238. […] A showing that a superior had some general information in his possession, which would put him on notice of possible unlawful acts by his subordinates would be sufficient to prove that he “had reason to know”. The ICRC Commentary (Additional Protocol I) refers to “reports addressed to (the superior), […] the tactical situation, the level of training and instruction of subordinate officers and their troops, and their character traits” as potentially constituting the information referred to in Article 86(2) of Additional Protocol I.[1] As to the form of the information available to him, it may be written or oral, and does not need to have the form of specific reports submitted pursuant to a monitoring system. This information does not need to provide specific information about unlawful acts committed or about to be committed. For instance, a military commander who has received information that some of the soldiers under his command have a violent or unstable character, or have been drinking prior to being sent on a mission, may be considered as having the required knowledge.

239. Finally, the relevant information only needs to have been provided or available to the superior, or in the Trial Chamber’s words, “in the possession of”.  It is not required that he actually acquainted himself with the information. In the Appeals Chamber’s view, an assessment of the mental element required by Article 7(3) of the Statute should be conducted in the specific circumstances of each case, taking into account the specific situation of the superior concerned at the time in question. Thus, as correctly held by the Trial Chamber,[2] as the element of knowledge has to be proved in this type of cases, command responsibility is not a form of strict liability. A superior may only be held liable for the acts of his subordinates if it is shown that he “knew or had reason to know” about them.  The Appeals Chamber would not describe superior responsibility as a vicarious liability doctrine, insofar as vicarious liability may suggest a form of strict imputed liability.

See also paragraphs 225-237.

320.    The offence of unlawful confinement of a civilian, a grave breach of the Geneva Conventions which is recognised under Article 2(g) of the Statute of the Tribunal, is not further defined in the Statute.  As found by the Trial Chamber, however, clear guidance can be found in the provisions of Geneva Convention IV.  The Trial Chamber found that the confinement of civilians during armed conflict may be permissible in limited cases, but will be unlawful if the detaining party does not comply with the provisions of Article 42 of Geneva Convention IV, which states:

The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be.

Thus the involuntary confinement of a civilian where the security of the Detaining Power does not make this absolutely necessary will be unlawful.  Further, an initially lawful internment clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[1]  That article provides:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.  If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. 

Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or have been released from internment or assigned residence.  The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.

321.    In its consideration of the law relating to the offence of unlawful confinement, the Trial Chamber also referred to Article 5 of Geneva Convention IV, which imposes certain restrictions on the protections which may be enjoyed by certain individuals under the Convention.[2]  It provides, in relevant part:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

[…]

In each case, such persons shall nevertheless be treated with humanity, and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention.  They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.[3]

This provision reinforces the principle behind Article 42, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk. 

322.    The Appeals Chamber agrees with the Trial Chamber that the exceptional measure of confinement of a civilian will be lawful only in the conditions prescribed by Article 42, and where the provisions of Article 43 are complied with.[4]  Thus the detention or confinement of civilians will be unlawful in the following two circumstances:

(i)       when a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, ie they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii)       where the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.

See also paragraphs 327, 329.

150. It is both legally and morally untenable that the rules contained in common Article 3, which constitute mandatory minimum rules applicable to internal conflicts, in which rules are less developed than in respect of international conflicts, would not be applicable to conflicts of an international character. The rules of common Article 3 are encompassed and further developed in the body of rules applicable to international conflicts. It is logical that this minimum be applicable to international conflicts as the substance of these core rules is identical. In the Appeals Chamber’s view, something which is prohibited in internal conflicts is necessarily outlawed in an international conflict where the scope of the rules is broader. The Appeals Chamber is thus not convinced by the arguments raised by the appellants and finds no cogent reasons to depart from its previous conclusions.

See also paragraphs 143-149.

CONSIDERING that […] in principle, Counsel must organise his commitments in such a way that he is able to meet deadlines […]

CONSIDERING that, in general, the Appeals Chamber need not take into account Counsel’s commitments when setting deadlines […]

CONSIDERING […] that the Appeals Chamber maintains an inherent power to admit […] evidence even if it was available at trial, in cases in which its exclusion would lead to a miscarriage of justice;

CONSIDERING that the Appeals Chamber may review a sentence handed down by a Trial Chamber where that Trial Chamber has erred in the exercise of the discretion conferred upon it with respect to sentencing by the Statute of the International Tribunal and the Rules;

33. With respect to the right to choose one’s counsel, the Appellant argues that he ought to have had the right to choose his counsel and that the violation of this right was a violation of his right to a fair trial[1]. The Appeals Chamber refers on this point to the reasoning of Trial Chamber I in the Ntakirutimana case[2] and concludes, in the light of a textual and systematic interpretation of the provisions of the Statute and the Rules[3], read in conjunction with relevant decisions from the Human Rights Committee[4] and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms,[5] that the right to free legal assistance by counsel does not confer the right to choose one’s counsel.

75. The Appeals Chamber agrees with the parties that the standard for determining whether a guilty plea is informed is that articulated by Judges McDonald and Vohrah in Erdemović such that the accused must understand the nature of a guilty plea and the consequences of pleading guilty in general, the nature of the charges against him, and the distinction between any alternative charges and the consequences of pleading guilty to one rather than the other.[1]

97. The Appeals Chamber notes that Rule 111 expressly states that “[a]n Appellant’s brief shall contain all the argument and authorities.”[1] Although Rule 114 provides that “the Appeals Chamber may rule on… appeals based solely on the briefs of the parties”,[2] it also states that it can decide to hear the appeal in open court. It is intended that each party should advise the Appeals Chamber in full of all the arguments upon which they it wishes to rely in relation to each ground of appeal, through both written filings and orally.

98. However, in the case of errors of law, the arguments of the parties do not exhaust the subject. It is open to the Appeals Chamber, as the final arbiter of the law of the Tribunal, to find in favour of an Appellant on grounds other than those advanced: jura novit curia. Since the Appeals Chamber is not wholly dependent on the arguments of the parties, it must be open to the Chamber in proper cases to consider an issue raised on appeal even in the absence of substantial argument. The principle that an appealing party should advance arguments in support of his or her claim is therefore not absolute: it cannot be said that a claim automatically fails if no supporting arguments are presented.

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.