Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)

199. 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.[1] The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”.[2] The party alleging bias on the part of an expert witness may demonstrate such 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.[3]

[1] Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007 (“D. Milošević Decision of 15 Fevrier 2007”), para. 7; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defense’s Submission of the Expert Report of Milisav Selukić pursuant to Rule 94 bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Selukić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), p. 5; 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 (“Martić Decision of 9 November 2006”), para. 5; The Prosecutor v. Sylvestre 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 (“Gacumbitsi Decision of 11 November 2003”), para. 8.

 [2] Gacumbitsi Decision of 11 November 2003, para. 8. See also The 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, p. 2: “in order to be entitled to appear, an expert witness must not only be recognized expert in his field, but must also be impartial in the case.”


[3] Martić Decision of 9 November 2006, para. 11.

Download full document
Notion(s) Filing Case
Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ

21. The Appeals Chamber finds more merit in the Appellant’s contention that the Referral Bench erred in its factual assessment of whether he amounted to a “most senior leader”.  The Referral Bench set out the following standard for considering his level of responsibility. […] Yet the Referral Bench’s application of this standard was sparse.  The Referral Bench simply stated that “[i]rrespective of the alleged local notoriety of Milan Lukić and his paramilitary group, neither of the Accused can sensibly be characterised as one of the ‘most senior leaders’, as envisioned by the Security Council in Resolution 1534.”[1]  This conclusory statement appears to presume that a “local” paramilitary leader can never constitute a “most senior leader”.  In doing so, it fails to take into account the “alleged level of participation in the commission of the crimes charged in the indictment.”[2]  The Second Amended Indictment not only alleges that the Appellant directly “committed” the crimes charged, but also suggests that he was a leader and orchestrator of these crimes[3] – which were part of “one of the most notorious campaigns of ethnic cleansing in the conflict”.[4]  There is no suggestion in the Second Amended Indictment that the Appellant was acting under the orders of others, although he may have coordinated with others in carrying out a “reign of terror upon the local Muslim population.”[5]  Rather, it seems that within his own sphere, he was a dominant presence.

22. […] In light of the number and nature of his alleged criminal acts, and given the absence of any suggestion in the Indictment that the Appellant answered to a higher authority, the Appeals Chamber considers the Appellant’s case falls into this category of most significant paramilitary leaders. The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[6]  In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant.

26. […] In light of the notorious role played by paramilitary organizations and their leaders during the conflict in the former Yugoslavia, and in light of the Security Council’s recognition that the Tribunal should try at least some of these leaders, the Appeals Chamber considers that the Appellant’s case should be retained by the Tribunal. Based on the allegations set forth in the Second Amended Indictment, the Appellant will be perhaps the most significant paramilitary leader tried by the Tribunal to date.

[1] Referral Decision, para. 30.

[2] Referral Decision, para. 28.

[3] See Second Amended Indictment, para. 31 (describing the Appellant as “form[ing] a group of paramilitaries which worked with local police and military units in exacting a reign of terror upon the local Muslim population”).

[4] Second Amended Indictment, paras 1, 27; see also para. 14 (suggesting that the beatings were done by the Appellant and “other members of [the Appellant’s] group of paramilitaries”). 

[5] Second Amended Indictment, para. 31.

[6] See Second Amended Indictment, paras 3, 5-7, 11-13, and 17.

Download full document
ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA

210.    The Appeals Chamber emphasizes that once having heard testimonial evidence as proffered by the parties, it is up to the Trial Chamber to decide, by a reasoned opinion, to accept or to reject, in whole or in part, the testimony of an expert witness, provided the reasons for its decision are reasonable.[1] In this regard, the Appeals Chamber notes that the assessment of the credibility of evidence given by an expert falls clearly to the trier of fact.

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

Download full document