PETER ROBINSON

International Criminal Defence Counsel

E-mail: peter@peterrobinson.com

PETER ROBINSON’S
SUMMARY OF DECISIONS OF THE
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

ICTY STATUTE, RULES OF PROCEDURE AND EVIDENCE,

DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL, AND
CODE OF CONDUCT FOR DEFENCE COUNSEL
ANNOTATED

© 2019—ALL RIGHTS RESERVED

 PREFACE

When I first started working as a criminal defence counsel at the Tribunals in

2000, it was difficult to find their prior decisions. Since knowledge and use of the
Tribunals’ own jurisprudence was essential to defending my clients, I began locating and
reading all the prior decisions and making summaries of them. I continued that practice
even when the Tribunals’ jurisprudence became more reliably and widely available,
mostly as a discipline for myself to keep up with the decisions and as a way to quickly
locate decisions that I had read.

The summaries in this document are not verbatim quotations from the decisions
and are intended only to assist in locating the relevant precedent. They are guides to, but
not substitutes for, reading the decisions themselves.

I hope others will find these summaries useful.

Peter Robinson

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STATUTE OF THE TRIBUNAL ............................................................................... 33
ARTICLE 1—COMPETENCE OF THE INTERNATIONAL TRIBUNAL ........... 33
ABUSE OF PROCESS ..................................................................................................... 33
CONFLICT OF INTEREST ............................................................................................... 34
ILLEGAL ARREST......................................................................................................... 34
IMMUNITY .................................................................................................................. 34
JURISDICTION ............................................................................................................. 35
NULLEM CRIMEN SINE LEGE .......................................................................................... 37
SELECTIVE PROSECUTION ............................................................................................ 37
STAY OF PROCEEDINGS................................................................................................ 38

ARTICLE 2—GRAVE BREACHES OF THE GENEVA CONVENTION ............. 38

ARMED CONFLICT ....................................................................................................... 39
existence ................................................................................................................ 39
international character .......................................................................................... 39
territory included ................................................................................................... 41
CONFINEMENT ............................................................................................................ 41
civilians ................................................................................................................. 41
conditions .............................................................................................................. 42
justifications .......................................................................................................... 42
mens rea ................................................................................................................ 43
participation .......................................................................................................... 43
CRUEL AND INHUMAN TREATMENT .............................................................................. 44
DEPORTATION AND FORCIBLE TRANSFER ..................................................................... 44
DESTRUCTION NOT BASED ON MILITARY NECESSITY ..................................................... 45
KILLING...................................................................................................................... 46
MENS REA................................................................................................................... 47
OCCUPIED TERRITORY ................................................................................................. 47
aiding and abetting ................................................................................................ 47
area ....................................................................................................................... 47
authority ................................................................................................................ 48
state of occupation ................................................................................................. 48
PLUNDER AND APPROPRIATION OF PROPERTY ............................................................... 49
PROTECTED PERSONS .................................................................................................. 50
allegiance .............................................................................................................. 50
civilians ................................................................................................................. 51
co-belliegerents ..................................................................................................... 51
nationals ................................................................................................................ 51
non-civilians .......................................................................................................... 52
persons subject to conscription .............................................................................. 52
reservists ............................................................................................................... 52
ARTICLE 3—VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR .............. 52
ARMED CONFLICT ....................................................................................................... 53

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 existence ................................................................................................................ 53
intensity ................................................................................................................. 54
international character .......................................................................................... 54
organisation .......................................................................................................... 55
ATTACKS ON CIVILIANS OR ON CIVILIAN OBJECTS......................................................... 55
civilians ................................................................................................................. 56
civilian objects....................................................................................................... 56
distinction .............................................................................................................. 57
elements................................................................................................................. 59
factors ................................................................................................................... 60
hospitals ................................................................................................................ 60
mens rea ................................................................................................................ 60
military objects ...................................................................................................... 61
precautions ............................................................................................................ 61
proportionality ...................................................................................................... 61
scale ...................................................................................................................... 62
shelling .................................................................................................................. 62
targeting civilians .................................................................................................. 63
CRUEL TREATMENT ..................................................................................................... 63
contribution ........................................................................................................... 64
defences ................................................................................................................. 64
elements................................................................................................................. 64
mens rea ................................................................................................................ 64
suffering ................................................................................................................ 65
victims ................................................................................................................... 66
DESTRUCTION NOT BASED ON MILITARY NECESSITY ..................................................... 66
collateral damage .................................................................................................. 66
elements................................................................................................................. 67
mens rea ................................................................................................................ 67
military objects ...................................................................................................... 67
partial destruction ................................................................................................. 68
scope of protection................................................................................................. 69
DEVASTATION NOT JUSTIFIED BY MILITARY NECESSITY ................................................ 69
DESTRUCTION OF CULTURAL PROPERTY ....................................................................... 69
DESTRUCTION OF RELIGIOUS INSTITUTIONS .................................................................. 70
FORCED LABOUR......................................................................................................... 71
HOSTAGE TAKING ....................................................................................................... 71
MENS REA.................................................................................................................... 73
MURDER ..................................................................................................................... 73
NEXUS........................................................................................................................ 73
OUTRAGES UPON PERSONAL DIGNITY ........................................................................... 74
PLUNDER .................................................................................................................... 75
PROTECTED PERSONS .................................................................................................. 77
REPRISALS .................................................................................................................. 78
SCOPE ........................................................................................................................ 79
TERROR ...................................................................................................................... 80

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 customary law ....................................................................................................... 80
elements................................................................................................................. 81
actus reus .............................................................................................................. 81
mens rea ................................................................................................................ 82
TIMING ....................................................................................................................... 84
TORTURE .................................................................................................................... 85
elements................................................................................................................. 85
actus reus .............................................................................................................. 85
mens rea ................................................................................................................ 86
public official......................................................................................................... 87
ARTICLE 4—GENOCIDE ........................................................................................ 87
ACTUS REUS ............................................................................................................... 88
DESTRUCTION ............................................................................................................. 88
killing .................................................................................................................... 88
serious physical harm ............................................................................................ 89
serious mental harm .............................................................................................. 90
unbearable conditions of life.................................................................................. 91
preventing births .................................................................................................... 95
COMPLICITY ............................................................................................................... 95
CONSPIRACY............................................................................................................... 96
agreement .............................................................................................................. 96
inference ................................................................................................................ 97
mens rea ................................................................................................................ 97
continuing offence ................................................................................................. 97
inchoate offence..................................................................................................... 97
withdrawal ............................................................................................................ 98
MENS REA.................................................................................................................... 98
as such................................................................................................................... 98
factors ................................................................................................................... 98
inferences .............................................................................................................. 99
insufficient evidence............................................................................................... 99
related crimes ...................................................................................................... 101
saving victims ...................................................................................................... 101
specific intent....................................................................................................... 101
IN WHOLE OR IN PART ............................................................................................... 102
PLAN OR POLICY ....................................................................................................... 103
PROTECTED GROUP ................................................................................................... 104

ARTICLE 5—CRIMES AGAINST HUMANITY ................................................... 104

ARMED CONFLICT ..................................................................................................... 105
ATTACK.................................................................................................................... 106
elements............................................................................................................... 106
existence .............................................................................................................. 106
nexus ................................................................................................................... 106
widespread or systematic ..................................................................................... 108
CHAPEAU ELEMENTS—MENS REA ............................................................................... 110

5
 context ................................................................................................................. 110
details .................................................................................................................. 110
discriminatory intent ............................................................................................ 110
elements............................................................................................................... 110
multiple motivations ............................................................................................ 111
recklessness ......................................................................................................... 111
whose intent matters ............................................................................................ 112
CIVILIAN POPULATION .............................................................................................. 112
definition ............................................................................................................. 112
directed against civilian population ..................................................................... 113
hors d’combat ...................................................................................................... 115
DEPORTATION........................................................................................................... 116
defence of necessity ............................................................................................. 116
elements............................................................................................................... 117
forcible ................................................................................................................ 117
international border ............................................................................................ 118
lawfully present ................................................................................................... 119
mens rea .............................................................................................................. 120
ENSLAVEMENT ......................................................................................................... 121
EXTERMINATION ....................................................................................................... 121
aggregation of victims ......................................................................................... 121
aiding and abetting .............................................................................................. 122
elements............................................................................................................... 122
mens rea .............................................................................................................. 123
number of victims ................................................................................................ 124
FORCED LABOUR....................................................................................................... 124
FORCIBLE TRANSFER ................................................................................................. 125
deportation distinguished..................................................................................... 125
elements............................................................................................................... 126
forcible ................................................................................................................ 126
gravity ................................................................................................................. 127
mens rea .............................................................................................................. 127
necessity .............................................................................................................. 128
nullum crimen sine lege ....................................................................................... 129
persons excluded ................................................................................................. 129
transfer ................................................................................................................ 130
IMPRISONMENT......................................................................................................... 130
continued detention.............................................................................................. 130
defences ............................................................................................................... 130
elements............................................................................................................... 131
factors ................................................................................................................. 131
home detention .................................................................................................... 131
MURDER ................................................................................................................... 132
body..................................................................................................................... 132
causation ............................................................................................................. 132
elements............................................................................................................... 133

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 mens rea .............................................................................................................. 134
OTHER INHUMANE ACTS ............................................................................................ 134
PERSECUTION ........................................................................................................... 136
in general ............................................................................................................ 136
act of discrimination ............................................................................................ 137
attacks against civilians ....................................................................................... 138
cruel and inhumane treatment.............................................................................. 138
disappearances .................................................................................................... 139
destruction of cultural property ........................................................................... 139
destruction of personal property .......................................................................... 140
forced labor ......................................................................................................... 141
forcible transfer ................................................................................................... 142
harassment, humiliation and psychological abuse ................................................ 142
human shields ...................................................................................................... 143
imprisonment ....................................................................................................... 143
mens rea .............................................................................................................. 143
other acts ............................................................................................................. 145
plunder ................................................................................................................ 147
sexual violence .................................................................................................... 148
terrorizing the civilian population........................................................................ 149
RAPE ........................................................................................................................ 150
SELF-DEFENCE .......................................................................................................... 150
TORTURE .................................................................................................................. 151

ARTICLE 6—PERSONAL JURISDICTION.......................................................... 152

ARTICLE 7—INDIVIDUAL CRIMINAL RESPONSIBILITY ............................. 152
AIDING AND ABETTING .............................................................................................. 153
actus reus ............................................................................................................ 153
after-the-fact........................................................................................................ 154
definition ............................................................................................................. 154
mens rea--definition............................................................................................. 154
mens rea—knowledge of perpetrator’s intent ....................................................... 154
mens rea—specific cases...................................................................................... 155
mens rea--specific intent crimes ........................................................................... 156
relationship with perpetrator ............................................................................... 156
omission .............................................................................................................. 157
plan ..................................................................................................................... 160
presence .............................................................................................................. 160
principal .............................................................................................................. 161
specific direction ................................................................................................. 161
substantial effect .................................................................................................. 161
timing .................................................................................................................. 163
COMMITTING ............................................................................................................ 163
FORMS OF LIABILITY IN GENERAL .............................................................................. 164
INDIRECT CO-PERPETRATION ..................................................................................... 164
INSTIGATING ............................................................................................................ 165

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 actus reus ............................................................................................................ 165
distinguished from aiding and abetting ................................................................ 166
mens rea .............................................................................................................. 166
omission .............................................................................................................. 166
specific cases ....................................................................................................... 167
JOINT CRIMINAL ENTERPRISE ..................................................................................... 168
common elements................................................................................................. 168
acquiescence........................................................................................................ 169
common plan or purpose ..................................................................................... 171
plurality of persons .............................................................................................. 173
customary international law ................................................................................ 174
distinction from aiding and abetting .................................................................... 174
forms ................................................................................................................... 176
forms—JCE I ....................................................................................................... 176
forms--JCE II....................................................................................................... 178
JCE III--actus reus .............................................................................................. 179
JCEIII--“commission”......................................................................................... 179
JCEIII--definition ................................................................................................ 179
JCEIII--mens rea ................................................................................................. 183
JCEIII--relation to JCE I ..................................................................................... 184
JCEIII--specific intent crimes .............................................................................. 184
significant contribution ........................................................................................ 185
mens rea .............................................................................................................. 185
inferences ............................................................................................................ 186
non-JCE perpetrators .......................................................................................... 187
omission .............................................................................................................. 189
scope ................................................................................................................... 191
significant contribution ........................................................................................ 191
timing .................................................................................................................. 195
MENS REA.................................................................................................................. 195
OMISSION ................................................................................................................. 195
ORDERING ................................................................................................................ 196
actus reus ............................................................................................................ 196
causation ............................................................................................................. 196
express or implied................................................................................................ 197
mens rea .............................................................................................................. 197
omission .............................................................................................................. 198
superior relationship not required ....................................................................... 198
PLANNING ................................................................................................................ 199
SUPERIOR RESPONSIBILITY ........................................................................................ 200
causation ............................................................................................................. 200
civilians ............................................................................................................... 200
criminal negligence ............................................................................................. 200
defences ............................................................................................................... 201
elements............................................................................................................... 201
jurisdiction .......................................................................................................... 201

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 mens rea .............................................................................................................. 202
actual knowledge ................................................................................................. 202
reason to know..................................................................................................... 203
failure to prevent or punish .................................................................................. 208
reasonable and necessary measures..................................................................... 208
existence of other investigations........................................................................... 212
when reporting futile............................................................................................ 213
prevention............................................................................................................ 214
punishment .......................................................................................................... 216
subsequent commanders ...................................................................................... 218
acts of subordinates ............................................................................................. 218
effective control ................................................................................................... 220
effective control factors ....................................................................................... 224
effective control v influence ................................................................................. 226
effective control found ......................................................................................... 226
effective control not found.................................................................................... 227
ARTICLE 8—TERRITORIAL AND TEMPORAL JURISDICTION ................... 228
ARTICLE 9—CONCURRENT JURISDICTION ................................................... 228
ARTICLE 10—NON BIS IN IDEM ......................................................................... 228
ARTICLE 11—ORGANISATION OF THE INTERNATIONAL TRIBUNAL .... 229
ARTICLE 12—COMPOSITION OF THE CHAMBERS ....................................... 229
ARTICLE 13—QUALIFICATION OF JUDGES ................................................... 230
ARTICLE 13 BIS—ELECTION OF PERMANENT JUDGES .............................. 230
ARTICLE 13 TER—ELECTION AND APPOINTMENT OF AD LITEM JUDGES
.................................................................................................................................... 231
ARTICLE 13 QUATER—STATUS OF AD LITEM JUDGES ................................ 232
ARTICLE 14—OFFICERS AND MEMBERS OF THE CHAMBERS ................. 233
ARTICLE 15—RULES OF PROCEDURE AND EVIDENCE............................... 234
ARTICLE 16—THE PROSECUTOR ...................................................................... 234
ARTICLE 17—THE REGISTRY ............................................................................ 235
ARTICLE 18—INVESTIGATION AND PREPARATION OF INDICTMENT ... 235
ARTICLE 19—REVIEW OF THE INDICTMENT ................................................ 235
ARTICLE 20—COMMENCEMENT AND CONDUCT OF TRIAL ..................... 236
ATTENTIVENESS OF JUDGES ....................................................................................... 236
DELAY...................................................................................................................... 236
MENTAL CAPACITY ................................................................................................... 237
PHYSICAL CAPACITY ................................................................................................. 238
WITNESS INTIMIDATION ............................................................................................ 240

ARTICLE 21—RIGHTS OF THE ACCUSED ........................................................ 240

9
ARTICLE 21(1)--EQUALITY OF ARMS ......................................................................... 241
ARTICLE 21(3)—PRESUMPTION OF INNOCENCE......................................................... 243
ARTICLE 21(4)(A)—SPECIFICITY OF THE INDICTMENT ............................................... 244
prosecution must know its case ............................................................................ 244
degree of specificity required ............................................................................... 245
incorporation by reference................................................................................... 245
indictment schedules ............................................................................................ 245
identification of perpetrators ............................................................................... 246
identification of victims ........................................................................................ 246
meetings and speeches ......................................................................................... 246
dates .................................................................................................................... 247
state of mind ........................................................................................................ 248
defective indictment in general ............................................................................ 248
curing defect ........................................................................................................ 249
expansion of charges ........................................................................................... 251
armed conflict...................................................................................................... 252
persecution .......................................................................................................... 252
unlawful attacks against civilians ........................................................................ 253
cruel treatment .................................................................................................... 253
forced labour ....................................................................................................... 253
deportation and forcible transfer ......................................................................... 253
murder ................................................................................................................. 254
plunder ................................................................................................................ 255
other inhumane acts............................................................................................. 255
forms of liability .................................................................................................. 255
instigating............................................................................................................ 256
ordering............................................................................................................... 256
committing ........................................................................................................... 256
joint criminal enterprise ...................................................................................... 256
superior responsibility ......................................................................................... 258
sentencing............................................................................................................ 260
burden of proof .................................................................................................... 260
remedies for defective indictment ......................................................................... 260
ARTICLE 21(4)(B)--ADEQUATE TIME AND FACILITIES ................................................. 261
adjournment of trial ............................................................................................. 261
assistance of the Registrar ................................................................................... 263
assistance of States and UN organs ..................................................................... 263
courtroom facilities.............................................................................................. 263
funding ................................................................................................................ 263
time to prepare for trial ....................................................................................... 263
time to present defence case................................................................................. 265
translations .......................................................................................................... 266
trial schedule ....................................................................................................... 266
ARTICLE 21(4)(D)—PRESENCE OF THE ACCUSED ....................................................... 266
ARTICLE 21(4)(D)--SELF REPRESENTATION ................................................................ 268
amicus curiae ...................................................................................................... 268

10
 assistance to self-represented accused ................................................................. 268
limitations and termination on self-representation ............................................... 271
right to self-representation................................................................................... 273
self-representation on appeal ............................................................................... 274
special treatment ................................................................................................. 274
standby counsel ................................................................................................... 275
ARTICLE 21(4)(E)--COMPULSORY PROCESS................................................................ 276
ARTICLE 21(4)(E)—CROSS EXAMINATION ................................................................. 277
ARTICLE 21(4)(G)—SELF INCRIMINATION ................................................................. 277
ARTICLE 22—PROTECTION OF VICTIMS AND WITNESSES ....................... 278
ARTICLE 23—JUDGEMENT ................................................................................. 278
ARTICLE 24—PENALTIES .................................................................................... 282
ARTICLE 25—APPELLATE PROCEEDINGS ..................................................... 282
ACQUITTAL .............................................................................................................. 283
APPEAL OF RIGHT...................................................................................................... 283
BINDING NATURE OF DECISIONS................................................................................. 283
CLARIFICATION......................................................................................................... 286
COLLATERAL ESTOPPEL AND RES JUDICATA ................................................................ 286
DEATH OF APPELLANT ............................................................................................... 286
EXPEDITED APPEALS ................................................................................................. 286
FACTUAL FINDINGS ................................................................................................... 287
INCONSISTENT FINDINGS ........................................................................................... 287
INTERLOCUTORY DECISIONS...................................................................................... 287
ISSUES OF GENERAL IMPORTANCE.............................................................................. 288
RECONSIDERATION ................................................................................................... 288
REMEDY ................................................................................................................... 288
REMIT TO TRIAL CHAMBER ....................................................................................... 289
REVISION OF JUDGEMENT .......................................................................................... 290
SCOPE OF REVIEW ..................................................................................................... 291
STANDARD OF REVIEW .............................................................................................. 291
STANDING ................................................................................................................ 293
STAY PENDING APPEAL.............................................................................................. 294
WAIVER .................................................................................................................... 294
WITHDRAWAL OF APPEAL.......................................................................................... 295

ARTICLE 26—REVIEW PROCEEDINGS ............................................................ 295

ARTICLE 27—ENFORCEMENT OF SENTENCES ............................................. 295
ARTICLE 28—PARDON OR COMMUTATION OF SENTENCES .................... 296
ARTICLE 29—CO-OPERATION AND JUDICIAL ASSISTANCE ..................... 296
ARTICLE 30—STATUS, PRIVILIGES, AND IMMUNITIES .............................. 297
ARTICLE 31—SEAT OF THE INTERNATIONAL TRIBUNAL ......................... 298
ARTICLE 32—EXPENSES OF THE INTERNATIONAL TRIBUNAL ............... 298

11
ARTICLE 33—WORKING LANGUAGES ............................................................ 299
ARTICLE 34—ANNUAL REPORT ........................................................................ 299
RULES OF PROCEDURE AND EVIDENCE ......................................................... 300
RULE 1—ENTRY INTO FORCE ............................................................................ 300
RULE 2—DEFINITIONS ......................................................................................... 300
RULE 3—LANGUAGES .......................................................................................... 301
EXHIBITS .................................................................................................................. 301
FOR THE ACCUSED .................................................................................................... 302

RULE 4—MEETINGS AWAY FROM THE SEAT OF THE TRIBUNAL ........... 303
DENIED..................................................................................................................... 304
EVIDENCE................................................................................................................. 304
PRESENCE OF ACCUSED ............................................................................................. 304

RULE 5—NON-COMPLIANCE WITH RULES .................................................... 305

RULE 6—AMENDMENT OF THE RULES ........................................................... 305
RULE 7—AUTHENTIC TEXTS ............................................................................. 305
RULE 7 BIS—NON-COMPLIANCE WITH OBLIGATIONS .............................. 305
RULE 8—REQUEST FOR INFORMATION ......................................................... 306
RULE 9—PROSECUTOR’S REQUEST FOR DEFERRAL .................................. 306
RULE 10—FORMAL REQUEST FOR DEFERRAL ............................................. 306
RULE 11—NON-COMPLIANCE WITH A REQUEST FOR DEFERRAL .......... 307
RULE 11 BIS—REFERRAL OF THE INDICTMENT TO ANOTHER COURT 307
CHOICE OF STATE ...................................................................................................... 308
CONDITIONS OF DETENTION ....................................................................................... 309
DEATH PENALTY ....................................................................................................... 309
DEFENCE INVESTIGATION .......................................................................................... 309
DISCRETION .............................................................................................................. 310
EX POST FACTO ......................................................................................................... 310
FACTORS .................................................................................................................. 310
FAIR TRIAL ............................................................................................................... 310
GRAVITY OF OFFENCE ............................................................................................... 311
INDICTMENT ............................................................................................................. 311
JURISDICTION OF TRIAL CHAMBER ............................................................................ 311
LEVEL OF RESPONSIBILITY OF THE ACCUSED .............................................................. 312
MONITORING COMPLIANCE........................................................................................ 313
POST-CONVICTION PROCEEDINGS .............................................................................. 313
RE-TRANSFER ........................................................................................................... 313
REVOCATION OF REFERRAL ....................................................................................... 314
SEVERANCE .............................................................................................................. 314
STANDARD OF REVIEW ON APPEAL............................................................................. 314

12
 STANDING TO REQUEST TRANSFER ............................................................................. 314
WILLING AND ABLE ................................................................................................... 314

RULE 12—DETERMINATIONS OF COURTS OF ANY STATE ........................ 315

RULE 13—NON BIS IN IDEM ................................................................................ 315
RULE 14—SOLEMN DECLARATION .................................................................. 315
RULE 15—DISQUALIFICATION OF JUDGES .................................................... 315
ADMINISTRATIVE DUTIES .......................................................................................... 316
APPEARANCE OF BIAS................................................................................................ 316
BURDEN OF PROOF .................................................................................................... 318
CONTEMPT ............................................................................................................... 318
DECISIONS AS SOURCE OF BIAS .................................................................................. 319
EXTRAJUDICIAL ACTIVITIES AS SOURCE OF BIAS ......................................................... 319
FAIR TRIAL ............................................................................................................... 320
MULTIPLE CASES....................................................................................................... 320
NULLIFICATION OF DECISIONS ................................................................................... 320
PANEL OF THREE JUDGES ........................................................................................... 321
PRESIDING JUDGE...................................................................................................... 322
PRESUMPTION OF IMPARTIALITY ................................................................................ 322
PRIOR INVOLVEMENT WITH SAME OR RELATED MATTER ............................................. 323
REPLACEMENT JUDGE ............................................................................................... 324
REVIEW .................................................................................................................... 324
STAFF ....................................................................................................................... 324
STAY OF PROCEDINGS ............................................................................................... 325
WAIVER .................................................................................................................... 326

RULE 15 BIS—ABSENCE OF A JUDGE ............................................................... 326

RULE 15 TER—RESERVE JUDGES ...................................................................... 327
RULE 16—RESIGNATION ..................................................................................... 327
RULE 17—PRECEDENCE ...................................................................................... 327
RULE 18—ELECTION OF THE PRESIDENT ...................................................... 328
RULE 19—FUNCTIONS OF THE PRESIDENT ................................................... 328
RULE 20—VICE-PRESIDENT ............................................................................... 329
RULE 21—FUNCTIONS OF VICE-PRESIDENT.................................................. 329
RULE 22—REPLACEMENTS ................................................................................ 329
RULE 23—THE BUREAU ....................................................................................... 329
RULE 23 BIS—THE COORDINATION COUNCIL .............................................. 330
RULE 24—PLENARY MEETINGS ........................................................................ 330
RULE 25—DATES OF PLENARY SESSIONS ...................................................... 330
RULE 26—QUORUM AND VOTE ......................................................................... 330

13
RULE 27—ROTATION ........................................................................................... 331
RULE 28—REVIEWING AND DUTY JUDGES .................................................... 331
RULE 29—DELIBERATIONS ................................................................................ 332
RULE 30—APPOINTMENT OF THE REGISTRAR ............................................ 332
RULE 31—DEPUTY REGISTRAR AND STAFF .................................................. 333
RULE 32—SOLEMN DECLARATION .................................................................. 333
RULE 33—FUNCTIONS OF THE REGISTRAR................................................... 333
RULE 33 BIS—FUNCTIONS OF THE DEPUTY REGISTRAR........................... 334
RULE 33 TER—FUNCTION OF THE HEAD OF CHAMBERS .......................... 334
RULE 34—VICTIMS AND WITNESSES SECTION ............................................. 334
RULE 35—MINUTES .............................................................................................. 335
RULE 36—RECORD BOOK ................................................................................... 335
RULE 37—FUNCTIONS OF THE PROSECUTOR ............................................... 335
RULE 38—DEPUTY PROSECUTOR ..................................................................... 335
RULE 39—CONDUCT OF INVESTIGATIONS .................................................... 335
RULE 40—PROVISIONAL MEASURES ............................................................... 336
RULE 40 BIS—TRANSFER AND PROVISIONAL DETENTION OF SUSPECTS
.................................................................................................................................... 336
RULE 41—RETENTION OF INFORMATION ..................................................... 337
RULE 42—RIGHTS OF SUSPECTS ....................................................................... 337
RULE 43—RIGHTS OF SUSPECTS DURING INVESTIGATION ...................... 337
RULE 43—RECORDING OF QUESTIONING ...................................................... 339
RULE 44—APPOINTMENT, QUALIFICATIONS AND DUTIES OF COUNSEL
.................................................................................................................................... 339
RULE 45—ASSIGNMENT OF COUNSEL ............................................................. 341
APPEAL .................................................................................................................... 341
CHOICE OF COUNSEL ................................................................................................. 342
CO-COUNSEL ............................................................................................................ 342
COOPERATION .......................................................................................................... 342
EFFECTIVE ASSISTANCE............................................................................................. 343
INDIGENCE ............................................................................................................... 343
LEGAL ASSOCIATES ................................................................................................... 343

RULE 45 BIS—DETAINED PERSONS .................................................................. 344

RULE 45 TER—ASSIGNMENT OF COUNSEL IN THE INTERESTS OF
JUSTICE ................................................................................................................... 344

14
RULE 46—MISCONDUCT OF COUNSEL ............................................................ 344
DEFENCE COUNSEL ................................................................................................... 345
PROSECUTION ........................................................................................................... 345

RULE 47—SUBMISSION OF INDICTMENT BY PROSECUTOR...................... 345

RULE 48—JOINDER OF ACCUSED ..................................................................... 346
COMPLETION STRATEGY ............................................................................................ 346
DISCRETION .............................................................................................................. 347
FACTORS .................................................................................................................. 347
SAME TRANSACTION ................................................................................................. 348
STANDING ................................................................................................................ 349
TIME TO PREPARE ..................................................................................................... 349

RULE 49—JOINDER OF CRIMES ........................................................................ 349

FACTORS .................................................................................................................. 349
SAME TRANSACTION ................................................................................................. 350
STANDING ................................................................................................................ 350

RULE 50—AMENDMENT OF INDICTMENT ...................................................... 350

DURING TRIAL .......................................................................................................... 351
NEW CHARGES .......................................................................................................... 351
PREJUDICE ................................................................................................................ 353
PRIMA FACIE CASE ..................................................................................................... 354
SCOPE OF AMENDMENTS ........................................................................................... 355
SUPPORTING MATERIAL............................................................................................. 355

RULE 51—WITHDRAWAL OF INDICTMENT ................................................... 355

RULE 52—PUBLIC CHARACTER OF INDICTMENT ....................................... 355
RULE 53—NON-DISCLOSURE.............................................................................. 356
RULE 53 BIS—SERVICE OF INDICTMENT ....................................................... 356
RULE 54—GENERAL RULE .................................................................................. 356
CHAMBER WITNESSES ............................................................................................... 357
DISCRETION .............................................................................................................. 357
DISMISSAL ................................................................................................................ 357
HUMANITARIAN WORKERS ........................................................................................ 357
INVESTIGATION ........................................................................................................ 358
MEDICAL INTERVENTION ........................................................................................... 358
PARLIAMENT MEMBERS ............................................................................................ 358
PEACE NEGOTIATORS ................................................................................................ 358
RECONSIDERATION ................................................................................................... 359
REVIEW OF ADMINISTRATIVE DECISIONS .................................................................... 360
SAFE CONDUCT ......................................................................................................... 360
SELF REPRESENTED ACCUSED .................................................................................... 361
STATE OFFICIALS ...................................................................................................... 361

15
 STAY OF PROCEEDINGS.............................................................................................. 362
STAY PENDING DECISION ........................................................................................... 363
SUBPOENAS .............................................................................................................. 364
subpoena to accused persons ............................................................................... 364
subpoena for defence interview ............................................................................ 364
subpoena denied .................................................................................................. 365
subpoena factors.................................................................................................. 366
subpoena granted ................................................................................................ 367
necessity .............................................................................................................. 369
not issued lightly .................................................................................................. 369
subpoena for pretrial motion ............................................................................... 370
subpoena for prosecution interview ..................................................................... 370
relevance ............................................................................................................. 370
waiver.................................................................................................................. 370
WAR CORRESPONDENTS ............................................................................................ 370
WITNESSES OF THE OPPOSING PARTY ......................................................................... 371

RULE 54 BIS—ORDERS DIRECTED TO STATES .............................................. 372

APPEAL .................................................................................................................... 374
COMPLIANCE ............................................................................................................ 375
EXISTENCE ............................................................................................................... 375
EFFORTS TO OBTAIN VOLUNTARY COMPLIANCE ......................................................... 375
INTERPOL ................................................................................................................. 376
NATIONAL SECURITY INTERESTS ................................................................................ 377
NECESSITY ............................................................................................................... 377
ORIGINATOR PRINCIPLE ............................................................................................. 378
PROTECTIVE MEASURES ............................................................................................ 379
RELEVANCE .............................................................................................................. 380
REQUIREMENTS ........................................................................................................ 381
SPECIFICITY .............................................................................................................. 381
STANDARD OF REVIEW .............................................................................................. 382
STANDING ................................................................................................................ 382
UNDULY ONEROUS .................................................................................................... 383

RULE 56—COOPERATION OF STATES ............................................................. 384

RULE 57—PROCEDURE AFTER ARREST ......................................................... 384
RULE 58—NATIONAL EXTRADITION PROCEEDINGS .................................. 385
RULE 59—FAILURE TO EXECUTE A WARRANT OR TRANSFER ORDER . 385
RULE 59 BIS—TRANSMISSION OF ARREST WARRANTS ............................. 385
RULE 60—ADVERTISEMENT OF INDICTMENT .............................................. 385
RULE 62—INITIAL APPEARANCE OF ACCUSED ............................................ 386
RULE 62 BIS—GUILTY PLEAS ............................................................................. 387
RULE 62 TER—PLEA AGREEMENT PROCEDURE .......................................... 387

16
RULE 63—QUESTIONING OF ACCUSED ........................................................... 388
RULE 64—DETENTION ON REMAND ................................................................ 388
RULES OF DETENTION................................................................................................ 388
COMMUNICATION ..................................................................................................... 388
CONTACTS WITH MEDIA ............................................................................................ 389
MEDICAL ISSUES ....................................................................................................... 391
PRIVILEGED COMMUNICATIONS ................................................................................. 391
VISITS ...................................................................................................................... 391

RULE 65—PROVISIONAL RELEASE .................................................................. 392

ADVANCED STAGE OF THE TRIAL ............................................................................... 393
APPEAL OF PROVISIONAL RELEASE DECISION.............................................................. 394
AWAITING APPEAL .................................................................................................... 395
AWAITING JUDGEMENT ............................................................................................. 396
AWAITING TRANSFER OR SERVING SENTENCE ............................................................. 398
BURDEN OF PROOF .................................................................................................... 399
CONDITIONS OF RELEASE .......................................................................................... 399
CONFIDENTIAL STATUS ............................................................................................. 400
CONTEMPT ............................................................................................................... 400
COOPERATION WITH PROSECUTION ............................................................................ 400
CUSTODIAL VISITS .................................................................................................... 401
DANGER TO OTHERS .................................................................................................. 402
FACTORS .................................................................................................................. 403
HOST COUNTRY ........................................................................................................ 403
LENGTH OF DETENTION ............................................................................................. 404
LENGTH OF EXPECTED SENTENCE .............................................................................. 404
MEDICAL REASONS ................................................................................................... 405
ORAL HEARING ......................................................................................................... 406
REASONED OPINION .................................................................................................. 406
RELEASE AFTER TRIAL HAS BEGUN ............................................................................ 407
RISK OF FLIGHT—RELEASE DENIED ........................................................................... 407
RISK OF FLIGHT—RELEASE GRANTED ........................................................................ 409
STATE GUARANTEES ................................................................................................. 410
STATEMENTS OF ACCUSED ........................................................................................ 411
STAY OF DECISION TO RELEASE PENDING APPEAL ....................................................... 411
SUBSEQUENT MOTIONS ............................................................................................. 412
TEMPORARY RELEASE IN GENERAL ............................................................................ 412
TEMPORARY RELEASE—TRIAL RECESSES ................................................................... 414
VIOLATIONS ............................................................................................................. 417

RULE 65 BIS—STATUS CONFERENCES ............................................................ 418

RULE 65 TER—PRE-TRIAL JUDGE ..................................................................... 419
AGREED FACTS ......................................................................................................... 421
DEFENCE PRE-TRIAL BRIEF ........................................................................................ 422
EXHIBITS .................................................................................................................. 422

17
 PROSECUTION PRE-TRIAL BRIEF ................................................................................. 423
REFERRAL TO CHAMBER ........................................................................................... 424
WITNESS SUMMARIES ................................................................................................ 424

RULE 66—DISCLOSURE BY THE PROSECUTOR ............................................ 425

DOCUMENTS MATERIAL TO THE DEFENCE .................................................................. 425
ELECTRONIC DISCLOSURE SUITE ................................................................................ 427
EXPERT WITNESSES ................................................................................................... 427
POST-INDICTMENT INVESTIGATION ............................................................................ 428
PURPOSE .................................................................................................................. 428
REMEDY ................................................................................................................... 428
RESERVE WITNESSES ................................................................................................. 429
RULE 92 BIS WITNESSES ............................................................................................ 429
SUPPORTING MATERIAL............................................................................................. 429
TIME LIMITS ............................................................................................................. 430
WITNESS STATEMENTS .............................................................................................. 430

RULE 67--ADDITIONAL DISCLOSURE ............................................................... 432

CONTINUING DUTY OF DISCLOSURE ........................................................................... 433
NOTICE OF ALIBI ....................................................................................................... 433
MENTAL DEFENCES ................................................................................................... 434
RECIPROCAL DISCLOSURE ......................................................................................... 434
REPRISALS ................................................................................................................ 435

RULE 68—DISCLOSURE OF EXCULPATORY MATERIAL ............................ 435

CERTIFICATE ............................................................................................................ 436
CONTINUING OBLIGATION ......................................................................................... 436
CUMULATIVE DOCUMENTS ........................................................................................ 436
DEFERENCE TO PROSECUTOR ..................................................................................... 437
ELECTRONIC DISCLOSURE SUITE ................................................................................ 437
EVIDENTIARY HEARING ............................................................................................. 437
EXCULPATORY NATURE ............................................................................................ 438
standard .............................................................................................................. 438
suggests innocence .............................................................................................. 438
contradicts prosecution evidence ......................................................................... 440
benefits to prosecution witnesses ......................................................................... 441
FORM OF DISCLOSURE ............................................................................................... 442
IMPORTANCE ............................................................................................................ 442
MITIGATION OF SENTENCE......................................................................................... 443
POSSESSION .............................................................................................................. 443
PREJUDICE ................................................................................................................ 443
PRIVILEGED MATERIAL ............................................................................................. 444
PUBLIC MATERIAL..................................................................................................... 444
RELIEF FROM DISCLOSURE......................................................................................... 444
REMEDY ................................................................................................................... 444
REQUEST .................................................................................................................. 447
RULE 70 MATERIAL .................................................................................................. 447

18
 SCOPE ...................................................................................................................... 448
SPECIFICITY .............................................................................................................. 448
STIPULATION ............................................................................................................ 448
TIMING ..................................................................................................................... 449

RULE 68 BIS—FAILURE TO COMPLY WITH DISCLOSURE OBLIGATIONS

.................................................................................................................................... 450
RULE 69—PROTECTION OF VICTIMS AND WITNESSES .............................. 451
CURRENT ADDRESS ................................................................................................... 452
DELAYED DISCLOSURE .............................................................................................. 452
REQUIREMENTS ........................................................................................................ 453
SCOPE ...................................................................................................................... 453
TIMING ..................................................................................................................... 454

RULE 70—MATTERS NOT SUBJECT TO DISCLOSURE ................................. 454

CONDITIONS NOT ACCEPTED ...................................................................................... 455
CONFIDENTIAL TREATMENT ...................................................................................... 455
DEFENCE USE OF RULE 70 ......................................................................................... 455
MATERIAL SUBJECT TO RULE 70 ................................................................................ 455
OBLIGATION OF STATES ............................................................................................ 457
OPPORTUNITY TO BE HEARD ...................................................................................... 457
PRESENCE OF PROVIDER REPRESENTATIVE IN COURT .................................................. 457
PUBLIC MATERIAL..................................................................................................... 457
REMEDY FOR NON-DISCLOSURE ................................................................................. 457
RESTRICTIONS ON CROSS EXAMINATION .................................................................... 458
WORK PRODUCT........................................................................................................ 459

RULE 71—DEPOSITIONS ...................................................................................... 459

RULE 72—PRELIMINARY MOTIONS ................................................................. 460
ARMED CONFLICT ..................................................................................................... 461
APPEALS OF RIGHT—JURISIDICTION ISSUES................................................................ 461
DEFERRING DECISION ................................................................................................ 464
TIMELINESS .............................................................................................................. 464

RULE 73—OTHER MOTIONS ............................................................................... 464

CERTIFICATION TO APPEAL ........................................................................................ 465
in general ............................................................................................................ 465
denied .................................................................................................................. 466
granted ................................................................................................................ 473
DECISIONS ................................................................................................................ 476
EVIDENTIARY HEARING ............................................................................................. 476
SANCTIONS ............................................................................................................... 476
TIMING ..................................................................................................................... 477

RULE 73 BIS—PRE TRIAL CONFERENCE ........................................................ 477

LIMITING INCIDENTS ................................................................................................. 478

19
 NUMBER OF PROSECUTION WITNESSES ....................................................................... 480
TIME LIMITS ............................................................................................................. 480
VARYING WITNESS LIST ............................................................................................. 480

RULE 73 TER—PRE-DEFENCE CONFERENCE ................................................. 482

EXHIBITS .................................................................................................................. 483
TIME LIMITS ............................................................................................................. 483

RULE 74—AMICUS CURIAE ................................................................................. 486

ASSOCIATION OF DEFENCE COUNSEL.......................................................................... 486
DENIED..................................................................................................................... 486
GRANTED ................................................................................................................. 487

RULE 74 BIS—MEDICAL EXAMINATION OF THE ACCUSED ...................... 488

RULE 75—PROTECTION OF VICTIMS AND WITNESSES .............................. 488
ACCESS TO MATERIAL FROM OTHER CASES ................................................................ 490
BURDEN OF PROOF .................................................................................................... 493
DEATH...................................................................................................................... 493
DISCLOSURE MATERIAL............................................................................................. 493
DISCLOSURE TO OTHER COURTS................................................................................. 494
EXHIBITS .................................................................................................................. 495
HIERARCHY .............................................................................................................. 496
PROTECTIVE MEASURES DENIED ................................................................................ 496
RELATIVES ............................................................................................................... 497
REQUIREMENTS ........................................................................................................ 498
RESCISSION .............................................................................................................. 498
RIGHTS OF ACCUSED ................................................................................................. 499
RULE 70 CONDITIONS ............................................................................................... 500
SCOPE ...................................................................................................................... 500
STANDING ................................................................................................................ 500
SUBPOENAS .............................................................................................................. 500
TRANSFER CASES ...................................................................................................... 501
VARYING PROTECTIVE MEASURES ............................................................................. 501
VICTIMS ................................................................................................................... 502
VIOLATION ............................................................................................................... 502

RULE 75 BIS—REQUESTS FOR ASSISTANCE IN OBTAINING TESTIMONY

.................................................................................................................................... 502
RULE 75 TER—TRANSFER OF PERSON FOR TESTIMONY ........................... 503
RULE 76—SOLEMN DECLARATION BY INTERPRETERS ............................. 504
RULE 77—CONTEMPT OF THE TRIBUNAL ..................................................... 504
ADEQUATE TIME AND FACILITIES ............................................................................... 506
AMICUS CURIAE ........................................................................................................ 506
APPEAL .................................................................................................................... 506
DISCLOSURE ............................................................................................................. 507

20
 INCITEMENT ............................................................................................................. 508
INDICTMENT ............................................................................................................. 508
INITIATING ............................................................................................................... 508
INTERFERING WITH A WITNESS .................................................................................. 509
JOURNALISTS ............................................................................................................ 510
JURISDICTION ........................................................................................................... 511
MEDICAL CARE ......................................................................................................... 511
MENS REA.................................................................................................................. 511
MOTIONS .................................................................................................................. 512
PARTIES ................................................................................................................... 513
REFUSAL TO TESTIFY ................................................................................................. 513
SCOPE ...................................................................................................................... 514
SENTENCE ................................................................................................................ 517
SUBPOENAS .............................................................................................................. 517

RULE 77 BIS—PAYMENT OF FINES ................................................................... 517

RULE 78—OPEN SESSIONS .................................................................................. 518
RULE 79—CLOSED SESSIONS ............................................................................. 519
CLOSED SESSIONS ..................................................................................................... 519
CONFIDENTIAL EXHIBITS ........................................................................................... 519
CONFIDENTIAL FILINGS ............................................................................................. 519
EX PARTE FILINGS ..................................................................................................... 520
REFERENCE TO CLOSED SESSION TESTIMONY IN JUDGEMENTS ..................................... 521
UNSEALING RECORDS................................................................................................ 521

RULE 80—CONTROL OF PROCEEDINGS ......................................................... 522

RULE 81—RECORDS OF PROCEEDINGS AND EVIDENCE ........................... 522
RULE 81 BIS—PROCEEDINGS BY VIDEO CONFERENCE LINK .................. 522
CROSS EXAMINATION ................................................................................................ 522
DENIED..................................................................................................................... 523
GRANTED ................................................................................................................. 523
PREJUDICE ................................................................................................................ 524
STANDARD ............................................................................................................... 525
WEIGHT .................................................................................................................... 525

RULE 82—JOINT AND SEPARATE TRIALS....................................................... 525

RULE 83—INSTRUMENTS OF RESTRAINT ...................................................... 526
RULE 84—OPENING STATEMENTS ................................................................... 526
RULE 84 BIS—STATEMENT OF THE ACCUSED .............................................. 526
RULE 85—PRESENTATION OF EVIDENCE ...................................................... 527
DEFENCE EXHIBITS.................................................................................................... 528
PROSECUTION EXHIBITS ............................................................................................ 528
QUESTIONING BY THE CHAMBER ............................................................................... 528

21
 REBUTTAL ................................................................................................................ 529
RECALLING A WITNESS .............................................................................................. 531
REJOINDER ............................................................................................................... 533
REOPENING THE CASE ............................................................................................... 533
standard .............................................................................................................. 533
diligence .............................................................................................................. 535
denied .................................................................................................................. 536
granted ................................................................................................................ 537
rejoinder to reopening ......................................................................................... 538
SENTENCING ............................................................................................................. 539

RULE 86—CLOSING ARGUMENTS ..................................................................... 540

RULE 87—DELIBERATIONS ................................................................................ 540
BURDEN OF PROOF .................................................................................................... 540
SENTENCING PROCEDURE .......................................................................................... 543

RULE 89—GENERAL PROVISIONS .................................................................... 543

ADVANCE RULINGS ................................................................................................... 544
ANONYMOUS SOURCES.............................................................................................. 544
ASSESSMENT OF EVIDENCE ........................................................................................ 544
AUTHENTICATION ..................................................................................................... 544
BAR TABLE ............................................................................................................... 545
documents authored by witnesses ......................................................................... 545
denied .................................................................................................................. 546
granted ................................................................................................................ 546
in general ............................................................................................................ 546
news reports ........................................................................................................ 548
statements ............................................................................................................ 548
transcripts ........................................................................................................... 548
UN documents ..................................................................................................... 548
voluminous documents ......................................................................................... 549
weight .................................................................................................................. 549
BOOKS...................................................................................................................... 550
CHAIN OF CUSTODY .................................................................................................. 550
CIRCUMSTANTIAL EVIDENCE ..................................................................................... 550
COMPUTER FILES ...................................................................................................... 550
CREDIBILITY OF WITNESSES....................................................................................... 550
accomplices ......................................................................................................... 550
ambiguity............................................................................................................. 551
benefits ................................................................................................................ 551
bias...................................................................................................................... 551
corroboration ...................................................................................................... 552
cultural factors .................................................................................................... 553
criminal activity ................................................................................................... 554
factors ................................................................................................................. 554
mixed ................................................................................................................... 554

22
 other Chambers ................................................................................................... 554
prior statements ................................................................................................... 555
reasons ................................................................................................................ 556
CROSS EXAMINATION ................................................................................................ 556
CUMULATIVE ............................................................................................................ 556
DIARIES .................................................................................................................... 556
DISCRETION .............................................................................................................. 556
DOCUMENTARY EVIDENCE ........................................................................................ 557
EQUALITY OF ARMS .................................................................................................. 557
EXCLUSION OF EVIDENCE .......................................................................................... 557
EXPERT WITNESSES ................................................................................................... 558
FURTHER INVESTIGATION .......................................................................................... 559
HEARSAY ................................................................................................................. 559
IDENTIFICATION EVIDENCE........................................................................................ 560
ILLEGALLY-OBTAINED EVIDENCE .............................................................................. 562
INTERCEPTED CONVERSATIONS ................................................................................. 563
INVESTIGATOR TESTIMONY ....................................................................................... 564
NOT INCLUDED IN THE INDICTMENT ........................................................................... 564
OUTSIDE OF THE TIME PERIOD CHARGED .................................................................... 565
POLYGRAPH EVIDENCE.............................................................................................. 565
PRINCIPLE OF ORALITY .............................................................................................. 565
PRIOR STATEMENTS .................................................................................................. 566
RELEVANCE .............................................................................................................. 566
RELIABILITY ............................................................................................................. 567
STATEMENTS OF THE ACCUSED .................................................................................. 568
STATEMENTS BY THE COACCUSED ............................................................................. 569
STATEMENTS BY NGOS ............................................................................................ 570
STATEMENTS BY THIRD PARTIES ................................................................................ 570
SUMMARIES .............................................................................................................. 571
TU QUOQUE .............................................................................................................. 571
WAIVER .................................................................................................................... 572

RULE 90—TESTIMONY OF WITNESSES ........................................................... 572

ACCUSED AS WITNESS ............................................................................................... 573
COMPELLED TESTIMONY ........................................................................................... 574
CROSS EXAMINATION ................................................................................................ 575
credibility ............................................................................................................ 575
limitations............................................................................................................ 575
relevant to one’s own case ................................................................................... 576
by the accused ..................................................................................................... 578
DIRECT EXAMINATION .............................................................................................. 578
PUTTING ONE’S CASE TO A WITNESS........................................................................... 578
REFRESHING MEMORY............................................................................................... 580
SELF-INCRIMINATION ................................................................................................ 581
WITNESS PROOFING................................................................................................... 581
WITNESS SEQUESTRATION ......................................................................................... 582

23
RULE 90 BIS—TRANSFER OF A DETAINED WITNESS ................................... 582
RULE 91—FALSE TESTIMONY UNDER SOLEMN DECLARATION ............. 583
RULE 92—CONFESSIONS ..................................................................................... 584
RULE 92 BIS—ADMISSION OF WRITTEN STATEMENTS .............................. 584
ACTS OR CONDUCT OF THE ACCUSED ......................................................................... 585
character ............................................................................................................. 585
in general ............................................................................................................ 585
liability for acts of others ..................................................................................... 586
state of mind ........................................................................................................ 587
specific examples ................................................................................................. 587
ADJUDICATED FACTS ................................................................................................ 588
CERTIFICATION ......................................................................................................... 588
CORROBORATION ...................................................................................................... 589
CROSS-EXAMINATION ............................................................................................... 590
CRITICAL AND LIVE ISSUE.......................................................................................... 592
CUMULATIVE EVIDENCE ............................................................................................ 594
DISCRETION .............................................................................................................. 594
EXHIBITS .................................................................................................................. 595
EXPERTS ................................................................................................................... 596
INTERVIEWS OF WITNESSES ....................................................................................... 597
OTHER LEGAL PROCEEDINGS ..................................................................................... 597
OTHER PARTY’S DOCUMENTS .................................................................................... 598
OVERBROAD ............................................................................................................. 598
PROCEDURE .............................................................................................................. 598
PROXIMITY OF ACTS TO ACCUSED .............................................................................. 598
REDACTIONS............................................................................................................. 599
RELATIONSHIP WITH RULE 89 ................................................................................... 599
RELATIONSHIP WITH RULE 92 QUARTER .................................................................... 600
REQUIREMENTS ........................................................................................................ 600
RETROACTIVITY ....................................................................................................... 601
TIMING ..................................................................................................................... 601
TRANSCRIPTS............................................................................................................ 601
VIVA VOCE TESTIMONY .............................................................................................. 602
WEIGHT .................................................................................................................... 602

RULE 92 TER—OTHER ADMISSION OF WRITTEN STATEMENTS .............. 602

RULE 92 QUARTER—UNAVAILABLE PERSONS .............................................. 603
ACTS AND CONDUCT OF THE ACCUSED ....................................................................... 603
ADMISSION IN ANOTHER TRIAL .................................................................................. 604
ASSOCIATED EXHIBITS .............................................................................................. 604
CORROBORATION ...................................................................................................... 604
EXPERT WITNESSES ................................................................................................... 606
FAIRNESS ................................................................................................................. 606
REDACTIONS............................................................................................................. 608

24
 RELATIONSHIP TO RULE 92 BIS .................................................................................. 608
RELIABILITY ............................................................................................................. 608
REQUIREMENTS ........................................................................................................ 612
SUPPLEMENTAL MATERIAL ........................................................................................ 613
UNAVAILABILITY ...................................................................................................... 613
can’t be found ...................................................................................................... 613
health reasons ..................................................................................................... 613
refuses to testify ................................................................................................... 615
WITNESS LIST ........................................................................................................... 615

RULE 92 QUINQUIES—PERSONS SUBJECT TO INTERFERENCE ................ 615

RULE 93—EVIDENCE OF CONSISTENT PATTERN OF CONDUCT .............. 616
RULE 94—JUDICIAL NOTICE .............................................................................. 617
ACTS AND CONDUCT OF THE ACCUSED ....................................................................... 617
ALIBI ........................................................................................................................ 618
APPEAL .................................................................................................................... 618
BURDEN OF PERSUASION ........................................................................................... 619
COMMON KNOWLEDGE.............................................................................................. 621
CONCRETE FACTS...................................................................................................... 623
CONTEXT.................................................................................................................. 623
CORROBORATION ...................................................................................................... 623
CREDIBILITY ASSESSMENT......................................................................................... 624
DISCRETION .............................................................................................................. 624
DISPUTED FACTS ....................................................................................................... 626
DOCUMENTS ............................................................................................................. 627
FINDINGS.................................................................................................................. 630
LEGAL CONCLUSIONS ................................................................................................ 630
LIMITATIONS ............................................................................................................ 631
PURPOSE .................................................................................................................. 632
REBUTTAL ................................................................................................................ 632
REFORMULATION ...................................................................................................... 633
RELEVANCE .............................................................................................................. 634
REQUIREMENTS ........................................................................................................ 634
TIMING ..................................................................................................................... 638

RULE 94 BIS—TESTIMONY OF EXPERT WITNESSES .................................... 638

ACCEPTED AS EXPERT ............................................................................................... 638
ACTS AND CONDUCT OF THE ACCUSED ....................................................................... 639
CREDIBILITY ............................................................................................................. 640
DEFINITION ............................................................................................................... 641
EXHIBITS .................................................................................................................. 641
FACT WITNESS .......................................................................................................... 642
FIRST-HAND KNOWLEDGE ......................................................................................... 642
LEGAL ISSUES ........................................................................................................... 642
NOTICE ..................................................................................................................... 643
OUTSIDE OF EXPERTISE ............................................................................................. 643

25
 PEER REVIEW ............................................................................................................ 644
REJECTED AS EXPERT ................................................................................................ 644
RELEVANCE .............................................................................................................. 645
REPORTS .................................................................................................................. 646
REQUIREMENTS ........................................................................................................ 646
RESPONSIBILITY OF THE ACCUSED ............................................................................. 646
RULE 92 TER ............................................................................................................. 647
TIMING ..................................................................................................................... 647
TRANSLATION........................................................................................................... 647
TRANSPARENCY OF SOURCES..................................................................................... 647
TRIAL CHAMBER EXPERTS ........................................................................................ 648
WAIVER .................................................................................................................... 649

RULE 95—EXCLUSION OF CERTAIN EVIDENCE ........................................... 649

RULE 96—EVIDENCE IN CASES OF SEXUAL ASSAULT ................................ 650
RULE 97—LAWYER-CLIENT PRIVILEGE ........................................................ 650
RULE 98—PRODUCTION OF ADDITIONAL EVIDENCE ................................. 651
RULE 98 BIS—JUDGEMENT OF ACQUITTAL .................................................. 652
APPEAL .................................................................................................................... 653
CREDIBILITY ............................................................................................................. 653
ORAL HEARING ......................................................................................................... 653
PARAGRAPHS ............................................................................................................ 654
STANDARD ............................................................................................................... 654

RULE 98 TER—JUDGEMENT ............................................................................... 655

RULE 99—STATUS OF THE ACQUITTED PERSON ......................................... 655
RULE 100—SENTENCING PROCEDURE ON A GUILTY PLEA ...................... 655
RULE 101—PENALTIES ......................................................................................... 656
AGGRAVATING CIRCUMSTANCES ............................................................................... 656
in general ............................................................................................................ 656
alcohol and drug use ........................................................................................... 656
burden of proof .................................................................................................... 656
co-operation ........................................................................................................ 657
counsel ................................................................................................................ 657
double counting ................................................................................................... 657
indictment ............................................................................................................ 659
mens rea .............................................................................................................. 659
nexus to offence ................................................................................................... 660
offence circumstances .......................................................................................... 660
offender circumstances ........................................................................................ 660
victims ................................................................................................................. 661
weight .................................................................................................................. 662
CONCURRENT SENTENCES ......................................................................................... 662
CREDIT FOR TIME SERVED ......................................................................................... 662

