1. I dissented in part from the Blaskic Appeal Judgement because I considered that the Appeals Chamber reformulated the standard of appellate review employed in all previous cases and developed a novel methodology which limited the Appeals Chamber’s access to the totality of the evidence in the Record on Appeal.1684 In the Kordic and Cerkez Appeal Judgement, the Appeals Chamber reiterated the standard and methodology articulated in the Blaskic Appeal Judgement, but, as I pointed out in my separate opinion,1685 failed to apply them. In the instant case, the Appeals Chamber again invokes the Blaskic standard,1686 yet it appears to renege on that standard thereafter1687 and does not implement the Blaskic standard in reaching its findings.1688
2. While I appreciate that, in the end, the Appeals Chamber does not apply the Blaskic standard in the present case, it should not have been reasserted at paragraph 426 of the Judgement. The Blaskic Appeal Judgement is a singular departure from well-established judicial precedent.1689 Rather than attempting to pay lip-service to the Blaskic case, while simultaneously applying the established standards and methodology, the Appeals Chamber should restore the clear position that governed appellate proceedings prior to the Blaskic Appeal Judgement.
3. As explained in my Partially Dissenting Opinion in the Blaskic Appeal and in my Separate Opinion in the Kordic and Cerkez Appeal, the Blaskic standard of appellate review differs from the established precedent in three significant areas: the standard of appellate review of alleged errors of fact when additional evidence is admitted, the non-deferential approach to appellate factual findings after an error of law has been identified and corrected, and the methodology of appellate review.
4. The standard of appellate review with respect to alleged errors of fact firmly established by the jurisprudence of the International Tribunal is a “reasonableness ” standard.1690 Under this standard, the Appeals Chamber assesses whether a finding of fact made by the Trial Chamber was one that no reasonable trier of fact could have reached. In all cases prior to the Blaskic Appeal Judgement, this standard was applied when assessing all errors of fact, regardless of whether additional evidence was adduced on appeal.
5. In the Kupreskic et al. Appeal Judgement, the Appeals Chamber established the basic principle that:
The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.1691
6. This approach has been followed in all other recent cases involving additional evidence, except the Blaskic Appeal Judgement. In the Krstic Appeal Judgement, decided a few months before the Blaskic Appeal Judgement, the Appeals Chamber applied the Kupreskic approach in its treatment of additional evidence. The Appeals Chamber found that “[t]he Trial Chamber’s rejection of the Defence’s Argument as to the parallel chain of command, even when examined in light of the Defence’s additional evidence, is not one that no reasonable trier of fact could have made.”1692
7. This standard has also been applied by the Appeals Chamber in recent ICTR appeals. In the Rutaganda Appeal Judgement, for example, the Appeals Chamber specifically addressed the standard to be applied to alleged errors of fact involving additional evidence at the ICTR and explained:
In accordance with Rule 118(A) of the Rules and the relevant jurisprudence, the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings? Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.1693
8. In the Blaskic Appeal Judgement, the Appeals Chamber departed from this well-established approach without articulating any cogent reasons for doing so.1694 According to the Blaskic Appeal Judgement, when additional evidence is introduced on appeal, “the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.”1695 For the reasons I have already expressed in my Partially Dissenting Opinion in the Blaskic Appeal, I cannot agree with this approach, which accords no deference to the Trial Chamber and usurps the role of the trier of fact. The admission of additional evidence does not turn the Appeals Chamber into a Trial Chamber: our proper role is limited to assessing whether there has been an error of fact in the trial judgement occasioning a miscarriage of justice and does not extend to making independent factual findings beyond a reasonable doubt.
9. In the present case, the Appeals Chamber also endorses the Blaskic Appeal Judgement approach to revision of factual findings after the Appeals Chamber has corrected an error of law.1696 As I explained in my Separate Opinion in the Kordic and Cerkez Appeal, I do not think that this approach is theoretically sound.1697
10. The standard of review of errors of law set out by the Appeals Chamber in the present Judgement suggests that, whenever the Appeals Chamber corrects an error of law, it must apply the new standard to the evidence contained in the trial record in order to “determine whether it is itself convinced beyond reasonable doubt as to the factual findings challenged by the Defence, before that finding is confirmed on Appeal.”1698 This approach accords no deference to the factual findings made by the Trial Chamber. When applying a corrected legal standard, the Appeals Chamber should first look to the findings made by the Trial Chamber because in many instances the Trial Chamber will already have made the factual findings necessary to satisfy the corrected legal standard. The Appeals Chamber should only determine whether it is satisfied beyond a reasonable doubt as to the Appellant’s guilt on the basis of a corrected legal standard when the Trial Chamber has not already made sufficient findings to apply this corrected legal standard. In reviewing the record, the Appeals Chamber should also rely, to the extent possible, on the Trial Chamber’s findings on related matters such as the credibility and reliability of evidence. Again, the majority misconceives the role of the Appeals Chamber, which should be deferential to the reasonable findings of fact already made by the Trial Chamber.
11. The Blaskic Appeal Judgement also developed a novel method of appellate review, which requires the Appeals Chamber to assess the Trial Chamber’s judgement “in principle only taking into account the following factual evidence: evidence referred to by the Trial Chamber in the body of the judgement or in a related footnote ; evidence contained in the trial record and referred to by the parties; and additional evidence admitted on appeal.”1699 In the Kordic and Cerkez Appeal Judgement, the Appeals Chamber explained that to look at further evidence contained in the record would subvert the adversarial process and would be ultra vires the appellate role.1700 In that case, although appearing to agree with the Blaskic methodology,1701 the Appeals Chamber nevertheless decided to go beyond this methodology and admitted that it had “to reassess a plethora of evidence in order to find out whether or not all constituent elements of the crimes were established during trial.”1702
12. I have already explained why, in my view, the Appeals Chamber errs in imposing this limitation on itself.1703 In light of the fact that this constraining methodology does not seem to have been reiterated in the present case, I need not expand again on this point.
13. While I can agree with the disposition in the Judgement of the Appeals Chamber, I am of the view that the Appeals Chamber should not have endorsed the standard articulated in the Blaskic Appeal Judgement; rather, it should have reasserted in unambiguous terms the standard outlined in the Kupreskic et al. Appeal Judgement.
Done in English and French, the English text being authoritative.
Dated this 28th day of February 2005,
At The Hague,
The Netherlands.
__________________________
Inés Mónica Weinberg de Roca
[Seal of the International Tribunal]
1. I support today’s judgement, but have difficulty in accepting a view which it expresses in the course of its discussion of the appellate standard for evaluating additional evidence. That view1704 was adopted from Blaskic.1705 It is to the effect that, in an appeal from a conviction based on an alleged error of fact in which additional evidence is admitted, the Appeals Chamber must, in certain circumstances, be “itself convinced” that guilt has been proved beyond reasonable doubt by the additional evidence taken together with the trial evidence (“totality of the evidence”) before it affirms the conviction. That is not the same thing as saying that the function of the Appeals Chamber is to determine whether the verdict of the Trial Chamber was safe in the light of the totality of the evidence. This, in my respectful view, is the right proposition of law. The case of an appeal by the prosecution may or may not involve different considerations. On that, I say nothing. On the present matter, I shall explain my position in this opinion.
2. At the beginning, however, I should like to say that I am conscious of the fact that I shall be citing cases from domestic jurisdictions, and more particularly from adversarial ones. This is so because of my view of the nature of the Appeals Chamber. Though the subject of additional evidence1706 is dealt with only in the Rules of Procedure and Evidence of the Tribunal, the administration of the subject is of course a matter for the Appeals Chamber, which has been established by the Statute. Consequently, it is necessary to attend to the nature of the Appeals Chamber as it has been so established.
3. There are statements in the case law of the Tribunal to the effect that the Tribunal is a hybrid institution.1707 That, however, is consistent with the view that there could be an aspect on which the Statute of the Tribunal has been fashioned on a particular model. I think this is so with respect to appeals. In my view, the Statute visualised an appellate process as understood in adversarial systems. This is the reason for recourse to the jurisprudence of those systems.
4. The issue, which arises out of paragraph 426 of today’s judgement, is this: Where additional evidence is admitted in an appeal from a conviction based on an alleged error of fact, is the Appeals Chamber always to ask whether the appellant has “established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon” the totality of the evidence (the “reasonable tribunal test” or the “Kupreskic 1708 test”)? Or, where a reasonable tribunal of fact could have reached a conclusion of guilt beyond reasonable doubt on the totality of the evidence, is the Appeals Chamber to go on and ask “whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt” before affirming the conviction (the “guilt determination test” or the “Blaskic” test)?
5. The reasonable tribunal test was adopted by the Appeals Chamber in Kupreskic. In paragraphs 42-76 of the judgement in that case, the Appeals Chamber dealt with the general subject of “Reconsideration of factual findings where additional evidence has been admitted under Rule 115” of the Rules of Procedure and Evidence of the Tribunal. In paragraphs 48-69, it considered the principles relating to the particular subject of admission of additional evidence. In paragraph 76, it summed up its finding on this branch by saying that, in “determining whether to admit the evidence in the first instance, the relevant question is whether the additional evidence could have had an impact on the trial verdict.”
6. In paragraphs 70-76 of its judgement in Kupreskic, the Appeals Chamber then considered the value to be given to additional evidence once it has been admitted. It did so in the course of its treatment of the subject: “Testing the admitted evidence.” After examining some of the world’s legal systems, in paragraph 75 of its unanimous judgement, it said:
The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.
7. The Appeals Chamber repeated the test in virtually the same words in the next paragraph of its judgement in Kupreskic, stating:
In deciding whether to uphold a conviction where additional evidence has been admitted, the relevant question is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.
8. It will be seen that Kupreskic means that –
(a) if the appellant has established that no reasonable tribunal of fact could have reached a conclusion of guilt based on the totality of the evidence, the conviction is quashed;
(b) correspondingly, if the appellant has not established that no reasonable tribunal of fact could have reached a conclusion of guilt based on the totality of the evidence, the conviction is affirmed;
(c) these principles deal exhaustively with all possible cases in which additional evidence has been admitted.
