A. Preliminary

  1. As observed in paragraph 20 of the Appeals Chamber’s decision, “[n]o question arises in this appeal as to the admissibility, in principle, of what has been called summarising evidence – the summarising of material which is relevant to the issues of the case. It has been admitted on many occasions in appropriate cases.” The statement goes on to say, “Whether it is appropriate in the particular case for the evidence to be admitted will depend on the circumstances of the case”. So the principle of admitting summarising evidence is accepted, and there have been many cases in which such evidence has been admitted; the narrow question is whether it is appropriate to admit it in this particular case.

  2. In answering that question, it is helpful to notice the circumstances of the Tribunal. They involve the management of cases which sprawl over time and space and stretch over the testimony of hundreds of witnesses. That difficulty has long troubled international tribunals. It was a problem at Nuremberg. It is believed that, though in practice free of the difficulty, at one stage within the recent past the International Court of Justice was faced with the perplexing prospect. And of course the problem is well known to this Tribunal: if allowed to run in the ordinary way, some trials at first instance could extend to five years and beyond .

  3. In the circumstances, the Tribunal has had to take power to determine the time available to a party for presenting evidence,1 it being understood that the power has to be exercised subject to the superior requirement that the trial has to be fair to both sides,2 any necessary variations of a previous exercise of the power being made from time to time.3 To their credit, parties generally recognise the need for these restrictions; in my view, the present question does not concern the legality of the power to impose limits or whether these should have been extended. The limits in force at any one time can, however, give rise to problems. Some of these are involved in the question which now arises.

  4. The question, in concrete terms, is whether an oral witness in the employ of the prosecution may summarise the written statements of uncalled witnesses, the summarising evidence including the oral witness’s observations and conclusions on those statements. I agree in part with the answer now given by the Appeals Chamber . However, I have the misfortune to be of another opinion on another part, and respectfully offer the following explanation of my difficulty.

    B. The background

  5. The accused is indicted in respect of Croatia, Bosnia and Kosovo, and in relation to events occurring over much time. Subject to the exercise of its discretion to vary, the Trial Chamber has had to impose a limit of 14 months on the prosecution for the presentation of its evidence in relation to all three territories. With regard to Kosovo, the indictment concerns 24 sites, including one at Racak. To respect the time limit imposed by the Trial Chamber, the prosecution has had in turn to limit the number of witnesses it would call per site. Generally, it would restrict itself to five witnesses per site. Of these, it would call one or two as live witnesses ; in respect of the remaining four or three, it would tender witness statements under the procedure prescribed by Rule 92bis.4 It could call more witnesses if it wished, but must bear in mind the consequences of doing so on its obligation to keep within the overall period fixed by the Trial Chamber.

  6. The Trial Chamber accepts that Racak “was a significant incident”. The prosecution allegation is that over 40 unarmed people were killed there, apart from others who were wounded. The killings allegedly occurred in six locations comprising 13 scenes . The prosecution says that a limited number of witnesses cannot give a whole view of the events. It has many witnesses. It will not call all of them; it will, however , be easier for it to work within the time limit fixed by the Trial Chamber if one of its witnesses is allowed to summarise the evidence contained in the written statements of 605 of the other witnesses and to give his observations and conclusions thereon in a report to be submitted by him . Mr Kelly, the witness in question, was an investigator attached to the office of the Prosecutor. In respect of some of the statements, he had personally interviewed the witnesses concerned; in respect of other statements, the interviews were conducted by his colleagues; but he had read them all. All of the witness statements were footnoted in his report, though not appended thereto; they were not in evidence but were available to the accused and to the Trial Chamber.

