Appeals Chamber

The Prosecutor v. Anto Furundzija - Case No. IT-95-17/1-A

"Judgement"

21 July 2000
President Shahabuddeen (Presiding), Vohrah, Nieto-Navia, Robinson and Pocar

Article 25 of the Statute - Standard of Review - Article 18(4) of the Statute and Rule 47(C) of the Rules of Procedure and Evidence - Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - Definition and elements - Customary international law - Rule 15 of the Rules of Procedure and Evidence - Objective impartiality of a Judge - Standard and principles to be applied - Appeal against sentence - Standard of review to be applied by the Appeals Chamber - Distinction between the seriousness of a crime against humanity and that of a war crime - Length of sentences.

(1) Standard of Review: with respect to errors of law, if the arguments of an Appellant do not support his contention, the Appeals Chamber may make a ruling and, for other reasons, find that there is an error of law that must invalidate the decision of the Trial Chamber; with respect to errors of fact, an Appellant must establish that the Trial Chamber’s findings have led to a miscarriage of justice, i.e. that the error could not reasonably be accepted by any reasonable person and that the error was a decisive factor in the outcome;

(2) Evidence: Article 18(4) of the Statute and Rule 47(C) of the Rules of Procedure and Evidence do not include an obligation to state the actual evidence on which the Prosecution has relied in the indictment. Where, in the course of the trial, evidence is introduced which, in the view of the accused does not fall within the scope of the indictment or is within the scope but in relation to which there is no corresponding material fact in the indictment, the Defence may challenge the admission of the evidence or request an adjournment;

(3) Torture: the definition of torture set out in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is generally accepted and therefore reflects customary international law;

The crime of torture in a situation of armed conflict comprises the following elements:

(i) . . . the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition
(ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person;
(iv) it must be linked to an armed conflict;
(v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.

(4) Objective impartiality of a Judge: Judges are presumed to be impartial. One must ascertain whether one can apprehend an appearance of bias. In respect of the standard to be applied, there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias. The following principles should direct the Tribunal in interpreting and applying the impartiality requirement of the Statute:

A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if:

(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or
(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias

The accused must reach a high threshold of proof in order to rebut the presumption of impartiality;

(5) Sentence: the Appeals Chamber must apply the test of a discernible error in respect of the exercise of the Trial Chamber’s discretion. There is no distinction in law between the seriousness of a crime against humanity and that of a war crime. The length of sentences imposed for crimes against humanity does therefore not necessarily limit the length of sentences imposed for war crimes. In deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness.

Procedural Background

The Prosecutor indicted Anto Furundzija on three counts.

In the Amended Indictment, one of these counts was subsequently withdrawn.

On 10 December 1998, the Trial Chamber rendered its Judgement. It found the accused guilty on both remaining counts: count 13, as a co-perpetrator of torture as a violation of the laws or customs of war; and count 14, as an aider and abettor of outrages upon personal dignity, including rape, as a violation of the laws or customs of war. Trial Chamber II sentenced Anto Furundzija to ten years’ imprisonment for the conviction under count 13 and eight years’ imprisonment for the conviction under count 14. Consonant with the Trial Chamber’s disposition, the accused is serving the sentences concurrently inter se.

After the appeal was brought, the accused filed a post-trial application before the Bureau for the disqualification of Judge Mumba, Presiding Judge at Trial, and a motion to vacate the conviction and sentence and to hold a new trial. The application was dismissed on the ground that determination as to the fairness of the trial did not fall within the Bureau’s competence.

The Decision

The Appeals Chamber unanimously rejected each ground of appeal, dismissed the appeal, and affirmed the convictions and sentences.

The Reasoning

Standard of Review

The parties raised the relevant standard of review on appeal which the Appeals Chamber addressed as a preliminary matter.

The Judges also pointed out that the Appeals Chamber is empowered only to reverse or revise a decision of the Trial Chamber on the basis of Article 25(1)(a) of the Statute1 when there is an error of law invalidating it. The appealing party alleging an error of law must therefore demonstrate that the error invalidates the decision.

The Appeals Chamber stressed that it did not operate as a second Trial Chamber. Pursuant to Article 25 of the Statute7, it held that its role was limited to correcting errors of law invalidating a decision and to errors of fact which have led to a miscarriage of justice.

Grounds of appeal and relief requested

Anto Furundzija sought the following:

1. Acquittal or, in the alternative, reversal of his convictions or a new trial; and
2. In the alternative, should the Appeals Chamber affirm the conviction imposed by the Trial Chamber, reduction of the sentence to a term not to exceed six years, including time served since the date of his original incarceration (18 December 1997).