9. The Kupreskic test was in due course adopted by the ICTR Appeals Chamber in Musema1709 and in Rutaganda .1710 In my view, that test became part of the accepted jurisprudence of both Tribunals.
10. A little less than three years after its decision in Kupreskic, a largely recomposed bench of the Appeals Chamber returned to the matter in Blaskic. Paragraph 8 of the judgement in Blaskic stated that “the Appeals Chamber considers that this appeal necessitates a further examination of the existing standards” of appellate review. And so there was a further re-examination. In the judgement in Blaskic, the re-examination was set out in a “summary concerning the standard of review to be applied on appeal by the International Tribunal in relation to findings challenged only by the Defence, in the absence of a Prosecution appeal” – as in this case. As it will not be correct to focus on the substance of the summary, the relevant text is reproduced in extenso:
19. The Appeals Chamber considers that there are no reasons to depart from the standard set out [in Kupreskic], in relation to grounds of appeal alleging pure errors of fact and when no additional evidence has been admitted on appeal. That standard shall be applied where appropriate in the present Judgement.
20. When factual errors are alleged on the basis of additional evidence proffered during the appellate proceedings, Rule 117 of the Rules provides that the Appeals Chamber shall pronounce judgement “on the basis of the record on appeal together with such additional evidence as has been presented to it.”
21. The Appeals Chamber in Kupreskic established the standard of review when additional evidence has been admitted on appeal, and held:
The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.
22. The standard of review employed by the Appeals Chamber in that context was whether a reasonable trier of fact could have been satisfied beyond reasonable doubt as to the finding in question, a deferential standard. In that situation, the Appeals Chamber in Kupreskic did not determine whether it was satisfied itself ,1711 beyond reasonable doubt, as to the conclusion reached, and indeed, it did not need to do so, because the outcome in that situation was that no reasonable trier of fact could have reached a finding of guilt.
23. However, if in a given case, the outcome were that a reasonable trier of fact could reach a conclusion of guilt beyond reasonable doubt, the Appeals Chamber considers that, when the Appeals Chamber is itself seized of the task of evaluating trial evidence and additional evidence together, and in some instances in light of a newly articulated legal standard, it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal. The Appeals Chamber underscores that in such cases, if it were to apply a lower standard, then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of evidence relied upon in the case, assessed in light of the correct legal standard, be reached by either Chamber beyond reasonable doubt.
24. In light of the foregoing, the Appeals Chamber sets out the following summary concerning the standard of review to be applied on appeal by the International Tribunal in relation to findings challenged only by the Defence, in the absence of a Prosecution appeal, as in the present case.
(a) The Appeals Chamber is confronted with an alleged error of fact, but the Appeals Chamber has found no error in the legal standard applied in relation to the factual finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will determine whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If a reasonable trier of fact could have reached such a conclusion, then the Appeals Chamber will affirm the finding of guilt.
(b) The Appeals Chamber is confronted with an error in the legal standard applied in relation to a factual finding, and an error of fact has been alleged in relation to that finding. No additional evidence has been admitted on appeal in relation to that finding. The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt.
(c) The Appeals Chamber is confronted with an alleged error of fact, and – contrary to the scenario described in (a) – additional evidence has been admitted on appeal . There is no error in the legal standard applied in relation to the factual finding. There are two steps involved.
(i) The Appeals Chamber will first determine, on the basis of the trial record alone, whether no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt. If that is the case, then no further examination of the matter is necessary as a matter of law.
(ii) If, however, the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt, then the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt.
(d) The Appeals Chamber is confronted with an error in the legal standard applied in relation to the factual finding and an alleged error of fact, and – contrary to the scenario described in (b) – additional evidence has been admitted on appeal. There are two steps involved.
(i) The Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt, on the basis of the trial record. If it is not convinced, then no further examination of the matter is necessary as a matter of law.
(ii) If, however, the Appeals Chamber, applying the correct legal standard to the evidence contained in the trial record, is itself convinced beyond reasonable doubt as to the finding of guilt, it will then proceed to determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself still convinced beyond reasonable doubt as to the finding of guilt.
Subparagraph (ii) of paragraph 24(c) of Blaskic put forward the guilt determination test, with a dissent.1712 That subparagraph has been reproduced in paragraph 426 of today’s judgement.
11. I read paragraph 24(c) of Blaskic, as interpreted by paragraph 426 of today’s judgement, to mean that if, on the totality of the evidence,1713 “no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt”, the conviction is quashed. However, if, on that same totality of the evidence, “a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt”, the conclusion of guilt is not automatically affirmed. In that event, the Appeals Chamber would need to go on to ask whether it is “itself convinced beyond reasonable doubt as to the finding of guilt” on the basis of that same totality of the evidence; only if the Appeals Chamber is “itself convinced” of guilt will the finding of guilt be affirmed.
12. By contrast, I understand Kupreskic to mean that the reasonable tribunal test would suffice in all circumstances to determine whether the totality of the evidence shows that the finding of guilt is to be affirmed or quashed. That test meant that the Appeals Chamber would affirm the conviction only if it was not the case that “no reasonable tribunal of fact could have reached a conclusion of guilt ”: that is to say, the Appeals Chamber would affirm the conviction if a reasonable tribunal of fact could have reached a conclusion of guilt. On the present approach of the Appeals Chamber, the views of a reasonable tribunal of fact are excluded from the final judgement as to guilt based on the totality of the evidence; a finding of guilt is made by the Appeals Chamber, and then only if it is “itself convinced ” of guilt.
13. The guilt determination test came without accompanying Tribunal or non-Tribunal authority. There is no reliable jurisprudence for holding that in an adversarial system it is ordinarily the business of an appellate court to make a finding of guilt on the totality of the evidence in an appeal from a conviction based on error of fact. As a result, the Appeals Chamber is now faced with two different holdings on the subject by what were in large part differently composed1714 benches of itself – one holding in Blaskic and another in Kupreskic. The question is which holding is to be followed.
14. The point may be taken that it is sterile to consider the relationship between the old and the new tests. I do not think so. The relationship between the two tests bears on the foundation of the judgement of the Appeals Chamber. Under one test, the conviction of the Appeals Chamber “itself” as to guilt is not material; under the other, it is the only thing that matters. The end result may be the same in many cases, but it need not be.
15. I propose to show that the Blaskic test is not a further development of the Kupreskic test but changes it, and indeed abolishes it so far as additional evidence leading to an affirmation of a finding of guilt is concerned; that the two tests are in conflict with each other; and that it is necessary to choose between them.1715 Alternatively, the jurisprudence allows for a departure by the Appeals Chamber from a holding previously made by it “where cogent reasons in the interests of justice require a departure;”1716 I shall be suggesting that a departure has to be made from the Blaskic test. On either approach, the outcome will favour the maintenance of the Kupreskic test.
16. Blaskic makes changes in the rules laid down by Kupreskic. Those changes fall into two categories: (i) additional evidence (taken together with trial evidence), and (ii) trial evidence standing alone.
17. As to (i), paragraph 75 of Kupreskic stated that the reasonable tribunal test was to apply “in deciding whether or not1717 to uphold a conviction where additional evidence has been admitted before the [Appeals] Chamber”. That test could result either in the quashing or in the affirming of the conviction. No exception whatever was visualised. An exception has been later instituted in so far as the appellate outcome is to affirm the conviction of guilt ; what could be done before can not be done now. That is not a development; it is an abolition of the old system and its substitution by a new one.
18. As to (ii), paragraph 44 of Kupreskic made it clear that “where an appellant establishes that no reasonable tribunal of fact could have reached a conclusion of guilt upon the evidence before it, the Appeals Chamber will allow the appeal and enter a judgement of acquittal”; the substance of the same idea was also expressed in paragraph 30 of that case. Thus, under Kupreskic the reasonable tribunal test was to apply to all cases in which trial evidence stood alone.
19. However, it appears that there is a situation in which the guilt determination test applies even though trial evidence alone is concerned. It is said in paragraph 24(b) of Blaskic that where the “Appeals Chamber is confronted with an error in the legal standard1718 applied in relation to a factual finding, and an error of fact has been alleged in relation to that finding” and “(n(o additional evidence has been admitted on appeal in relation to that finding,” the “Appeals Chamber will apply the correct legal standard to the evidence contained in the trial record, and will determine whether it is itself convinced beyond reasonable doubt as to the finding of guilt.” Thus, on the basis of the trial evidence alone (no additional evidence having been admitted), the Appeals Chamber will ask “whether it is itself convinced beyond reasonable doubt as to the finding of guilt.” A similar approach is taken in paragraph 17 of today’s judgement.
20. Nothing prevents the Appeals Chamber from asking whether no reasonable tribunal of fact could, on the trial evidence and applying the correct legal standard, have reached a conclusion of guilt beyond reasonable doubt. The fact that the Appeals Chamber finds fault with the Trial Chamber’s view of the correct legal standard does not logically give the Appeals Chamber “itself” the right to find guilt on the trial evidence. It is both possible and sensible for the Appeals Chamber to ask whether no reasonable tribunal of fact, properly directed on the law, could have found guilt on the trial evidence. The concept of a reasonable tribunal of fact (however described) being properly directed on the law is a familiar one in the jurisprudence of appellate courts.1719 Indeed, a reasonable tribunal of fact would not act except on the basis of a correct view of the law.
21. The conclusion is that, both with respect to additional evidence and to trial evidence, Blaskic makes substantial changes to Kupreskic. In fact, in respect of additional evidence, Blaskic abolishes Kupreskic where the appellate outcome will be the affirmation of the finding of guilt.
22. Contrary to the foregoing conclusion, it is possible to argue that the Blaskic test is merely a further development of the Kupreskic test, and is not a separate test. Consideration has to be given to this important view.
