Binding force of legal determinations by other Tribunals

Notion(s) Filing Case
Appeal Judgement - 30.01.2015 POPOVIĆ et al.
(IT-05-88-A)

464. […] [N]either the Report of the Darfur Commission nor the ICC jurisprudence […] is binding on this Tribunal.[1] There was no obligation on the Trial Chamber to explicitly consider these authorities, which are at best persuasive. […]

[1]           Cf. \orđević Appeal Judgement, para. 83, referring to Čelebići Appeal Judgement, para. 24.

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Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

94. As an initial matter, the Appeals Chamber observes that the parties have relied upon factual findings and evidentiary assessments by other chambers at this Tribunal and by the ICJ in support of their arguments.[1] The Appeals Chamber recalls that it is bound neither by the legal determinations nor by the evidentiary assessments reached by trial chambers of this Tribunal or by the ICJ.[2] In this latter respect, the Appeals Chamber underscores that findings of criminal responsibility made in a case before the Tribunal are binding only for the individual accused in that specific case.[3] The Appeals Chamber accordingly declines to address these submissions further.

[1] See Appeal Brief [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1, Prosecution Rule 98bis Appeal Brief, 24 September 2012 (confidential). A public redacted version was filed on 25 September 2012], para. 84; Response [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1, Respondent’s Brief, 5 November 2012 (confidential). An initial public redated version was filed on 5 November 2012, and a revised public redacted version was filed on 26 November 2012], paras 40-211.

[2] See, e.g., Čelebići Appeal Judgement, para. 24. Cf. Aleksovski Appeal Judgement, para. 114.

[3] Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Motion to Intervene and Statement of Interest by the Republic of Croatia, 8 February 2012, para. 12.

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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

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.

[1]    Charter of the United Nations, Article 92.

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Notion(s) Filing Case
Decision on Interlocutory Appeal - 25.05.2001 KVOČKA et al.
(IT-98-30/1-AR73.5)

The Appeals Chamber cited the consideration in paragraph 24 of the ^elebi}i Appeal Judgement of whether the International Tribunal should follow a decision issued by the International Court of Justice on a question of law (para. 16). It determined that there was no reason to depart from these conclusions. It further held:

17. […] No legal basis exists for suggesting that the International Tribunal must defer to the International Court of Justice such that the former would be legally bound by decisions of the latter.

18. Nonetheless, decisions of the International Court of Justice addressing general questions of international law are of the utmost significance and the International Tribunal will consider such decisions, giving due weight to their authority. However, the International Tribunal has its own competence. Thus, the International Tribunal would consider any decisions of the International Court of Justice, subject to its competence to make its own findings. As a result the International Tribunal may arrive at different conclusions, and differences in holdings may occur. This does not justify suspension of the present proceedings until the International Court of Justice has decided any matters pending before that Court.

22. Finally, the Appeals Chamber considers that it is not necessary for it to await the rendering of an advisory opinion by the International Court of Justice or the issuing of a decision by the General Assembly of the United Nations before it decides on any legal or factual questions, even if these happen to be the same as questions raised in any pending case before the International Court of Justice. 

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

598. […] [T]he Appeals Chamber recalls that it is not bound by the findings of other courts – domestic, international, or hybrid – and that, even though it will consider such jurisprudence, it may nonetheless come to a different conclusion on a matter than that reached by another judicial body.[1] The Appeals Chamber considers that in order to constitute a cogent reason for departing from its established jurisprudence on a matter, the party advocating a departure would need to show that a non‑binding opinion of another court is the correct law and demonstrate that there is a clear mistake in the Appeals Chamber’s approach.[2] […]

[1] Đorđević Appeal Judgement, para. 83, referring to Čelebići Appeal Judgement, para. 24. See Tolimir Appeal Judgement, para. 226; Popović et al. Appeal Judgement, para. 1674.

[2] See Popović et al Appeal Judgement, para. 1674, referring to Đorđević Appeal Judgement, para. 24, Aleksovski Appeal Judgement, para. 108.