26
 CUMULATIVE CONVICTIONS ...................................................................................... 662
chapeau element .................................................................................................. 662
conspiracy ........................................................................................................... 663
discretion ............................................................................................................. 663
modes of liability ................................................................................................. 663
materially distinct element ................................................................................... 664
persecution .......................................................................................................... 665
prohibited ............................................................................................................ 666
victims ................................................................................................................. 666
FORMER YUGOSLAVIA SENTENCING PRACTICES ......................................................... 667
GRAVITY OF THE OFFENCE......................................................................................... 668
LEX MITIOR .............................................................................................................. 670
LIFE SENTENCE ......................................................................................................... 670
MINIMUM TERMS ...................................................................................................... 671
MITIGATING CIRCUMSTANCES ................................................................................... 671
in general ............................................................................................................ 671
alcohol or drug abuse .......................................................................................... 671
assistance to victims ............................................................................................ 672
burden of proof .................................................................................................... 672
contempt .............................................................................................................. 672
cooperation ......................................................................................................... 673
good behavior ...................................................................................................... 675
good character .................................................................................................... 675
guilty plea............................................................................................................ 676
health .................................................................................................................. 677
innocence ............................................................................................................ 677
lack of training .................................................................................................... 677
mental condition .................................................................................................. 677
nexus to offence ................................................................................................... 678
nondiscrimination ................................................................................................ 678
offender circumstances ........................................................................................ 678
remorse ............................................................................................................... 679
role in the offence ................................................................................................ 679
tensions in the area .............................................................................................. 680
violation of rights ................................................................................................ 680
waiver of appearance .......................................................................................... 680
MODE OF LIABILITY .................................................................................................. 680
SENTENCING OF OTHER ACCUSED .............................................................................. 681
SENTENCING PURPOSES ............................................................................................. 683
STANDARD OF REVIEW .............................................................................................. 684
SUSPENSION OF SENTENCE ........................................................................................ 685

RULE 102—STATUS OF THE CONVICTED PERSON ....................................... 685

RULE 104—SUPERVISION OF IMPRISONMENT .............................................. 686
RULE 105—RESTITUTION OF PROPERTY ....................................................... 686
RULE 106—COMPENSATION TO VICTIMS ...................................................... 687

27
RULE 107—GENERAL PROVISION ..................................................................... 687
RULE 108—NOTICE OF APPEAL ......................................................................... 687
SCOPE ...................................................................................................................... 687
VARIATION OF GROUNDS OF APPEAL .......................................................................... 687

RULE 108 BIS—STATE REQUEST FOR REVIEW ............................................. 689

RULE 109—RECORD ON APPEAL ....................................................................... 690
RULE 110—COPIES OF RECORD ........................................................................ 690
RULE 111—APPELLANT’S BRIEF ....................................................................... 690
DISCLOSURE ............................................................................................................. 690

RULE 112—RESPONDENT’S BRIEF .................................................................... 690

RULE 113—BRIEF IN REPLY ............................................................................... 691
SUPPLEMENTAL AUTHORITIES ................................................................................... 691

RULE 114—DATE OF HEARING .......................................................................... 691

RULE 115—ADDITIONAL EVIDENCE ................................................................ 691
CREDIBILITY ............................................................................................................. 692
DELAY IN FILING MOTION .......................................................................................... 692
EVIDENCE NOT AVAILABLE AT TRIAL ......................................................................... 693
IMPACT ON THE TRIAL ............................................................................................... 696
OBLIGATION TO RAISE BEFORE TRIAL CHAMBER ........................................................ 698
PROCEDURE .............................................................................................................. 699
PROVISIONAL RELEASE APPEALS ............................................................................... 699
REBUTTAL MATERIAL ............................................................................................... 699
REFERRAL PURSUANT TO RULE 11BIS ........................................................................ 700
REPLIES .................................................................................................................... 700
SENTENCING ............................................................................................................. 700
SUBPOENAS .............................................................................................................. 700
TESTIMONY IN SUBSEQUENT TRIALS .......................................................................... 701

RULE 116 BIS—EXPEDITED APPEALS PROCEDURE ..................................... 701

RULE 117—JUDGEMENT ON APPEAL ............................................................... 701
RETRIAL ................................................................................................................... 702

RULE 118—STATUS OF ACCUSED FOLLOWING APPEAL ............................ 703

RULE 119—REQUEST FOR REVIEW .................................................................. 703
ASSIGNMENT OF COUNSEL ......................................................................................... 703
DECEASED PERSONS .................................................................................................. 704
DISCLOSURE ISSUES .................................................................................................. 704
FINAL JUDGEMENT .................................................................................................... 704
MISCARRIAGE OF JUSTICE.......................................................................................... 704
NEW FACT ................................................................................................................ 705

28
RULE 120—PRELIMINARY EXAMINATION ..................................................... 706
RULE 121—APPEALS ............................................................................................. 706
RULE 122—RETURN OF CASE TO TRIAL CHAMBER .................................... 706
RULE 123—NOTIFICATION BY STATES ........................................................... 706
RULE 125—PARDON OR COMMUTATION ....................................................... 707
EARLY RELEASE........................................................................................................ 707
SENTENCING REMISSIONS .......................................................................................... 709

RULE 126—GENERAL PROVISIONS................................................................... 710

RULE 126 BIS—TIME FOR FILING RESPONSES TO MOTIONS .................... 710
RULE 127—VARIATION OF TIME LIMITS ........................................................ 711
DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL ............................... 712
ARTICLE 1—PURPOSE AND ENTRY INTO FORCE......................................... 712
ARTICLE 2—DEFINITIONS .................................................................................. 712
ARTICLE 3—AUTHENTIC TEXTS....................................................................... 713
ARTICLE 4—AMENDMENT OF THE DIRECTIVE ........................................... 713
ARTICLE 5—RIGHT TO COUNSEL..................................................................... 713
ARTICLE 6—RIGHT TO ASSIGNED COUNSEL ................................................ 714
ARTICLE 7—REQUEST FOR ASSIGNMENT OF COUNSEL ........................... 715
ARTICLE 8—BURDEN OF PROOF ...................................................................... 715
ARTICLE 9—AUTHORITY TO GATHER INFORMATION .............................. 717
ARTICLE 10—MEANS OF SUSPECTS AND ACCUSED .................................... 717
ACCOUNTING ............................................................................................................ 717
ASSIGNMENT OF INTEREST ........................................................................................ 717
DEBTS ...................................................................................................................... 717
DELAY...................................................................................................................... 718
DISPOSABLE PROPERTY ............................................................................................. 718
EXCHANGE RATE ...................................................................................................... 718
FAMILY HOME .......................................................................................................... 719
PENSION ................................................................................................................... 719
SPOUSE’S PROPERTY ................................................................................................. 719
TRANSFER OF PROPERTY ........................................................................................... 720
WITHDRAWAL OF COUNSEL ....................................................................................... 720

ARTICLE 11—DECISION BY THE REGISTRAR ............................................... 721

ARTICLE 12—NOTIFICATION OF DECISION .................................................. 722
ARTICLE 13—REMEDY AGAINST THE REGISTRAR’S DECISION .............. 722
ARTICLE 14—QUALIFICATIONS AND STANDING OF COUNSEL ............... 724

29
 CONFLICT OF INTEREST ............................................................................................. 726

ARTICLE 15—PROFESSIONAL CERTIFICATION ........................................... 727

ARTICLE 16—BASIC PRINCIPLES...................................................................... 728
CO-COUNSEL ............................................................................................................ 729
SIMULTANEOUS REPRESENTATION ............................................................................. 730

ARTICLE 17—COUNSEL-CLIENT PRIVILEGE ................................................ 730

ARTICLE 18—COUNSEL AWAY FROM THE SEAT OF THE TRIBUNAL .... 730
ARTICLE 19—ABILITY TO REMUNERATE COUNSEL .................................. 731
ARTICLE 20—WITHDRAWAL AND SUSPENSION OF ASSIGNMENT.......... 732
ARTICLE 21—DUTIES OF COUNSEL UPON WITHDRAWAL ........................ 732
ARTICLE 22—PAYMENT PRO RATA TEMPORIS .............................................. 733
ARTICLE 23—RESPONSIBILITY FOR REMUNERATION AND EXPENSES 733
COMPLEXITY ............................................................................................................ 734
PRE-TRIAL ................................................................................................................ 734
PROCEDURAL FAIRNESS ............................................................................................ 735
STANDARD OF REVIEW .............................................................................................. 735
TRIAL ....................................................................................................................... 735
UNFORESEEN CIRCUMSTANCES .................................................................................. 736

ARTICLE 24—REMUNERATION OF ASSIGNED COUNSEL........................... 736

AWAITING JUDGEMENT ............................................................................................. 737
APPEAL .................................................................................................................... 738

ARTICLE 25—REMUNERATION OF DUTY COUNSEL ................................... 739

ARTICLE 26—TRAVEL EXPENSES ..................................................................... 739
ARTICLE 27—DAILY SUBSISTENCE ALLOWANCE ....................................... 740
ARTICLE 28—TRANSLATION AND INTERPRETATION COSTS .................. 741
ARTICLE 29—ADOPTION AND AMENDMENT OF POLICIES ....................... 741
ARTICLE 30—RESPONSIBILITY FOR PAYMENTS ......................................... 741
ARTICLE 31—SETTLEMENT OF DISPUTES OVER PAYMENT .................... 741
ARTICLE 32—ADVISORY PANEL ....................................................................... 743
ARTICLE 33—ROLE AND FUNCTION OF THE ADVISORY PANEL ............. 743
CODE OF PROFESSIONAL CONDUCT FOR DEFENCE COUNSEL ............... 745
ARTICLE 1—DEFINITIONS .................................................................................. 745
ARTICLE 2—ENTRY INTO FORCE ..................................................................... 745
ARTICLE 3—BASIC PRINCIPLES ....................................................................... 746
ARTICLE 4—CONFLICTS ..................................................................................... 746

30
ARTICLE 5—AUTHENTIC TEXTS....................................................................... 746
ARTICLE 6—AMENDMENTS ............................................................................... 747
ARTICLE 7—PURPOSE ......................................................................................... 747
ARTICLE 8—SCOPE OF REPRESENTATION .................................................... 747
ARTICLE 9—TERMINATION OF REPRESENTATION .................................... 747
ARTICLE 10—COMPETENCE, INTEGRITY, AND INDEPENDENCE ............ 748
ARTICLE 11—DILIGENCE.................................................................................... 749
ARTICLE 12—COMMUNICATION ...................................................................... 749
ARTICLE 13—CONFIDENTIALITY ..................................................................... 749
ARTICLE 14—CONFLICT OF INTEREST........................................................... 749
ARTICLE 15—SEXUAL RELATIONS WITH CLIENTS..................................... 751
ARTICLE 16—CLIENT UNDER A DISABILITY ................................................. 752
ARTICLE 17—CONSULTATIONS WITH CLIENTS AT LIBERTY .................. 752
ARTICLE 18—FEE SPLITTING ............................................................................ 752
ARTICLE 19—FEES AND COMPENSATION ...................................................... 752
ARTICLE 20—RULES OF THE TRIBUNAL ........................................................ 753
ARTICLE 21—DISCRIMINATORY CONDUCT .................................................. 753
ARTICLE 22—COMMUNICATION WITH CHAMBERS ................................... 753
ARTICLE 23—CANDOUR TOWARD THE TRIBUNAL ..................................... 753
ARTICLE 24—INTEGRITY OF EVIDENCE ........................................................ 754
ARTICLE 25—MERITORIOUS PROCEEDINGS AND CLAIMS....................... 754
ARTICLE 26—COUNSEL AS WITNESS............................................................... 754
ARTICLE 27—PERSONS PARTICIPATING IN THE PROCEEDINGS ............ 754
ARTICLE 28—VICTIMS AND WITNESSES ........................................................ 755
ARTICLE 29—UNREPRESENTED PERSONS ..................................................... 755
ARTICLE 30—PROSPECTIVE CLIENTS ............................................................ 755
ARTICLE 31—REFERRAL FEES .......................................................................... 756
ARTICLE 32—RESPONSIBILITIES OF SUPERVISING COUNSEL ................ 756
ARTICLE 33—RESPONSIBILITIES OF SUBORDINATE COUNSEL .............. 756
ARTICLE 34—RESPONSIBILITY FOR OTHER TEAM MEMBERS................ 756
ARTICLE 35—MISCONDUCT ............................................................................... 756
ARTICLE 36—REPORTING MISCONDUCT....................................................... 757
ARTICLE 37—PURPOSE........................................................................................ 757

31
ARTICLE 38—INHERENT POWERS OF THE TRIBUNAL ............................... 758
ARTICLE 39—FILINGS, DECISIONS, AND ORDERS ....................................... 758
ARTICLE 40—DISCIPLINARY PANEL ............................................................... 758
ARTICLE 41—SUBMISSION OF COMPLAINTS ................................................ 758
ARTICLE 42—SUMMARY DISMISSAL OF COMPLAINTS.............................. 759
ARTICLE 43—WITHDRAWAL OF COMPLAINTS ............................................ 759
ARTICLE 44—INVESTIGATION OF ALLEGED MISCONDUCT .................... 759
ARTICLE 45—INTERIM SUSPENSION FROM PRACTICE ............................. 760
ARTICLE 46—CHARGES AGAINST COUNSEL ................................................ 760
ARTICLE 47—FINDINGS AND SANCTIONS ...................................................... 761
ARTICLE 48—APPEAL TO THE DISCIPLINARY BOARD............................... 762
ARTICLE 49—COSTS ............................................................................................. 763
ARTICLE 50—NON BIS IN IDEM.......................................................................... 763

32
Statute of the Tribunal

Article 1—competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible
for serious violations of international humanitarian law committed in the territory
of the former Yugoslavia since 1991 in accordance with the provisions of the present
Statute.

abuse of process

The Tribunal has an inherent power to stay proceedings which are an abuse of
process.1

The abuse of process doctrine may be relied upon where, in the circumstances of
a particular case, proceeding with the trial of the accused would contravene the court’s
sense of justice, due to pre-trial impropriety or misconduct.2

In order to use the abuse of process doctrine, it needs to be clear that the rights of
the accused have been egregiously violated.3

Search of home of accused’s relatives did not warrant dismissal for abuse of
process where prosecution did not participate in search and where purpose of search was
to look for fugitives, not to gather evidence against accused. 4

Even if search was designed to intimtidate accused’s witnesses, the remedy would
be exclusion of the evidence taken during the search, not dismissal of the indictment. 5

Promise by third party unconnected to the Tribunal that the accused would not be
prosecuted if he resigned from public office was not sufficient to justify a stay of
proceedings for abuse of process.6

1
Prosecutor v Bobetko, No. IT-02-62-AR54 bis, Decision on Challenge by Croatia to Decision and Orders
of Confirming Judge (29 November 2002) at para. 15
2
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Defence
Motion for Stay of Proceedings for Abuse of Process (3 February 2009) at para. 4
3
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Defence
Motion for Stay of Proceedings for Abuse of Process (3 February 2009) at para. 4
4
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Motion to Dismiss for Abuse of Process, (12 May
2009) at para. 13
5
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Motion to Dismiss for Abuse of Process, (12 May
2009) at para. 15
6
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 53; Prosecutor v Karadzic, No. IT-
95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July 2009) at para. 84

33
 It could only be in exceptional circumstances that actions of a third party that is
completely unconnected to the Tribunal or the proceedings could ever lead to those
proceedings being stayed. 7

There is no dual standard for the abuse of doctrine, depending on whether the
entity carrying out the abuse was connected to the Tribunal or not.8

conflict of interest

Fact that some members of Security Council which voted to establish Tribunal
were NATO members who were combatants against Serbia did not justify any relief for
alleged conflict of interest.9

illegal arrest

The Tribunal would not elect to decline to exercise jurisdiction over the accused
who claimed to have been arrested in Serbia and transported to Bosnia for transfer to the
ICTY. Given the serious crimes involved, the violation of state sovereignty and human
rights was not sufficient to justify setting aside the jurisdiction of the Tribunal. 10

immunity

According to customary international law, there are some acts for which
immunity from prosecution cannot be invoked before international tribunals. 11

It is well established that any immunity agreement in respect of an accused

indicted for genocide, crimes against humanity, and war crimes before an international
tribunal would be invalid under international law. 12

Neither the mandate of the judges nor that of the prosecutor is affected by an
alleged undertaking by United States Ambassador Richard Holbrooke.13

7
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 85
8
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 47
9
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Nebojsa Pavkovic’s Motion for Dismissal of
the Indictment Against Him on Grounds that the United Nations Security Council Illegally Established the
International Criminal Tribunal for the former Yugoslavia (21 February 2008) at paras. 26-28
10
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Preliminary Motions on the Indictment Pursuant
to Rule 72 of the Rules of Procedure and Evidence (14 December 2007) at paras. 19, 25
11
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 17
12
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 25
13
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 25

34
 Even assuming that the doctrine of apparent authority applies in international
criminal law, the accused did not establish that Richard Holbrooke was acting with the
apparent authority of the UN Security Council. 14

Whether or not an immunity agreement made by a third person is binding upon

the Tribunal depends ultimately on the question of whether it was made on behalf of the
prosecution or the United Nations Security Council. 15

The Security Council could, through amendments to the Statute, limit the
Tribunal’s jurisdiction over a person, if it deemed it appropriate. 16

Under no circumstances can an agreement not to prosecute an individual limit the

jurisdiction of the Tribunal in the absence of a UN Security Council resolution. 17

Neither the doctrine of actual authority or apparent authority can operate to

deprive the Tribunal of its jurisdiction to prosecute an individual. Only a UN Security
Council resolution can do that.18

The fact that the FYROM granted amnesty to others involved in the FYROM-
NLA conflict is irrelevant to the present case, as the Tribunal is not bound by any act of
the FYROM granting amnesty to those involved in the FYROM-NLA conflict under
Article 24 of the Statute or Rule 101 of the Rules. 19

jurisdiction

The United Nations Security Council had the power, pursuant to Chapter VII of
the United Nations Charter to create the International Tribunal. 20 The Appeals Chamber
has jurisdiction to decide the legality of the powers conferred upon it. 21

14
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 79
15
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 50
16
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8 July
2009) at para. 57
17
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 37
18
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 38
19
Prosecutor v. Boškoski & Tarculovski,, No. IT-04-82-A, Judgement (19 May 2010) at para 220.
20
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 36; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the
Accused’s Motion Challenging the Legal Validity and Legitimacy of the Tribunal (7 December 2009) at
paras. 11,13
21
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at paras. 22, 25

35
 ICTY Chamber lacks competence to determine if continuing exercise of Chapter
VII powers with respect to Tribunal is valid, as Tribunal cannot review acts of other
United Nations’ organs for validity, including the Security Council. 22

ICTY Chamber lacks jurisdiction to determine the legality of the Security

Council’s establishment of the Residual Mechanism as it is competent only to pronounce
on issues of the ICTY’s own competency. 23

The jurisdiction of the Tribunal extends to all former territories of the former
Yugoslavia, including Macedonia. 24

Even if the FYROM conducted an “anti-terrorist” operation in Ljuboten on its

own territory, it cannot, based on sovereignty, claim that the Tribunal does not have
jurisdiction over any serious violations of international humanitarian law committed
during this operation, provided it was in the context of an armed conflict. 25

The jurisdiction of the Tribunal includes Kosovo, irrespective of whether the

Federal Republic of Yugoslavia was a member of the United Nations at the time of the
creation of the Tribunal. 26

The Tribunal only has jurisdiction over crimes which were recognized as such
under customary international law at the time it was allegedly committed. The Tribunal’s
power to convict an accused of any crime listed in the statute depends on its existence
qua custom at the time the crime was allegedly committed.27

The jurisdiction of the Tribunal with respect to punishment of grave breaches of

the Geneva Conventions is not dependent on proof that the State in whose territory the
breach was committed was a party to the Conventions at the time of commission. It is
now considered that, as a matter of international law, there is automatic State succession
to multilateral humanitarian treaties in the broad sense. The provisions contained in such
treaties are therefore binding on a State from creation. This position reflects both the
object and purpose of such treaties, and their recognised status as customary law. 28

22
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Disqualification of Judges
Kwon, Morrison, Baird and Lattanzi (31 July 2014) at para. 11, fn.24
23
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Dismiss the Indictment (28
August 2013) at para. 12
24
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-AR72.1, Decision on Interlocutory Appeal on
Jurisdiction (22 July 2005) at para. 10
25
Prosecutor v. Boškoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 33.
26
Prosecutor v Milutinovic et al, No. IT-99-37-AR72.2, Reasons for Decision Dismissing Interlocutory
Appeal Concerning Jurisdiction over the Territory of Kosovo (8 June 2004); Prosecutor v Dordevic, No.
IT-05-87/1-PT, Decision on Vlastimr Dordevic’s Preliminary Motion on Jurisdiction (6 December 2007) at
para. 11
27
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 9; Prosecutor v Milutinovic et
al, No. IT-05-87-PT, Decision on Ojdanic’s Motion Challenging Jurisdiction: Indirect Co-Perpetration (22
March 2006) at para. 15
28
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 111 – 113.

36
 The adoption of an international treaty, by itself, does not necessarily prove that
states consider the content of that treaty to express customary international law. 29

While the ICC statute may be in many areas regarded as indicative of customary
rules, in some areas it creates new law or modifies existing law. 30

An ICTY case of contempt for which the accused had not been apprehended prior
to the close of the ICTY could be transferred to the Mechanism pursuant to the
Transitional Arrangements.31

nullem crimen sine lege

The principle of nullem crimen sine lege holds that a criminal conviction can only
be based upon a norm which existed at the time the acts or omission with which the
accused is charged were committed.32 The crime or form of liability must have also been
sufficiently foreseeable and accessible at the relevant time. 33

The nullem crimen sine lege principle does not require that an accused knew the
specific legal definition of each element of the crime he committed. Therefore, it is
irrelevant which test for international armed conflict existed at the time of the offense. 34

selective prosecution

The fact that the Security Council created an ad hoc Tribunal to deal with one
armed conflict, but not all armed conflicts which may have been occurring at the same
time does not invalidate the lawfulness of the Tribunal or substantiate a selective
prosecution allegation.35

The Prosecutor, in exercising her discretion under the Statute in the investigation
and indictment of the accused before the Tribunal is subject to the principle of equality
before the law and to the requirement of non-discrimination.36

29
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1648
30
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1648
31
Prosecutor v Jojic & Radeta, No. IT-03-67-R77.5, Order for Transfer to the International Residual
Meechanism for Criminal Tribunals (29 November 2017) at pp. 3-4
32
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 37
33
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 38
34
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 311
35
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Nebojsa Pavkovic’s Motion for Dismissal of
the Indictment Against Him on Grounds that the United Nations Security Council Illegally Established the
International Criminal Tribunal for the former Yugoslavia (21 February 2008) at para. 23
36
Prosecutor v Seselj, No. IT-03-67-T, Decision on Motion by the Accused to Dismiss all Charges Against
him (Submission 387) an d its Addendum (Submission 391)(18 September 2008) at para. 18

37
 The accused must demonstrate that the prosecutor abused her discretionary power
specifically as regards (1) the fact that the decision to prosecute him was based on
impermissible motives; and (2) that the prosecution did not prosecute similarly situated
persons.37

It is preposterous to suggest that unless all potential indictees who are similarly
situated are brought to justice, there should be no justice done in relation to a person who
has been indicted and brought to trial. 38

stay of proceedings

There may be situations where a fair trial is not possible because witnesses central
to the case do not appear due to the obstructionist efforts of a State. In such
circumstances, the relevant Party, after exhausting all measures available in the Statute of
the Tribunal, has the option of submitting a motion for a stay of proceedings. 39

The obligation is on the complaining party to bring the difficulties to the attention
of the Trial Chamber, so that the latter can determine whether any assistance could be
provided under the Rules or Statute to relieve the situation. The party cannot remain
silent on the matter only to return on appeal to seek a trial de novo.40

It is undoubtedly the case that a Chamber has the power to stay the proceedings in
a case where the circumstances are such that a fair trial for the accused is impossible. 41

There must be a serious violation of human rights justifying such an extreme

measure as an indefinite stay of proceedings. 42

Article 2—grave breaches of the Geneva Convention

The International Tribunal shall have the power to prosecute persons committing or
ordering to be committed grave breaches of the Geneva Conventions of 12 August
1949, namely the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;

37
Prosecutor v Seselj, No. IT-03-67-T, Decision on Motion by the Accused to Dismiss all Charges Against
him (Submission 387) an d its Addendum (Submission 391)(18 September 2008) at para. 21
38
Prosecutor v Delalic et al, No. IT-96-21-A, Judgement (20 February 2001) at para. 610; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Decision on Nebojsa Pavkovic’s Motion for Dismissal of the Indictment
Against Him on Grounds that the United Nations Security Council Illegally Established the International
Criminal Tribunal for the former Yugoslavia (21 February 2008) at para. 25
39
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 55.
40
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 55.
41
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Stay of Proceedings (8 April 2010) at
para. 4
42
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Stay of Proceedings (8 April 2010) at
para.4

38
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile
power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular
trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.

armed conflict

existence

An armed conflict exists whenever there is a resort to armed force between states
or protracted armed violence between governmental authorities and organized armed
groups or between such groups within a state.43 The requirement of protacted fighting is
significant in excluding mere cases of civil unrest or single acts of terrorism. 44

The fact that none of the warring parties recognizes the state of war does not
affect the status of the conflict. The Geneva Conventions have been drawn up first and
foremost to protect individuals, not to serve State interests.45

international character

Article 2 only applies to armed conflicts of an international character. 46

In determining the circumstances under which armed forces may be regarded as

acting under the control of a foreign state, thereby rendering the armed conflict
international, the foreign state’s overall control of those forces must include more than
mere provision of financial assistance or military equipment or training. The state must
have a role in organising, coordinating, or planning the military actions of the military
group in addition to financing, training and equipping, and providing operational support
to that group.47

In order for acts of a military group to be attributed to a State, the “Overall

Control” test requires proof that the State wields overall control over the group, not only

43
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 336
44
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 341
45
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 373
46
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 84
47
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 131; Prosecutor v Kordic &
Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at paras. 306-07; Prosecutor v. Delalic, No. IT-
96-21-A, Judgement (20 February 2001) at para 14.

39
by equipping and financing the group, but also by co-ordinating or helping in the general
planning of its military activity. 48

“Overall control”, as required by international law, may be deemed to exist when

a State (or in the context of an armed conflict, the Party to the conflict) has a role in
organising, coordinating or planning the military actions of the military group, in
addition to financing, training and equipping or providing operational support to that
group. Acts performed by the group or members thereof may be regarded as acts of de
facto State organs regardless of any specific instruction by the controlling State
concerning the commission of each of those acts.49

Factors considered relevant to determining whether a foreign State has effective

overall control over an armed force or militia involved in a prima facie internal armed
conflict include: (1) extensive financial, logistical and other assistance and support,
including the payment of salaries by the foreign State;50 (2) identical rank structures and
hierarchies;51 (3) direction and supervision of the activities and operations by the armed
force of the foreign State;52 and (4) shared military objectives.53

Where the controlling State in question is an adjacent State with territorial

ambitions on the State where the conflict is taking place, and the controlling State is
attempting to achieve its territorial enlargement through the armed forces which it
controls, it may be easier to establish that those armed forces are the de facto organs of
the controlling state.54

The “overall control” test could thus be fulfilled even if the armed forces acting
on behalf of the “controlling State” had autonomous choices of means and tactics
although participating in a common strategy along with the “controlling State”.55

The “Overall Control” test calls for an assessment of all the elements of control
taken as a whole, and a determination to be made on that basis as to whether there was
the required degree of control. 56

To determine whether the conflict is international in character, the conflict must

be examined in its entirety. For instance, it is not necessary to prove that troops from
another State were present in each of the places were the crimes were committed. 57

48
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 282
49
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 137; Prosecutor v. Delalic, No.
IT-96-21-A, Judgement (20 February 2001) at para 15.
50
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 151.
51
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 151.
52
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 151.
53
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at paras 151, 153.
54
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 149; Prosecutor v. Delalic, No.
IT-96-21-A, Judgement (20 February 2001) at para 47.
55
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 47.
56
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 282
57
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 85

40
 Possible underlying motives of the participants in the conflict or the lawfulness of
their participation have no relevance. From the moment Croatia intervened directly in the
conflict against the ABiH on the side of the HVO, or exercised overall control over the
HVO, the conflict became international. 58

The Croatian Army's presence on Bosnian territory, in conjunction with its direct
intervention in the conflict, rendered the conflict international 59

It was reasonable for the Trial Chamber to conclude that the Croatian
government’s overall control over the Bosnian Croat forces in Bosnia was established by
considering that high-ranking officers were sent by Croatia to join the ranks of the
Bosnian Croat Army; that the two armies jointly directed military operations; that the
Bosnian Croat army dispatched reports concerning its activities to Croatian authorities;
that Croatia provided logistical support to the Bosnian Croat army; and Croatia exercised
political influence over the Bosnian Croat Army and civilian authorities.60

territory included

Once an armed conflict has become international, the Geneva Conventions apply
throughout the respective territories of the warring parties. 61

confinement

civilians

A member of the military police is not a civilian.62

A solider on leave is not a civilian. 63

Testimony stating that detainees were civilians in the mind of the witness, without
any further details as to why the witness believes that they were civilians, does not
support a finding beyond a reasonable doubt that the detainees were in fact civilians. 64

Testimony that detainees were “young” or “elderly” is insufficient for a

reasonable trier of fact to find that the detainees were civilians. 65

58
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 525
59
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para.. 275
60
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para.. 285
61
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 321;
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 232
62
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 596
63
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 630
64
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 603
65
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 617

41
 conditions

The detention or confinement of civilians is unlawful (1) when civilians are

detained without reasonable grounds to believe that the security of the detaining power
makes it absolutely necessary; or (2) where the procedural safeguards required by Article
43 of Geneva Convention IV are not complied with in respect of detained civilians, even
where their initial detention may have been justified.66

The conditions of confinement must be assessed in light of the circumstances at

the time, taking into account the state of communications that might affect the supply of
food, water and medication as well as the livelihood of the civilian population,
particularly if there are shortages. The Accused bears the burden of proving that the
conditions of confinement resulted from specific circumstances. 67

The internment or placement in assigned residence of a protected person is

permitted if the security of the detaining power makes it absolutely necessary, or in the
case of an occupation, for imperative reasons of security. 68

The parties to a conflict possess broad discretion to determine which activities are
harmful to the external or internal security of a State, and may resort to internment or
placement in assigned residence if they have serious and legitimate reasons to think that
the person concerned, by his activities, knowledge, or qualifications, represents a real
threat to its present or future security. 69

justifications

The defence of necessity, if such a defence exists under international law, cannot
be used to justify participation in the mistreatment of detainees punishable under either
Article 2(c) or Article 3(1)(a). The legal standards regulating the treatment of detainees
are absolute, not relative. They delineate a minimum standard of treatment, from which
no derogation can be permitted.70

Subversive activity carried on inside the territory of a party to the conflict or acts
that directly assist an enemy power may constitute threats to national security. 71

The detaining power has a reasonable time to determine whether a particular

person is a civilian and further to determine whether there are reasonable grounds to

66
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 322; Prosecutor v Kordic
& Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.73
67
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 118
68
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
69
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
70
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 525.
71
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134

42
believe that the security of the detaining power is threatened. 72 However, detaining all
citizens, inlcuding women and children, is unreasonable. 73

The mere fact that a person is a national of, or aligned with, an enemy party
cannot be considered as threatening the security of the opposing party where he is living,
and is not, therefore, a valid reason for interning him. There must be an individual
assessment that each civilian taken into detention poses a particular risk to the security of
the State.74

The fact that a man is of military age should not necessarily be considered as
justifying the application of measures of confinement. 75

mens rea

The requisite mens rea for unlawful confinement of a civilian would include
knowledge both of the requirement of review of the detainees’ detention, and that it had
not been conducted.76

participation

In order to establish that an individual has committed the offence of unlawful

confinement, something more must be proved than mere knowing “participation” in a
general system or operation pursuant to which civilians are confined. Primary criminal
responsibility is more properly allocated to those who are responsible for the detention in
a more direct or complete sense, such as those who actually place or maintain an accused
in detention without reasonable grounds to believe that he constitutes a security risk. 77

The following situations were not held to indicate a level of participation

sufficient to found primary criminal responsibility for unlawful confinement: (1) mere
knowledge that at least some of the detainees were being unlawfully detained and
participation in the detention as a guard;78 and (2) mere signing orders for the
classification and release of civilians on behalf of another individual, in the absence of
any independent authority.79

In order to establish that an accused aided and abetted the unlawful confinement
of a citizen, in the terms of Article 7(1) of the Statute, it is necessary to establish a degree
of participation that would be sufficient to constitute a substantial effect on the

72
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 609
73
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.620;
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
74
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 327 and 329; Prosecutor
v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 135
75
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 134
76
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 381.
77
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 342.
78
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 342.
79
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 357 – 358.

43
continuing detention. The circumstance alone of holding a position as a guard somewhere
within a camp in which civilians are unlawfully detained will not suffice to render that
guard responsible for the crime of unlawful confinement of civilians. 80

cruel and inhuman treatment

Cruel treatment under Article 2, inhuman treatment under Article 2, and

inhumane acts under Article 5 share the same elements.81

Inhuman treatment is an intentional act or omission committed against a protected

person, causing serious mental harm, physical suffering, injury, or constitutes a serious
attack on human dignity. 82

Under Article 2(b) of the Statute, the following have been characterised as
inhuman treatment: repeated beatings and outrages inflicted on protected persons, certain
conditions of confinement, the use of detainees as human shields, sexual assault, and
being compelled to perform forced labour along the front lines under dangerous
conditions. 83

Any sexual violence inflicted on the physical and moral integrity of a person by
means of threat, intimidation or force, in such as a way as to degrade or humiliate the
victim, may constitute inhuman treatment under Article 2(b) of the Statute. Rape is
thereby prohibited, as well as all forms of sexual violence not including penetration. 84

The severity of an act must be assessed in light of the circumstances of the case,
specifically taking into account “the nature of the act or omission, the context in which it
occurs, its duration and/or repetition, the physical, mental and moral effects of the act on
the victim and the personal circumstances of the victim, including age, sex, and health. 85

In respect of the mental element for inhuman treatment, at the moment of the act
or omission, the direct perpetrator must have “had the intention to inflict serious physical
or mental suffering or to commit a serious attack on the human dignity of the victim, or
where he knew that his act or omission was likely to cause serious physical or mental
suffering or a serious attack upon human dignity and was reckless as to whether such
suffering or attack would result from his act or omission. 86

deportation and forcible transfer

The constituent elements for deportation and forcible transfer are identical
whether it involves a war crime or a crime against humanity, with one exception: to be
80
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 364.
81
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 350
82
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 39
83
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 115
84
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 116
85
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 119
86
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 120

44
characterised as a grave breach of the Geneva Conventions, the offences of forcible
transfer and deportation must be committed against a person protected under the Geneva
Conventions.87

destruction not based on military necessity

Two types of property are protected under article 2(d): (i) real or personal
property in occupied territory, belonging individually or collectively to private persons,
or to the State, or to other public authorities, or to social or cooperative organization
(except where such destruction is rendered absolutely necessary by military operations); 88
(ii) property that carries general protection under the Geneva Conventions of 1949
regardless of its location. 89

The destruction and appropriation must be extensive. However, a single incident,

such as the destruction of a civilian hospital, may exceptionally suffice to constitute a
crime. 90

The prohibition of destruction of property situated in occupied territory does not

apply in cases “where such destruction is rendered absolutely necessary by military
operations”. 91

Where a bridge was a military target at the time of the attack, and, thus, its
destruction offered a definite military advantage, it cannot be considered, in and of itself,
as wanton destruction not justified by military necessity. Thus the Trial Chamber erred
in finding that the destruction of the Old Bridge of Mostar constituted the crime of
wanton destruction not justified by military necessity as a violation of the laws or
customs of war.92

Knowing whether a definite military advantage may be achieved must be decided

from the perspective of the person contemplating the attack, taking into account the
information available to the latter at the moment of the attack.93

The deliberate nature of the offence of the destruction of property is established

when the perpetrator acts knowingly with the intent to destroy the property in question or
when the property has been destroyed in reckless disregard of the likelihood of its

87
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 132
88
Prosecutor v Brdjanin, No. IT-99-36-T Judgement (1 September 2004) at para 586
89
Prosecutor v. Naletili & Martinovic, No. IT-98-34-T, Judgement (31 March 2003) at para 575;
Proseutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 586
90
Prosecutor v. Naletili & Martinovic , No. IT-98-34-T, Judgement, (31 March 2003) at para 575;
Prtosecutor v Brdjanin, No. IT-99-36-T, Judgement, (1 September 2004) at para 587; Prosecutor v Prlic et
al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 126
91
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para 157; Prosecutor v. Naletili &
Martinovic, No. IT-98-34-T, Judgement, (31 March 2003) at paras 575, 577; Proseutor v Brdjanin, No. IT-
99-36-T, Judgement, (1 September 2004) at para 588.
92
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 411
93
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 123

45
destruction. 94

killing

The elements of the underlying crime of wilful killing under Article 2 of the
Statute are, mutatis mutandis, identical to those required for murder under Article 3 and
Article 5 of the Statute.95

The elements of wilful killing are (1) the death of the victim; (2) as a result of the
action of the accused; (3) who intended to cause death or serious bodily injury likely to
lead to death, and (4) which he committed against a protected person. 96

The mens rea for wilful killing does not require premeditation; a dolus
eventualis97 will suffice. 98 Thus the threshold mental element is set at recklessness;
accordingly, negligence falls below the threshold. 99

The mens rea may also be inferred either directly or circumstantially from the
evidence in the case. 100

The actus reus consists in the act or omission of the accused resulting in the death
of the victim. 101 The prosecution need only prove beyond reasonable doubt that the
accused’s conduct contributed substantially to the death of the victim. 102

Proof of the victim’s death can be established by inference from circumstantial

evidence provided that the only inference reasonably available is that the victim is dead

94
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 124
95
Prosecutor v Brdjanin, No. 99-36-T Judgement (1 September 2004); Prosecutor v Delalic et al No. IT-
96-21-A, Judgement on Appeal (20 February 2001) at paras 422-423; which make this finding with respect
to wilful killing under Article 2 of the Statute and murder under Article 3 of the Statute. See Prosecutor v
Krstic, No. IT-98-33-T Judgement (2 August 2001) at para. 485; Prosecutor v. Krnojelac, No. IT-97-25-T,
Judgement, 15 March 2002 para. 323; Prosecutor v. Vasiljevi , No. IT 98-32-T, Judgement, (29 November
2002) at para. 205; Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para. 631,
which make this finding with respect to murder under Article 3 and 5 of the Statute. Prosecutor v. Kordi
& Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at para. 236; Prosecutor v. Naletili &
Martinovi , No. IT-98-34-T, Judgement, (31 March 2003) at para. 248, which make this finding with
respect to wilful killing under Article 2 and murder under both Article 3 and 5 of the Statute.
96
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 36
97
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at paras 587, 747
98
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 386.
99
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 386.
100
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 387; Prosecutor v
Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para. 437; Prosecutor v. Krnojelac, No.
IT-97-25-T, Judgement, (15 March 2002) at para. 326
101
Prosecutor v Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para. 424; Prosecutor v.
Kordi & Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at para. 229; Prosecutor v. Kupreski
et al, No. IT-95-16-T, Judgement, (14 January 2000) at para. 560
102
Prosecutor v Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para. 424.

46
as a result of the acts or omissions of the accused. 103 Proof of death, i.e. the production of
a corpse, is not strictly required. 104

mens rea

Under Article 2, the prosecution must prove that the accused knew of the factual
circumstances that made the armed conflict an international one. 105 The existence of an
international armed conflict is an element of the offence and it would violate the
presumption of innocence to convict him of a crime without proving that he knew the
facts that were necessary to make his conduct a crime. 106

occupied territory

aiding and abetting

Trial Chamber rejects Prosecution’s argument whereby a commander in an

occupied territory may, solely due to his failure to discharge his duty to protect the
civilian population and civilian property in this territory, be held responsible for aiding
and abetting by omission the crimes that were committed against this population or this
property. The Prosecution must also prove that the commanding officer had the capacity
to act, that he knew that his omission would contribute to the crime being carried out by
the direct perpetrator, that he was aware of the core elements of the crime ultimately
committed, and that his failure to act had significant bearing on the commission of the
crime.107

area

It was necessary to determine whether a state of occupation existed in places from

which civilians were expelled in order to determine whether their expulsion from the
occupied zone crossed a de facto border and thus constituted deportation.108

It was necessary to determine whether a state of occupation existed in places

where property was destroyed and appropriated because such property was only covered
by Article 2(d) if it was in an occupied area. 109

Territory is considered occupied when it is actually placed under the authority of

103
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 385; Prosecutor v.
Krnojelac, No. IT-97-25-T, Judgement, (15 March 2002) at para 326.
104
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement, (1 September 2004) at para 384-385; Prosecutor v
Tadic, No. 94-1-T, Judgement (7 May 1997) at para 240
105
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para.121; Prosecutor v
Boskoski & Tarlukovski, No. IT-04-82-PT, Decision on Assigned Pro Bono Counsel Motion Challenging
Jurisdiction (8 September 2006) at para. 18
106
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 114
107
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 573
108
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 301
109
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 303

47
the hostile army. The occupation extends only to the territory where such authority has
been established and can be exercised. 110

Where it was not proven that these places were occupied when the crimes were
committed, the convictions under Article 2 were vacated as to those places. 111

authority

The occupying power need only be in a position to exercise its authority.112

Factors to be considered when determining whether the authority of the

occupying power has been proven in fact include: (1) the occupying power must be in a
position to substitute its own authority for that of the occupied power, rendered incapable
of functioning publicly from that time forward; (2) the enemy‟ s forces have surrendered,
been defeated or have withdrawn. In this respect, battle zones may not be considered as
occupied territory. Despite this, the status of occupied territory remains unchallenged by
sporadic local resistance, however successful; (3) the occupying power has a sufficient
force present, or the capacity to send troops within a reasonable time to make the
authority of the occupying power felt; (4) a temporary administration has been
established over the territory; and (5) the occupying power has issued and enforced
directions to the civilian population. 113

In order to make a finding as to whether a state of occupation exists in any given

place, a trier of fact must look at the situation in its entirety. 114

The test for occupation is actual authority over the territory and population and
not the motivation behind such an occupation. Therefore, occupation by an army of the
same ethnic group as the civilians being occupied is possible. 115

The occupying authorities’ authority may be exercised by proxy through de facto

organised and hierarchically structured groups.116

state of occupation

In order to prove the responsibility of an accused for his functions as a

commanding officer in a zone of occupation, the Prosecution must first prove that such
an occupation exists.117

Nothing in case-law or customary law excludes the possibility that fighting with

110
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 317
111
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 343
112
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 322
113
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 320
114
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 321
115
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 341
116
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 322
117
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 91

48
the character of an international armed conflict might take place in the occupied territory
without that territory losing its status as an occupied territory, provided that the
occupying power maintains its control over the territory at issue. 118

Occupation is not limited to one State invading another State and establishing
military control over part or all of its territory. A non-invading State which remains after
consent is withdrawn can constitute an occupation. 119

The mere fact of being in the territory of a party to the conflict or in occupied
territory implies that one is in the hands of the Occupying Power.120

If the occupying power continues to maintain control of the territory in spite of

resistance and sporadic fighting, the territory is still considered occupied. 121

Battle zones may not be considered as occupied territory, but the status of
occupied territory remains unchallenged by sporadic local resistance, however
successful. 122

A state of occupation and that of an international armed conflict are not

necessarily mutually exclusive.123

Occupation can be established, once combat ceases, if the occupying power has
the required control. 124

A finding of active hostilities in certain municipalities does not necessarily

preclude the Trial Chamber from finding that a state of occupation existed on the ground
in those municipalities. The issue is one of authority, i.e. whether the occupying power is
able to maintain its authority over the territory in spite of some ongoing active combat. 125

plunder and appropriation of property

The prohibition on the unlawful and wanton seizure of property is broad in scope
and is directed toward private as well as government property.126

This section covers both organised and systematic confiscations and acts of
appropriation committed by soldiers acting in self-interest.127

118
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 94
119
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 318, 339
120
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 101
121
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 319
122
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 320
123
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 335
124
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 339
125
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 335
126
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 129
127
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 129

49
 This prohibition applies equally, moreover, to the territory of the Parties to the
conflict and to occupied territories.128

To constitute a violation of the prohibition in Article 2(d) of the Statute, to the

extent that the appropriation of property is a grave breach of the Geneva Conventions
under Article 147 of the Fourth Geneva Convention, such appropriation must also be
committed extensively and carried out unlawfully and wantonly. 129

The Fourth Geneva Convention authorises the occupying powers, in certain cases,
to requisition private property, such as food and medical supplies or articles, in occupied
territory to meet the needs of their occupying forces and administration. The requisition
of excess food and supplies for the benefit of occupied regions is authorised provided that
it is proportionate to the resources of the country. 130

The deliberate nature of the offence of appropriation of property in Article 2(d) of

the Statute is established when the perpetrator acts knowingly with the intent to
appropriate the property in question unlawfully. 131

protected persons

To constitute grave breaches of the Geneva Conventions, the crimes enumerated

under Article 2 must be committed against persons or property protected under the
provisions of the relevant Geneva Convention. 132

allegiance

The detaining authority's view of the victims' allegiance is a relevant factor in

determining whether the victim is a protected person under Article 2. 133

Protected persons may include victims who share a common citizenship with the
perpetrator, so long as they owe no allegiance to the party to the conflict in whose hands
they find themselves.134

Members of the armed forces of a party to the conflict may not be considered
prisoners of war under the Third Geneva Convention when they are placed into detention
by their own armed forces.135

However, they may be considered as persons falling into the hands of the enemy
for purposes of the Fourth Geneva Convention, and therefore are protected persons for

128
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 129
129
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 130
130
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 130
131
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 131
132
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 346
133
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 355
134
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 330
135
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 604

50
purposes of ICTY Article 2.136

Grave breaches can be committed by soldiers against members of their own

military force.137

The Bosnian Croat Army’s Muslim members who were detained by the Bosnian
Croat Army were protected persons under Geneva Convention IV. 138

Since the criterion of nationality might exclude certain victims of crimes from the
category of protected persons, it is not applied strictly. The Tribunal will rather look to
“more realistic bonds demonstrating effective allegiance to a party to a conflict, such as
ethnicity” in appropriate cases.139

civilians

Protected persons include all civilians who do not enjoy the diplomatic protection
of the Party in whose hands they find themselves. This would include: (1) all civilians not
having the nationality of the belligerent Party; and (2) all civilians who whilst having that
nationality, are refugees and thus no longer enjoy the diplomatic protection of that
Party.140

Both civilians who were in the territory prior to the outbreak of the conflict or the
occupation and those who arrived later are “protected persons.” 141

co-belliegerents

Nationals of a co-belligerent State do not enjoy the protection conferred by the

Fourth Geneva Convention, “while the State of which they are nationals has normal
diplomatic representation in the State whose hands they are in. 142

nationals

While protected persons may be detained when it is absolutely necessary, such

deprivation of liberty is permissible only where there are reasonable grounds to believe
that the security of the State is at risk, based on an assessment that each civilian taken

136
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 611
137
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 358
138
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 360
139
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) paras 164-168; Prosecutor v. Blaskic,
No. IT-95-14-A, Judgement (29 July 2004) at paras 172-176; Prosecutor v Mucic et al, No. IT-96-21-A,
Judgement on Appeal (20 February 2001) paras 83, 98; Prosecutor v. Mladen Naletilic and Vinko
Martinovi , No. IT-98-34-T, Judgement, (31 March 2003) at para. 207; Prosecutor v Brdjanin, No. IT-99-
36-T, Judgment (1 September 2004) at para 125.
140
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 164; Prosecutor v. Delalic, No.
IT-96-21-A, Judgement (20 February 2001) at para 56.
141
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 101
142
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 102

51
into detention poses a particular risk to the security of the State. An individual may not be
detained solely because he or she is a national of, or aligned with, an enemy party.143

non-civilians

While Geneva Convention IV primarily concerns the protection of civilians, it

also encompasses all persons who fall into the hands of a party to the conflict, or
occupying power of which they are not nationals, and who are not protected under the
other Geneva Conventions. 144

persons subject to conscription

The Trial Chamber reasonably concluded that military-aged Muslim men - as a

general category – did not belong to the ABiH simply because of general mobilization
orders providing that all citizens of who are fit to work shall be subject to compulsory
military service. 145

Even though the status of combatant cannot be presumed on the ground that men
are of military age at the time of their detention, it is the Prosecution that carries the
burden of proving civilian status when seeking to have the regime of crimes against
humanity or that of the Fourth Geneva Convention applied to the crimes committed
against these persons. Where the evidence, after it has been assessed for each crime
alleged, does not prove beyond all reasonable doubt that the persons involved are
civilians, the Chamber is bound to find in dubio pro reo that such persons are
combatants.146

reservists

A reservist becomes a member of the armed forces within the meaning of

international humanitarian law once he has been mobilised and has taken up active duty,
that is, once he has been incorporated into an organised structure and placed under a
command accountable for the conduct of its subordinates. It is only then that a member of
the reserves acquires the status of combatant and becomes a prisoner of war if he falls
into the hands of the opposing party during an international armed conflict. Such a person
thus retains the status of combatant from the instant he is mobilised and enters into active
duty until such time as he is permanently demobilised. Outside this temporal framework,
a member of the reserves is a civilian and cannot in any event be considered a prisoner of
war if put in detention by the opposing party during a conflict.147

Article 3—violations of the laws or customs of war

143
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 375
144
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 353
145
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 366
146
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 621
147
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 619

52
The International Tribunal shall have the power to prosecute persons violating the
laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause
unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by
military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages,
dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion,
charity and education, the arts and sciences, historic monuments and works of art
and science;
(e) plunder of public or private property.

armed conflict

existence

In establishing the existence of an armed conflict of an internal character, the

Trial Chamber must assess (1) the intensity of the conflict and (2) the organization of the
parties. 148

An armed conflict is defined to exist “whenever there is a resort to armed force

between States or protracted armed violence between governmental authorities and
organised groups or between such groups within a State.”149 It is immaterial whether this
conflict is internal or international. 150

Banditry, unorganized and short-lived insurrections, terrorist activities, or civil

unrest are not subject to international humanitarian law.151

In applying the test of whether an armed conflict existed, what matters is whether
the acts are perpetrated in isolation or as part of a protracted campaign that entails the
engagement of both parties in hostilities. It is immaterial whether the acts of violence
may be characterized as terrorist in nature.152

148
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 84
149
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 70; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at
para. 254
150
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at paras. 134, 137; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June
2006) at para. 252; Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at
para.536; Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para.24-25;
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 845;
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 56; Prosecutor v Galic,
No. IT-98-29-A, Judgement (30 November 2006) at para. 120; Prosecutor v Hadzihasanovic & Kubura,
No. IT-01-47-T, Judgement (15 March 2006) at para. 13; Prosecutor v. Delalic, No. IT-96-21-A,
Judgement (20 February 2001) at paras 140 and 150
151
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 254
152
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 185

53
 A state of internal armed conflict existed in Macedonia between the government
and NRA in August 2001.153

A state of armed conflict existed in Kosovo in 1998-99 between the FRY and
KLA and the FRY and NATO.154

intensity

The criterion of protracted armed violence refers more to the intensity of the
conflict rather than its duration. 155

Factors to be considered in evaluating the intensity of the conflict include (1) the
seriousness of the attacks and whether there has been an increase in armed clashes; (2)
the spread of clashes over territory and over a period of time; (3) any increase in the
number of government forces; (4) mobilization and the distribution of weapons among
both parties to the conflict; and (5) whether the United Nations Security Council has
passed resolutions concerning the matter.156

While isolated acts of terrorism may not reach the threshold of armed conflict,
when there is protracted violence of this type, especially where they require the
engagement of armed forces in hostilities, such acts are relevant when assessing the level
of intensity of the armed conflict.157

Since no peaceful settlement was achieved during the indictment period, there is
no reason to evaluate the oscillating intensity of the internal conflict. 158

international character

The prohibitions in Article 3 apply to international and non-international

conflicts.159

Armed conflict in Croatia was international in nature.160 No general, definitive,

and effective termination of hostilities such as to have ended the armed conflict had
taken place as of the time of the crimes in August 1995.161

153
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 292
154
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at paras. 1579-80
155
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 49
156
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 90; Prosecutor v
Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 49
157
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 190
158
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 100
159
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence
Interlocutory Appeal on Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at
para. 30
160
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1693
161
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at paras. 1695-97

54
 An internal armed conflict may exist alongside an international armed conflict. 162

The accused must be aware of the factual circumstances that qualify the conflict
as international but the mens rea requirement does not necessitate that the accused
correctly applies a particular legal label to known facts. All that is required is that the
accused be aware of the factual circumstances that lead to the judicial characterisation of
the conflict as international. 163

organisation

An armed conflict can exist only between parties which are sufficiently organized
to confront each other with military means. 164

Lack of organization of the armed group cannot be inferred by the fact that
international humanitarian laws were frequently violated by its members. In assessing
this factor, it is relevant to determine whether the attacks were primarily the result of a
military strategy by those leading the group or whether they were perpetrated by
members of the group acting on their own accord.165

The degree of organization of the parties need not rise to the level of that required
for establishing the responsibility of superiors for the acts of their subordinates. Some
degree of organization will suffice to satisfy this requirement for existence of an armed
conflict.166

Factors to be considered in evaluating the degree of organization include (1) the

existence of headquarters; (2) the existence of designated zones of operation; and (3) the
ability to procure, transport, and distribute arms. 167

Factors to be considered in evaluating the degree of organization include (1) the

existence of a command structure and disciplinary rules and mechanisms within the
group; (2) the existence of a headquarters; (3) the ability of the group to obtain access to
weapons, other military equipment, recruits, and military training; (4) the ability to plan,
coordinate, and carry out military operations; (5) its ability to define a unified military
strategy and use military tactics; and (6) its ability to speak with one voice and negotiate
and conclude agreements.168

attacks on civilians or on civilian objects

162
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 521
163
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2392
164
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 60
165
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 205
166
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 89; Prosecutor v
Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 254
167
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 90
168
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 60

55
 civilians

The burden of proof as to whether a person, or object, is a civilian rests on the

prosecution. 169

Members of armed forces and members of militias or volunteer corps forming

part of such armed forces are not civilians. Members of organized resistance groups,
which are commanded by a person responsible for his subordinates, have a fixed,
distinctive sign recognizable at a distance, carry arms openly, and conduct their
operations in accordance with the laws and customs of war are not civilians. 170

Civilians are protected from attack, unless and for the time that they take part
directly in hostilities.171

To take direct part in hostilities means to engage in acts of war which, by their
nature or purpose, are likely to cause actual harm to the personnel or matériel of the
enemy armed forces. A civilian who takes part in armed combat loses his or her
immunity and becomes a legitimate target.172

Members of the armed forces resting in their homes in the area of the conflict
remain combatants whether or not they are in combat or armed at the time. 173

Soldiers who were killed from shelling while playing a football match were not
hors d’combat and therefore their killing was not a crime against humanity or war
crime.174

civilian objects

The presence of members of the armed forces in private homes removes those
homes from classification as civilian objects. 175

The presence of combatants within the civilian population does not necessarily
deprive the population of its civilian character.176 However, in order to determine
whether the presence of soldiers within a civilian population deprives the population of
its civilian character, the number of soldiers, as well as whether they are on leave, must
be examined. 177

169
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 48, 53
170
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.50
171
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.50
172
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 947
173
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.51
174
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3063
175
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 455, 510,
516
176
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.50;
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 136
177
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 137

56
 Civilian objects are defined by opposition to military objectives, which are limited
to those objects which by their nature, location, purpose, or use make an effective
contribution to military action and whose total or partial destruction, capture, or
neutralization, in the circumstances ruling at the time, offers a definite military
advantage.178

distinction

The three fundamental principles of international humanitarian law are

distinction, precaution, and protection. Under Article 48 of Additional Protocol I, the
principle of distinction obliges the warring parties to distinguish at all times between the
civilian population and combatants, and between civilian objects and military objectives.
Article 57(2)(a)(ii) of Additional Protocol I requires that those planning an attack take all
reasonable precautions in the choice of the means and methods of attack in order to avoid
or minimise the incidental loss of civilian life, injury to civilians, and damage to civilian
property. Finally, the principle of protection, as referred to in Article 51(1) of Additional
Protocol I and Article 13(1) of Additional Protocol II, ensures that the civilian population
and individual civilians enjoy general protections against dangers arising from military
operations. 179