23. First, that way of looking at the matter raises a preliminary issue as to whether it is open to question whether there is such a further development. On this, it appears to me that argument is not needed to oppose any suggestion that Blaskic , and any case which followed it, could in law compulsorily require this bench of the Appeals Chamber to proceed on the footing that Blaskic was merely a further development of the Kupreskic test or to withdraw from the competence of this bench the issue whether it was merely such a development.
24. There is no vinculum juris between one bench of the Appeals Chamber and another bench of that Chamber which can compulsorily require a later bench to follow the legal holdings of an earlier bench. It is not possible for a person to give himself a lift by tugging at his own bootstraps. If a bench for any reason decides not to follow a decision of a previous bench (including a decision purporting as a matter of law to require a later bench to follow the rulings of a previous bench ), there is no identifiable legal reason in international law for saying that the later decision is invalid. As a matter of good sense, one bench will follow the decisions of another bench save in exceptional circumstances, but this, in my view, depends on the practice of the Tribunal.
25. Second, as to the merits of the further development argument. The ample articulation in Blaskic does not suggest that its test is merely a further development of the Kupreskic test. Judge Weinberg de Roca did not understand it that way;1720 she was right. A development presupposes consistency with that which is being developed; in this case, I fear that there is an inconsistency, if not a contradiction. The changes, as explained above, illustrate this.
26. To show consistency with Kupreskic and therefore to promote the argument for further development, it may be said that the new test does not make the Appeals Chamber “itself” the finder of guilt in the circumstances mentioned. However, the references in paragraph 24 of the judgement in Blaskic to the Appeals Chamber being “itself convinced beyond reasonable doubt as to the finding of guilt” cannot credibly be distinguished from saying that the Appeals Chamber will “itself” be making a finding as to whether the appellant is guilty: they mean the same thing. If sameness is not intended, there will be puzzlement as to what is the difference ; if none, there will be difficulty in appreciating the need for a new formulation. The Appeals Chamber cannot be “itself convinced beyond reasonable doubt as to the finding of guilt” made by the Trial Chamber unless the Appeals Chamber is “itself convinced beyond reasonable doubt” as to the guilt of the appellant and then compares its own finding of guilt with the finding of guilt made by the Trial Chamber. So the Appeals Chamber will “itself” be making a finding as to whether the appellant is guilty. With courtesy, possible argument that the new formulation does not mean this is not convincing.
27. The view that on the guilt determination test the Appeals Chamber will be making its own finding as to whether the appellant is guilty is in keeping with the first sentence in paragraph 23 of Blaskic to the effect that the Appeals Chamber “should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal.”1721 The remainder of that paragraph supports this view, stating:
The Appeals Chamber underscores that in such cases, if it were to apply a lower standard, then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of evidence relied upon in the case, assessed in light of the correct legal standard, be reached by either Chamber beyond reasonable doubt. 1722
Hence, where additional evidence has been admitted, a finding as to whether the appellant is guilty beyond reasonable doubt will be made by the Appeals Chamber “itself”. Paragraph 426 of today’s judgement is in keeping with this view.
28. For these reasons, an argument that Blaskic is merely a further development of Kupreskic, though interesting, is not persuasive: the first is a departure from the second, and not an elaboration of it. In consequence of the departure, Judge Weinberg de Roca has observed that “the Appeals Chamber announces a new standard of review” and “has introduced an innovative standard of review.”1723 Her observations were founded.
29. The Appeals Chamber can depart from its previous holding, but, in the accepted view of the Tribunal, it can only do so “where cogent reasons in the interests of justice require a departure” and “after the most careful consideration has been given to [the previous holding], both as to the law, including the authorities cited, and the facts.”1724
30. Blaskic does not accept1725 that it is a departure from Kupreskic; it is therefore not surprising that it gives no reasons for a departure. Alternatively, if it gives reasons for a departure, these fall short of satisfying the recognised standard, both as to the substance and as to the kind of jurisprudential inquiry to be expected if a previous decision of the Appeals Chamber is to be departed from. There are difficulties presented by the guilt determination test and these have not been overcome.
31. First, the guilt determination test is unnecessarily involved. In fact, two tests would apply. The reasonable tribunal test would apply where consideration of the totality of the evidence results in quashing of the conviction. If, however, “the Appeals Chamber determines that a reasonable trier of fact could have reached a conclusion of guilt beyond reasonable doubt” on the totality of the evidence, the conviction is not automatically affirmed: the Appeals Chamber would have to apply the guilt determination test in order to determine whether the conviction should be affirmed. Presumably, however, if the application of the guilt determination test does not result in an affirmation of the conviction, the conviction is quashed . But this result contradicts the result reached by the reasonable tribunal test at the beginning of the exercise, for it is only if this test results in the conviction not being quashed that the case reaches the guilt determination test.
32. Second, the Appeals Chamber’s rationale is that, if the Appeals Chamber were not to be “itself convinced” that guilt was proved beyond reasonable doubt, “the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of evidence relied upon in the case, assessed in light of the correct legal standard, be reached by either Chamber beyond reasonable doubt”. This, however, overlooks the fact that, in the case of trial evidence alone, the result (whether it is to quash or to affirm the verdict) depends solely on the assessment imputed to a reasonable tribunal of fact although of course it has not heard that evidence; it should not matter if it has not heard additional evidence where this is admitted. If the Appeals Chamber does not have to be “itself convinced” of guilt in the first case, it should not need to be “itself convinced” in the second case.
33. Third, the guilt determination test overlooks the fact that, as later more fully explained, the object of additional evidence is not to prove guilt but to cast doubt on a conviction which has already been made and in this way to achieve the quashing of the conviction.
34. Fourth, paragraph 75 of Kupreskic used the words “whether or not to uphold a conviction”; and paragraph 76 likewise used the words “whether to uphold a conviction”. So Kupreskic meant that the reasonable tribunal test would apply regardless of whether the appellate outcome was to quash or to affirm the conviction on the totality of the evidence. The guilt determination test would restrict Kupreskic to cases in which the appellate outcome was to quash the conviction in the light of the totality of the evidence.
35. Explaining the reasons for this apparent restriction, paragraph 22 of Blaskic states that “the Appeals Chamber in Kupreskic did not determine whether it was satisfied itself, beyond reasonable doubt, as to the conclusion reached, and indeed, it did not need to do so, because the outcome in that situation was that no reasonable trier of fact could have reached a finding of guilt.” And paragraph 426 of today’s judgement likewise adds that “the Appeals Chamber in Kupreskic was not faced with the question of what test to apply where the outcome would be that in light of the trial evidence considered with the additional evidence admitted on appeal, ‘a reasonable trier of fact could reach a conclusion of guilt beyond a reasonable doubt’”.1726 Contrary to that suggestion, Kupreskic was faced with that situation: the Appeals Chamber affirmed a conviction on the basis of the totality of the evidence being assessed by the reasonable tribunal test.
36. In Kupreskic, the Appeals Chamber admitted additional evidence from Witness AT in support of a challenge by co-appellant Drago Josipovic to a finding of guilt made against him. However, in the view of the Appeals Chamber, Drago Josipovic “ failed to established [sic] that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber, together with the additional evidence admitted during the appellate proceedings.”1727 That ground of appeal was therefore dismissed.1728 Correspondingly, the judgement of the Appeals Chamber1729 reads, “Accordingly, the Appeals Chamber AFFIRMS the convictions entered by the Trial Chamber for Drago Josipovic on” counts which included the incident to which Witness AT testified. Hence, in this instance, the Kupreskic Trial Chamber’s finding of guilt was upheld by the Appeals Chamber on the ground that the appellant had failed to establish “that no reasonable trier of fact could have reached a finding of guilt.” Whatever arguments there might be about the possibility of that decision being based on another ground, the fact is that the Appeals Chamber did use the reasonable tribunal of fact test in considering whether it would affirm a conviction where additional evidence was led;1730 nowhere did it speak of a necessity for the Appeals Chamber to be “itself convinced” of guilt.
37. Therefore, contrary to what is suggested in paragraph 22 of Blaskic and in paragraph 426 of today’s judgement, the outcome of the particular situation did not matter in Kupreskic to the application of the reasonable tribunal test. The reasonable tribunal test applied regardless of the outcome, as indeed Kupreskic made clear by expressly stating, in paragraph 75 of the judgement in that case, that it was “to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted …”.1731 Contrary to what is stated in paragraph 426 of today’s judgement, no question was “left open” in Kupreskic as to how to deal with a case in which the appellate outcome would be to affirm the conviction.
38. The outcome of the appeal concerns the result. The substantive problem is the same, and so is the methodological approach to it as prescribed by Kupreskic. In brief, under the reasonable tribunal test, in no case does the Appeals Chamber make its own finding of guilt; under the guilt determination test, it does so in some circumstances. It seems strange that there should be different tests depending on whether the appellate outcome is to quash or to affirm the conviction.
39. Further, as on the facts Kupreskic dealt with a situation in which the conviction was being affirmed as well as a situation in which it was being quashed, there is no room for importing the precedential procedure of confining a case to its own facts so as to restrict Kupreskic to the latter situation.
40. In my view, Kupreskic both enunciated and applied the reasonable tribunal test as being applicable wherever additional evidence is admitted on appeal and regardless of whether the Trial Chamber’s finding of guilt was being quashed or affirmed. Where the appellate outcome is to affirm the finding of guilt, the present judgement of the Appeals Chamber, following Blaskic, purports to abolish Kupreskic and to make a departure. There is no discernible justification for doing that.
41. Though the ICTY Appeals Chamber is legally distinct from the ICTR Appeals Chamber, the membership of the two Appeals Chambers is the same. For this and other reasons, decisions of one Appeals Chamber are highly persuasive with the other.