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Decision on Prosecution Appeal of Decision on Challenges to Jurisdiction - 28.06.2019 TURINABO, Maximilien
(MICT-18-116-PT)

15. The Appeals Chamber reiterates that the Mechanism is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ad hoc Tribunals[.][1]

[1] Karadžić Appeal Judgement, para. 12 and references therein.

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Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

433. […] For liability under the third form of joint criminal enterprise, it is required that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and to participate in a common plan aimed at their commission, as well as that it was foreseeable to him or her that a crime falling outside the common purpose might be perpetrated by any other member of the joint criminal enterprise, or one or more of the persons used by the accused or other members of the joint criminal enterprise to further the common purpose, and that the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[1] The Appeals Chamber recalls that the ICTY Appeals Chamber has consistently declined to apply a standard requiring foreseeability that the crime falling outside the common criminal purpose would “probably” be committed for liability under the third form of joint criminal enterprise to attach but recognized instead that the possibility that a crime could be committed must be sufficiently substantial.[2] The Appeals Chamber also reiterates that, although not bound by decisions of the ICTY and the ICTR Appeals Chambers, in the interests of legal certainty, it should follow such previous decisions and depart from them only for cogent reasons in the interests of justice.[3] This would be the case where the previous decision was decided on the basis of a wrong legal principle or was given per incuriam, that is, it was wrongly decided, usually because the judges were not well-informed about the applicable law.[4]

434. The Appeals Chamber observes that it is not bound by the findings of other courts – domestic, international, or hybrid – or by the extrajudicial writings, separate or dissenting opinions of its Judges, or by views expressed in academic literature.[5] On review of the judgement in [R v. Jogee; Ruddock v. The Queen (“Jogee”)], the Appeals Chamber does not find any cogent reason for departing from the Appeals Chamber’s well-established jurisprudence. The Supreme Court of the United Kingdom and Judicial Committee of the Privy Council in Jogee changed the mens rea applicable in England and Wales and the jurisdictions bound by the jurisprudence of the Privy Council for accessorial liability resulting from participation in a joint enterprise.[6] However, the form of individual criminal responsibility under the third type of joint criminal enterprise is “commission”, resulting in liability as a perpetrator, not as an accessory.[7] In this sense, Jogee is not directly on point. […]

 435. In addition, the Appeals Chamber does not find persuasive arguments that the shift in the law of England and Wales on this point warrants reconsideration and possible reversal of established appellate jurisprudence of the ICTY. Although the common law notion of liability due to participation in a joint enterprise may have been influential in the development of ICTY case law, Karadžić’s argument that the relevant principles in ICTY jurisprudence were derived from English law is not accurate. The ICTY Appeals Chamber in the Tadić case extensively examined a series of post-World War II cases from various domestic jurisdictions concerning war crimes and concluded that the relevant actus reus and mens rea for liability under the three forms of joint criminal enterprise were firmly established in customary international law.[8] With regard to the mens rea standard for the third form of joint criminal enterprise, it found that customary international law required that: (i) the accused could foresee that the crime not agreed upon in the common plan “might be perpetrated” by one or other members of the group; and (ii) the accused willingly took that risk.[9] It also clarified that, what was required was intent to pursue the common plan in addition to “foresight that those crimes outside the criminal common purpose were likely to be committed”.[10] Thus, while the ICTY Appeals Chamber in Tadić considered domestic case law in determining customary international law,[11] contrary to Karadžić’s claim, it found that the relevant principles were derived from customary international law, not the law of England and Wales.[12] A shift in the law of England and Wales and the jurisdictions bound by the Privy Council on this point therefore does not per se warrant the reversal of established appellate jurisprudence.

436. The ICTY Appeals Chamber in Tadić also assessed whether domestic legislation or case law could be relied upon as a source of international principles or rules under the doctrine of general principles of law recognized by the major legal systems of the world.[13] Its survey led it to conclude that, although the common purpose doctrine “was rooted in the national law of many States”, major domestic jurisdictions did not adopt a common approach with regard to the third form of joint criminal enterprise and that therefore “national legislation and case law cannot be relied upon as a source of international principles or rules” in this context.[14] The shift in the law in Jogee, which has not been followed in other common law jurisdictions,[15] confirms rather than undermines the conclusion in Tadić that different approaches at a domestic level reflect that domestic case law, in such circumstances, cannot be relied upon as a source of international principles.[16] The Appeals Chamber finds that the shift in Jogee does not provide a sufficient basis to revisit Tadić or the relevant mens rea standard as applied in established case law.

