Temporal jurisdiction
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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With references to Articles 1 and 7 of the Statute, the Appeals Chamber held that an accused could only be held responsible by the Tribunal for a crime referred to in Article 2 to 4 of the Statue having been committed in 1994.[1] However, given the lack of clarity in the jurisprudence, the Appeals Chamber felt the need to elucidate the question of the Tribunal’s temporal jurisdiction “in a situation where an accused did not personally commit the crime, his acts or omissions establishing his responsibility for such a crime (pursuant to one or more of the modes of responsibility provided for in Article 6(1) and (3) of the Statute) must also have occurred in 1994”. Having examined the Statute’s travaux préparatoires and the 13 February 1995 UN Secretary-General’s Report, the Appeals Chamber held: 313. […] that it was the intention of the framers of the Statute that the Tribunal should have jurisdiction to convict an accused only where all of the elements required to be shown in order to establish his guilt were present in 1994. Further, such a view accords with the principle that provisions conferring jurisdiction on an international tribunal[2] or imposing criminal sanctions should be strictly interpreted. Accordingly, the Appeals Chamber finds that it must be shown that:
314. The Appeals Chamber finds that the Trial Chamber was wrong insofar as it convicted the Appellants on the basis of criminal conduct which took place prior to 1994; the Appeals Chamber will review those convictions below. […] [1] In this regard, see Decision of 5 September 2000 [Hassan Ngeze and Ferdinand Nahimana v. The Prosecutor, Cases No. ICTR-97-27-AR72 and ICTR-96-11-AR72, Décision sur les appels interlocutoires, 5 September 2000], p. 6 (which states that no one may be indicted for a crime that was not committed between 1 January and 31 December 1994, even though an indictment can make reference, “as an introduction, to crimes previously committed by an accused”). See also Kajelijeli Appeal Judgement, para. 298; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-2001-70-AR72, Decision (Appeal against Decision of 26 February 2003 on the Preliminary Objections), 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Notice of Appeal against the Decision Dismissing the Defence Motion Objecting to the Jurisdiction of the Tribunal), 16 November 2001, p. 4; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-97-34-A, Decision on the Interlocutory Appeal against the Decision of 13 April 2000 of Trial Chamber III, 13 November 2000, p. 5; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Interlocutory Appeals against the Decision of the Trial Chamber dated 11 April and 6 June 2000), 14 September 2000 (“Decision of 14 September 2000 on the Interlocutory Appeals”), p. 4. [2] In this regard, see Decision of 5 September 2000, Joint Separate Opinion of Judges Lal Chand Vohrah and Rafael Nieto-Navia, para. 17 and footnote 22. |
ICTR Statute Article 1 | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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314. […] However, as will now be explained, it was open to the Trial Chamber to rely, for certain purposes, on evidence in respect of events prior to 1994. 315. It is well established that the provisions of the Statute on the temporal jurisdiction of the Tribunal do not preclude the admission of evidence on events prior to 1994, if the Chamber deems such evidence relevant and of probative value[1] and there is no compelling reason to exclude it. For example, a Trial Chamber may validly admit evidence relating to pre-1994 acts and rely on it where such evidence is aimed at: - Clarifying a given context;[2] - Establishing by inference the elements (in particular, criminal intent) of criminal conduct occurring in 1994;[3] - Demonstrating a deliberate pattern of conduct.[4] 316. The Appeals Chamber accordingly dismisses the Appellants’ contentions that the Trial Chamber exceeded its jurisdiction or that it breached the fairness of the trial simply because it relied on evidence concerning pre-1994 events. 561. The Appeals Chamber recalls that it has already considered the Trial Chamber’s interpretation of the Tribunal’s temporal jurisdiction and reaffirmed that Article 7 of the Statute does not prevent the admission of evidence of events prior to 1 January 1994, insofar as the Trial Chamber deemed such evidence relevant and of probative value, and there was no compelling reason to exclude it. This applies inter alia to evidence of criminal intent.[5] […] 647. […] The Appeals Chamber considers that paragraph 975 of the Judgement is ambiguous because it does not clearly explain whether the Appellant’s participation in CDR meetings prior to 1 January 1994 is cited as a material element of instigation for which the Appellant incurs individual responsibility pursuant to Article 6(1) of the Statute – which would be ultra vires – or whether this fact is simply mentioned as a contextual fact, or as evidence demonstrating the Appellant’s criminal intent in 1994 – which is permissible.[6] […] [1] Rule 89(C) of the Rules. See also Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 4 (“[…] it will be for the Trial Chamber to decide whether to admit evidence relating to events falling outside the temporal jurisdiction of the Tribunal in accordance with Rule 89(C) of the Rules of Procedure and Evidence of the Tribunal”). [2] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-97-34-A, Decision on the Interlocutory Appeal against the Decision of 13 April 2000 of Trial Chamber III, 13 November 2000, p. 5; Decision of 14 September 2000 on the Interlocutory Appeals [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Interlocutory Appeals Against the Decisions of the Trial Chamber Dated 11 April and 6 June 2000), 14 September 2000), p. 4; Decision of 5 September 2000, p. 6, and Separate Opinion of Judge Shahabuddeen, paras. 