The principle of distinction obliges warring parties to distinguish at all times

between the civilian population and combatants, and between civilian objects and
military objectives and ensure that operations will only be directed against military
objectives.180

In accordance with the fundamental principles of distinction and protection of the

civilian population, only military objectives may be lawfully attacked.181

"Military objectives" are "those objects which by their nature, location, purpose or
use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage.”182

Whether a "military advantage" could have been achieved from an attack requires
an assessment of whether it was reasonable to believe, in the circumstances of the
person(s) contemplating the attack, including the information available to the latter, that
the object was being used to make an effective contribution to military action.183

The relevant question is whether the attacker(s) could have reasonably believed

178
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3257
179
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at fn. 1484
180
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 53
181
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 488
182
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 488
183
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 489

57
that the target was a legitimate military objective, and a useful standard by which to
assess the reasonableness of such belief is that of a "reasonable commander" in the
position of the attackers.184

A direct attack can be inferred from the indiscriminate character of the weapon
used.185

An object should not be attacked when it would be unreasonable to believe, in the

circumstances of the person contemplating the attack, that the object is being used to
make an effective contribution to military action.186

The legal test used to determine whether an attack was appropriately directed at a
military objective does not render the evidence of military observers and victims
irrelevant. The Trial Chamber was entitled to rely on such evidence in determining
whether the attackers reasonably could have believed that the targets were legitimate
military objectives. 187

An object shall not be attacked when it is not reasonable to believe in the

circumstances of the person contemplating the attack, including the information available
to the latter, that the object is being used to make an effective contribution to military
action. 188

According to the principle of distinction, warring parties must at all times

distinguish between the civilian population and combatants, between civilian and military
objectives, and accordingly direct attacks only against military objectives. These
principles establish an absolute prohibition on the targeting of civilians in customary
international law, but do not exclude the possibility of legitimate civilian casualties
incidental to the conduct of military operations. However, those casualties must not be
disproportionate to the concrete and direct military advantage anticipated before the
attack (the principle of proportionality). 189

Once the military character of a target has been ascertained, commanders must
consider whether striking this target is expected to cause incidental loss of life, injury to
civilians, damage to civilian objectives or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated. 190

184
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 489
185
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 132; Prosecutor v Martic,
No. IT-95-11-A, Judgement (8 October 2008) at para. 260
186
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 587
187
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 496
188
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 356
189
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 190
190
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 191

58
 General evidence as to the presence of mobile mortars in Sarajevo was
insufficient to show that Trial Chamber’s conclusion that attacks were indiscriminate was
erroneous.191

elements

The crime of attacks on civilians or civilian objects, as a crime falling within the
scope of Article 3 of the Statute, is, as to actus reus, an attack directed against a civilian
population or individual civilians, or civilian objects, causing death and/or serious injury
within the civilian population, or damage to the civilian objects. As regards mens rea,
such an attack must have been conducted with the intent of making the civilian
population or individual civilians, or civilian objects, the object of the attack.192

Attacks which are not directed against military objectives (particularly attacks
directed against the civilian population) and attacks which cause disproportionate civilian
casualties or civilian property damage may constitute the actus reus for the offence of
unlawful attack under Article 3 of the ICTY Statute. The mens rea for the offence is
intention or recklessness, not simple negligence. In determining whether or not the mens
rea requirement has been met, it should be borne in mind that commanders deciding on
an attack have duties: (1) to do everything practicable to verify that the objectives to be
attacked are military objectives; (2) to take all practicable precautions in the choice of
methods and means of warfare with a view to avoiding or, in any event to minimizing
incidental civilian casualties or civilian property damage; and (3) to refrain from
launching attacks which may be expected to cause disproportionate civilian casualties or
civilian property damage.193

The offence of attack on civilians includes the common elements from Article 3
of the Statute as well as the following elements: (1) Acts of violence directed against the
civilian population or civilian persons not directly participating in hostilities, causing
death or serious injury to body or health; and (2) the perpetrator of these acts of violence
wilfully subjected the civilian population or the civilian persons not directly participating
in hostilities to these acts.194

An attack is defined as “acts of violence against the adversary, whether in offence

or defence.” The issue of who first made use of force is irrelevant. 195

To establish that the crimes of terror and unlawful attacks against civilians had
been committed, the Trial Chamber was required to find beyond reasonable doubt that the

191
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 500
192
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 283; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 450
193
Report by the Committee Established to Review the NATO Bombing Campaign Against the Federal
Republic of Yugoslavia at para. 28.
194
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 193
195
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.47

59
victims of individual crimes were civilians and that they were not participating directly in
the hostilities.196

An attack on civilians or civilian objects requires proof that the attack resulted in
serious injury to body or health. 197

factors

To constitute a violation of the prohibition of attacks against civilians, the attack

must be directed at individual civilians or the civilian population. Whether an attack is so
directed can be inferred from many factors, including the means and method used in the
course of the attack, the status and number of the victims, the nature of the crimes
committed, the extent to which the attacking force may be said to have complied or
attempted to comply with the precautionary requirements of the laws of war and the
indiscriminate nature of the weapon used.198

hospitals

A hospital becomes a legitimate target when used for hostile or harmful acts
unrelated to its humanitarian function, but the opposing party must give warning before it
attacks.199

mens rea

Statement of accused that “if there is an order to strike at Knin, we will destroy it
in its entirety in a few hours” could be interpreted as a statement of Army’s capabilities,
rather than its aims, and therefore did not provide evidence of an intention to engage in
indiscriminate shelling.200

No reasonable trier of fact could have concluded that the forces possessed the
requisite mens rea for murder and wilful killing by shelling a house, given the ongoing
combat activity in the vicinity of the house and, in particular, the position of the
defenders of the village relative to the house.201

In order to establish the mens rea for the offence, it must be shown that the
perpetrator was aware or should have been aware of the civilian status of the persons
attacked. In cases of doubt, the Prosecution must show that, in the given circumstances, a
reasonable person could not have believed that the individual he or she attacked was a
combatant.202

196
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 57
197
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.67
198
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 948
199
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 346
200
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 81
201
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 441
202
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 952

60
 For the mens rea of an attack on civilians, the perpetrator must undertake the attack
“wilfully”, which it defines as wrongful intent, or recklessness, and explicitly not “mere
negligence”.203

military objects

A general assertion that the attacks were legitimate because they allegedly
targeted “military zones” throughout the city is bound to fail. 204

It is accepted that attacks aimed at military objectives may cause collateral

damage. Collateral damage is not unlawful per se.205

Military activity does not permanently turn a protected facility into a legitimate
military target. It remains a legitimate military target only as long as it is reasonably
necessary for the opposing side to respond to the military activity. 206

An attack must be aimed at the military objects in or around the facility, so only
weaponry reasonably necessary for that purpose can be used. 207

precautions

The parties to a conflict are under an obligation to remove civilians, to the

maximum extent feasible, from the vicinity of military objectives and to avoid locating
military objectives within or near densely-populated areas.208

proportionality

When assessing whether the destruction of an object was justified by military

necessity, the principle of proportionality must also be taken into account. Damage to
property must not be disproportionate to the concrete and direct military advantage
anticipated before the attack. In determining whether an attack on military objectives
was proportionate, it is necessary to adopt the perspective of a person in the
circumstances of the actual perpetrator contemplating the attack and making reasonable
use of the information available to him. 209

Although the principles of distinction and the protection of a civilian population

do not exclude the possibility of legitimate civilian casualties incidental to the conduct of

203
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 140; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 456
204
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 54
205
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.52
206
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 346
207
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 346
208
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 949
209
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 357

61
military operations, those expected casualties must not be disproportionate to the concrete
and direct military advantage anticipated before the attack.210

The Trial Chamber failed to provide a reasoned opinion when it found that the
damage was excessive in relation to the concrete and direct military advantage
anticipated without determining this military advantage.211

Trial Chamber’s finding that attacks on legitimate military target were

disproportionate was not based upon a concrete assessment of comparative military
advantage and did not make any findings on resulting damage or casualties. Therefore, it
could not support a conviction for unlawful attacks.212

Unnecessary or wanton application of force is prohibited. A belligerent may

apply only that amount and kind of force necessary to defeat the enemy. 213

scale

No specific amount of civilian destruction need be shown so long as the evidence

proves beyond a reasonable doubt that civilian objects were deliberately attacked. The
scale of the destruction may be relevant to determine whether an attack was aimed at
civilian objects.214

shelling

Trial Chamber was not unreasonable in finding that the angle of descent of mortar
shell could be reliably estimated despite the interference with the crater at the scene of
the incident.215

Trial Chamber’s finding that any shell landing more than 200 meters from a
military object was indiscriminate was error when not based upon any evidence in the
case and not accounting for factors such as wind, temperature, and distance. 216

Trial Chamber erred in finding that no shells were aimed at mobile military
objects moving around the town, as such “targets of opportunity” were legitimate military
targets.217

Although there was evidence that many shells fell further than 200 meters from
military objects and that they were spread across the whole town of Knin, this was not
conclusive evidence of indiscriminate attacks.218

210
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 561
211
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 561
212
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 82
213
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 686
214
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 453
215
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 518
216
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 61
217
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 63

62
 The possibility of shelling mobile targets, combined with the lack of any
dependable range of error estimation, raises reasonable doubt about whether even
artillery impact sites particularly distant from fixed artillery targets considered
legitimate by the Trial Chamber demonstrate that unlawful shelling took place. 219

The Trial Chamber’s finding that firing "shells", without further specification,
was inherently indiscriminate was unreasonable. 220

Text of order which provided detailed instructions for shelling military objects in
four towns and “put the towns under artillery fire” was sufficiently ambiguous to not
support the inference that the towns were to be shelled indiscriminately. 221

Observations of witnesses with no artillery experience and whose vantage points

made it difficult to determine where the shells were directed at or actually landed were
not sufficient to base a finding that the shelling was indiscriminate.222

targeting civilians

There is an absolute prohibition against the targeting of civilians in customary

international law encompassing indiscriminate attacks. 223

There is an absolute prohibition on the targeting of civilians in customary

international law. The prohibition against attacking civilians and civilian objects may not
be derogated from because of military necessity. 224

The prohibition against attacking civilians and civilian objects is not a crime when
justified by military necessity. 225

If the civilian population as such, or individual civilians, were unlawfully targeted

in each particular incident, it was by definition impossible that the target could have been
a legitimate military objective. 226

cruel treatment

218
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 65
219
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 66
220
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 434
221
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 77
222
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 79
223
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 53; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 49
224
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 130;
225
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 54;
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 486
226
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 56

63
 contribution

The involvement of VRS members in the guarding of the prisoners in the schools
as well as their participation in loading the prisoners onto trucks to be taken for execution
substantially contributed to the infliction and perpetuation of the appalling conditions of
detention that amounted to cruel and inhumane treatment. 227

defences

While the burden is on the prosecution to prove that the conditions of detention
were sufficiently bad to constitute cruel treatment, it is up to the defence to lead evidence
that the conditions of the prisoners were similar to those of the local population with
respect to food and water shortages. Where minimum standards of treatment cannot be
maintained, the detaining authority may possibly incur criminal responsibility if it
continues to detain the prisoners.228

elements

The crime of cruel treatment as a violation of the laws or customs of war pursuant
to Article 3 of the Statute, is an intentional act or omission causing serious mental or
physical suffering or injury, or constituting a serious attack on human dignity. Indirect
intent, i.e. knowledge that cruel treatment was a probable consequence of the
perpetrator’s act or omission, may fulfil the intent requirement for this crime. 229

The elements of cruel treatment are: (1) an act, or omission notwithstanding a

duty to act, of the accused; or of a person for whose acts or omissions the accused has
criminal responsibility, causing serious mental or physical suffering, serious injury, or
constituting a serious attack on human dignity; and (2) an intent to inflict serious mental
or physical suffering, serious injury, or a serious attack on human dignity. 230

mens rea

The mens rea of cruel treatment may be satisfied by knowledge that it is more
likely than not that such result could occur and acceptance of that risk. 231

The mental element for this offence requires the perpetrator of the crime to have
acted with direct or indirect intent to engage in cruel treatment. A perpetrator has acted
with indirect intent to commit cruel treatment when he knew that cruel treatment was a

227
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1908
228
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at paras. 36-37
229
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 261; Prosecutor v Limaj et
al, No. IT-03-66-T, Judgement (30 November 2005) at para. 231; Prosecutor v Martic, No. IT-95-11-T,
Judgement (12 June 2007) at para. 79
230
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 351
231
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 353; Prosecutor v Haradinaj et
al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 423

64
probable consequence of his act or omission and accepted that fact.232

Those present at the schools were aware of the fact that all the prisoners were
Bosnian Muslims and of the cruel and inhumane treatment to which they were subjected.
The infliction of such treatment was thus carried out with the intention to discriminate
against the Bosnian Muslims on political, racial, or religious grounds, or with an
awareness of the discriminatory context in which the crime was to be committed. 233

suffering

The degree of physical or mental suffering required to prove cruel treatment is

lower than the one required for torture, though it must be at the same level as wilfully
causing great suffering or serious injury to body or health. 234

The fact of imprisonment, in and of itself, does not amount to an act inflicting
severe pain or suffering or constituting a serious attack on human dignity, within the
meaning of torture or cruel treatment under Article 3 of this Statute. 235

The failure to provide adequate medicine or medical treatment would constitute

the offence of “cruel treatment” if, in the specific circumstances, it causes serious mental
or physical or injury, or constitutes a serious attack on human dignity and if it is carried
out with the requisite mens rea.236

Acts of medical deprivation of medical care of those who had previously been
injured, in and of themselves, were not of the nature to cause severe or serious pain or
suffering to amount to torture or cruel treatment. 237

Beating or detaining persons in difficult conditions may constitute cruel treatment

if they cause great suffering or physical or mental harm, or are a serious attack on human
dignity. 238

The physical conditions of detention may be enough to constitute the offence of

cruel treatment when they cause detainees great physical and/or mental suffering,
constituting a serious attack on their human dignity, and are imposed deliberately. 239

Unlawful seizure, unlawful detention for prolonged periods, and interrogation, in

and of themselves, do not amount to a serious attack on human dignity and therefore do
not constitute cruel treatment.240

232
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 147
233
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1909
234
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 161
235
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 524
236
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 517
237
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 529
238
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 35
239
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 148
240
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 232

65
 The assessment of the seriousness of an act or omission is, by its very nature,
relative. All the factual circumstances must be taken into account, including the nature of
the act or omission, the context in which it occurs, its duration and/or repetition, the
physical, mental and moral effects of the act on the victim and the personal circumstances
of the victim, including age, sex and health. The suffering inflicted by the act upon the
victim does not need to be lasting so long as it is real and serious. 241

Beatings are not per se cruel treatment or inhumane acts but can be with further
showings.242

Taking a man out of his home and detaining him in a well, while putting his wife
in the hands of armed soldiers known for violence constituted serious mental suffering
sufficient to constitute cruel treatment.243

victims

Cruel treatment under Article 3 applies to members of the civilian population,

regardless of whether they were in the hands of their perpetrators at the time. 244

destruction not based on military necessity

collateral damage

Military necessity includes those lawful measures which are indipensible for
securing the ends of the war.245

Collateral damage to civilian property may be justified by military necessity. The

protection of civilians and civilian property provided by modern international law may
cease entirely, or be reduced or suspended, when the target of a military attack is
comprised of military objectives and belligerents cannot avoid causing damage to
civilians. 246

Only the targeting of objects which qualify as military objectives may be justified
by military necessity. Damage to civilian property or civilian casualties may be
considered to be legitimate only if they are incidental to the conduct of military
operations which are directed against military objectives.247

241
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 131
242
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 176
243
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 95
244
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction
(19 March 2007) at para. 82
245
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 686
246
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 45
247
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 353

66
 elements

The crime of wanton destruction not justified by military necessity, under Article
3(b) of the Statute was part of international customary law. 248

The elements of this offence are: (1) the destruction of property occurred on a
large scale; (2) the destruction was not justified by military necessity; and (3) the
perpetrator acted with intent to destroy the property in question. 249

The crime of wanton destruction of cities, towns, or villages not justified by

military necessity has the following elements: (1) the destruction of property occurs on a
large scale; (2) the destruction is not justified by military necessity; and (3) the
perpetrator acted with the intent to destroy the property in question or in reckless
disregard of the likelihood of its destruction.250

The crime of wanton destruction of cities, towns or villages requires proof of the
same elements as devastation not justified by military necessity. 251

mens rea

The mens rea for offences under article 3(b) is satisfied where the destruction or
devastation is either perpetrated intentionally, with the knowledge and will of the
proscribed result, or in reckless disregard of the likelihood of the destruction or
devastation.252

The mens rea of wanton destruction requires proof of direct intent to destroy the
property in question or the indirect intent of knowing that destruction was the probable
consequence of one’s acts.253

military objects

As a rule, destruction carried out before fighting begins or after fighting has
ceased cannot be justified by military necessity. 254

Where prosecution failed to prove that attacks were not justfied by military
necessity, the accused should be acquitted.255

248
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.76
249
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 581; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 39
250
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 351
251
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3256
252
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 593; Prosecutor v
Blaskic, No. IT-95-14-T, Judgement (3 March 2000) at para 183; Prosecutor v. Kordi & Cerkez, No. IT-
95-14/2-T, Judgement, (26 February 2001) at para 346.
253
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 358
254
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3257

67
 The use of a firehouse as a headquarters and the use of private houses in combat
operations allowed for the conclusion that there was a justified military objective in the
attacks.256

The fact that arms were found in a house did not justify destruction of the
257
house.

The destruction of civil settlements is presumed to be unlawful, but may be

justified on a case-by-case basis, such as when the settlement might be used to resume the
attack.258

partial destruction

Although it is required that a considerable number of objects were damaged or

destroyed, it is not required that a city, town, or village be destroyed in its entirety. 259

Partial destruction of property may be considered to be sufficient, as long as acts

of partial destruction are committed on a large scale. 260

Destruction of almost everything from one apartment, absent any evidence

establishing what these items are, does not constitute destruction on a large scale. 261

The destruction must be both serious in relation to the individual object and cover
a substantial range in a particular city, town, or village. The sporadic or isolated
destruction of a few houses of a settlement is insufficient., but total destruction of a city,
town, or village is not required.262

Commission of destruction on a large scale is both an element of the offence of

wanton destruction of towns and villages and a jurisdictional prerequisite to the
application of Article 3. 263

Destruction on a large scale occurs when either a large quantity of property has
been destroyed or when the value of a single destroyed property is sufficiently great. 264

255
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at paras. 429,503;
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 586
256
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.445
257
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 575
258
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 588
259
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 352
260
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 352
261
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3407
262
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 583, 85
263
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 47;
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1766
264
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 43;
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3257

68
 Partial destruction of property falls within the ambit of this section of the
Statute.265

scope of protection

The protection extends to property in the territory of the conflict, including

property in enemy territory or territory not held by either party. 266

The protection extends to both moveable and unmovable property. 267

devastation not justified by military necessity

The elements of the crime of “devastation not justified by military necessity”, at

least in the present context, may be stated as: (a) destruction or damage of property on a
large scale; (b) the destruction or damage was not justified by military necessity; and (c)
the perpetrator acted with the intent to destroy or damage the property or in the
knowledge that such destruction or damage was a probable consequence of his acts.268

Military necessity is defined as “those objects which by their nature, location,

purpose or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage”. Whether a military advantage can be achieved must be
decided from the perspective of the person contemplating the attack, including the
information available to the latter, that the object is being used to make an effective
contribution to military action. 269

The Prosecution must establish that the destruction was not justified by military
necessity, 270

This crime is applicable to armed conflicts of either international or non-

international character.271

destruction of cultural property

The prohibition on destruction of cultural property contained in Article 3(b) of the

Statute covers also non-international armed conflicts.272

265
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 44
266
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 582
267
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 42
268
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 297; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 90
269
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 295
270
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 170
271
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence
Interlocutory Appeal on Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at
para. 30

69
 An act will fulfill the elements of the crime of destruction or wilful damage of
cultural property, within the meaning of Article 3(d) of the Statute and in so far as that
provision relates to cultural property, if: (i) it has caused damage or destruction to
property which constitutes the cultural or spiritual heritage of peoples; (ii) the damaged
or destroyed property was not used for military purposes at the time when the acts of
hostility directed against these objects took place; and (iii) the act was carried out with
the intent to damage or destroy the property in question. 273

The protection accorded to cultural property is lost where such property is used
for military purposes. It is the use of cultural property and not its location that determines
whether and when the cultural property would lose its protection. The special protection
awarded to cultural property itself may not be lost simply because of military activities or
military installations in the immediate vicinity of the cultural property. In such a case,
however, the practical result may be that it cannot be established that the acts which
caused destruction of or damage to cultural property were “directed against” that cultural
property, rather than the military installation or use in its immediate vicinity. 274

In order to prove the destruction or willful damage done to institutions dedicated

to religion and other cultural buildings as persecution, as a crime against humanity, the
prosecution must prove the general requirements of crimes against humanity, the specific
requirements of persecution, and the following elements of the underlying offence: (1)
the destruction or damage of the religious or cultural property occurs on a large scale;
(2) the destruction or damage of the religious or cultural property is not justified by
military necessity; and, (3) the perpetrator acted with the intent to destroy or damage the
religious or cultural property or in reckless disregard of the likelihood of its destruction or
damage. 275

Educational institutions are not automatically cultural property. 276

It is not necessary to establish that the building represent the cultural heritage of a
people. 277

destruction of religious institutions

The elements of the offence of destruction or willful damage to institutions

dedicated to religion are (1) a religious institution is destroyed or damaged; (2) the

272
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 228; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence Interlocutory Appeal on
Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at para. 47
273
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 312
274
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 310
275
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 88
276
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.92
277
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para.
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 60

70
damaged or destroyed property was not used for military purposes; and (3) the act was
carried out with the intent to damage or destroy the property in question. 278

The crime of destruction or wilful damage done to institutions dedicated to

religion or education comprises the following elements: (1) an intentional act or
omission; (2) causing destruction or damage to a cultural or religious object of property;
(3) the property did not constitute a military objective within the meaning of Article 52 of
Additional Protocol I and (4) the act or omission is perpetrated with intent to destroy the
cultural or religious property. 279

Reckless disregard of the substantial likelihood of destruction or damage to

religious institutions will also satisfy the mens rea of the offence in art 3(d).280

Article 3(d) of the Statute criminalises only those prohibited acts which result in
the destruction or damage of the object protected.281

The destruction or damage to a religious institution must be sufficiently serious to

constitute desecration.282 The seriousness should be measured more by the spiritual value
of the property than the material extent of the damage or destruction. 283

For Article 3(d) of the Statute to apply, the perpetrator of the crime must act with
intent to destroy the protected property. 284

forced labour

See Article 5—crimes against humanity

hostage taking

Hostage taking applies not only to civilians, but to all persons not taking an active
part in the hostilities.285

The actus reus of hostage taking is the detention of persons and the use of a threat
concerning the detained persons, including a threat to kill, injure or continue to detain, in
order to obtain a concession or gain an advantage. 286

278
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 58;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 96
279
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 178
280
Prosecutor v Brdjanin No, IT-99-36-T, Judgement (1 September 2004) at para 598.
281
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 175
282
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 63
283
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 63
284
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 176
285
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 60
286
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468

71
 Unlawful detention is an element of hostage taking.287

Unlawful detention is an element of hostage taking, but the lawfulness of the

confinement or deprivation of liberty does not depend on the circumstances in which any
individual comes into the hands of the enemy but rather depends upon the whole
circumstances relating to the manner in which and the reasons they are held. Thus, the
unlawfulness of the detention relates to the idea that civilians or those taking no active
part in hostilities are taken or held hostage not to ensure their safety or to protect them,
but rather to gain an advantage or obtain a concession. The existence of threats or use of
violence against the individuals taken hostage are other factors to take into account to
assess the lawfulness of their detention.288

Unlawful detention is not an element of the crime of hostage taking. 289

The lawfulness of the detention does not depend on on the circumstances in which
any individual comes into the hands of the enemy, but rather depends on the whole
circumstances relating to the manner in which, and reasons why, they are held. 290

Since Common Article 3 provides a minimum protection for all conflicts,

international or internal, its prohibition on hostage taking cannot be read to be limited to
civilians, as it is in Article 2. Hostage taking applies to all persons not taking a direct part
in the hostilities. 291

Even if the UN personnel were combatants immediately before their detention,

they were rendered "hors de combat" by virtue of their detention and thus were entitled to
the minimum protections guaranteed by Common Article 3. 292

Because the essential feature of the offence of hostage-taking is the use of a threat
to detainees to obtain a concession or gain an advantage, which may happen at any time
during the detention, the requisite intent may be formed at the time of the detention or it
may be formed at some later time, after the person has been detained. 293

Hostage taking prohibition applies to all persons who are detained regardless of
whether they were combatants or civilians. 294

287
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 65
288
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3216
289
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 659
290
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 65
291
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Appeal of Trial Chamber’s Decision on
Preliminary Motion to Dismiss Count 11 of the Indictment (9 July 2009) at para. 22
292
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Motion for Judgement of Acquittal (28 June
2012) at p. 28735
293
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468
294
Prosecutor v Karadzic, No. IT-95-5/18-AR73.9, Decision on Appeal of Denial of Motion for Judgement
of Acquittal for Hostage Taking (11 December 2012) at para. 21

72
 mens rea

The mens rea required for hostage-taking is the intention to compel a third party
to act or refrain from acting as a condition for the release of the detained persons. 295

The prosecution accepted that they were required to prove that the accused knew
or had reason to know of the factual circumstances of the conflict, and did prove that
knowledge. 296

It must be proven that the perpetrator was aware or should have been aware that
the victim was a person not taking an active part in the hostilities. The prosecution must
show that no reasonable person could have believed the victim was a combatant. 297

Once he knew that they were detained – irrespective of their involvement in

hostilities prior to their capture or surrender – a reasonable trier of fact could have
concluded that the accused knew that they were not taking an active part in the
hostilities. 298

The erroneous belief that detained combatants are not entitled to Common Article
3 protections is not a defence should the elements of hostage-taking be met.299

murder

See Article 5--murder

nexus

The crime need not be committed in the same place as the armed conflict so long
as the crimes were closely related to hostilities occurring in parts of the territories
controlled by the parties to the conflict. Such a relation exists as long as the crime is
“shaped by or dependent upon the environment – the armed conflict – in which it is
committed. 300

For the applicability of Article 3 of the Statute two preliminary requirements must
be satisfied. First, there must have been an armed conflict at the time the offences were
allegedly committed. Secondly, there must be a close nexus between the armed conflict
and the alleged offence, meaning that the acts of the accused must be “closely related” to

295
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468
296
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 295
297
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 36; Prosecutor v
Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 78; Prosecutor v Prlic et al, No. IT-04-
74-T, Judgement (29 May 2013) at vol. 1 para. 143
298
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 800
299
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 468
300
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 536;
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para.26

73
the hostilities. The existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator’s ability to commit it, his decision to commit it, the
manner in which it was committed or the purpose for which it was committed.301

When determining the nexus between the armed conflict and the offence, factors
to be considered include: (1) whether the perpetrator is a combatant; (2) whether the
victim is a non-combatant; (3) whether the victim is a member of the opposing party; (4)
whether the act may be said to serve the ultimate goal of a military campaign, and (5)
whether the crime is committed in the context of or as part of the perpetrator’s official
duties. 302

For Article 3 to apply, the crime charged must be committed in a time of armed
conflict and an accused’s acts must be closely related to that conflict. The nexus need not
be a causal link, but the existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator’s ability to commit the crime, his decision to commit it,
the manner in which it was committed or the purpose for which it was committed. If it
can be established that the perpetrator acted in furtherance of or under the guise of the
armed conflict, it would be sufficient to conclude that his acts were closely related to the
armed conflict. To find a nexus, it is sufficient that the alleged crimes be closely related
to the hostilities occurring in other parts of the territories controlled by the parties to the
conflict. Article 3 crimes need not be committed in the area of armed conflict, but must at
least be “substantially related” to this area, which at least includes the entire territory
under control of the warring parties. It is essential, however, that a Trial Chamber
establish the existence of a geographical and temporal linkage between the crimes
ascribed to the accused and the armed conflict. 303

The offence need not be carried out in the context of military action. It is
sufficient if the offence is closely linked to the hostilities.304

outrages upon personal dignity

The determination of what constitutes a war crime is dependent on the

development of the laws and customs of war at the time when an act charged in an
indictment was committed. The laws of war are not static, but by continual adaptation
follow the needs of a changing world. There is no question that acts such as rape, torture

301
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 215; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 29; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 253, 256; Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and
Sentence (27 September 2006) at para. 846; Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement
(12 June 2002) at para. 55
302
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 91; Prosecutor v
Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 59
303
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 342; Prosecutor v Kunarac et
al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 58; Prosecutor v Hadzihasanovic & Kubura,
No. IT-01-47-T, Judgement (15 March 2006) at para. 16; Prosecutor v. Mrkši et al.,No. IT-95-13/1-T,
Judgement (27 September 2007) at para 423
304
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 62

74
and outrages upon personal dignity are prohibited and regarded as criminal under the
laws of war and that they were already regarded as such at the time relevant to these
Indictments.305

The crime of outrages upon personal dignity requires; (1) that the accused
intentionally committed or participated in an act or an omission which would be
generally considered to cause serious humiliation, degradation or otherwise be a serious
attack on human dignity; (2) that he knew that the act or omission could have that
effect.306

Outrages upon personal dignity are constituted by “any act or omission which
would be generally considered to cause serious humiliation, degradation or otherwise be
a serious attack on human dignity.” 307

Murder in and of itself cannot be characterised as an outrage upon personal

dignity. Murder causes death, which is different from concepts of serious humiliation,
degradation or attacks on human dignity. The focus of violations of dignity is primarily
on acts, omissions, or words that do not necessarily involve long-term physical harm, but
which nevertheless are serious offences deserving of punishment. 308

In regard to the mens rea, the crime of outrages upon personal dignity requires
only the knowledge of the “possible” consequences of the charged act or omission. 309

plunder

Plunder is all forms of unlawful appropriation of property in armed conflict for

which individual criminal responsibility attaches under international criminal law,
including those acts traditionally described as “pillage”. 310

There is some doubt as to whether acts of plunder, in and of themselves, rise to

the level of gravity required for crimes against humanity. 311

Plunder is a crime which protects important values and whether the breach of
these values involves grave consequences for the victims must be determined on a case-
by-case basis. 312

Plunder is committed when private or public property is appropriated intentionally

and unlawfully. 313

305
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 67.
306
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 161
307
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 163
308
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 172
309
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 165
310
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.79
311
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 148
312
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 46

75
 Plunder of private or public property is prohibited in both international and
internal armed conflicts and is not limited to occupied territories. 314

Plunder requires grave consequences to the victim, which may be measured by

the monetary value of the property. However, plunder can be committed where
appropriations take place vis a vis a large number of people, even though the
consequence to each individual is not grave. 315

The mens rea for plunder is established when the perpetrator acts with the
knowledge and intent to acquire property unlawfully, or when the consequences of his
action are foreseeable.316

In certain circumstances, appropriation of property may not be regarded as

unlawful where it can be justified under international humanitarian law. Under
international humanitarian law, there is a general exception to the prohibition of
appropriation of property when the appropriation is justified by military necessity. In the
context of an international armed conflict, treaty law and international customary law
justify battlefield seizures of military equipment of the adverse party as war booty. 317

The principle of “war booty” is an exception to the appropriation of property. In

an internal conflict, one must look to the law in the national jurisdiction to determine the
application of this exception.318

In the context of an actual or looming famine, a state of necessity may be an

exception to the appropriation of property. Food and livestock may be appropriated if it
is shown that (1) there was a real and imminent threat of severe and irreparable threat to
life existence; (2) the acts of plunder may have been the only means to avoid the harm;
(3) the acts of plunder were not disproportionate; and (4) the situation was not voluntarily
brought about by the perpetrator himself. 319

313
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.84;
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 49
314
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.3, Decision on Joint Defence
Interlocutory Appeal on Trial Chamber Decision on Rule 98 bis Motions for Acquittal (11 March 2005) at
para. 37; Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.78;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 101
315
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.82-83;
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 55;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 103
316
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 50
317
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1779
318
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at paras. 51-52;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 102
319
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 53

76
 The “grave consequences” requirement was satisfied by the overall effect of the
various incidents of plunder on the civilian population and the multitude of offenses
committed.320

protected persons

Under Article 3, it must be established that the victim was a person taking no
active part in the hostilities. 321 It is the specific situation the moment the crime was
committed which controls. 322 Factors to be considered include (1) whether the victim
was carrying weapons; (2) clothing; (3) age; and (4) gender. 323

The principle contained in Article 50(1) of Additional Protocol I that in cases of

doubt a person shall be considered a civilian is limited to the expected conduct of a
member of the military. In contrast, when the criminal responsibility of an accused is at
issue, the prosecution bears the burden of proof concerning the civilian status of
victims. 324

There is an unconditional and absolute prohibition on the targeting of civilians in

customary international law. Any attack directed at the civilian population is
prohibited, regardless of the military motive. 325

The victim must not have been participating in acts of war which by their nature
and purpose are intended to cause actual harm to the personnel or equipment of the
enemy’s armed forces in order to be considered a person not directly taking part in
hostilities. 326

Since members of the armed forces of a party to a conflict are legitimate military
objectives, they may be targeted even when not actively participating in hostilities. 327

However, if the victim was a combatant, or even with respect to a victim not
directly taking part in hostilities, the killing of such person would not be a war crime if
the person was killed as the incidental result of an attack which was proportionate to the
anticipated and concrete military advantage. 328

320
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1787
321
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 176; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 3; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 258; Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at
para.47
322
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 47; Prosecutor v Halilovic,
No. IT-01-48-T, Judgement (16 November 2005) at para. 34
323
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 34
324
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 522
325
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 906
326
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 178; Prosecutor v Perisic, No.
IT-04-81-T, Judgement (6 September 2011) at para. 93
327
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 2054
328
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 179

77
 Driver for President of Municipal Crisis staff, who was also military reservist,
was not a person directly taking part in hostilities at the time of the offence.329

In determining that the victim was not taking an active part in the hostilities, the
Trial Chamber correctly relied on evidentiary findings that the victim was in civilian
clothes at the time of his death; that he was not a militia member; and that his father’s
house (the house he was killed in) was not used as a militia checkpoint.330

In determining that the victim was not taking an active part in the hostilities, the
Trial Chamber correctly relied on evidentiary findings that the victim was detained and
severely mistreated before he was shot dead; that he was unarmed and among a very
large group of well-armed police; and even though the detaining forces may have thought
he was attempting to escape, the hopelessness of his position was obvious and his
conduct did not present a real threat of escape. 331

Common Article 3 protects all persons taking no active part in hostilities,

including those placed hors de combat through detention. Thus, even if some of these
victims had been participating actively in hostilities prior to their detention, as soon as
they were detained by the BSF, they would have ceased to be taking an active part in
hostilities and thus would have come under the protection of Common Article 3. 332

Even if the evidence demonstrated that the Srebrenica enclave was never fully
demilitarised, that there had been combat activity shortly before the executions began,
and that ABiH members were hiding amongst the civilians in the enclave, a reasonable
trier of fact could still have reached, as the only reasonable inference, the Trial
Chamber’s conclusion that all the persons killed were detained in the hands of the BSF at
the moment of their deaths and hence were victims of murder under Article 3. 333

In determining that the victim was not taking an active part in the hostilities, the
Trial Chamber correctly relied on evidentiary findings that the victim was in the custody
of police members; wore civilians clothes; and the only weapon found in his house was a
light shotgun for hunting birds which had not been used or moved.334

Since the Bosnian Muslim men from the column or who had been separated from
their families at Potocari had been killed after their surrender or capture and during the
period of their detention, they were not taking an active part in hostilities at the time the
crimes were committed.335

reprisals

329
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 185
330
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 81.
331
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 96.
332
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 794
333
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 796
334
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 102.
335
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 794

78
 Reprisals may only be used as a last resort and when all other means have been
proven to be ineffective. 336

Reprisals must be effected only after a warning has been given and not heeded.337

The decision to take reprisals must be made at the highest political or military
338
level.

Reprisals must be proportionate to the initial violation. 339

Reprisals must cease as soon as they have put an end to the violations which
provoked them. 340

Reprisals must be excercised, to the extent possible, in keeping with the

protection of the civilian population and the general prohibition against targeting
civilians. 341

Existence of peace negotiations at time of shelling of Zagreb demonstrates that

not all possibilities had been exhausted as required for a justified reprisal. 342

scope

Article 3 covers violations which are based on treaties as well as violations which
are based upon customary international law. When a treaty provision is violated, it
makes no difference whether the violation was prohibited by customary international
law. 343

Article 3 of the Statute is not limited to the protection of property. 344

Article 3 is a residual clause which gives the Tribunal jurisdiction over any
serious violation of international humanitarian law not covered by Articles 2, 4, or 5 of
the statute. In order to fall within this residual jurisdiction, the offence must meet the
following criteria: (1) it must constitute and infringement of a rule of international
humanitarian law; (2) the rule infringed on must be customary in nature or covered by a
treaty binding on the parties at the time that conforms with international law; (3) the
violation must be serious—breach of a rule having important values and having grave
consequences for the victims; and (4) the violation of the rule must entail individual

336
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 466
337
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 466
338
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 466
339
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 467
340
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 467
341
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 467
342
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 468
343
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.41
344
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 118

79
criminal responsibility under customary or conventional law. These conditions must be
fulfilled whether the crime is expressly listed in Article 3 of the Statute or not.345

Acts such as rape, torture and outrages upon personal dignity are prohibited and
regarded as criminal under the laws of war. 346

A violation of the rule prohibiting attacks on civilian objects meets all of the
criteria for prosecution under Article 3. 347

Crimes committed anywhere in the territory under the control of a party to the
conflict, until a peaceful settlement of the conflict is achieved, fall within the jurisdiction
of the Tribunal. 348

The fact that a State is acting in lawful self-defence (just ad bellum) is irrelevant
for a determination as to whether a representative of this State has committed a serious
violation of international humanitarian law during the exercise of the State’s right to self-
defence which constituted part of an armed conflict (jus in bello).349

The legitimate character of an operation does not exclude an accused’s criminal

responsibility for planning, instigating and ordering crimes committed in the course of
this operation. 350

terror

customary law

The prohibition of terror against the civilian population as enshrined in Article

51(2) of Additional Protocol I and Article 13(2) of Additional Protocol II, is a part of
customary international law, 351 and customary international law imposed individual
criminal liability for violations. 352

345
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 218; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 30; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 257; Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence
(27 September 2006) at para. 842; Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June
2002) at para. 66
346
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 67
347
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 226
348
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 70; Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30
November 2005) at para. 84; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 255;
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 57; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 15
349
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 51.
350
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 172.
351
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 90
352
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 98

80
 elements

The elements of “terror” are: (1) Acts or threats of violence directed against the
civilian population or individual civilians not taking direct part in hostilities causing
death or serious injury to body or health within the civilian population; (2) The offender
willfully made the civilian population or individual civilians not taking direct part in
hostilities the object of those acts of violence; (3) The above offence was committed with
the primary purpose of spreading terror among the civilian population. 353

actus reus

The definition of the actus reus of the crime of terror suggested by the
Prosecution, notably “acts capable of spreading terror”, does not necessarily imply grave
consequences for the civilian population and thus does not per se render the violation of
the said prohibition serious enough for it to become a war crime within the Tribunal’s
jurisdiction.354

Psychological impact on the population of Sarajevo also satisfies the required

gravity threshold. 355

The actual infliction of terror is not an element of the crime of terror against the
civilian population. The Trial Chamber did not err in so defining the elements of the
offence, despite the allegation in the indictment of the infliction of terror. 356

The actual terrorisation of the civilian population is not an element of the crime of
unlawful infliction of terror. However, evidence of actual terrorisation may contributeto
establishing other elements of the crime of terror.357

Acts of terror do not include legitimate attacks against combatants.358

Acts of sniping and shelling undoubtedly fall within the scope of “acts of
violence” contemplated under the definition of the crime of acts or threats of violence the
primary purpose of which is to spread terror among the civilian population. 359

The actus reus of the crime of unlawful infliction of terror consists of acts or
threats of violence directed against the civilian population or individual civilians not
taking direct part in hostilities causing death or serious injury to body or health within the
civilian population. 360

353
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 875
354
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 34
355
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 35
356
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 73
357
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 563-64
358
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 464
359
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 106
360
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at fn. 5882

81
 Causing death or serious injury to body or health represents only one of the
possible modes of commission of the crime of terror, and thus is not an element of the
offence per se. What is required is that the victims suffered grave consequences resulting
from the acts or threats of violence; such grave consequences include, but are not limited
to death or serious injury to body or health. 361

The crime of terror is not limited to direct attacks against civilians, but may also
include indiscriminate or disproportionate attacks to threats thereof. Similarly, acts and
threats of violence do not include legitimate attacks against combatants but only unlawful
attacks against civilians. While the nature of the acts or threats of violence may vary, the
important element is that the acts or threats of violence are committed with the specific
intent to spread terror among the civilian population. 362

According to customary international law applicable both in international and

non-international armed conflicts, the parties to the conflict must allow and facilitate
rapid and unimpeded passage of humanitarian relief for civilians in need, which is
impartial in character and conducted without any adverse distinction, subject to their right
of control. The applicable international humanitarian law did not oblige the VRS to allow
passage of consignments of humanitarian aid for the benefit of the ABiH, or of military
equipment under the guise of humanitarian aid. Such consignments were deprived of
their impartial character.363

mens rea

The crime of terror is a “specific intent crime”. The mens rea of the crime of terror
consists of a general intent and a specific intent. The general intent is that the offender
must have wilfully made the civilian population or an individual civilian the object of
acts or threats of violence. The specific intent is “spreading terror among the civilian
population.” 364

The mens rea of the crime of acts or threats of violence the primary purpose of
which is to spread terror among the civilian population is composed of the specific intent
to spread terror among the civilian population. The purpose of the unlawful acts or threats
to commit such unlawful acts need not be the only purpose of the acts or threats of
violence. The fact that other purposes may have coexisted simultaneously with the
purpose of spreading terror among the civilian population would not disprove this charge,
provided that the intent to spread terror among the civilian population was principal
among the aims. Such intent can be inferred from the circumstances of the acts or threats,
that is from their nature, manner, timing and duration.365

361
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 33
362
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 877; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1774
363
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 615
364
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 878
365
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 104

82
 While the actual infliction of death or serious harm to body or health is a required
element of the crime of terror …the actual infliction of ‘terror’ on the civilian
population is not an element of the crime. The fact that the civilian population suffered
and experienced terror during an armed conflict may, however, serve as corroboration of
the intent to terrorize.366

The mens rea of the war crime of unlawful infliction of terror on civilians as a
violation of the laws or customs of war includes the specific intent to spread terror among
the civilian population.367

The mens rea of the crime of terror consists of the intent to make the civilian
population or individual civilians not taking direct part in hostilities the object of the acts
of violence or threats thereof, and of the specific intent to spread terror among the civilian
population. While spreading terror must be the primary purpose of the acts or threats of
violence, it need not be the only one.both the actual infliction of terror and the
indiscriminate nature of the attack were reasonable factors for the Trial Chamber to
consider in determining the specific intent of the accused. 368

Other purposes of the unlawful acts or threats may have coexisted simultaneously
with the purpose of spreading terror among the civilian population, provided that the
intent to spread terror among the civilian population was principal among the aims. 369

The specific intent for this offence is the intent to spread terror among the civilian
population.370

Such intent can be inferred from the nature, manner, timing and duration of the
acts or threats.371

The specific intent of the crime of terror can be inferred from the circumstances of
the acts or threats of violence, that is, from their nature, manner, timing and duration.
Attacks during cease-fires and truces or long-term and persistent attacks against civilians,
as well as indiscriminate attacks, may be taken as indicia of the intent to spread terror.
The specific intent may also be inferred from the site of the attack 372.

The crime of terror requires the same legal elements as the crime of unlawful
attacks against civilians. However, it is different from the crime of unlawful attacks
against civilians in that it requires the additional mental element of the “primary purpose
of spreading terror.” The crime of terror, therefore, constitutes an “aggravated”, more
serious form of, unlawful attack on civilians. 373

366
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 880
367
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 424
368
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 37
369
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 424
370
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 460
371
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 424, 1774
372
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 881
373
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 882

83
 It must be established that the terror goes beyond the fear that is only the
accompanying effect of the activities of armed forces in armed conflict. The prohibition
of spreading terror among a civilian population must therefore always be distinguished
from the effects that acts of legitimate warfare can have on a civilian population.
Therefore, the circumstances of a particular armed conflict must be taken into account in
determining whether the crime of terror has been committed, or whether the perpetrators
intended to “spread terror among a civilian population.” 374

The crime of terror shares the same elements with the crime of unlawful attacks
against civilians, except for the additional requirement that to constitute terror it must be
established that the acts were committed with the primary purpose of spreading terror
among the civilian population. It follows, therefore, that the acts which the Trial Chamber
found to have constituted terror must a fortiori also constitute unlawful attacks against
civilians and civilian population. 375

Considering the Trial Chamber's findings that the Bosnian Croat Army had a
military interest in the destruction of the Old Bridge and that it was a military target, no
reasonable trier of fact could have found, beyond reasonable doubt, that the Bosnian
Croat Army had the specific intent to commit terror.376

Trial Chamber’s finding that the Bosnian Croat Army had the specific intention to
spread terror among the civilian population of and committed acts of violence, the main
aim of which was to inflict terror on the population was insufficient where no similar
findings were made in the individual criminal responsibility section to clarify whether the
accused shared this specific intent.377

Despite not explicitly finding that the accused had the specific intent to spread
terror, the Trial Chamber considered that he had extensive knowledge of, and accepted
nearly all, the underlying acts that the Trial Chamber earlier considered demonstrated the
Bosnian Croat Army’s specific intent to spread terror. Therefore, a reasonable trier of fact
could be satisfied beyond reasonable doubt - and as the only reasonable inference
available - that the accused intended that the acts of violence be committed with the
primary purpose of spreading terror among the civilian population. 378

timing

International humanitarian law applies from the initiation of such armed conflicts
and extends beyond the cessation of hostilities until a general conclusion of peace is
reached, or in the case of internal conflicts, a peaceful settlement is achieved. 379
374
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 878
375
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 953
376
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 425
377
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1778
378
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1788
379
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 255; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 14

84
 torture

elements

The elements of torture are: (1) an act or omission inflicting severe pain or
suffering whether physical or mental; (2) the act or omission must be intentional; and (3)
the act or omission must have been carried out with a specific purpose such as to obtain
information or a confession, to punish, intimidate, or coerce the victim or a third person,
or to discriminate, on any ground, against the victim or a third person. 380

The Trial Chamber correctly identified the following elements of the crime of
torture in a situation of armed conflict:(i) the infliction, by act or omission, of severe pain
or suffering, whether physical or mental; (ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at punishing,
intimidating, humiliating or coercing the victim or a third person, or at
discriminating, on any ground, against the victim or a third person; (iv) it must be
linked to an armed conflict; and (v) at least one of the persons involved in the
torture process must be a public official or must at any rate act in a non-private
capacity, e.g., as a de facto organ of a State or any other authority-wielding
entity.381

actus reus

An act or omission may constitute the actus reus of torture if it has caused severe
pain or suffering. It is not required that the injury be permanent, or even physical. 382

In order to constitute torture, the accused’s act or omission must give rise to
"severe pain or suffering, whether physical or mental." 383

The intimidating and humiliating aspects of a scene (The rubbing of a knife

against a woman's thighs and stomach, coupled with a threat to insert the knife into her
vagina) and their devastating impact on the physical and mental state of a witness can be
serious enough to amount to torture.384

Factors determining the seriousness of the act include: (1) the nature and context
of the infliction of pain; (2) the premeditation and institutionalization of the ill-treatment;
(3) the physical condition of the victim; (3) the manner and the method used; (4) the
position of inferiority of the victim; (5) the physical and mental effect of the treatment on

380
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 235
381
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 111
382
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 236; Prosecutor v
Haridanaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para.417
383
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 111
384
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 113-114

85
the victim; (6) the victim’s age, sex, and state of health; and (7) the specific social,
cultural, and religious background of the victims. 385

mens rea

The mens rea of torture requires that the perpetrator intended to act in a way,
which, in the normal course of events, would cause severe pain and suffering, whether
mental or physical. 386

The act must have been carried out with the specific purpose of obtaining
information or a confession, or to punish, intimidate, or coerce the victim or a third
person, or to discriminate, on any ground, against the victim or a third person.387

Torture is distinguished from other offences in that it aims, through the infliction
of severe mental or physical pain, to attain a certain result or purpose. This includes,
albeit not exhaustively, the purpose to obtain information or a confession, to punish,
intimidate or coerce the victim or a third person, or to discriminate, on any ground,
against the victim or a third person. In the absence of these purposes or goals, even very
severe infliction of pain would not be classified as torture.388

There is no requirement that the severe pain or suffering be inflicted exclusively

for one or more of the purposes mentioned, but only that such a purpose or purposes be
part of the motivation for the conduct.389

Factors relevant to determining whether the perpetrator had the mens rea requisite
for the offence of torture include (1)the nature and duration of the beatings; (2) the
implements used by the perpetrators to inflict suffering; (3) the number of persons
attacking individual victims, the verbal threats and abuse occurring simultaneously with
the beatings; and (4) the threatening atmosphere in which the victims were detained as
they were beaten.390

The evidence did not allow the Trial Chamber to distinguish between beatings
that were inflicted with a specific purpose – which is required to establish the crime of
torture - and beatings that may have been inflicted for reasons of pure cruelty, but not
with a specific purpose. Consequently, the Trial Chamber found in dubio pro reo that the

385
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 237-38; Prosecutor
v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 514; Prosecutor v Haridanaj et
al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 417
386
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 238; Prosecutor v.
Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 515
387
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 239; Prosecutor v.
Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 679
388
Prosecutor v Haridanaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 418
389
Prosecutor v Haridanaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 418
390
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 531

86
specific purpose necessary for torture had not been established beyond reasonable
doubt391.

Whether the perpetrator had a different motivation is irrelevant provided that he

acted with the requisite intent. Further, the act or omission must have been carried out
with a specific purpose. This includes, albeit not exhaustively, the purpose to obtain
information or a confession, to punish, intimidate or coerce the victim or a third person,
or to discriminate, on any ground, against the victim or a third person. The prohibited
purpose need not be the sole or the main purpose of the act or omission in question. 392

public official

It is not required that the crime of torture be committed by a public official or, in
the case of a plurality of perpetrators, that at least one of the persons involved in the
torture process be a public official. 393

Article 4—genocide

1. The International Tribunal shall have the power to prosecute persons committing
genocide as defined in paragraph 2 of this article or of committing any of the other
acts enumerated in paragraph 3 of this article.
2. Genocide means any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
(a) genocide;
(b) conspiracy to commit genocide;
(c) direct and public incitement to commit genocide;
(d) attempt to commit genocide;
(e) complicity in genocide.