42. In Musema,1732 the ICTR Appeals Chamber admitted additional evidence relating to a challenged rape conviction. In the course of its deliberations, it reproduced certain passages from Kupreskic , including that relating to the reasonable tribunal test.1733 In paragraph 193 of its judgement, it proceeded to apply Kupreskic when it said:
Having considered the additional evidence admitted into the record on appeal, the Appeals Chamber finds that if the testimonies of Witnesses N, CB and EB had been presented before a reasonable tribunal of fact, it would have reached the conclusion that there was a reasonable doubt as to the guilt of Musema in respect of Count 7 of the Amended Indictment. Consequently, the Trial Chamber’s factual and legal findings in relation to the rape of Nyiramusugi are incorrect and occasioned a miscarriage of justice.
In paragraph 194 of its judgement in Musema, the ICTR Appeals Chamber then concluded that the conviction for rape had to be quashed in “accordance with the standard laid down in Kupreskic.”
43. In Rutaganda,1734 the challenged conviction was upheld. In that case, the ICTR Appeals Chamber admitted additional evidence which the appellant contended supported his alibi. The Appeals Chamber rejected the argument, holding that the additional evidence was not sufficiently probative. For this reason, said the Appeals Chamber, “the appellant has failed to prove that, based on the evidence presented at trial, together with the additional evidence, no reasonable tribunal of fact could have found the Appellant guilty of participation in the [indicted crimes]. This ground of appeal is accordingly dismissed.”1735 Earlier, referring to the Kupreskic test, it said:1736
In accordance with Rule 118(A) of the Rules and the relevant jurisprudence,1737 the test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings?1738 Where the Appeals Chamber finds that a reasonable trier of fact could have reached a conclusion of guilt based on the evidence before the Trial Chamber together with the additional evidence, it must uphold the Trial Chamber decision.
44. Thus, in Musema and Rutaganda the ICTR Appeals Chamber applied the reasonable tribunal test; in one case the finding of guilt was quashed, in the other case the finding of guilt was affirmed.
45. I conclude that Kupreskic and Blaskic are in conflict and that Kupreskic is to be preferred. Additional reasons for the preference are given below.
46. Apart from the question of conflict of decisions, there are reasons for holding that the Kupreskic test is sound. These arise from the nature of the Appeals Chamber as an appellate body. The Tribunal is to apply international humanitarian law. But the establishment of the Tribunal is a matter preliminary to the question what law it should apply once it has been established. The principle on which the Tribunal was established is to be sought in its organic instrument, namely, the Statute.
47. The question, which may affect this case, is whether the Statute conceived of the Appeals Chamber of the Tribunal as a court of rehearing or as a court of review as understood in national systems. More particularly, in a case of this kind does the Statute require the Appeals Chamber “itself” to find guilt? Or, does it require the Appeals Chamber to find whether the Trial Chamber’s finding of guilt was correct, the correctness of that finding being challenged on specified grounds? It is possible that different answers could be given in different legal systems. A consideration of the position under these systems is therefore apposite.
48. Paragraphs 45 to 46 of Kupreskic and other material suggest that, broadly speaking, there are two types of appeal.1739 Sometimes elements of one are mixed up with elements of the other; but, in principle, it is possible to identify two main categories. They are both meritorious. The question is which was the model on which the appellate procedures of the Tribunal were constructed. Leaving aside particular variations, these models show a distinction 1740 between an appeal by way of review and an appeal by way of rehearing. In my opinion, an appeal from a conviction by a Trial Chamber to the Appeals Chamber lies closer to a review than to a rehearing ; if so, that helps to provide an answer to the central question whether, in the situation of the Tribunal, it is the reasonable tribunal test or the guilt determination test which applies.
49. First, then, there are appeals which take the form of a new hearing in a higher court.1741 The new hearing may be based on live evidence or on recorded trial evidence or on additional evidence or on all three; it may extend to the whole case, or to part of it; it may, or may not, take account of the thinking of the trial court. The question before the higher court is whether, in its own opinion, the evidence proves that the appellant is guilty beyond reasonable doubt; the higher court does not answer that question by focusing on whether the trial court made an error in the conviction which it made. The trial conviction is simply left aside in favour of a right given to the appellant by law to have his case reheard by a higher court; in exercise of that right, he appeals to the higher court to hear the case afresh. By the controlling statute, the decision of the higher court then replaces the decision of the trial court on matters under appeal.
50. Accordingly, the question before the higher court is whether, in its own judgement, the appellant is guilty or not guilty, as if the higher court were a trial court . That makes sense: a new judgement on the facts is being given by another judicial body; so a new finding of guilt has to be made by that other judicial body. There may be a three-tier system providing for a further right of appeal to a supreme court, but this is generally limited to issues of law. Such a further right of appeal is really a restricted right of review of an intermediate appellate judgement which has been given by way of rehearing.
51. Second, there are appeals in which the question before the appellate court is a narrower one: it is whether the impugned decision was correct (the permitted grounds of challenge being specified), not whether the appellate court “itself” finds that guilt was proved beyond reasonable doubt. It is on this model (usual in adversarial systems) that appeals by a convicted appellant within the Tribunal were established.
52. To be sure, there are criminal cases in adversarial systems in which the view was taken that the appeal concerned was in the nature of a rehearing in the course of which the appellate court could itself determine guilt. But, generally speaking, those were, if I may cite a case from one jurisdiction, instances in which appellate courts “exercised a much closer supervision over the lower criminal courts than the High Court or Court of Criminal Appeal in England …”1742; they were cases in which the appellate court had some supervisory jurisdiction over a truly subordinate court.
53. A Trial Chamber is not a subordinate court of the Appeals Chamber. A Trial Chamber consists of three judges of the same standing as the judges of the Appeals Chamber . Judges of the Chambers rotate; in fact, judges are elected by the General Assembly to the Tribunal (or sometimes appointed to it by the Secretary General) but are only assigned by the President to a Chamber of the Tribunal, whether to a Trial Chamber or to the Appeals Chamber. A Trial Chamber hears very serious cases with the maximum penal powers allowed under the Statute; the Appeals Chamber has no greater power of punishment. The work of the Trial Chamber is not intended to be subject to the detailed supervision of a superior court; it is only the result which it reaches that is intended to be corrected on appeal on specified grounds of appeal . Consequently, a case before it is not meant to be “reheard” on appeal as if there was a second trial.
54. Rehearing cases in criminal appellate matters in the adversarial system might be due to the fact that the enabling law spoke of the appellate court “interfering ”1743 with the proceedings of the trial court, or of the appellate court having power to “supervise” 1744 the proceedings of a trial court consisting of less qualified judges, or of the “whole case”1745 being referred to an appellate court consisting of more qualified judges. In other cases, an appeal may exceptionally entail a de novo hearing, as under section 822(4 ) of the Canadian Criminal Code. However, the general rule in adversarial systems 1746 is that an appeal court may not re-assess the facts or the weight to be attached to the evidence, as found by the trial judge.
55. Normally, then, a court of criminal appeal in an adversarial system would be a court of review. The Court of Appeal (Criminal Division) of England and Wales thought so, stating that “the Criminal Division (of the Court of Appeal( is perhaps more accurately described as a court of review.”1747 By contrast, it considered that a civil appeal in the Civil Division of the Court of Appeal of England and Wales proceeds by way of “rehearing” in which the Court of Appeal “may take a different view of the facts from the court below.”1748
56. Thus, there is to be no second trial in the appellate court leading to a fresh finding of guilt. As Lord Bingham stated in the House of Lords, “Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second.”1749 The historical and constitutional origins of the English jury are often stressed in English jurisprudence, but, it is submitted, this aspect, while interesting, need not detain inquiry by an international criminal tribunal: the Trial Chamber finds guilt, and so does a jury. What is important is that the case law of the Tribunal shows that the Appeals Chamber is really concerned with the question of the safety of the conviction;1750 that does not require the Appeals Chamber to make a finding as to guilt.
57. This explains why in R. v. Clark, also concerning additional evidence, the Court of Appeal (Criminal Division) of England and Wales recently said that it “is not to decide for itself what impact evidence might have had on the jury’s deliberations and ‘must not intrude into territory which properly belongs to the jury.’”1751 As it has also been remarked, it is “not the role of the Court [of Appeal] to usurp the role of the jury.”1752 In the High Court of Australia it was likewise said that the “test is not whether the court [of appeal] itself entertains a reasonable doubt, although that will very often amount to the same thing, but whether a reasonable jury was bound to do so.”1753
58. Under article 25 of the Statute, the exertions of the Appeals Chamber are directed, not to finding guilt, but to the question whether or not the conviction made by the Trial Chamber was correct, the correctness of the conviction being specifically challenged for certain alleged errors of law or of fact. The remedial powers of the Appeals Chamber, though wide, are intended to put right a defect in the decision on which the conviction rests; the Appeals Chamber does not hold a new trial. As the Appeals Chamber said in Furundzija:1754
This Chamber does not operate as a second Trial Chamber. The role of the Appeals Chamber is limited, pursuant to Article 25 of the Statute, to correcting errors of law invalidating a decision, and errors of fact which have occasioned a miscarriage of justice.
59. In Kupreskic, the Appeals Chamber likewise said that “[a]ppellate proceedings do not constitute a trial de novo and are, rather, of a ‘corrective nature .’”1755 The internationally recognized right of appeal would not be satisfied by undue restrictions,1756 but there has not been any suggestion that article 25 of the Statute of the Tribunal, construed in accordance with Furundzija and Kupreskic, would not be compatible with that right.
60. In sum, under the Statute of the Tribunal, the function of the Appeals Chamber is corrective of the decision on which the trial conviction is based: it is to correct any error of law invalidating the decision or any error of fact which has occasioned a miscarriage of justice. The appellant is attacking that conviction; he is not exercising a right given to him by law to have the case retried in a higher court irrespective of whether or not the trial conviction was correct. It is common sense that a higher court which is hearing the case afresh should “itself” make a finding as to guilt. Correspondingly, where there is no hearing of the case afresh, there is no sense in a finding as to guilt being made by the appellate court “itself” since the issue before it is only whether the trial conviction was correct.
