Right of equality before the Tribunal
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 29.09.2014 |
KAREMERA & NGIRUMPATSE (ICTR-98-44-A) |
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51. Article 20(1) of the Statute provides that “[a]ll persons shall be equal before the [Tribunal]”. The Appeals Chamber recalls that this provision encompasses the requirement that there be no discrimination in the enforcement or application of the law.[1] […] 55. […] the Appeals Chamber recalls that “[i]t is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments”.[2] This discretion is not unlimited, but must be exercised within the restrictions imposed by the Statute and the Rules.[3] 56. The Appeals Chamber observes that the Prosecution alleged that Ngirumpatse made arrangements with Bagosora to obtain weapons for the Interahamwe on 11 April 1994,[4] and that Bagosora was not charged for this particular event.[5] However, the Appeals Chamber rejects Ngirumpatse’s contention that this fact alone could substantiate an allegation of unequal treatment.[…] [1] See Delalić et al. Appeal Judgement, para. 605 (addressing a mirror provision in Article 21 of the ICTY Statute), referring to Article 7 of the Universal Declaration of Human Rights; Article 14 of the International Covenant on Civil and Political Rights; Article 75 of the Additional Protocol I to the Geneva Conventions; Article 29 of the Rome Statute of the International Criminal Court. [2] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, 12 October 2009 (“Karadžić Appeal Decision of 12 October 2009”), para. 41; Akayesu Appeal Judgement, para. 94; Delalić et al. Appeal Judgement, para. 602. [3] Karadžić Appeal Decision of 12 October 2009, para. 41; Delalić et al. Appeal Judgement, paras. 602, 603. [4] See Indictment, paras. 38, 39. See also [Karemera and Ngirumpatse] Trial Judgement, paras. 716, 739, 740, 1450(1). The Appeals Chamber addresses elsewhere Ngirumpatse’s contention that this allegation was placed “[o]n or about 10 April 1994”, and that this was inconsistent with the Trial Chamber’s finding that the distribution of weapons took place on 11 April 1994. See infra para. 366. [5] See generally Bagosora et al. Trial Judgement. |
ICTR Statute Article 20(1) ICTY Statute Article 21(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 31.05.2023 |
STANIŠIĆ & SIMATOVIĆ (MICT-13-96-A) |
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278. […] When instructing the new trial chamber on how to apply the correct law concerning aiding and abetting liability, the ICTY Appeals Chamber stated that: the principle of lex mitior, as alleged by Simatović, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law, as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the [ICTY] has to apply.[1] […] 280. With regard to Simatović’s […] argument that he was treated unequally to other accused in violation of Article 19(1) of the Statute, the Appeals Chamber recalls that this provision encompasses the requirement that there be no discrimination in the enforcement or application of the law.[2] However,[…], the ICTY Appeals Chamber has rejected the legal standard regarding aiding and abetting liability that was applied in the Perišić Appeal Judgement.[3] Furthermore, the Appeals Chamber recalls that a proper construction of the Statute requires that the ratio decidendi of its decisions be binding on trial chambers.[4] Accordingly, the Trial Chamber was not at liberty to include specific direction as an element of aiding and abetting in view of the principle of lex mitior as this would have been in violation of the ICTY Appeals Chamber’s rejection of this proposition in his case.[5] 281. In light of the foregoing, the Appeals Chamber finds that Simatović does not demonstrate that the Trial Chamber erred in declining to apply the principle of lex mitior […]. [1] Stanišić and Simatović ICTY Appeal Judgement, para. 128 (internal references omitted). [2] See Karemera and Ngirumpatse Appeal Judgement, para. 51 and references cited therein. See mutatis mutandis Article 20(1) of the ICTR Statute. [3] See [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. MICT-15-96-A, Judgement, 31 May 2023] para. 268. [4] Prlić et al. Appeal Judgement, n. 1981; Aleksovski Appeal Judgement, para. 113. [5] Stanišić and Simatović ICTY Appeal Judgement, para. 128 |
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