    C. The Trial Chamber’s decision

  7. These were the circumstances in which the prosecution offered the evidence of Mr Kelly. The Trial Chamber declined the offer. It did not take the position that the prosecution should have come under Rule 92bis and not under Rule 89(C) as the prosecution did. Its decision rested on the view that “for a witness to give his or her conclusions upon the evidence is to trespass on the function of the Trial Chamber” and on the fact that Mr Kelly was employed by the office of the Prosecutor. It concluded that Mr Kelly’s evidence was unreliable, of “little or no probative value”, and therefore inadmissible. While excluding Mr Kelly’s evidence , the Trial Chamber did say that “SsChould significant issues be raised during the Defence case, it will always be open to the Prosecution to call further evidence in rebuttal, not that we are encouraging this course”. The prosecution was not encouraged , and for the reason, I would think, that evidence in rebuttal is more restricted than evidence in chief: with variations which are not relevant, the decision of the court rests on the ex improviso principle. The fact that an issue is significant may well suggest that it was anticipated by the prosecution and could not therefore be the subject of rebuttal evidence. The rebuttal course would also erode the time available for the presentation of the evidence of the prosecution .

    D. The basic position taken in this opinion

  8. I support the Appeals Chamber’s decision that the conclusions offered by Mr Kelly on his summary of the written statements of the absent witnesses were inadmissible . As recalled in paragraph 10 of the decision of the Appeals Chamber, the prosecution concedes that, if the conclusions trespass on the Trial Chamber’s function, the Trial Chamber could admit only the summary and exclude the conclusions. But the Appeals Chamber holds that the summary is also inadmissible. It is this holding which gives me difficulty.

    E. Applicable provisions

  9. Rule 89 (C) was adopted in February 1994; it reads: “A Chamber may admit any relevant evidence which it deems to have probative value”. It is common ground that , under this Rule, hearsay evidence is admissible. Rule 89(F) was adopted in December 2001; it reads: “A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form”. Rule 92bis, also adopted in December 2001, reads:

    Rule 92 bis
    Proof of Facts other than by Oral Evidence
    1. A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

      1. Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:

        1. is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
        2. relates to relevant historical, political or military background;
        3. consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;
        4. concerns the impact of crimes upon victims;
        5. relates to issues of the character of the accused; or
        6. relates to factors to be taken into account in determining sentence.

      2. Factors against admitting evidence in the form of a written statement include whether :

        1. there is an overriding public interest in the evidence in question being presented orally;
        2. a party objecting can demonstrate that its nature and source renders it unreliable , or that its prejudicial effect outweighs its probative value; or
        3. there are any other factors which make it appropriate for the witness to attend for cross-examination.

    2. A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person’s knowledge and belief and

      1. the declaration is witnessed by:

        1. a person authorised to witness such a declaration in accordance with the law and procedure of a State; or
        2. a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

      2. the person witnessing the declaration verifies in writing:

        1. that the person making the statement is the person identified in the said statement ;
        2. that the person making the statement stated that the contents of the written statement are, to the best of that person’s knowledge and belief, true and correct;
        3. that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and
        4. the date and place of the declaration.

        The declaration shall be attached to the written statement presented to the Trial Chamber.

    3. A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber:

      1. is so satisfied on a balance of probabilities; and
      2. finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.

    4. A chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.

    5. Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination.

    F. The decision of the Appeals Chamber

  10. The decision of the Appeals Chamber takes the view that Mr Kelly’s summarising evidence cannot be admitted because -

    1. the summarising evidence did not provide an opportunity to cross-examine the maker of the summarised statements and was prepared by a person employed by the prosecution . For these and other reasons, it was unreliable; it was therefore not probative and not admissible. Thus, it was not admissible as hearsay evidence even under Rule 89(C), on which the prosecution relied. This was enough to put an end to the case;
    2. even apart from (a), the written witness statements summarised by Mr Kelly had been prepared for purposes of legal proceedings; written witness statements of that special type were now admissible only under Rule 92bis. The prosecution did not move under this Rule;
    3. the prosecution was indirectly attempting to argue that the Trial Chamber had erred in the exercise of its discretion to impose a time limit; but this matter was already settled.