The Appeals Chamber considered in turn the Appellant’s five grounds of appeal:

1. He was denied the right to a fair trial in violation of the Statute.
2. The evidence was insufficient to convict him on either count.
3. The Defence was prejudiced by the Trial Chamber’s improper reliance on evidence of acts not charged in the indictment which the Prosecutor never identified as part of the charges against the Appellant prior to the trial.
4. The Defence was prejudiced by the Trial Chamber’s improper reliance on evidence of acts not charged in the indictment which the Prosecutor never identified as part of the charges against the Appellant prior to the trial.
5. The Defence was prejudiced by the Trial Chamber’s improper reliance on evidence of acts not charged in the indictment which the Prosecutor never identified as part of the charges against the Appellant prior to the trial.

***

1. He was denied the right to a fair trial in violation of the Statute.

(a) Lack of fair notice of the charges to be proved against him

Anto Furundzija contended that the trial was unfair because the Trial Chamber made findings on rapes and sexual assaults perpetrated by Accused B on Witness A in "the Large Room" on the basis of evidence it had previously declared inadmissible and then convicted Anto Furundzija on the basis of those findings.

(b) The Trial Chamber’s failure to provide a reasoned opinion on the conflict between the testimony of Witness A and Witness D.

Anto Furundzija argued that the absence of reasoning in the Judgement on this decisive point constituted an error of law and violated his right to a fair trial under Articles 218, 23(2)9 of the Statute and Article 6(1) of the European Convention. To support this submission, he cited the jurisprudence of the European Court of Human Rights.

(c) Denial of the right to call Witnesses F and Enes Surkovic when the trial resumed

Anto Furundzija claimed that the Trial Chamber had denied his right under Article 21(4) of the Statute to obtain the attendance and examination of Witness F and Enes Surkovic during the re-opened proceedings as part of his general right to a fair trial.

The Prosecution opposed the three aspects of this ground of appeal.

FINDINGS

The Judges consequently held that the Appellant was not denied the right to a fair trial and that this ground had to fail.

2. The evidence was insufficient to convict him on either count.

Anto Furundzija submitted that the Prosecutor failed to prove the commission of the two following offences beyond reasonable doubt:

(a) The evidence was insufficient to convict the Appelant of the crime of torture (Count 13 of the Amended Indictment)

The Prosecutor challenged the inconsistency of the testimony and considered that the totality of the evidence more than sufficiently identified Anto Furundzija.

FINDINGS

The Appeals Chamber took the view that, on the basis of the testimony of both Witnesses A and D, it was not unreasonable for the Trial Chamber to conclude that the Appellant interrogated Witness A in "the Pantry".

The Judges also held that they could not fault the Trial Chamber’s treatment of the courtroom identification of Anto Furundzija and noted that, in any event, there was other evidence of the Appellant’s identity which would have made it reasonable for the Trial Chamber to be satisfied with the identification of Anto Furundzija.

The Prosecutor submitted that there was sufficient and relevant evidence for the Trial Chamber to draw the factual conclusions allowing it to establish beyond reasonable doubt the elements of the offence of torture. She added that Anto Furundzija had failed to raise the insufficiency of the Amended Indictment at the pre-trial stage and had consequently waived this argument. The Prosecutor concluded that the evidence proved beyond reasonable doubt that the Appellant was guilty of torture.

FINDINGS

The Appeals Chamber supported the conclusions of the Trial Chamber in respect of the general acceptance of the main elements contained in the definition set out in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which "reflects customary international law."14 The Judges noted that Anto Furundzija did not dispute this finding and ruled that the Trial Chamber correctly identified the elements of the crime of torture in a situation of armed conflict, namely:

"(i) . . . the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition
(ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person;
(iv) it must be linked to an armed conflict;
(v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity."

The Appeals Chamber added that, under this definition, in order to constitute torture, the accused’s act or omission must cause to severe physical or mental pain or suffering.

Consequently, the Judges found it inconceivable that someone could argue that the acts charged in paragraph 25 of the Amended Indictment, namely rubbing a knife against a woman’s thighs and stomach, and threatening to insert it into her vagina, once proved, were not serious enough to amount to torture.

The Prosecutor pointed out that the Appellant was charged under Article 7(1) of the Statute15 and that the Tadic Appeals Chamber Judgement established that liability for action in concert is contained within this text. She argued that, in order to find the accused criminally liable as a co-perpetrator of torture, the Decision does not require demonstration beyond reasonable doubt of a pre-existing conspiracy, agreement, plan or design between the parties. However, that common design may be inferred from the circumstances of the case. The Prosecutor also contended "that the evidence provided a reasonable basis for the finding of co-perpetration, consistent with the Tadic Appeals Judgement". She concluded that Anto Furundzija had "failed to demonstrate that the Trial Chamber’s finding that the Appellant and Accused B acted in concert was unreasonable". The Prosecutor noted that, even assuming that the main purpose of the two co-accused was not the same, that main purpose would not alter Anto Furundzija’s individual criminal responsibility as a co-perpetrator of torture.