61. Further, a finding against guilt made by the appellate court does not necessarily prove that a finding of guilt made be the trial court was incorrect. This is so for the reason that, as has been repeatedly remarked in the Tribunal, two reasonable triers of fact may reach opposed but perfectly reasonable conclusions based on the same facts. To attack the trial conviction, the appellant has to satisfy an objective criterion that can go to the correctness of the trial conviction. Where the appeal on error of fact is based on trial evidence alone, the appellant needs to show that no reasonable tribunal of fact could have found guilt on that evidence, with the consequence that the trial conviction is incorrect. Where additional evidence is admitted, he needs to show the same thing on that evidence taken together with the trial evidence. In both cases, the notional arbiter is a reasonable tribunal of fact; the criterion is an objective one. The Appeals Chamber may be reasonable enough, but that is not determinative.
62. In my view, the Appeals Chamber acts on the basis of the review model, as understood in the adversarial system; accordingly, in a case of this kind it is not competent for the Appeals Chamber “itself” to make a finding as to whether the appellant was guilty.
63. First, the position directly under the Statute of the Tribunal may be considered. The powers given to the Appeals Chamber by article 25(2) of the Statute are to “affirm, reverse or revise the decisions taken by the Trial Chambers.” For the reasons mentioned elsewhere in this opinion, I do not think the power to “affirm ” or to “reverse” encompasses a power to make a finding as to guilt. The power to “revise” is wide. In one case, it was held that it embraced a power to find guilt ; but the case was one in which the appellate court derived from a system in which, as has been previously observed, appellate courts “exercised a much closer supervision over the lower criminal courts than the High Court or Court of Criminal Appeal in England.…”.1757 For the reasons given above, such a general supervisory relationship is not appropriate to the relationship between a Trial Chamber and the Appeals Chamber.
64. Speaking of the normal criminal appellate court, it has been said, in keeping with the previous analysis, that the “function of an appellate court is not to try but to review ….”1758 That limitation would be transgressed if the Appeals Chamber were “itself” to make a finding as to whether the appellant was guilty. Guilt can only be found if there is a trial leading to a finding of guilt: the Appeals Chamber does not hold trials for crimes referred to in the Statute. Article 20 and other provisions of the Statute of the Tribunal make it plain that trials for crimes referred to in the Statute are to be conducted by Trial Chambers and not by the Appeals Chamber.
65. Second, the position under the Rules of Procedure and Evidence of the Tribunal may be consulted. Rule 115 (B) says:
If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial. If it could have been such a factor, the Appeals Chamber will consider the additional evidence and any rebuttal material along with that already on the record to arrive at a final judgement in accordance with Rule 117.
This provision does say that, in arriving at a final judgement, “the Appeals Chamber will consider the additional evidence …”. It may therefore be argued that the provision is sufficiently wide to encompass the right of the Appeals Chamber to make its own finding of guilt. But that seems doubtful.
66. Of course, the Appeals Chamber has to “consider” the additional evidence. However, there is a distinction between power to consider and the basis on which the consideration is made. To adopt and adapt the language of Lord Devlin, the question is what the court has to consider. It has to consider whether the verdict of the Trial Chamber is satisfactory, not how the Appeals Chamber would by “itself” decide whether guilt has been proved beyond reasonable doubt.1759 Referring to the circumstance that the Court of Appeal (Criminal Division) of England and Wales was, by statute, given power to act if “they think”, he remarked:
It is certainly true that it is what they think that counts. The question is what they have to think about. They have to think about whether the verdict of the jury is satisfactory, not about how they themselves would decide the case.1760
The excerpt comes from a work of criticism which has in turn been criticised, but I think that the particular excerpt can stand.
67. Also, it can be asked how does one court think about how another court can react to additional evidence which the latter has not heard. The matter is not insoluble : a court of appeal may have to do just that. As Lord Chief Justice Parker said in a 1971 unreported case, “one has to imagine a jury who heard their evidence (i.e., the additional evidence( together with all the other evidence in the case, and ask oneself whether nevertheless the jury must have come to the same conclusion.”1761
68. Rule 115 does not enter into the question what the Appeals Chamber is to “think about” within the meaning of Lord Devlin’s statement. The answer has to flow from a consideration of the principles regulating the hearing of a criminal appeal. Those principles are considered towards the end of this part of this opinion.
69. Finally, there is Rule 117(A). This says that the “Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it”. The Rule does not stipulate the particular juridical criterion on which the Appeals Chamber shall pronounce judgement on the basis of the trial evidence taken together with the additional evidence. In particular, it does not say that the Appeals Chamber is to determine whether it is “itself convinced ”, on that total evidence, as to the finding of guilt. That left it open for the Appeals Chamber, in paragraph 75 of Kupreskic, to say:
The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.
70. The two tests – the reasonable tribunal test and the guilt determination test – are separated by a point of significance which has often attracted attention in the jurisprudence and which has already been alluded to.1762 The question before an appellate court in an appeal by way of review, as is the situation here, is not whether a convicted appellant is guilty on the facts. The question is whether the verdict of the trial court declaring him to be guilty is safe. The Court of Appeal (Criminal Division) of England and Wales put the point this way:
[W]e start by asking ourselves what sort of impact the fresh evidence would have had on the trial, as a step towards answering the essential question, whether we think that in all the circumstances the convictions are unsafe or unsatisfactory.1763
71. Subject of course to the overall requirement of fairness,1764 the safety of a verdict is a recognised concept in the jurisprudence of the Tribunal, at least in relation to conviction.1765 This may well mean that, on the totality of the evidence, the Appeals Chamber may have to quash a conviction even though, left to “itself,” it might have found guilt. A test which turns on the Appeals Chamber being “itself convinced” as to the finding of guilt breaches the established principle that an appeals court “is not and should never become the primary decision-maker.”1766 The appellate concern is to ensure that the verdict is safe; if it is, it should stand. In the words of the Court of Appeal (Criminal Division) of England and Wales :
[W]e have no power to conduct an open-ended investigation into an alleged miscarriage of justice, even if we were equipped to do so. Our function is to hear criminal appeals, neither more nor less….The task of deciding whether a man is guilty falls on the jury. We are concerned solely with the question whether the verdict of the jury can stand.1767
72. If, as stated in subparagraph (ii) of paragraph 24(c) of Blaskic, “the Appeals Chamber will determine whether, in light of the trial evidence and additional evidence admitted on appeal, it is itself convinced beyond reasonable doubt as to the finding of guilt,” it looks as if there is no sense in which deference is being paid to the findings of fact made by the Trial Chamber on the trial evidence: the trial evidence is being considered on the same basis as the additional evidence.
73. This consideration is of special importance where the case is of some size. The Trial Chamber in this case heard a total of 139 witnesses in 113 days. This is apart from 409 exhibits and various affidavits which it admitted. The Trial Chamber had the opportunity to listen to and to consider all of this material. The Appeals Chamber heard evidence from four witnesses over a period of four days, and it admitted 16 exhibits.
74. The Appeals Chamber may adopt procedures for focusing on relevant portions of the recorded material, but these are in cold form; try as it may, it can not place itself in the same position as the Trial Chamber. The duty of the former to defer to the factual findings of the latter seems clear.
75. In the ICTY Blaskic was followed in Kordic,1768 a recently concluded case. In Krstic1769 the ICTY Appeals Chamber did itself determine the significance of various pieces of additional evidence on the verdict. However, it seems that it had in mind that the ultimate test should be made by a reasonable trier of fact. Thus, paragraph 63 of the judgement in that case states:
The Trial Chamber’s rejection of the Defence’s argument as to the parallel chain of command, even when examined in the light of the Defence’s additional evidence, is not one that no reasonable trier of fact could have made.
76. There are cases in which the appellate court held that, where the additional evidence is conclusive, it may dispose of the case itself,1770 without remitting the case for retrial. But that does not touch the criterion by which the appellate court has to be satisfied that the additional evidence is “conclusive ”. In particular, there seems to be nothing which suggests a criterion of the appellate court making a determination that it is “itself convinced beyond reasonable doubt as to the finding of guilt.”
77. Stafford v. Director of Public Prosecutions 1771 is a case from which it may be thought that the guilt determination test derives support. The case was decided by the House of Lords in 1974. The Appeals Chamber in Kupreskic was not unaware of it.1772 It seems distinguishable.
78. First, the House of Lords, after making a careful review of a complicated course of legislation over many years, emphasised that the appellate court was acting pursuant to a later legislative grant which empowered it to “allow an appeal against conviction if they think (a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory …”.1773 So, the words “if they think” were material, and they were stressed. Similar words do not occur in article 25 of the Statute of the Tribunal, wide as is the latter .
79. Second, Stafford was later considered by the House of Lords in R. v. Pendleton,( footnote 1774 ) decided in 2001. In the words of Lord Bingham, giving the leading speech in Pendleton:
I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty. But the test advocated by counsel in Stafford and by Mr Mansfield [counsel for Mr Pendleton] in this appeal does have a dual virtue to which the speeches I have quoted [from the Lords in Stafford] perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. 1775
80. Thus, as Stafford was later interpreted in the House of Lords, the case did not lay down any principle that it is for an appellate court “itself” to make a finding as to guilt on the basis of additional evidence taken with trial evidence ; the function of an appellate court was to be confined to saying whether the conviction was safe. Some of “the speeches … [from the House of Lords in Stafford] perhaps gave somewhat inadequate recognition” to that point – a point of capital importance, however delicately made. As to the last sentence of the quoted passage, an appellate court may “itself” make a finding as to whether the verdict was safe, but it may not do that by “itself” determining whether there was guilt. Otherwise, it is difficult to answer the obvious criticism that, as observed in the High Court of Australia, Stafford “allows an appeal court to try the case on the fresh evidence ….”.1776
81. What I regard as the correct thinking on the subject was summed up by Gibbs, C.J., in Gallagher v. The Queen. Speaking in the High Court of Australia, he accepted that there “can be no doubt that the Court of Criminal Appeal is required to form some view as to credibility of the fresh evidence” 1777 – a matter expressly left to the Appeals Chamber by paragraph (B) of Rule 115 of the Rules of Procedure and Evidence.1778 But the effect of the evidence is another matter. The question appeared to Gibbs, C.J., to be “whether the court should act upon its own view of the effect of the fresh evidence, or should consider what effect a reasonable jury might have attributed to it, because in that case the Court of Criminal Appeal has to consider material which was not available to the jury.”1779 On the question thus stated, it seemed to Gibbs, C.J., to be “more consistent with the proper role of the jury that the Court of Criminal Appeal should inquire what effect the fresh evidence might have had if it had been before the jury.”1780 Thus, it is not for the appellate court to be “itself convinced” of guilt.
