[1] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Decision on Prosecution’s Motion to Reopen its Case, 21 April 2010 (confidential)], para. 10 (footnotes omitted).

[2] Popović Decision of 24 September 2008 [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.5, Decision on Vujadin Popović’s Interlocutory Appeal Against the Decision on the Prosecution’s Motion to Reopen its Case-in-Chief, 24 September 2008], para. 10.

[3] Čelebići Appeal Judgement [Prosecutor v. Zejnil Delalić, et al., Case No. IT-96-21-A, Judgement, 20 February 2001], para. 286.

[1] Markač Appeal, para. 29.

[1] See also Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Motion of Astrit Haraqija for Provisional Release, 8 April 2009, para. 4.

[1] See e.g., Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 9; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.8, Decision on Prosecution’s Appeal against Decision on Gvero’s Motion for Provisional Release, 20 July 2009 (public redacted version), para. 11.

[2] Article 25 of the Statute; see also, e.g., Prosecutor v. Ljube Boškoski and Johan Tarčulovksi, Case No. IT-04-82-A, Judgement, 19 May 2010, paras 9 et seq.; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Judgement, 12 November 2009, paras 12 et seq.; Prosecutor v Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1, Judgement, 5 May 2009, paras 10 et seq.; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Judgement, paras 11 et seq.; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008, paras 8 et seq.; François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Judgement, 2 February 2009, paras 7 et seq.; Athanase Seromba v. The Prosecutor, Case No. ICTR-2001-66-A, Judgement, 12 March 2008, paras 9 et seq., all affirming, inter alia, the standard of reasonableness and deference to factual findings made in a trial judgement.

[1] Jović Appeal Judgement, para. 27. 

[1] Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Decision on the Defence Motion for Extension of Time, 26 April 2004, para. 6. See, e.g., Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Issuing a Public Redacted Version of the Confidential “Decision on Motion for Provisional Release of Ivan Čermak” of 14 December 2009, 14 January 2010; Prosecutor v. Jadranko Prlić et al. Case No. IT-04-74-AR65.19, Order Issuing a Public Redacted Version of the “Decision on Prosecution’s Appeal of the Trial Chamber’s Decision to Provisionally Release Accused Praljak” Issued 17 December 2009, 11 February 2010.

[2] Compare Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 25 June 2009 (confidential version), with Contempt Proceedings Against Dragan Jokić, Case No. IT-05-88-R77.1-A, Judgement on Allegations of Contempt, 3 July 2009 (public redacted version).

[3] See Article 23 of the Statute; Rules 78 and 98ter of the Rules; Article 14(1) of the ICCPR. Indeed, Article 14(1) of the ICCPR, providing for the right to a public judgement, enshrines certain exceptions. In interpreting this article, the Human Rights Committee stated that “the judgement must, with certain strictly defined exceptions, be made public”. See CCPR General Comments, No. 13, 13 April 1984, para. 6 (emphasis added). Manfred Nowak writes in his commentary on the ICCPR that "[i]f, for example, the public was excluded from [a] trial in the interest of the private lives of the parties, then there is a legitimate need in keeping certain parts of the judgment secret, which can be accomplished by making the judgment anonymous or by publishing an abbreviated version". See Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, 1993, p. 253. The Appeals Chamber opines that the same logic must be applied to cases of witness protection. Further support for this position can be drawn from the jurisprudence of the ECtHR. The ECtHR held in Campbell and Fell v. United Kingdom, that "in each case the form of publication given to the 'judgment' under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object pursued by Article 6 para. 1 (art. 6-1) [of the European Convention on Human Rights] in this context, namely to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial". ECtHR, Campbell and Fell v. The United Kingdom, Application No. 7819/77; 7878/77, Judgment, 28 June 1984, para. 91.

[4] See Articles 15, 22 of the Statute [of the Tribunal]; Rule 75 of the Rules [of Procedure and Evidence of the Tribunal]. 

[1] Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007 (“Jović Appeal Judgement”), para. 11; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006 (“Marijačić and Rebić Appeal Judgement”), para. 15; Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010, para. 12;. See also, inter alia, Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Judgement, 12 November 2009 (“Milošević Appeal Judgement”), para. 12; Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and [ljivančanin Appeal Judgement”), para. 10; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Judgement, 17 March 2009 (“Krajišnik Appeal Judgement”), para. 11; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008 (“Martić Appeal Judgement”), para. 8.

[1] Appeal Judgement, para. 187.

[2] Decision of 10 December 2007 [Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-T, Decision on Prosecution’s Motion for admission into Evidence of Documents MFI P251, P379 and P435, 10 December 2007 (confidential)], para. 41.

[3] Appeal Judgement, para. 188.

[4] Article 1 of the Statute.

[5] Sections 81 and 82 of the Evidence Act of 1995 (Australia); Section 76 of the Police and Criminal Evidence Act of 1984, Sections 114 and 118 of the Criminal Justice Act 2003 (United Kingdom); R. v. C. (B.), (1993) 62 O.A.C. 13, para. 12 (Canada); Section 3(1) of the Law of Evidence Amendment Act No. 45 of 1988 and Section 219A of the Criminal Procedure Act 51 of 1977 (South Africa).