    G. The argument that Mr Kelly’s summarising evidence is not admissible hearsay evidence

  11. As to (a), there is, in my view, no substance in arguments other than those relating to cross-examination and employment by the prosecution. One small point which may be picked up concerns an apparent absence of connection between Mr Kelly and the written statements taken by his colleagues. The gap could have been filled by oral evidence from him. He was in the box; had he been allowed to reach the matter , he could have shown that his colleagues had passed on the written statements to him with explanations. Subject to weight, hearsay upon hearsay can be admitted and has been admitted. Thus, a connection could have been made. This point apart, consideration will be limited to the two matters mentioned.

  12. First, then, as to cross-examination. In a preliminary way, it may be recalled that the Appeals Chamber’s decision accepts that summarising evidence “has been admitted on many occasions in appropriate cases”. It seems to me that the objection that there is no maker of an original statement to be cross-examined in the case of summarising evidence should, if sound, have applied to bar admissibility in those cases.

  13. The argument is not advanced by a contention that, if Mr Kelly’s evidence was received, there would be a denial of the right of the accused to examine witnesses , as conferred by Article 21(4)(e) of the Statute of the Tribunal. Where hearsay evidence is allowed to be given by a witness, it is the settled jurisprudence of the Tribunal that, if the other party wishes to challenge anything in the evidence he must do so by cross-examining the witness giving the hearsay evidence, and, or , by producing witnesses in his own turn. The rest is addressed by the duty of the Trial Chamber to weigh the evidence, especially in the light of the fact that the original sources were not tested in cross-examination. The Trial Chamber may of course require the attendance of the original witness; but, to the extent that it does so, the evidence is not really hearsay evidence. The approach to hearsay evidence proper is as mentioned above. That approach is consistent with the practice of judges in many legal systems who evaluate the evidence, including hearsay material, on the basis of their “intimate conviction”. For the reasons given later, that practice cannot be disregarded.

  14. Paragraph 1 of the Appeals Chamber’s decision, and much in the remaining text , correctly note that the prosecution did not tender the witness statements summarised in Mr Kelly’s report. The defence is entitled to verify the accuracy of a summary upon reference to the full witness statements on which the summary is based. So, the point in question draws on a principle of weight; but, with respect, it does so without substance. The prosecution pointed out that the witness statements were footnoted in Mr Kelly’s summary. They were not formally in evidence, but were available both to the Trial Chamber and to the accused. Indeed, the prosecution twice asked the Trial Chamber to read them.6 Thus , on the basis of Mr Kelly’s own report, both the Trial Chamber and the defence would have been directed to available means of verifying the accuracy of the summary .

  15. That is what is important – the opportunity to verify the accuracy of the summary . But to do that, it is not necessary to cross-examine the maker of the original written statement; and so, for this purpose, it was not necessary for the statement to be in evidence. To verify the accuracy of the summary it was sufficient to cross -examine Mr Kelly himself: it was he who made the summary. To cross-examine him, it was necessary for the original statements to be available to the cross-examiner , as distinct from being in evidence. A party may have a right to material being made available to it by the other side; whether the material goes into evidence is another matter. Thus, even if the witness statements were not in evidence, the fact that they were at the disposal of the defence – and indeed of the Trial Chamber - was not without legal value. The right to have the material available was respected .

  16. In my respectful view, it is not relevant to the question of law concerning admissibility, which is being examined, to take account of the fact that the accused was legally unrepresented. If prosecution evidence is admissible in the case of a legally represented accused, I have difficulty in appreciating how it can be inadmissible in the case of a legally unrepresented accused. Respect is due to the right of an accused to choose to be legally unrepresented. I do not appreciate how the exercise of that right affects admissibility. Weight is another matter. Otherwise, there would be an incongruity in the case of two co-accused, one having elected to be legally unrepresented, the other being legally represented. Material which would be admissible in the case of the latter would be inadmissible in the case of the former, and this solely by reason of the circumstance of legal representation.

  17. Second, as to the argument of unreliability because of employment by the prosecution . Again, there is a preliminary observation: if sound, the argument should also have barred admissibility in other cases in which summarising evidence was admitted if that evidence was also produced through prosecution personnel.

