"Decision on Interlocutory Appeal by the Accused Zoran Zigic against the Decision of Trial Chamber I dated 5 December 2000"

25 May 2001
Judges Vohrah [Presiding], Shahabuddeen, Nieto-Navia, Pocar and Liu)

Procedural Background

• On 5 December 2000, Trial Chamber I dismissed the Defence Motion Regarding Concurrent Procedures Before the International Criminal Tribunal for the Former Yugoslavia and International Court of Justice on the Same Questions1.

• On 12 December 2000, Zoran Zigic filed a Motion for leave to appeal.

• On 16 February 2001, a Bench of the Appeals Chamber held that questions as to whether the proceedings in the Trial Chamber should be suspended pending determination of the same or an allied issue by the International Court of Justice and the impact of Decisions by each judicial body on the other constitute issues of general importance to proceedings before the Tribunal or in international law generally.

• An Interlocutory Appeal Against the Decision rendered by the Trial Chamber was filed on 1 March 2001.

The Reasoning

• On admissibility: the Appeals Chamber stated that Zoran Zigic had filed the Interlocutory Appeal outside the time-limits set by the Practice Direction of 1 October 1999 on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal2. It also stated that the Appellant had not applied for an extension of time. However, due to the importance of the issues raised in the appeal, the Appeals Chamber "decided to admit the Interlocutory Appeal pursuant to Article 14 of the Practice Direction"3.

• On the merits: the Appeals Chamber referred to the Judgement it rendered on 20 February 2001 in the case The Prosecutor v. Zejnil Delalic et al.4 in which the Appeals Chamber found that "there is no hierarchical relationship" between the International Court of Justice and the Tribunal5. In the instant case, the Appeals Chamber considered that there was "no reason to depart from these conclusions" and added that no legal basis exists for suggesting that the "Tribunal must defer to the International Court of Justice such that the former would be legally bound by decisions of the latter."

  Nevertheless, the Appeals Chamber emphasised that Decisions of "the International Court of Justice addressing general questions of international law are of the utmost significance" and that the Tribunal would consider such Decisions, "giving due weight to their authority." It pointed out however that the "Tribunal has its own competence." The Appeals Chamber thus held that the Tribunal would consider any Decisions of the International Court of Justice, "subject to its competence to make its own findings." It contemplated that the Tribunal may reach "different conclusions, and differences in holdings may occur."6 Nonetheless the Appeals Chamber found that "[t]his does not justify suspension of the present proceedings until the International Court of Justice has decided any matters pending before that Court."

  It reiterated that the Appellant had acknowledged that the suspension of the proceedings could impact adversely on his right to a fair and expeditious trial and offered to waive this right. The Appeals Chamber held that it "has a primary obligation to ensure that the accused has a fair and expeditious trial - a fundamental guarantee - as set out in Articles 20(1)7 and 21(4)8 of the Statute and embodied in the major international human rights instruments." It added that "[t]he right to an expeditious trial is an inseparable and constituent element of the right to a fair trial."9 The Appeals Chamber emphasised that "[p]rocedural equality requires that the concept of a fair trial be applied taking into account the interests of both parties". It referred to the Decision on Prosecutor's Appeal on Admissibility of Evidence that it had rendered on 16 February 1999 in the case of Aleksovski10 and reiterated that "[t]he Prosecution acts on behalf of and in the interests of the international community"11.

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1. See Weekly Update No. 151.
2. IT/155.
3. "[…A] bench of three Judges of the Appeals Chamber may vary any time-limit prescribed under this Practice Direction […]".
4. The Prosecutor v. Zejnil Delalic et al. ("Celebici"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised and analysed in Judicial Supplement No. 23).
5. Ibidem, para. 24.
6. See for instance The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6), paras. 115 and 116; see also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Appeals Chamber, Decision, 31 May 2000, Separate Opinion of Judge Shahabuddeen, in which the Judge noted "that, whereas the Tribunal was established by a principal organ of the United Nations, the ICJ is itself a principal organ of that Organisation and, indeed, its 'principal judicial organ' as provided by the supreme law of both judicial bodies. […] The lawgiver might reasonably be supposed to have envisaged that the Tribunal would in consequence show deference to, if not take the law from, decisions of the ICJ as to what was customary international law and depart from them only in the clearest and most compelling cases. Subject to such narrow exceptions, when there is a conflict in holdings the Appeals Chamber should accordingly be prepared to bring its previous decisions into conformity with those of the ICJ. If not, the consequences may be noted." (Para. 32)
7. "The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses."
8. Article 21(4)(c) of the Statute provides that "[i]n 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 […] to be tried without undue delay."
9. See also The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber I, Decision on the Prosecutor's Motion to hold pre-trial motions in abeyance, 28 January 1998, in which the Trial Chamber considered "that the Prosecutor's right to submit a request for leave to amend the indictment pursuant to Rule 50 of the Rules must not be exercised to the prejudice of the accused's right to be tried without undue delay as stated in Article 21(4)(c) of the Statute"; Trial Chamber III, Decision on Prosecution Request to Proceed by Deposition, 3 November 1999 (summarised in Judicial Supplement No. 9); The Prosecutor v. Dragoljub Kunarac et al. ("Foca"), Case No. IT-96-23-PT, Trial Chamber II, Decision on Joinder of Trials, 9 February 2000 (summarised in Judicial Supplement No. 12); The Prosecutor v. Miroslav Kvocka et al. ("Omarska & Keraterm Camps"), Case No. IT-98-30-T/IT-95-4-PT, Trial Chamber I, Decision on Prosecution Motion to Join Trials, 14 April 2000 (summarised in Judicial Supplement No. 14).
10. The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-AR73, Appeals Chamber, Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 February 1999 (summarised in Judicial Supplement No. 2).
11. Ibidem, para. 25; see also Standards of Professional Conduct for Prosecution Counsel, 14 September 1999, in which the then Chief Prosecutor, Louise Arbour, stated that Prosecutors "represent the international community".