FINDINGS

The Appeals Chamber noted that the Appellant did not challenge the Trial Chamber’s use of the definition of co-perpetrator found in Article 25 of the Rome Statute. The Judges reiterated that the Trial Chamber found that two types of liability for criminal participation appear to have crystallised in international law – co-perpetrators who participate in a joint criminal enterprise16, and aiders and abettors. Trial Chamber II further stated that to distinguish a co-perpetrator from an aider or abettor, it was crucial to ascertain whether the individual who took part in the torturing also took part in the purpose behind the torture (that is, acted with intention).

The Appeals Chamber referred to its Judgement in the case The Prosecutor v. Dusko Tadic in which it concluded that:

"There is no necessity for this plan, design or purpose to have been previously arranged or formulated. The common plan or purpose may materialise extemporaneously and be inferred from the fact that a plurality of persons acts in unison to put into effect a joint criminal enterprise."17

The Judges agreed with the Prosecutor’s submission that the events in this case should not be artificially divided between "the Large Room" and "the Pantry" since the process was a continuum and should be assessed in its entirety. There was therefore no need to prove the existence of a prior agreement since a common purpose may be readily inferred from all the circumstances. The argument that there was no common purpose is thus plainly unsustainable.

(b) The evidence was insufficient to convict Anto Furundzija of the crime of outrages on personal dignity, including rape

The Appellant submitted that his presence alone could not support a conviction for aiding and abetting. With reference to the post-World War II trials at the International Military Tribunal of Nuremberg, he argued that there was no evidence that he was a link in the chain of events leading to the rape of Witness A. He further submitted that nothing proved that his acts contributed directly to the rape or that the rape would not have happened in this manner had he not willingly aided it. The Appellant also submitted that he could not be convicted of aiding and abetting merely because he did not endeavour to prevent the rape of Witness A. He added that there was no allegation that his mere presence was calculated to give additional confidence to Accused B, nor any allegation or evidence that he knew of a common purpose behind the rape.

The Prosecutor interpreted the substance of Anto Furundzija’s arguments as relating to the mode of participation, i.e. aiding and abetting, and contended that all the evidence confirmed the identity of the Appellant as the perpetrator of the crimes. The Prosecutor referred to the Judgements of Trial Chambers II and II quater on 7 May 1997 and on 16 November 1998 in the cases The Prosecutor v. Dusko Tadic18 and Delalic et al.19 respectively which established that a "knowing presence" with a direct and substantial effect on the commission of the offence was sufficient "to base a finding of participation and assign the criminal culpability that accompanies it." She submitted that Anto Furundzija needed to demonstrate that because the legal and factual findings in the Trial Chamber’s Judgement were inconsistent with existing international customary law and with other Decisions of this Tribunal, they could not constitute the basis for determining individual criminal responsibility.

The Appellant replied that the evidence was insufficient to support the Trial Chamber’s finding of guilt beyond reasonable doubt. He argued that there was no direct evidence of concerted action and denied that he shared any criminal purpose with Accused B. He further argued that the Prosecutor had failed to prove beyond reasonable doubt that he had given Accused B assistance, encouragement, or moral support which had had a substantial effect on the perpetration of the rape.

FINDINGS

The Judges held that the Trial Chamber was best placed to assess the witness’ demeanour and the weight to be attached to his testimony. The Appeals Chamber held that there had been no showing that the factual findings of the Trial Chamber were unreasonable on the basis of the evidence admitted at trial. They were not persuaded that any legal errors requiring its intervention existed. The Appeals Chamber could therefore "find no reason to disturb these findings".

3. The Defence was prejudiced by the Trial Chamber’s improper reliance on evidence of acts not charged in the indictment which the Prosecutor never identified as part of the charges against the Appellant prior to the trial.

Anto Furundzija submitted inter alia that he was found guilty of torture on the basis of a particular course of conduct not charged in the amended indictment or committed by acts not set forth therein.

The Prosecutor submitted that, under this ground of appeal, Anto Furundzija needed to demonstrate that the Trial Chamber had erred in concluding that the evidence fell within the scope of the amended indictment and that the Trial Chamber relied on that evidence to convict the Appellant. She added the Anto Furundzija’s failure to seek to have the evidence excluded constituted a waiver of the issue on appeal.

FINDINGS

The Appeals Chamber held that, under Article 18(4) of the Statute20 and Rule 47 of the Rules of Procedure21, there is no requirement that the actual evidence on which the Prosecutor relies must be included in the indictment. Where in the course of the trial, evidence is introduced which in the view of the accused does not fall within the scope of the indictment or is within the scope but in relation to which there is no corresponding material fact in the indictment, the Defence may challenge the admission of the evidence or request an adjournment.

The Judges reiterated that Trial Chambers have been consistently mindful of the primary function of the Tribunal, which is to ensure that justice is done and that the accused receives a fair trial.

The Appeals Chamber referred to the Decision on the Defence Preliminary Motion on the Form of the Indictment rendered by Trial Chamber II on 24 February 1999 in the case The Prosecutor v. Milorad Krnojelac22. In it the Trial Chamber distinguished between the material facts underpinning the charges, that the indictment need only contain, and the actual evidence on which the Prosecutor relies to prove those material facts which need not be included in the indictment. In the present case, the Judges found nothing wrong in the Trial Chamber’s admission of the evidence supporting the charge of torture. The Appeals Chamber consequently held that the Defence was not prejudiced by the Trial Chamber’s admission of evidence in support of facts not alleged in the amended indictment.