391
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 21
392
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 515
393
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 284; Prosecutor v
Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 240; Prosecutor v. Mrkši et al.,No.
IT-95-13/1-T, Judgement (27 September 2007) at para 515

87
 actus reus

destruction

The Genocide Convention, and customary international law in general, prohibit

only the physical or biological destruction of a human group. An enterprise attacking
only the cultural or sociological characteristics of a human group in order to annihilate
these elements which give to that group its own identity distinct from the rest of the
community would not fall under the definition of genocide.” 394

The term "destroy" in the genocide definition can encompass the forcible transfer
of a population.395 The physical or biological destruction of the group is the likely
outcome of a forcible transfer of the population when this transfer is conducted in such a
way that the group can no longer reconstitute itself – particularly when it involves the
separation of its members. 396

While forcible transfer does not in and of itself constitute a genocidal act, it is a
relevant consideration as part of the overall factual assessment and could be an additional
means by which to ensure the physical destruction of the protected group. 397

In the absence of findings of any long-term consequences of the forcible transfer

operation on the Zepa population and the Bosnian Muslim population of Eastern BiH in
general and of a link between the circumstances of the transfer operation in Zepa and the
physical destruction of the protected group as a whole, no reasonable trial chamber could
have found that the Bosnian Muslims forcibly transferred from Zepa suffered serious
mental harm within the meaning of Article 4(2)(b) of the Statute. 398

Failure to provide adequate accommodation, shelter, food, water, medical care, or

hygienic sanitation facilities will not ordinarily constitute the actus reus of genocide if
the deprivation is not so severe as to contribute to the destruction of the group. 399

When more than one group is targeted, the elements of the crime of genocide
must be considered in relation to each group separately. 400

killing

The actus reus and mens rea required for ‘killing’ in subparagraph 4(2)(a) of the
Statute are identical to those controlling ‘wilful killing’ under article 2 and murder under
articles 3 and 5.401
394
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 25
395
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 665
396
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 666
397
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 209
398
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 217
399
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 863
400
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 541

88
 The required elements are satisfied where (i) the victim is dead; (ii) the death was
caused by an act or omission of the accused, or of a person or persons for whose acts or
omissions the accused bears criminal responsibility; and (iii) the act was done, or the
omission was made, by the accused, or a person or persons for whose acts or omissions
he bears criminal responsibility, with an intention:to kill; or to inflict grievous bodily
harm or serious injury, in the reasonable knowledge that such act or omission was likely
to cause death.402
serious physical harm

The actus reus of serious bodily harm was satisfied by evidence of severe non-
fatal physical violence, including rape, which left the victims with serious injuries. 403

The trauma and wounds suffered by those individuals who managed to survive the
mass executions constitutes serious bodily and mental harm. 404

Causing serious bodily harm’ is understood to mean, inter alia, acts of torture,
inhumane or degrading treatment, sexual violence including rape, interrogations
combined with beatings, threats of death, and harm that damages health or causes
disfigurement or serious injury to members of the targeted national, ethnic, racial or
religious group.405

Serious bodily or mental harm must be of such a serious nature as to contribute or

tend to contribute to the destruction of all or part of the group; although it need not be
permanent or irreversible, it must go beyond temporary unhappiness, embarrassment or
humiliation and inflict grave and long-term disadvantage to a person's ability to lead a
normal and constructive life. 406

There is no additional requirement that the serious bodily or mental harm to

members of the group be of such serious nature as to threaten the destruction of the group
in whole or in part. The degree of threat to the group’s destruction may, however, be
considered as a measure of the seriousness of the bodily or mental harm. 407

Acts of beating and interrogating detainees over four days, escorting them at
gunpoint, and providing them limited food, while infliction of serious bodily harm, was
not of such a serious nature as to contribute, or tend to contribute, to the destruction of
the protected groups to constitute the actus reus of genocide. 408

401
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at paras 381, 689.
402
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at paras 381, 689
403
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 37
404
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 647
405
Prosecutor v Brdjanin, No. IT-99-36-T, Judgement (1 September 2004) at para 690.
406
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 201; Prosecutor v Karadzic,
No. IT-95-5/18-T, Judgement (24 March 2016) at para. 543
407
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 544
408
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3450

89
 The harm need not be permanent or irremediable, but needs to be serious. 409

The harm must be inflicted intentionally. 410

While forcible transfer does not of itself constitute an act of genocide, depending
on the circumstances of a given case, it may cause such serious bodily or mental harm as
to constitute an act of genocide under Article 4(2)(b). 411

Article 4(2)(b) refers to an intentional act or omission which causes serious bodily
or mental harm to members of the protected group and requires proof of a result. 412

serious mental harm

Threats of death and knowledge of impending death have been accepted as

amounting to serious mental harm under Article 4 of the Statute.413

Serious mental harm must be lasting, but need not be permanent and
irremediable. 414

The suffering of men separated at Potocari or detained after their surrender or

capture from the column of men leaving Srebrenica, knowing they were likely to be
killed, constituted serious bodily and mental harm as an actus reus of genocide. It was of
such a nature as to contribute or tend to contribute to the destruction of the group in that
their suffering prevented these members from leading a normal and constructive life. 415

The suffering endured by the Bosnian Muslim men prior to being killed
constituted serious mental harm as a separate genocidal act from killing. 416

Mental harm suffered by the survivors of the killings qualified as an act of

genocide. 417

The mental harm suffered by the men who survived arose not only from their
being subjected to the killing operation itself, but also from having subsequently
experienced the horrific circumstances of their escapes.418

409
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para 516; Prosecutor v Brdjanin
No. IT-99-36-T, Judgement (1 September 2004) para 690;
410
Prosecutor v Krstic No. IT-98-33-T, Judgement, (2 August 2001) at para 513 .
411
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 545
412
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 543
413
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 206
414
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 203
415
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at paras. 754-55
416
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 206
417
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 207
418
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 595

90
 The suffering of women separated from their husbands or sons at Potocari also
constituted serious mental harm as an actus reus of genocide.419

The Appeals Chamber is also not persuaded that the United States of America's
"understanding" of serious mental harm as "the permanent impairment of the mental
faculties of members of the group through drugs, torture, or similar techniques",
expressed in its instrument of accession to the Genocide Convention,is correct under
customary intemational law. 420

Nothing in the Tribunal's jurisprudence or in the Genocide Convention provides

that a forcible transfer operation may only support a finding of genocide if the displaced
population is transferred to concentration camps or places of execution. A forcible
transfer operation may still ensure the physical destruction of the protected group by
causing serious mental harm or leading to conditions of life calculated to bring about the
group's physical destruction, even if the group members are not transferred to places of
execution. 421

The painful separation process from their male family members, the fear and
uncertainty as to their fate and that of their detained male relatives, the appalling
conditions of the journey, the continuation of their profound trauma, as well as the
financial and emotional difficulties they faced in their drastically changed lives following
the forced transfer were proper considerations which supported the conclusion that the
women, children, and elderly who were forcibly transferred from Srebrenica suffered
serious mental harm. 422

The Trial Chamber was entitled to take into account the inability and fears of the
group to return to their former homes, and the post transfer quality of their life in making
an assessment that those who had been forcibly transferred suffered serious mental
harm. 423

Serious mental harm need not result from acts causing permanent or irremediable
mental impairment. It suffices that the harmful conduct caused grave and long-term
disadvantage to the ability of the members of the protected group to lead a normal and
constructive life so as to threaten the physical destruction of the group in whole or in
part.424

unbearable conditions of life

419
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 756
420
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 204
421
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 209
422
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 210
423
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 211
424
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 212

91
 The acts punishable under Article 4(2)(c) are construed as “the methods of
destruction by which the perpetrator does not immediately kill the members of the group,
but which, ultimately, seek their physical destruction”. 425

The destruction of the social structure of the community and the inability of those
who were forcibly transferred to reconstruct their lives did not constitute the conditions
of life deliberately imposed in order to bring about the physical destruction of the group
as required by Article 4, when considered apart from the killings. 426

The actus reus of creating conditions of life designed to bring about the physical
destruction of the group was satisfied by conditions of detention including severe
overcrowding, deprivation of nourishment, and lack of access to medical care. 427

The acts envisaged by this sub-paragraph include, but are not limited to, methods
of destruction apart from direct killings such as subjecting the group to a subsistence diet,
systematic expulsion from homes and denial of the right to medical services. 428

The underlying acts covered by Article 4(2)(c) are methods of destruction that do
not immediately kill the members of the group, but ultimately seek their physical
destruction. Examples of such acts punishable under Article 4(2)(c) include, inter alia,
subjecting the group to a subsistence diet; failing to provide adequate medical care;
systematically expelling members of the group from their homes; and generally creating
circumstances that would lead to a slow death such as the lack of proper food, water,
shelter, clothing, sanitation, or subjecting members of the group to excessive work or
physical exertion.429

Unlike Articles 4(2)(a) and (b), Article 4(2)(c) does not require proof of a result
such as the ultimate physical destruction of the group in whole or in part. However,
Article 4(2)(c) applies only to acts calculated to cause a group's physical or biological
destruction deliberately and, as such, these acts must be clearly distinguished from those
acts designed to bring about the mere dissolution of the group. Such acts, which have
been referred to as "cultural genocide", were excluded from the Genocide Convention.
For example, the forcible transfer of a group or part of a group does not, by itself,
constitute a genocidal act, although it can be an additional means by which to ensure the
physical destruction of a group.430

Contrary to the acts prohibited by Articles 4(2)(a) and 4(2)(b), Article 4(2)(c)
does not require proof of that a result was attained; as such, it does not require proof that
the conditions actually led to death or serious bodily or mental harm of members of the

425
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 546
426
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 854
427
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 49
428
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para 517; Prosecutor v
Brdjanin, No. IT-99-36-T, Judgement(1 September 2004) at para 691.
429
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 225-26
430
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 225-26

92
protected group. When such “a result is achieved, the proper charge will be paragraphs
(a) or (b)” of Article 4.431

Conviction under sub-paragraph 4(2)(c) does not require proof of the physical
destruction in whole or in part of the targeted group.432

Killings may not be considered, under Article 4(2)( c) of the Statute, as acts
resulting in the deliberate infliction of conditions of life calculated to bring about the
protected group's physical destruction. 433

When the same prohibited acts are charged under both Article 4(2)(b) and Article
4(2)(c), a chamber will consider whether these alleged acts amount to conditions
calculated to bring about physical destruction only when it does not find them to amount
to ‘causing serious bodily or mental harm’. 434

Examples of acts under Article 4(2)(c) include, but are not limited to, subjecting
the group to a subsistence diet; failing to provide adequate medical care; systematically
expelling members of the group from their homes; and generally creating circumstances
that would lead to a slow death such as the lack of proper food, water, shelter, clothing,
sanitation, or subjecting members of the group to excessive work or physical exertion. 435

The different categories of genocidal acts proscribed in Article 4(2) of the Statute
correspond to and aim to capture different methods of physical destruction of a protected
group: subparagraphs (a) and (b) of Article 4(2) of the Statute proscribe acts causing a
specific result, which must be established by the evidence, i.e., killings and serious bodily
or mental harm respectively; on the other hand, subparagraph (c) of the same Article
purports to capture those methods of destruction that do not immediately kill the
members of the group, but which, ultimately, seek their physical destruction. 436

Trial Chamber erred in combining consideration of killings with other methods of

physical destruction when considering whether the actus reus of genocide under Article
4(2)(c) was satisfied. 437

The destruction of historical, cultural and religious heritage cannot be considered

to constitute the deliberate infliction of conditions of life calculated to bring about the
physical destruction of the group. The Trial Chamber committed a legal error in
considering the destruction of mosques in Srebrenica and Zepa under Article 4(2)(c). 438

The forcible transfer operations in Srebrenica and Zepa, viewed separately from

431
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 546
432
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para 517
433
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 227
434
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3453
435
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 547
436
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 228
437
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 229
438
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 230

93
the killings of Srebrenica's male population, were not conducted under circumstances
calculated to result in the total or partial physical destruction of the protected group. 439

There is no doubt that the Bosnian Muslims who were forced to abandon their
houses and belongings in Srebrenica and Zepa and then endured a painful process of
separation from their ancestral land and transferred to other parts of BiH were
traumatised as a result of the transfer and have since faced harsh realities in their new
lives, both financially and psychologically. The record, however, is devoid of any
evidence that the forcible transfers, if they are analysed - as they must - separately
from the killing operation and the destruction of mosques in Srebrenica and Zepa, were
"carried out with a view to the destruction of the group, as distinct from its removal from
the region" at issue (i.e., the enclaves of Srebrenica and Zepa). 440

The Trial Chamber's statement that the forcible transfer and killing operations met
the threshold of Article 4(2)(c) of the Statute because they resulted in conditions of life
aimed at destroying this Bosnian Muslim community and preventing the reconstitution of
the group in this area" reflects an erroneous understanding of the term "physical
destruction" as used in Article 4(2)(c).441

The actus reus of Article 4(2)(c) covers methods of physical destruction, other
than killing, whereby the perpetrator ultimately seeks the death of the members of the
group. There is no evidence on the record that the forcible transfer operations were
carried out in such a way so as to lead to the ultimate death of the displaced Bosnian
Muslims. 442

The destruction of the social structure of the community and the inability of those
who were forcibly transferred to reconstruct their lives are not the kinds of conditions
intended to be prohibited by Article 4(2)(c).443

Article 4(2)(c) applies only to acts that are deliberately calculated to cause a
group’s physical destruction and, as such, these acts must be clearly distinguished from
those acts designed to bring about the dissolution of the group.444

The forcible transfer operations did not deliberately subject the protected group to
conditions of life calculated to destroy it physically. 445

In the absence of direct evidence of whether the conditions of life imposed on the
group were deliberately calculated to bring about its physical destruction, a chamber can
be guided by the objective probability of these conditions leading to the physical
destruction of the group in part. The actual nature of the conditions of life, the length of
439
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
440
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
441
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 670
442
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
443
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 233
444
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 547
445
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 234

94
time that members of the group were subjected to them, and the characteristics of the
group such as its vulnerability are illustrative factors to be considered in evaluating the
criterion of probability. 446

The persecutory and severe mistreatment demonstrated by the evidence and

reflected in the Trial Chamber's findings did not compel it to find, as the only reasonable
inference, the existence of the deliberate infliction of conditions of life calculated to bring
about the physical destruction of the Bosnian Muslim and Bosnian Croat groups as
such.447

preventing births

The consequence of the forcible transfer operation cannot be said to have

prevented births among the group such as to constitute the actus reus of genocide. 448

complicity

Complicity in genocide requires that genocide was committed.449

Complicity requires a showing of genocidal intent.450

As to the distinction between genocide under article 4(3)(a) and 4(3)(e), generally
the former is concerned with principal offenders, including but not limited to the physical
perpetrators and to those liable pursuant to the theory of JCE, whereas the latter concerns
accomplices to genocide – i.e. those who associate themselves in the crime of genocide
committed by another.451

The relationship between article 4(3) and article 7(1) is such that certain heads of
criminal responsibility in article 4(3) overlap with those in article 7(1): by incorporating
article 4(3) in the Statute, the drafters ensured that the Tribunal had jurisdiction over all
forms of participation in genocide prohibited under customary international law, though
this had the effect of duplicating heads of responsibility otherwise provided for in article
7(1).452

Lack of accused’s awareness of mass murders meant that no reasonable trier of

fact could find that he knew of the genocidal intent of the perpetrators, despite knowledge
of forcible transfers and opportunistic killings in Srebrenica. 453

446
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 548
447
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 709
448
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 767
449
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 638
450
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 142; Prosecutor v Krajisnik,
No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 865
451
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 727.
452
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 726; Prosecutor v Krstic,
No. IT-98-33-A, Judgement on Appeal (19 April 2004) at para 138.
453
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 123

95
 Complicity by command responsibility would be more appropriately pleaded
under genocide, rather than complicity. However, the accused was informed, since the
beginning of the case of the Prosecution’s intention to plead superior responsibility
context of the crime of genocide. The Trial Chamber therefore deems it acceptable to
consider the charge.454

Complicity in genocide under article 4(3)(e) can consist of aiding and abetting
genocide, thought there may be other acts which are not strictly aiding and abetting but
which could amount to complicity: the terms ‘complicity’ and ‘accomplice’ may
encompass conduct broader that aiding and abetting.455

Complicity in genocide, where it consists of aiding and abetting genocide, does

not require proof that the accomplice had the specific intent to destroy, in whole or in
part, a protected group.456 (Note that the Brdjanin Trial Chamber, following the Krstic
Appeals Chamber upon which it relied, took no position on the mens rea requirement for
the offence of complicity where the offence strikes broader than aiding and abetting). 457

Where the offence consists in aiding and abetting the principal perpetrator, the
prosecution must prove ‘that an accused knew that his own acts assisted in the
commission of genocide by the principal offender and was aware of the principal
offender’s state of mind; it need not show that an accused shared the specific intent of the
principal offender’. 458

conspiracy

agreement

Conspiracy to commit genocide is defined as an agreement between two or more

persons to commit the crime of genocide. 459

The actus reus of the criminal act of conspiracy to commit genocide is the act of
entering into an agreement to commit genocide. 460

Genocide and conspiracy to commit genocide are distinct crimes. While the mens
rea for the two crimes is identical - i.e., "the intent to destroy in whole or in part a
national, ethnical, racial or religious group as such, the actus reus is different. The crime

454
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 685
455
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 729; Prosecutor v Krstic,
No. IT-98-33-A, Judgement (19 April 2004) at para 139, Prosecutor v. Tadic, No. IT-94-1-A, Judgement
(15 July 1999) at para 220
456
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para 142; Prosecutor v Brdjanin No.
IT-99-36-T Judgement (1 September 2004) at para 730.
457
See Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at fn 1777.
458
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 730
459
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184
460
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184

96
of genocide requires the commission of one of the enumerated acts in Article 4(2) of the
Statute, while the crime of conspiracy to commit genocide requires the act of entering
into an agreement to commit genocide.461

The evidence must establish beyond a reasonable doubt a concerted agreement to

act and not merely similar conduct or the mere showing of a negotiation in progress. 462

inference

While the actus reus of conspiracy to commit genocide can be proved by evidence
of meetings to plan genocide, it can also be inferred from other evidence. In particular, a
concerted agreement to commit genocide may be inferred from the conduct of the
conspirators.463

Conspiracy to commit genocide can be inferred from coordinated actions by

individuals who have a common purpose and are acting within a unified framework. 464

An agreement may be inferred from the conduct of the conspirators, if it is the

only reasonable conclusion to be drawn from the evidence. 465

mens rea

To be found guilty, one must possess the same specific intent required for the
commission of genocide, namely, the intent to destroy, in whole or in part, a national,
ethnic, racial or religious group, as such. 466

continuing offence

Conspiracy is a continuing crime and an individual can join a conspiracy after the
initial agreement is concluded . 467

An individual can join a conspiracy at any time before the crime is completed. 468

inchoate offence

Conspiracy is an inchoate crime and it is not required that a genocide actually was
committed.469

461
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 582
462
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 786
463
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 553; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 587
464
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184
465
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 786
466
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1184;
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 787
467
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para 876
468
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 785

97
 withdrawal

Withdrawal from a conspiracy does not exonerate a conspirator unless he

produces affirmative and contemporaneous evidence of his withdrawal. 470

mens rea

as such

The words “as such” underscore that something more than discriminatory intent is
required for genocide, that the intent “must be to destroy the group as a separate and
distinct entity” and that the ultimate victim of the crime of genocide is the group. 471

factors

Absent direct evidence of genocidal intent, the scale of the atrocities committed is
one of several factors relevant to determining genocidal intent.472

The intent to destroy a group as such is circumscribed by the area of the

perpetrators' activity and control and the extent of the perpetrators’ reach. 473

Evidence demonstrating ethnic bias, however reprehensible, does not necessarily

prove genocidal intent.474

The use of derogatory language such as the term “balija” is in no way

determinative of a specific intent to commit genocide, though it is relevant to it.475

The Trial Chamber acted within the bounds of the law and its discretion when
contrasting the number of Bosnian Muslims and Bosnian Croats displaced versus those
who were victims of conduct falling within Article 4(2) in assessing whether genocidal
intent had been established. 476

Indications of genocidal intent are “rarely overt”, and thus intent must often be
inferred on the basis of the totality of the evidence, taking into account such factors as the

469
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 582
470
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 785
471
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1177
472
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 727
473
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 727
474
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 52; Prosecutor v Karadzic,
No. MICT-13-55-A, Judgement (20 March 2019) at para. 745
475
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at paras. 1177,
2086
476
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 728

98
scale of atrocities as well as the systematic targeting of victims on account of their
membership in a particular group.477

inferences

Where proof of state of mind is based on inference, it must be the only reasonable
inference available on the evidence. This test is even more stringently applied when
inferring genocidal intent.478

Proof of the mental state with respect to the commission of the underlying act can
serve as evidence from which the fact-finder may draw the further inference that the
accused possessed the specific intent to destroy. 479

Proof of specific intent, may, in the absence of direct explicit evidence, be

inferred from a number of facts and circumstances, such as (1) the general context, (2)
the perpetration of other culpable acts systematically directed against the same group, (3)
the scale of atrocities committed, (4) the systematic targeting of victims on account of
their membership of a particular group, or (5) the repetition of destructive and
discriminatory acts,480 or evidence of a plan or policy.481

Intent to destroy by the physical perpetrators was inferred from the intensity of
the prohibited acts, their widespread and discriminatory nature, and the fact that many
were perpetrated by the same individuals or units. 482

The inference that a particular atrocity was motivated by genocidal intent may be
drawn, moreover, even where the individuals to whom the intent is attributable are not
precisely identified.483

The implication of multiple levels of military command in a genocidal operation

can evidence the systematic nature of the culpable acts and an organised plan of
destruction, which may be relied upon to infer genocidal intent.484

insufficient evidence

The fact that more members of a targeted group could have been killed, but were
not, may indicate a lack of the dolus specialis required to prove such intent. 485

477
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 5825
478
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 576
479
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 20
480
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 47.
481
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 80; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 246
482
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at paras.3514, 3515, 3519, 3524
483
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 34
484
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 252
485
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 727

99
 There was insufficient evidence indicating why the Bosnian Muslims in each of
the municipalities or the municipalities themselves had a special significance or were
emblematic in relation to the protected group as a whole. As a result it was not the only
reasonable inference that the physical perpetrators possessed the intent to destroy a
substantial part of the Bosnian Muslims in those municipalities. 486

In light of the fact that the forcible transfer operation of Zepa's Bosnian Muslims
had been completed before the three Zepa leaders were detained and killed and in the
absence of any findings as to whether or how the loss of these three prominent figures
affected the ability of the Bosnian Muslims from Zepa to survive in the post-transfer
period, the inference of genocidal intent was not the only reasonable inference that could
be drawn from the record.487

Despite inflammatory speeches and the commission of serious crimes, it could not
be said that the only reasonable inference that can be drawn from the evidence is that the
crime of genocide formed part of the JCE’s objectives. 488

A reasonable inference is that the accused’s blind dedication to the Security

Service led him to doggedly pursue the efficient execution of his assigned tasks in
this operation, despite its murderous nature and the genocidal aim of his superiors. In
these circumstances the stringent test for specific intent is not met and the Trial Chamber
therefore finds that the accused did not participate in the JCE to Murder with genocidal
intent.489

Where accused removed his men from area of murder operation and wished to
open a corridor for Muslim men to pass, this indicated that he did not have genocidal
intent.490

The Trial Chamber did not err in considering the opening of a corridor to be a
unique departure from the genocidal plan promulgated by the VRS commanders rather
than a factor showing absence of genocidal intent on behalf of the BSF more generally. 491

Where accused was aware of murderous intent of VRS soldiers in Srebrenica,

there was no evidence that he was aware of their specific intent to destroy the Muslims of
Eastern Bosnia as such. Therefore, he could not be found guilty of aiding and abetting
genocide. 492

486
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3535
487
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 269
488
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 4237
489
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1414
490
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1588
491
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 459; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 251
492
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2088

100
 Trial Chamber unable to determine that vast violations of international
humanitarian law in Bosnia were committed by perpetrators possessing the intent to
destroy a substantial part of the Bosnian Muslim group.493

related crimes

The evidence could reasonably be seen as consistent with the conclusion that the
accused merely intended to displace, but not to destroy, the Bosnian Muslim group. To be
sure, he was willing to employ means to this end that ensured that some members of the
group would be killed and others brutalised, and this was surely criminal – but not
necessarily genocidal, absent evidence proving beyond a reasonable doubt that he sought
the destruction of the group as such. 494

The fact that the forcible transfer operation does not constitute, in and of itself, a
genocidal act does not preclude a Trial Chamber from relying on it as evidence of the
intentions of those individuals involved. 495

A trial chamber may rely on the act of forcible transfer as evidence of genocidal
intent, regardless of the destination of the transfer. 496

saving victims

Evidence of limited and selective assistance to a few individuals does not

preclude a trier of fact from reasonably finding the requisite intent to commit genocide. 497

specific intent

As a specific intent offense, the crime of genocide requires proof of intent to

commit the underlying act and proof of intent to destroy the targeted group, in whole or
in part.498

The specific intent requires that the perpetrator seeks to achieve the destruction, in
whole or in part, of a national, ethnical, racial or religious group, as such. However, the
existence of a plan or policy is not a legal requirement of the crime. It is not sufficient
that the perpetrator simply knew that the underlying crime would inevitably or likely
result in the destruction of the group. The destruction, in whole or in part, must be the
aim of the underlying crimes.499

There is a difference between motive and intent. An accused may have had a goal
of destroying a protected group, but it must be proven that he intended to achieve his
493
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 869
494
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 56
495
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 254
496
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 254
497
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 629
498
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 20
499
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 656

101
goal through particular actions, including killing and imposing of inhumane conditions of
life, which amounted to genocide.500 The existence of a personal motive does not
preclude the perpetrator from also having the specific intent to commit genocide. 501

A finding that the accused participated in the killing operation with the specific
intent to discriminate is not on its own sufficient to establish the specific intent for
genocide. 502

in whole or in part

The intent requirement of genocide is satisfied where evidence shows that the
alleged perpetrator intended to destroy at least a substantial part of the protected group. 503

The intent to destroy a group, even if only in part, means seeking to destroy a
distinct part of the group as opposed to an accumulation of isolated individuals within
it.504

The intent requirement in article 4 is satisfied where evidence shows that the
alleged perpetrator intended to destroy at least a substantial part of the selected group.
The determination of whether the targeted group is substantial enough to meet this
requirement may involve a number of considerations, including: the numeric size of the
targeted part of the group (both absolute and relative); the prominence within the group
of the targeted part of the group, and the area of the perpetrators’ activity and control as
well as the possible extent of their reach. 505

Although the substantiality requirement is textually indicated in the provision

describing the specific intent required for genocide, i.e. the requirement that there must
exist an “intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such”, it is the objective, contextual characteristics of the targeted part of the
group, including, inter alia, its numeric size relative to the total size of the group, that
form the basis for determining whether the targeted part of the group is substantial. 506

Despite the fact that the Bosnian Muslims of Srebrenica constituted only 2 % of
the Bosnian Muslim population, in light of the significant strategic importance of
Srebrenica due to its close geographical proximity to Serbia and its status as a refuge to
Bosnian Muslims, the Bosnian Muslims in Srebrenica constituted a substantial part of the

500
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 45
501
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 49.
502
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1177
503
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 12
504
Prosecutor v Krstic, No. IT-98-33-T Judgement (2 August 2001) at at para 590, Prosecutor v. Staki ,
No. IT-97-24-T, Judgement, (29 October 2003) at at para 524; Prosecutor v Brdjanin No. IT-99-36-T
Judgement (1 September 2004) at para 700.
505
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at paras 12-14; Prosecutor v Brdjanin
No. IT-99-36-T Judgement (1 September 2004) at paras 701-2.
506
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 422

102
Bosnian Muslim population of Bosnia-Herzegovina.507

Genocidal intent may consist of the desired destruction of a more limited number
of persons selected for the impact that their disappearance would have on the survival of
the group as such.508

If a specific part of the group is emblematic of the overall group, or is essential to

its survival, that may support a finding that the part qualifies as substantial within the
meaning of Article 4. 509

The selective targeting of leading figures of a community may amount to

genocide and may be indicative of genocidal intent.510

Recognising that genocide may be committed through the killings of only certain
prominent members of the group selected for the impact that their disappearance would
have on the survival of the group as such aims at ensuring that the protective scope of the
crime of genocide encompasses the entire group, not just its leaders. 511

No conviction for genocide has ever been entered by the Tribunal, or other
international criminal tribunals, on the basis of the selective targeting of a protected
group's leadership. 512

For a finding of genocide it suffices that the leaders were selected for the impact
that their disappearance would have on the survival of the group as such. Genocide may
be committed even if not all leaders of a group are killed - even though targeting the
totality of the leadership per se may be a strong indication of genocide regardless of the
actual numbers killed. 513

A finding that Zepa's Bosnian Muslims lost three of their leaders does not suffice
to infer that those civilians were affected by the loss of their leaders in a way that would
threaten or tend to contribute to their physical destruction as a group. 514

plan or policy

A plan or policy is not a legal ingredient of the crime of genocide. 515

507
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3554
508
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 261
509
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 261
510
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 263
511
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 263
512
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 781
513
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 264
514
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 267
515
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 431; Prosecutor v
Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 830

103
 The existence of a plan or policy is not a legal ingredient of the crime of
genocide. However, in the context of proving specific intent, the existence of a plan or
policy may become an important factor. The evidence may be consistent with the
existence of a plan or policy, or may even show such existence, and the existence of a
plan or policy may facilitate proof of the crime. 516

protected group

The protected group cannot be defined negatively, such as “all non-Serbs”, but the
elements of genocide must be separately considered in relation to each targeted group,
such as Bosnian Muslims and Bosnian Croats.517

There is nothing in the definition of genocide prohibiting, a conviction where the

perpetrator killed detained military personnel belonging to a protected group because of
their membership in that group.518

A national, ethnical, racial or religious group is identified by using as a criterion

the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of
its perceived national, ethnical, racial or religious characteristics. 519

The correct determination of the relevant protected group has to be made on a

case-by-case basis, consulting both objective and subjective criteria. This is so because
subjective criteria alone may not be sufficient to determine the group targeted for
destruction and protected by the Genocide Convention, for the reason that the acts
identified in subparagraphs (a) to (e) of Article 2(4) must in fact be directed against
“members of the group”. 520

Because evidence of intent to destroy may be inferred from an accused’s actions

or utterances vis-à-vis the targeted group, it is impossible to establish with certainty
whether the accused possessed the necessary intent to destroy if the target group itself has
not been defined. 521

Article 5—crimes against humanity

The International Tribunal shall have the power to prosecute persons responsible
for the following crimes when committed in armed conflict, whether international or
internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
516
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 48; Prosecutor v Krstic, No. IT-
98-33-A, Judgement (19 April 2004) at para. 225
517
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 28
518
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 226
519
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 667
520
Prosecutor v Brdjanin No. IT-99-36-T Judgement (1 September 2004) at para 684
521
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 18

104
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.

armed conflict

The crimes must be committed in armed conflict, whether international or internal

in character.522

It is not necessary that a state of armed conflict exist in the State of the former
Yugoslavia in which the crime was committed. The prosecution can succeed in
prosecuting a crime against humanity committed in Vojvodina by proving that the crime
occurred while an armed conflict in Croatia and/or Bosnia was in progress. 523

A crime is part of the armed conflict even if no actual combat is taking place
there, so long as there is combat on the territory of the States involved in the conflict. 524

The “armed conflict” requirement is a purely jurisdictional prerequisite which is

satisfied by proof that there was an armed conflict and that objectively the acts of the
accused are linked geographically as well as temporally with the armed conflict. 525

No nexus must be shown under Article 5 between the armed conflict and the acts
of the accused.526

An armed conflict and/or an occupation took place between October 1992 and
April 1994 in the municipalities relevant to the Indictment. The widespread and
systematic attack itself commenced in May 1992, that is, several months prior to the
outbreak of the armed conflict, and continued until April 1994. However, inasmuch as
acts committed between May and September 1992 did not occur during an armed
conflict, the prerequisite for the exercise of the Tribunal‟ s jurisdiction to adjudicate

522
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para 142; Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement
(17 January 2005) at para.542; Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27
September 2006) at para. 704; Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions
Challenging Jurisdiction (19 March 2007) at para. 45; Prosecutor v. Milosevic, No. IT-98-29/1-T,
Judgment (12 December 2007) at para. 915
523
Prosecutor v Seselj, No. IT-03-67-AR72.1, Decision on the Interlocutory Appeal Concerning
Jurisdiction (31 August 2004); Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at
para.
524
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 704
525
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 83; Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 915; Prosecutor v Seselj, No. MICT-
16-99-A, Judgement (11 April 2018) at para. 75
526
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction
(19 March 2007) at para. 31

105
crimes against humanity committed during that time has not been satisfied.527

attack

elements

In order to amount to a crime against humanity, the acts of an accused must be

part of a widespread or systematic attack directed against any civilian population. This
phrase encompasses the following elements: (i) there must be an attack; (ii) the attack
must be widespread or systematic; (iii) the attack must be directed against any civilian
population; (iv) the acts of the perpetrator must be part of the attack; and (v) the
perpetrator must know that his acts constitute part of a pattern of widespread or
systematic crimes directed against a civilian population and know that his acts fit into
such a pattern.528

existence

The “attack” is a course of conduct involving the commission of acts of violence.

It is not limited to the use of armed force; it encompasses any mistreatment of the civilian
population and can precede, outlast or run parallel to the armed conflict. 529

The acts of the perpetrator must be part of the attack on the civilian population. 530

When assessing whether an attack against a particular civilian population occurred,

it is not relevant whether the other side also committed atrocities against its opponent’s
civilian population. Evidence of this nature is not relevant unless it tends to prove or
disprove any of the allegations made in the Indictment, particularly to refute the
allegation that there was a widespread or systematic attack against a civilian population.
Such an allegation cannot be disproved by a submission that the other side is responsible
for starting the hostilities. 531

nexus

527
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 paras. 652-53
528
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.541; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 181; Prosecutor v Kunarac et al,
No. IT-96-23&23/1, Judgement (12 June 2002) at para. 85
529
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.543; Prosecutor
v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 666; Prosecutor v Limaj et
al, No. IT-03-66-T, Judgement (30 November 2005) at para. 182; Prosecutor v Krajisnik, No. IT-00-39-T,
Judgement and Sentence (27 September 2006) at para. 706; Prosecutor v Kunarac et al, No. IT-96-
23&23/1, Judgement (12 June 2002) at para. 86; Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11
April 2018) at para. 69
530
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 478
531
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 917

106
 Once the requirement of a widespread or systematic attack against a civilian
population is fulfilled, there must be a nexus between the acts of the accused and the
attack itself. 532

Such a nexus consists of two elements: (i) the commission of an act which, by its
nature or consequences, is objectively part of the attack; coupled with (ii) knowledge on
the part of the accused that there is an attack on the civilian population and that his act is
part thereof. Thus, to convict an accused of crimes against humanity, it must be proven
that his acts were related to a widespread or systematic attack against a civilian
population and that he knew that his acts were so related. Such an assessment will be
made on a case-by-case basis. 533

The act or acts must not be isolated or random; they may not be so far removed
from the attack that, having considered the context and circumstances in which it
occurred, the act or acts cannot reasonably be said to have been part of the attack. The
nexus between the crime and the attack must demonstrate that objectively, it was part of
the attack; and that the accused knew that there is an attack on the civilian population and
that his act is part thereof.534

The required nexus between the acts of the perpetrator and the attack consists of
two elements: (i) the commission of an act which, by its nature and consequences, is
objectively part of the attack; together with (ii) knowledge on the part of the perpetrator
that there is an attack on the civilian population and that his act is part thereof. 535

The nexus between the acts of extermination and the widespread and systematic
attack on a civilian population is fulfilled by an act which, by its nature or consequences,
is objectively part of the attack, coupled with knowledge on the part of the accused that
there is an attack on the civilian population and that his act is part thereof. 536

The acts of the accused do not necessarily have to be contemporaneous with the
attack on the civilian population to meet the nexus requirement.537

Where the perpetrators of the crimes knowingly directed their actions against
members of the Croatian forces (e.g., non-civilians), the Appeals Chamber found no
nexus between these acts and the widespread and systematic attacks committed against
the civilian population two days earlier within the same geographical area, by the same
perpetrators and under like sentiments of animosity towards the perceived enemy. 538

532
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 41
533
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 41
534
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.547; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 190; Prosecutor v Kunarac et al,
No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 100
535
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 918-919
536
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 570
537
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 41
538
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 42, 43

107
 While the acts of the perpetrator must be “part of” the attack against the civilian
population, they need not be committed in the midst of that attack. A crime “which is
committed before or after the main attack against the civilian population or away from it
could still, if sufficiently connected, be part of that attack.539

The crime must not, however, be an isolated act. A crime would be regarded as an
’isolated act’ when it is so far removed from that attack that, having considered the
context and circumstances in which it was committed, it cannot reasonably be said to
have been part of the attack.” 540

If the other elements are established, the fact that the accused acted against the
victim for personal reasons does not exonerate him.541

widespread or systematic

“Widespread” refers to the cumulative effect of a series of inhumane acts or the

singular effect of an inhumane act of extraordinary magnitude. 542 “Widespread” refers to
the large-scale nature of the attack and the number of targeted persons. 543

“Systematic” refers to organised acts of violence and is often expressed through

patterns of crimes. 544 “Systematic” refers to the organized nature of the acts of violence
and the improbability of their random occurrence. 545

Only the attack, not the individual acts of the accused, need be widespread or
systematic.546 A single or limited number of acts may constitute a crime against
humanity, unless those acts are said to be isolated or random. 547

A Trial Chamber must first identify the population which is the object of the
attack and, in light of the means, methods, resources and result of the attack upon the
population, ascertain whether the attack was indeed widespread or systematic. 548

An attack against a civilian population may be classified as systematic even where

some members of that civilian population are not targeted.549

539
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 918-919
540
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 918-919
541
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 260.
542
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.544
543
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 183; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 57
544
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.544
545
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 183; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 57
546
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 189
547
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 94
548
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 95

108
 Factors to be considered to determine if an attack is “widespread or systematic”
are: the consequences of the attack upon the targeted population, the number of victims,
the nature of the acts, the possible participation of officials or authorities or any
identifiable patterns of crimes. Neither the attack nor the acts of the accused need to be
supported by a policy or plan.550

Proof of a policy or plan is relevant to whether there was a widespread or

systematic attack, but is not a requirement.551

Trial Chamber could not include crimes for which the KLA was not identified as
the perpetrators, or crimes committed for reasons pertaining to the victims personally,
rather than against them as members of the civilian population when determining whether
an attack was widespread or systematic. 552

Trial Chamber could not draw any conclusion on whether there was an attack on
the civilian population from the mere fact that many Serbian civilians left their home
during this period.553

Animosity among factions in Kosovo may have caused individuals belonging to

one faction to commit crimes against the other faction out of personal anger rather than in
a structured or organized manner.554

Crimes against Serbs and other minorities in Kosovo were not on such a scale or
frequency to conclude that there was an attack on the civilian population. Therefore,
accused could not be convicted of crime against humanity. 555

Crimes against Albanians in Kosovo were widespread and systematic. 556

The acts constituted a widespread attack inasmuch as they were committed

extensively – the acts were committed on the territory of eight BiH municipalities over a
period of two years, from May 1992 until April 1994 – and resulted in thousands of
victims. Moreover, these acts of violence were similar in every one of the municipalities
concerned and were carried on in an organised fashion by the military and political forces
of the HVO. For this reason, the attack was also systematic in nature 557
549
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 247
550
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.546; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 184; Prosecutor v Krstic, No. IT-
98-33-A, Judgement (19 April 2004) at para. 225; Prosecutor v Kunarac et al, No. IT-96-23&23/1,
Judgement (12 June 2002) at para. 95
551
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706;
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para 117
552
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 114
553
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 120
554
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 121
555
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 122
556
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 1598
557
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 646

109
 chapeau elements—mens rea

context

The relationship between the accused and the crimes/underlying offence must be
sufficiently direct or proximate such that the individual intended that the offence be
committed, inherent in four forms of responsibility provided in the Statute: commission,
planning, ordering, and instigating. Thus, the forms of responsibility without intent (ie
aid and abetting) are not CAH. Thus in order to convict for CAH, someone must have
knowledge of the context in which the crime/underlying offence occurred.558

As the civilian status of the victims is only a jurisdictional requirement and not an
element of the crime, the Chamber believes that it is sufficient for the perpetrator to have
been aware of the factual circumstances that established the status of the victim.559

details

Knowledge of certain events, not necessarily every individual attack, is sufficient

to warrant the conclusion that the perpetrator had notice of the wider context and nature
of the crimes. 560

discriminatory intent

Crimes against humanity do not require proof of a discriminatory intent. Such an

intent must be proved only for those crimes for which it is an express requirement, that is
the various types of persecution falling under Article 5(h) of the Statute. 561

elements

The mens rea for crimes against humanity requires proof of the accused’s: (i)
intent to commit the underlying offence or offences with which he is charged; (ii)
knowledge that there is an attack against the civilian population; and (iii) knowledge that
his acts comprise part of that attack.562 The mens rea requirement, however, does not
entail knowledge of the details of the attack. Furthermore, the accused need not share the
purpose or the goal behind the attack.563

558
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 158.
559
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 460
560
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 929
561
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 23
562
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.548; Prosecutor
v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 100; Prosecutor v Kunarac
et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 101
563
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.548; Prosecutor
v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706; Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 929

110
 The perpetrator must know that there is a widespread or systematic attack on the
civilian population and know that his acts comprise part of that attack. 564

multiple motivations

The perpetrator may act for purely personal reasons, so long as he knows that
there is a widespread or systematic attack against the civilian population and that his act
is part of that attack.565

Evidence that he committed the acts for purely personal reasons could be
indicative of a rebuttable assumption that he was not aware that his acts were part of that
attack.566

Comment of the accused that “100 should be killed for every 1” could not be
determined to mean a reprisal quota against civilians or killings in combat situations.
The principle of in dubio pro reo must be applied to favor the interpretation favoring the
accused. 567

recklessness

The mens rea for attacks on civilians incorporates the concept of recklessness, but
not mere negligence. 568

The accused must have known of the attack against the civilian population and
that his acts comprised part of the attack, or at least must have taken the risk that his acts
were part thereof.569

It is error to define the mens rea of crimes against humanity in terms of an

accused “knowingly taking the risk that his acts was part of the overall attack. The
accused must know that there is an attack on the civilian population and that his acts form
part of that attack.570

The widespread character and nature of the crimes inevitably created an

awareness in the principal perpetrators that an attack as described above existed and that

564
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 389; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 479
565
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706;
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 103; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 75
566
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 103
567
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 691
568
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Preliminary Motions (29 August 2005) at para. 22
569
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 271
570
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Prosecution’s Motion for Leave to File an Amended
Indictment (14 September 2007) at para. 33

111
their acts were part of it.571

whose intent matters

In a JCE case, it is sufficient that either the principal perpetrators or those on the
ground on whose behest they were acting, i.e. who were commanding them during the
operations, were aware that their acts comprised part of a larger attack against the civilian
population in the region. 572

If the physical perpetrator of an underlying offence is not the accused, his mental
state is not necessarily determinative and thus, if the non-accused physical perpetrator is
not aware of the context of his crimes, but his superior or an intermediary perpetrator is,
these crimes could still constitute crimes against humanity. 573

However, in situations where neither the physical nor the intermediary perpetrator
knows of the context of his offences and the person with knowledge of this context is too
far removed from the commission of the offence for such knowledge to be relevant --
like an aider and abettor, or the mental state of the person is legally irrelevant to the
establishment of the crime, such as a superior who could only be liable under Article 7(3)
-- the Chamber considers that in such circumstances an offence should not qualify as a
crime against humanity. 574

civilian population

definition

A population is considered to be a civilian population under Article 5 of the

Statute if it is predominantly civilian in nature.575

The civilian population comprises all persons who are civilians and the presence
within the civilian population of individuals who do not come within the definition of
civilians does not deprive the population of its civilian character. 576

A “civilian population” can include members of resistance groups or former

combatants who have laid down their arms if it is predominantly civilian in nature. 577

571
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3047
572
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 275
573
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 156.
574
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 157.
575
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 474; Prosecutor v Seselj,
No. MICT-16-99-A, Judgement (11 April 2018) at para. 69
576
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgement (12 December 2007) at para. 922; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 69
577
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.544; Prosecutor
v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 186; Prosecutor v Galic, No. IT-98-
29-A, Judgement (30 November 2006) at para. 144

112
 In order to determine whether the presence of soldiers within a civilian population
deprives the population of its civilian character, the number of soldiers, as well as
whether they are on leave, must be examined. 578

The prohibition against attacking civilians is absolute . One side in a conflict

cannot claim that its obligations are diminished or non-existent just because the other side
does not respect all of its obligations. 579

It is not relevant that the other side also committed atrocities against its
opponent’s civilian population.580

Whereas jurisprudence accepts that the attack requirement for crimes against
humanity allows for the presence of non-civilians in the population that is the target of
the widespread or systematic attack, there is nothing to suggest that a crime, listed under
Article 5 of the Statute, would qualify as a crime against humanity if the victims were
non-civilians. 581

For the purposes of Article 5 of the Statute, the victims of the underlying crime
must be civilians. If the victims are non-civilians, the more appropriate charge is war
crimes. This is a proper and specific requirement for the application of Article 5, which
takes into account the historical origins and development of crimes against humanity as a
category distinct from war crimes.582

directed against civilian population

The attack need not be directed at the civilian population in the whole area under
consideration. 583

Whereas the civilian status of the victims, the number of civilians, and the
proportion of civilians within a civilian population are factors relevant to the
determination of whether the chapeau requirement of Article 5 of the Statute that an
attack be directed against a “civilian population” is fulfilled, there is no requirement nor
is it an element of crimes against humanity that the victims of the underlying crimes be
“civilians”.584

The phrase “directed against” is an expression which “specifies that in the context
of a crime against humanity the civilian population is the primary object of the attack”. In
determining this, consideration will be taken of; (1) the means and method used in the
course of the attack; (2) the status of the victims; (3) their number; (4) the discriminatory
nature of the attack; (5) the nature of the crimes committed in its course; (6) the
578
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 115
579
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 69
580
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 87
581
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 462.
582
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 462.
583
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 706
584
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 31, 32

113
resistance to the assailants at the time and (7) the extent to which the attacking force may
be said to have complied or attempted to comply with the precautionary requirements of
the laws of war.585

The civilian status of the victims and the proportion of civilians within a population
are factors relevant to satisfy the chapeau requirement that an attack was directed against
a “civilian population”, yet it is not an element of the crimes against humanity that
individual victims of the underlying crimes be “civilians”. 586

There is no requirement nor is it an element of a crime against humanity that the

victims of the underlying crime be civilians or predominantly civilians, provided the acts
form part of a widespread or systematic attack directed against a civilian population.587

To satisfy the jurisdictional requirement of Article 5 of the Statute, crimes against

humanity must be committed as part of a widespread attack against a civilian population.
This does not imply, however, an additional requirement that civilians be the sole target
of the crimes.588

The targeting of a select group of civilians, such as political opponents, cannot

satisfy the requirements of Article 5. It is sufficient, however, to show that enough
individuals were targeted in the course of the attack, or that they were targeted in such a
way as to demonstrate that attack was in fact directed against the civilian population as
opposed to a limited and randomly selected group of individuals. 589

It was not established that the attacks of the KLA were directed against a civilian
population, although attacks against civilians did occur. 590

The numerous incidents of murder, torture, and cruel treatment of civilians,

including in detention camps, the overall atmosphere of violence, fear, and intimidation
created by Serbian forces as well as the methods used in the course and aftermath of
attacks on towns and villages inhabited by non-Serbians clearly show the existence of a
widespread and systematic attack directed against the non-Serbian civilian population in
large areas of Croatia and Bosnia and Herzegovina.591

No reasonable trier of fact could have concluded that there was no widespread or

585
Prosecutor v Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 91 Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgement (12 December 2007) at para. 921; Prosecutor v Seselj, No. MICT-
16-99-A, Judgement (11 April 2018) at para. 69
586
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 58
587
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 142; Prosecutor v Popovic
et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 774
588
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 28
589
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 187; Prosecutor v
Kunarac et al, No. IT-96-23&23/1-T, Judgement (12 June 2002) at para. 90; Prosecutor v. Milosevic, No.
IT-98-29/1-T, Judgment (12 December 2007) at para. 924
590
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 228
591
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 70

114
systematic attack against the non-Serbian civilian population in Croatia and in Bosnia and
Herzegovina. 592

The fact that the SRK forces may have been weaker than the ABiH is not relevant
to the conclusion as to whether the SRK attacks were directed against the civilian
population.593

The fact that people not belonging to the targeted group were affected by attacks
of the Serbian forces against the Kosovo Albanian population does not deprive such
conduct of its discriminatory character.594

Military objectives are limited to those objects which by their nature, location,
purpose, or use make an effective contribution to military action and whose total or
partial destruction, capture, or neutralization, in the circumstances, ruling at the time,
offers a definite military advantage. 595

hors d’combat

In wartime conditions it is inevitable that individuals belonging to the category of

combatants become intermingled with the civilian population, for example, soldiers on
leave visiting their families. However, provided that these are not regular units with fairly
large numbers, this does not in any way change the civilian character of a population. 596

During the assaults launched on the towns and villages of the municipalities
relevant to the Indictment, the HVO set fire to houses belonging to Muslims, took their
belongings and destroyed many institutions dedicated to religion. In addition, the arrests
by the HVO of both Muslim men of military age – regardless of whether they were
members of the armed forces – and women, children and elderly people. For this reason,
the population targeted by the attack was civilian. 597

The specific situation of the victim at the time the crimes are committed may not
be determinative of his civilian or non-civilian status. If he is indeed a member of an
armed organization, the fact that he is not armed or in combat at the time of the
commission of crimes, does not accord him civilian status. 598

The reference to civilians in Article 5 of the Statute is not intended to reflect

Common Article 3 of the Geneva Conventions, thus including persons not taking an
active or a direct part or who have ceased to take part in hostilities, such as persons
placed hors de combat. There is insufficient evidence in the proposition that the notion of

592
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 71
593
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 74
594
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 203
595
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 337
596
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 923
597
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 3 para. 648
598
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 113-14; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 55

115
crimes against humanity has expanded under international law, so as to include crimes
against combatants.599

The term “civilian” in Article 5 of the Statute must be interpreted within the
meaning of Article 50 of Additional Protocol I, thereby excluding combatants or persons
hors de combat. Under Article 3 of the Statute, however, the status of the victim at the
time of the offense may be relevant to its designation as civilian or not. 600

Persons hors de combat may be victims of crimes of humanity under Article 5

even if they are not considered “civilians” for purposes of the chapeau requirement.601

A distinction must be made between persons hors de combat and civilians. While
both may be victims of the underlying crimes, for purposes of the element of an attack on
the civilian population, persons hors de combat should not be included.602

deportation

defence of necessity

International law recognises certain grounds permitting forced removals, and that
if an act of forced removal is carried out on such a basis, that act cannot constitute the
actus reus of the crime of deportation.603

Displacement may be allowed under international law if carried out for the
security of the people involved or imperative military reasons. In such cases, the
displacement must be carried out in such a manner so as to ensure that displaced persons
are able to return to their homes as soon as the situation permits. 604

Evacuation is an exceptional measure which is permitted when, for example, the

area is in danger because of military operations or is liable to be subjected to intense
bombing, or when the presence of persons in the area hampers military operations. 605

Discussions concerning the population leaving towns after an attack could be

interpreted as relating to a lawful consensus on helping civilians temporarily depart from
an area of conflict for reasons including legitimate military advantage and casualty
reduction.606

599
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 460.
600
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 35
601
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 313
602
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 416
603
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 284
604
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 725;
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 901
605
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 901
606
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 93

116
 Displacement for humanitarian reasons, such as epidemics or natural disasters, is
justifiable, unless the accused’s own activity caused the humanitarian crisis. 607

The fact that the people expelled were nationals of an enemy state was not a valid
defence to deportation or forcible transfer where the means of expulsion were by
unlawful attack on civilians and civilian objects. 608

elements

The actus reus of deportation is the forced displacement of persons by expulsion

or other forms of coercion from the area in which they are lawfully present, across a de
jure state border or, in certain circumstances, a de facto border, without grounds
permitted under international law. The mens rea of the offence does not require that the
perpetrator intend to displace the individual across the border on a permanent basis. 609

forcible

The definition of deportation requires that the displacement of persons be forced,

carried out by expulsion or other forms of coercion such that the displacement is
involuntary in nature, and the relevant persons had no genuine choice in their
displacement. Factors other than force itself may render an act involuntary, such as taking
advantage of coercive circumstances. It is the absence of genuine choice that makes
displacement unlawful. Therefore, while persons may consent to (or even request) their
removal, that consent must be real in the sense that it is given voluntarily and as a result
of the individual’s free will, assessed in the light of the surrounding circumstances. 610

It is the consent of each individual and not of a collective group or official

authorities deciding on behalf of a group, that determines the voluntariness or otherwise
of a transfer.611

The term “forced”, when used in reference to the crime of deportation, is not to be
limited to physical force but includes the threat of force or coercion, such as that caused
by fear of violence, duress, detention, psychological oppression or abuse of power against
such person or persons or another person, or by taking advantage of a coercive
environment.612

607
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 903;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 287; Prosecutor v Martic, No.
IT-95-11-T, Judgement (12 June 2007) at para. 109
608
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1748
609
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 278; Prosecutor v Dordevic,
No. IT-05-87/1-A, Judgement (27 January 2014) at para. 154; Prosecutor v Seselj, No. MICT-16-99-A,
Judgement (11 April 2018) at fn. 538
610
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 279; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 108
611
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 921
612
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 281

117
 Fear of violence, duress, detention, psychological oppression and other such
circumstances may create an environment where there is no choice but to leave, thus
amounting to forcible displacement of people. 613

The military component of the column which left Srebrenica were not the victims
of a forced displacement because they had a genuine choice to remain and fight, or to
surrender. However, the civilian component of the column had no genuine choice and
therefore were the victims of forced displacement.614

Men who were transferred to sites where they were executed were not the victim
of forcible transfer, since the intent was to execute them, rather than to transfer them. 615

The participation of an NGO in facilitating displacements does not in and of itself

render an otherwise unlawful transfer lawful. 616

Trial Chamber was unable to conclude that shelling of towns was not aimed at
military targets, that the shelling was intended to force the population to flee, and that
persons fled because of the shelling, as opposed to other reasons. Therefore, as to some
areas, it could not enter a conviction for forcible transfer or deportation due to shelling. 617

Persons who witnessed crimes by Croatian soldiers and left their homes were
victims of forcible displacement, since the crimes created an environment where the
persons had no choice but to leave. Persons who left before the crimes but became aware
of them were also victims of forcible displacement as they were unable to return. 618

Certain persons could not be said to be forcibly displaced where the evidence left
open the reasonable conclusion that they may have left because of the fear of violence
commonly associated with armed conflict, or general distrust of the forces. 619

Displacement of people pursuant to an agreement among political or military

leaders, or under the auspices of international organizations, does not make it
voluntary.620

international border

Deportation as a crime against humanity under Article 5(d) of the Statute requires
that individuals be transferred across a state border or, in certain circumstances, a de facto

613
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 724
614
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at paras. 927,929
615
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 933
616
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 286
617
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para.1755
618
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1756
619
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1762
620
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 724

118
border.621 The question whether a particular de facto border is sufficient for the purposes
of the crime of deportation should be examined on a case by case basis in light of
customary international law. 622

In the case of deportation, not only must the victims end up across a border but it
must be the act of the accused which determines that destination. It must be as a result of
the force—the act of the accused—that the persons are displaced across a border. For the
crime of deportation it is not sufficient to prove force on the part of the accused and the
ultimate location of the victims across a border. The prosecution must also establish the
link between the two elements. To do otherwise is to leave a constituent element of the
crime related not to the acts of the accused but to chance or, in many cases, to a choice
made by a victim. 623

Customary international law does not support a finding that “constantly changing
frontlines ” may amount to de facto borders sufficient for the purposes of the crime of
deportation.624

Displacement of persons from Kosovo to Montenegro did not constitute

deportation since a de facto border does not exist between entities of a sovereign state
regardless of the autonomy enjoyed by those entities. 625

Displacement of civilian populations across constantly changing frontlines does

not constitute the crime of deportation under customary international law, but may still
amount to forcible transfer. The civilian population of Srebrenica and Zepa did not cross
a de facto border when crossing from the territory of Republika Srpska to areas under
Bosnian Muslim control. 626

Where some residents chose to cross the border to Serbia, it is the intention of the
perpetrator which determines whether the crime was deportation or forced transfer.
Absent an intent to expel someone across a border, the crime would be classified as
forcible transfer.627

Deportation and forcible transfer may be committed without regard to whether the
party is occupying the territory from which the deportations or transfers take place. 628

lawfully present

621
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 289; Prosecutor v Krajisnik,
No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 723
622
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 300
623
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 893
624
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 302
625
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 535
626
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 173
627
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at paras. 959-61
628
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction
(19 March 2007) at para. 56

119
 The words “lawfully present” should be given their common meaning and should
not be equated to the legal concept of lawful residence. Whether an individual has lived
in a location for a sufficient period of time to meet the requirements for residency or
whether he or she has been accorded such status under immigration laws is irrelevant.629

Soldiers were lawfully present in Zepa even if the enclave was required to be
demilitarized and could be the victim of forced transfer or deportation. 630

mens rea

It is unclear whether the goals and rhetoric of President Tudman's speeches

concerning the driving out of the Serbs from the Krajina could be attributed to the JCE's
membership, or considered illustrative of its common purpose.631

Evidence of policy and legal attempts to prevent the return of Serb civilians who
had left the Krajina is also insufficient to justify the Trial Chamber's view that a JCE to
permanently remove Serb civilians by force or threat of force existed. The fact that
Croatia adopted discriminatory measures after the departures of Serb civilians from the
Krajina does not demonstrate that these departures were forced. 632

In the factual context of this case, departures of civilians concurrent with lawful
artillery attacks cannot be qualified as deportation. 633

Deportation does not require an intent that the deportees should not return. 634 The
correct legal standard is an intent to transfer persons on a non-provisional basis. 635

The mens rea of deportation is to forcibly displace the persons. The intent to
permanently displace the persons need not be proven. 636

. The mens rea required for deportation is the intent to forcibly displace the
population across a de jure or de facto border.637

The Prosecution must prove that the accused had the intent to displace,
permanently or otherwise, the victims across the relevant national border.638

629
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 900
630
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 957
631
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 94
632
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 95
633
Prosecutor v Gotovina et al, No, IT-06-90-A, Judgement (16 November 2012) at para. 114
634
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 307
635
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 319
636
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 726;
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 905
637
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 493
638
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 164; Prosecutor
v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para.904

120
 enslavement

Whether a particular phenomenon is a form of enslavement will depend on the

operation of the factors or indicia of enslavement identified by the Trial Chamber. These
factors include; (1) control of someone’s movement; (2) control of physical environment;
(3) psychological control; (4) measures taken to prevent or deter escape; (5) force; (6)
threat of force or coercion; (7) duration; (8) assertion of exclusivity; (9) subjection to
cruel treatment and abuse, (10) control of sexuality and (11) forced labour.639

Enslavement flows from claimed rights of ownership. Lack of consent does not
have to be proved by the Prosecutor as an element of the crime of enslavement. However
it may be of evidential relevance in establishing the element of the crime relating to the
exercise by the accused of any or all of the powers attaching to the right of ownership.
Circumstances which render it impossible to express consent may be sufficient to
presume the absence of consent.640

The duration of the enslavement is not an element of the crime. The question
turns on the quality of the relationship between the accused and the victim. The duration
of the relationship is one of the indicia used to determine whether the quality of the
relationship allows for the exercise of any or all of the powers attaching to the right of
ownership. 641

The required mens rea consists of the intentional exercise of a power attaching to
the right of ownership. It is not specifically required to prove that the accused intended to
detain the victims under constant control for a prolonged period of time in order to use
them for sexual acts.642

extermination

aggregation of victims

Certain Scheduled Incidents did not satisfy the requirement of mass scale given
the significantly low numbers of people killed in each incident, the absence of any other
circumstances indicating that the killings were on a mass scale and the fact that the
incidents were not sufficiently connected to other incidents with regard to time,
geographical proximity or through affiliation of the perpetrators so as to aggregate them
for the purposes of assessing the mass scale requirement. 643

639
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para 119
640
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 120
641
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 121
642
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 122
643
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at paras. 3085, 3096, 3106

121
 It is not necessary that a large number of killings occurred during a single incident
in a concentrated place over a short period. Extermination may also be found on an
accumulation of separate and unrelated incidents, meaning on an aggregated basis. 644

In assessing whether the extermination element of mass scale was established the
Trial Chamber considered the number of deaths in each incident and the circumstances
surrounding the deaths, including the selection of the victims, the time and place of the
killings, and the manner in which the killings were carried out.645

Separate killing incidents may be aggregated for the purpose of meeting the “large
scale requirement” if the killings are considered to be part of one and the same
operation.646

Killings of more than 50 men in and around school over two day period, by a
broad mix of perpetrators killing in a sporadic fashion, were not grouped together either
in numerical terms or were patterned killings targeting the wider group held at the school.
Therefore, the killings were isolated incidents which, although related in a broad fashion,
do not meet the mass scale requirement.647

Collective consideration of distinct events committed in different locations, in

different circumstances, by different perpetrators, over an extended period of time cannot
satisfy the requirement of killing on a large scale. 648

aiding and abetting

Contribution to murder of 10 persons during Srebrenica events did not rise to the
level of making a substantial contribution to extermination and therefore the requirements
for aiding and abetting extermination were not met.649

elements

The elements of extermination are: a) act or omission that results in the death of
persons on a massive scale, and b) the intent to kill persons on a massive scale, or to
inflict serious bodily injury or create conditions of life that lead to the death in the
reasonable knowledge that such act or omission is likely to cause the death of a large
number of persons. 650

644
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 107
645
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3069
646
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1022
647
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3109
648
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1022
649
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2078
650
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.572

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 The elements of extermination consume the elements of murder plus the fact that
the killings take place on a large scale and the perpetrator intended this result by his
acts.651

Relevant factors for extermination include but are not limited to: (i) the time and
place of the killings; (ii) the selection of the victims and the manner in which they were
targeted; (iii) the type of victims; (iv) whether the killings were aimed at the collective
group rather than victims in their individual capacity; and (v) the population density of
the victims’ area of origin. 652

The actus reus of extermination is “the act of killing on a large scale.” The actus
reus also includes “subjecting a widespread number of people or systematically
subjecting a number of people to conditions of living that would inevitably lead to
death”. The mens rea required for extermination is that the accused intended, by his acts
or omissions, either killing on a large scale, or the subjection of a widespread number of
people, or the systematic subjection of a number of people, to conditions of living that
would lead to their deaths.653

mens rea

Although extermination did occur in 8 municipalities Trial Chamber was not

satisfied that the possibility that these killings at a mass scale could be committed in
execution of the common plan was sufficiently substantial so as to be foreseeable to
Minister of Interior Mico Stanisic. The evidence concerning CSB Chief Stojan Zupljanin
was different. Zupljanin had knowledge of the murders committed by some of his
subordinate forces against the non-Serb civilian population and nevertheless continued to
task these forces for operations involving the non-Serb population. The evidence
presented by the Prosecution in relation to Mico Stanisic was not sufficient for the
Chamber to come to the same conclusion with regard to the crime of extermination. 654

Proof of intent to commit mass murder against “civilians” is not required for the
mens rea of extermination. The mens rea for extermination is the intent to kill on a
massive scale as part of a widespread or systematic attack directed against a civilian
population.655

The mens rea for extermination to “(i) kill on a large scale” can be met by
establishing the mens rea for murder as a crime against humanity – i.e. the intent to: (i)
kill the victim; or (ii) wilfully cause serious bodily harm which the perpetrator should
reasonably have known might lead to death--plus the additional intention to do so on a

651
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 716;
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 62
652
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1022
653
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 259; Prosecutor v Martic,
No. IT-95-11-T, Judgement (12 June 2007) at para. 62
654
Prosecutor v Stanisic & Zupljanin, No. 08-91-T, Judgement (27 March 2013) at para. 775
655
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 142

123
large scale. 656

number of victims

There is no minimum number of victims to constitute extermination. The element

of massive scale must be assessed on a case -by-case basis. 657 A vast scheme of
collective murder or vast murderous enterprise need not be proven. 658

While there may be a higher threshold for a finding of extermination in a densely-

populated area, it would not be inappropriate to find extermination in a less densely-
populated area on the basis of a lower threshold, that is, fewer victims. 659

Killings in Serb Krajina were not of sufficient number to constitute

extermination.660

Almost the entire Muslim population of Koritnik perished in the Pionirska Street
Incident.1587 In these circumstances, the killing of 59 persons amounted to
extermination as a crime against humanity. 661

The assessment of “large scale” is made on a case-by-case basis, taking into

account the circumstances in which the killings occurred. Relevant factors include, inter
alia: the time and place of the killings; the selection of the victims and the manner in
which they were targeted; and whether the killings were aimed at the collective group
rather than victims in their individual capacity. 662

No reasonable trial chamber could have found that the killings of the three Zepa
leaders were part of the same attack against the civilian population or of "a single
deliberate, organised, large-scale operation to murder Bosnian Muslim males" thereby
fulfilling the requirement of "large scale" and constituting extermination. Those three
killings were "isolated acts". Therefore, the extermination conviction must be reversed
insofar as it relates to the three Zepa leaders. 663

forced labour

Forced labour constitutes manifest violations of international humanitarian

customary law, causing their perpetrators to incur individual criminal responsibility under

656
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1036
657
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 573;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 260
658
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 576;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 259
659
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Judgement (20 July 2009) at para. 938
660
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at paras. 404-05
661
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 543
662
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 538
663
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 150

124
Article 3 of the ICTY Statute.664

It is not required to establish the existence of a state of occupation inasmuch as

unlawful labour by civilians is prohibited the moment they fall into the hands of an
occupying power, regardless of the phase of hostilities. 665

Article 95 of the Fourth Geneva Convention contemplates a certain type of labour

which the detaining authority has the right to impose on internees against their will.
These are, broadly speaking, tasks whose completion contributes to the well-being of the
interned population. Article 95 specifically mentions the employment of internees with
medical skills on behalf of their fellow internees, internees for administrative and
maintenance work at the detention facility, etc.666

The Detaining Power may compel prisoners of war – excepting officers – to work,
under certain conditions described in Section III of the Third Geneva Convention. 667

The following criteria is used to determine whether the labour was forced: (a) the
substantially uncompensated aspect of the labour performed; (b) the vulnerable position
in which the detainees found themselves; (c) the allegations that detainees who were
unable or unwilling to work were either forced to do so or put in solitary confinement; (d)
the long term consequences of the labour; (e) the fact and the conditions of detention; and
(f) the physical consequences of the work on the health of the internees.668

The perpetrator of the crime must have acted with the intent that the victim
perform prohibited labour. This mens rea can be inferred from the circumstances in
which the labour is carried out.669

The use of civilian detainees or prisoners of war for work on the defensive
structures of the detaining power is clearly included among the categories of military
labour prohibited under applicable law.670

forcible transfer

deportation distinguished

Forcible transfer is the forcible displacement of persons which may take place
within national boundaries. 671

664
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 152
665
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 153
666
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 156
667
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 157
668
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 162
669
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 162
670
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 164
671
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538

125
 Forcible transfer is the forced displacement of individuals from the area in which
they are lawfully present without grounds permitted under international law. The
distinction between forcible transfer and deportation is that the first one consists of forced
displacements of individuals within state borders, while the second one consists of forced
displacement beyond internationally recognised state borders 672

Forcible displacement, as an act of persecution, does not require the victim to be

transported across a State border.673

elements

The crime of forcible transfer forms part of the category of Other Inhumane Acts
under Article 5(i) of the Statute.674

Forcible transfer must satisfy three specific conditions in order to constitute an

inhumane act within the meaning of Article 5(i) of the Statute: (1) the victim must have
suffered serious bodily or mental harm; (2) the suffering must be the result of an act or
omission, by the accused or a person in relation to whom he bears criminal responsibility,
of a severity equal to those acts enumerated in Article 5 of the Statute; and (3) the
accused or a person for whom he bears criminal responsibility must, at the time of the
commission of the offence, have been motivated by the intent to inflict serious bodily or
mental harm upon the victim or knew that his act or omission might result in the
infliction of serious bodily or mental harm to the victim. 675

The jurisprudence of the Tribunal does not require that persons be displaced as a
result of criminal acts.676

forcible

It is the absence of genuine choice that makes displacement unlawful. 677

These transfers must be involuntary or with the absence of a “genuine choice” for
the victim. This can be inferred from threatening and intimidating acts that are calculated
to deprive the civilian population of exercising its free will, such as the shelling of
civilian objects, the burning of civilian property, and the commission of or the threat to
commit other crimes “calculated to terrify the population and make them flee the area
with no hope of return.”678

672
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 595
673
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para.154; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at fn. 541
674
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 629
675
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 59
676
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 918
677
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 495
678
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 165.

