must give its best judgement as to the importance of the new material in light of its familiarity with the trial record at that time. This means that even after a finding that the material has satisfied the requirements of Rule 115(B) the Chamber on further consideration and in the light of briefs and arguments may decide that indeed it is not so important that it would have changed the result and requires the overturning of the verdict or the alteration of a sentence. This of course is why the word “probably” is used in defining the test of Rule 115(B). This cautionary note is included because in argument it seemed to the Appeals Chamber that some counsel assumed that because we had already stated that the new material met the “interests of justice” test, it would ensure a reversal of the verdict, if admitted. That is not true. New material will be considered alongside the material already in the trial record to see if the Trial Chamber’s judgement is sustainable by the newly enlarged record on appeal and the usual deference will be given to a Trial Chamber’s findings of fact insofar as they were based on the material before the court at the time. The job of the Appeals Chamber is thus to decide in a simulation of sorts: given the findings of the trial court made on the evidence before it (and assuming that they pass muster for if they do not the case must be reversed or sent back in any case, regardless of the new evidence) would the Trial Chamber have probably come to a different conclusion if this new evidence had been before it.