4. Presiding Judge Mumba should have been disqualified.

Pursuant to Rule 1523, Anto Furundzija requested the disqualification of Presiding Judge Mumba claiming that she had given the appearance of bias because of her former involvement with the United Nations Commission on the Status of Women24 (hereinafter "UNCSW").

The Prosecutor submitted that the Appellant had failed to establish the existence of a personal interest or the existence of an association or working relationship between Judge Mumba, the three authors of one of the amicus curiæ briefs filed subsequently in this case and the Prosecution lawyer. She also contended that the standard for a finding of bias ought to be high and that Judges should not be disqualified merely on the basis of their personal beliefs or legal expertise. The Prosecutor argued that Anto Furundzija had "failed to meet the ‘reasonable apprehension’ of bias standard."25

FINDINGS

The Appeals Chamber pointed out that Presiding Judge Mumba was never a member of the UNCSW whilst a Judge at the Tribunal. The Chamber also noted that the parties disputed "the nature of her involvement", the exact role which Presiding Judge Mumba played, "the extent of the contact" that the authors of the brief may have had with her and "its impact on, or relevance to, the Appellant’s trial."

The Appeals Chamber noted that public documentation issued by the Tribunal, including its yearbooks, contain biographies of the Judges. In addition, the Public Information Services which are responsible for increasing public awareness of the Tribunal’s activities regularly publish Bulletins and release information on the Tribunal’s web-site. Both the Yearbook and the Public Information Services provide official information to the public on issues such as the election of new Judges and details of their legal background. The Appeals Chamber concluded that that information was therefore freely available to Anto Furundzija.

The Judges further held that the Appellant could have raised the issue before the Trial Chamber and that the Appeals Chamber could find that Anto Furundzija had waived his right and dismiss this ground. The Judges also found that Presiding Judge Mumba did not have any duty to withdraw because she had no potentially disqualifying personal interest or associations.

The Judges first stated that "[t]he fundamental human right of an accused to be tried before an independent and impartial tribunal is generally recognised as an integral component of the requirement that an accused should have a fair trial. Article 13(1) of the Statute26 reflects this, by expressly providing that Judges of the Tribunal ‘shall be persons of high moral character, impartiality and integrity’. This fundamental human right is similarly reflected in Article 21 of the Statute, dealing generally with the rights of the accused and the right to a fair trial."27

The Appeals Chamber also noted that Anto Furundzija acknowledged that he "makes no claim that Judge Mumba was actually biased", but that she gave an appearance of bias. The Appeals Chamber referred to the case-law28 of the European Court of Human Rights under article 6 para. 1 of the European Convention29, and held that "[i]n considering impartiality, the Court has repeatedly declared that the personal impartiality of a Judge must be presumed until there is proof to the contrary. In relation to the objective test, the Court has found that this requires that a tribunal is not only genuinely impartial, but also appears to be impartial." Citing a specific case, the Judges emphasised that "[w]hat is decisive is whether this fear can be held objectively justified." On this basis, the Appeals Chamber ruled that must ascertain whether one can apprehend an appearance of bias." The Judges further examined the legal basis on which a judge is disqualified in common law States such as the United Kingdom, Australia, Canada, South Africa and the United States of America, and observed the trend in civil law States such as Germany, France Italy and The Netherlands30. The Appeals Chamber concluded that "the interpretation by national legal legal systems of the requirement of impartiality and in particular the application of an appearance of bias test, generally corresponds to the interpretation under the European Convention."

In respect of the standard to be applied by the Appeals Chamber, the Judges found "that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias." On this basis, the Appeals Chamber considered "that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A. A Judge is not impartial if it is shown that actual bias exists.
B. There is an unacceptable appearance of bias if:

(i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties. Under these circumstances, a Judge’s disqualification from the case is automatic; or
(ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias."

The Appeals Chamber then applied the statutory requirement of impartiality to the instant case and turned to the issue of whether Presiding Judge Mumba was a party to the cause or had a disqualifying interest therein. The Chamber decided to apply the appearance of bias test established in the Pinochet case and held that there was no basis for a finding of partiality. The Appeals Chamber further examined whether the circumstances of Presiding Judge Mumba’s membership in the UNCSW would lead a reasonable and informed observer to apprehend bias. The Chamber recalled the famous maxim that "justice should not only be done, but should manifestly and undoubtedly be seen to be done" and pointed out that there is a presumption of impartiality attached to a Judge. The Appeals Chamber referred to the Order on the accused’s Application requesting the disqualification of Judges Jorda and Riad rendered by the Bureau on 4 May 1998 in the case The Prosecutor v. Dario Kordic and Mario Cerkez31 and to a Decision of the Supreme Court of South Africa. It considered that Anto Furundzija must adduce sufficient evidence to satisfy the Appeals Chamber that Presiding Judge Mumba was not impartial in his case. The burden of proof thus lies with the Appellant. The Judges added that a high threshold must be met in order to rebut the presumption of impartiality.