  18. As to the soundness of the argument, the jurisprudence in some domestic jurisdictions rightly regards the fact that a witness is a member of the prosecution team, or is associated with it, as going to weight and not, as held by the Trial Chamber, as going to admissibility. The Prosecutor is a party, but it is recognised that she represents the public interest of the international community and has to act with objectivity and fairness appropriate to that circumstance.7 She is in a real sense a minister of justice. Her mission is not to secure a conviction at all costs; the Rules relating to disclosure of exculpatory evidence show that . This in substance applies within common law systems.8 It is equally visible in continental systems. It is an aspect which a criminal tribunal acting on the international plane has to bear in mind, more especially in view of the solemn declaration taken by the witness.

  19. Distinctions in matching precedents are often possible and must of course be regarded; yet it is thought that the broad sweep of previous practice9 in the Tribunal corresponds with the view that summarising evidence given by prosecution personnel is admissible. So too in the case of courts in The Netherlands and in Spain; to attempt, as the Trial Chamber did, to distinguish their experience on the basis that it belongs to non-adversarial jurisdictions is to exaggerate the common law character of the Tribunal and to relegate the respectable habits of other legal systems. For, when it is said that the Statute established the Tribunal on the adversarial model, it has to be remembered that it also established the Tribunal as an international tribunal.

  20. In this respect, the Statute established the Tribunal on the basis that its judiciary was to be composed of judges coming from all legal systems and that they should all be able to function as from the first day. This they could not do if they were also required immediately to shed their basic traditions and instantly to don a new one. Also, it has to be borne in mind that the Tribunal was set up to deal with problems arising in non-common law areas. It follows that the Statute itself falls to be construed on the footing that, although it was framed on the basis of the adversarial model, it did not intend that model to be exclusive of other influences. There is nothing which compels that exclusion, as much in the jurisprudence of the Tribunal shows.

    H. The argument that Mr Kelly’s summarising evidence was admissible only under Rule 92bis

  21. As to (b), I gather from paragraph 17(3) of the Appeals Chamber’s decision that it is considered that the prosecution was obliged to proceed under Rule 92bis. The argument is that the written witness statements were prepared for the purpose of legal proceedings, that that is a special purpose, and that (with exceptions which do not seem applicable) written witness statements prepared for that special purpose can only be given under Rule 92bis where, as was apparently the case here, such evidence “goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment” With respect, I am not persuaded that there is such a restriction.

  22. Written witness statements prepared for the purpose of legal proceedings can of course be given in evidence under Rule 92bis, but it is difficult to locate a basis for the further proposition that such statements can only be given in evidence under that Rule. The Rule does not say, or reasonably imply, that written witness statements prepared for the purpose of legal proceedings can be given in evidence only under that Rule; if that was the intent of the Rule, it might have been made clear and not left to be inferred, with some difficulty as it seems to me, by an international readership drawn from different legal systems.

  23. Rule 92bis imposes no compulsion on the moving party to use the procedure which it establishes. There would be compulsion only if it was the case that the Rule required, as distinct from permitted, a party to move under the procedure which it established. As is shown by the text reproduced above, the Rule is directed to the competence of a Trial Chamber to receive evidence in certain cases; it is not directed to the obligation of a party to use the machinery which it lays down.

  24. The position being that Rule 92bis does not impose an obligation on a party who wishes to adduce evidence of the contents of a written witness statement (in the cases visualised by that Rule) to do so only under the procedure which it establishes, the correct interpretation of the Rule is that it does not prohibit a party from adopting an alternative procedure under another Rule. No doubt, a party who desires the advantages afforded by Rule 92bis is obliged to observe the particular procedure prescribed by that Rule. But that obligation does not apply where he proposes to seek an alternative solution under another provision. This being the case, no benefit is derivable from an analogy with the lex specialis principle.