21, 26, 32. [3] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-2001-70-AR72, Decision (Notice of Appeal against Decision of 26 February 2003 on the Preliminary Objections), 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Appeal against the Decision of 13 March 2001 dismissing the Defence Motion Objecting to the Jurisdiction of the Tribunal), 16 November 2001, p. 4; Decision of 5 September 2000, Separate Opinion of Judge Shahabuddeen, paras. 9-17. [4] Rule 93 of the Rules. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Admissibility of Proposed Testimony of Witness DBY, 18 September 2003, paras. 11-14; Decision of 5 September 2000, Separate Opinion of Judge Shahabuddeen, paras. 20-26. In this respect, the Appeals Chamber recalls that there is a difference between trying to establish a specific deliberate pattern of conduct (expressly permitted under Rule 93 of the Rules) and trying to demonstrate an accused’s propensity to commit crimes (which is impermissible, in view of the low probative value of such a demonstration and its prejudicial effect: See The Prosecutor v. Théoneste Bagosora et al., Cases Nos. ICTR-98-41-AR93 and ICTR-98-41-AR93.2, Decision on Prosecutor’s Interlocutory Appeals Regarding the Exclusion of Evidence, 19 December 2003, paras. 13-14). [5]Idem, citing Aloys Simba v. the Prosecutor, Case No. ICTR-01-76-AR72.2, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004, p. 3; Emmanuel Rukundo v. the Prosecutor, Case No. ICTR-2001-70-AR72, Décision (Acte d’appel relatif à la Décision du 26 février 2003 relative aux exceptions préjudicielles) [Decision (Notice of Appeal from the Decision of 26 February 2003 on the Preliminary Objections)], 17 October 2003, p. 5; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-T [sic], Appeal Judgement (Appel de la Décision du 13 mars 2001 rejetant la “Defence Motion Objecting to the Jurisdiction of the Tribunal” [Appeal from the Decision of 13 March 2001 dismissing the “Defence Motion Objecting to the Jurisdiction of the Tribunal”]), 16 November 2001, p. 4; Separate Opinion of Judge Shahabuddeen to the Decision of 5 September 2000, paras. 9-17. [6] See supra VIII. B. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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317. The Appeals Chamber has held above that the Tribunal may only convict an accused for criminal conduct having occurred in 1994. The existence of continuing conduct is no exception to this rule. Contrary to what the Trial Chamber appears to have held in paragraph 104 of the Judgement, even where such conduct commenced before 1994 and continued during that year, a conviction may be based only on that part of such conduct having occurred in 1994.[1] Judge Pocar dissents from this finding. [1] In this respect, see Decision of 5 September 2000, Joint Separate Opinion of Judges Lal Chand Vohrah and Rafael Nieto-Navia, paras. 6,9 and 10. |
ICTR Statute Article 1 | |
| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeals - 13.09.2000 |
NGEZE & NAHIMANA (ICTR 97-27-AR72, ICTR-96-11-AR72) |
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NOTING that Article 7 of the Statute of the Tribunal restricts the Tribunal's temporal jurisdiction to "a period beginning on 1 January 1994 and ending on 1 December 1994"; CONSIDERING therefore that no one may be indicted for a crime that was not committed between 1 January and 31 December 1994; CONSIDERING however that the above cannot prevent an indictment from making reference, as an introduction, to crimes previously committed by an accused; NOTING the decision by the Trial Chamber not to refer to events prior to 1994 except for historical purposes or as information and that it would not hold any accused accountable for crimes committed prior to 1994; CONSIDERING that the question of the Tribunal's temporal jurisdiction does indeed fall within the scope of application of Rule 72 (D)[[1]] but that in the instant case the question lacks interest in that the Appeals Chamber is convinced that the Trial Chamber will not use events prior to 1994 as the sole factual basis for a count of the indictment; and that therefore the Trial Chamber did not overstep its temporal jurisdiction; [1] [At the time this decision was issued, Rule 72(D) provided: “Decisions on preliminary motions are without interlocutory appeal, save in the case of dismissal of an objection based on lack of jurisdiction, where an appeal will lie as of right.”] |
ICTR Statute Article 7 ICTR Rule Rule 72(D) | |
| Notion(s) | Filing | Case |
| Interlocutory Decision on Jurisdiction - 22.07.2005 |
BOŠKOSKI & TARČULOVSKI (IT-04-82-AR72.1) |
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10. […] The Statute of the Tribunal extends the Tribunal's jurisdiction to those entities that were a part of the former Yugoslavia prior to its dissolution. This includes Macedonia, which was part of the former Yugoslavia prior to its succession. Further, the Statute of the Tribunal confers jurisdiction on the Tribunal over persons responsible for serious violations of international humanitarian law since 1991. The UN Security Council has decided in Resolution 827 (1993) that the temporal jurisdiction of the Tribunal covers the period "between 1 January 1991 and a date to be determined by the Security Council upon restoration of peace."[1] At present, no such end date has been determined; therefore, the Tribunal's temporal jurisdiction is open-ended and does extend to allegations of serious violations of international humanitarian law occurring after 2001. [1] S/RES/827 (1993), 25 May 1993. |
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