20. Rule 89(C) grants the Trial Chambers broad discretion. The bounds of this discretion, however, are suggested by Rule 89(B), which provides that “[i]n cases not otherwise provided for in this Section, a Chamber shall 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.” A Trial Chamber’s exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible.

[…]

22. […] Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable. A starting point is the requirements of these other rules [Rules 71, 71bis, 94bis, 94ter] that expressly allow for departures from the principle of live evidence. Rule 89(C) may indeed permit some relaxation of these requirements, but it would be odd to find that a statement that met none of the requirements of those other rules was nonetheless admissible under Rule 89(C) without any other compensating evidence of reliability.  […]

[…]

24. […] [T]he reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that is not “probative” and is therefore inadmissible.

In paragraphs 74–78 the Appeals Chamber considered the Appellant’s contention “that, by preventing him from introducing the testimony of [two witnesses] when the proceedings were re-opened, the Trial Chamber violated his right, under Article 21(4) of the Statute, to examine, and obtain the attendance of, relevant witnesses on his behalf”. The Appeals Chamber held:

75. Article 21(4)(e) of the Statute grants an accused the right “to obtain the attendance and examination of witnesses on his behalf”.  This right is, for obvious reasons, subject to certain conditions, including a requirement that the evidence should be called at the proper time.[1]  In this regard, the Appeals Chamber observes that the Appellant was obliged, under the applicable rules, to present all available evidence at trial.  However, it should be noted that the proceedings were re-opened due to the exceptional circumstance of the Prosecutor’s late disclosure of material which, in the view of the Trial Chamber, “clearly had the potential to affect the 'credibility of prosecution evidence’”.[2] […] 

At paragraph 78, the Appeals Chamber concluded that “the Trial Chamber did not err when it decided to deny the Appellant the right to call [the witnesses] on the ground that the proposed testimony fell outside the scope of the re-opened proceedings.”

177. The fundamental human right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.  Article 13(1) of the Statute reflects this, by expressly providing that Judges of the International Tribunal “shall be persons of high moral character, impartiality and integrity”.[1]  This fundamental human right is similarly reflected in Article 21 of the Statute, dealing generally with the rights of the accused and the right to a fair trial.[2]  As a result, the Appeals Chamber need look no further than Article 13(1) of the Statute for the source of that requirement.  

Having consulted Article 6 of the European Convention of Human Rights and examined the interpretation by the European Court of Human Rights and national legal systems of the requirement of impartiality [for detailed analysis, see paras. 181-188], the Appeals Chamber proceeded to analyse how this requirement of impartiality should be interpreted and applied by the Appeals Chamber:

189. […] the Appeals Chamber finds that there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias.  On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A.  A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties.  Under these circumstances, a Judge’s disqualification from the case is automatic; or

ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[3]

190.    In terms of the second branch of the second principle, the Appeals Chamber adopts the approach that the “reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.”[4]

191. The Appeals Chamber notes that Rule 15(A) of the Rules provides:

A Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality.  The Judge shall in any such circumstance withdraw, and the President shall assign another Judge to the case. [5]

The Appeals Chamber is of the view that Rule 15(A) of the Rules falls to be interpreted in accordance with the preceding principles.  

The Appeals Chamber also considered

196. In the view of the Appeals Chamber, there is a presumption of impartiality which attaches to a Judge. This presumption has been recognised in the jurisprudence of the International Tribunal,[6] and has also been recognised in municipal law. […]

197. […] [I]n the absence of evidence to the contrary, it must be assumed that the Judges of the International Tribunal “can disabuse their minds of any irrelevant personal beliefs or predispositions.”  It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that Judge Mumba was not impartial in [the Appellant’s] case. There is a high threshold to reach in order to rebut the presumption of impartiality. As has been stated, “disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established.’”[7]

The Appeals Chamber further concluded:

205.    The Appeals Chamber does not consider that a Judge should be disqualified because of qualifications he or she possesses which, by their very nature, play an integral role in satisfying the eligibility requirements.  The possession of [experience in international law, including human rights law,] is a statutory requirement for Judges to be elected to this Tribunal.  It would be an odd result if the operation of an eligibility requirement were to lead to an inference of bias.  Therefore, Article 13(1) should be read to exclude from the category of matters or activities which could indicate bias, experience in the specific areas identified.  In other words, the possession of experience in any of those areas by a Judge cannot, in the absence of the clearest contrary evidence, constitute evidence of bias or partiality.[8]

250. The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given.  A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules.  It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life.[1]  As a result, an individual convicted of a war crime could be sentenced to imprisonment for a term up to and including the remainder of his life, depending on the circumstances.

See also paras 251-252.