The Appeals Chamber first noted "that Judge Mumba acted as a representative of her country and therefore served in an official capacity." Representatives of the UNCSW are selected and nominated by governments, which means that a member of the UNCSW is subject to the instructions and control of the government of his or her country. The Judges also held that "[t]o endorse the view that rape as a crime is abhorrent and that those responsible for it should be prosecuted within the constraints of the law cannot in itself constitute grounds for disqualification." The Appeals Chamber further considered that Presiding Judge Mumba’s membership in the UNCSW "and, in general, her previous experience in this area would be relevant to the requirement under Article 13(1) of the Statute32 for experience in international law, including human rights law."33 The Judges reiterated that "possession of this experience is a statutory requirement for Judges to be elected to this Tribunal."34 The Appeals Chamber concluded that "[i]t would be an odd result if the operation of an eligibility requirement were to lead to an inference of bias. [...] In other words, the possession of experience in any of those areas by a Judge cannot, in the absence of the clearest contrary evidence, constitute evidence of bias or partiality."35

The Appeals Chamber also noted "that there was no dispute at trial as to whether rape can, or should, be categorised as a war crime. [...] In addition, the Appelant confirmed during the oral hearing on the appeal that there was no issue raised at trial as to whether rape could be categorised as a war crime." In respect of the reaffirmation by the Tribunal of rape as a war crime, the Judges reiterated that "in the Celebici Judgement, one of the accused was convicted of torture by means of rape, as a violation of the laws or customs of war."36

The Appeals Chamber concluded that Presiding Judge Mumba was subjectively free of bias and that nothing in the circumstances objectively gave rise to an appearance of bias. Accordingly it found that Anto Furundzija’s allegations lacked substance.

5. The sentence imposed on him was excessive.

Anto Furundzija submitted that the case-law of the Tribunal demonstrated an emerging penal regime embodying several general sentencing principles. The Appellant cited the Trial Chamber’s opinion in the case The Prosecutor v. Dusko Tadic37 and the Appeals Chamber’s Judgement in the case The Prosecutor v. Drazen Erdemovic38 to support his contention that the first such principle is that an act classified as a crime against humanity should attract a harsher sentence than an act classified as a war crime. Anto Furundzija referred to the Sentencing Judgement rendered in the case The Prosecutor v. Dusko Tadic to argue that a second principle has emerged in the practice of the Tribunal: crimes warrant more severe punishment when they result in the loss of human life. The Appellant claimed that in order to ensure consistency his sentence should be reduced to six years’ imprisonment.

The Prosecutor replied that a sentence is imposed at the discretion of the Trial Chamber and that the Appeals Chamber may not substitute its opinion for a Trial Chamber’s unless the Appellant can demonstrate an error in the exercise of the Trial Chamber’s discretion in sentencing. The Prosecutor disputed the contention that there is a cognisable sentencing regime at the Tribunal. She further noted that each of the sentences imposed by the Tribunal to date, which in Anto Furundzija’s view reflect an emerging penal regime, was the subject of an appeal.

The Prosecutor expressed the opinion that it would nevertheless be desirable for the Appeals Chamber to establish appropriate sentencing principles in order to achieve consistency and even-handedness. She further argued that deterrence, which has both a " and an "educative" aspects, as well as retribution should be the primary goals of sentencing. The Prosecutor finally submitted that the imposition of sentences lower than those prevailing in national jurisdictions would undermine the Tribunal aim of contributing to the restoration of peace and security in the former Yugoslavia. She added that the gravity of the crime must form the starting point for any determination of sentence.

FINDINGS

The Appeals Chamber considered it "premature to speak of an emerging ‘penal regime’" and found that, at this stage, it was not possible to identify one. The Judges held that "[i]nstead, due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case."

The Appeals Chamber also considered "it inappropriate to establish a definitive list of sentencing guidelines for future reference, when only certain matters relating to sentencing" were at issue. The Judges thus limited themselves to the issues directly raised by this appeal.

The Appeals Chamber first addressed the standard of review to be applied in an appeal against sentence. The Judges referred to the Judgement of the Appeals Chamber on 26 January 2000 and on 24 March 2000 in the cases The Prosecutor v. Dusko Tadic and Zlatko Aleksovski39, which set out the test of a discernible error in respect of the exercise of the Trial Chamber’s discretion.

1. Crimes against humanity attract harsher penalties than war crimes

The Appeals Chamber referred to its Sentencing Judgement rendered in The Prosecutor v. Dusko Tadic which stated inter alia that "[t]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime." The Judges noted that the same arguments now advanced by Anto Furundzija had been considered and rejected in this case. The Appeals Chamber thus decided to "follow its Decision on the question of relative gravity" between crimes against humanity and war crimes.

