45. As the parties note, the jurisprudence of the Tribunal has relied in several instances on the common law rooted doctrine of abuse of process.[1] In the Barayagwiza case, the Appeals Chamber recalled that under the doctrine of abuse of process “proceedings that have been lawfully initiated may be terminated after an indictment has been issued if improper or illegal procedures are employed in pursuing an otherwise lawful process”.[2] The Appeals Chamber specified that the doctrine of abuse of process may be relied on by a court, as a matter of discretion, in two distinct situations: (i) where a fair trial for the accused is impossible, usually for reasons of delay; and (ii) where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct.[3] The applicable standard was further clarified by stating that a court may discretionally decline to exercise jurisdiction “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity”.[4] The Barayagwiza Review Decision confirmed the applicable law on abuse of process as stated in the Barayagwiza Appeal Decision.[5]

46. In the Nikolić Appeal Decision, the Appeals Chamber contextualised the doctrine of abuse of process by the Tribunal in the following conceptual framework: 

Universally Condemned Offences[6] are a matter of concern to the international community as a whole. There is a legitimate expectation that those accused of these crimes will be brought to justice swiftly. Accountability for these crimes is a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts.[7] 

It then considered how this legitimate expectation should be addressed in two distinct hypotheses, relevant to the case before it: (i) under what circumstances a violation of State sovereignty requires jurisdiction to be set aside, when the violation is brought about by the apprehension of fugitives from international justice;[8] and (ii) under what circumstances a human rights violation requires jurisdiction to be set aside.[9] As to the former question, the Appeals Chamber did not identify any hypothesis justifying that jurisdiction be set aside.[10] As to the latter, the Appeals Chamber considered that, apart from “exceptional cases” of serious violations of human rights, the remedy of setting aside jurisdiction will usually be disproportionate, as “the correct balance must be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.[11]  

47. The Appeal Chamber considers that the Appellant correctly submitted that the jurisprudence of the Appeals Chamber did not introduce a dual standard for the abuse of process doctrine, depending on the nature of the entity which carried out the alleged misconduct. The Appeals Chamber also notes however that, in addressing the Appellant’s submission, the Trial Chamber adopted the common standard established by the Appeals Chamber in the Barayagwiza Decision and in the Nikolić Appeal Decision, and not a higher one, by considering whether the Appellant suffered a serious mistreatment or if there was any other egregious violation of his rights. The jurisprudence of the Appeals Chamber does not allow the abuse of process doctrine to deploy a standard lower than this, irrespective of the author of the alleged misconduct.

[…]

49. The Appeals Chamber recalls that the Appellant is charged with genocide, crimes against humanity and war crimes.[12] The public interest in the prosecution of an individual accused of such offences, universally condemned, is unquestionably strong. Against the legitimate interest of the international community in the prosecution of the Appellant for Universally Condemned Offences stands the alleged violation of the Appellant’s expectation that he would not be prosecuted by the Tribunal, pursuant to the alleged Agreement.

[…]

52. The Appeals Chamber recalls that one of the fundamental aims of international criminal courts and tribunals is to end impunity and ensure that serious violations of international humanitarian law are prosecuted and punished.[13] Individuals accused of such crimes can have no legitimate expectation of immunity from prosecution. The Appeals Chamber considers that the facts that allegedly gave rise to the Appellant’s expectations of impunity do not constitute an exception to this rule.

53. In light of the foregoing, the Appeals Chamber considers that the Appellant’s allegations, even if proved, would not trigger the doctrine of abuse of process justifying a stay of the proceedings against the Appellant.

See paragraphs 73-74, 76-77 of the decision.

See also paragraph 75 of the decision.

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