  25. In effect, the Rules provide for a choice, as the Rules could; they provide for alternative solutions for a basic problem. Even taking into account the exceptions provided by paragraph (C) of Rule 92bis, the moving party may for good reason not be in a position to satisfy the conditions prescribed by paragraph (B) of the Rule for direct adduction: without resiling from the contents of his written witness statement, the original witness may simply be reluctant to provide a declaration as required by paragraph (B), or there may be some other difficulty in completing the procedures which is not covered by paragraph (C). Because of reasons of this kind, the moving party may not be in a position to invoke the Rule. It is difficult to see why he should not be permitted give hearsay evidence through another witness of the contents of the witness statement under Rule 89(C). The only restraint proceeds from the requirement for the trial to be fair as stated in paragraphs (B) and (D ) of Rule 89. But that requirement did not preclude recourse to Rule 89(C) before the adoption of Rule 92bis, the question being one of weight; I am unable to see why it should preclude recourse now.

  26. As to discretion, it may be recalled that the Trial Chamber itself did not dispute the prosecution’s submissions, referred to in paragraph 10 of the Appeals Chamber’s decision, that Mr Kelly’s summarising evidence did not “relate to an ultimate issue in the case, because it ‘did not discuss the guilt or individual criminal responsibility of the accused …’”.

  27. There is no question that prior to the adoption of Rule 92bis, Rule 89(C) did allow for hearsay evidence to be given by an oral witness (such as Mr Kelly) of the contents of a written statement of an absent witness, whether or not the statement had been prepared for the purpose of legal proceedings. Rule 92bis does not address such a case, namely, one in which an oral witness is testifying as to the contents of the written statement of an absent witness; it provides for direct adduction of the written witness statement. Any impact which it has on Rule 89(C) – a very broad provision - is directed to the latter only in so far as the latter concerns a question of direct adduction of a written witness statement, a matter now treated of also in Rule 89(F).

  28. It is worth considering also that, if the Rule 92bis procedure excluded recourse to Rule 89(C), it would by implication be repealing Rule 89(C) pro tanto . Was there such a repeal?

  29. It may be remembered that “repeal by implication is not favoured… If, therefore , earlier and later statutes can reasonably be construed in such a way that both can be given effect to, this must be done”.10 Prior to the adoption of Rule 92bis, the provisions of Rule 89(C) did authorise the giving of hearsay evidence by a witness of the contents of written statements of prospective witnesses prepared for the purpose of legal proceedings. To hold that it is no longer possible to take that course notwithstanding that Rule 89(C ) continues in the same shape as before necessarily means that the operation of the Rule has been impliedly repealed to that extent. No doubt, the sixteen permanent judges of the Tribunal can impliedly repeal their own Rule as to an aspect of its earlier operation even though they continue it in the same textual form as before ; and a smaller body of the same judges, acting judicially, can say that this is what the full body, acting legislatively, intended. But I am not persuaded that that is what the full body had in mind.

  30. It may be added that there does not appear to be a basis for a view that the prosecution is opposed to the prospect of cross-examination presented by Rule 92bis(E), as may be suggested in paragraph 18 of the Appeal Chamber’s decision . As has been seen, the Trial Chamber imposed a time limit of 14 months on the prosecution for the presentation of its evidence. To respect that limit, the prosecution limited itself in general to presenting five witnesses in respect of each site. It puts one or two witnesses in the box and then submits written witness statements in respect of the remaining four or three under Rule 92bis.11 In respect of all such witnesses, both “live” and “non-live”, it regularly faces the possibility of cross-examination. Further, if there were no time limit, it has to be presumed that the prosecution would be prepared in the ordinary way to have all its other witnesses cross-examined. So it would not be correct to ascribe to the prosecution any reluctance to face cross-examination under Rule 92bis (E).