2. Crimes resulting in loss of life are to be punished more severely than other crimes

The Judges first noted that the Appellant and the Prosecutor agreed that, in principle, crimes which result in the loss of human life should be punished more severely but considered this approach too rigid and mechanistic. The Appeals Chamber reiterated that ever since the Sentencing Judgement in the case The Prosecutor v. Dusko Tadic, its position had been "that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter. It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes."

The Judges interpreted the argument advanced by Anto Furundzija in support of a six-year sentence as claiming "that all war crimes should attract similar sentences." The Appeals Chamber expressed its disagreement "with this logic, or with the imposition of a restriction on sentencing which does not have any basis in the Statute or the Rules."

The Judges ruled that "[i]n deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness."

The Appeals Chamber reiterated the statement of Trial Chamber II in the Judgement rendered on 14 January 2000 in the case The Prosecutor v. Kupreskic et al.40, namely that "[t]he sentences to be imposed must reflect the inherent gravity of the criminal conduct of the accused. The determination of the gravity of the crime requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crime." The Judges pointed out that this statement had been endorsed by the Appeals Chamber in the Judgement in the case The Prosecutor v. Zlatko Aleksovski and that there was no reason to depart from it.

The Judges stressed that "[t]he sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given. [...] [A] Trial Chamber is limited only by the provisions of the Statute and the Rules. It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life [...], depending on the circumstances."

The Appeals Chamber held that the sentence imposed on Anto Furundzija was not excessive and that the Trial Chamber had exercised its discretion in accordance with the relevant provisions of the Statute, the Rules and the previous Decisions of the Tribunal.

Declaration of Judge Mohamed Shahabuddeen

Judge Mohamed Shahabuddeen expressed the view that the principle of impartiality rests on a general principle of law and not on customary international law. He asked himself whether a standard by which that general principle of law may be applied in particular circumstances is a norm of customary international law and pointed out that a new rule of customary international law may override a general principle, or add to it, or subtract from it, or otherwise qualify it.

He suggested "a distinction between the emergence of a new customary norm prescribing how an existing principle is to be applied to particular circumstances before a court and a judicial interpretation of an existing principle as to how it is to apply to those circumstances."

More importantly, the Judge considered that "the question whether there has emerged a new norm of customary international law setting a standard as to how a general principle is to be applied could draw the answer that no such customary norm has emerged, with the result that (on the assumption that the emergence of such a norm is necessary) the general principle could not be applied."

Judge Shahabuddeen pointed out that the Tribunal has the freedom to select an interpretation even if it is at variance with that prevailing in some legal systems, "[b]ecause it is only consulting the experience of others, and not limited by a standard set by a norm of customary international law."

In respect of the evaluation of the appearance of bias, Judge Shahabuddeen noted that "[t]he standard has to be effective for the purpose of giving meaning to the principle which it seeks to apply", but that public confidence in the administration of justice "need not be disturbed by the reactions of the hypersensitive and the uninformed". In his opinion, the test "is to ask whether a fair-minded and informed member of the public would reasonably apprehend bias in all the circumstances of the case. To that question, the evidence in this matter returns a negative answer."

Declaration of Judge Lal Chand Vohrah

Judge Lal Chand Vohrah reiterated the approach he had adopted in his Separate Opinions set out under the Judgement in Sentencing Appeals rendered on 7 October 1997 and 26 January 2000 in the cases The Prosecutor v. Drazen Erdemovic41 and Dusko Tadic42. Judge Vohrah stated that "[w]hile all crimes cannot be placed on a continuum of seriousness or within a hierarchy of gravity, there are certain crimes that will always be regarded as the worst crimes it is possible to commit, and these include genocide and crimes against humanity. These crimes are considered the ‘crime of crimes’43 primarily because they are committed against a group as such or are committed generally against a large number of people, and often committed on discriminatory grounds. Indeed, if the majority’s view that war crimes and crimes against humanity are prima facie indistinguishable as to inherent gravity, that principle would seemingly apply to there also being no hierarchical difference between war crimes and crimes against peace or between war crimes and genocide. I find this position to be inherently flawed, as it fails to take into account inter alia the broader nature of the crimes or the different interests the prohibitions of the crimes are intended to protect.

"Naturally, a Chamber must look at the individual circumstances of each case and the convicted person’s degree of culpability in determining a sentence, and in many circumstances when all things are not equal, a war crime might warrant a heavier penalty than a crime against humanity or genocide." (emphasis added) Judge Vohrah held that "[w]hen all things are equal, although the injury to the individual may be the same, the injury to society would necessarily be greater if a crime against humanity has occurred. This extended injury should ordinarily be reflected in the sentence."(emphasis added)

He added that "[t]here is in my view an irreconcilable contradiction in holding on the one hand that all things being equal there is no inherent distinction between war crimes and crimes against humanity, including in the imposition of sentences, yet holding on the other hand that crimes resulting in death deserve more severe punishment than crimes not resulting in death."