82. In its judgement in Blaskic, the Appeals Chamber had to consider the standard for dealing with additional evidence because the appeal was, “in part, … characterized by the filing of an enormous amount of additional evidence” following on the opening of the archives of a state which had not been cooperative with the Tribunal “at the trial stage.”1781 The appellant had submitted “that the overwhelming majority of ‘crucial evidence’ in [that] case has entered the record following his conviction, and that the Appeals Chamber ‘is sitting as a court of first impression with respect to the new evidence accepted on appeal.’”1782 He accordingly “suggested that the Appeals Chamber review the mix of evidence de novo.”1783 Seemingly, the Appeals Chamber rejected that submission, correctly holding, in paragraph 13 of its judgement, “that an appeal is not a trial de novo.” With respect, it appears to me that the Appeals Chamber nevertheless gave some credence to the submission when it proceeded to put forward the guilt determination test in subparagraph (ii) of paragraph 24(c) of Blaskic.
83. The additional evidence in Kupreskic, though less than in Blaskic, was considerable too;1784 so there would appear to be a difficulty in drawing a line. In my view, the question before an appellate court is always whether no reasonable tribunal of fact could have found guilt on the basis of the additional evidence, whatever its size, taken together with the trial evidence.
84. If the additional evidence in a case is unmanageably large, the answer is to order a retrial. In Blaskic, although the additional evidence was staggeringly huge and indeed the largest that ever came to the Appeals Chamber, the Appeals Chamber, referring to the circumstances of the case, found that “a re-trial was not warranted.”1785 That decision is not a matter for inquiry here. In issue are the principles on which the Appeals Chamber proceeded to hear the case to finality with particular reference to the additional evidence. It appears to me that, however extensive was the additional evidence, the object of that evidence was to persuade the Appeals Chamber that it cast reasonable doubt on the finding of the Trial Chamber that guilt was proved beyond reasonable doubt : it was not the object to enable the Appeals Chamber “itself” to make its own finding as to whether guilt was proved beyond reasonable doubt.
85. If a matter were remitted by the Appeals Chamber for retrial, the designated Trial Chamber would of course be free to make a finding as to whether guilt was proved beyond reasonable doubt by all the evidence in the case, inclusive of the additional evidence. But if the Appeals Chamber decides to hear the whole case itself, it seems to me that it cannot take the place of the Trial Chamber and “itself” make a finding as to guilt: the Appeals Chamber is not vested with an option to decide that a trial leading to a finding as to guilt may be held either by a Trial Chamber or by “itself”. If it decides to hear the whole case itself, it hears the whole case as an appellate court, not as a trial court: its mission would be to determine whether doubt was cast by the additional evidence together with the trial evidence on the original Trial Chamber’s finding of guilt, not “itself” to make a finding as to whether the appellant was guilty.
86. A possible argument is that, since additional evidence is admitted by the Appeals Chamber, it must be for the Appeals Chamber “itself” to say, in its final evaluation, whether or not that evidence, coupled with the trial evidence, proved guilt beyond reasonable doubt. I demur.
87. It is indeed for the Appeals Chamber to make both the initial decision to admit additional evidence and the final decision as to the evaluation of additional evidence which has been admitted: it is the only judicial body which can do so. But, following the reasoning of Lord Devlin (already mentioned), what is in issue is the standard by which the Appeals Chamber makes the final evaluation, and not the availability of power to make the final evaluation.
88. If the Appeals Chamber determines that it is “itself convinced” that the totality of the evidence proves guilt beyond reasonable doubt, that determination does not necessarily show that the conviction was correct. Likewise, if the Appeals Chamber determines that it is not “itself convinced” that the totality of the evidence proves guilt beyond reasonable doubt, that determination does not necessarily show that the conviction was incorrect. This is because of the principle, referred to above, that two reasonable triers of fact could with equal reason reach opposed conclusions based on the same material.
89. The opposite view may seek support from Stafford v. Director of Public Prosecutions ,1786 in which Viscount Dilhorne said:
If the Court [of Appeal] has no reasonable doubt about the verdict, it follows that the Court does not think that the jury could have one; and, conversely, if the Court says that a jury might in the light of the new evidence have a reasonable doubt, that means that the Court has a reasonable doubt.1787
But that holding has to be read in the light of the rider put on it in R. v. Pendleton,1788 as discussed above. In Pendleton’s case, the House of Lords made clear that an appellate court is not concerned to find guilt.
90. This is in line with the statement by Dawson, J., speaking in the High Court of Australia in Gallagher v. The Queen1789, that he was “unable to accept the view that it was a circumlocution to speak in terms of a doubt which ought to have been entertained by any reasonable jury rather than in terms of a doubt which the court has.” In his judgement, the “view must be taken to have been dispelled in this country that a reasonable doubt or the absence of a reasonable doubt upon the part of an appellate court is in every case the same thing as a reasonable doubt or the absence of a reasonable doubt on the part of a jury.”1790
91. I agree with those remarks. They point to a real distinction. They are consistent with Lord Devlin’s observation that “surely any judge who has presided over an appreciable number of jury trials will remember cases in which he had no reasonable doubt but the jury had.”1791 The judge and the jury may be both reasonable, but the latter nevertheless arrives at a different conclusion. True, at the level of the Trial Chamber there is no corresponding distinction between judge and jury; but there is a corresponding distinction between the Trial Chamber and the Appeals Chamber, and it is germane to the analysis.
92. The finding of the appellate court has to be by a standard which objectively challenges the correctness of the conviction. A challenge is made on an objective standard by showing that no reasonable tribunal of fact could have made a finding of guilt on the additional evidence considered with the trial evidence. If the answer is in the affirmative, the conviction is quashed; if in the negative, the conviction is affirmed.
93. I would understand the general legal position concerning an appeal on facts against a conviction, in which additional evidence has been admitted, to be based on the settled principle that, in this Tribunal, an appeal is not a trial de novo.1792 Additional evidence is received as a method of challenging the correctness of the conviction by the trial court; and, as both Blaskic1793 and the general jurisprudence1794 make clear, the appellate consideration of additional evidence starts out on the footing that the conviction was correctly made on the basis of the trial evidence. Accordingly, one has to begin with the fact that there is a conviction on record ; unless set aside on appeal, it stands.
94. An appeal by a convicted appellant on an error of fact based on trial evidence is really an appeal against a finding by the Trial Chamber that the prosecution had satisfactorily discharged its legal burden to prove guilt beyond reasonable doubt. The appellant1795 has a “ persuasive onus”1796 to establish that the prosecution had not discharged that legal burden; the appellant carries that “persuasive onus” by showing that the trial evidence cast reasonable doubt (as distinguished from a fanciful doubt) on the correctness of the conviction. The object of additional evidence, when taken with the trial evidence, is similarly to cast reasonable doubt on the correctness of the conviction. If the appellant succeeds in thus casting reasonable doubt and in thereby persuading the Appeals Chamber that no reasonable tribunal of fact could have found that guilt was proved beyond reasonable doubt, the conviction is quashed; if he fails, the conviction is affirmed, that is to say, it continues to stand undisturbed. In neither case is the Appeals Chamber called upon “itself” to make a finding as to guilt.
95. The process is illustrated by R. v. Harding.1797 In that case, which involved fresh evidence, Lord Chief Justice Hewart said:
The question for this Court to consider is whether, if that evidence had been before the jury, it might have had the effect of raising in the minds of the jury a reasonable doubt. The function of the prosecution is, of course, to establish the case beyond a reasonable doubt. If it fails to fulfil that condition, the prisoner is entitled to be acquitted. The burden of proof is never upon the prisoner. Acquittal must follow if the evidence is such as to cause a reasonable doubt, because that is only another way of saying that the prosecution have failed to establish the case.
Looking at this evidence with care, and recognising the force of the rest of the evidence in this case, we are clearly of the opinion that, if this evidence had been offered in the Court below, there might have been upon the part of the jury a reasonable doubt as to the guilt of the appellant; or, to put it another way, we cannot say that, if that evidence had been offered, the jury must inevitably have come to the same conclusion. In those circumstances the only conclusion which is possible for this Court is to say that the appeal must be allowed, and the conviction quashed.1798
96. The Lord Chief Justice referred to the position of the jury, but what is significant is that the reasoning process did not require the court of appeal to be “itself convinced beyond reasonable doubt as to the finding of guilt.” If, through the fresh evidence, the appellant succeeds in casting doubt on the conviction, the latter is quashed; if he fails, it continues in force. The language may differ here and there, but this in substance is the approach normally taken in adversarial systems.1799
97. Although precedents cannot be drawn from common law jurisdictions in which the appellate process itself does not consider additional evidence, it is useful to note the general principle applicable in such jurisdictions to appellate consideration of trial evidence. Writing for the Supreme Court of the United States in Jackson v. Virginia,1800 Justice Stewart put the principle thus:
[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court “to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt”…. Instead, the relevant question is whether, after viewing the evidence in the light most favourable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt… This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.1801
98. I am not able to appreciate why a similar principle should not apply to additional evidence in those adversarial jurisdictions in which it is admitted on appeal. If additional evidence is admitted, the question remains whether, on that evidence taken together with the trial evidence, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”. True, the rational trier of fact would not have heard the additional evidence; but, equally, he would not have heard the trial evidence also. He is a notional arbiter and can judge on any admitted material, whether it is trial evidence or additional evidence. I cannot imagine any reason for not extending to the case of additional evidence the fundamental prohibition against an appellate court asking “whether it believes that the evidence” at trial established guilt beyond a reasonable doubt.