126
 Factors other than force itself may render displacement involuntary and include
the threat of force or coercion, such as that caused by fear of violence, duress, detention,
psychological oppression or abuse of power or by taking advantage of a coercive
environment. Creating severe living conditions for a certain population - which in tum
makes it impossible for that population to remain in their homes - can amount to forced
displacement.679

The requirement of “forcible” describes a situation where individuals do not have

a free or ‘genuine’ choice to remain in the territory where they were present. The element
of ‘forcible’ has been interpreted to include threats or the use of force, fear of violence,
and illegal detention. It is essential therefore that the displacement takes place under
coercion. Even in cases where those displaced may have wished – and in fact may have
even requested – to be removed, this does not necessarily mean that they had or exercised
a genuine choice.680

If the displacement is the result of a humanitarian crisis caused by the accused's

activities, such displacement is forced. 681

It is the absence of genuine choice that makes displacement unlawful. 682

However, circumstances which render it impossible to express consent may be sufficient
to presume the absence of consent. 683

The requirement that the displacement be forced is not limited to physical force
but can be met through the threat of force or coercion, such as that caused by fear of
violence, duress, detention, psychological oppression or abuse of power, or taking
advantage of a coercive environment. 684

An agreement among military commanders, political leaders, or other

representatives of the parties in a conflict cannot make a displacement lawful either; it is
the consent of the individual that determines whether a displacement is voluntary. 685
gravity

Acts of forcible transfer may be sufficiently serious as to amount to other

inhumane acts.686

mens rea

679
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 495
680
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 596
681
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 163; Prosecutor v Prlic et
al, No. IT-04-74-A, Judgement (29 November 2017) at para. 525
682
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 229
683
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 233
684
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 918
685
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 490
686
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538

127
 The mens rea does not require the intent to transfer permanently. 687

As for the mens rea, the perpetrator must intent to remove the victims, which
implies the intention that they should not return. By definition, therefore, lawful
evacuations, under any of the three recognised exceptions, cannot form part of this crime.
The fact that no step is taken by the perpetrator to secure the return of those displaced,
when the circumstances that necessitated the evacuation have ceased, is among the
factors that may prove an intent to permanently displace the victims rather than the intent
to secure the population through a lawful – and therefore temporary – evacuation. The
Trial Chamber finds that the fact that victims subsequently return to the area by their own
volition does not have an impact on the criminal responsibility. 688

necessity

The Prosecution must prove that (a) the displacement of persons by expulsion or
other coercive acts, (b) from an area in which they are lawfully present, (c) without
grounds permitted under international law 689, which are recognized as the security of a
civilian population or imperative military reasons and are noted by a possible return to
their homes after the hostilities have ceased. 690

Additional Protocol I prohibits attacks on civilians and indiscriminate attacks in

all circumstances. Thus, even if Srebrenica and Zepa had lost their status as demilitarised
zones because of the ABiH's presence and operations within those enclaves, the VRS
could not target civilians in the enclaves, either deliberately or as part of an
indiscriminate attack against military and civilian objectives alike. And even if the VRS
operations against Srebrenica and Zepa had been directed exclusively at legitimate enemy
military targets in the enclaves, the VRS, once the enclaves were under its control, could
not force, directly or indirectly, the local civilian population out of these areas or commit
any other prohibited criminal acts against the civilians. 691

It is unlawful to use evacuation measures based on imperative military reasons as

a pretext to remove the civilian population and seize control over a desired territory. 692

Evacuation to ensure the security of the population is authorised when the area in
which the population is located is in danger as a result of military operations or intense
bombing. In such situations, in the interest of the protection of the civilian population a
military commander may, and is in fact duty bound to, evacuate the population. This
situation is similar to that when evacuations for imperative military reasons may be
carried out, i.e. when the presence of the population hampers military operations. There is
an important distinction, however, in that evacuations in this latter situation may only be
687
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538
688
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 601
689
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 164.
690
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 166.
691
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 346
692
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 492

128
carried out when necessitated by overriding, i.e. imperative, military reasons. In
considering whether these exceptions justify proven acts of forcible population
displacements, the trier of fact will consider whether there was in actual fact a military or
other significant threat to the physical security of the population, and whether the military
operation in question was ‘imperative’. It is unlawful to use evacuation measures as a
pretext to remove the population and effectuate control over a desired territory.693

The law also provides for an exception to the general prohibition against forcible
displacements that would permit evacuations for humanitarian reasons. The Commentary
to Article 17 of Protocol II indicates that for other reasons – such as the outbreak or risk
of outbreak of epidemics, natural disasters, or the existence of a generally untenable and
life-threatening living situation – forcible displacement of the civilian population may be
lawfully carried out by parties to the conflict. Such displacement must, however, comply
with the requirements of evacuation, including among others, that they be of a temporary
character.694

While an evacuation is not prohibited if the security of the population or

imperative military reasons so demand, where the transfer had already taken place at a
time when there was no fighting in the area, the Trial Chamber could conclude on this
basis alone that the transfer was unlawful. 695

Transfer of the wounded and sick may be carried out against a person’s will and
does not constitute the crime of forcible transfer unless done for other than medical
reasons. The prosecution failed to prove that the transfer was not for reasons of medical
necessity. 696

nullum crimen sine lege

The notion of forcible transfer does not violate the principle of nullum crimen sine
lege. 697

persons excluded

Forcible displacement of enemy soldiers is not prohibited under international

humanitarian law. 698

Transfer of detainees from one camp to another does not constitute forcible
transfer.699

693
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 597-98
694
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 600
695
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 524
696
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1810
697
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 317; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at fn. 538
698
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 774
699
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 723

129
 The terms “lawfully present” should be given their common meaning and should
not be equated to the legal concept of lawful residence. 700

transfer

There is a “removal from an area” within the meaning of Article 5 of the Statute
when the location to which the victims are sent is so remote that they are no longer able
to effectively enjoy these rights.701

The actus reus of forcible displacement does not require that the population be
removed to a location sufficiently remote from its original location. 702

It is no defence to forcible transfer that the transfer was to a nearby community

where those transferred had family. The prohibition against forcible displacements aims
at safeguarding the right and aspiration of individuals to live in their communities and
homes without outside interference. The forced character of displacement and the forced
uprooting of the inhabitants of a territory entail the criminal responsibility of the
perpetrator, not the destination to which these inhabitants are sent.703

imprisonment

continued detention

If there was a legal basis for the detention but it ceased to exist, the continued
detention is arbitrary. 704

defences

When a national law is relied upon to justify imprisonment, the national law must
not violate international law. 705

The mere fact that civilians had some freedom of movement does not necessarily
mean that they were not deprived of their liberty and thus imprisoned or unlawfully
confined.706

700
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 491
701
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 49
702
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 492
703
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 491
704
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 753;
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1816; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 79; Prosecutor v Mladic, No.
IT-09-92-T, Judgement (22 November 2017) at para. 3239
705
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 753;
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1816; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 79; Prosecutor v Mladic, No.
IT-09-92-T, Judgement (22 November 2017) at para. 3239
706
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 473

130
 The internment or placement in assigned residence may be ordered only if the
security of the detaining party makes it absolutely necessary. 707

elements

Imprisonment is constituted by the deprivation of a person’s liberty without due

process of law. It must be carried out arbitrarily—that is, there is no legal basis for it.
The perpetrator must act with the intent to deprive the victim of his liberty arbitrarily. 708

Imprisonment as a crime against humanity, should be understood as arbitrary

imprisonment, that is to say, the deprivation of liberty of the individual without due
process of law, as part of a widespread or systematic attack directed against a civilian
population.709

The crime of imprisonment consists of the following elements: (1) an individual is

deprived of his or her liberty; (2) the deprivation of liberty is carried out arbitrarily, that
is, there is no legal basis for it; and (3) the perpetrator acted with the intent to deprive the
individual arbitrarily of his or her liberty. 710

factors

Determining whether a person has been deprived of his or her liberty will depend
on the circumstances of each particular case and must take into account a range of
factors, including the type, duration, effects, and the manner of implementation of the
measures allegedly amounting to deprivation of liberty.711

home detention

Detention amounting to imprisonment and unlawful confinement of civilians can

occur even in situations where the civilians are held in houses without guards and where
they have some freedom of movement.712

An initially lawful internment or placement in assigned residence clearly becomes

unlawful if the detaining party does not respect the basic procedural rights of the detained
persons and does not establish an appropriate court or administrative board as prescribed
in Article 43 of Geneva Convention IV.713

707
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 513
708
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 752;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 116; Prosecutor
v Martic, No. IT-95-11-T, Judgement (12 June 2007) at paras. 87-88
709
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 471
710
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1815; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 78
711
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 473
712
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 479
713
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 479

131
 murder

body

Proof beyond reasonable doubt that a person was murdered does not necessarily
require proof that the dead body of that person has been recovered. All that is required to
be established from that evidence is that the only reasonable inference from the evidence
is that the victim is dead as a result of the accused’s actions or omission. 714

A body need not be recovered in order to establish that a person has been killed.
A victim's death can be inferred circumstantially from all of the evidence presented to the
trial chamber. 715

Relevant factors to be considered when assessing whether a victim died include

but are not limited to proof of incidents of mistreatment directed against the victim;
patterns of mistreatment and disappearances of other victims; the coincident or near-
coincident time of death of other victims; the fact that the victims were present in an area
where an armed attack was carried out; the time, location, and circumstances in which the
victim was last seen; the behaviour of soldiers in the vicinity, as well as towards other
civilians, at the relevant time; and the lack of contact by the victim with others whom
he/she would have been expected to contact, such as his/her family. 716

causation

With regard to the requisite causal nexus, the requirement that death must have
occurred “as a result of” the perpetrator’s act or omission does not require this to be the
sole cause for the victim’s death; it is sufficient that the “perpetrator’s conduct
contributed substantially to the death of the person”. 717

The evidence was insufficient to establish that the acts or omission that caused the
death of the victim occurred during the time that the accused was employed in the camp.
Acquittal ordered on that charge.718

When considering suicide, the crucial issues are causation and intent. The relevant
act or omission by the Accused or by those for whose acts or omissions the Accused
bears criminal responsibility must have caused the suicide of the victim and the Accused,

714
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 326; Prosecutor v
Halilovic, No. IT-01-48-T, Judgment (16 November 2005 at para 37; Prosecutor v Lukic & Lukic, No. IT-
98-32/1-T, Decision on Milan Lukic’s Notice of Verification of Alleged Victim Survivors and Application
for Stay of Proceedings…(12 March 2009) at para. 29; Prosecutor v Lukic & Lukic, No. IT-98-32/1-A,
Judgement (4 December 2012) at para. 149
715
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 126
716
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at fn. 1476
717
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 448
718
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 271; Prosecutor v
Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 347

132
or those for whom he bears criminal responsibility, must have intended by that act or
omission to cause the suicide of the victim, or have known that the suicide of the victim
was a likely and foreseeable result of the act or omission. The Accused cannot be held
criminally liable unless the acts or omissions for which he bears criminal responsibility
induced the victim to take action which resulted in his death, and that his suicide was
either intended, or was an action of a type which a reasonable person could have foreseen
as a consequence of the conduct of the Accused, or of those for whom he bears criminal
responsibility. 719

elements

The elements of the offence of murder as a crime against humanity and as a

violation of the laws or customs of war are the same. Murder is the death of the victim
which results from an act or omission by the accused, committed with the intent either to
kill or to cause serious bodily harm with the reasonable knowledge that it would likely
lead to death.720

The elements of murder under Articles 2,3,and 5 are the same. 721

For the crime of murder under Article 3 of the Statute to be established, the
Prosecutor bears the onus of proving: 1) the death of a victim taking no active part in the
hostilities; 2) that the death was the result of an act or omission of the accused or of one
or more persons for whom the accused is criminally responsible; 3) the intent of the
accused or of the person or persons for whom he is criminally responsible a) to kill the
victim; or b) to wilfully cause serious bodily harm which the perpetrator should
reasonably have known might lead to death. 722

The basic requirements for the crime of murder are: (1) the victim named in the
indictment is dead, (2) the victim’s death was caused by an act or omission of the
accused, or of a person or persons for whose acts or omissions the accused bears criminal
responsibility and (3) that act was done, or that omission was made, by the accused, or a
person or persons for whose acts or omissions he bears criminal responsibility, with an
intention (a) to kill, or (b) to inflict grievous bodily harm, or (c) to inflict serious injury,
in the reasonable knowledge that such act or omission was likely to cause death. 723

719
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 329
720
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 556;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 37; Prosecutor
v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 715; Prosecutor v
Martic, No. IT-95-11-T, Judgement (12 June 2007) at paras. 57-58
721
Prosecutor v Oric, No. IT-03-68-T, Judgment (30 June 2006) at para 345; Prosecutor v. Krnojelac, No.
IT-97-25-T, Judgment (15 March 2002) at para 323
722
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 261; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 35; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 241
723
Prosecutor v Krnojelac, No. IT-97-25-T, Judgment (15 March 2002) at para 324; Prosecutor v
Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 556; Prosecutor v Kordic &
Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 37; Prosecutor v Krajisnik, No. IT-00-
39-T, Judgement and Sentence (27 September 2006) at para. 715; Prosecutor v Kvocka et al, No. IT-98-

133
 mens rea

To satisfy the mens rea for murder it is further required that there was an act or
omission, with the intention to kill or to inflict grievous bodily harm, in the reasonable
knowledge that it might lead to death. 724

Premeditation is not required as an element of murder under Article 3 or Article

725
5.

To prove murder, it must be established that death resulted from an act or

omission of the accused, committed with the intent either to kill or, in the absence of such
a specific intent, in the knowledge that death is a probable consequence of the act or
omission. In respect of this formulation it should be stressed that knowledge by the
accused that his act or omission might possibly cause death is not sufficient to establish
the necessary mens rea. The necessary mental state exists when the accused knows that it
is probable that his act or omission will cause death. 726

The mens rea of murder includes both direct intent (dolus directus), which is a
state of mind in which the perpetrator desired the death of the individual to be the result
of his act or omission, and indirect intent (dolus eventualis), which is knowledge on the
part of the perpetrator that the death of a victim was a probable consequence of his act or
omission.727

The mens rea for murder as a war crime may be established by willful behavior in
the form of either a direct intent to kill or recklessness that death may ensue as a
consequence of the accused’s deliberate conduct. Ordinary negligence does not suffice
as the mens rea for murder.728 Nor does gross negligence.729

Where a civilian population is subject to an attack such as an artillery attack,

which results in civilian deaths, such deaths may appropriately be characterised as
murder, when the perpetrators had knowledge of the probability that the attack would
cause death.730

other inhumane acts

30/1-A, Judgement (28 February 2005) at para. 261; Prosecutor v Halilovic, No. IT-01-48-T, Judgement
(16 November 2005) at para. 35; Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November
2005) at para. 241; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 346
724
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 931
725
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 551
726
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 236
727
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 446
728
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Preliminary Motions (29 August 2005) at para. 21;
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 348
729
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 348
730
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 240

134
 Other inhumane acts can be committed by omission. 731

The elements of “other inhumane acts” are: a) an act or omission of similar

seriousness to the other acts enumerated in Article 5; b) the act or omission caused
serious mental or physical suffering or injury or constituted a serious attack on human
dignity; and c) the act or omission was performed intentionally by the accused, or by a
person or person for whose acts and omissions the accused bears criminal
responsibility. 732

The following acts, among others, fall into the category of “inhumane acts”:
mutilations and other forms of severe bodily harm, beatings and other acts of violence,
serious bodily and mental injury, forcible transfer, inhumane and degrading treatment,
forced prostitution and forced disappearance. 733

Not every denial of a human right is serious enough to constitute a crime against
humanity. Acts or omissions need to be of equal gravity to the crimes listed in Article 5
whether considered in isolation or in conjunction with other acts.734

The context in which these underlying acts take place is particularly important for
the purpose of assessing their gravity. 735

To ascertain the degree of severity of an act, all the factual circumstances must be
considered, including the nature of the act or omission, the context in which it occurs, its
duration and/or repetition, the physical, mental and moral effects of the act on the victim
as well as the personal circumstances of the victim, including age, sex, and health. 736

Detention under harsh conditions is likely to constitute an inhumane act within the
meaning of Article 5(i) of the Statute if it causes great suffering or physical or mental
anguish or constitutes a serious attack on human dignity. 737

The principle of legality requires that a trier of fact exercise great caution in
finding that an alleged act, not regulated elsewhere in Article 5 of the Statute, forms part
of this crime: norms of criminal law must always provide individuals with sufficient
notice of what is criminal behaviour and what is not.738

731
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 155
732
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 626;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 117; Prosecutor
v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 83; Prosecutor v. Milosevic, No. IT-98-29/1-
T, Judgment (12 December 2007) at para. 934
733
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 79
734
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 761
735
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 763
736
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 78
737
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 80
738
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 625

135
 It is required that the perpetrator, at the time of the act or omission, had the
intention to inflict serious physical or mental suffering or to commit a serious attack on
the human dignity of the victim(s), or that the perpetrator knew that his act or omission
was likely to cause such suffering to, or amount to a serious attack on, the human dignity
of the victim(s) and, with that knowledge, acted or failed to act.739

The mens rea for the crime of inhumane acts is satisfied if, at the time of the act
or omission, the perpetrator had direct or indirect intent to inflict, by act or omission,
serious physical or mental suffering or to commit a serious attack on the victim’s human
dignity. Indirect intent requires that the perpetrator knew that his or her act or omission
was likely to cause serious physical or mental suffering or a serious attack upon human
dignity and was reckless thereto.740

No reasonable trier of fact could have found that Sredoje Lukić’s slapping of
detainee caused serious bodily or mental harm so as to amount to cruel treatment as a
violation of the laws or customs of war, and other inhumane acts as a crime against
humanity or that Sredoje Lukic had the intent to inflict serious mental or physical
suffering or serious bodily or mental harm. 741

persecution

in general

Persecution is “the gross or blatant denial, on discriminatory grounds, of a

fundamental right, laid down in international customary or treaty law, reaching the same
level of gravity as other acts prohibited in Article 5.”742

Persecution as a crime against humanity requires evidence that the principal

perpetrator had the specific intent to discriminate on the ground of race, religion, or
politics. 743

The elements of persecution consists of an act or omission which: (i)

discriminates in fact and which denies or infringes upon a fundamental right laid down in
international customary or treaty law; and (ii) is carried out deliberately with the intention
to discriminate on one of the listed grounds, specifically race, religion or politics. 744

739
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 628;
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12 December 2007) at para. 935
740
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 112
741
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 634
742
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 2
743
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422
744
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 579;
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 320; Prosecutor v
Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 101, 671; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 159

136
 A single act may be sufficient, as long as this act or omission discriminates in fact
and is carried out deliberately with the intention to discriminate on one of the listed
grounds.745 The existence of a discriminatory policy is not a necessary requirement for
persecutions.746

The acts underlying persecutions as a crime against humanity, whether considered

in isolation or in conjunction with other acts, must be of equal gravity to the crimes listed
in Article 5 of the Statute.747

The Prosecution must also prove that the denial or infringement upon a
fundamental right is serious enough (gravity requirement) as to be of equal gravity of
those listed in Art 5 or be one of those listed in Art 5.748 This act or omission may also be
singular but its gravity must be considered in context by looking at its cumulative effect
and not at the act or omission in isolation. 749

Persecution may be committed by persons at any level, it is not limited to persons

at the high level of a hierarchy. 750

The context in which the underlying act of persecution takes place is particularly
important for the purpose of assessing its gravity. 751

act of discrimination

Denial of freedom of movement, denial of employment, invasion of privacy

through arbitrary searches of homes, unlawful arrests, denial of the right to judicial
process, and denial of equal access to public services, when carried out on discriminatory
grounds, and when the general elements of crimes against humanity are fulfilled,
constitute the crime of persecution when considered in conjunction with other relevant
acts, especially in conjunction with those acts that qualify as an underlying act of
persecution. These restrictive and discriminatory measures may also constitute the crime
of persecution when considered in isolation. 752

An act is discriminatory when a victim is targeted because of his or her

membership in a group defined by the perpetrator on a political, racial or religious basis.

745
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 582;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 102
746
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 582
747
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 102,671;
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 160; Prosecutor v Krnojelac,
No. IT-97-25, Judgement (17 September 2003) at para. 221; Prosecutor v Simic, No. IT-95-9-A, Judgement
(28 November 2006) at para.177; Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at
para. 296
748
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 178.
749
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 179.
750
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 580
751
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 159
752
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3266

137
The act or omission must have discriminatory consequences—discriminatory intent is not
enough. 753

Where a person is targeted for abuse because she or he is suspected of belonging

to a particular ethnic group, the discrimination element is met even if the suspicion
proves inaccurate and the person is in fact not a member of that ethnic group. 754

Discrimination in fact exists when the Prosecution proves that the victim was
targeted because of his membership within one of the protected groups (racial, religious,
political or ethnic).755 This discrimination in fact is assessed on a subjective basis. 756

The existence of a discriminatory policy is not a requirement for proving

persecution, although persecutory acts may form a part of a discriminatory policy or
practice. 757

attacks against civilians

Attacks launched deliberately against civilians or civilian objects may constitute

persecution without the requirement of a particular result caused by the attack. 758

cruel and inhumane treatment

Persecution by cruel and inhumane treatment is an intentional act or omission,

which causes serious mental harm, physical suffering or injury, or which constitutes a
serious attack on human dignity. The harm inflicted does not need to be permanent and
irremediable, but must have more than a short-term or temporary effect on the victim. 759

Cruel treatment is an act or omission which causes serious mental or physical

suffering or injury, or which constitutes a serious attack on human dignity. The act or
omission must be committed with the intent to cause serious mental or physical suffering
or injury or a serious attack on human dignity, or with the knowledge that serious mental
or physical suffering or injury or the serious attack on human dignity was a probable
consequence of the act or omission. 760

The crime of cruel and inhumane treatment requires that the perpetrator had the
intention to inflict serious physical or mental suffering, or to inflict serious injury, or to

753
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 583
754
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 195
755
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 177.
756
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 177.
757
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 500
758
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 105
759
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 586;
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 746
760
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 504

138
commit a serious attack on human dignity, or that he or she knew that his act was likely
to cause this result and was reckless. 761

Providing inhumane living conditions for detainees is a form of cruel and

inhumane treatment.762

The establishment and perpetuation of inhumane living conditions has been

considered a sub-category of cruel and/or inhumane treatment, which may constitute
persecution if the acts reach the same level of gravity as the other crimes listed under
Article 5 of the Statute and if the general requirements for persecution are also met. 763

Beatings constitute cruel or inhumane treatment if (i) the beatings caused serious
mental or physical suffering or injury or constituted a serious attack on human dignity,
and (ii) the beatings were performed deliberately. 764

The mental element for cruel and inhumane treatment is satisfied by a finding that
the act or omission was committed with intent, or alternatively with knowledge that the
act or omission was likely to cause serious mental or physical suffering or a serious
attack on human dignity and the perpetrator was reckless as to whether such
consequences would result from his act or omission.765

disappearances

The crime of disappearances includes the following elements: (a) an individual is

deprived of his or her liberty; and (b) the deprivation of liberty is followed by the refusal
to disclose information regarding the fate or whereabouts of the person concerned, or to
acknowledge the deprivation of liberty, and thereby denying the individual recourse to
the applicable legal remedies and procedural guarantees. 766

Enforced disappearances, carried out on discriminatory grounds, and for which

the general elements of crimes against humanity are fulfilled, constitutes the crime of
persecution. 767

destruction of cultural property

Destruction of cultural property—the destruction or damage of an institution

dedicated to religion, charity, education, or arts and sciences, historic monuments, and
works of art or science—may constitute persecution.768

761
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 746
762
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 756
763
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 514
764
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 509
765
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3233
766
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1837
767
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1839
768
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 782

139
 Destruction of religious property amounts to “an attack on the very religious
identity of a people” and, as such, manifests “a nearly pure expression” of the notion of
crimes against humanity and is thus prohibited as an act of persecution and CAH. 769

The Prosecution must prove (a) the religious or cultural property must be
destroyed or damaged extensively; (b) the religious or cultural property must not be used
for a military purpose at the time of the act; and (c) the destruction or damage must be the
result of an act directed against this property. 770

The equal gravity requirement of the destruction/damage must be proved such

that the impact of the deprivation of destroyed/damaged property is serious, such as
where the property is indispensable, a vital asset to the owners, or the means of existence
of a given population. 771

The Prosecution must prove that the property was not used for military purposes
at the time of the destruction/damage and thus it is not justified by military necessity. 772

Causation of the act of destruction/damages against the property must be proved

by showing the act was specifically directed at the property and thus destruction caused
by near by fighting or military necessity will not constitute a CAH. 773

The prosecution must demonstrate that the destruction was not justified by
military necessity. This cannot be presumed.774

Trial Chamber erred in failing to consider whether destruction of church was

justified by military necessity. 775

Recklessness is sufficient to satisfy the mens rea for destruction of religious or

culturally significant property.776

destruction of personal property

The destruction of property, depending on the nature and extent of the destruction,
may constitute a crime of persecution of equal gravity to other crimes listed in Article
5.777

769
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 205.
770
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 206.
771
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 207.
772
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 208.
773
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 209.
774
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 337
775
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 98
776
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 559
777
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422

140
 Destruction of personal property can also be a crime against humanity, depending
on the nature and extent of the destruction. 778 The crime requires that the destruction is
not justified by military necessity. 779

Destruction of private property as an underlying act of persecution is to be

understood as any intentional destruction of private property that has a serious impact on
the victim and that was not justified by military necessity. 780

Burning someone’s car may not constitute a crime against humanity unless the car
is an indispensable and vital asset to the owner.781

Destruction of personal belongings of men separated in Potocari did not have a

severe enough impact on the victims to constitute an act of persecution punishable under
Article 5.782

An act of destruction of property which in itself does not have a severe impact on
the victim, may still, when carried out on discriminatory grounds, and when the general
elements of crimes against humanity are fulfilled, constitute the crime of persecution,
when considered in conjunction with other acts.783

forced labor

The following criteria may be examined in determining whether an individual was

not in a position to make a real choice to undertake labour: (i) the substantially
uncompensated aspect of the labour performed; (ii) the vulnerable position in which the
detainees found themselves; (iii) the allegations that detainees who were unable or
unwilling to work were either forced to do so or put in solitary confinement; (iv) claims
of longer term consequences of the labour on the detainees, including on their health; and
(v) the fact and the conditions of the detention. 784

In relation to forced labour, the perpetrator must have intended the victim to
perform prohibited work involuntarily. In the absence of direct evidence, intent can be
inferred from the circumstances in which the labour was performed. In relation to the use
of human shields, the perpetrator must intend to shield a military objective from attack or
shield, favour, or impede military operations. 785

778
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 593-94;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 108; Prosecutor
v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 770
779
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 593-94
780
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1827; Prosecutor v
Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3259
781
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 774
782
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1001
783
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3262
784
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 524
785
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 526

141
 Not all forms of forced labor is prohibited under international law, provided the
labor is performed under certain protective conditions. However, digging trenches and
graves and other forced labor at the front lines were not among those permitted
activities. 786

Acts at the front lines, by its nature, cannot ever be performed in suitable working
conditions. Therefore, such acts cannot fall within any lawful exceptions to the
prohibition of forced labour.787

Forced labour as an underlying act of persecutions as a crime against humanity

requires a perpetrator to have intended for a victim to perform prohibited work. 788

The detainees’ personal conviction that they were forced to work must be proven
with objective and not just subjective evidence. 789

forcible transfer

Forcible transfer, taken separately or cumulatively, and when committed on

discriminatory grounds may constitute persecution.790

Speech inciting to violence against a population on the basis of ethnicity, or any

other discriminatory ground, violates the right to security of the members of the targeted
group and therefore constitutes actual discrimination.791

By instigating the forcible expulsion of Croatians from Hrtkovci, the accused

incited violence against them, in violation of their right to security. His speech
denigrated the Croatians on the basis of their ethnicity, in violation of their right to
respect for dignity as human beings. The accused’s speech rises to a level of gravity
amounting to the actus reus of persecution as a crime against humanity. 792

harassment, humiliation and psychological abuse

Subjecting victims to constant humiliation and degradation may amount to

psychological abuse as an underlying act of persecution. 793

Harassment, humiliation and psychological abuse as established in this case were

of sufficient gravity to constitute crimes of persecution under Article 5(h) of the
Statute.794

786
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 759
787
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3243
788
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3242
789
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 195
790
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 602;
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 221
791
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 159
792
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 163
793
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 510

142
 human shields

The use of human shields—the placement or detention of persons in areas where

they may be exposed to combat operations for the purpose of rendering certain areas or
activities immune from military operations or armed attack constitutes an act of
persecution. 795

In relation to the use of human shields, the perpetrator must intend to shield a
military objective from attack or shield, favour, or impede military operations.796

imprisonment

The crime of imprisonment consists of the following elements: (i) an individual is

deprived of his or her liberty; (ii) the deprivation of liberty is carried our arbitrarily, i.e.,
there is no legal basis for it; and (iii) the accused or perpetrator acted with the intent to
deprive the individual arbitrarily of his or her liberty. 797

Denial of freedom of movement, denial of employment, arbitrary searches of

homes, denial of right to judicial process, and denial of equal access to public services
constitute acts of persecution.798

If there is a legal basis for the deprivation of liberty, it must apply throughout the
period of imprisonment, for the deprivation of liberty will become arbitrary as soon as the
legal basis ceases to exist.799

mens rea

In addition to the chapeau requirements of knowledge of a widespread or

systematic attack against a civilian population, the mens rea for persecutions consists of
the intent to commit the underlying act and the intent to discriminate on political, racial
or religious grounds. The discriminatory intent requirement amounts to a dolus
specialis.800

For persecution, discriminatory intent alone does not suffice. The act or omission
must have “discriminatory consequences” in fact, and not merely be committed with
discriminatory intent.801

794
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 325
795
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 763-64
796
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 526
797
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 519
798
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 741
799
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 520
800
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 328
801
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 73

143
 Persecution as a crime against humanity requires evidence of a specific intent to
discriminate on political, racial or religious grounds. It falls to the Prosecution to prove
that the relevant acts were committed with the requisite discriminatory intent.802

While the requisite discriminatory intent may not be inferred directly from the
general discriminatory nature of an attack characterised as a crime against humanity, the
discriminatory intent may be inferred from such a context as long as, in view of the facts
of the case, circumstances surrounding the commission of the alleged acts substantiate
the existence of such intent.803

Discriminatory intent may be inferred from a context as long as, in view of the
facts of the case, circumstances surrounding the commission of the alleged acts
substantiate the existence of such intent. Circumstances which may be taken into
consideration include (1) the operation of the prison (in particular, the systematic nature
of the crimes committed against a racial or religious group) and (2) the general attitude of
the offence’s alleged perpetrator as seen through his behaviour. 804

An intent to persecute—that is, to remove targeted persons from society or

humanity—is not required.805

So long as there is the intent to discriminate against a person on one of the listed
grounds, specifically, race, religion, or politics, any additional motive of pursuing a
military goal is irrelevant.806

Shelling of Zagreb with intent to retaliate for attacks was not shown to have been
carried out with a discriminatory motive and therefore the crime of persecution was not
proven.807

Considering the Trial Chamber's findings that the Bosnian Croat army had a
military interest in the destruction of the Old Bridge and that it was a military target, no
reasonable trier of fact could have found, beyond reasonable doubt, that the Bosnian
Croat Army had the specific intent to discriminate. 808

The aider and abettor in persecution, an offence with a specific intent, must be
aware not only of the crime whose perpetration he is facilitating but also of the
discriminatory intent of the perpetrators of that crime. He need not share the intent but he
must be aware of the discriminatory context in which the crime is to be committed and
know that his support or encouragement has a substantial effect on its perpetration. 809

802
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 184
803
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422
804
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 184
805
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 111
806
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 733
807
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 473
808
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 422
809
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 52

144
 Discriminatory intent may be inferred from the context of the attack—i.e. all
guards being of one racial group and all prisoners of another. 810

Discriminatory intent may be inferred from an accused’s knowing participation in

a system or enterprise that discriminated on political, racial or religious grounds. 811

The circumstances to be taken into consideration include the systematic nature of

the crimes committed against a targeted group and the general attitude of the accused as
demonstrated by his behavior.812

The mens rea can be satisfied by proof that either the physical perpetrator or the
accused (ie through order, instigation etc) had the above discriminatory intent.813
The use of derogatory language in relation to a particular group – even where
such usage is commonplace – is one aspect of an accused’s behaviour that may be taken
into account, together with other evidence, to determine the existence of discriminatory
intent.814
Accused lacked discriminatory intent where only derogatory terms were used
against Muslims by him and where he saved a number of Muslim lives by opening a
corridor for them to pass.815

other acts

Persecution not only includes acts or omissions enumerated in other sub-clauses

of Article 5, but also acts or omissions of equal gravity. 816

Persecution as a crime against humanity does not require that the underlying acts
are crimes under international law. A trial chamber does not need to establish the
elements of the underlying acts, including the mens rea, even when the underlying act
also constitutes a crime under international law. With respect to the mens rea, all that is
required is establishing that the underlying act was deliberately carried out with
discriminatory intent.817

The crime of persecution requires an act or omission that discriminates in fact and
which denies or infringes upon a fundamental right laid down in international customary
or treaty law.818

While forms of persecution under Article 5(h) need not necessarily themselves be
considered as crimes in international law, those acts must be of equal gravity to the

810
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at paras. 130-31
811
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 711
812
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 711,727
813
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 181.
814
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 713
815
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2095
816
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 580
817
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 738
818
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 761

145
underlying offenses listed in Article 5 of the Statute in order to amount to persecution,
whether considered in isolation or in conjunction with other acts.819

Not every violation of a fundamental human right will be serious enough to

constitute a crime against humanity. 820

The destruction of the personal belongings and IDs of the men targeted for killing
did not rise to the level of gravity to constitute an act of persecution. 821

The assessment of whether certain acts meet the sufficient gravity requirement for
underlying forms of persecution involves two steps: (1) an assessment in the abstract of
whether those acts may be considered to meet the equal gravity test as a matter of law;
and (2) an assessment of whether in light of the evidence presented at trial, those acts did
meet the equal gravity test as a matter of fact. 822

The underlying act of persecution need not itself be an international crime. 823

Wilful killing, murder, and inflicting serious bodily and mental harm may
consitute persecutions.824 The use of civilians as hostages and human shields, forced
labor to dig trenches under combat conditions and subjecting them to physical and
psychological abuse all rise to the level of gravity of other violations enumerated in
article 5.825

Acts of serious bodily and mental harm are of sufficient gravity as compared to
the other crimes enumerated in Article 5 of the Statute and therefore may constitute
persecution. 826

The imposition of restrictive and discriminatory measures in the form of

deprivation of housing, property, and humanitarian assistance, carried out on
discriminatory grounds, and for which the general elements of crimes against humanity
are fulfilled, may only meet the gravity threshold and constitute a crime of persecution
when taken in conjunction with other acts.827

The invasion of privacy through arbitrary searches of homes and the denial of
equal access to public services constitute the crime of persecution when the general

819
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 38
820
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1803
821
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 875
822
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions Challenging
Jurisdiction (28 April 2009) at para. 42
823
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 735;
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 296
824
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 106
825
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 107
826
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 587
827
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1807

146
requirements of a crime against humanity and the specific requirements of persecution
are satisfied and when these acts are considered in conjunction with other acts
constituting persecution828

To assess the seriousness of an act, consideration must be given to all the factual
circumstances, including the nature of the act or omission, the context in which it
occurred, the personal circumstances of the victim including age, sex and health, as well
as the physical, mental and moral effects of the act upon the victim 829

Psychological impact on a population may satisfy the required gravity threshold

of the crime. 830

plunder

Plunder and looting of public and private property as an underlying act of

persecution is to be understood as any intentional and unlawful appropriation of public or
private property that has a serious impact on the owner or user of the property. 831

The prohibition against plunder is general in scope and extends both to acts of
looting committed by individual soldiers for their private gain and to the organised
seizure of property undertaken within the framework of a systematic economic
exploitation of occupied territory. 832

Plunder—an intentional appropriation of public or private property, not justified

by military necessity, that has a severe impact on the owner or user of the property,
constitutes an act of persecution. 833

An act of plunder which in itself does not have a serious impact on the victim,
may still, when carried out on discriminatory grounds, and when the general elements of
crimes against humanity are fulfilled, constitute the crime of persecution, when
considered in conjunction with other acts.834

Under international humanitarian law there is a general exception to the

prohibition of appropriation of property when the appropriation is justified by military
necessity. 835

828
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 92
829
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 165
830
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 564
831
Prosecutor v Gotovina et al, No, IT-06-90-T, Judgement (19 April 2011) at para. 1821; Prosecutor v
Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3252
832
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 528
833
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 768-69
834
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3254
835
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3250

147
 In the context of an international armed conflict, treaty law and international
customary law justify battlefield seizures of military equipment of the adverse party as
war booty. 836

The mens rea requirement for plunder or appropriation of property is satisfied

when the perpetrator acts knowingly with the intent to appropriate public or private
property unlawfully. 837

sexual violence

To be charged as persecution, it need not be shown that sexual assault constituted

a crime under international law at the time the relevant acts were committed. 838

The Chambers of the ICTR have found that sexual violence is not limited to acts
of penetration or physical contact and includes forced nudity, which may be considered
an inhumane act.839 The ICTY has also found that sexual mutilation and severe bodily
harm violate the right to physical integrity and dignity of a human being. 840

Sexual assault is not limited to acts of penetration and has been found to include
“all serious abuses of a sexual nature inflicted upon the integrity of a person by means of
coercion, threat of force or intimidation in a way that is humiliating and degrading to the
victim’s dignity.”841

The elements that the Prosecution must prove in order to find sexual assault are
(1) the physical perpetrator commits an act of a sexual nature on another, including
requiring that person to perform such an act; (2) that act infringes the victims’ physical
integrity or amounts to an outrage to the victim’s personal dignity; (3) the victim does not
consent to the act; (4) the physical perpetrator intentionally commits the act; and (5) the
physical perpetrator is aware that the act occurred without the consent of the victim. 842

Sexual violence is found when (i) the perpetrator commits an act of a sexual
nature on another or requires the victim to perform such an act, (ii) that act infringes on
the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity,
and (iii) the victim does not consent to the act. The perpetrator must intentionally commit
the act, and be aware that the victim did not consent to the act.843

Serious abuses of a sexual nature inflicted upon the integrity of a person by means
of coercion, threat of force, or intimidation in a way that is humiliating and degrading to
the victim’s dignity may constitute other acts of sexual violence. These acts are not

836
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3250
837
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3251
838
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 187.
839
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 190.
840
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 191.
841
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 195.
842
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 201
843
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 513

148
limited to the physical invasion of the human body and may include acts which do not
involve penetration or even physical contact.844

In situations of detention in an armed conflict, lack of consent and coercion can

be inferred and thus the force required for a sexual assault is only that which is necessary
to perform the act of a sexual nature, and actual coercion is not a required element. 845

Insufficient evidence of sexual assault where the evidence indicated that women
had been taken away by Serb forces and returned crying and looking dissheveled. 846

Where only two incidents of sexual assault were proven, and the only evidence of
discriminatory intent was the fact that the victims were from the targeted ethnic group,
this was insufficient to establish the mens rea of persecution. 847

Trial Chamber erred in finding that rapes were not shown to be committed with
discriminatory intent when they were committed in the course of an operation to remove
a large number of Kosovo Albanians from the town. 848

terrorizing the civilian population

Terroriation of the civilian population is of sufficient gravity as to constitute an

act of persecution. 849

The incidents of shelling and sniping of the civilian population in Srebrenica in

the months prior to the fall of the enclave were of sufficient gravity to satisfy acts of
persecution under Article 5.850

The elements of persecution by terrorizing the civilian population are: 1. Acts or

threats of violence; 2. the offender wilfully made the civilian population or individual
civilians not taking part in hostilities the object of those acts or threats of violence; and 3.
the acts or threats of violence were carried out with the primary purpose of spreading
terror among the civilian population. 851

Terrorising of the civilian population does not require an actual infliction of

terror. The Prosecution only needs to prove that acts or threats of violence were carried
out to create an atmosphere of extreme fear or uncertainty of being subjected to violence
among the civilian population. 852

844
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 512
845
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 200.
846
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at paras. 1792,1794
847
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 1796
848
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 580
849
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 981
850
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 765
851
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 589
852
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 590

149
 The offender must have intended to terrorise the civilian population. The
infliction of terror need not be the only objective of the acts or threats of violence, but it
must be the principal aim. 853

The Trial Chamber was not required to establish that spreading terror was the
primary purpose of the underlying acts of terrorising civilians, although the primary
purpose of the underlying acts may have been relevant to the gravity of the acts in
question. 854

To establish the actus reus of persecution in the present case, the Trial Chamber
was required to establish that the underlying acts of terrorising civilians: discriminated in
fact, denied or infringed upon a fundamental right laid down in international customary
or treaty law, and were of equal gravity to the crimes listed in Article 5 whether
considered in isolation or in conjunction with other acts.855

rape

The actus reus of the crime of rape in international law is constituted by: the
sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of
the perpetrator or any other object used by the perpetrator; or (b) the mouth of the victim
by the penis of the perpetrator; where such sexual penetration occurs without the consent
of the victim. Consent for this purpose must be consent given voluntarily, as a result of
the victim’s free will, assessed in the context of the surrounding circumstances. The mens
rea is the intention to effect this sexual penetration, and the knowledge that it occurs
without the consent of the victim. 856

Force or threat of force provides clear evidence of non-consent, but force is not an
element per se of rape. There are “factors [other than force] which would render an act of
sexual penetration non-consensual or non-voluntary on the part of the victim.” 857
Circumstances that prevail in most cases charged as either war crimes or crimes against
humanity will be almost universally coercive. That is to say, true consent will not be
possible.858

self-defence

The question of the legitimacy of the decision to resort to force is irrelevant to the
determination of individual criminal responsibility for violations of international
humanitarian law. Whether an attack was ordered as pre-emptive, offensive or defensive,
is irrelevant, if the way the military operation was carried out was criminal. 859

853
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 591
854
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 763
855
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 762
856
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 127
857
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 129
858
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 130
859
Prosecutor v Djordjevic, No. IT-05-87/1-T, Judgement (23 February 2011) at para. 2053

150
 torture

Torture has the following constitutive elements; (1) the infliction, by act or
omission, of severe pain or suffering, whether physical or mental; (2) the act or omission
must be intentional; (3) the act or omission must aim at obtaining information or a
confession, or at punishing, intimidating or coercing the victim or a third person, or at
discriminating , on any ground, against the victim or a third person. 860

Sexual violence necessarily gives rise to severe pain or suffering, whether

physical or mental, and in this way it is justifiably characterised as an act of torture. 861

Severe pain or suffering, as required by the definition of the crime of torture, can
thus be said to be established once rape has been proved, since the act of rape necessarily
implies such pain or suffering.862

The crimes of torture and rape each contain a materially distinct element not
contained by the other. That is, that an element of the crime of rape is penetration,
whereas an element for the crime of torture is a prohibited purpose, neither element being
found in the other crime. For rape to be categorised as torture, both the elements of rape
and the elements of torture must be present. 863
Rape involves the infliction of suffering at a requisite level of severity to place it
in the category of torture. The Court must not only look at the physical consequences, but
also at the psychological and social consequences of the rape.864
Even if the perpetrator’s motivation is entirely sexual, it does not follow that the
perpetrator does not have the intent to commit an act of torture or that his conduct does
not cause severe pain or suffering , whether physical or mental, since such pain or
suffering is a likely and logical consequence of his conduct. In view of the definition, it is
important to establish whether a perpetrator intended to act in a way which, in the normal
course of events, would cause severe pain or suffering, whether physical or mental, to his
victims. 865

Torture is constituted by an act or omission giving rise to severe pain or suffering,

whether physical or mental. Whether acts or omission amount to torture must be
considered on a case-by-case basis. 866

Acts inflicting physical pain may amount to torture even when they do not cause
the amount of pain of the type accompanying serious injury. Whether an act causes
severe pain or suffering is determined on a case-by-case basis. 867

860
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 142; Prosecutor v
Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 74
861
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 150
862
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 151
863
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 179-182
864
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 182-183
865
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 153
866
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 299

151
 Falsely telling prisoners that they will be executed, in a brutal context that makes
the statement believable can amount to willfully causing great suffering.868

Severe physical abuse in the course of interrogation can amount to willfully

causing great suffering. 869

While the duration of the acts is relevant, there is no requirement that the acts go
on for any fixed period.870

Trial Chamber erred in inferring from accused’s witnessing of beating of prisoner

en route to the prison that he was aware of subsequent mistreatment at the prison. 871

The perpetrator of the crime of torture need not have been a public official, nor
need the crime have been committed in the presence of a public official. 872

The purpose of torture need not be the “predominant or sole purpose” behind
inflicting the severe pain or suffering. 873

Article 6—personal jurisdiction

The International Tribunal shall have jurisdiction over natural persons pursuant to
the provisions of the present Statute.

The Tribunal’s jurisdiction ratione personae is not limited to nationals of certain

states, irrespective of membership of that state in the United Nations. 874

Article 7—individual criminal responsibility

1. A person who planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution of a crime referred to in articles 2
to 5 of the present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or
Government or as a responsible Government official, shall not relieve such person
of criminal responsibility nor mitigate punishment.