[1] Stanišić and Župljanin Appeal Judgement, para. 958; Karemera and Ngirumpatse Appeal Judgement, para. 634; Šainović et al. Appeal Judgement, para. 1557; Ntakirutimana Appeal Judgement, para. 467.

[2] Prlić et al. Appeal Judgement, para. 3022; Popović et al. Appeal Judgement, para. 1432; Šainović et al. Appeal Judgement, paras. 1061, 1272, 1525, 1557, 1558; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009], para. 18. The ICTR Appeals Chamber has held that the ICTY jurisprudence on the third form of joint criminal enterprise should be applied to the interpretation of the principles on individual criminal responsibility under the ICTR Statute. See Ntakirutimana Appeal Judgement, para. 468. See also Karemera and Ngirumpatse Appeal Judgement, para. 634.

[3] See [Karadžić Appeal Judgement] paras. 13, 119.

[4] Stanišić and Župljanin Appeal Judgement, para. 968.

[5] Stanišić and Župljanin Appeal Judgement, paras. 598, 974, 975; Popović et al. Appeal Judgement, paras. 1437-1443, 1674; Đorđević Appeal Judgement, paras. 33, 38, 39, 50-53, 83; Čelebići Appeal Judgement, para. 24.

[6] This joint case involved two separate appellants who had been convicted of murder on the basis of “parasitic accessory liability”, after a co-defendant had killed the victim. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3. In the case of Jogee, he had been vocally encouraging the principal who subsequently stabbed the victim to death. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, para. 102. The judge directed the jury that Jogee was guilty of murder if he took part in the attack by encouraging the principal and realised that it was possible that his co-defendant might use the knife with intent to cause serious harm. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3, 104. In the case of Ruddock, liability was based on his participation in a robbery during which the principal cut the victim’s throat. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 108, 109. The judge directed the jury that the prosecution had to prove a common intention to commit the robbery which included a situation in which Ruddock knew that there was a possibility that the principal might intend to kill the victim. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 2, 3, 114. The Supreme Court unanimously set the appellants’ convictions aside and corrected the common law on “parasitic accessory liability” by holding that the proper mental element for establishing such liability is intent to assist or encourage and that foresight is simply evidence of such intent. R v. Jogee [2016] UKSC 8; Ruddock v. The Queen [2016] UKPC 7, paras. 79, 83, 87, 89, 90, 98, 99.

[7] Šainović et al. Appeal Judgement, para. 1260; Krajišnik Appeal Judgement, para. 662; Kvočka et al. Appeal Judgement, paras. 79, 80; Vasiljević Appeal Judgement, para. 102.

[8] Tadić Appeal Judgement, paras. 194-226.

[9] Tadić Appeal Judgement, para. 228.

[10] Tadić Appeal Judgement, para. 229.

[11] Tadić Appeal Judgement, paras. 194-226.

[12] See also Tadić Appeal Judgement, paras. 225, 226.

[13] Tadić Appeal Judgement, para. 225.

[14] Tadić Appeal Judgement, para. 225.

[15] See HKSAR v. Chan Kam-Shing [2016] HKCFA 87, paras. 32, 33, 40, 58, 60, 62, 71, 98; Miller v. The Queen, Smith v. The Queen, Presley v. The Director of Public Prosecutions [2016] HCA 30, para. 43.

[16] Tadić Appeal Judgement, para. 225 (“in the area under discussion [concerning the third form of joint criminal enterprise], national legislation and case law cannot be relied upon as a source of international principles or rules, under the doctrine of the general principles of law recognised by the nations of the world: for this reliance to be permissible, it would be necessary to show that most, if not all, countries adopt the same notion of common purpose. More specifically, it would be necessary to show that, in any case, the major legal systems of the world take the same approach to this notion. The above survey shows that this is not the case.”).

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