[6] Article 427 of the Code de procédure pénale (France); Article 322 of Keiji sosho ho (Code of Criminal Procedure), (Japan).

[1] Trial Judgement, paras 42, 58, 60-61, 66, 312-313, 316, 319, 325, 328, 380, 383, 385, 552, 555, 560 and 564.

[2] Trial Judgement, paras 555, 560, 564 and 574.

[3] See also for: Planning: Kordić and Čerkez Appeal Judgement, paras 26, 29 and 31; Nahimana et al. Appeal Judgement, para. 479. Instigating: Kordić and Čerkez Appeal Judgement, paras 27, 29 and 32; Karera Appeal Judgement, paras 317-318; Nahimana et al. Appeal Judgement, para. 480. See also, e.g., Gacumbitsi Appeal Judgement, 99 and 105-108, affirming the Trial Chamber’s finding that Gacumbitsi is responsible for instigating, referring to, in particular, Trial Judgement, paras 213, 215 and 328, where physical perpetrators are described as a “group of attackers on which the bourgmestre had influence”, and “young men who, being in the neighbourhood, heard the bourgmestre’s instigation”. Ordering: Galić Appeal Judgement, para. 176; Kordić and Čerkez Appeal Judgement, paras 28-30; Karera Appeal Judgement, para. 211; Nahimana et al. Appeal Judgement, para. 481; Gacumbitsi Appeal Judgement, para. 182; Semanza Appeal Judgement, para. 361. See also, e.g., Blaškić Appeal Judgement, paras 588 (fn. 1195) and 597, finding Blaškić responsible for ordering, and confirming the Trial Chamber’s findings, in particular paras 688, 693, 699 and 735, in which physical perpetrators are referred to as the “HVO” or “HVO soldiers” and the “Military Police”; Gacumbitsi Appeal Judgement, paras 184-187, finding Gacumbitsi responsible for ordering, and referring to, in particular, Trial Judgement, paras 98, 152, 154, 163, 168 and 171-173, where physical perpetrators are referred to as “conseillers”, the “communal police”, “gendarmes”, and the “Interahamwe”; Semanza Appeal Judgement, para. 363, finding Semanza responsible for ordering, and confirming the Trial Chamber’s findings, in particular in paras 178 and 196, where physical perpetrators are described as “soldiers”, “gendarmes”, and the “Interahamwe”. Cf. for superior responsibility: Orić Appeal Judgement, para. 35; Blagojević and Jokić Appeal Judgement, para. 287; Blaškić Appeal Judgement, para. 216, with reference to Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999, paras 38 and 40. As regards joint criminal enterprise: Krajišnik Appeal Judgement, paras 156-157.

[1] Tarčulovski’s argument that the crimes committed in the present case do not implicate the “international concerns” as outlined in Tadić is not supported by the Tadić Jurisdiction Decision [Prosecutor v. Duško Tadić a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995]. In this decision, the Appeals Chamber found in relation to inter alia crimes allegedly committed in an internal armed conflict, that “the offences alleged against [Tadić] do not affect the interests of one State alone but shock the conscience of mankind” (Tadić Jurisdiction Decision., para. 57).

[2] Martić Appeal Judgement, para. 268. See also Kordić and Čerkez Appeal Judgement, para. 812; Kordić and Čerkez Trial Judgement, para. 452. See also international instruments affirming the applicability of international humanitarian law regardless of the legality of the use of force concerned: Geneva Conventions, Common Article 1; Additional Protocol I, Preamble, para. 5 and Article 1; ICRC Commentary on Additional Protocols, paras 48 and 1927; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para. 42. The Appeals Chamber notes that Article 51 of the UN Charter concerns an inherent right of self-defence in the case of armed attack by one State against another State (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, para. 139). Since it is not alleged in the present case that the concerned operation was against an action by another State, this provision is not relevant to this case.  

[3] Trial Judgement, paras 297-300.

[4] The Appeals Chamber further recalls that, provided that the alleged crimes are sufficiently linked with an armed conflict, the application of Article 3 of the Statute only depends on the four Tadić conditions. Thus, it is irrelevant if such violations have been committed in the context of a State’s operation in self-defence against an armed group operating in its territory (cf. Tadić Jurisdiction Decision, para. 94). In light of this finding, the Appeals Chamber dismisses Tarčulovski’s arguments that the Trial Chamber erred in law and fact “in determining that certain protocols that apply to the destruction of civilian property necessarily apply to situations where domestic terrorists are hiding among the civilian population, and in failing to consider whether the Government of Macedonia was justified in acting in self-defense in engaging in firings that had the effect of destroying houses” (Tarčulovski Amended Notice of Appeal, para. 86 (citing Trial Judgement, paras 352-358 and 380)). See also Tarčulovski Reply Brief, para. 42.