The Appeals Chamber proceeded to analyse first whether crimes against humanity attract harsher penalties than war crimes and second whether crimes resulting in loss of life are to be punished more severely than other crimes.                                                        

241. […] the Appellant relies on, inter alia, certain decisions of this Tribunal.[1]  In particular, he draws attention to the judgement of the Appeals Chamber in the Erdemović case in which the majority of the Appeals Chamber found that crimes against humanity should attract a harsher penalty than war crimes.[2]

242. This Chamber notes that, when the Appellant’s Amended Brief was filed on 14 September 1999, the Judgement of the Appeals Chamber in the Tadić Sentencing Appeals Judgement was yet to be delivered.[3]  In this latter case, the Chamber considered the case law now relied upon by the Appellant, but reached a conclusion, by majority, contrary to that which the Appellant now advocates:

[T]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.[4]

243. This Chamber notes that the same arguments now advanced by the Appellant were considered and rejected by the Appeals Chamber in the Tadić Sentencing Appeals Judgement. The question arises whether this Chamber should follow the ratio decidendi on this issue set out in that Judgement.  In the recent Aleksovski Appeals Judgement the Appeals Chamber held that:

[w]here, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from  both decisions for cogent reasons in the interests of justice.[5]

The Appeals Chamber will follow its decision in the Tadić Sentencing Appeals Judgement on the question of relative gravity as between crimes against humanity and war crimes.

The Appeals Chamber also concluded:

246. […] The Appeals Chamber considers [the view that crimes resulting in loss of life are to be punished more severely than those not leading to the loss of life] to be too rigid and mechanistic.

247. Since the Tadić Sentencing Appeals Judgement, the position of the Appeals Chamber has been that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter.  It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes. 

37. As to an allegation that there was an error of fact, this Chamber agrees with the following principle set forth by the Appeals Chamber for the International Criminal Tribunal for Rwanda (“the ICTR”)[1] in Serushago:

Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take account of mitigating circumstances. But the question of whether a Trial Chamber gave due weight to any mitigating circumstance is a question of fact. In putting forward this question as a ground of appeal, the Appellant must discharge two burdens. He must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice.[2]

Similarly, under Article 25(1)(b) of the ICTY Statute, 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.  A miscarriage of justice is defined in Black’s Law Dictionary as “a grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.”[3]  This Chamber adopts the following approach taken by the Appeals Chamber in the Tadić case[4] in dealing with challenges to factual findings by Trial Chambers:

[t]he task of hearing, assessing and weighing the evidence presented at trial is left to the judges sitting in a Trial Chamber.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by 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.  It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.[5]

The position taken by this Chamber in the Tadić Appeals Judgement has been reaffirmed in the Aleksovski Appeals Judgement.[6]  The reason the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known; the Trial Chamber has the advantage of observing witness testimony first-hand, and is, therefore, better positioned than this Chamber to assess the reliability and credibility of the evidence.

35. Errors of law do not raise a question as to the standard of review as directly as errors of fact.  Where a party contends that a Trial Chamber made an error of law, the Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine whether there was such a mistake.  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.

36. Furthermore, this Chamber is only empowered to reverse or revise a decision of the Trial Chamber on the basis of Article 25(1)(a) when there is an error of law that invalidates that decision. It is not any error of law that leads to a reversal or revision of the Trial Chamber’s decision; rather, the appealing party alleging an error of law must also demonstrate that the error renders the decision invalid.

237. The Appeals Chamber notes that the practice of the Tribunal with regard to sentencing is still in its early stages.  Several sentences have been handed down by different Trial Chambers but these are now subject to appeal.  Only three final sentencing judgements have been delivered: one by a Trial Chamber established for sentencing purposes following a successful appeal by the accused in Erdemović,[1] and the others by the Appeals Chamber in Tadić and Aleksovski,[3] each of which has resulted in a revision of the sentence imposed by the original Trial Chamber.  It is thus premature to speak of an emerging “penal regime”,[4] and the coherence in sentencing practice that this denotes.  It is true that certain issues relating to sentencing have now been dealt with in some depth; however, still others have not yet been addressed.  The Chamber finds that, at this stage, it is not possible to identify an established “penal regime”.  Instead, due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.

74. Article 9 of the Statute of the Tribunal sets forth the principle of non bis in idem. The Appeals Chamber accepts the interpretation of this Article and Article 10 of the Statute of ICTY[1] given by various Trial Chambers of the international criminal Tribunals whereby:

- Article 9 (2) of the Statute sets a limit on the extent to which the Tribunal can prosecute persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law;[2]

- The non bis in idem principle applies only where a person has effectively already been tried. The term "tried" implies that proceedings in the national Court constituted a trial[3] for the acts covered by the indictment brought against the Accused by the Tribunal[4] and at the end of which trial a final judgement is rendered.[5]

107. Under Rule 62, the Appellant’s right to be brought before a Trial Chamber without delay and be formally charged came into effect on the date of his transfer to the Tribunal.[1] […]

[…]

110. The Parties to a case are responsible for the strategies they use in conducting it. […] Counsel for the Appellant consented to having the Appellant’s initial appearance not take place within the shortest possible lapse of time and himself contributed to prolonging it.

111. The Appeals Chamber finds that Counsel’s request has the import of waiving the Appellant’s right to claim violation of his right to be brought before a Trial Chamber without delay and be formally charged.