11. […] The Appeals Chamber notes that in the Blaškić case, the Appeals Chamber of the ICTY considered that “the purpose of a response is to give a full answer to the issues raised in a motion by the moving party”.[1] […]

12. […] Most of the submissions in Mr. Ndayambaje’s Response relate solely to his case and challenge the Impugned Decision with regard to its order to him to file a revised witness list containing a maximum of thirty witnesses.[2] The Appeals Chamber finds that these arguments are inadmissible with respect to the appeal of the Appellant as they are not made in response to that appeal. For Mr. Ndayambaje to raise these arguments on his own behalf with respect to the restriction on the number of witnesses he is permitted to call, he needs to have obtained certification. He cannot attempt to appeal the Impugned Decision with the objective of having the Trial Chamber’s reduction of the number of his witnesses reversed by filing a response to a certified appeal of a co-accused.

13. […] Accordingly, Mr. Ntahobali’s Response challenges the Impugned Decision and the Trial Chamber’s use of its discretion.[3] The Appeals Chamber considers that, as Mr. Ntahobali did not seek and was not granted certification to appeal from the Impugned Decision, his arguments in this regard are inadmissible before the Appeals Chamber.

NOTING that the contested paragraphs of the Prlić Response Brief make submissions on the merits of certain arguments advanced in the ]orić Appeal Brief and the Stojić Appeal Brief;[1]

RECALLING that paragraph 5 of the Practice Direction^[[2]]] provides that the “opposite party” shall file a “Respondent’s Brief”, the content of which “shall be limited to arguments made in response to [the Appellant’s Brief]”;

CONSIDERING that the “opposite party” means the Prosecution when the appellant is a convicted person, and a defendant when the appellant is the Prosecution, and that arguments made in response must be limited to those raised by the relevant opposite party;

CONSIDERING that the Appeals Chamber will only consider the arguments raised in the Prlić Response Brief to the extent that they respond to the arguments raised by the Prosecution in its appeal against Prlić;

FINDING that to the extent that the Prlić Response Brief contains submissions on the merits of the ]orić Appeal Brief and the Stojić Appeal Brief, the Appeals Chamber will disregard these submissions for the purposes of adjudicating the Prosecution’s appeal against ]orić and Stojić, without prejudice to any possible similar arguments advanced by the Prosecution in its appeal against ]orić and Stojić;

13. The Appeals Chamber recalls that a brief in reply must be “limited to arguments in reply to the Respondent’s Brief” and therefore that it should not contain new allegations of error[1] Consequently, the Second Supplemental Reply Brief should have been limited to the Prosecution’s arguments in response to the Appellant’s supplemental arguments, which in turn should have been limited to the potential impact of the three elements of additional evidence admitted on appeal.[2] Without having sought leave from the Appeals Chamber, the Appellant chose to include in his Second Supplemental Reply Brief a “reply to assertions raised by the [P]rosecution for the first time during oral arguments that certain of Appellant’s factual arguments under the sub-heading 1.2(1) lack evidentiary support in the certified trial record”.[3] This procedure was improper.

Footnote four of the Interlocutory Appeal cites the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, Section III(8) read together with Section I, permitting ten days from the filing of an interlocutory appeal for the filing of a response.

9.       […] The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, dated 16 September 2002 (“Practice Direction”), provides that responses to interlocutory appeals governed by the Practice Direction are due ten days after the filing of the appeal.[1]  The Appeals Chamber notes, however, that the Practice Direction does not specifically provide a deadline for responses to appeals that follow certification of the Trial Chamber, although the Appeals Chamber has recently suggested that the response time of ten days should also apply to appeals following certification.[2]  The Appeals Chamber affirms this interpretation of the Practice Direction. […]

32.     […] A three-stage process is established by the Rules and the relevant Practice Directions for the filing of written submissions before the International Tribunal. For motions filed during appeals from judgement, as is the case here, the moving party is requested to file a motion containing (i) the precise ruling or relief sought; (ii) the specific provision of the Rules under which the ruling or relief is sought; and (iii) the grounds on which the ruling or relief is sought.[1] The opposite party is entitled to file a response stating whether or not the motion is opposed and the grounds therefore,[2] and the moving party may file a reply[3] restricted to dealing with issues raised in the opposite party’s response.[4]  The Appeals Chamber recognizes that it is not possible to require a party to anticipate all the arguments made in response by the opposite party. The very purpose of a reply is to permit the moving party to rebut the arguments raised in opposition by the other party. Subject to a rejoinder, this can sometime necessitate submitting an argument not developed in the initial motion. However, this right to fully address the opposing party’s arguments does not allow the moving party to use its reply to make new claims or to raise totally new arguments. As the Appeals Chamber has already stated, if a party raises in a reply an argument or request for the first time, then the opposing party is deprived of an opportunity to respond and this can harm the fairness of the proceedings.[5] That is notably why the core of the moving party’s arguments must be provided in the initial motion and not raised for the first time in the reply.