[1]           Nahimana et al. Appeal Judgement, paras 292-294. See also Šainović et al. Appeal Judgement, para. 1295; Renzaho Appeal Judgement, para. 289.

[1] See Stakić Appeal Judgement, para. 164; Semanza Appeal Judgement, para. 304; see also The Prosecutor v. Sylvester Gacumbitsi, Case No. ICTR-2001-64-T, Decision on Expert Witnesses for the Defence - Rules 54, 73, 89 and 94 bis of the Rules of Procedure and Evidence, 11 November 2003, para. 8.

[2] Nahimana et al. Appeal Judgement, paras 198-199; see also Prosecutor v. Dragomir Milošević, Case No IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007, paras 8-9; Prosecutor v. Milan Martić, Case No IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov pursuant to Rule 94 bis, 9 November 2006, paras 9-10; Prosecutor v. Radoslav Brđanin, Case No IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003, p. 4.

[1] See references mentioned supra, footnote 521.

[2] Appellant Nahimana claimed that it was third-degree hearsay. The Appeals Chamber disagrees. If Manzi Sudi Fahdi had appeared to confirm the death of his children before the Tribunal, his testimony would not have constituted hearsay. Since the information was given by Manzi Sudi Fahdi to the Prosecution investigators, who then reported it to Expert Witness Chrétien, it is only second-degree hearsay.

[1] Also, it should be recalled that an expert witness cannot pronounce on the criminal responsibility of the accused: see D. Milošević Decision of 15 February 2007, para. 11; Martić Decision of 13 November 2006, p. 5; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on the admissibility of the expert testimony of Binaifer Nowrojee, 8 July 2005, para. 12.

[2] In this regard, see Rules, 66(A)(ii), 73 bis (B)(iv)(b) and 73 ter (B)(iii)(b).

[3] See supra IV. B. 2. (b).

[1] Nahimana et al. Appeal Judgement, para. 199 (footnotes omitted). The official English translation is not available yet, but an unofficial translation is provided below for convenience:

It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness. The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”. The party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony.

[2] Nahimana et al. Appeal Judgement, para. 282, quoting Brđanin Decision [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003], p. 4.

[3] Impugned Decision [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T,Decision on Defence Rule 94bis Notice Regarding Prosecution Expert Witness Richard Butler, 19 September 2007], para. 22.

[4] Dragomir Milošević Decision [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007], para. 6; Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Milisav Sekulić Pursuant to Rule 94bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Sekulić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), pp. 3-4.   

[5] Impugned Decision, paras 26-27.

[6] Brđanin Decision, p. 4; Dragomir Milošević Decision, para. 9; Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], paras 8, 12; Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, Decision on Admissibility of Expert Report of Kosta Čavoški, 1 March 2006, p. 2; Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94bis, 1 April 2004, p. 4.

[7] Nahimana et al. Appeal Judgement, para. 199.

[8] Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33, 266; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998, para. 20.  See, also Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 24, and Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 24.

[9] In the Akayesu case, the Trial Chamber dismissed a Defence motion for the appearance of a person accused in another case before the ICTR for crimes related to those in its case, on the ground, inter alia, that “an expert must not only be a recognized expert in his field, but must also be impartial in the case” (Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998 (“Akayesu Decision”), p. 2). In the Milutinović Decision [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Request for Certification of Interlocutory Appeal of Decision on Admission of Witness Philip Coo’s Expert Report, 30 August 2006], the Trial Chamber found that the proposed expert witness was “too close to the team, in other words to the Prosecution presenting the case, to be regarded as an expert” and that “it could not regard his opinion as bearing the appearance of impartiality on which findings crucial to the determination of guilt of criminal charges might confidently be made” (paras 1, 10). See, also the three following decisions as illustrations of instances in which such an issue was raised: (1) In the Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], the Trial Chamber stated that “the active involvement of a proposed expert witness in the investigation of the case on behalf of the Prosecution is a factor capable of affecting the reliability of that witness’ Report and potential evidence […] The involvement in a particular case may be such that the reliability of the opinions of the expert cannot be accepted.” (para. 12); (2) Decision on General Smith [Prosecutor v. Vujadin Popović, Case No. IT-05-88-T, Second Decision Regarding the Evidence of General Rupert Smith, 11 October 2007], p. 4, footnotes 14, 15; (3) Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 10. 

[10] In this respect, the Appeals Chamber rejects the Prosecution’s suggestion that because Butler already testified as an expert witness in other cases, including before the Appeals Chamber, this automatically means that the Joint Defence Appeal should be dismissed.

[11] Rutaganda Appeal Judgement, footnote 63.

[12] In a rather similar instance, the Trial Chamber, after having found that the circumstances of the case were not the same as those in the Milutinović Decision, stated that “[t]he degree of [the expert witness’] connection with the Prosecution can be explored by the Defence in cross-examination and will be taken into account by the Chamber in assessing the weight to be attached to the evidence of the expert witness. It will be open to both Defence teams to examine the extent to which the involvement of [the expert witness] in the interviewing of witnesses and his subsequent reliance on statements and material obtained with his active participation affected the content of his Report and testimony” (Boškoski Decision, para. 12).

[13] Impugned Decision, para. 31.

[14] Prlić Decision on Admission of Transcript [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 57. See, also the Trial Chamber’s statement in the Certification Decision, p. 2, that Bulter’s evidence “can be redacted or disregarded if the Trial Chamber’s finding is reversed”.

[15] Prlić Decision on Admission of Transcript, para. 57.

[1] Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para. 303.

[2] Renzaho Appeal Judgement, para. 287; Nahimana et al. Appeal Judgement, para. 198; Semanza Appeal Judgement, para. 303.

[1] Tadić Appeal Judgement, para. 64, and Aleksovski Appeal Judgement, para. 63.