99. The key reasoning of the Appeals Chamber in Blaskic is set out in paragraph 23 of its judgement in that case, already cited but for convenience reproduced thus :
However, if in a given case, the outcome were that a reasonable trier of fact could reach a conclusion of guilt beyond reasonable doubt, the Appeals Chamber considers that, when the Appeals Chamber is itself seized of the task of evaluating trial evidence and additional evidence together, and in some instances in light of a newly articulated legal standard, it should, in the interests of justice, be convinced itself, beyond reasonable doubt, as to the guilt of the accused, before confirming a conviction on appeal. The Appeals Chamber underscores that in such cases, if it were to apply a lower standard, then the outcome would be that neither in the first instance, nor on appeal, would a conclusion of guilt based on the totality of evidence relied upon in the case, assessed in light of the correct legal standard, be reached by either Chamber beyond reasonable doubt.
100. The Appeals Chamber correctly held that guilt has to be proved beyond reasonable doubt. On this basis, it proceeded to argue that, since additional evidence was not presented to the Trial Chamber, the Appeals Chamber had to be “itself convinced ” that such evidence (taken together with the trial evidence) proved guilt beyond reasonable doubt; otherwise, there would be no judicial evaluation as to whether the totality of that evidence proved guilt beyond reasonable doubt. That is an attractive argument. I respectfully disagree with it.
101. Consideration has to be given to the purposes sought to be served by additional evidence proffered by the defence. Such evidence, and any rebuttal evidence proffered by the prosecution, may indeed be said to prove guilt but only, it is apprehended, in the sense of making stronger what is already strong,1802 or of giving additional support to a decision which can in any event stand on its own.
102. Save in the sense mentioned above, additional evidence proffered by the defence is not evidence adduced with the intention of proving guilt; so the question is not whether (taken together with the trial evidence) it proves guilt. It is evidence adduced by the defence to cast reasonable doubt on a finding of guilt which has already been made and which is being challenged. That finding of guilt continues to stand, unless it has been upset on appeal on the ground that the additional evidence, taken together with the trial evidence, cast reasonable doubt on it. The focus therefore is not on whether “in light of the trial evidence and additional evidence admitted on appeal (the Appeals Chamber( is itself convinced beyond reasonable doubt as to the finding of guilt.” The focus is on whether the old conviction can stand in the light of the additional evidence taken with the trial evidence – not on whether what is to all intents and purposes a new conviction can be made by a new court on new evidence. In this respect, I agree with Judge Weinberg de Roca’s statement in Blaskic, reading:
Of course, I accept that every finding of guilt in a criminal trial must be established beyond a reasonable doubt. Where additional evidence adduced on appeal raises sufficient doubt, then the Appeals Chamber will reverse the conviction. I emphasize, however, that this is not because the Appeals Chamber has conducted a second trial and has reached its own conclusion of guilt beyond a reasonable doubt on the basis of the combined trial and appellate evidence, but rather because the Trial Chamber’s finding of fact is no longer one that a reasonable trier of fact could have reached in light of the newly adduced doubt-raising evidence.1803
103. In an appeal from a conviction based on an alleged error of fact, whether or not additional evidence has been admitted, the function of the Appeals Chamber is to determine whether the conviction made by the Trial Chamber was correct in the sense of being safe. That is not the same thing as the Appeals Chamber determining whether it is “itself convinced beyond reasonable doubt as to the finding of guilt ”. The Tribunal’s system has to work. It cannot work if the essential function of the Trial Chamber to find guilt is in whole or in part exercised by the Appeals Chamber in a case of this kind.
104. In sum, the approach of the Appeals Chamber in this case effectively makes the Appeals Chamber a Trial Chamber, causes a trial to be held before the Appeals Chamber, requires the Appeals Chamber to make a finding as to whether it is “itself convinced” that the guilt of the appellant has been proved beyond reasonable doubt, and in these and other ways misapprehends the appellate process of the Tribunal .
105. The Appeals Chamber’s holding, following Blaskic, is in conflict with its earlier holding in Kupreskic. The jurisprudence of the Tribunal provides for a choice to be made between two conflicting holdings of the Appeals Chamber. It is now necessary to make that choice. With respect, my judgement is for Kupreskic.
106. Alternatively, it is necessary to consider whether the holding in Blaskic was correctly made and, if it was not, whether it should be departed from. In my judgement, it is not a correct statement of the law of the Tribunal; the correct statement of the law of the Tribunal is that set out in Kupreskic.
107. The fact that Kupreskic was unanimous and Blaskic was not1804 may be ignored: each decision has the full authority of the whole of the Appeals Chamber. However, unless the Kupreskic test is restored, I fear that it is not possible to escape the reach of a recent observation that it “should not happen that due to shifting majorities the Appeals Chamber changes its jurisprudence from case to case.”1805
Done in English and in French, the English text being authoritative.
_________________
Mohamed Shahabuddeen
Dated 28 February 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
(a) Zigic’s First Rule 115 Motion
(b) Zigic’s Second Rule 115 Motion
(c) Prcac’s Rule 115 Motion
(d) Radic’s Rule 115 Motion
(e) Appeals Chamber Decision on the Rule 115 Motions
ALEKSOVSKI
Prosecutor v. Zlatko Aleksovski, Case No. IT 95-14/1-T, Judgement, 25 June 1999 (“Aleksovski Trial Judgement”).
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”).
BANOVIC
Prosecutor v. Pedrag Banovic, Case No. IT-02-65/1-S, Sentencing Judgement, 28 October 2003 (“Banovic Sentencing Judgement”).
BLAŠKIC Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgement, 3 March 2000 (“Blaskic Trial Judgement”).
Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Judgement, 20 July 2004 (“Blaskic Appeal Judgement”).
CELEBICI
Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as “Pavo”, Hazim Delic and Esad Landzo also known as “Zenga”, Case No. IT-96-21-T, Judgement, 16 November 1998 (“Celebici Trial Judgement”).
Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as “Pavo”, Hazim Delic and Esad Landzo also known as “Zenga” (“Celebici Case”), Case No. IT-96-21-A, Judgement, 20 February 2001 (“Celebici Appeal Judgement”).
Prosecutor v. Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96- 21-Tbis-R117, Sentencing Judgement, 9 October 2001 (“Celebici Sentencing Judgement”).
Prosecutor v. Zdravko Mucic, Hazim Delic and Esad Landzo, Case No. IT-96- 21-A bis, Judgement on Sentence Appeal, 8 April 2003 (“Celebici Sentence Appeal Judgement”).
ERDEMOVIC
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-A, Judgement, 7 October 1997, (“Erdemovic Appeal Judgement”).
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T, Sentencing Judgement, 29 November 1996 (“Erdemovic Sentencing Judgement”).
Prosecutor v. Drazen Erdemovic, Case No. IT-96-22-T bis, Sentencing Judgement, 5 March 1998 (“Erdemovic Sentencing Judgement II”).
FURUNDZIJA
Prosecutor v. Anto FurundZija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“FurundZija Trial Judgement”).
Prosecutor v. Anto FurundZija, Case No. IT-95-17/1-A, Appeal Judgement, 21 July 2000 (“FurundZija Appeal Judgement”).
GALIC
Prosecutor v. Galic, Case No. IT-98-29-AR72, Decision on Application by Defence for Leave to Appeal, 30 November 2001 (“Galic Decision on Leave to Appeal ”).
Prosecutor v. Galic, Case No. IT-98-29-T, Judgement, 5 December 2003 (“ Galic Trial Judgement”).
JELISIC
Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Judgement, 14 December 1999 (“Jelisic Trial Judgement”).
Prosecutor v. Goran Jelisic, Case No. IT-95-10-A, Judgement, 5 July 2001 (“Jelisic Appeal Judgement”).
JOKIC
Prosecutor v. Miodrag Jokic, Case No. IT-01-42/1-S, Sentencing Judgement, 18 March 2004 (“Jokic Sentencing Judgement”).
KORDIC AND CERKEZ
Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Judgement, 26 February 2001, (“Kordic and Cerkez Trial Judgement”).
Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, (“Kordic and Cerkez Appeal Judgement”).
KRNOJELAC
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, Judgement, 15 March 2002 (“Krnojelac Trial Judgement”).
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Appeal Judgement, signed 17 September 2003, filed 5 November 2003 (“Krnojelac Appeal Judgement”).
KRSTIC
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Judgement, 2 August 2001 (“Krstic Trial Judgement”).
Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgement, 19 April 2004 (“Krstic Appeal Judgement”).
KUNARAC et al.
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 & IT-96-23/1-T, Judgement, 22 February 2001 (“Kunarac et al. Trial Judgement”).
Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Case No. IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002 (“Kunarac et al. Appeal Judgement”).
KUPRESKIC et al.
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic and Vladimir Santic, Case No. IT-95-16, Trial Judgement, 14 Januray 2000 (“ Kupreskic et al. Trial Judgement”).
Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic and Vladimir Santic, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic et al. Appeal Judgement”).
KVOCKA et al.
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Judgement, 2 November 2001 (“Trial Judgement” or “Kvocka Trial Judgement”).
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Decision on Defence Motions for Acquittal, 15 December 2000 (“Decision on Defence Motions for Acquittal”).
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Decision on Judicial Notice, 8 June 2000.
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-T, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999.
NIKOLIC
Prosecutor v. Momir Nikolic, Case No. IT-02-60/1-S, Sentencing Judgement, 2 December 2003 (“Nikolic Sentencing Judgement”).
OBRENOVIC
Prosecutor v. Dragan Obrenovic, Case No. IT-02-60/2-S, Sentencing Judgement, 10 December 2003 (“Obrenovic Sentencing Judgement”).
PLAVŠIC
Prosecutor v. Biljana Plavsic, Case No. IT-00-39&40/1, Sentencing Judgement, 27 February 2003 (“Plavsic Sentencing Judgement”).