Judge Vohrah considered that for a Court to hold "that the additional elements required for constituting genocide or crimes against humanity and the fact that a broader society is affected by such crimes do not deserve to be reflected in the sentence of a person convicted of these crimes, amounts to a failure to take into consideration the exceptionally egregious nature of genocide and crimes against humanity."

He noted that the Judgement and Sentence rendered by Trial Chamber I of the International Criminal Tribunal for Rwanda on 4 September 1998 in the case The Prosecutor v. Jean Kambanda found that "genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence", picked out genocide and crimes against humanity as the most serious crimes, determined that "precisely on account of their extreme gravity, crimes against humanity and genocide must be punished appropriately" and considered war crimes as "crimes of a lesser seriousness" in relation to genocide and crimes against humanity. Judge Vohrah referred to the Judgement of Trial Chamber I on 3 March 2000 in the case The Prosecutor v. Tihomir Blaskic44, which established a "genuine hierarchy of crimes" used at the sentencing phase.

He concluded that "when all things are equal, a person convicted of a crime against humanity commits a more serious crime than a person convicted of a war crime and ordinarily this additional gravity requires that the person convicted of a crime against humanity should receive a longer sentence than a person convicted of the same act as a war crime. This view would naturally include genocide which, also considered a crime against humanity, is similarly inherently more serious than a war crime; all things being equal, it should be recognized and punished as such". Judge Vohrah nevertheless pointed out that "[t]his should not be taken to support the Appellant’s argument in the present case that his sentence for war crimes should be reduced."

Declaration of Judge Patrick Lipton Robinson

Judge Patrick Lipton Robinson noted that "[t]he meaning of Rule 15 is not plain" and that "it is important to ascertain whether there is a rule of customary international law" which impacts on the interpretation and application of the provision.

He referred to the Report of the Secretary-General which stresses the need for the Tribunal to apply rules of customary international law to determine the criminality of conduct so as to avoid conflict with the principle nullum crimen, nulla poena sine lege45. Judge Robinson stated that "the Tribunal would, in any event, be obliged to apply customary international law". He identified the other component as conventional international law.

Judge Robinson considered that "[i]f there is a relevant rule of customary international law, due account must be taken of it, for more than likely, it will control the interpretation and application of the particular provision. [...] If there is no relevant rule of customary international law, the relevant provision in the Statute or the Rules will be interpreted in accordance with [...] good faith, textuality, contextuality [...] and teleology."

He emphasised that it is accepted that decisions of other courts and tribunals, which are not binding on the Tribunal, may, if sufficiently uniform, provide evidence of international custom. He added that the cumulative effect of uniform decision of national courts shall form a sufficiently widespread practice of States accompanied by opinio juris sive necessitatis46.

Judge Robinson noted that "the impartiality of judges is a requirement of customary international law", but added that he "would have been more content with a specific identification of the customary character of the principle of judicial impartiality."

Judge Robinson pointed out that the question which the Appeals Chamber needed to resolve was the standard to be employed in determining a breach of Rule 15 which seeks to give effect to this customary requirement. He expressed regrets that the Chamber did not seek "to ascertain whether any rule of customary international law had developed in relation to that standard." He considered that the finding of the Chamber "was not sufficient to resolve the issues raised by the interpretation of Rule 15, for it left unanswered the further question as to the sub-standard or criterion to be employed for determining when, objectively, there is an appearance of bias."

He held that the Chamber’s examination could provide a sufficient foundation for a determination as to whether a rule of custom had emerged in respect of the standard for determining whether there is a breach of the principle of judicial impartiality.

Judge Robinson nevertheless contemplated that "[i]t may be that there is implicit in the Chamber’s characterisation of its finding as "a general rule" a recognition that it has a customary basis."

He then expressed his agreement with the conclusion drawn by the Appeals Chamber that Rule 15 should be interpreted in the light of the indicia of an unacceptable appearance of bias.

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1."The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on [...] an error on a question of law invalidating the decision".
2. The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-A, Appeals Chamber, Reasons for Judgement, 6 April 2000, in which the Chamber ruled that "[...] the Appellant must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice" (para. 22). The Appellant is thus required to demonstrate the existence of two elements.
3. "A grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime".
4. The Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6).
5. The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13).
6. On the definition and distinction which has to be drawn between the two notions of the credibility of a witness and the reliability of that witness’s evidence, see The Prosecutor v. Dragoljub Kunarac, Radomir Kovac & Zoran Vukovic ("Foca"), Case No. IT-96-23-T, Trial Chamber II, Decision on Motion for Acquittal, 3 July 2000 (summarised in this issue of the Judicial Supplement ).
7. "1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:

(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.

2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers."

8. "1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt."

9. "The judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended."
10. "Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber."
11. "The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged."
12. "(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:

(i) evidence for the prosecution;
(ii) evidence for the defence;
(iii) prosecution evidence in rebuttal;
(iv) defence evidence in rejoinder;
(v) evidence ordered by the Trial Chamber pursuant to Rule 98; and
(vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment.