  31. But the prospect of cross-examination under Rule 92bis(E) could have operated in another way: it could have lengthened out the process, as indicated by the position of the prosecution which is recalled in paragraph 3 of the Appeals Chamber’s decision. Dealing with 60 witness statements under Rule 92bis, complete with cross-examination, could occupy some time – especially if any necessary re-examination were taken into account. The case concerned the particular site at Racak. Apart from that, there were 23 sites to be dealt with in Kosovo. A fair interpretation is that the prosecution considered that the Rule 92bis procedure could not be employed in relation to the 60 witness statements consistently with the overall time limit of 14 months fixed by the Trial Chamber. The motivation was not to avoid cross-examination but to find a way of presenting the necessary material within the available time.

  32. Finally, the Trial Chamber did not say that Rule 92bis stood in the way. It would seem that the Trial Chamber did not consider that it was open to the prosecution to proceed under that Rule and that, not having done so, the prosecution was barred from proceeding under Rule 89(C). I respectfully disagree with the Trial Chamber on some things, but I share its assumption that Rule 92bis did not preclude recourse to Rule 89(C). Were it otherwise, one has only to think of the innumerable objections which may be raised whenever hearsay evidence is being given in the course of the testimony of an oral witness who is dealing with several matters: on each occasion, if it happens that recourse could have been made to Rule 92bis, it could be argued that the particular hearsay evidence is not receivable because it could have been given under that Rule.

    I. The argument that the prosecution was indirectly contending that the Trial Chamber had erred in the exercise of its discretion to impose a time limit

  33. As to (c), in the past the prosecution did complain about the exercise of the power of the Trial Chamber to impose a time limit; the complaint was settled, and it would be wrong for the prosecution now to seek to reopen it indirectly. But I do not think that that is being done. The Trial Chamber has a competence to extend the time limit; but the time limit, as it stands at any given moment, is still a time limit. As such, it exerts constraint. What the prosecution is saying is that it would help to stay within the existing time limit if it were allowed to adduce in evidence Mr Kelly’s summary of the written statements of the 60 other witnesses ; if the procedure of Rule 92bis were to be adopted, the time limit for the time being in force would be exceeded. It appears to me that that is not the same thing as an indirect attempt to argue that the Trial Chamber erred in exercising its discretion to fix the existing time limit.

    J. Conclusion

  34. As has been seen, paragraph 20 of the Appeals Chamber’s decision accepts that summarising evidence is in principle admissible in the Tribunal and “has been admitted on many occasions in appropriate cases”. I am not able to appreciate why this is not an appropriate case. The case spans vast swaths of territory, much time and endless lists of witnesses; it obviously calls for special evidential machinery. Some domestic systems and the Nuremberg trials suggest models which may be drawn upon. Variations are possible; but the common idea is to avoid unsafe conclusions based on partial evidence. That idea is realised by a method which enables the court to appreciate the fullness of all relevant evidence within a reasonable time and which is yet consistent with essential notions of justice. Both parties are entitled to an expeditious hearing; but this is not a reason for sacrificing evidential completeness . The desirable solution is one that permits speed to be reconciled with comprehensiveness .

  35. In this respect, the principle of the procedures employed at Nuremberg would enable an international criminal court to receive the testimony of witnesses although it was conveyed in the form of summarising evidence to the court through prosecution personnel, provided that the accused had the possibility of access to the original statements. In these and other ways those procedures would enable the court to form an overall view of the situation in question without an oppressive extension of time.

  36. There is much in the argument that the telescoped approach taken at Nuremberg has been overtaken by the increasing emphasis which has since been given to human rights. But the problem at Nuremberg remains, and so does the need to find a solution . A solution which violates fundamental norms is of course not satisfactory. But there need be no conflict if essentials are regarded. The essentials show that the duty to be fair is not a duty to be infallible.12 The fairness of a trial is the result of the fairness of the system of justice employed . The latter depends on the striking of a balance between two competing public interests . First, there is the justly publicised public interest in respecting the rights of the accused. Second, there is the less proclaimed but equal public interest in ensuring that crimes are properly investigated and duly prosecuted.