867
Prosecutor v Brdjanin, No. IT-98-36-A, Judgement (3 April 2007) at para. 251
868
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 300
869
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 300
870
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 300
871
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 306
872
Prosecutor v. Kunarac et al, No. IT-96-23-A & IT-96-23/1-A, Judgement (12 June 2002) at para. 148;
Prosecutor v. Simi et al, No. IT-95-9-T, Judgement, (17 October 2003) at para. 82; Proscutor v Brdjanin,
No. IT-99-36-T, Judgement (1 September 2004) at para 488.
873
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 508
874
Prosecutor v Seselj, No. IT-03-67-PT, Decision on the Accused’s Requests for a Ruling of the
International Court of Justice Concerning the Tribunal’s Jurisdiction Over Nationals of the Federal
Republic of Yugoslavia (21 April 2005)

152
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute
was committed by a subordinate does not relieve his superior of criminal
responsibility if he knew or had reason to know that the subordinate was about to
commit such acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of
a superior shall not relieve him of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal determines that justice so
requires.

aiding and abetting

actus reus

The actus reus for ‘aiding and abetting’ is that the accused carried out an act
which consisted of practical assistance, encouragement or moral support to the principal.
The criminal act of the principal for which the aider and abettor is responsible must be
established. The assistance need not have caused the act of the principal, but it must have
had a “substantial effect” on the commission of the crime. The assistance may be
provided by either an act or by an omission, and it may occur before, during or after the
act of the principal. 875

The actus reus for aiding and abetting consists of practical assistance,
encouragement, or moral support which has a substantial effect on the perpetration of the
crime.876

The participation of the aider and abettor need not be a crime in itself. Rather, the
relevant question is whether his actions assisted in and substantially contributed to the
commission of the crime.877

The actus reus of aiding and abetting may be satisfied by a commander permitting
the use of resources under his or her control, including personnel, to facilitate the
perpetration of a crime.878

The criminal responsibility of an aider and abettor does not require the
contribution to the crime of persecution to go to the discriminatory nature of this crime.
The assistance given need not itself be discriminatory. 879

875
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 726;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 517
876
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1732; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at fn. 594
877
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1765; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 172
878
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1784
879
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1812

153
 after-the-fact

It is required for ex post facto aiding and abetting that at the time of the planning,
preparation or execution of the crime, a prior agreement exists between the principal and
the person who subsequently aids and abets in the commission of the crime. 880

definition

Aiding and abetting requires a three-step test: (1) the participant commits a crime
punishable under the statute; (2) the accused aids and abets the participant in the
commission of the crime; and (3) the accused acts with the awareness that his acts will
assist the participant in the commission of the crime. 881

mens rea--definition

The mens rea for aiding and abetting means that (1) aiding and abetting must be
intentional; (2) he must both intend to further his own contribution and to further the
intentional completion of the crime by the perpetrator; (3) he is aware of the commission
of the crime and accepts it as more likely than not ; and (4) he is aware of the type and
essential elements of the crime to be committed.882

The requisite mental element is knowledge that the acts or omissions performed
by the aider and abettor assist the commission of a specific crime by the principal. 883

Although the accused’s lending of practical assistance, encouragement, or moral

support must itself be intentional, intent to commit the crime or underlying offence is not
required. 884

Knowledge need not have been overtly expressed and may be inferred from the
circumstances. 885

mens rea—knowledge of perpetrator’s intent

The aider and abettor must also be aware of the “essential elements” of the crime
committed by the principal offender, including the state of mind of the principal
offender.886

880
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 731
881
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 269
882
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 288
883
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v
Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 248; Prosecutor v. Milutinovic et
al, No. IT-05-87-T, Judgement (26 February 2009) at para 94
884
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
885
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
886
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 727;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 518; Prosecutor v
Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 51

154
 Although the accused must be aware, at a minimum, of the essential elements of
the substantive crime or underlying offence for which he is charged with responsibility as
an aider and abettor, he need not know the intangible thoughts and feelings of the person
or persons who in fact physically perpetrate the crime or underlying offence. 887

Aiding and abetting liability does not require knowledge of every specific detail
of the crimes. It is sufficient that the accused was aware of the “essential elements” of the
crimes committed by the principal perpetrators. The degree of knowledge pertaining to
the details of the crime required to satisfy the mens rea of aiding and abetting will depend
on the circumstances of the case, including the scale of the crimes and the type of
assistance provided. 888

It is not necessary that the aider and abettor know the precise crime that was
intended or actually committed, as long as he was aware that one or a number of crimes
would probably be committed, and one of these crimes was in fact committed. 889

mens rea—specific cases

Knowledge that isolated incidents of murder might occur was not sufficient to
establish that the accused knew of the probability that the Serb forces would commit the
murders in the villages charged in the indictment.890

It could not be established that accused knew that the perpetrators would commit
a crime on the scale of extermination at Srebrenica. Therefore, the accused could not be
convicted of aiding and abetting extermination. 891

Fact that accused could have known that crimes might be committed by
paramilitaries and other persons if they had access to the prisoners was insufficient to
establish aiding and abetting of the offences committed by the perpetrators. 892

No reasonable Trial Chamber could conclude that knowledge of use of excessive

force by Serb troops in Kosovo in 1998 meant that the accused knew of the probability
that if ordered to operate in Kosovo in 1999, the Serb troops would act with the intent to
commit deportation and forcible transfer. 893

887
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
888
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1800; Prosecutor v
Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1622
889
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 350; Prosecutor v
Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 58; Prosecutor v Popovic et al, No. IT-
05-88-A, Judgement (30 January 2015) at paras. 1733,1751,1795
890
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1792
891
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1647
892
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para. 658
893
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1709

155
 The evidence referred to by the Prosecution, at best, shows that the accused put
vulnerable women in contact with KLA soldiers who had a reputation for violence. There
was no evidence as to what happened to the women between the time that they were last
seen alive and the time that they were killed, in particular which KLA soldiers killed
them or under what circumstances they were killed. None of the evidence shows that the
accused was aware that a crime would be committed against the women at the relevant
time.894

The probability, indeed, the considerable likelihood, that the prisoners of war
would be gravely injured and murdered, was one which would have been obvious to the
accused and anyone with his knowledge of the perpetrators. By enabling the unrestrained
access to the prisoners the Accused was assisting in the commission of the offences of
violence and murder that he was aware would indeed probably follow. These matters
establish the mens rea necessary to constitute aiding and abetting the commission of the
murders for the purposes of Article 7(1).895

mens rea--specific intent crimes

In cases of specific intent, crimes such as persecution or genocide, the aider and
abettor must know of the principal perpetrator’s specific intent. 896

The requirement that the aider and abettor need merely know of the physical
perpetrator or intermediary perpetrator’s intent—and need not share it—applies equally
to specific-intent crimes or underlying offences such as persecution as a crime against
humanity. 897

relationship with perpetrator

In the context of a crime committed by several co-perpetrators in a joint criminal

enterprise, the aider and abettor is always an accessory to these co-perpetrators, although
the co-perpetrators may not even know of the aider and abettor’s contribution. 898

For an accused to be liable for aiding and abetting, the underlying crime must
ultimately be committed by the principal perpetrator. It is however not necessary that the
latter be identified or tried, even in cases of crimes requiring specific intent. 899

For persecution, the aider and abettor need not share the perpetrator’s
discriminatory intent.900

894
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 60
895
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 621
896
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 140; Prosecutor v Blagojevic
& Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v Popovic et al, No. IT-05-88-
A, Judgement (30 January 2015) at para. 1830
897
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 94
898
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 102; Prosecutor v Mrksic &
Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 81, 146, 200
899
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 127

156
 It is well established that the mens rea of aiding and abetting requires that an aider
and abettor know that his acts would assist in the commission of the crime by the
principal perpetrator and must be aware of the “essential elements” of the crime. It does
not require that he shares the intention of the principal perpetrator of such crime, 901

Trial Chamber correctly concluded that it had not been established that soldiers
who were expelling the population had the intent to kill Kosovo Albanians. Therefore, it
properly found that the accused was not aware of the mental state of the perpetrators and
could not be convicted of aiding and abetting murder.902

omission

distinguished from superior responsibility

As superior responsibility under Article 7(3) is the archetypal form of omission

liability for superiors, a form of omission liability arising out of Article 7(1) does not take
precedence over superior responsibility under Article 7(3). There is a preference for
those manifestations of Article 7(1) forms of responsibility that involve the active
advancement of a crime—for example, aiding and abetting through positive action—and
a conviction pursuant to Article 7(3) is not precluded where the only available Article
7(1) forms of responsibility are realised by means of an omission. 903

duty to act

Omission may result in individual criminal responsibility under Article 7(1)

where the accused had a legal duty to act. This requires that the accused had the ability
to act, namely, that he had the means available to fulfil his legal duty, but nonetheless
failed to do so.904

Aiding and abetting can be achieved by omission, provided that the accused had a
duty to prevent the crime from being brought about.905

In addition, it must be demonstrated that there were means available to the

accused to fulfill this duty. 906
900
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 101
901
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 727;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 518; Prosecutor v
Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 51; Prosecutor v Lukic & Lukic, No. IT-
98-32/1-A, Judgement (4 December 2012) at para. 428; Prosecutor v Popovic et al, No. IT-05-88-A,
Judgement (30 January 2015) at paras. 1732-33, 1794
902
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1774
903
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 79
904
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 49, 82, 154;
see also para 134; Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Six Preliminary Motions
Challenging Jurisdiction (28 April 2009) at para. 72
905
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 283; Prosecutor v Milutinovic et
al, No. IT-05-87-T, Judgement (26 February 2009) at para. 90

157
 By the failure to discharge his legal duty to protect the prisoners of war from
mistreatment, the Accused aided and abetter the crimes of torture and cruel treatment; not
the crime of murder.907

The accused’s duty to protect prisoners of war includes the obligation not to allow
the transfer of their custody without first assuring himself that they would not be
harmed.908

The duty to protect also arises when other units or individuals, not just a
commander’s subordinates, are involved in crimes. 909

elements

In order to incur criminal liability for an omission under Article 7(1), the accused
must have had a legal duty mandated by a rule of criminal law; he must have had the
ability to act; he failed to act intending the criminally sanctioned consequences or with
awareness and consent that the consequences would occur; and the failure to act resulted
in the commission of the crime.910

Along with the “approving spectator” doctrine, aiding and abetting also
encompasses culpable omissions, where (a) there is a legal duty to act, (b) the accused
has the ability to act, (c) he fails to act either intending the criminal consequences or with
awareness and consent that the consequences will ensue, and (d) the failure to act results
in the commission of the crime.911

“[T]o enter a conviction for aiding and abetting murder by omission, at a

minimum, all the basic elements of aiding and abetting must be fulfilled.” 912

The actus reus of aiding and abetting may be perpetrated through an omission. 913

The actus reus of aiding and abetting by omission is established when it is shown
that the accused failed to perform a legal duty which failure “assisted, encouraged or lent
moral support to the perpetration of the crime,” and had a “substantial effect” on the
commission of the crime.914

906
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1740
907
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 674
908
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1754
909
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1546
910
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 1117
911
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 90; Prosecutor v
Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1677
912
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 49
913
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 134
914
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 49;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1740

158
 The required mens rea for aiding and abetting by omission is that: (1) the aider
and abettor must know that his omission assists in the commission of the crime of the
principal perpetrator; and (2) he must be aware of the essential elements of the crime
which was ultimately committed by the principal. While it is not necessary that the aider
and abettor know the precise crime that was intended and was in fact committed, if he is
aware that one of a number of crimes will probably be committed, and one of those
crimes is committed, he has intended to facilitate the commission of that crime, and is
guilty as an aider and abetter.915

It was not required that the accused’s failure to act was purposeful. 916

The requirements for aiding and abetting by omission are the same as for aiding
and abetting by a positive act. Thus, it must be determined whether, on the particular
facts of a case, it is established that the failure to discharge a legal duty assisted,
encouraged, or lent moral support to the perpetration of the crime, and had a substantial
effect on it. In addition, it must be demonstrated that the accused had the ability to act, or
in other words, that there were means available to the accused to fulfil this duty.917

In view of the fact that the accused made an effort, albeit ineffective, to stop the
firing, the Accused’s failure to take more effective measures to stop the unlawful shelling
of the Old Town does not make him guilty of aiding and abetting. 918

The Accused knew that both violence and cruel treatment was occurring to the
prisoners of war, despite the existing security arrangements he had ordered, and was well
aware of the animosity to the prisoners of the perpetrators and of their propensity to
extreme violence against prisoners. Yet the accused took no action to prevent the
continuance of the offences of cruel treatment that had been occurring. He had readily
available to him more than adequate officers to ensure that the incidents of mistreatment
that had occurred were not repeated. His omission, or failure to act constituted aiding and
abetting the acts of cruel treatment.919

The accused’s failure to discharge his legal duty to protect the Bosnian Muslim
prisoners assisted the perpetration of murder and the other crimes committed at Kravica
Warehouse against the Bosnian Muslim prisoners detained there, and had a substantial
effect on the realisation of the said crimes. He thus aided and abetted murder by
omission.920

substantial effect

915
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 159, see also
para. 49
916
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1758
917
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1791
918
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 355
919
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 627
920
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1563

159
 Commander’s failure to file additional criminal reports, initiate additional
investigations, or taken other measures to punish perpetrators was not shown to have
made the commission of crimes more likely and therefore his omissions did not have a
substantial effect on the crimes.921

Whether an act or omission had a substantial effect on the commission of a crime

is a fact-based inquiry. This aspect of aiding and abetting by omission has been
interpreted to mean that had the accused acted the commission of the crime would have
been substantially less likely. 922

plan

In the case of aiding and abetting, no proof is required of the existence of a

common concerted plan, let alone the existence of a pre-existence of such a plan. Indeed,
the principal need not even know of the accomplice’s contribution. 923

presence

Mere presence at the scene of the crime does not constitute aiding and abetting,
unless the person has a duty to prevent it.924

The Trial Chamber found that the presence and continued interrogation of a
witness by a person, can encouraged a third party and substantially contributed to the
criminal acts committed by him. The knowing presence constitutes aiding and
abetting. 925

Close proximity alone of fighting positions to the prison camp did not support the
inference that the accused was present and personally participated in the operation of the
prison camp.926

Commander’s presence and inspections of troops on the ground did not constitute
aiding and abetting where it was not shown that they specifically legitimized or
encouraged the crimes.927

The location at which the actus reus takes place may be removed from the
location of the principal crime. 928

921
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at paras. 1679, 1682
922
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1741
923
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 263; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 91
924
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 283
925
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 126
926
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para.313
927
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1689
928
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 81, 146, 200;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1783

160
 principal

Liability for aiding and abetting under the Statute cannot be inchoate: the accused
cannot be held responsible under Article 7(1) for aiding and abetting if a crime or
underlying offence is never actually carried out with his assistance, encouragement, or
moral support.929

A defendant may be convicted of having aided and abetted a crime even if the
principal perpetrators have not been tried or identified. 930

Notwithstanding the requirement that the crime or underlying offence be

ultimately committed, however, the physical perpetrator or intermediary perpetrator need
not have been tried or even identified, even where the crime or underlying offence
requires specific intent, and the perpetrator or perpetrators need not have been aware of
the accused’s contribution.931

Trial Chamber declined to make a finding on allegation that accused created a

climate of impunity where it was not shown that the crimes were committed by his
subordinates.932

specific direction

“Specific direction” is not an element of aiding and abetting liability. 933

Principle of lex mitior does not apply because it has been established that specific
direction has never been a part of the elements of aiding and abetting under customary
international law, which the Tribunal has to apply. 934

substantial effect

Aiding and abetting may be constituted by any contribution to the planning,

preparation, or execution of a finally-completed crime provided that the contribution falls
short of co-perpetration, instigation, or ordering, but nevertheless makes the performance
of the crime easier.935

929
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 92
930
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 355
931
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 92
932
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1586
933
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1649; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1758; Prosecutor v Stanisic &
Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 106
934
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 128
935
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 282

161
 An act of aiding and abetting must have had a substantial effect on the
commission of persecutory acts.936

Aiding and abetting must be substantial and have a significant effect on the
commission of the crime, but is not limited to direct contributions. 937

Encouragement and moral support could only have a substantial effect on the
commission of the crime if the perpetrators were aware of it.938

Appeals Chamber was not convinced that the only inference available from the
accused’s position and tacit approval of beatings was that he lent substantial assistance to
the commission of cruel and inhumane treatment of detainees and reversed his conviction
on that count.939

There was insufficient evidence to prove beyond a reasonable doubt that the
accused’s conduct constituted either encouragement or moral support for the camp
personnel which had a substantial effect on the commission of torture. 940

Merely signing orders for the classification and release of civilians on behalf of
another individual will not, in the absence of any independent authority, be sufficient.941

The provision of engineering machinery and personnel for burial operations can
have a substantial effect on the commission of mass executions.

By providing them with logistical support, the accused permitted soldiers under
his active control to facilitate the perpetration of the killings and his doing so had a
substantial effect upon their commission. 942

The accused’s armed presence fulfilled the substantial assistance requirement for
the actus reus of aiding and abetting the crimes of other inhumane acts and cruel
treatment.943

Although the practical assistance, encouragement, or moral support provided by

the accused must have a substantial effect upon the commission of the crime or

936
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para 277; Prosecutor v
Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 37; Prosecutor v. Delalic, No. IT-96-21-
A, Judgement (20 February 2001) at para 352
937
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 284-85
938
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 277
939
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 130
940
Prosecutor v. Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 276
941
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 357 – 358.
942
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1784
943
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 438

162
underlying offence, the prosecution need not prove that the crime or underlying offence
would not have been perpetrated but for the accused’s contribution. 944

The element of substantial assistance for aiding and abetting does not require that
the accused provided the specific weapon used by the perpetrator. The element may be
established by the numerous other forms of practical assistance which substantially
facilitated the perpetrators’ crimes. 945

The fact that the substantial assistance was part of the accused’s “routine duties”is
no defence where the conduct substantially contributes to the commission of crimes. 946

Even a limited involvement may nevertheless have a substantial effect on the

realisation of a crime. 947

timing

The aider and abettor must have acted before the crime was fully completed, but
may act after the principal act of the crime had been committed. 948

Aiding an abetting may occur at the planning, preparation or execution stages of

the crime/underlying offense and practical assistance, encouragement, or moral support
may occur before, during or after the crime/underlying offense occurs. 949

The accused may aid and abet at one or more of three possible stages of the crime
or underlying offence—“planning, preparation or execution”—and the lending of
practical assistance, encouragement, or moral support may occur before, during, or after
the crime or underlying offence occurs.950

The actus reus of the aider and abettor need not serve as condition precedent for
the crime and may occur before, during, or after the principal crime has been
perpetrated.951

committing

Committing a crime covers physically perpetrating a crime or engendering a

culpable omission in violation of criminal law. The actus reus is that the accused
participated, physically or otherwise directly, in the material elements of a crime through

944
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 92; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 1740,1783
945
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1624
946
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at para. 1624
947
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1765
948
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 282
949
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 91.
950
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 91
951
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 127; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1783

163
positive acts or omissions, whether individually or jointly with others. The mens rea is
the intent to commit the crime, or with the awareness of the substantial likelihood that the
crime would occur as a consequence of one’s conduct.952

It is not necessary that the perpetrator commit the crime with his own hands. A
person who plays a central role in the commission of the crime of murder and embraces
and approves as his own the decision to commit murder is not adequately described as an
aidor and abetter but qualifies as a direct perpetrator who committed the crime. 953

A person may be jointly liable for committing murder if he participated in the

material elements of the crime, even it was not shown he fired the fatal bullet. 954

Joint criminal enterprise comes within the term “committed” and is encompassed
within Article 7(1) of the Statute despite not being explicitly referred to. 955

forms of liability in general

In order to come within the Tribunal’s jurisdiction ratione personae, any form of
liability must satisfy the preconditions of: (1) it must be provided for in the statute,
explicitly or implicitly; (2) it must have existed under customary international law at the
relevant time; (3) the law providing for that form of liability must have been sufficiently
accessible at the relevant time to anyone who acted in such a way; and (4) such person
must have been able to foresee that he could be held criminally liable for his actions if
apprehended. 956

The Trial Chamber -having found that an element necessary for a finding of the
commission pursuant to JCE III liability had not been proven - erred by failing to make
findings on whether the accused were responsible for failing to punish crimes under
Article 7(3) of the Statute, as an alternative mode of liability. 957

indirect co-perpetration

The form of liability called “indirect co-perpetration” did not exist in customary
international law and therefore could not be charged as a form of liability at the
Tribunal. 958

952
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 509; Prosecutor v
Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 615
953
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Judgement (20 July 2009) at para. 899
954
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 162
955
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 19-20; Prosecutor v Dordevic,
No. IT-05-87/1-A, Judgement (27 January 2014) at para. 28
956
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 21
957
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3149
958
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 62; Prosecutor v Milutinovic
et al, No. IT-05-88-PT, Decision on Ojdanic Motion Challenging Jurisdiction: Indirect Co-Perpetration

164
 Co-perpetratorship is not a valid form of liability at the ICTY.959

Allegations of indirect coperpetration in indictment would stand in light of

Appeals Chamber decision in Brdjanin that a member of a joint criminal enterprise may
be responsible for non-members who perpetrate crimes.960

instigating

actus reus

The actus reus of instigating means to prompt another person to commit an

offence. While it is not necessary to prove that the crime would not have been
perpetrated without the involvement of the accused, it is sufficient to demonstrate that the
instigation was a factor substantially contributing to the conduct of another person
committing the crime. 961

While the accused’s prompting must have been a factor “substantially

contributing to the conduct of another person committing the crime”, the Prosecution
need not prove that the crime or underlying offence would not have been perpetrated but
for the accused’s prompting. 962

To be convicted of instigating, the offence must be actually committed.963

Instigating must be more than facilitating the perpetrator’s commission of the

offence. It requires influencing the perpetrator by some kind of inciting, soliciting, or
otherwise inducing him to commit the crime. 964

Liability for instigating may ensue through implicit, written, or other non-verbal
prompting by the accused. 965

Instigation need not be public or direct, and may be committed through

intermediaries so long as the instigator possesses the requisite intent. 966

(22 March 2006) at para. 40; Prosecutor v Cermak & Markac, No. IT-01-45-PT, Decision on Prosecution’s
Consolidated Motion to Amend the Indictment and Joinder (14 July 2006) at para. 26
959
Prosecutor v Prlic et al, No. IT-04-74-AR72.3, Decision on Petkovic’s Appeal on Jurisdiction (23 April
2008) at para. 21
960
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Indriz Balaj’s Preliminary Motion
Concerning Paragraph 29 of the Indictment (31 May 2007) at para. 6
961
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 27;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 514; Prosecutor v Oric,
No. IT-03-68-T, Judgement (30 June 2006) at para. 274; Prosecutor v Seselj, No. MICT-16-99-A,
Judgement (11 April 2018) at paras. 124, 153
962
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 84; Prosecutor v
Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 131
963
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 623
964
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 271
965
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.83

165
 The accused need only prompt another to “act in a particular way”—and not
necessarily to commit a crime or underlying offence per se—if he has the intent that a
crime or underlying offence be committed in response to such prompting, or if he is
aware of the substantial likelihood that a crime or underlying offence will be
committed.967

Proof of threats, enticement, or promises to physical perpetrators may have some

relevance in assessing whether a particular conduct amounts to instigation. However, it is
not a legal requirement.968

distinguished from aiding and abetting

It is not necessary to prove that the idea or plan to commit the crime was
generated by the instigator. However, if the perpetrator has already decided to commit
the crime, acts of facilitation at that stage qualify as aiding and abetting and not
instigation. 969

The distinction between aiding and abetting and instigation is that for aiding and
abetting the perpetrator has already decided to carry out the crime, whereas for
instigation, the accused acts before that decision is made. 970

mens rea

A person who instigates another person to commit an act or omission with the
awareness of the substantial likelihood that a crime will be committed in the execution of
that instigation has the requisite mens rea for instigating.971

The instigator must be aware of the type and elements of the crime to be
committed.972

An instigator must be aware of his influencing effect on the principal perpetrator

to commit the crime and must at least accept that the crime be committed. The
occurrence of a crime is accepted when the instigator is aware that the commission of the
crime will more likely than not occur as a result of his conduct. 973

omission

966
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 273
967
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 84, fn. 88
968
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 124
969
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 271
970
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 281
971
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 32;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 514
972
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 279
973
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 279

166
 The accused’s prompting may occur not only through positive acts, but also
through omissions. 974

Instigation may be committed by omission, provided that the instigator is under a

duty to prevent the crime from being brought about.975

Instigation may not be committed by omission. 976

relationship with instigatee

Instigation does not require some kind of superiority by the instigator over the
perpetrator.977

Instigation does not require that the accused have “effective control” over the
perpetrator or perpetrators.978

specific cases

The Trial Chamber properly found the accused responsible for instigation on the
basis of the totality of the evidence, including the evidence suggesting (i) that he was
responsible for the preparation of the operation with the predominant objective to
indiscriminately attack Albanian villagers and their property; (ii) that he personally led
this operation; (iii) that he was present in Ljuboten while the crimes were committed; and
(iv) that he authorized the police members not conduct an inspection in respect of the
deaths of three men. (Satisfied Actus Reus of instigation). 979

A reasonable trier of fact could find such a link to be tenuous in circumstances

where there was a significant lapse of time between the statement and the offences,
allowing for the reasonable possibility that the accused' s statement did not substantially
contribute to the commission of the specific crimes and that other factors may have
influenced the conduct of the perpetrators.980

In light of the accused's influence over the crowd and the striking parallels
between his inflammatory words and the acts subsequently perpetrated by, inter alia,
members of the audience, no reasonable trier of fact could have found that, through his

974
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.83
975
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 273; Prosecutor v Karadzic, No.
IT-95-5/18-PT Decision on Six Preliminary Motions Challenging Jurisdiction (28 April 2009) at para. 76
976
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at paras. 229-30; Prosecutor v
Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 572
977
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 272; Prosecutor v Popovic et al,
No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1008
978
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.83
979
Prosecutor v Boskoski & Tarculovski v. Boškoski, No. IT-04-82-A, Judgement (19 May 2010) at para
157.
980
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 132

167
speech, he did not substantially contribute to the conduct of the perpetrators.981

In view of the content of his speech, the accused intended to prompt the
commission of the crimes or, at the very least, was aware of the substantial likelihood
that the crimes of deportation, persecution (forcible displacement), and other inhumane
acts (forcible transfer) as crimes against humanity would be committed in execution of
his instigation.982

joint criminal enterprise

common elements

When all the elements of JCE are met in a particular case, the accused has done
far more than merely associate with criminal persons. He has the intent to commit a
crime, he has joined with others to achieve this goal, and he has made a significant
contribution to the crime’s commission. Thus, he is appropriately held liable also for
those actions of other JCE members, or individuals used by them, that further the
common criminal purpose (first category of JCE) or criminal system (second category of
JCE), or that are a natural and foreseeable consequence of the carrying out of this crime
(third category of JCE).983

To find individual criminal responsibility pursuant to a joint criminal enterprise in

any of the three categories, the elements which must be established are: (i) a plurality of
persons; (ii) the existence of a common plan, design or purpose which amounts to or
involves the commission of a crime provided for in the Statute; and (iii) the participation
of the accused in the common plan involving the perpetration of one of the crimes
provided for in the Statute.984

The actus reus of joint criminal enterprise is common to each of the three
categories and comprises the following three elements; (1) a plurality of persons- they
need not be organised in a military, political or administrative structure; (2) the existence
of a common plan, design or purpose which amounts to or involves the commission of a
crime provided for in the Statute- there is no necessity for this plan, design or purpose to
have been previously arranged or formulated. The common plan or purpose may
materialise extemporaneously and be inferred from the fact that a plurality of persons acts
in unison to put into effect a joint criminal enterprise; (3) the participation of the accused
in the common plan involving the perpetration of one of the crimes provided for in the
Statute- this participation need not involve commission of a specific crime under one of

981
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 154
982
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 154
983
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 172
984
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 227; Prosecutor v Blagojevic &
Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 698; Prosecutor v Stakic, No. IT-97-24-A,
Judgement (22 March 2006) at para. 64; Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007)
at para. 430; Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 77

168
those provisions (murder, extermination, torture, rape, etc.), but may take the form of
assistance in, or contribution to, the execution of the common plan or purpose. 985

There is no legal requirement that a minimum number of killings occur in order to

support a finding that murder is part of a joint criminal enterprise. 986

Liability under this form of responsibility may not be inchoate: the accused
cannot be held responsible, even if he was aware that the crime or underlying offence was
reasonably foreseeable, if that crime or underlying offence was not ultimately
committed.987

To be held responsible for a crime committed pursuant to a joint criminal

enterprise, the accused need merely to have participated in the common plan, design, or
purpose at the core of the JCE and he need not have performed any part of the actus reus
of the perpetrated crime.988

A co-perpetrator in a joint criminal enterprise need not physically commit any

part of the actus reus of the crime involved. Nor is the participant in a joint criminal
enterprise required to be physically present when and where the crime is being
committed.989

The existence of an agreement or understanding for the common plan, design or

purpose need not be express, but may be inferred from all the circumstances. The
participation of two or more persons in the commission of a particular crime may itself
establish an unspoken understanding or arrangement amounting to an agreement formed
between them then and there to commit that particular criminal act. Furthermore, the
common plan or purpose may materialise extemporaneously and be inferred from the fact
that a plurality of persons acts in unison to put into effect a joint criminal enterprise. 990

acquiescence

In regard to the first category even if the accused did not have control over a
specific stage of the operation, his acceptance of the final result of the enterprise is
sufficient to bear individual criminal responsibility.991

If the objective of the joint criminal enterprise changes, such that the objective is
fundamentally different in nature and scope from the common plan or design to which the
participants originally agreed, then a new and distinct joint criminal enterprise has been

985
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 117
986
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 188
987
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 112
988
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 64; Prosecutor v Milutinovic
et al, No. IT-05-88-PT, Decision on Ojdanic Motion Challenging Jurisdiction: Indirect Co-Perpetration
(22 March 2006) at para. 22
989
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 112
990
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 699
991
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 246

169
established. For this joint criminal enterprise, like the original joint criminal enterprise,
the three elements must be established for criminal responsibility to attach. It may be that
members of second joint criminal enterprise are the same as those in the original
enterprise. 992

The joint criminal enterprise originally had as its objective the forcible transfer
and displacement of Bosnian Muslims, but expanded to include additional crimes which
came to the attention of its members as the implementation of these objectives was seen
to include a greater range of crimes. Thus those additional crimes became part of the
JCE’s objective as well. 993

As is the case with a common criminal plan in its inception, it is not necessary for
the JCE members to explicitly agree to the expansion of criminal means; instead, as with
the original criminal plan, that agreement may materialise extemporaneously and be
inferred from circumstantial evidence.994

It is not required that all JCE members, including both accused and non-accused
lCE members, have been informed of the expanded crimes in order to show that they had
agreed to expand the JCE.995

There is no reason why an accused cannot be alleged to have participated in more

than one JCE to commit a number of crimes. 996

Although knowledge of crimes in combination with failure to intervene to prevent

them may be a basis for inferring intent, it does not compel such a conclusion.997

While an accused's knowledge of particular crimes combined with continued

participation in the execution of the common plan from which those crimes result may be
a basis, to infer that he or she shared the requisite intent for the crimes in question, this
does not necessarily compel such a conclusion. 998

Inaction or action might have encouraged or facilitated crimes does not

necessarily equate to, or compel a finding of, intent for those crimes. 999

There is no error in finding responsibility for an expanded JCE on the theory that
when JCE members became aware of the expanded crimes, and did not take any
measures to prevent their recurrence but contributed to them and persisted in
implementing the common objective, they thereby came to intend those expanded crimes.

992
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 700
993
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 1118
994
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 802
995
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 803
996
Prosecutor v Karadzic, No. IT-95-5/18-PT Decision on Two Motions Alleging Defects in the Form of
the Indictment (12 May 2009) at para. 20
997
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 688
998
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 672
999
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 689

170
One incident involving two murders during an attack on one village during the first six
months was not sufficient to infer that murder and willful killing were part of the CCP
from the beginning. JCE-based convictions for murder during that period reversed. 1000

common plan or purpose

Under joint criminal enterprise liability, a trial chamber is required to determine

whether a common plan, design, or purpose existed which amounts to or involves the
commission of a crime provided for in the Statute.1001

Participation does not have to be in and of itself criminal, as long as the accused
performs acts that in some way contribute to the furtherance of the common purpose of
the JCE and provided that he shares the intent to implement the common purpose by
criminal means. Whether the orders were lawful or militarily justified is irrelevant. 1002

A trial chamber is required to make a finding that this criminal purpose is not
merely the same, but also common to all of the persons acting together within a joint
criminal enterprise. 1003

Joint criminal enterprise liability requires an agreement between the participants

in the joint criminal enterprise. Therefore, pleading a “joint criminal enterprise with
common purpose” failed to charge a crime within the statute of the Tribunal. 1004

It is not necessary to establish that joint criminal enterprise members acted in

unison in order to reach a conclusion on the existence of the common purpose.1005

There is no requirement that the accused have an agreement with the principal
perpetrator in order to be liable under JCE. 1006 However, the perpetrator’s crime must
have formed part of the criminal purpose of the JCE.1007

It is not required that members of the JCE agreed upon a particular form through
which the forcible displacement of non-Serbs was to be effectuated or that the accused
intended specific acts of coercion causing the displacement of individuals, so long as it is
established that the accused intended to forcibly displace the victims. 1008

1000
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 813
1001
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 67
1002
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1988
1003
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 96
1004
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Motions Challenging the Indictment
Pursuant to Rule 72 of the Rules (31 May 2006) at para. 20, 22
1005
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 138
1006
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 415
1007
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 418
1008
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 917; Prosecutor
v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 684

171
 Joint criminal enterprise requires the existence of a common purpose which
amounts to or involves the commission of a crime. The common purpose need not be
previously arranged or formulated; it may materialize extemporaneously. 1009

A person can still be liable for criminal acts carried out by others without being
present – all that is necessary is that the person forms an agreement with others that a
crime will be carried out.1010

inferences

The common plan may be inferred from events on the ground. 1011

A Chamber may infer that a common plan or purpose existed by examining the
totality of the circumstances surrounding the commission of a crime or underlying
offence. For example, the way in which the crime or underlying offence is committed
may support an inference that it must have been pursuant to a common plan. In these
cases, the Prosecution is not required to adduce documentary or other explicit evidence of
the plan’s existence. 1012

Evidence of beatings and killings at Vukovar Hospital did not establish that they
were executed as part of a common plan involving the accused. Therefore, the accused
was acquitted of responsibility for the actions of the perpetrators.1013

Close co-operation between a principal perpetrator and a JCE member is but one
of various factors from which a trial chamber may infer that a crime formed part of the
common purpose and is thus imputable to JCE members. 1014

A common criminal purpose can be inferred from the fact that a plurality of
persons acts in unison to put into effect a joint criminal enterprise. 1015

The existence of a certain level of coordination on the ground among various

factions and the commission of crimes by some of these factions may not necessarily
suffice, in the context of a given case, to show beyond a reasonable doubt that such
cooperation was in pursuance of a common criminal purpose.1016

1009
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 117; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 790; Prosecutor v Seselj, No. MICT-
16-99-A, Judgement (11 April 2018) at para. 86
1010
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 82; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 448
1011
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 611
1012
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 102
1013
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para. 608
1014
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2620
1015
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 105
1016
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 117

172
 Where the act of one accused contributes to the purpose of the other, and both
acted simultaneously, in the same place and within full view of each other, over a
prolonged period of time, the argument that there was no common purpose is plainly
unsustainable. 1017

Trial Chamber could not conclude from KLA propaganda threatening

collaborators with death that there existed a plan to mistreat civilians. 1018

plurality of persons

A trial chamber is not required to identify by name each of the persons involved
in a joint criminal enterprise or to make a separate finding on the individual actions and
intent of each alleged member. 1019

The Trial Chamber was not required to analyse separately the intentions of each
member of the JCE. Rather, it was required to identify the plurality of persons belonging
to the JCE and establish that they shared a common criminal purpose.1020

Using the concept of joint criminal enterprise to define an individual’s

responsibility for crimes physically committed by others requires a strict definition of
common purpose. That principle applies irrespective of the category of joint enterprise
alleged. The principal perpetrators of the crimes constituting the common purpose or
constituting a foreseeable consequence of it should also be identified as precisely as
possible.1021

Authority or control over principal perpetrators is not a necessary element to

establish JCE liability. However, it is one of the various factors that a chamber may take
into account in determining whether crimes of principal perpetrators were linked with the
accused. 1022

object

The Trial Chamber did not conflate the political goal to create a separate Serb
entity with the common criminal purpose of the JCE. The Trial Chamber’s findings on
the political aim of the Bosnian Serb leadership for Serbs to live in one state and the
subsequent intensification of the process of territorial demarcation are merely factors that
the Trial Chamber took into account, together with other factors, in reaching its
conclusion on the common criminal purpose of the JCE to forcibly transfer non-Serbs. 1023

1017
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 119
1018
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 635
1019
Prosecutor v Seselj, No. MICT-16-99-A, Judgement (11 April 2018) at para. 105
1020
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 191; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1751
1021
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 116
1022
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1528
1023
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 68

173
 Persons with a common objective are not necessarily members of a JCE. It is the
interaction or cooperation among persons—their joint action—which makes these
persons a group. Joint action among members of the joint criminal enterprise must be
proven.1024

A common objective alone is not always sufficient to determine a group, because

different and independent groups may happen to share identical objectives. It is thus the
interaction or cooperation among persons – their joint action – in addition to their
common objective that forges a group out of a mere plurality. In other words, the
persons in a criminal enterprise must be shown to act together, or in concert with each
other, in the implementation of a common objective, if they are to share responsibility
for crimes committed through the JCE.1025

Whether an attack was ordered as pre-emptive, defensive or offensive is from a

legal point of view irrelevant. The issue is whether the way the military action was
carried out was criminal or not.1026

“Ethnic cleansing” was an adequate description of the common criminal plan

where the Trial Chamber found it to include various crimes through which the ethnic
cleansing was achieved, including but not limited to forcible transfer and deportation. 1027

customary international law

The notion of common design as a form of accomplice liability is firmly

established in customary international law and in addition is upheld, albeit implicitly, in
the Statute of the International Tribunal, which recognises common design as a mode of
liability separate and distinct from aiding and abetting.1028

Joint criminal enterprise existed as part of customary international law and could
therefore be the basis of a conviction at the Tribunal. 1029

distinction from aiding and abetting

Aiding and abetting a JCE is not a valid form of liability at the ICTY.1030

1024
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 884;
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 1259
1025
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 3561
1026
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 895
1027
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 790
1028
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 220.
1029
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003); Prosecutor v Prlic et al, No. IT-04-
74-A, Judgement (29 November 2017) at para. 591
1030
Prosecutor v Prlic et al, No. IT-04-74-AR72.3, Decision on Petkovic’s Appeal on Jurisdiction (23
April 2008) at para. 21

174
 A person who participated in its commission may be regarded as a co-perpetrator
of a joint criminal enterprise whose purpose was to commit the crime, provided that the
individual concerned shared the common intent of the principal offenders. Alternatively,
the individual concerned may be considered an aider and abettor if he merely had
knowledge of the perpetrators’ intent and lent them support which had a significant effect
on the perpetration of the crime. 1031

Co-perpetration in the context of a joint criminal enterprise differs from aiding

and abetting. Where the aider and abetter only knows that his assistance is helping a
single person to commit a single crime, he is only liable for aiding and abetting that
crime. This is so even if the principal perpetrator is part of a joint criminal enterprise
involving the commission of further crimes. Where, however, the accused knows that his
assistance is supporting the crimes of a group of persons involved in a joint criminal
enterprise and shares that intent, then he may be found criminally responsible for all the
crimes committed as part of that common purpose as a co-perpetrator.1032

The aider and abettor is always an accessory to a crime perpetrated by another

person, the principal, while this is not necessarily true for a participant in a joint criminal
enterprise. 1033

In the case of aiding and abetting no proof is required of the existence of a

common concerted plan, let alone of the pre-existence of such a plan. No plan or
agreement is required: indeed, the principal may not even know about the accomplice’s
contribution. 1034

The aider and abettor carries out acts specifically directed to assist, encourage or
lend moral support to the perpetration of a certain specific crime (murder, extermination,
rape, torture, wanton destruction of civilian property, etc.), and this support has a
substantial effect upon the perpetration of the crime. By contrast, it is sufficient for a
participant in a joint criminal enterprise to perform acts that in some way are directed to
the furtherance of the common design. 1035

In the case of aiding and abetting, the requisite mental element is knowledge that
the acts performed by the aider and abettor assist the commission of the specific crime of
the principal. By contrast, in the case of participation in a joint criminal enterprise, i.e. as
a co-perpetrator, the requisite mens rea is intent to pursue a common purpose.1036

1031
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 122
1032
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 510; Prosecutor v
Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 90
1033
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229.
1034
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229.
1035
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229; Prosecutor v Vasiljevic,
No. IT-98-32-A, Judgement (25 Feb 2004) at para. 102; Prosecutor v Krnojelac, No. IT-97-25, Judgement
(17 September 2003) at para. 33
1036
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 229; Prosecutor v Vasiljevic,
No. IT-98-32-A, Judgement (25 Feb 2004) at para. 102

175
 Joint criminal enterprise is simply a means of committing a crime; it is not a
crime in itself. Therefore, it would be inaccurate to refer to aiding and abetting a joint
criminal enterprise. The aider and abettor assists the principal perpetrator or perpetrators
in committing the crime.1037

In order to convict for aiding and abetting the crime of persecution, the accused
must have had knowledge that the principal perpetrators of the joint criminal enterprise
intended to commit the underlying crimes, and by their acts they intended to discriminate
against the Muslim population, and that, with that knowledge, made a substantial
contribution to the commission of the discriminatory acts by the principal
perpetrators.1038

A difference between liability for aiding and abetting and for JCE is that the JCE
member must intend to achieve the criminal objective, whereas the aider and abetter need
only act with knowledge of the intent of the principal. 1039

The threshold for finding a "significant contribution" to a JCE is lower than the
"substantial contribution" required to enter a conviction for aiding and abetting. Thus the
Trial Chamber's finding of a significant contribution is not equivalent to the substantial
contribution required to enter a conviction for aiding and abetting. 1040

forms

Three broad forms of joint criminal enterprise have been recognised by the
International Tribunal’s jurisprudence. In the first form of joint criminal enterprise, all of
the co-perpetrators possess the same intent to effect the common purpose. The second
form of joint criminal enterprise, the “systemic” form, a variant of the first form, is
characterized by the existence of an organized criminal system, in particular in the case
of concentration or detention camps. This form of joint criminal enterprise requires
personal knowledge of the organized system and intent to further the criminal purpose of
that system. 1041

forms—JCE I

The first category of JCE is represented by cases where all co-defendants, acting
pursuant to a common design, possess the same criminal intention; for instance, the
formulation of a plan among the co-perpetrators to kill, where, in effecting this common
design (and even if each co-perpetrator carries out a different role within it), they
nevertheless all possess the intent to kill. 1042

1037
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 91; Prosecutor v
Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 886
1038
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 142
1039
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 885
1040
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 149
1041
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 82; Prosecutor v
Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 65
1042
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 196.

176
 The objective and subjective prerequisites for imputing criminal responsibility to
a participant who did not, or cannot be proven to have, effected the killing are as follows:
(i) the accused must voluntarily participate in one aspect of the common design (for
instance, by inflicting non-fatal violence upon the victim, or by providing material
assistance to or facilitating the activities of his co-perpetrators); and (ii) the accused, even
if not personally effecting the killing, must nevertheless intend this result. 1043

Participants in a basic or systemic form of joint criminal enterprise must be shown

to share the required intent of the principal perpetrators. Thus, for crimes of persecution,
the Prosecution must demonstrate that the accused shared the common discriminatory
intent of the joint criminal enterprise. If the accused does not share the discriminatory
intent, then he may still be liable as an aider and abettor if he knowingly makes a
substantial contribution to the crime. 1044

The prosecution need not prove, as an element of the first category, that every
single person alleged to have been a member of the joint criminal enterprise shared the
intent to commit the crime or underlying offence that is the object of the joint criminal
enterprise. 1045

As regards a first-category joint criminal enterprise, where the criminal object

consists of a crime requiring specific intent, the Prosecution must prove not only that the
accused shared with others the general intent to commit the underlying offence—for
example, the intent to kill for “murder” as an underlying offence of persecution as a
crime against humanity or “killing members of the group” as an underlying offence of
genocide—but also that he shared with the other joint criminal enterprise members the
specific intent required of the crime or underlying offence. Therefore, in the case of
persecution, the accused must have shared the intent to discriminate against a protected
group.1046

Where a conviction under the first category of JCE is concerned, the accused must
share both the intent to commit the crimes that form part of the common purpose of the
JCE and the intent to participate in a common plan aimed at their commission. 1047

The requisite mens rea for JCE I liability is the intent to commit a specific crime,
an intent that must be shared by all the co-participants.1048

JCE I requires intent in the sense of dolus directus. Recklessness or dolus

eventualis does not suffice.1049

1043
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 196.
1044
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 110
1045
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 108
1046
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 109
1047
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1369
1048
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1395
1049
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at fn. 13437

177
 forms--JCE II

An accused may be responsible for crimes committed beyond the common

purpose of the systemic joint criminal enterprise, if they were a natural and foreseeable
consequence thereof . However, participation in a systemic joint criminal enterprise does
not necessarily entail criminal responsibility for all crimes which, though not within the
common purpose of the enterprise, were a natural or foreseeable consequence of the
enterprise. A participant may be responsible for such crimes only if the Prosecution
proves that the accused had sufficient knowledge such that the additional crimes were a
natural and foreseeable consequence to him. 1050

The second category is characterised by the existence of an organised system set

in place to achieve a common criminal purpose. For there to be the requisite intent, the
accused must have had personal knowledge of the system in question (whether proven by
express testimony or a matter of reasonable inference from the accused’s position of
authority) and the intent to further the concerted system. 1051

Requiring proof of an agreement in relation to each of the crimes committed with

a common purpose, when it assessed the intent to participate in a systemic form of joint
criminal enterprise goes beyond the criterion set by the Appeals Chamber in the Tadic
case. 1052 Intent is not dependant on the existence of an agreement in determining guilt as
a co-perpetrator under the second form of joint criminal enterprise. 1053

The mens rea of a systemic joint criminal enterprise requires proof of the
participant’s personal knowledge of the system of ill-treatment, as well as the intent to
further this system of ill-treatment.1054

The mens rea requirement for the first category of joint criminal enterprise is the
intent to perpetrate a certain crime, this being the shared intent on the part of all co-
perpetrators.1055

The first form of the JCE requires intent in the sense of dolus directus, and that
recklessness or dolus eventualis does not suffice. 1056

In order to demonstrate that the subjective element of the first category of joint
criminal enterprise was met, the Trial Chamber was required to establish that he shared
with the other JCE members the intent to commit the JCE I crimes and the intent to

1050
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 86
1051
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 89
1052
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 97
1053
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 113
1054
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 109
1055
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 77;
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1755; Prosecutor v
Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 584
1056
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 1258, fn,2193

178
participate in a common plan aimed at their commission. 1057

JCE III--actus reus

The forseeable act must be a crime. Therefore, there can be no JCE III liability
for reburials, which is not a crime under the statute.1058

Provided the ‘reasonably foreseeable and natural consequences’ standard

has been established, “criminal liability under JCE III can attach to an accused for any
crime that falls outside of an agreed upon joint criminal enterprise. 1059

JCEIII--“commission”

There is no cogent reason for departing from the jurisprudence of the ICTY that
JCE, including JCE III, is a form of “commission” that has existed in customary
international law since at least 1992.1060

JCEIII--definition

Under the third category of joint criminal enterprise, an accused can be held
responsible for a crime outside the common purpose if, under the circumstances of the
case: (i) it was foreseeable to the accused that such a crime might be perpetrated by one
or more of the persons used by him (or by any other member of the joint criminal
enterprise) in order to carry out the actus reus of the crimes forming part of the common
plan. purpose; and (ii) the accused willingly took the risk that such a crime might occur
by joining or continuing to participate in the enterprise. 1061

The third category concerns cases involving a common design to pursue one
course of conduct where one of the perpetrators commits an act which, while outside the
common design, was nevertheless a natural and foreseeable consequence of the effecting
of that common purpose.1062

The artificial distinction that the subjective element of the third category of JCE
contains distinct objective and subjective elements is not valid. 1063

JCEIII--foreseeability

Probability not required.1064

1057
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at paras. 375, 386
1058
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1032;
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 1155
1059
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1440
1060
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 1672,1674;
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 281
1061
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 595
1062
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 204.
1063
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2893

179
 “Might be” committed.1065

The crime was a “possible” consequence.1066

The crime must be shown to have been foreseeable to the accused in

particular.1067

This question must be assessed in relation to the knowledge of a particular

accused, as what is natural and foreseeable to one person might not be natural and
foreseeable to another, depending on the information available to them. 1068

The foreseeability requirement applies to the crime with all its legal elements. 1069

While an accused’s ability to foresee must be established in relation to each

incident alleged, this can be done by way of inference from circumstantial evidence,
including contextual factors.1070

An accused may be responsible for crimes committed beyond the common

purpose of the joint criminal enterprise, if they were a natural and foreseeable
consequence thereof. However, it is to be emphasized that this question must be assessed
in relation to the knowledge of a particular accused. What is natural and foreseeable to
one person might not be natural and foreseeable to another, depending on the information
available to them. Thus, participation in a joint criminal enterprise does not necessarily
entail criminal responsibility for all crimes which, though not within the common
purpose of the enterprise, were a natural or foreseeable consequence of the enterprise. A
participant may be responsible for such crimes only if the Prosecution proves that the
accused had sufficient knowledge such that the additional crimes were a natural and
foreseeable consequence to him. 1071

1064
Prosecutor v Karadzic, No. IT-95-5/18-AR72.1, Decision on Prosecution ‘s Motion Appealing Trial
Chamber’s Decision on JCE III Forseeability (25 June 2009) at para. 18; Prosecutor v Popovic et al, No.
IT-05-88-A, Judgement (30 January 2015) at para. 1432
1065
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1557; Prosecutor v
Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 907; Prosecutor v Prlic et al, No. IT-
04-74-A, Judgement (29 November 2017) at para. 2853; Prosecutor v Tolimir, No. IT-05-88/2-A,
Judgement (8 April 2015) at para. 533; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30
June 2016) at para. 688; Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para.
433
1066
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 87; Prosecutor v Milutinovic
et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 96; Prosecutor v Stanisic & Zupljanin, No.
IT-08-91-A, Judgement (30 June 2016) at para. 1055; Prosecutor v Mladic, No. IT-09-92-T, Judgement (22
November 2017) at para. 3560; Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017)
at para. 2836
1067
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 65; Prosecutor v Stanisic &
Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 647
1068
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836
1069
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 614
1070
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3072
1071
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 621

180
 It is not necessary for the purposes of the third category of joint criminal
enterprise that an accused be aware of the past occurrence of a crime for the same crime
to be foreseeable to him. 1072

The awareness of similar prior misconduct or past crimes by the direct

perpetrators is not a requirement, but, is one factor which can be taken into account when
determining the foreseeability of a crime to an accused. 1073

Knowledge of factors such as the nature of the conflict, the means by which a
joint criminal enterprise is to be achieved, and how the joint criminal enterprise is
implemented on the ground may make the possibility that such a crime might occur
sufficiently substantial as to be foreseeable to members of the joint criminal
enterprise. 1074

The fact that the nature of crimes may have been unprecedented since World War
II does not undermine the Trial Chamber’s findings on the foreseeability of the
crimes. 1075

Where thousands of Kosovo Albanians were being forcibly displaced and

mistreated on a massive scale by Serbian forces who could act with near impunity, and
where women were frequently separated from men, the possibility of sexual assaults was
sufficiently substantial to be foreseeable to the accused such that he attracted liability
under JCEIII for the sexual assaults. 1076

Trial Chamber erred in finding that murders were forseeable consequence of

operation to remove Albanians from Kosovo. While the accused was undoubtedly aware
that these events created an atmosphere of violence and insecurity, he was not aware of
acts of violence to civilians of such a gravity as to make murders, in particular, forseeable
to him. 1077

It was not necessarily forseeable to the accused that opportunistic killings would
result from the forcible transfer of members of the population. 1078

The use of dolus eventualis within the context of the third category of joint
criminal enterprise does not violate the principles of nullum crimen sine lege and in dubio
pro reo.1079

1072
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 627; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836
1073
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2865
1074
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 627; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836, 2865
1075
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 650
1076
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 926
1077
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1081
1078
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1830
1079
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 103

181
 Under JCE III, the possibility that a crime could be admitted must be sufficiently
substantial as to be forseeable to the accused. 1080

The subjective element of the third category joint criminal enterprise is, however,
not satisfied by implausibly remote scenarios; it requires that the possibility “hat a crime
could be committed is sufficiently substantial as to be foreseeable to the accused. 1081

The foreseeability standard does not include an express time frame. Accordingly,
a trial chamber is not required to make a finding with respect to precisely when the
crimes first became foreseeable to an accused as long as it is clear that prior to their
commission, these crimes were foreseeable to the accused and he willingly took the risk
that they might occur by joining or continuing to participate in the joint criminal
enterprise. 1082

For JCE III, the accused need not be actually aware that the crimes outside the
common purpose were being committed, it was sufficient that their occurrence was
forseeable to him and that those crimes did in fact occur.1083

In considering the foreseeability of an act being committed with the required

special intent for the crime of persecution, the general attitude of the alleged perpetrator
as demonstrated by his behaviour is a relevant factor to detennining the mens rea of the
accused. The use of derogatory language in relation to a particular group is one aspect of
an accused's behaviour that may be taken into account, together with other evidence, to
detennine the existence of discriminatory intent. The fact that the accused may have also
used the term "Muslims" is insufficient to demonstrate that his other use of derogatory
terms to refer to Muslims was not indicative of discriminatory intent against the
Bosnian Muslim population. 1084

It was not unreasonable for the Trial Chamber to have considered the climate of
extreme violence, and the accused’s knowledge thereof, as a factor in determining
whether he could have foreseen the occurrence of sexual abuse. 1085

On review of the judgement in R v. Jogee, the Appeals Chamber does not find any
cogent reason for departing from the Appeals, Chamber's well-established jurisprudence
because UK law was not a basis for the JCE III doctrine and Jogee involved accessory
liability while at the international tribunals, JCE is treated as a form of commission. 1086

1080
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1081; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 2836, 3022
1081
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1055
1082
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1056
1083
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1540
1084
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 522
1085
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2871
1086
Prosecutor v Karadzic, No. MICT-13-55-A, Judgement (20 March 2019) at para. 434

182
 JCEIII--mens rea

The mens rea requirement for the third category of joint criminal enterprise is the
intention to participate in and further the intended activity or the criminal purpose of the
group and to contribute to the JCE or in any event to the commission of a crime by the
group. In addition, responsibility for a crime other than the one agreed upon in the
common plan arises only if, under the circumstances of the case, it was foreseeable that
such a crime might be perpetrated by one or other members and the accused knowingly
took that risk.1087

The third, “extended” form of joint criminal enterprise entails responsibility for
crimes committed beyond the common purpose, but which are nevertheless a natural and
foreseeable consequence of the common purpose. The requisite mens rea for the
extended form is twofold. First, the accused must have the intention to participate in and
contribute to the common criminal purpose. Second, in order to be held responsible for
crimes which were not part of the common criminal purpose, but which were
nevertheless a natural and foreseeable consequence of it, the accused must also know that
such a crime might be perpetrated by a member of the group, and willingly take the risk
that the crime might occur by joining or continuing to participate in the enterprise. 1088

It is appropriate to apply the notion of "common purpose" only where the

following requirements concerning mens rea are fulfilled: (i) the intention to take part in
a joint criminal enterprise and to further - individually and jointly - the criminal purposes
of that enterprise; 1089 (ii) the foreseeability of the possible commission by other members
of the group of offences that do not constitute the object of the common criminal
purpose;1090 and (iii) voluntary assumption by the accused of that risk. 1091

The mens rea standard for JCE III is the possibility that a crime committed
outside the agreed common plan is reasonably foreseeable to the accused and that the
accused willingly took the risk that such a crime might occur by continuing to participate
in the agreed common plan. 1092

For an accused to incur criminal responsibility for acts that are natural and
foreseeable consequences of a joint criminal enterprise, it is not necessary to establish
that he was aware in fact that those other acts would have occurred. It is sufficient to
show that he was aware that those acts outside the agreed enterprise were a natural and

1087
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 77
1088
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 83; Prosecutor v
Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 65
1089
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 220.
1090
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 220.
1091
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 228.
1092
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 514; Prosecutor v Prlic et
al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2836

183
foreseeable consequence of the agreed joint criminal enterprise, and that the accused
participated in that enterprise aware of the probability that other crimes may result. 1093

For an accused to incur JCE III liability, it is not necessary to establish that he
was aware that the crimes in question occurred; it is sufficient that their occurrence was
foreseeable to him.1094

The applicable law for JCE III liability does not require that the accused create
conditions for those crimes that take place outside of the common criminal purpose. 1095

JCEIII--relation to JCE I

Reversal of the Trial Chamber's finding that a JCE existed means that other
crimes could not be a natural and foreseeable consequence of that JCE's common
purpose. Accordingly, the convictions for deviatory crimes entered via the third form of
that JCE must also fall. 1096

The jurisprudence of the Tribunal does not require the category of the JCE I crime
and the JCE III crime to match. 1097

JCEIII--specific intent crimes

It need not be shown that the accused had the intent to commit the extended
crime, only that it was forseeable. This also includes crimes which require a specific
intent.1098

On review of the STL Decision of 16 February 2011 and the Taylor Trial
Judgement, the Appeals Chamber finds that the accused has not demonstrated any error
in the Appeals Chamber’s well-established jurisprudence that JCE III applies to specific
intent crimes.1099

While the Convention for the Suppression of Terrorist Bombings, the ICC Statute,
and some post-World War II cases do not expressly provide for convictions for specific
intent crimes on the basis of the third category of joint criminal enterprise or even the
third category of joint criminal enterprise itself, this does not undermine the Appeals

1093
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 150; Prosecutor v Prlic et al,
No. IT-04-74-A, Judgement (29 November 2017) at para. 1803
1094
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2914
1095
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2975
1096
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 97
1097
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1713
1098
Prosecutor v Brdjanin, No. IT-99-36-A, Decision on Interlocutory Appeal (19 March 2004);
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 84; Prosecutor v Popovic
et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1733; Prosecutor v Karadzic, No.
IT-95-5/18-PT Decision on Six Preliminary Motions Challenging Jurisdiction (28 April 2009) at para. 32;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 1441,1708
1099
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 598

184
Chamber’s analysis of customary international law and conclusion in the Tadic case,
which has been consistently confirmed in the Tribunal’s subsequent jurisprudence. 1100

significant contribution

While the contribution of the accused to the JCE does not have to be a sine qua
non, without which the crimes could or would not have been committed”, its significance
will be relevant in demonstrating that the accused shared the intent to pursue the common
purpose.1101

The significance and the scope of an individual's material contribution to a JCE

may be relevant in determining whether that individual had the requisite mens rea. 1102

The accused’s contribution to the JCE only needs to be "directed to the furthering
of the common plan", which implies that the acts could also have served other
purposes.1103

mens rea

The fact that the accused did not refuse to participate in a joint enterprise because
such refusal would prejudice his career, or that he feared that he would be imprisoned or
punished, is not an excuse or a defence to liability for participating in war crimes or
crimes against humanity. Nevertheless, these are circumstances which may be taken into
consideration when determining the mens rea. 1104

The mens rea required for the first and third categories of joint criminal enterprise
differs. The first category of joint criminal enterprise requires proof that all participants
shared the same criminal intent. It is necessary to establish that the accused voluntarily
participated in the enterprise and intended the criminal result. Under the third category of
joint criminal enterprise, a member of that enterprise may be held liable for a crime or
crimes which he did not physically perpetrate if, having the intent to participate in and
further a common criminal design or enterprise, the commission of other criminal acts
was a natural and foreseeable consequence of the execution of that enterprise, and, with
the awareness that such crimes were a possible consequence of the execution of that
enterprise, he participated in that enterprise. 1105