(B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness.
(C) If the accused so desires, the accused may appear as a witness in his or her own defence."
13. The Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Trial Chamber II, Opinion and Judgement, 7 May 1997.
14. Para. 111.
15. "A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime."
16. On the notion of joint criminal enterprise, see The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Trial Chamber II, Decision on Form of Second Amended Indictment, 11 May 2000 (summarised and analysed in Judicial Supplement No. 15).
17. Tadic Appeals Chamber Judgement, para. 227.
18. The Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Trial Chamber II, Opinion and Judgement, 7 May 1997.
19. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (summarised in Judicial Supplement No. 1).
20. "Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute. The indictment shall be transmitted to a judge of the Trial Chamber."
21. "The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged."
22. The Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Trial Chamber II, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 February 1999 (summarised in Judicial Supplement No. 2).
23. "(A) A Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality. The Judge shall in any such circumstance withdraw, and the President shall assign another Judge to the case.
(B) Any party may apply to the Presiding Judge of a Chamber for the disqualification and withdrawal of a Judge of that Chamber from a trial or appeal upon the above grounds. The Presiding Judge shall confer with the Judge in question, and if necessary the Bureau shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge.
(C) The Judge of the Trial Chamber who reviews an indictment against an accused, pursuant to Article 19 of the Statute and Rules 47 or 61, shall not be disqualified for sitting as a member of the Trial Chamber for the trial of that accused. Such a Judge shall also not be disqualified for sitting as a member of the Appeals Chamber, or as a member of a bench of three Judges appointed pursuant to Rules 65 (D), 72 (B)(ii), 73 (B) or 77 (J), to hear any appeal in that case.
(D) (i) No Judge shall sit on any appeal or as a member of a bench of three Judges appointed pursuant to Rules 65 (D), 72 (B)(ii), 73 (B) or 77 (J) in a case in which that Judge sat as a member of the Trial Chamber.
(ii) No Judge shall sit on any State Request for Review pursuant to Rule 108 bis in a matter in which that Judge sat as a member of the Trial Chamber whose decision is to be reviewed."
24. The UNCSW is an organisation whose primary function is to act for social change which promotes and protects the human rights of women. One of its concerns during Judge Mumba’s membership was the war in the former Yugoslavia and specifically the allegations of mass and systematic rape. This concern was exhibited by its resolutions condemning these practices and urging the International Tribunal to give them priority by prosecuting those allegedly responsible.
25. Para. 171.
26. "The Judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law".
27. Para. 177.
28. See para. 181.
29. Article 6 para. 1 of the European Convention for the Protection of Human Rights and Civil Liberties reads inter alia: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal, established by law".
30. On a similar examination of the standards to be applied and the notions of subjective and objective impartiality, see The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Decision on Application by Momir Talic for the Disqualification and Withdrawal of a Judge, Judge David Hunt, 18 May 2000 (summarised and analysed in Judicial Supplement No. 15).
31. The Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-PT, Bureau, Decision on the Application of the Accused Requesting the Disqualification of Judges Jorda and Riad, 4 May 1998.
32. "The judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law".
33. Para. 205.
34. Ibidem.
35. Ibidem.
36. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998 (summarised in Judicial Supplement No. 1).
37. The Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Trial Chamber II, Sentencing Judgement, 14 July 1997.
38. The Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Appeals Chamber, Judgement, 7 October 1997.
39. The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13).
40. The Prosecutor v. Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-T, Judgement, 14 January 2000 (summarised in Judicial Supplement No. 11).
41. The Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Appeals Chamber, Judgement, 7 October 1997.
42. The Prosecutor v. Dusko Tadic, Case No. IT-94-1-Abis, Appeals Chamber, Judgement in Sentencing Appeals, 26 January 2000 (summarised in Judicial Supplement No. 11).
43. See discussion in Prosecutor v. Jean Kambanda, Judgement and Sentence, Case No. ICTR-97-23-S, Trial Chamber I, 4 September 1998, at paras. 10-33, and as highlighted in this Declaration, infra. Also note that in the debates on Security Council resolution 955 establishing the ICTR, the representative of Rwanda referred to genocide as "the crime of crimes." See UN Doc. S/PV.3453, 8 November 1994.
44. The Prosecutor v. Tihomir Blaskic, Case No. IT-95-14, Trial Chamber I, Judgement, 3 March 2000 (summarised in Judicial Supplement No. 13).
45. Under this principle, which means no offence, no punishment without a law, a person can only be punished for a crime if the punishment is prescribed by law.
46. This principle, which means "whether the opinion of law is necessary", constitutes one of the four sources of international law under the Statute of the International Court of Justice and is an essential element of custom. A State’s conduct rises to the level of international customary law on the condition that the conduct stems from the State’s belief that international law mandates the conduct. The opinio juris requires that custom be regarded as State practice amounting to a legal obligation, which distinguishes it from mere usage.