SIKIRICA et al.
Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan KolundZija, Case No. IT -95-8-T, Judgement on Defence Motions to Acquit, 3 September 2001 (“Sikirica et al. Judgement on Defence Motions to Acquit”).
Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan KolundZija, Case No. IT -95-8-S, Sentencing Judgement, 13 November 2001 (“Sikirica et al. Sentencing Judgement“).
SIMIC
Prosecutor v. Milan Simic, Case No. IT-95-9/2-S, Sentencing Judgement, 17 October 2002 (“Simic Sentencing Judgement”).
SIMIC et al.
Prosecutor v. Blagoje Simic, Miroslav Tadic, Simo Zaric, Case No. IT-95-9 -T, Judgement, 17 October 2003 (“Simic et al. Trial Judgement”).
STAKIC
Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Decision on Rule 98bis Motion for Judgement of Acquittal, 31 October 2002 (“Stakic Decision on Rule 98bis Motion for Judgement of Acquittal”).
Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, 31 July 2003 (“Stakic Trial Judgement”).
TADIC
Prosecutor v. Dusko Tadic, Case No. IT-94-1/AR72, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadic Jurisdiction Decision”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Opinion and Judgement, 7 May 1997(“Tadic Trial Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Sentencing Judgement, 14 July 1997(“Tadic Sentencing Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Appeal Judgement, 15 July 1999 (“Tadic Appeal Judgement”).
Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000 (“Tadic Judgement in Sentencing Appeals ”).
TODOROVIC
Prosecutor v. Stevan Todorovic, Case No. IT-95-9/1-S, Sentencing Judgement, 31 July 2001 (“Todorovic Sentencing Judgement”).
VASILJEVIC
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-T, Judgement, 29 November 2002 (“Vasiljevic Trial Judgement”).
Prosecutor v. Mitar Vasiljevic, Case No. IT-98-32-A, Appeal Judgement, 25 February 2004 (“Vasiljevic Appeal Judgement”).
AKAYESU
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998 (“Akayesu Trial Judgement”).
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”).
BAGILISHEMA
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement, 7 June 2001 (“Bagilishema Trial Judgement”).
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement, 3 July 2002 (“Bagilishema Appeal Judgement”).
KAMBANDA
Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-A, Judgement, 19 October 2000 (“Kambanda Appeal Judgement”).
KAJELIJELI
Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement, 1 December 2003 (“Kajelijeli Trial Judgement”).
KAYISHEMA AND RUZINDANA
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999 (“Kayishema and Ruzindana Trial Judgement”).
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement, 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement”).
MUSEMA
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement, 27 January 2000 (“Musema Trial Judgement”).
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Appeal Judgement”).
RUTAGANDA
Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgement and Sentence, 6 December 1999 (“Rutaganda Trial Judgement”).
Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“ Rutaganda Appeal Judgement”).
SEMANZA
Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, 15 May 2003 (“Semanza Trial Judgement and Sentence”).
SERUSHAGO
Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Sentence, 5 February 1999 (“Serushago Sentence”).
Report of the Preparatory Commission for the International Criminal Court, 6 July 2000, PCNICC/2000/INF/3/Add.2, (“Report of the Preparatory Commission for the ICC”).
Report of the International Law Commission on the work of its 48th session, 6 May – 26 July 1996, supplement no. 10 (A/51/10), (“1996 ILC Report”).
Report of the International Law Commission on the work of its 43rd session, 29 April – 9 July 1991, supplement no. 10 (A/46/10) (“1991 ILC Report”).
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), (S/25704), (“Report of the Secretary-General”).
Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992) (S/1994/674) (“Commission of Experts Report”).
According to Rule 2(B), of the Rules of Procedure and Evidence, the masculine shall include the feminine and the singular the plural, and vice-versa.
| ABiH | Army of Bosnia and Herzegovina |
| ACHR | American Convention on Human Rights of 22 November 1969 |
| Additional Protocol I | Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 |
| Additional Protocol II | Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977 |
| Appeal Hearing | Appeal hearing of 23 to 26 March 2004, in Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-A |
| Appellants | Collective term for Miroslav Kvocka, Mlado Radic, Zoran Zigic and Dragoljub Prcac |
| AT. | Transcript page from hearings before the Appeals Chamber. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcript released to the public. |
| BiH | Bosnia and Herzegovina |
| Common Article 3 | Article 3 of Geneva Conventions I through IV of 12 August 1949 |
| Exh. D | Denotes a Defence Exhibit |
| Exh. P | Denotes a Prosecution Exhibit |
| ECHR | European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1959 (European Convention on Human Rights) |
| Exh. | Exhibit |
| Federation | The Federation of Bosnia and Herzegovina, being one of the entities of BiH |
| FRY | Federal Republic of Yugoslavia (now: Serbia and Montenegro) |
| Geneva Convention I | Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 |
| Geneva Convention II | Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949 |
| Geneva Convention III | Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 |
| Geneva Convention IV | Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 |
| Geneva Conventions | Geneva Conventions I through IV of August 12, 1949 |
| Hague Convention IV | The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land |
| Hague Regulations | Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention IV |
| ICC | International Criminal Court |
| ICC Statute | (Rome) Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9 |
| ICCPR | International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966 |
| ICRC | International Committee of the Red Cross |
| ICRC Commentary (GC IV) | Pictet (ed.)-Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958) |
| ICRC Commentary (Additional Protocol I) |
Sandoz et al. (eds.)-Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 |
| ICTR | International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 |
| ICTR Rules | Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda |
| ICTR Statute | Statute of the International Criminal Tribunal for Rwanda, established by Security Council Resolution 955 |
| ICTY | International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 |
| ILC | International Law Committee |
| IMT | International Military Tribunal sitting at Nuremberg, Germany |
| IMTFE | International Military Tribunal for the Far-East sitting at Tokyo, Japan |
| Indictment | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-PT, Further Amended Indictment, 26 October 2000 |
| JNA | Yugoslav People’s Army (Army of the Socialist Federal Republic of Yugoslavia) |
| Kvocka | Miroslav Kvocka |
| Kvocka Notice of Appeal | Prosecutor v. Miroslav Kvocka et al., Case No. IT -98-30-A, Notice of Appeal against the Judgement filed by Mr. Miroslav Kvocka in accordance with Rule 108 of the Rules of Procedure and Evidence, 13 November 2001 (public) |
| Kvocka Appeal Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98- 30-A, Appellant-Miroslav Kvocka’s Brief on Appeal against Conviction and Sentence, 11 April 2002 (public) |
| Kvocka Reply Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30 -A, Appellant Miroslav Kvocka’s Brief in Reply, 23 August 2002 (public) |
| Law Reports | Law Reports of Trials of War Criminals (the United Nations War Crimes Commission) |
| OTP/Prosecution | Office of the Prosecutor |
| p. | Page |
| pp. | Pages |
| Parties | The Prosecutor and the Defence in Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30/1-A |
| para. | Paragraph |
| paras | Paragraphs |
| Prcac | Drajoljub Prcac |
| Prcac Notice of Appeal | Prosecutor v. Miroslav Kvocka et al., Case No. IT- 98-30-A, Defence Notice of Appeal, 15 November 2001 (public) |
| Prcac Appeal Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30 -A, Prcac’s Brief on Appeal, 12 April 2002 (public) |
| Prcac Pre-Trial Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98 -30-A, Defence Pre-Trial Brief, 6 April 2000 |
| Prcac Reply Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30 -A, the Defense’s Reply to the Prosecution’s “Consolidated Prosecution Respondent’s Brief” (sic), 29 July 2002 (public) |
|
Prosecution Respondent’s Brief |
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-A, Public Redacted Version of Consolidated Prosecution Respondent’s Brief, 30 October 2002 |
| Prosecution Final Trial Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-T, Prosecutor’s Final Trial Brief, 29 June 2001 |
| Prosecution Pre-Trial Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-PT, Prosecutor’s Filing Pursuant to Rule 65 ter (E) / Prosecutor’s Pre-Trial Brief Pursuant to Rule 65 ter (E) (i), 14 February 2000 |
| Radic | Mladjo Radic |
| Radic Notice of Appeal | Prosecutor v. Miroslav Kvocka et al., Case No. IT- 98-30-A, Defence Notice of Appeal, 15 November 2001 (public) |
| Radic Appeal Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30 -A, Radic’s Brief on Appeal, 11 April 2002 (public) |
| Radic Reply Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30 -A, The Defense’s Reply to the Prosecution’s “Consolidated Prosecution Respondent’s Brief” (sic), 30 July 2002 (public) |
| Rules | Rules of Procedure and Evidence of the ICTY |
| Statute | The Statute of the International Tribunal for the Former Yugoslavia established by Security Council Resolution 827 |
| T. | Transcript page from hearings before the Trial Chamber. All transcript page numbers referred to are from the unofficial, uncorrected version of the transcript, unless specified otherwise. Minor differences may therefore exist between the pagination therein and that of the final transcript released to the public. |
| Torture Convention | Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984 by the UN General Assembly, in force as of 26 June 1986 |
| Tribunal | See: ICTY |
| TWC | Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 |
| UN | United Nations |
| Vol. | Volume |
| Zigic | Zoran Zigic |
| Zigic Notice of Appeal | Prosecutor v. Miroslav Kvocka et al., Case No. IT- 98-30-A, Defendant’s Notice of Appeal, 16 November 2001 (public) |
| Zigic Additional Document | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30-A, Submission Pursuant to Order given in Decision on Prosecution Motion Requesting Order to Zoran Zigic to File Grounds of Appeal issued on 14 June 2002 (sic), 3 July 2002. |
| Zigic Appeal Brief | Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30 -A, Appellant’s Brief of Argument- Defence for the accused Zoran Zigic (sic), 21 May 2002 (public with confidential annexes) |
| Zigic Reply Brief |
Prosecutor v. Miroslav Kvocka et al., Case No. IT-98-30 -A, Zigic’s Reply to Consolidated Prosecution Respondent’s Brief, 13 November 2002 (public) |