29. In defining the actus reus as “persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber” the Trial Chamber went beyond the language found in the Rule by adding the phrase “without reasonable excuse” and replacing the word “contumaciously” with “persistently”. The Appeals Chamber notes that the additional language of “without reasonable excuse” appears to have been taken from Judge Kwon’s dissenting opinion in the Matter of Witness K12 in the Slobodan Milošević case, in which he made reference to “obstinate refusal to answer without reasonable excuse”,[1] but neither appears in the language of the Rule nor elsewhere in the jurisprudence on the interpretation of this Rule.[2] However the Appeals considers that, in any event, such an addition cannot be considered as going to the detriment of the Accused for the reason that it is an addition pro reo, i.e. it narrows the scope of the crime under this Rule.

30. The Appeals Chamber now turns to the Trial Chamber’s replacement of the word “contumaciously” with “persistently”. This follows the reasoning in the contempt proceedings against Kosta Bulatović in the Slobodan Milošević case in which the Trial Chamber referred to the accused “deliberately refus[ing] to comply with an order of the Trial Chamber to answer questions and persist[ing] in that refusal when fully advised of the position and given a further opportunity to respond.”[3] Although discussion in the jurisprudence of the meaning of “contumacious” has tended to be undertaken in the context of the mens rea,[4] if “contumacious” is defined as “persistent”, it is in fact more relevant to the actus reus than the mens rea in the sense of it being a repeated or continuous refusal. This interpretation is the most consistent with the French version of Rule 77(A)(i) which does not contain the word “contumacious” or any direct equivalent but rather states:

Dans l’exercice de son pouvoir inhérent, le Tribunal peut déclarer coupable d’outrage les personnes qui entravent délibérément et sciemment le cours de la justice, y compris notamment toute personne qui: i) étant témoin devant une Chambre refuse de répondre à une question malgré la demande qui lui en est faite par la Chambre [...]

In light of the phrase “malgré la demande qui lui en est faite par la Chambre” (despite the Chamber’s request), the crime under  Rule 77(A) of the Rules must be consider committed not when the witness merely refuses to answer a question put by one of the parties, but rather when it is a refusal maintained in the face of the Chamber’s request to answer the question of a party or a question put by the Chamber itself. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reference to “persistently refusing or failing to answer a question” in defining the actus reus.