The mens rea differs according to the category of common design under
consideration: (1) The first category of cases requires the intent to perpetrate a specific
crime (this intent being shared by all the co-perpetrators).(2) For the second category
which is a variant of the first, the accused must have personal knowledge of the system of
1100
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 599
1101
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1653
1102
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2402
1103
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 494
1104
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 216
1105
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 703;
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 30

185
ill-treatment (whether proven by express testimony or inferred from the accused’s
position of authority), as well as the intent to further this concerted system of ill-
treatment. (3) The third category requires the intent to participate in and further the
criminal activity or the criminal purpose of a group and to contribute to the joint criminal
enterprise or, in any event, to the commission of a crime by the group. In addition,
responsibility for a crime other than the one agreed upon in the common plan arises only
if, in the circumstances of the case, (i) it was foreseeable that such a crime might be
perpetrated by one or other members of the group and (ii) the accused willingly took that
risk.1106

It is not required that a participant in the JCE knew about each specific crime
committed pursuant to the JCE.1107

A participant in a joint criminal enterprise would not need to know of each crime
committed in order to be criminally liable. Merely knowing that crimes are being
committed within a system and knowingly participating in that system in a way that
facilitates the commission of a crime or which allows the criminal enterprise to function
effectively or efficiently is enough. 1108

Knowledge and acceptance of the risk that crimes would be committed is

insufficient for the first form of JCE liability. 1109 The accused must share the intent to
commit the crimes. 1110

The fact that the participation of an accused amounted to no more than his or her
routine duties will not exculpate the accused - what matters is whether the act in question
furthered the common criminal purpose and whether it was carried out with the requisite
intent.1111

inferences

The Appeals Chamber recalls that when the Prosecution relies upon proof of the
state of mind of an accused by inference, that inference must be the only reasonable
inference available on the evidence. It is settled that the benefit of the doubt must always
go to the accused.1112

1106
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 32
1107
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 907
1108
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 276; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 474
1109
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 2332;
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1802
1110
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 2336
1111
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1395
1112
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 237

186
 An accused's shared intent and contribution to a JCE can be inferred from his
control and command authority over the perpetrators and his failure to intervene in order
to stop or punish the crimes committed pursuant to the common criminal purpose.1113

In light of the accused’s knowledge of crimes, a failure to intervene in the

participation of subordinates in the commission of the crimes might suggest that the
accused shared the intent to further the common purpose of the JCE, but does not
necessarily compel such a conclusion, in particular if the senior civilian and military
authorities play a primary role in the criminal operation. 1114

The requisite intent for the first category of joint criminal enterprise can be
inferred from factors such as a person’s knowledge of the common criminal purpose or
the crime(s) it involves, combined with his or her continuing participation in the crimes
or in the implementation of the common criminal purpose.1115

The requisite mens rea for a conviction under JCE I can be inferred from a
person’s knowledge of the common plan, combined with his continuous participation, if
this is the only reasonable inference available on the evidence. 1116

Failure to investigate crimes was not indicative of accused’s intent to further the
common objective of the JCE where he had no authority to arrange for such an
investigation. 1117

Ultimately, responsibility for a document lies in a formal sense with the signatory.
However, in the absence of additional information, the accused who claimed he had
signed the document without reading it, raised a reasonable doubt as to whether the
document was in fact written by him and thus specifically reflected his own personal
views. Accordingly, for the purposes of evaluating criminal responsibility the report is an
insufficient basis on which to conclude that the accused possessed the necessary criminal
intent to carry out the common purpose.1118

Concealment of crimes necessarily occurs after the crimes have been committed
and may constitute evidence of a shared purpose to commit crimes. 1119

non-JCE perpetrators

JCE members may be held responsible for crimes carried out by principal
perpetrators who were non-JCE members, provided that it has been shown that the crimes

1113
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1529
1114
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1369
1115
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 393; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2590
1116
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1652; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1773
1117
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1047
1118
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2003
1119
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 479

187
can be imputed to at least one JCE member and that the latter—when using the principal
perpetrators—acted in accordance with the common objective. 1120

Where the principal perpetrator is not found to be a JCE member, factors

indicative of this link between the principal perpetrator and a JCE member include
evidence that the JCE member explicitly or implicitly requested the non-JCE member to
commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of
the non-JCE member to commit the crime. 1121

A JCE may exist if none, or only some of the perpetrators are members because
for example, they are not aware of the JCE and its objectives, but are procured by
members of the JCE to commit crimes which further that objective. 1122

Crimes committed by persons who share the objective of the JCE but are not
linked with the operations of the group are not attributable to the members of the JCE.
On the other hand, members of the JCE may procure others who are not members of the
JCE to commit crimes and crimes by those persons are attributable to members of the
JCE.1123

There is no requirement that a trial chamber demonstrate how each physical

perpetrator was used to commit the crimes in order, but it must identify how one or more
members of the joint criminal enterprise used the forces to which these physical
perpetrators belonged in furtherance of the common plan.1124

In general, in the case of a third category joint criminal enterprise, the crimes
must be committed by members of the joint criminal enterprise.1125

For JCE III, for a crime committed by someone who was not a member of the
JCE, the prosecution must prove (i) that for the accused in question it was foreseeable
that a new crime was likely to be committed by the direct perpetrator from outside the
JCE who was used by a member of the JCE to achieve the physical element of the crimes
included in the common plan and (ii) that the Accused knew that the new crime was the
probable outcome of the furtherance of the common goal but nevertheless decided to take

1120
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 413; Prosecutor v Seselj,
No. MICT-16-99-A, Judgement (11 April 2018) at para. 109; Prosecutor v. Limaj et al., No. IT-03-66-A,
Judgement (27 September 2007) at para. 120; Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23
January 2014) at para. 1256; Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at
para. 165; Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1998;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1050; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 119
1121
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1050; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 1547, 1998; Prosecutor v Seselj, No.
MICT-16-99-A, Judgement (11 April 2018) at para. 109
1122
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 883
1123
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 1082
1124
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 165
1125
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 119

188
part in the JCE.1126

Since a member of the JCE can use a non-member to commit the crime of
genocide, and since it is not required that the non-member share the mens rea for
genocide, it is the genocidal intent of the JCE members, and not the physical perpetrators,
that is determinative for JCE I.1127

Without any further elaboration on the link between these forces and the JNA, no
reasonable trier of fact could have held that the only reasonable conclusion in the
circumstances was that these crimes could be imputed to a member of the JCE. The link
between the principal perpetrators of these crimes and members of the JCE is therefore
too tenuous to support the accused’s conviction.1128

The origin of the armed men and their affiliation remains uncertain. Without any
further elaboration on the affiliation of these armed men, no reasonable trier of fact could
have held that the only reasonable conclusion in the circumstances was that these crimes
could be imputed to a member of the JCE.1129

The link between the physical perpetrator and a joint criminal enterprise member
may be indirect, such as within the hierarchical structure of the forces involved in the
perpetration of crimes. 1130

The Trial Chamber was not required to identify any subordinates of the accused in
its evaluation of his liability under JCE. 1131

Possession of de facto powers is not necessarily dependent on having formally

identified subordinates within a hierarchical structure.1132

omission

Participation by omission may also extend to all forms of joint criminal

enterprise, so long as the accused’s failure to act amounted to a significant contribution to
the common criminal plan. 1133

A significant contribution to a JCE may consist of an act or, where there is a legal
duty to act, an omission. For omission, the relevant enquiry is whether an accused was
obligated by law to act, and if so, whether such an omission significantly contributed to
the JCE.1134

1126
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 220
1127
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 79
1128
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 192
1129
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 200
1130
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 169
1131
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2618
1132
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2619
1133
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 103
1134
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 566

189
 Participation in a JCE may be by omission. 1135

The question of whether a failure to act could be taken into account to establish
that the accused significantly contributed to a joint criminal enterprise is a question of
fact to be determined on a case-by-case basis. 1136

The relevant failures to act or acts carried out in furtherance of a joint criminal
enterprise need not involve carrying out any part of the actus reus of a crime forming part
of the common purpose, or indeed any crime at all. One’s contribution to a joint criminal
enterprise need not be in and of itself criminal, as long as the accused performs acts (or
fails to perform acts) that in some way contribute significantly to the furtherance of the
common purpose.1137

When establishing an accused’s participation in a joint criminal enterprise through

his failure to act, the existence of a legal duty to act deriving from a rule of criminal law
is not required.1138

A failure to intervene to prevent recurrence of crimes or to halt abuses may be

taken into account in assessing an accused’s contribution to a joint criminal enterprise
and his intent where the accused had some power and influence or authority over the
perpetrators sufficient to prevent or halt the abuses but failed to exercise such power.1139

Failure of the accused to use his command authority to undertake measures which
could have prevented or punished the commission of crimes can be a factor in determine
the accused’s mens rea to participate in the JCE1140

The demonstration of a duty to act that would meet the legal conditions set out in
the Tribunal’s case law for commission by omission is not required when relying on an
accused’s failure to act in the context of assessing his participation in a joint criminal
enterprise. 1141

A failure to intervene to prevent recurrence of crimes or to halt abuses may be

taken into account in assessing an accused’s contribution to a joint criminal enterprise
and his intent, where the accused had some power and influence or authority over the

1135
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2606; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Miko Stanisic’s and Stoljan Zupljanin’s Motions on
Form of the Indictment (19 March 2009) at para. 39
1136
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 110
1137
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 110
1138
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 110; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1394
1139
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 111
1140
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2081
1141
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 732

190
perpetrators sufficient to prevent or halt the abuses but failed to exercise such power. 1142

The actus reus for “commission by omission” is a higher standard than for aiding
and abetting by omission, namely, the accused must exert “concrete influence” on the
perpetration of the crime. The actus reus for aiding and abetting requires merely that the
omission have a “substantial effect” upon the perpetration of the crime. 1143

scope

Joint criminal enterprise is a form of liability and not a separate crime. 1144

Joint criminal enterprise and the common purpose doctrine are the same. 1145

Joint criminal enterprise liability applies to internal, as well as international,

armed conflicts.1146

Joint criminal enterprise is not limited to enterprises of small sizes or scope. It is

in fact well suited to cases where numerous persons are concerned with a large number of
crimes. 1147

Joint criminal enterprise is not limited to small scale enterprises. 1148

significant contribution

criminal nature of contribution

The significant contribution to a JCE need not be criminal per se.1149

Participation in a JCE need not involve the commission of a specific crime, and
does not have to be necessary or substantial, but may take the form of at least a
significant contribution to the execution of the common purpose. The contribution must
further the execution of the common purpose.1150

1142
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 734; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 1394, 1487
1143
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 156
1144
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision to Dismiss the Preliminary Objections Against the
Tribunal’s Jurisdiction (26 September 2005) at para. 16
1145
Prosecutor v Milutinovic et al, No. IT-99-37-AR72, Decision on Dragoljub Ojdanic’s Motion
Challenging Jurisdiction—Joint Criminal Enterprise (21 May 2003) at para. 36
1146
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision to Dismiss the Preliminary Objections Against the
Tribunal’s Jurisdiction (26 September 2005) at para. 20
1147
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 876
1148
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 424
1149
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 985; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1615
1150
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1378; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1535

191
 An accused's acts must in some way be directed to the furthering of the common
criminal plan of the JCE, which is an essential consideration in determining whether the
contribution to the JCE was significant.1151

The actual physical perpetration of a crime or underlying offence by an accused,

while not required for joint criminal enterprise liability, tends to support a finding that his
participation was significant if the crime or underlying offence advanced the goal of the
enterprise. 1152

Nothing prevented the Trial Chamber from considering the accused's involvement
in the commission of crimes as a contribution to the execution of the JCE.1153

The accused does not have to contribute to a specific crime in order to be held
responsible for it.1154

factors

Factors to consider when evaluating whether the accused’s level of participation

in the joint criminal enterprise was sufficiently significant include the size of the
enterprise, the functions performed by the accused and his efficiency in performing them,
and any efforts made by the accused to impede the efficient functioning of the joint
criminal enterprise. 1155

findings

In order to find an accused criminally responsible pursuant to joint criminal

enterprise liability, a trial chamber must be satisfied that the accused participated in
furthering the common purpose at the core of the JCE and must characterise the
accused’s contribution in this common plan. 1156

Having found that the accused significantly contributed to the JCE, it was
unnecessary for the Trial Chamber to expressly find that his contribution furthered the
common criminal purpose as this is, at the very least, implicit.1157

leaders

An accused’s leadership status and approving silence militate in favour of a

finding that his participation was significant.1158

1151
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1880
1152
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105
1153
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1881
1154
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1535
1155
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105
1156
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 136
1157
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1880
1158
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105

192
 The receipt of information and regular reports on the activities of a body, as part
of the information flow, can be a relevant indicator in determining the accused’s authority
over that body. Acting on the contents of a report is not a necessary requirement in
determining command authority. 1159

opportunistic visitors

In the case of “opportunistic visitors” to a detention camp, a substantial

contribution to the overall effect of the camp is necessary to establish responsibility under
the joint criminal enterprise doctrine. 1160

routine duties

The fact that the participation of an accused amounted to no more than his routine
duties will not exculpate the accused. 1161

Conduct pursuant to an "administrative" or "logistical" function can be a factor

in determining whether an accused’s contribution to the JCE was significant. Operational
command is not required to satisfy the significant contribution requirement. 1162

sine que non

The Trial Chamber concurs with the Trial Chamber in the Brdjanin case that
while the participation of the accused need not be a conditio sine qua non for the
commission of the offence, the accused’s involvement in the criminal act must form a
link in the chain of causation.1163

The Prosecutor need not demonstrate that the accused’s participation is a sine qua
non, without which the crimes could or would not have been committed. Thus, the
argument cannot be made that an accused did not participate in the joint criminal
enterprise because he was easily replaceable. 1164

Although low- or mid-level actors may incur joint criminal enterprise liability, in
most situations the accused will not be someone readily replaceable. 1165

specific cases

1159
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1478
1160
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 599
1161
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1615; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 154; Prosecutor v Prlic et al, No.
IT-04-74-A, Judgement (29 November 2017) at para. 1395
1162
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1410
1163
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 702
1164
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 98
1165
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 105

193
 Informing a subordinate of the plan to remove the population and ordering a
soldier to stop distributing bread did not amount to a substantial contribution to the joint
criminal enterprise to forcibly remove the population of Srebrenica. 1166

Contribution to the concealment of crimes, such as by facilitating the failure to

prosecute the perpetrators of crimes directed at furthering the common criminal plan
may constitute a contribution to the JCE. 1167

By disseminating false information and issuing a serious threat to UNPROFOR,

the accused made a significant contribution to the JCE. 1168

Considering the Trial Chamber’s failure to enter a finding as to which authority

exercised control over Luka detention camp, the Trial Chamber’s finding that the accused
failed to take decisive action to close Luka camp or to withdraw the RS MUP forces from
it and its reliance on this finding in the assessment of the accused’s contribution to the
JCE was unreasonable and therefore an error.1169

Evidence that the accused received concurrent information about the arrests,
murders and destructions or that he subsequently launched a fake investigation did not,
by itself, show that he contributed to the commission of such crimes. In the absence of
any evidence showing that his conduct had an effect on the commission of these crimes,
it was unreasonable for the Trial Chamber to find that he contributed to them. 1170

substantial contribution

Contribution of the accused to the JCE need not be substantial or necessary to the
achievement of the JCE’s objective.1171

In general, there is no specific legal requirement that the accused make a

substantial contribution to the joint criminal enterprise. However, there may be specific
cases which require, as an exception to the general rule, a substantial contribution of the
accused to determine whether he participated in the joint criminal enterprise. 1172

The threshold for finding a "significant contribution" to a JCE is lower than the
"substantial contribution" required to enter a conviction for aiding and abetting. 1173

The contribution of the accused to the common plan must be significant, although
it need not be necessary or substantial. 1174

1166
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1173
1167
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2052
1168
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1820
1169
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 344
1170
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2278
1171
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2768; Prosecutor v
Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 883
1172
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 97
1173
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2768

194
 timing

An accused may be found to have participated in a joint criminal enterprise even

after its establishment.1175

An accused cannot be held responsible for crimes committed during a time when
he was not a member of the JCE.1176

Trial Chamber did not err in relying on events which occurred before the JCE in
order to infer the circumstances surrounding the formation of the JCE as well as its
common criminal plan.1177

Certain conduct of a JCE member which started prior to, and continued during,
the period when a common purpose of a JCE was found to have existed could constitute
an act in furtherance of the common purpose by virtue of the continuation of this
conduct.1178

mens rea

The knowledge of any kind of risk, however low, does not suffice for the
imposition of criminal responsibility for serious violations of international humanitarian
law…an awareness of a higher likelihood of risk and a volitional element must be
incorporated in the legal standard. 1179

The accused’s belief that UN personnel taken hostage were persons taking an
active part in the hostilities was not a defence, but a mistake of law. 1180

Motive must be distinguished from intent. Motive is not an element of any

crime.1181

omission

An omission may give rise to individual criminal responsibility. The commission

of a positive act is not an absolute requirement of criminal responsibility 1182
1174
Prosecutor v Brdjanin, No. IT-99-36-A, Judgement (3 April 2007) at para. 430; Prosecutor v
Haradinaj et al, No. IT-01-74-T, Judgement (2 April 2008) at para. 138; Prosecutor v Stanisic &
Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 136
1175
Prosecutor v Gotovina et al, No. IT-03-73-AR73.1, Decision on .Interlocutory Appeals Against the
Trial Chamber’s Decision to Amend the Indictment and for Joinder (25 October 2006) at fn. 59
1176
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1985
1177
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 711
1178
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1891
1179
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 41
1180
Prosecutor v Karadzic, No. IT-95-5/18-AR73.9, Decision on Appeal of Denial of Motion for
Judgement of Acquittal for Hostage Taking (11 December 2012) at para. 22
1181
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2817
1182
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 149

195
 Generally, responsibility under 7(1) is classified as direct responsibility and
responsibility under 7(3) is classified as indirect responsibility. However, some 7(1)
forms ie omission are also indirect responsibility and thus the Chamber did not intend
omission liability under 7(1) to take precedence over superior liability under 7(3). The
Trial Chamber therefore interprets Blaški as merely establishing a preference for those
manifestations of Article 7(1) forms of responsibility that involve the active advancement
of a crime—for example, aiding and abetting through positive action—and not precluding
a conviction pursuant to Article 7(3) where the only available Article 7(1) forms of
responsibility are realised by means of an omission.1183

ordering

actus reus

The actus reus of ordering means that a person in a position of authority instructs
another person to commit an offence. 1184

There can be no liability for ordering unless the underlying crime is actually
committed.1185

causation

For “ordering”, an order need not have been transmitted directly to the physical
perpetrator.1186

The accused need not give the order directly to the physical perpetrator, and an
intermediary lower down than the accused on the chain of command who passes the order
on to the physical perpetrator may also be held responsible as an orderer for the
perpetrated crime or underlying offence, as long as he has the requisite state of mind.1187

While the accused’s issuance of the order must have been a factor substantially
contributing to the physical perpetration of a crime or underlying offence, the Prosecution
need not prove that the crime or underlying offence would not have been perpetrated but
for the accused’s order.1188

1183
Prosecutor v. Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para 79.
1184
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 28;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 515
1185
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1013;
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 98
1186
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 573
1187
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87; Prosecutor
v Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 624
1188
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para.88; Prosecutor v
Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 332; Prosecutor v Karadzic, No. IT-95-
5/18-T, Judgement (24 March 2016) at para. 573

196
 express or implied

An order does not necessarily need to be explicit in relation to the consequences it

will have.1189

The order need not take any particular form; it need not be in writing. 1190

It was not established beyond reasonable doubt that the accused instructed his
troops to perform a campaign of sniping and shelling of the civilian population in
Sarajevo as such. 1191

Unlike the use of “uncontrollable” modified air bombs, snipers are generally
precise in hitting the target. In light of evidence that not all the sniping of civilians was
intentional, the inference that the accused ordered all sniping incidents is not the only
reasonable one on the ground that he generally controlled the sniping activity and
training. Convictions for ordering and planning the crimes related to the sniping incidents
reversed. 1192

The actus reus of ordering requires proof of a positive action by the person in a
position of authority, i.e. instructing another person to commit an offence. The existence
of such prior positive act emanating from the accused with respect to shellings which
occurred during his absence was not established. 1193

mens rea

The accused need only instruct another to carry out an act or engage in an
omission—and not necessarily a crime or underlying offence per se—if he has the intent
that a crime or underlying offence be committed in the execution of the order, or if he is
aware of the substantial likelihood that a crime or underlying offence will be
committed.1194

With regard to the requisite mens rea, it must be established that the accused in
issuing the order intended to bring about the commission of the crime, or was aware of
the substantial likelihood that it would be committed in the execution of the order.1195

1189
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 267
1190
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1191
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 267
1192
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 277
1193
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 292
1194
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87, fn. 94
1195
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 333 Prosecutor v Kordic
& Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 30; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 515; Prosecutor v Galic, No. IT-98-29-A, Judgement (30
November 2006) at para. 152

197
 A person who orders an act or omission with the awareness of the substantial
likelihood that a crime will be committed in the execution of that order, has the requisite
mens rea for establishing liability under Article 7(1) pursuant to ordering.1196

Leading military operations does not equate with involvement in crimes. The fact
that the accused participated in and was associated with the giving of orders does not
mean that he had the requisite mens rea for the crimes.1197

The evidence fell short of establishing that there was a “substantial likelihood”
that the forces of the accused would once again ignore orders and resort to deliberate and
indiscriminate shelling known to the accused when he ordered the attack on Srdj.
Therefore, he is not responsible for “ordering”. 1198

omission

The actus reus of ordering cannot be established in the absence of a prior positive
act because the very notion of “instructing”, pivotal to the understanding of the question
of “ordering”, requires “a positive action by the person in a position of authority”. 1199

Ordering cannot be accomplished by omission. 1200

superior relationship not required

This form of liability requires that at the time of the offence, an accused possessed
the authority to issue binding orders to the alleged perpetrator. A formal superior-
subordinate relationship between the person giving the order and the one executing it is
not a requirement in itself, nor need the order be given in writing, or in any one particular
form, or directly to the individual executing it. 1201

While the Prosecution need not prove that there existed a formal superior-
subordinate relationship between the accused and the physical perpetrator or intermediary
perpetrator, it must provide proof of some position of authority on the part of the accused
that would compel another to commit a crime in following the accused’s order. Such
authority may be informal and of a temporary nature, and as a consequence the order

1196
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 42
1197
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 957
1198
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 347
1199
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 267; Prosecutor v
Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 624
1200
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 176; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1201
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 331; Prosecutor v Kordic
& Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 28; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 515; Prosecutor v Haradinaj et al, No. IT-04-84bis-T,
Judgement (29 November 2012) at para. 624

198
issued by the accused need not be legally binding upon the physical perpetrator or
intermediary perpetrator.1202

The accused need merely instruct another person to commit an offence. Liability
for ordering may ensue where the accused issues, passes down, or otherwise transmits the
order, and that he need not use his position of authority to “convince” the physical
perpetrator or intermediary perpetrator to commit the crime or underlying offence. 1203

Ordering requires that a person in a position of authority, whether de jure or de

facto, instructs another person to commit a crime. This authority may be proved expressly
or may be reasonably implied from the evidence. 1204

planning

The actus reus of planning requires that one or more persons design the criminal
conduct constituting one or more crimes that are later perpetrated. It is sufficient to
demonstrate that the planning was a factor substantially contributing to the criminal
conduct.1205

With respect to the actus reus of planning, it is unclear whether the accused was
found to have participated in the design of the military strategy concerning the ongoing
campaign as such or whether he planned each and every incident for which he is held
responsible. In light of these uncertainties, the accused’s responsibility for planning of the
campaign of sniping and shelling of civilians in Sarajevo as such was not established
beyond reasonable doubt.1206

For “planning”, the Prosecution need not establish that the crime would not have
been committed but for the accused’s plan. 1207

While the Prosecution need not prove that the crime or underlying offence with
which the accused is charged would not have been perpetrated but for the accused’s plan,
the plan must have been a factor “substantially contributing to criminal conduct
constituting one or more statutory crimes that are later perpetrated.1208

1202
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1203
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 87
1204
Prosecutor v. Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 957
1205
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 26;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 513; Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 956
1206
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 270
1207
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 571
1208
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 82

199
 A person who plans an act or omission with the awareness of the substantial
likelihood that a crime will be committed in the execution of that plan has the requisite
mens rea for planning. 1209

Where an accused is found guilty of having committed a crime, he or she cannot

at the same time be convicted of having planned the same crime. 1210 Involvement in
planning may, however, be considered an aggravating factor.1211

superior responsibility

causation

Causation has not traditionally been postulated as a conditio sine qua non for the
imposition of criminal liability on superiors for their failure to prevent or punish offences
committed by their subordinates. Hence, it is not necessary that the commander’s failure
to act caused the commission.1212

Considering that superior responsibility does not require a causal link between the
commander’s failure to prevent subordinate’s crimes and the occurance of the crimes,
there is no duty for an accused to bring evidence demonstrating that there was no causal
link.1213

civilians

Command responsibility applies to civilian superiors as well as military

commanders. 1214

criminal negligence

Criminal negligence is not a basis of liability in the context of criminal

responsibility. 1215

1209
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 31;
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 513
1210
Prosecutor v. Kordi & Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at para. 386;
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 222
1211
Prosecutor v. Staki , No. IT-97-24-T, Judgement, (29 October 2003) at para. 443 Prosecutor v.
Milosevic, No. IT-98-29/1-T, Judgment (12December 2007) at para. 956 ; Prosecutor v Prlic et al, No. IT-
04-74-T, Judgement (29 May 2013) at vol. 1 para. 222
1212
Prosecutor v Delalic et al, No. IT-96-21-T, Judgement (16 November 1998) at para 398; Prosecutor v.
Kordi & Cerkez, No. IT-95-14/2-T, Judgement, (26 February 2001) at at para 447; Prosecutor v Brdjanin,
No. IT-99-36-T Judgement (1 September 2004) at para 280.
1213
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 40
1214
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 195 – 196; Prosecutor v
Prlic et al, No. IT-04-74-PT, Decision to Dismiss the Preliminary Objections Against the Tribunal’s
Jurisdiction (26 September 2005) at para. 19; Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June
2006) at para. 308; Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 70
1215
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 71

200
 defences

The burden is on the accused to establish the defence of “self-defence” and the
prosecution is not required to prove its absence. 1216

The defence of necessity can not be raised when the accused is convicted of the
mistreatment detainees suffered directly or indirectly at his hands or the hands of others
over whom he had superior responsibility. 1217

Acting out of “blind dedication” is no defence, as motive must be distinguished

from intent and the subordinate position of an accused is legally irrelevant to determining
individual criminal responsibility. 1218

elements

To hold a commander responsible for the crimes of his subordinates, it must be

established beyond reasonable doubt that: (1) there existed a superior-subordinate
relationship between the superior and the perpetrator of the crime; (2) the superior knew
or had reason to know that the criminal act was about to be or had been committed; and
(3) the superior failed to take the necessary and reasonable measures to prevent the
criminal act or to punish the perpetrator thereof. 1219

It is not necessary to prove under Article 7(3) that the superior ordered the
commission of the crime.1220

Command responsibility applies to every commander at every level in the armed

forces. This includes responsibility for those temporarily assigned to the commander. 1221

National law provides the framework for the authority attributed to a superior, but
the duty to act which stems from that authority must be evaluated under standards of
international law. 1222

jurisdiction

Superior responsibility existed in customary international law for internal

conflicts and therefore could be applied in the statute of the Tribunal. 1223

1216
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 838
1217
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 53
1218
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1027
1219
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 790;
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-A, Judgement (17 December 2004) at para. 827; Prosecutor
v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 56; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 520; Prosecutor v Oric, No. IT-03-68-T, Judgement (30
June 2006) at para. 294
1220
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 331
1221
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 61
1222
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 138

201
 There is no rule in customary or positive international law which requires a State
to prosecute acts which can be characterized as war crimes solely on the basis of
international criminal law, setting aside any characterizations of their national criminal
law. 1224

mens rea

The mens rea requirement is satisfied when it is established that: (i) the
commander had actual knowledge, established through either direct or circumstantial
evidence, that his subordinates were committing or about to commit crimes within the
jurisdiction of the Tribunal; or (ii) he had in his possession such information which would
put him on notice of the risk of such offences, in that it indicated or alerted him to the
need for additional investigation in order to determine whether such crimes had been or
were about to be committed by his subordinates. 1225

If a commander uses soldiers, while knowing or having reason to know that there
is a serious risk that they will not obey his orders to comply with international
humanitarian law, he may not claim that he lacked effective control over those soldiers.
A commander may not exonerate himself if he accepted the possibility before the crimes
were committed that subsequently he might not be able to control his troops. 1226

The superior’s position alone is insufficient to prove actual or constructive

knowledge of the crimes committed by his subordinates.1227

The more physically removed the superior is from the commission of the crimes,
the more supplemental indicia will be required in order to establish actual knowledge. 1228

Knowledge that crimes were committed is not sufficient. It must be established

that the superior knew of the crimes committed by his subordinates. 1229

actual knowledge

A superior’s actual knowledge that his subordinates were committing or were

about to commit a crime cannot be presumed, but it may be established by circumstantial
evidence. Factors that may be considered in this respect include the number, type and
scope of illegal acts, time during which the illegal acts occurred, number and types of

1223
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR72, Decision on Interlocutory Appeal
Challenging Jurisdiction in Relation to Command Responsibility (16 July 2003) at para. 31
1224
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 260
1225
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 792;
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 65; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 92
1226
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 89
1227
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 319
1228
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 248
1229
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 59

202
troops and logistics involved, geographical location, whether the occurrence of the acts is
widespread, tactical tempo of operations, modus operandi of similar illegal acts, officers
and staff involved, and location of the commander at the time. 1230

The threshold required to prove knowledge of a superior may be higher for those
exercising more informal authority than those operating within a well-defined and
structured chain of command. 1231

Factors to be considered in determining whether a superior had actual knowledge

include (1) the number, type, and scope of unlawful acts; (2) the time during which they
occurred; (3) the number and type of troops involved; (4) the logistics involved, if any;
(5) the geographical location of the acts; (6) their widespread occurrence; (7) the tactical
tempo of the operations; (8) the modus operandi of similar unlawful acts; (9) the officers
and staff involved and (10) the location of the commander at the time the acts were
committed.1232

Actual knowledge may be established through direct or circumstantial evidence

but cannot be presumed. 1233

The fact that a military commander “will most probably” be part of an organised
structure with reporting and monitoring systems has been cited as a factor that could
facilitate the showing of actual knowledge. Knowledge may be presumed if a superior
had the means to obtain the relevant information of a crime and deliberately refrained
from doing so.1234

While high positions or authority in an organization may indicate that persons are
being informed of and approve of what is occurring, this is not necessarily the case. 1235

reason to know

civilians

A stricter test should not be applied to non-military superiors than to military

superiors in this regard.1236

1230
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 368; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 66; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 319
1231
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 320
1232
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 94;
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 150
1233
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 94
1234
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 226; Prosecutor v
Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 792
1235
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 444
1236
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120

203
 negligence

The mental element “had reason to know” as articulated in the Statute, does not
automatically imply a duty to obtain information.1237

A superior cannot be held responsible for negligently failing to acquire

knowledge of the acts of subordinates. A superior may be held responsible for
deliberately failing to find out, but not for negligently failing to find out.1238

It is not required that he actually acquainted himself with such information: it

suffices that such information was available to him.1239

It is only necessary for the prosecution to prove that the information was provided
or made available to the superior. It is not required that the superior actually acquainted
himself with the information. A commander will not ordinarily be permitted to deny
knowledge of reports received at his headquarters, they being sent there for his special
benefit.1240

A report sent to headquarters while the commander was away on mission was
nevertheless presumed to be “available” to him. 1241

If an accused deliberately refrains from obtaining further information, despite

having the means to do so, he may be considered to have had “reason to know”.1242

What is required is factual information which should have provided a reason for
the superior to avail himself of further knowledge. This specific, subjective element
makes the “reason to know” standard one of more than mere negligence or an objective
test for which strict liability could be found. 1243

notice

An accused has “reason to know” if he has information available to him putting

him on notice of the need for additional investigation, in order to ascertain whether his
subordinates were about to engage, were engaging, or had engaged in conduct
constituting a crime or underlying offence under the Statute of the Tribunal. 1244

1237
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 406
1238
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 96
1239
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120
1240
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 479
1241
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 481
1242
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120
1243
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 324
1244
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120

204
 It must be established that the superior had information sufficiently alarming so as
to justify further inquiry. 1245

Knowledge of a strong risk that the subordinates would commit a crime is not
required. What is required is sufficiently alarming information putting a superior on
notice of the risk that crimes might subsequently be carried out by his subordinates and
justifying further inquiry. 1246

presumptions

An accused’s position of authority cannot lead to an automatic presumption,

beyond a reasonable doubt, that he or she knew or had reason to know of the crimes for
which a conviction is sought.1247

reliability

Information of mere rumors circulating in the streets does not suffice to constitute
the mens rea of command responsibility. However, in this case, the accused had
information from more reliable sources, including an investigating judge. 1248

specific cases

Accused had sufficiently alarming information to put him on notice of the risk
that crimes had been or were about to be committed by his subordinates so as to justify
further inquiry or the taking of measures. 1249

Given his awareness of the large numbers of Bosnian Muslim prisoners being
detained in the schools and guarded by members of the Zvornik Brigade as well as the
crucial fact that the detention of the prisoners was a precursor to their planned murder,
the accused had sufficiently alarming information to justify further inquiry into the
conditions in which the prisoners were being kept and the involvement of his
subordinates in perpetuating such conditions. At this point in time, the accused had
reason to know of the risk that his subordinates might participate in the cruel and
inhumane treatment of the prisoners through their role in guarding them. 1250

Mere knowledge that enemy soldiers are detained does not presume knowledge of
the mistreatment of those detainees. 1251

1245
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 28;
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1910
1246
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 304
1247
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 313.
1248
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1223
1249
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2040
1250
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1912
1251
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1291

205
 Accused lacked knowledge of discriminatory intent on part of his subordinates at
Srebrenica, given his limited knowledge of the crimes and their involvement in them. 1252

specificity

Showing that a superior had some general information in his possession, which
would put him on notice of possible unlawful acts by his subordinates would be sufficient
to prove that he ‘had reason to know.’ This information does not need to provide specific
information about unlawful acts committed or about to be committed. 1253

subordinates

Knowledge of the crime and knowledge of the criminal conduct of someone else
are two distinct matters.1254

A superior having information that one group of subordinates has committed

crimes cannot be presumed to have had reason to know that other groups of subordinates
would also commit crimes.1255

The prior knowledge of a superior must be narrowly interpreted to the extent it

derives from a situation of repeated similar criminal actions and from a set of
circumstances such that these actions could not arise in isolation, committed as they were
by the same identifiable group of subordinates. 1256

While a superior’s knowledge of and failure to punish his subordinate’s past

offenses is insufficient in and of itself to conclude that the superior knew that similar
future offences would be committed by the same group of subordinates, this may,
depending on the circumstances of the case, nevertheless constitute sufficiently alarming
information to justify further inquiry. 1257

Knowledge that unit were alleged to have committed crimes two years earlier did
not constitute sufficiently alarming information that required an investigation of the later
incident.1258

Frequent reports of misdemeanors and criminal offences constituted sufficiently

alarming information that required the commander to investigate allegation of crimes by
the same unit at a later time. 1259

1252
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2100
1253
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 154-155; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3177; Prosecutor v Popovic et al, No.
IT-05-88-A, Judgement (30 January 2015) at para. 1910
1254
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 252
1255
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 117
1256
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 251
1257
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 30;
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 301
1258
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 492

206
 However, it is error to conclude that a superior’s knowledge of and failure to
punish his subordinate’s past offenses automatically constitutes sufficiently alarming
information to justify further inquiry. 1260

sufficiency

A superior is not liable for failing to acquire such information in the first place.
The mental element of “reason to know” is determined only by reference to the
information in fact available to the superior. However the information in fact available to
him need not be such that, by itself, it was sufficient to compel the conclusion of the
existence of such crimes. It is sufficient that the superior was put on further inquiry by the
information, i.e. that it indicated the need for additional investigation in order to ascertain
whether offences were being committed or were about to be committed. 1261

A superior will be criminally responsible by virtue of the principles of superior

responsibility only if information was available to him which would have put him on
notice of offences committed by subordinates, or about to be committed. General
information in his possession, which would put him on notice of possible unlawful acts
by his subordinates is sufficient. A superior may be regarded as having “reason to know”
if he is in possession of sufficient information to be on notice of the likelihood of illegal
acts by his subordinates, i.e., if the information available is sufficient to justify further
inquiry. 1262

The form of the information available to him may be written or oral, and does not
need to have the form of specific reports submitted pursuant to a monitoring system. This
information does not need to provide specific information about unlawful acts committed
or about to be committed. For instance, a military commander who has received
information that some of the soldiers under his command have a violent or unstable
character, or have been drinking prior to being sent on a mission, may be considered as
having the required knowledge.1263

timing

The accused’s duty to investigate further only arises from the time at which
admonitory information becomes available to him, and a failure to seek out such
information in the first place will not, on its own, trigger liability under Article 7(3).1264

1259
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 512
1260
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 31
1261
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 369; Prosecutor v Oric,
No. IT-03-68-T, Judgement (30 June 2006) at para. 322
1262
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 370; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 68; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 525
1263
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 238; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120
1264
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 120

207
 failure to prevent or punish

The failure to prevent and the failure to punish are not only legally distinct but are
factually distinct in terms of the type of knowledge that is involved for each basis of
superior responsibility. The duty to prevent arises for a superior from the moment he
knows or has reason to know that a crime is about to be committed, while the duty to
punish arises only after the commission of the crime. 1265

Knowledge which is relevant to the failure to punish may or may not be relevant
to the failure to prevent depending on when the superior acquired this knowledge. 1266

In order to incur individual criminal responsibility under Article 7(3) of the

Statute, the superior having actual or imputed knowledge of crimes being about to be
committed or having been committed by his subordinates must have “failed to take the
necessary and reasonable measures to prevent such acts or to punish the perpetrators
thereof”.1267

A superior has a duty to suppress crimes which are ongoing when he learns of
1268
them.

The neglect of a duty to acquire knowledge does not feature in the provision
Article 7(3) as a separate offence, and a superior is not therefore liable under the
provision for such failures but only for failing to take necessary and reasonable measures
to prevent or to punish.”1269

While a superior cannot be held responsible solely for neglecting a general

obligation, neither can he avoid superior responsibility by proving diligence in meeting
those general duties while failing to take the necessary measures in the particular
circumstances. 1270

The superior therefore cannot be relieved of his duty to act under

international law by reference to domestic laws. 1271

reasonable and necessary measures

causation

1265
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 260
1266
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 260
1267
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 325; Prosecutor v Brdjanin, No.
IT-99-36-T, Judgement, (1 September 2004) at para 279.
1268
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 71
1269
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 226.; Prosecutor v.
Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 62
1270
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 330
1271
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 155

208
 Since Article 7(3) contains no requirement of causality, a superior’s failure to take
the necessary and reasonable measures to prevent the crimes or underlying offences of
his subordinates does not have to have caused those crimes or underlying offences.1272

defined

“Necessary” measures are the measures appropriate for the superior to discharge
his obligation (showing that he genuinely tried to prevent or punish) and “reasonable”
measures are those reasonably falling within the material powers of the superior. What
constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a
matter of substantive law but of evidence. 1273

disciplinary measures

Measures taken that were limited to disciplinary, rather than criminal, punishment
may be sufficient to discharge a superior’s duty to take reasonable and necessary
measures, depending on the circumstances of the case. 1274

The use of disciplinary measures may in certain circumstances be sufficient for

a superior to discharge his duty to punish crimes under Article 7(3).1275

Given the grave nature of the crimes in which the accused’s subordinates were
suspected of participating, imposing disciplinary sanctions for serious breaches of
military discipline would have been insufficient to constitute an appropriate or adequate
means to punish. Therefore his failure to institute such measures will not be considered
for the purpose of determining his responsibility under Article 7(3).1276

impossible

The measures required of the commander are limited to those which are “within
his power”, meaning those measures which are “within his material possibility”. A
commander is not obliged to perform the impossible; he does, however, have a duty to
exercise the measures that are possible within the circumstances, including those
measures that may be beyond his legal competence.1277

1272
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 122
1273
Prosecutor v Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 63; Prosecutor v Oric,
No. IT-03-68-A, Judgement (3 July 2008) at para. 177; Prosecutor v Popovic et al, No. IT-05-88-A,
Judgement (30 January 2015) at para. 1932; Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29
November 2017) at para. 3180
1274
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 33
1275
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1942
1276
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1942
1277
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 793;
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 373; Prosecutor v Halilovic,
No. IT-01-48-T, Judgement (16 November 2005) at para. 72; Prosecutor v Limaj et al, No. IT-03-66-T,
Judgement (30 November 2005) at para. 526-27

209
 With regard to what constitutes reasonable measures, the obligation to take
measures is restricted to those that are feasible, so that no responsibility attaches to a
superior for whom the fulfilment of the duty to punish was not possible in the prevailing
circumstances. 1278

The determination of what is materially possible in terms of fulfilling the duty to

punish is primarily linked to the question of a superior’s effective control.1279

Feasibility relates to what is realistic and practical in the circumstances. When

used in the context of command responsibility, the assessment must remain anchored in
the material powers of the superior.1280

reporting

The obligation to prevent or punish may, under some circumstances, be satisfied

by reporting the matter to the competent authorities. 1281

If the accused’s material ability to intervene merely allows that he report

imminent or ongoing crimes or underlying offences of which he knows or has reason to
know to the competent authorities, then such reporting may be sufficient to satisfy his
duty to prevent. If an accused superior’s actual and legal powers allow him to dispense
punishment upon his subordinates himself, he may incur Article 7(3) liability. If such
powers do not allow him to dispense punishment, however, he may be able to avoid
Article 7(3) liability by simply undertaking an investigation, or by forwarding the
information in his possession to his own superior or to the prosecutorial authorities.1282

A superior’s duty to punish the perpetrators of a crime includes at least an

obligation to investigate possible crimes, to establish the facts, and if the superior has no
power to sanction, to report them to the competent authorities. In respect of merely
reporting crimes, this would only suffice to fulfil the duty to punish if such a report is
likely to trigger an investigation or initiate disciplinary or criminal proceedings. 1283

In order to constitute a necessary and reasonable measure to punish, the

commander’s report must be sufficient to trigger the action of the competent
authorities. 1284

1278
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1928
1279
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1928
1280
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1929
1281
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 793;
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 373; Prosecutor v Halilovic,
No. IT-01-48-T, Judgement (16 November 2005) at para. 72; Prosecutor v Limaj et al, No. IT-03-66-T,
Judgement (30 November 2005) at para. 526-27
1282
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 123
1283
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1932
1284
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1932

210
 subsequent punishment

Failure to take the necessary and reasonable measures to prevent an offence of

which a superior knew or had reason to know cannot be cured simply by subsequently
punishing the subordinate for the commission of the offence. 1285

sufficiency of measures

A superior’s duty cannot be discharged by the issuance of “routine” orders, and

any measures taken by him should be specific and closely linked to the acts that they are
intended to prevent. 1286

The question whether all necessary and reasonable measures to prevent the
commission of crimes or to punish the perpetrators have been taken should be considered
in light of the accused’s material powers at that time. Factors relevant to the Chamber’s
assessment include, but are not limited to, whether specific orders prohibiting or stopping
the criminal activities were issued; what measures to secure the implementation of these
orders were taken; what other measures were taken to secure that the unlawful acts were
interrupted and whether these measures were reasonably sufficient in the specific
circumstances; and, after the commission of the crime, what steps were taken to secure an
adequate investigation and to bring the perpetrators to justice. 1287

“Necessary and reasonable” measures may include carrying out an investigation,

transmitting information in a superior’s possession to the proper administrative or
prosecutorial authorities, issuing special orders aimed at bringing unlawful practices of
subordinates into compliance with the rules of war and securing the implementation of
these orders, protesting against or criticising criminal action, taking disciplinary measures
against the commission of atrocities, reporting the matter to the competent authorities,
and/or insisting before a superior authority that immediate action be taken. In certain
circumstances, the duty may be discharged by reporting to the proper authorities, where
such reporting is likely to trigger an investigation. The superior does not need to be the
one administering the punishment or discipline 1288

Reasonable and necessary measures under Article 7(3) may include carrying out
an effective investigation to establish the facts, issuing specific orders prohibiting or
stopping the criminal activities and securing implementation of those orders, protesting or

1285
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 793;
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 373; Prosecutor v Halilovic,
No. IT-01-48-T, Judgement (16 November 2005) at para. 72; Prosecutor v Limaj et al, No. IT-03-66-T,
Judgement (30 November 2005) at para. 526-27
1286
Prosecutor v Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 122
1287
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 378; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 74; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 528; Prosecutor v Delic, No. IT-04-83-T, Judgement (15
September 2008) at para. 76
1288
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 117;
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1045

211
criticising criminal action and taking disciplinary measures against the commission of
crimes. 1289

Based on the alarming information the accused received, merely asking a

subordinate if he had any information is insufficient to discharge the accused’s duty to
investigate under Article 7(3).1290

It is not sufficient for a superior to simply try to ascertain the facts – not only
must the investigation be adequate but it must be accompanied by an action either to
sanction the subordinates directly or, if the superior lacks that power, to report the
suspicion of crimes to a competent authority. The accused’s attempts to investigate the
crimes were of questionable adequacy and were not followed by any action to report the
suspected crimes of his subordinates to the competent authority either directly or through
his superiors. 1291

The accused is responsible as a superior for the crimes of his subordinates given
that he failed to take reasonable and necessary measures to punish their crimes. 1292

existence of other investigations

The conduct of a “sham” investigation by another officer did not relieve the
accused of his duty to punish the criminal conduct.1293

A superior’s responsibility should not turn on the competent authority’s possible

failure to initiate criminal proceedings. If the superior knows that the appropriate
authorities are not functioning or if he knows that a report was likely to trigger an
investigation that was sham, this entails that such a report would not be sufficient to
fulfill the obligation to punish offending subordinates. It does not mean that the action of
reporting becomes impossible in the circumstances.1294

Even if, in fact, the investigation undertaken was not satisfactory, if the failure of
the investigating authorities was not attributable to the superior, and he or she did not
know of their failure, or could not anticipate it at the time, the superior cannot be held
responsible under Article 7(3). No further reporting or action is required in such a
case. 1295

Where reports were made to the appropriate authorities by subordinates of the

accused, the failure of authorities to conduct a serious investigation could not be
attributed to the accused. He had discharged his duty to punish by having the matter

1289
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 588
1290
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1914
1291
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1944
1292
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1945
1293
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 236
1294
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1929
1295
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1046

212
reported to the competent authorities. Therefore, he could not be held criminally
responsible pursuant to Article 7(3) for failure to punish. 1296

when reporting futile

When faced with manifestly unlawful orders that were issued by his superiors –
orders that were invalid domestically and which were in violation of the laws of war – he
was legally obligated to ensure that international humanitarian law was applied. In this
regard, it was wrong for the accused to do nothing. 1297

While reporting on crimes committed by one’s subordinates to a military organ

directly involved in the ordering, planning, and execution of the crimes may not be
necessary, this reasoning cannot be extended to other military authorities which were not
so involved.1298

Commanders face a complex situation during armed conflict when their

subordinates have committed crimes upon the orders of the top echelons of the military
and political structures. However, international law requires commanders to take some
action to punish their subordinates for committing crimes, even in these
circumstances. 1299

The option of the accused reporting directly to the Military Prosecutor about the
crimes committed by his subordinates was a reasonable and necessary measure to punish
in the circumstances, despite the fact that the Main Staff monitored the work of the
Military Prosecutor, who worked under the Minister of Defence. 1300

The accused had the option to report the matter to his direct superior General
Krstic. His oblique reference to prisoners in two reports and brief conversation with
Krstic cannot be considered to be sufficient to fulfil his obligation to take necessary and
reasonable measures to punish. 1301

While the relevant war-time legislation made the Military Prosecutor the
competent authority to which the relevant crimes should be reported, the MUP
investigative, prosecutorial, and judicial systems remained fully functioning. In these
circumstances, it was necessary and reasonable for Pandurevic to report the crimes
committed by his subordinates to the MUP so that they could investigate or pass it on to
the competent authority.1302

While, as a superior officer, the accused was obliged under the law to take steps

1296
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para.536;
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 261
1297
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1898
1298
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1930
1299
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1931
1300
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1936
1301
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 1937-38
1302
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1940

213
to preserve the crime scene and collect information useful for any criminal proceedings,
such a measure may have been practically impossible in the circumstances given the
direct involvement of the Main Staff in the ordering, planning, execution, and attempted
cover-up of the crimes. 1303

Given that the accused knew about Nikolic’s involvement in the crimes
committed by his subordinates, it was reasonable for the accused to consider that
reporting the crimes to the CPS, who worked under Nikolic’s direction, was not a
realistic option.1304

prevention

A superior’s obligation to prevent a crime is not discharged by his subsequent

punishment of the perpetrator.1305

A superior is obligated to prevent the planning and preparation of a crime, not

only its commission.1306

A superior is liable if he failed to prevent a crime, even if he subsequently

punished the perpetrators.1307

The accused had effective control over the perpetrators of the unlawful shelling of
the Old Town of Dubrovnik of 6 December 1991. The accused had the legal authority
and the material ability to stop the unlawful shelling of the Old Town and to punish the
perpetrators. As of around 0700 hours on 6 December 1991 the accused was put on notice
at the least of the clear prospect, that his artillery was then repeating its previous conduct
and committing offences such as those charged. Despite being so aware, the accused did
not ensure that he obtained reliable information whether there was in truth JNA shelling
of Dubrovnik occurring, especially of the Old Town, and if so the reasons for it. Further,
the accused did not take necessary and reasonable measures to ensure at least that the
unlawful shelling of the Old Town be stopped. At no time did the Accused institute any
investigation of the conduct of his subordinates responsible for the shelling of the Old
Town, nor did he take any disciplinary or other adverse action against them, in respect of
the events of 6 December 1991. Therefore, the elements required for establishing the
Accused’s superior responsibility under Article 7(3) of the Statute for the unlawful
shelling of the Old Town by the JNA on 6 December 1991 have been established.1308

1303
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1934
1304
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1935
1305
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 326; Prosecutor v Milutinovic et
al, No. IT-05-87-T, Judgement (26 February 2009) at para. 116; Prosecutor v Karadzic, No. IT-95-5/18-T,
Judgement (24 March 2016) at para. 589
1306
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 328
1307
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 126;
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 256
1308
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 446

214
 A commander’s failure to take general preventive measures does not entail the
same consequences for his criminal responsibility as the failure to act in a specific
circumstance where a crime of which he has knowledge is about to be committed. 1309

The fact that crimes may be substantially beyond prevention does not relieve
a commander of his duty to prevent those which may still be prevented.1310

Issuing orders to his subordinates to refrain from participating in the murder

operation would have been reasonable under the circumstances. 1311

A commander cannot be held liable for failing to take general measures to provide
structure for his subordinates. Although he runs the increased risk that his subordinates
will commit criminal acts, this will not necessarily entail his criminal responsibility. 1312

It is much less foreseeable for violations of international humanitarian law to

occur when a commander has taken a series of general preventive measures to instill
order and discipline in his troops than when a commander has not taken care to put in
place a system which instills respect for the law and discipline. The taking of general
measures is also decisive in the evaluation of mitigating circumstances. 1313

The duty to prevent recurrence of similar acts is limited to the acts of subordinates
who form an identifiable group, some members of which have already committed similar
acts. Responsibility can only be established when the recurrence is foreseeable. 1314

The existence of a link between the failure to prevent a crime and the commission
of that crime will be presumed unless proven to the contrary by the accused. The
prosecution need not prove that the necessary measures would have in fact prevented the
crimes. 1315

What the duty to prevent entails in a particular case will depend on the superior’s
material ability to intervene in a specific situation. In establishing individual
responsibility of superiors military tribunals set up in the aftermath of World War II have
considered factors such as the superior’s failure to secure reports that military actions
have been carried out in accordance with international law, the failure to issue orders
aiming at bringing the relevant practices into accord with the rules of war, the failure to
take disciplinary measures to prevent the commission of atrocities by the troops under
their command, the failure to protest against or to criticise criminal action, and the failure
to insist before a superior authority that immediate action be taken. The Tokyo Trial held

1309
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 147
1310
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1898
1311
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1898
1312
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 144
1313
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 151
1314
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 164
1315
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1465

215
that a superior’s duty may not be discharged by the issuance of routine orders and that
more active steps may be required. 1316

The artificial distinction between “general” and “specific” obligations creates a

confusing and unhelpful dichotomy. 1317

Where a superior fails to take the necessary steps to prevent crimes committed by
subordinates under his effective control, a nexus between the omission and those crimes
is presumed and the accused must disprove the nexus between the steps taken by the
superior and the commission of the crimes. 1318

Where the accused allowed troops to engage in combat operations even though
they had not been trained in international humanitarian law, he could be held liable for
failing to prevent their subsequent crimes even if he did not have the time to have
prevented a specific incident.1319

By issuing orders prohibiting plunder and appointing investigators to investigate

specific allegations of plunder, the accused took adequate measures to prevent the crime
of plunder.1320

The commander has the duty to stop an ongoing offence as well as to prevent an
offence which has not yet been committed.1321

punishment

The duty to punish includes at least an obligation to investigate possible crimes or

have the matter investigated, to establish the facts, and if the superior has no power to
sanction, to report them to the competent authorities. 1322

Where a commander had referred murder allegations to the appropriate military

judicial authority, he had taken the reasonable and necessary measures to punish required
under Article 7(3).1323

The Trial Chamber correctly held that the relevant question for liability for failure
to punish is whether the superior took the necessary and reasonable measures to punish
under the circumstances and that the duty to punish may be discharged, under some
circumstances, by filing a report to the competent authorities. 1324

1316
Prosecutor v Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 63, fn. 163
1317
Prosecutor v Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 64; Prosecutor v Oric,
No. IT-03-68-A, Judgement (3 July 2008) at para. 177
1318
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 193
1319
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1483
1320
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1885
1321
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 259
1322
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 97
1323
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1061
1324
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 230.

