9. […] The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155) sets out the time-limits for the filing of documents (responses and replies) before the Appeals Chamber. Where a party cannot, or does not, file its document before the expiry of the time-limit, then the filing should be accompanied by an application for an extension of time, setting out the reasons why the party filing the document could not adhere to the prescribed time-limit. If the Appeals Chamber accepts the reasons set out therein, then the Chamber will take account of the information contained within the document. If the document is filed beyond the expiry of the time-limit, and unaccompanied by an application for an extension of time, the Appeals Chamber is not required to either accept the filing or place any reliance upon it.

10. Where a document is filed after the expiry of the time-limit, without application for an extension of time, it does not follow that it will be automatically rejected. The Appeals Chamber may exercise its discretion to accept the document where the information contained therein is of particular importance or significance. Parties filing a late document must not, however, presume that their document will meet this standard. To avoid any risk of a late document not being accepted by the Appeals Chamber, an application for an extension of time should always be filed.

15. [...] The “code of conduct” referred to in the Rules is the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal (IT/125), of which, Article 5 provides that “in providing representation to a Client, Counsel must...act with competence, skill, care, honesty and loyalty”. Article 6 provides “Counsel must represent a Client diligently in order to protect the Client’s best interests”. Consequently, defence counsel is under a duty, when representing an accused, to act with competence, skill and diligence when investigating a potential defence on behalf of an accused. The duty also applies when gathering and presenting evidence before the Tribunal. The counsel would not be required to do everything conceivably possible in performing these tasks, but would be expected to act with reasonable diligence in discharging the duty. 

28. As to the requirement that the evidence be credible, minor inconsistencies between the statements of the proposed witnesses will not render them incredible, as is suggested by the Prosecution in its response. What is important in deciding if a piece of evidence is credible is that it appears to be reasonably capable of belief or reliance.

783. Neither the Statute nor the Rules of this Tribunal expressly provide that an inference can be drawn from the failure of an accused to give evidence.  At the same time, neither do they state that silence should not “be a consideration in the determination of guilt or innocence”.[1]  Should it have been intended that such adverse consequences could result, the Appeals Chamber concludes that an express provision and warning would have been required under the Statute, setting out the appropriate safeguards.  Therefore, it finds that an absolute prohibition against consideration of silence in the determination of guilt or innocence is guaranteed within the Statute and the Rules, reflecting what is now expressly stated in the Rome Statute.  Similarly, this absolute prohibition must extend to an inference being drawn in the determination of sentence.  The Trial Chamber would have committed an error should it be shown that it relied on Mucić’s failure to give oral testimony as an aggravating factor in determining his sentence.[2]

See also paragraphs 781-782.

24. [T]his Tribunal is an autonomous international judicial body, and although the ICJ is the “principal judicial organ”[1] within the United Nations system to which the Tribunal belongs, there is no hierarchical relationship between the two courts. Although the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion.

428. If […] a decision is reached to cumulatively convict for the same conduct, a Trial Chamber must consider the impact that this will have on sentencing.  In the past, before both this Tribunal and the ICTR, convictions for multiple offences have resulted in the imposition of distinct terms of imprisonment, ordered to run concurrently.[1]

429. It is within a Trial Chamber’s discretion to impose sentences which are either global, concurrent or consecutive, or a mixture of concurrent and consecutive.[2]  In terms of the final sentence imposed, however, the governing criteria is that it should reflect the totality of the culpable conduct (the 'totality’ principle),[3] or generally, that it should reflect the gravity of the offences and the culpability of the offender so that it is both just and appropriate.

430. Therefore, the overarching goal in sentencing must be to ensure that the final or aggregate sentence reflects the totality of the criminal conduct and overall culpability of the offender.  This can be achieved through either the imposition of one sentence in respect of all offences, or several sentences ordered to run concurrently, consecutively or both.  The decision as to how this should be achieved lies within the discretion of the Trial Chamber.

582. [I]f the defendant raises the issue of lack of mental capacity, he is challenging the presumption of sanity by a plea of insanity.  That is a defence in the true sense, in that the defendant bears the onus of establishing it – that, more probably than not, at the time of the offence he was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of his act or, if he did know it, that he did not know that what he was doing was wrong.[1]  Such a plea, if successful, is a complete defence to a charge and it leads to an acquittal.  It is submitted by Landžo that Rule 67(A)(ii) has also made diminished mental responsibility a complete defence to any charge (or has perhaps recognised it as such),[2] an argument which the Trial Chamber had accepted.[3]

The Appeals Chamber examined in paragraphs 583, 585-588 the ICTY Statute and Rules of Procedure and Evidence, the English Homicide Act of 1957, the partial defence of diminished responsibility that originated in Scotland in the 19th century, Article 31(1)(a) of the ICC Statute, and the relevant penal laws in many other countries.

590. […] The Appeals Chamber accepts that the relevant general principle of law upon which, in effect, both the common law and the civil law systems have acted is that the defendant’s diminished mental responsibility is relevant to the sentence to be imposed and is not a defence leading to an acquittal in the true sense.  This is the appropriate general legal principle representing the international law to be applied in the Tribunal.  Rule 67(A)(ii)(b) must therefore be interpreted as referring to diminished mental responsibility where it is to be raised by the defendant as a matter in mitigation of sentence.  As a defendant bears the onus of establishing matters in mitigation of sentence, where he relies upon diminished mental responsibility in mitigation, he must establish that condition on the balance of probabilities – that more probably than not such a condition existed at the relevant time.

538. […] The Appeals Chamber recalls that reference to principles applied in national jurisdictions can be of assistance to both Trial Chambers and the Appeals Chamber in interpreting provisions of the Statute and the Rules.[1]  However, Rule 89(A) of the Rules expressly provides that the Chambers “shall not be bound by national rules of evidence.”  What is of primary importance is that a Trial Chamber “apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”[2]  The Appeals Chamber notes that the Trial Chamber found that implicit in this principle was “the application of national rules of evidence by the Trial Chamber.”[3]  On the contrary, the Appeals Chamber confirms that rules of evidence as expressly provided in the Rules should be primarily applied, with the assistance of national principles only if necessary for guidance in the interpretation of these Rules.

113. In light of the object and purpose of the Geneva Conventions, which is to guarantee the protection of certain fundamental values common to mankind in times of armed conflict, and of the customary nature of their provisions,[1] the Appeals Chamber is in no doubt that State succession has no impact on obligations arising out from these fundamental humanitarian conventions.  In this regard, reference should be made to the Secretary-General’s Report submitted at the time of the establishment of the Tribunal, which specifically lists the Geneva Conventions among the international humanitarian instruments which are “beyond any doubt part of customary law so that the problem of adherence of some but not all States to specific conventions does not arise”.[2]  The Appeals Chamber finds further support for this position in the Tadić Jurisdiction Decision.[3]

47. The Trial Chamber’s finding is also consistent with the holding of the Appeals Chamber in Tadić that “[w]here the controlling State in question is an adjacent State with territorial ambitions on the State where the conflict is taking place, and the controlling State is attempting to achieve its territorial enlargement through the armed forces which it controls, it may be easier to establish the threshold”.[1]  The “overall control” test could thus be fulfilled even if the armed forces acting on behalf of the “controlling State” had autonomous choices of means and tactics although participating in a common strategy along with the “controlling State”.