  37. I do not see how both of these important public interests can be satisfied if a position is taken which effectively means that the Trial Chamber’s appreciation will rest on partial material; even taking into account possible variations, it is not credible to argue that that will not be the practical result in this case . If that is the result, the Trial Chamber will have less than a full grasp of what took place and will not be in a position to make a judgement that can stand objective scrutiny. The exclusion of Mr. Kelly’s summarising evidence will have that artificial effect. More importantly, it will put in doubt the viability of the Tribunal.

  38. The last remark brings me to this point. In my understanding - if not also the general understanding - a decision of the Appeals Chamber is in strict law not a binding authority on that Chamber; but of course it is highly persuasive on that Chamber and should only be departed from sparingly.13 I consider that the viability of the Tribunal and of other international criminal courts established or to be established provides cogent reason for exercising the power to depart from the particular case followed by the Appeals Chamber if it means that Mr Kelly’s summarising evidence was inadmissible.

  39. Finally, I support the decision of the Appeals Chamber to dismiss the appeal , but only in respect of Mr Kelly’s conclusions. As regards his summary, I consider that this was admissible under Rule 89(C) and would allow the appeal to this extent .


Done in both English and French, the English text being authoritative

Mohamed Shahabuddeen

Dated this 30th day of September 2002
At The Hague
The Netherlands

1 - See Rule 73bis(E) and Rule 73ter(E) of the Rules of Procedure and Evidence of the Tribunal. The former provides: “After having heard the Prosecutor, the Trial Chamber shall determine the time available to the Prosecutor for presenting evidence”. The latter relates in corresponding terms to the defence.
2 - This is a large area, involving a discretionary consideration of main and collateral issues in the case, cumulative and undisputed facts, opinion matters, the size of exclusions in relation to the importance of the particular issue, and other factors which are generally designed to exclude arbitrariness. See a number of United States cases usefully collected in B.H.Glenn, Limiting Number of Noncharacter Witnesses in Criminal Case, 5 A.L.R. 3d 238.
3 - Rule 73bis(F) of the Rules reads: “During a trial, the Trial Chamber may grant the Prosecutor’s request for additional time to present evidence if this is in the interests of justice”. Rule 73ter(F) relates in corresponding terms to the defence.
4 - Transcript, Trial Chamber, 20 February 2002, pp. 661 and 665, Mr Nice for the prosecution.
5 - Transcript, Trial Chamber, 28 May 2002, pp. 5717, 5735 and 5934, Mr Nice.
6 - Transcript, Trial Chamber, 30 May 2002, pp. 5927 and 5933.
7 - The Prosecutor recognised this in her Regulation No. 2 of 1999 in which she said that prosecutors represent “the international community” and should “promote principles of fairness and professionalism”.
8 - R v. Banks (1916( 2 KB 621 at 623, per Avory J.
9 - Collected in footnote 40 of “Interlocutory Appeal of the Prosecution against Decision on Admission of Evidence of Summarizing Witness” of 27 June 2002.
10 - Maxwell on Interpretation of Statutes, 12th ed. (London, 1969), p. 191.
11 - Transcript, Trial Chamber, 20 February 2002, pp. 661 and 665, Mr Nice for the prosecution.
12 - See remarks of Judge Hackworth, dissenting, in Effect of Awards of Compensation made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J.Reports 1954, p. 47, at p. 86; of Lord Diplock in Maharaj v. Attorney-General of Trinidad and Tobago (No. 2), [1979] A.C. 385, P.C., at 399, stating that the “fundamental human right is not to a legal system that is infallible but to one that is fair”; and of Lord Templeman in Bell v. Director of Public Prosecutions (Jamaica), [1985] 1 A.C. 937, P.C.
13 - “The real question is whether … there is cause not to follow the reasoning and conclusions of earlier cases”, as it was put by the International Court of Justice in Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.Nigeria), Preliminary Objections, I.C.J. Reports 1998, p. 275, at p. 292, para. 28. In the view of the Appeals Chamber of the ICTY, “in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice”. See Prosecutor v. Aleksovski, IT-95-14/1-A of 24 March 2000, para. 107.