216
 A superior need not dispense punishment personally and may discharge his duty
to punish by reporting the matter to the competent authorities. 1325

In the case of a superior who does not have the power to personally punish
subordinates, what is required is that there be a report to the competent authorities which
is likely to give rise to an investigation or the initiation of appropriate proceedings. 1326

A superior must bring to justice those who planned or prepared crimes as well as
those who committed them.1327

The taking of disciplinary measures against perpetrators of a murder, resulting in

their detention for up to 60 days, was inadequate measures to punish the crime. The
superior had the duty to ensure that the perpetrators were criminally prosecuted. He
therefore incurred liability himself for failure to punish this crime. 1328

By failing to take appropriate measures to punish a crime, a commander creates a

situation which encourages subordinates to commit further crimes, and thus entails the
commander’s responsibility for those crimes. 1329

If a commander has the material ability to use force to enforce international

humanitarian law, he may be compelled to do so if the circumstances leave him no other
choice. 1330 Whether a commander with limited numbers of troops and materials has the
ability to enforce international criminal law by punishing his own troops must be decided
on a case-by-case basis.1331

In 1993 in Bosnia, there was no rule of customary international law whereby

States are obliged to prosecute war crimes solely on the basis of international
humanitarian law. As a result, a commander cannot be impugned for relying on domestic
law in order to determine his obligations towards his subordinates. 1332

Trial Chamber’s finding of accused’s failure to take additional measures to follow

up on reports of crimes could not be sustained in light of steps that he did take and failure
of Trial Chamber to refer to testimony of defence expert who concluded that these
measures were adequate. There exists reasonable doubt about whether any failure to act
was so extensive as to constitute a substantial contribution to crimes or a failure to take

1325
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 154;
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2053
1326
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at para. 519
1327
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 334
1328
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1777
1329
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1778
1330
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 86
1331
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 88
1332
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 255

217
necessary and reasonable measures to prevent and punish crimes committed by
subordinates.1333

subsequent commanders

Superior responsibility does not extend to acts committed by the subordinates

prior to the assumption of command by the commander. 1334 Therefore, a subsequent
commander cannot be held liable even for acts committed just before he assumed
control.1335

Where a crime is committed under one commander, but reports of the crime only
reach the command when a second commander has assumed the command, the first
commander has no duty to punish, since he no longer has the ability to exercise effective
control.1336

An accused may not be held liable for failure to punish crimes committed by a
subordinate before the accused assumed command over the subordinate. Thus, the fact
that, after the shelling of Zagreb, the accused may eventually have acquired the power to
punish the Zagreb Perpetrators does not expose him to liability for failure to punish the
Zagreb Crimes. 1337

A commander cannot be held liable for crimes of persons not under his command
at the time the crimes were committed. Where the prosecution failed to prove that the
accused had effective control over those committing the crimes, the accused was
acquitted.1338

acts of subordinates

identity of subordinates

Notwithstanding the degree of specificity with which the culpable subordinates

must be identified, in any event, their existence as such must be established. If not,
individual criminal liability under Article 7(3) of the Statute cannot arise. 1339

Failure of Trial Chamber to identify underlying crime committed by subordinate

resulted in reversal of conviction. 1340

1333
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 134
1334
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR72, Decision on Interlocutory Appeal
Challenging Jurisdiction in Relation to Command Responsibility (16 July 2003) at para. 51; Prosecutor v
Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 335
1335
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 199
1336
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 197
1337
Prosecutor v Perisic, No. IT-03-81-A, Judgement (28 February 2013) at para. 110
1338
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 752
1339
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 35
1340
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 48

218
 It is not necessary that the particular perpetrator be identified so long as it is
proven that he was a member of a unit or group under the control of the superior. 1341

A superior need not necessarily know the exact identity of his or her subordinates
who perpetrate crimes in order to incur liability under section 7(3).1342

intermediate subordinates

Whether the effective control descends from the superior to the subordinate
culpable of the crime through intermediary subordinates is immaterial as a matter of law;
instead, what matters is whether the superior has the material ability to prevent or punish
the criminally responsible subordinate. The separate question of whether – due to
proximity or remoteness of control – the superior indeed possessed effective control is a
matter of evidence, not of substantive law. Likewise, whether the subordinate is found to
have participated in the crimes through intermediaries is immaterial as long as his
criminal responsibility is established beyond reasonable doubt.1343

modes of liability

Superior responsibility encompasses criminal conduct by subordinates under all

modes of participation under Article 7(1) of the Statute. It follows that a superior can be
held criminally responsible for his subordinates’ planning, instigating, ordering,
committing or otherwise aiding and abetting a crime. 1344

multiple superiors

More than one superior may be held liable for failure to prevent or punish the
same crime of the subordinate.1345

The commanding officer‟ s responsibility applies to every commanding officer in

the chain, regardless of their place in the hierarchy, and comprises responsibility for acts
committed by troops placed temporarily under his command, provided that he wielded
effective control over these troops at the time the crimes were committed.1346

1341
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 311; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 90
1342
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 287
1343
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 20
1344
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 21; Prosecutor v Blagojevic &
Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 280; Prosecutor v Boskoski & Tarculovski, No.
IT-04-82-PT, Decision on Prosecution’s Motion to Amend the Indictment (26 May 2006) at para. 46;
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para.56
1345
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 62; Prosecutor v
Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 239; Prosecutor v Prlic et al, No. IT-
04-74-T, Judgement (29 May 2013) at vol. 1 para. 239
1346
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 240; Prosecutor v
Milutinovic et al, No. IT-05-87-T, Judgement (26 February 2009) at para. 118

219
 Mere participation in joint combat operations is not sufficient to find that
commanders of different units exercise effective control over all participants in a
battle. 1347

nature of responsibility

Superior responsibility is responsibility for an omission to prevent or punish

crimes committed by one’s subordinates, rather than vicarious responsibility for the acts
of subordinates.1348

omission by subordinate

A superior may be responsible for a crime committed by omission by a

subordinate.1349

temporary command

The superior-subordinate relationship need not be permanent in nature.1350

The mere ad hoc or temporary nature of a military unit or armed group does not
per se exclude a relationship of subordination between a member of the unit and its
commander or leader.1351

effective control

To be found criminally liable pursuant to Article 7(3), a superior must be shown

to have exercised effective control over those of his or her subordinates who have
committed crimes.1352

Effective control has been defined to mean the material ability to prevent offences
or punish the offender.1353

The concept of material ability necessarily takes into account all factors which
might impede a superior’s ability to prevent and punish. In circumstances where a
superior would not be able to perform the functions necessary to prevent or punish, the
superior could not be said to possess the material ability required to exercise effective

1347
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 84
1348
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 75
1349
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 302; Prosecutor v Boskoski &
Tarculovski, No. IT-04-82-PT, Decision on Prosecution’s Motion to Amend the Indictment (26 May 2006)
at para. 46
1350
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1039;
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Judgement (27 March 2013) at para. 114
1351
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 310
1352
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1857
1353
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1857

220
control.1354

Effective control has been accepted as a standard for the purposes of determining
superior responsibility under Article 7(3).1355

The test of effective control relates to the relationship between the individuals and
is not limited to a consideration of whether actual control is being exercised at any given
moment. Otherwise the responsibility would be significantly narrowed – restricted to
those who were in control and not reaching those who could have taken that control to
prevent these crimes or punish them. Thus, in assessing effective control for these
purposes, the issue is not whether the superior was in command or exercising control at
any given moment but rather whether he or she had the material ability to prevent or
punish the perpetrators of the crimes. 1356

To the extent that more than one person is found to have effective control over the
subordinates who have committed a crime, they may all incur criminal responsibility.
Thus, the exercise of effective control by one commander does not necessarily exclude
effective control being exercised by a different commander.1357

Proving that the perpetrator was the “subordinate” of the accused does not require
direct or formal subordination. Rather, the accused has to be, by virtue of his position,
senior in some sort of formal or informal hierarchy to the perpetrator. The ability to
exercise effective control in the sense of a material power to prevent or punish, a
minimum requirement for the recognition of a superior-subordinate relationship for the
purpose of superior responsibility, will almost invariably not be satisfied unless such a
relationship of subordination exists. 1358

A superior cannot rely on a principle of singleness of command, designed to

ensure army efficiency, in order to escape responsibilities which relate to the suppression
of the gravest of crimes. In essence, for it to be effective, that responsibility cannot be
reserved exclusively for those who were exercising control or were “in command” and
thereby could prevent or punish, but must also extend to those who had the material
ability to do so.1359

A material ability to prevent and punish may also exist outside a superior-
subordinate relationship relevant for Article 7(3) of the Statute. For example, a police
officer may be able to “prevent and punish” crimes under his jurisdiction, but this would
not as such make him a superior (in the sense of Article 7(3) of the Statute) vis-à-vis any
perpetrator within that jurisdiction. 1360

1354
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1857
1355
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 196.
1356
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2023
1357
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1892
1358
Prosecutor v Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 59
1359
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2026
1360
Prosecutor v Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 59

221
 A commander vested with de jure authority who does not, in reality, have
effective control over his or her subordinates would not incur criminal responsibility
pursuant to the doctrine of command responsibility, while a de facto commander who
lacks formal letters of appointment, superior rank or commission but does, in reality,
have effective control over the perpetrators of offences could incur criminal
responsibility under the doctrine of command responsibility. 1361

Effective control can be exercised by persons with either de jure or de facto

authority. A person having de jure authority is presumed to have effective control unless
the contrary is proved.1362

The power to give orders and have them executed can serve as an indicum of
effective control.1363

The exercise of effective control by one commander does not necessarily exclude
effective control being exercised by a different commander.1364

In situations involving formal hierarchies and command structures, a superior’s

capacity to issue orders can amount to a factor indicative of his effective control over
subordinates in the sense of material ability to prevent or punish criminal conduct.1365
However, such capacity does not automatically establish the material ability to prevent
and punish crimes.1366

The fact that a particular unit took part in combat operations undertaken by
regular forces does not in and of itself establish that the commander of the regular forces
had effective control over that unit.1367

De jure authority does not relieve the prosecution of its burden of proving
effective control beyond a reasonable doubt. It simply creates a prima facie reasonable
basis for assuming that the accused had control over his subordinates. 1368

A finding of de jure authority will not necessarily lead to a finding that the
accused had control over his subordinates. 1369

1361
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 791;
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 309
1362
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 197; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 79
1363
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 199
1364
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1859
1365
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 195
1366
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 253
1367
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 209
1368
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 21
1369
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para.21, fn.
55; Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 1 para. 241

222
 If a superior-subordinate relationship existed, it cannot be relevant to ask whether
the subordinate’s behaviour was erratic. However, if it is not clear whether that
relationship existed, it can be relevant to take into account the erratic behaviour of the
subordinate in determining whether the superior had the “material ability to prevent or
punish” necessary for effective control. 1370

The fact that a unit fought along side a unit of the regular Army is insufficient to
establish de facto control over that unit.1371

The fact that some members of the unit were punished for other crimes
demonstrated that they were under effective control of the authorities. 1372

Neither the formal position or title of the accused, nor the fact that other people
regard him or her as having that position or title, will be sufficient to establish “control”
in terms of Article 7(3) in the absence of actual authority. 1373

The prosecution bears the burden of proving beyond reasonable doubt that the
accused had effective control over his subordinates.1374 The possession of de jure
authority, without more, provides only some evidence of such effective control. Before
the International Tribunal there is no such presumption to the detriment of an accused. 1375

There is no definitive list of indicators of effective control. Indicators considered

will necessarily depend on the case and are a matter of evidence showing that the
accused had the power to prevent or punish the alleged perpetrators where
appropriate.1376

Merely being tasked with coordination does not necessarily mean to have
command and control.1377

If a superior has functioned as a member of a collegiate body, his actual control

must be assessed on a case-by-case basis, taking into account the cumulative effect of the
accused’s functions.1378

A commander in unoccupied territory is only responsible for soldiers under his

command, while a commander in occupied territory may be responsible for crimes
committed in his territorial area of responsibility. 1379

1370
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 159
1371
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 345
1372
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 470
1373
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 306.
1374
Hadžihasanovi and Kubura Appeal Judgement, para. 21.
1375
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 92
1376
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1860
1377
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 311
1378
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 313
1379
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 81

223
 There is no requirement that the superior-subordinate relationship be immediate in
nature for a commander to be found liable for the acts of his subordinate. What is
required is the establishment of the superior’s effective control over the subordinate,
whether that subordinate be immediately answerable to that superior or more remotely
under his command. 1380

A superior must be aware that he has effective control over those committing or
who had committed crimes.1381

If a commander uses soldiers, while knowing or having reason to know that there
is a serious risk that they will not obey his orders to comply with international
humanitarian law, he may not claim that he lacked effective control over those soldiers.
A commander may not exonerate himself if he accepted the possibility before the crimes
were committed that subsequently he might not be able to control his troops.1382

The identifiable group for purposes of recurrent acts must be defined as the same
brigades or battalions operating in the same geographical zone, or the same detention
facilities being operated by the same supervisory power.1383

Where a superior fails to take the necessary steps to prevent crimes committed by
subordinates under his effective control, a nexus between the omission and those crimes
is presumed and the accused must disprove the nexus between the steps taken by the
superior and the commission of the crimes.1384

Beneficial acts done by the accused to victims or potential victims of serious

violations of international humanitarian law may be regarded as further evidence of the
powers the accused exercised and thus of his authority, not mitigating factors.1385

effective control factors

Factors to be considered in determining the authority of the accused and effective

control include (1) the official position held by the accused; (2) his capacity to issue
orders; (3) the procedure for appointment; (4) the position of the accused within the
military or political structure; and (5) the actual tasks that he performed. 1386

Criteria indicative of control include (1) the formality of the procedure used for
the appointment of the superior; (2) the power of the superior to issue orders: (3) the
power to take disciplinary action; (4) the fact that the subordinates show greater

1380
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 363; Prosecutor v
Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 63; Prosecutor v Oric, No. IT-03-68-T,
Judgement (30 June 2006) at para. 311
1381
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 316
1382
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 89
1383
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 168-69
1384
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 193
1385
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 213.
1386
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 58

224
discipline than when he is absent; (5) the capacity to transmit reports resulting in
discipline; (6) the capacity to sign orders; (7) the high public profile of the accused; and
(8) participation in international negotiations. 1387

Factors used to determine the existence of effective control include (1) the official
position of the accused; (2) the power to give orders and have them executed; (3) the
conduct of combat operations involving the forces in question; (4) the authority to apply
disciplinary measures; (5) the authority to promote or remove soldiers; and (6)
participation in negotiations regarding the troops in question. 1388

Factors relevant to a determination of de facto authority have included evidence

that: (1) the accused acknowledged his possession of authority; (2) the accused used his
‘limited’ authority to prevent crimes and to order that detainees not be mistreated; (3)
perpetrators of violations of international humanitarian law tried to conceal offences from
the accused; (4) when the accused was at the camp, there was ‘far greater’ discipline than
when he was absent (5) a co-accused told the detainees that the accused was commander;
(6) the accused arranged for the transfer of detainees; (7) the accused classified detainees
for the purpose of continued detention or release; (8) the accused controlled guards; and
(9) the accused had the authority to release prisoners.1389

Factors considered insufficient to establish “effective control” have included that:

(1) other guards at the camp feared the accused, and he occasionally criticized them
severely;1390 (2) the accused may have ordered the beating of detainees on certain
occasions (although this was not established beyond reasonable doubt);1391 and (3) the
accused assisted with the organization and arrangement of daily activities in the camp. 1392
Whilst such factors were indicative of a degree of influence held by the accused on some
occasions in the commission of criminal acts, they were not sufficient to attribute
superior responsibility to him. 1393

Factors considered to determine whether unit was under effective control of

regular Army included (1) compliance with Army orders; (2) participation in combat with
regular Army; (3) compliance with Army procedures; (4) access of the Army to premises
and prisoners; (5) recruitment from civilians and soldiers; (6) mutual assistance; (7)
reporting procedure; (8) cooperation with the Army; (9) ability to investigate and punish
unit members; (10) appointment of members of the unit; and (11) disbanding the unit. 1394

Factors indicative of an individual’s position of authority and effective control

may include: (1) the procedure used for appointment of an accused, (2) his official
position, (3) his ability to issue orders and whether these are in fact followed, (4) the

1387
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 312
1388
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 83
1389
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 206.
1390
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 308.
1391
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 309.
1392
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 310.
1393
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 312.
1394
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 368

225
power to order combat action and re-subordinate units, (5) the availabilityof material and
human resources, (6) the authority to apply disciplinary measures,(7) the authority to
promote, demote or remove particular soldiers, and (8) the capacity to intimidate
subordinates into compliance 1395

effective control v influence

Effective control means more than having general influence over the behavior of
1396
others.

Substantial influence over subordinates is not sufficient for superior

responsibility. What is required is the material ability to prevent offenses and punish
offenders.1397

The critical factor that must be established to find a superior-subordinate

relationship is that the superior had “effective control” over the person or persons in
question, namely those persons committing the offences. Effective control means the
“material ability to prevent or punish the commission of the offences”. “Substantial
influence” over subordinates that does not meet the threshold of “effective control” is not
a sufficient basis for imputing criminal liability under customary law. 1398

The doctrine of command responsibility is not intended to impose criminal

liability on one of two persons of completely equal rank and status who, due to force of
personality or sheer strength, may have a practical ability to prevent the criminal conduct
of the other.1399

effective control found

Although he was away from Srebrenica during the period when the crimes were
committed, and often out of communication, and his Deputy was issuing orders in his
absence, the accused retained effective control over his brigade within the meaning of
Article 7(3).1400

Accused retained effective control over security officer of his brigade, even where
that superior officer was acting on orders of the security apparatus under the command of
the Main Staff. 1401

1395
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 148
1396
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 311
1397
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 80
1398
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 266, 300; Prosecutor v
Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 791; Prosecutor v Halilovic,
No. IT-01-48-T, Judgement (16 November 2005) at para. 59; Prosecutor v. Limaj et al., No. IT-03-66-A,
Judgement (27 September 2007) at para. 273
1399
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 303.
1400
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2034
1401
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2033

226
 Minister of Interior was not simply figurehead to inform Parliament, but had de
jure and de facto control over police. 1402

Where the 7th brigade was de jure subordinated to the 3rd Corps headed by the
accused, it was presumed that the accused had effective control over members of the 7 th
brigade who committed murders. This presumption was supported by the fact that the 7th
brigade had carried out orders for combat readiness promulgated by the accused. 1403

Chief of General Staff of the Yugoslavian Army had effective control over the
Army of Serbian Krajina, but not the Bosnian Serb Army. 1404

effective control not found

Appellant lacked effective control over the military units responsible for the
commission of crimes, in the sense of a material ability to prevent or punish criminal
conduct, and therefore the constituent elements of command responsibility have not been
satisfied.1405

Foreign mujahadeen fighters were not under effective control of Bosnian Muslim
Army and therefore commanders of that army were not responsible for their crimes. 1406

President of Bosnian Serb parliament had power and influence, but did not have
effective control over political and military authorities. Effective control requires a
material ability to prevent, punish, or take measures resulting in disciplinary or criminal
proceedings against the principal perpetrators of the crimes.1407

A commander may have de jure command over a perpetrator, but not de facto
effective control. Commander of Bratunac Brigade did not have effective control over
his subordinate, who was acting under direction of Main Staff security organs.1408

The use of non-coercive terms such as “please” suggests that the accused did not
exercise effective control over VJ soldiers seconded through the 40 th PC.1409

A reasonable alternative interpretation of the record is that the accused could

influence, but did not possess effective control over, the Zagreb Perpetrators at the time
of the shelling of Zagreb. 1410

1402
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Judgement (10 July 2008) at paras. 513-15
1403
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1033-36
1404
Prosecutor v Perisic, No. IT-03-81-T, Judgement (6 September 2011) at paras. 1769, 1777
1405
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 421
1406
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 1101;
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 345, 350
1407
Prosecutor v Krajisnik, No. IT-00-39-T, Judgement and Sentence (27 September 2006) at para. 1121
1408
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 303
1409
Prosecutor v Perisic, No. IT-03-81-A, Judgement (28 February 2013) at para. 103
1410
Prosecutor v Perisic, No. IT-03-81-A, Judgement (28 February 2013) at para. 117

227
Article 8—territorial and temporal Jurisdiction

The territorial jurisdiction of the International Tribunal shall extend to the

territory of the former Socialist Federal Republic of Yugoslavia, including its land
surface, airspace and territorial waters. The temporal jurisdiction of the
International Tribunal shall extend to a period beginning on 1 January 1991.

The temporal jurisdiction of the Tribunal covers the period from 1 January 1991
and a date to be determined by the Security Council upon restoration of peace. At
present, no such end date has been determined. Therefore, the Tribunal’s temporal
jurisdiction is open-ended and includes events in Macedonia in 2001.1411

The temporal jurisdiction of the Tribunal did not end with the signing of the
Dayton peace accords in 1995.1412

Article 9—concurrent jurisdiction

1. The International Tribunal and national courts shall have concurrent jurisdiction
to prosecute persons for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1 January 1991.
2. The International Tribunal shall have primacy over national courts. At any stage
of the procedure, the International Tribunal may formally request national courts
to defer to the competence of the International Tribunal in accordance with the
present Statute and the Rules of Procedure and Evidence of the International
Tribunal.

The primacy of the International Tribunal does not unlawfully infringe upon State
sovereignty1413, nor offend the principle of jus de non evocando.1414

Although transfer of cases to national jurisdictions are not specifically provided

for in the Statute, Article 9 contemplates that not all violations committed in the former
Yugoslavia would be prosecuted by the Tribunal. In light of subsequent Security Council
resolutions, transfer to national jurisdictions is deemed within the power and competence
of the Tribunal. 1415

Article 10—non bis in idem

1411
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-AR72.1, Decision on Interlocutory Appeal on
Jurisdiction (22 July 2005) at para. 10
1412
Prosecutor v Dordevic, No. IT-05-87/1-PT, Decision on Vlastimr Dordevic’s Preliminary Motion on
Jurisdiction (6 December 2007) at para. 10
1413
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 60
1414
Prosecutor v Tadic, No. IT-94-1-AR 72, Decision on Defence Motion for Interlocutory Appeal on
Jurisdiction (2 October 1995) at para. 64
1415
Prosecutor v Stankovic, No. IT-96-23/2.AR11bis, Decision on Rule 11 bis Referral (1 September 2005)
at para. 15-16

228
1. No person shall be tried before a national court for acts constituting serious
violations of international humanitarian law under the present Statute, for which he
or she has already been tried by the International Tribunal.
2. A person who has been tried by a national court for acts constituting serious
violations of international humanitarian law may be subsequently tried by the
International Tribunal only if:
(a) the act for which he or she was tried was characterized as an ordinary crime;
or
(b) the national court proceedings were not impartial or independent, were
designed to shield the accused from international criminal responsibility, or
the case was not diligently prosecuted.
3. In considering the penalty to be imposed on a person convicted of a crime under
the present Statute, the International Tribunal shall take into account the extent to
which any penalty imposed by a national court on the same person for the same act
has already been served.

Where charges brought in Bosnia were different from those for which accused
was acquitted in ICTY, there was no basis to issue process to enjoin the national
prosecution. 1416

Article 11—organisation of the International Tribunal

The International Tribunal shall consist of the following organs:

(a) the Chambers, comprising three Trial Chambers and an Appeals Chamber;
(b) the Prosecutor; and
(c) a Registry, servicing both the Chambers and the Prosecutor.

Article 12—composition of the Chambers

1. The Chambers shall be composed of a maximum of sixteen permanent

independent judges, no two of whom may be nationals of the same State, and a
maximum at any one time of twelve ad litem independent judges appointed in
accordance with article 13 ter, paragraph 2, of the Statute, no two of whom may be
nationals of the same State.
2. A maximum at any one time of three permanent judges and six ad litem judges
shall be members of each Trial Chamber. Each Trial Chamber to which ad litem
judges are assigned may be divided into sections of three judges each, composed of
both permanent and ad litem judges, except in the circumstances specified in
paragraph 5 below. A section of a Trial Chamber shall have the same powers and
responsibilities as a Trial Chamber under the Statute and shall render judgement in
accordance with the same rules.
3. Seven of the permanent judges shall be members of the Appeals Chamber. The
Appeals Chamber shall, for each appeal, be composed of five of its members.
4. A person who for the purposes of membership of the Chambers of the

1416
Prosecutor v Oric, No. IT-03-68-A, Decision on Oric’s Motion Regarding a Breach of Non-Bis-in-
Idem (7 April 2009)

229
International Tribunal could be regarded as a national of more than one State shall
be deemed to be a national of the State in which that person ordinarily exercises
civil and political rights.
5. The Secretary-General may, at the request of the President of the International
Tribunal appoint, from among the ad litem judges elected in accordance with Article
13 ter, reserve judges to be present at each stage of a trial to which they have been
appointed and to replace a judge if that judge is unable to continue sitting.
6. Without prejudice to paragraph 2 above, in the event that exceptional
circumstances require for a permanent judge in a section of a Trial Chamber to be
replaced resulting in a section solely comprised of ad litem judges, that section may
continue to hear the case, notwithstanding that its composition no longer includes a
permanent judge.

Article 13—qualification of judges

The permanent and ad litem judges shall be persons of high moral character,
impartiality and integrity who possess the qualifications required in their respective
countries for appointment to the highest judicial offices. In the overall composition
of the Chambers and sections of the Trial Chambers, due account shall be taken of
the experience of the judges in criminal law, international law, including
international humanitarian law and human rights law.

Age is not a “qualification” within the meaning of Article 13 and a Judge who is
not eligible for appointment to the highest court in his country because he is past the
manadatory retirement age nevertheless may possess the qualifications for appointment
as an ad litem judge.1417

Article 13 bis—election of permanent judges

1. Fourteen of the permanent judges of the International Tribunal shall be elected

by the General Assembly from a list submitted by the Security Council, in the
following manner:
(a) The Secretary-General shall invite nominations for judges of the International
Tribunal from States Members of the United Nations and non-member States
maintaining permanent observer missions at United Nations Headquarters;
(b) Within sixty days of the date of the invitation of the Secretary-General, each
State may nominate up to two candidates meeting the qualifications set out in
article 13 of the Statute, no two of whom shall be of the same nationality and
neither of whom shall be of the same nationality as any judge who is a member of
the Appeals Chamber and who was elected or appointed a permanent judge of the
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

1417
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Motion to Recuse Judge
Melville Baird (30 September 2009) at para. 15; Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on
Motion to Recuse Judge Baird (20 October 2009) at para. 21

230
Genocide and Other Such Violations Committed in the Territory of Neighbouring
States, between 1 January 1994 and 31 December 1994 (hereinafter referred to as
“The International Tribunal for Rwanda”) in accordance with article 12 bis of the
Statute of that Tribunal;
(c) The Secretary-General shall forward the nominations received to the Security
Council. From the nominations received the Security Council shall establish a list of
not less than twenty-eight and not more than forty-two candidates, taking due
account of the adequate representation of the principal legal systems of the world;
(d) The President of the Security Council shall transmit the list of candidates to the
President of the General Assembly. From that list the General Assembly shall elect
fourteen permanent judges of the International Tribunal. The candidates who
receive an absolute majority of the votes of the States Members of the United
Nations and of the non-member States maintaining permanent observer missions at
United Nations Headquarters, shall be declared elected. Should two candidates of
the same nationality obtain the required majority vote, the one who received the
higher number of votes shall be considered elected.
2. In the event of a vacancy in the Chambers amongst the permanent judges elected
or appointed in accordance with this article, after consultation with the Presidents
of the Security Council and of the General Assembly, the Secretary-General shall
appoint a person meeting the qualifications of article 13 of the Statute, for the
remainder of the term of office concerned.
3. The permanent judges elected in accordance with this article shall be elected for a
term of four years. The terms and conditions of service shall be those of the judges
of the International Court of Justice. They shall be eligible for re-election.

UN Security Council was competent to extend the terms of judges and to continue
judge’s service on particular case until its completion.1418

Article 13 ter—election and appointment of ad litem judges

1. The ad litem judges of the International Tribunal shall be elected by the General
Assembly from a list submitted by the Security Council, in the following manner:
(a) The Secretary-General shall invite nominations for ad litem judges of the
International Tribunal from States Members of the United Nations and non-
member States maintaining permanent observer missions at United Nations
Headquarters.
(b) Within sixty days of the date of the invitation of the Secretary-General, each
State may nominate up to four candidates meeting the qualifications set out in
article 13 of the Statute, taking into account the importance of a fair representation
of female and male candidates.
(c) The Secretary-General shall forward the nominations received to the Security

1418
Prosecutor v Krajisnik, No. IT-00-39-AR73.2, Decision on Krajisnik’s Appeal Against the Trial
Chamber’s Decision Dismissing the Defence Motion for a Ruling that Judge Canivell is Unable to
Continue Sitting in this Case (15 September 2006); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s Motion for Disqualification of Judges Kwon, Morrison, Baird and Lattanzi (31 July 2014) at
paras. 10-11

231
Council. From the nominations received the Security Council shall establish a list of
not less than fifty-four candidates, taking due account of the adequate
representation of the principal legal systems of the world and bearing in mind the
importance of equitable geographical distribution.
(d) The President of the Security Council shall transmit the list of candidates to the
President of the General Assembly. From that list the General Assembly shall elect
the twenty-seven ad litem judges of the International Tribunal. The candidates who
receive an absolute majority of the votes of the States Members of the United
Nations and of the non-member States maintaining permanent observer missions at
United Nations Headquarters shall be declared elected.
(e) The ad litem judges shall be elected for a term of four years. They shall be
eligible for re-election.
2. During any term, ad litem judges will be appointed by the Secretary-General,
upon request of the President of the International Tribunal, to serve in the Trial
Chambers for one or more trials, for a cumulative period of up to, but not including,
three years. When requesting the appointment of any particular ad litem judge, the
President of the International Tribunal shall bear in mind the criteria set out in
article 13 of the Statute regarding the composition of the Chambers and sections of
the Trial Chambers, the considerations set out in paragraphs 1 (b) and (c) above
and the number of votes the ad litem judge received in the General Assembly.

Article 13 quater—status of ad litem judges

1. During the period in which they are appointed to serve in the International
Tribunal, ad litem judges shall:
(a) Benefit from the same terms and conditions of service mutatis mutandis as the
permanent judges of the International Tribunal;
(b) Enjoy, subject to paragraph 2 below, the same powers as the permanent judges
of the International Tribunal;
(c) Enjoy the privileges and immunities, exemptions and facilities of a judge of the
International Tribunal;
(d) Enjoy the power to adjudicate in pre-trial proceedings in cases other than those
that they have been appointed to try.
2. During the period in which they are appointed to serve in the International
Tribunal, ad litem judges shall not:
(a) Be eligible for election as, or to vote in the election of, the President of the
Tribunal or the Presiding Judge of a Trial Chamber pursuant to article 14 of the
Statute;
(b) Have power:
(i) To adopt rules of procedure and evidence pursuant to article 15 of the Statute.
They shall, however, be consulted before the adoption of those rules;
(ii) To review an indictment pursuant to article 19 of the Statute;
(iii) To consult with the President in relation to the assignment of judges pursuant to
article 14 of the Statute or in relation to a pardon or commutation of sentence
pursuant to article 28 of the Statute.
3. Notwithstanding, paragraphs 1 and 2 above, an ad litem judge who is serving as a

232
reserve judge shall, during such time as he or she so serves:
(a) Benefit from the same terms and conditions of service mutatis mutandis as the
permanent judges of the International Tribunal;
(b) Enjoy the privileges and immunities, exemptions and facilities of a judge of the
International Tribunal;
(c) Enjoy the power to adjudicate in pre-trial proceedings in cases other than those
that they have been appointed to and for that purpose to enjoy subject to paragraph
2 above, the same powers as permanent judges.
4. In the event that a reserve judge replaces a judge who is unable to continue
sitting, he or she will, as of that time, benefit from the provisions of paragraph 1
above.

Article 14—officers and members of the Chambers

1. The permanent judges of the International Tribunal shall elect a President from
amongst their number.
2. The President of the International Tribunal shall be a member of the Appeals
Chamber and shall preside over its proceedings.
3. After consultation with the permanent judges of the International Tribunal, the
President shall assign four of the permanent judges elected or appointed in
accordance with article 13 bis of the Statute to the Appeals Chamber and nine to the
Trial Chambers. Notwithstanding the provisions of article 12, paragraph 1, and
article 12, paragraph 3, the President may assign to the Appeals Chamber up to
four additional permanent judges serving in the Trial Chambers, on the completion
of the cases to which each judge is assigned. The term of office of each judge
redeployed to the Appeals Chamber shall be the same as the term of office of the
judges serving in the Appeals Chamber.
4. Two of the permanent judges of the International Tribunal for Rwanda elected
or appointed in accordance with article 12 bis of the Statute of that Tribunal shall
be assigned by the President of that Tribunal, in consultation with the President of
the International Tribunal, to be members of the Appeals Chamber and permanent
judges of the International Tribunal. Notwithstanding the provisions of article 12,
paragraph 1, and article 12, paragraph 3, up to four additional permanent judges
serving in the Trial Chambers of the International Criminal Tribunal for Rwanda
may be assigned to the Appeals Chamber by the President of that Tribunal, on the
completion of the cases to which each judge is assigned. The term of office of each
judge redeployed to the Appeals Chamber shall be the same as the term of office of
the judges serving in the Appeals Chamber.
5. After consultation with the permanent judges of the International Tribunal, the
President shall assign such ad litem judges as may from time to time be appointed to
serve in the International Tribunal to the Trial Chambers.
6. A judge shall serve only in the Chamber to which he or she was assigned.
7. The permanent judges of each Trial Chamber shall elect a Presiding Judge from
amongst their number, who shall oversee the work of the Trial Chamber as a whole.

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Article 15—rules of procedure and evidence

The judges of the International Tribunal shall adopt rules of procedure and
evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals,
the admission of evidence, the protection of victims and witnesses and other
appropriate matters.

Article 16—the Prosecutor

1. The Prosecutor shall be responsible for the investigation and prosecution of

persons responsible for serious violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1 January 1991.
2. The Prosecutor shall act independently as a separate organ of the International
Tribunal. He or she shall not seek or receive instructions from any Government or
from any other source.
3. The Office of the Prosecutor shall be composed of a Prosecutor and such other
qualified staff as may be required.
4. The Prosecutor shall be appointed by the Security Council on nomination by the
Secretary-General. He or she shall be of high moral character and possess the
highest level of competence and experience in the conduct of investigations and
prosecutions of criminal cases. The Prosecutor shall serve for a four-year term and
be eligible for reappointment. The terms and conditions of service of the Prosecutor
shall be those of an Under-Secretary-General of the United Nations.
5. The staff of the Office of the Prosecutor shall be appointed by the Secretary-
General on the recommendation of the Prosecutor.

The Prosecutor has a broad discretion in relation to the initiation of investigations and in
the preparation of indictments. However, there are several limitations on this discretion
derived from the Statute and the Rules. 1419 Exercise of the prosecutorial discretion to
prosecute must be: (1) entirely independent from any government or other source, as
required by Rule 16(2) of the Rules;1420 (2) free from discrimination based on
impermissible motives such as, inter alia, race, colour, religion, opinion, national or
ethnic origin, as implied by Article 21 of the Statute;1421 and (3) consistent with the
recognized principles of human rights, including equality before the law, as embodied in
instruments such as Universal Declaration on Human Rights and the International
Covenant on Civil and Political Rights. 1422

The breadth of the discretion of the Prosecutor, and the fact of her statutory
independence, imply a presumption that the prosecutorial functions under the Statute are
exercised regularly. This presumption may be rebutted by an appellant who can bring
evidence to establish that the discretion has in fact not been exercised in accordance with
the Statute. This requires application of a two-pronged test involving: (i) establishing an

1419
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 602.
1420
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 603.
1421
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 605.
1422
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 604.

234
unlawful or improper (including discriminatory) motive for the prosecution and (ii)
establishing that other similarly situated persons were not prosecuted.1423

Article 17—the Registry

1. The Registry shall be responsible for the administration and servicing of the
International Tribunal.
2. The Registry shall consist of a Registrar and such other staff as may be required.
3. The Registrar shall be appointed by the Secretary-General after consultation with
the President of the International Tribunal. He or she shall serve for a four-year
term and be eligible for reappointment. The terms and conditions of service of the
Registrar shall be those of an Assistant Secretary-General of the United Nations.
4. The staff of the Registry shall be appointed by the Secretary-General on the
recommendation of the Registrar.

Article 18—investigation and preparation of indictment

1. The Prosecutor shall initiate investigations ex-officio or on the basis of

information obtained from any source, particularly from Governments, United
Nations organs, intergovernmental and non-governmental organisations. The
Prosecutor shall assess the information received or obtained and decide whether
there is sufficient basis to proceed.
2. The Prosecutor shall have the power to question suspects, victims and witnesses,
to collect evidence and to conduct on-site investigations. In carrying out these tasks,
the Prosecutor may, as appropriate, seek the assistance of the State authorities
concerned.
3. If questioned, the suspect shall be entitled to be assisted by counsel of his own
choice, including the right to have legal assistance assigned to him without payment
by him in any such case if he does not have sufficient means to pay for it, as well as
to necessary translation into and from a language he speaks and understands.
4. Upon a determination that a prima facie case exists, the Prosecutor shall prepare
an indictment containing a concise statement of the facts and the crime or crimes
with which the accused is charged under the Statute. The indictment shall be
transmitted to a judge of the Trial Chamber.

Article 19—review of the indictment

1. The judge of the Trial Chamber to whom the indictment has been transmitted
shall review it. If satisfied that a prima facie case has been established by the
Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall
be dismissed.
2. Upon confirmation of an indictment, the judge may, at the request of the
Prosecutor, issue such orders and warrants for the arrest, detention, surrender or

1423
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 611.

235
transfer of persons, and any other orders as may be required for the conduct of the
trial

A prima facie case is defined as “a credible case which would, if not contradicted
by the defence, be a sufficient basis to convict the accused on the charge.” 1424

Article 20—commencement and conduct of trial

1. The Trial Chambers shall ensure that a trial is fair and expeditious and that
proceedings are conducted in accordance with the rules of procedure and evidence,
with full respect for the rights of the accused and due regard for the protection of
victims and witnesses.
2. A person against whom an indictment has been confirmed shall, pursuant to an
order or an arrest warrant of the International Tribunal, be taken into custody,
immediately informed of the charges against him and transferred to the
International Tribunal.
3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the
accused are respected, confirm that the accused understands the indictment, and
instruct the accused to enter a plea. The Trial Chamber shall then set the date for
trial.
4. The hearings shall be public unless the Trial Chamber decides to close the
proceedings in accordance with its rules of procedure and evidence.

attentiveness of judges

Proof that a judge slept through, or was otherwise not completely attentive to, part
of proceedings is a matter which, if it causes actual prejudice to a party, may affect the
fairness of the proceedings to a such degree as to give rise to a right to a new trial or other
adequate remedy. 1425 However, some identifiable prejudice to the complaining party must
be proved by clear evidence.1426 That prejudice may be manifested where the judge fails
in some identifiable way to assess the evidence properly or expresses an incorrect
understanding of the evidence which was given or the submissions which were put.1427

delay

An accused’s offer to waive his right to an expeditious trial is not determinative

since the international community, whose interests are represented by the prosecution,
also has a right to enforce the fair trial guarantee. 1428

1424
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Prosecution Motion for Leave to
Amend the Amended Indictment (16 December 2005) at p. 3; Prosecutor v Seselj et al, No. IT-95-14-R77.5,
Decision on Prosecution Motion to Amend the Indictments (8 June 2006) at para. 13
1425
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 625.
1426
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 630.
1427
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 631.
1428
Prosecutor v Kvocka et al, No. IT-98-30/1-AR73.5, Decision on Interlocutory Appeal by the Accused
Zoran Zigic Against the Decision of Trial Chamber I of 5 December 2000 (25 May 2001) at para. 21;

236
 The right to be tried without undue delay includes the period of time between the
arrest of an accused and the commencement of his trial. 1429

For purposes of evaluating pretrial delay, the period begins at the time of the
arrest or surrender, not the time when the prosecution became aware of the crimes. 1430

Trial Chamber has the right to order prosecution to bring its case to an end at a
specific time in order to preserve the right to an expeditious trial and to comply with the
completion strategy to finish all trials by the end of 2008.1431

Pretrial delay of 2 ½ years in a complex case was not unreasonable. 1432

Delays in complex case were necessary and did not warrant dismissal for abuse of
process.1433

mental capacity

In order for a case to go forward, the accused must have the mental capacity to (1)
plead; (2) understand the nature of the charges; (3) understand the course of the
proceedings; (4) understand the details of the evidence; (5) instruct counsel; (6)
understand the consequences of the proceedings; and (7) testify. 1434

The applicable standard for fitness to stand trial is that of meaningful participation
which allows an accused to exercise his fair trial rights to such a degree that he is able to
effectively participate in his trial and has an understanding of the essentials of the
proceedings.1435

Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Adoption of New Measures to Bring the Trial to an
End Within a Reasonable Time (13 November 2006) at para. 14
1429
Prosecutor v Popovic et al, No. IT-05-86-73.1, Decision on Vinko Pandurevic’s Interlocutory Appeal
Against the Trial Chamber Decision on Joinder of the Accused (24 January 2006) at para. 21
1430
Prosecutor v Perisic, No. ICTR-04-81-PT, Decision on Motion for Sanctions for Failure to Bring the
Accused to Trial Without Undue Delay (23 November 2007) at para. 21
1431
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Adoption of New Measures to Bring the Trial to
an End Within a Reasonable Time (13 November 2006)
1432
Prosecutor v Perisic, No. ICTR-04-81-PT, Decision on Motion for Sanctions for Failure to Bring the
Accused to Trial Without Undue Delay (23 November 2007)
1433
Prosecutor v Seselj, No. IT-03-67-T, Decision on Oral Request of the Accused for Abuse of Process (10
February 2010); Prosecutor v Seselj, No. IT-03-67-T, Decision on Motion by Accused to Discontinue
Proceedings (29 September 2011)
1434
Prosecutor v Kovacevic, No. IT-01-42/2-I, Public Version on the Accused’s Fitness to Enter a Plea and
Stand Trial (12 April 2006) at para. 29; Prosecutor v Hadzic, No. IT-04-75-T, Consolidated Decision on
the Continuation of Proceedings (26 October 2015) at para. 38
1435
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 55; Prosecutor v Hadzic, No.
IT-04-75-T, Consolidated Decision on the Continuation of Proceedings (26 October 2015) at para. 39

237
 What is required from an accused to be deemed fit to stand trial is a standard of
overall capacity allowing for a meaningful participation in the trial, provided that he or
she is duly represented by counsel. 1436

An accused claiming being unfit to stand trial bears the burden of proof by a
preponderance of the evidence. 1437

The Trial Chamber held that accused who suffered from somatic and mental
illnesses was nevertheless fit to stand trial, particularly since he was not representing
himself. 1438

Where the accused, who suffered from a terminal brain tumor, understands the
essentials of the proceedings, has the ability to communicate and instruct counsel,
and has the requisite broad understanding of the trial and its significance to meaningfully
participate in the proceedings, the defence had not discharged its burden of proving that
the accused is unfit to stand trial. 1439

Appeals proceedings suspended pending independent neurological examination of

appellant who had suffered a stroke and whose own experts indicated was unable to
meaningfully participate in the proceedings. 1440

Appeals Chamber found that appellant had sufficiently recovered from stroke and
now had the ability to understand the substance of the judgement against him, understand
the appeals process and its possible consequences, understand the substance of the
Prosecution's grounds of appeal against him, and instruct his counsel. 1441

Accused who suffered from terminal brain tumor was unable to effectively
communicate with and instruct his counsel and was unfit to stand trial. The trial was
therefore suspended indefinitely. 1442

physical capacity

A termination or stay of proceedings should not be automatic procedural

mechanisms applied once it is discovered that an accused is terminally or seriously ill.
These mechanisms should be employed on a case-by-case basis and take into
1436
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 60; Prosecutor v Hadzic, No.
IT-04-75-T, Consolidated Decision on the Continuation of Proceedings (26 October 2015) at para. 40
1437
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 56; Prosecutor v Hadzic, No.
IT-04-75-T, Consolidated Decision on the Continuation of Proceedings (26 October 2015) at para. 42
1438
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 64
1439
Prosecutor v Hadzic, No. IT-04-75-T, Consolidated Decision on the Continuation of Proceedings (26
October 2015) at para. 55
1440
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Motion by Counsel Assigned to Milan Gvero
Relating to his Present Health Condition (16 May 2011)
1441
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Request to Terminate Appellate Proceedings
in Relation to Milan Gvero (30 November 2012) at para. 29
1442
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Remand on the Continuation of Proceedings (5
April 2016) at para. 29

238
consideration relevant factors, such as an accused’s fitness to stand trial, the stage of
proceedings, the availability of accommodations for health concerns which facilitate the
continuation of proceedings, and the public interest in a determination of an accused’s
responsibility along with the gravity of the charges against an accused. 1443

Where the accused suffered from an inoperable brain tumor and could no longer
care for himself, the trial cannot continue in a manner consistent with the full and fair
adjudication of the case without detriment to the fundamental principles of respect for the
inherent human dignity of an accused and the presumption of innocence.1444

Indefinite stay of proceedings, rather than termination of proceedings, was

appropriate remedy for terminally ill accused. 1445

A limited, but renewable, suspension of the proceedings for three months in the
first instance was the most prudent course of action for an accused with inoperable brain
tumor, as, unlike termination of the proceedings, it leaves open the possibility, however
improbable, that, in the event that the accused’s health does improve, the Chamber will
be able to resume proceedings. 1446

Evidence did not show that accused was unable to assist in his defence at the pre-
trial phase of the case and any determination of his fitness to stand trial was
premature.1447

Fitness to attend the delivery of the judgement is fundamentally different than

fitness to attend the trial, as participation by the accused, such as by instructing counsel,
is not required during delivery of the judgement. Accused can follow the judgement by
video-link if necessary. 1448

Defence failed to show that accused’s medical condition rendered him unfit such
as to warrant the postponement of the delivery of his judgement.1449

Trial Chamber was unreasonable in rejecting medical evidence that five day per
week schedule was detrimental to the health of the accused. 1450

1443
Prosecutor v Hadzic, No. IT-04-75-T, Consolidated Decision on the Continuation of Proceedings (26
October 2015) at para. 56
1444
Prosecutor v Hadzic, No. IT-04-75-T, Consolidated Decision on the Continuation of Proceedings (26
October 2015) at para. 65
1445
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion on Formal Termination of
Proceedings (17 June 2016) at paras. 11-12
1446
Prosecutor v Hadzic, No. IT-04-75-T, Consolidated Decision on the Continuation of Proceedings (26
October 2015) at para. 66
1447
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Stanisic Defence’s Motion on the
Fitness of the Accused to Stand Trial (27 April 2006)
1448
Prosecutor v Mladic, No. IT-09-92-T, Decision on Motion to Reconsider Decision on Urgent Defence
Motions of 10 November 2017 or…Motion for Certification to Appeal (21 November 2017) at para. 14
1449
Prosecutor v Mladic, No. IT-09-92-T, Decision on Urgent Defence Motions (10 November 2017) at p.
3

239
 Five day per week schedule re-instated for defence case where health of the
accused would be more adversely affected by prolonging the proceedings than by a more
intense trial schedule. 1451

witness intimidation

In circumstances of witness intimidation, it is incumbent upon a Trial Chamber to

do its utmost to ensure that a fair trial is possible. Countering witness intimidation is a
primary and necessary function of a Trial Chamber. For the Tribunal to function
effectively, Trial Chambers must counter witness intimidation by taking all measures that
are reasonably open to them, both at the request of the parties and proprio motu.1452

Trial Chamber failed to take adequate measures to obtain the testimony of

important witnesses and, in the context of a trial plagued by witness intimidation, abused
its discretion, requiring a new trial. 1453

The Trial Chamber’s failure to show the required flexibility with regard to
subsidiary issues of witness scheduling, trial logistics, and deadlines effectively helped to
ensure that witness intimidation succeeded in denying the Prosecution an opportunity to
present potentially crucial evidence in support of its case. 1454

Article 21—Rights of the accused

1. All persons shall be equal before the International Tribunal.

2. In the determination of charges against him, the accused shall be entitled to a fair
and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the
provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present
Statute, the accused shall be entitled to the following minimum guarantees, in full
equality:
(a) to be informed promptly and in detail in a language which he understands of the
nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him, in any case where the
1450
Prosecutor v Mladic, No. IT-09-92-AR73.3, Decision on Mladic’s Interlocutory Appeal Regarding
Modification of Trial Sitting Schedule due to Health Concerns (22 October 2013) at para. 13
1451
Prosecutor v Mladic, No. IT-09-92-T, Decision on the Trial Sitting Schedule (14 March 2014) at para.
16
1452
Prosecutor v Haradinaj, No. IT-04-84-A, Judgement (19 July 2010) at para. 35
1453
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 40
1454
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para.48

240
interests of justice so require, and without payment by him in any such case if he
does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the
language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.

The primary duty of the Trial Chamber is to safeguard the fairness of the trial,
ensuring that the proceedings are conducted with full respect for the rights of the
accused. 1455

Article 21(1)--equality of arms

The principle of equality of arms between the accused and the prosecution is a
component of the right to a fair trial. This obligates a judicial body to ensure that neither
party is put at a disadvantage when presenting its case. It does not necessarily amount to
equality of resources.1456

Under the Statute of the International Tribunal the principle of equality of arms
must be given a more liberal interpretation than that normally upheld with regard to
proceedings before domestic courts. This principle means that the Prosecution and the
Defence must be equal before the Trial Chamber. It follows that the Chamber shall
provide every practicable facility it is capable of granting under the Rules and Statute
when faced with a request by a party for assistance in presenting its case. 1457

The principal of equality of arms applies to the prosecution as well as the

defence. 1458

The accused cannot rely on a lack of resources during the pre-trial stage to
establish that he is disadvantaged in presenting his case at trial. 1459

The principle of equality of arms falls within the fair trial guarantee of the
Statute.1460
1455
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 100
1456
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at paras 175-76;
Prosecutor v Milutinovic et al, No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for
Additional Funds (13 November 2003) at para. 23
1457
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 52.
1458
Prosecutor v Aleksovski, No. IT- 95-14/1-AR73, Decision on Prosecutor’s Appeal on Admission of
Evidence (16 February 1999) at para. 25; Prosecutor v Prlic et al, No. IT-04-74-AR73.4, Decision on
Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case (6
February 2007) at para. 14
1459
Prosecutor v Milutinovic et al, No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for
Additional Funds (13 November 2003) at para. 24
1460
Prosecutor v Prlic et al, No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial
Chamber’s Ruling Reducing Time for the Prosecution Case (6 February 2007) at para. 14

241
 The defence is not entitled to equality of resources with the prosecution. 1461

Defence failed to substantiate that it was placed at a disadvantage vis a vis the
Office of the Prosecutor where it received the maximum funding under the Appeals Legal
Aid Policy. 1462

While equality of arms does not mean equality of resources, each party must have
a reasonable opportunity to defend ist interests under conditions which do not put him
under a substantial disadvantage vis-à-vis his opponent. However, it was not relevant to
compare number of documents translated for prosecution to determine if number of
documents to be translated for the defence was reasonable. 1463

The principle of equality of arms goes to the heart of the fair trial guarantee. 1464
This does not necessarily entitle the accused to the same amount of time as the
prosecution to present his case. A principle of basic proportionality, rather than strict
mathematical equality, generally governs the relationship between the time allotted to
both sides. In this case, that principle was violated by restrictions on the number of
witnesses and time allowed to the defence. 1465

The principle of equality of arms “goes to the heart of the fair trial guarantee.”
While equality of arms does not mean that the Appellant is necessarily entitled to the
same means and resources available to the Prosecution, it does require a judicial body to
ensure that neither party is put at a disadvantage when presenting its case, particularly in
terms of procedural equity. In assessing an equality of arms challenge by an accused, a
judicial body must ask two basic questions: (1) was the Defence put at a disadvantage
vis-à-vis the Prosecution, taking into account the “principle of basic proportionality” and
(2) was the accused permitted a fair opportunity to present his case. 1466

It is for the Trial Chamber, and not the President, to determine whether the
Registrar’s denial of funds to self-represented accused impacts on his rights to equality of
arms and a fair trial. 1467

Prosecution’s citation to confidential decisions to which the accused does not

have access violates his right to equality of arms. The prosecution should refrain from

1461
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Motion to Appoint Amicus Curiae to Investigate
Equality of Arms (18 June 2007) at para. 9
1462
Prosecutor v Prlic, No. IT-04-74-A, Decision on Slobodan Praljak’s Defence Request for Judicial
Review of Decision on Additional Funds (16 August 2017) at para. 26
1463
Prosecutor v Prlic et al, No. IT-04-74-AR73.9, Decision on Slobodan Prajlak’s Appeal Against the
Trial Chamber’s Decision of 16 May 2008 on Translation of Documents (4 September 2008) at para. 29
1464
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 44
1465
Prosecutor v Oric, No. 03-68-AR73.2, Interlocuory Decision on Length of Defence Case (20 July
2005) at para. 9
1466
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 149
1467
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Appeal Against Registry Decision of 19 December
2006 (12 March 2007)

242
citing such decisions or obtain a public redacted version prior to making its
submissions. 1468

Article 21(3)—Presumption of Innocence

The accused is presumed innocent until proven guilty. The prosecution must
establish each and every element of the offences beyond a reasonable doubt. 1469 The
Trial Chamber resolved every doubt in favor of the accused in accordance with the
principle of in dubio pro reo.1470

Where the challenge on appeal is to an inference drawn to establish a fact on

which the conviction relies, the standard is only satisfied if the inference drawn was the
only reasonable one that could be drawn from the evidence presented. In such instances,
the question for the Appeals Chamber is whether it was reasonable for the Trial Chamber
to exclude or ignore other inferences that lead to the conclusion that an element of the
crime was not proven. If no reasonable Trial Chamber could have ignored an inference
which favours the accused, the Appeals Chamber will vacate the Trial Chamber’s factual
inference and reverse any conviction that is dependent on it.1471

The test when inferring intent from the acts of an accused is that the inference has
to be “the only reasonable inference available.” 1472

While an inference can be drawn from direct or circumstantial evidence, it must

be reasonable and narrowly construed. Inferences based on a series of inferences was
rejected.1473

An inference to be drawn from circumstantial evidence must be the only

reasonable conclusion available. 1474

Trial Chamber did not err in concluding that there was another reasonable
inference to the capture of civilians at Srebrenica besides that they would be executed and
the accused may well have believed they would be exchanged. 1475

If there is any other reasonable interpretation of the evidence against the accused
other than guilt, he must be acquitted.1476

1468
Prosecutor v Prlic et al, No. 04-74-T, Decision on a Stojic Defence Request Regarding References to
Confidential Decisions Rendered by Other Chambers (23 March 2009)
1469
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 23
1470
Prosecutor v Delic, No. IT-04-83-T, Judgement (15 September 2008) at para. 24
1471
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 219
1472
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 128
1473
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 309
1474
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 24
1475
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 223
1476
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 15; Prosecutor v Haradinaj et
al, No. IT-04-84-T, Judgement (2 April 2008) at para. 7; Prosecutor v Oric, No. IT-03-68-A, Judgement (3
July 2008) at para. 83

243
 Findings at trial based on circumstantial evidence must be the only reasonable
conclusions available from that evidence. If there is another conclusion which is also
reasonably open from the circumstantial evidence, and which is consistent with the
innocence of the accused, he must be acquitted.1477

Not each and every fact in the Trial Judgement must be proved beyond reasonable
doubt, but only those on which a conviction or the sentence depends. 1478

An inference drawn from circumstantial evidence to establish a fact that is

material to the conviction or sentence cannot be upheld on appeal if another reasonable
conclusion consistent with the non-existence of that fact was also open on that evidence,
given that such inference should be the only reasonable one. 1479

Cumulative effect of taking judicial notice of 1500 adjudicated facts and

admitting 144 statements without cross examination did not violate the presumption of
innocence nor shift the burden of proof to the accused. 1480

Article 21(4)(A)—specificity of the indictment

prosecution must know its case

The prosecution is expected to know its case before it goes to trial and cannot
omit material aspects of its main allegations in the indictment with the aim of moulding
the case against the accused in the course of the trial depending on how the evidence
unfolds.1481

Even where it is impracticable or impossible to provide full details of a material

fact, the Prosecution must indicate its best understanding of the case against the accused
and the trial should only proceed where the right of the accused to know the case against
him and to prepare his defence has been assured. 1482

An accused cannot be expected to engage in guesswork in order to ascertain what

the case against him is, nor can he be expected to prepare alternative or entirely new lines
of defence because the prosecution has failed to make its case clear. 1483

Before a Chamber holds that an alleged fact is not material or that differences
between the wording of the indictment and the evidence adduced are minor, it should

1477
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 458; Prosecutor v Galic,
No. IT-98-29-A, Judgement (30 November 2006) at para. 218
1478
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 20
1479
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 20
1480
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Stay of Proceedings (8 April 2010)
1481
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 575; Prosecutor v
Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 71
1482
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 30
1483
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 71

244
generally ensure that such a finding is not prejudicial to the accused. An example of such
prejudice would be vagueness capable of misleading the accused as to the nature of the
criminal conduct with which he is charged. 1484

degree of specificity required

The Prosecution’s characterization of the alleged criminal conduct and the

proximity of the accused to the underlying crime are decisive factors in determining the
degree of specificity with which the Prosecution must plead the material facts of its case
in the indictment in order to provide the accused with adequate notice. 1485

As the proximity of the accused person to those events becomes more distant, less
precision is required in relation to those particular details, and greater emphasis is placed
upon the conduct of the accused person himself upon which the Prosecution relies to
establish his responsibility as an accessory or a superior to the persons who personally
committed the acts giving rise to the charges against him. 1486

A high degree of specificity is not required for indictments in cases where the
crime base is of a large scale and long duration and where the accused is a high-ranking
politician who is not alleged to have been a physical perpetrator or proximate to many of
the events alleged. 1487

incorporation by reference

Term “including but not limited to” ordered stricken from amended
indictment.1488

indictment schedules

The events contained in schedules to an indictment amount to material facts that

have to be proven before the accused can be held responsible for the crimes contained in
the indictment.1489

A systematic approach, consisting of making factual findings in relation to each

incident contained in the Schedules and underlying the crimes contained in the
Indictment, would have been the appropriate approach. An accused is entitled to know

1484
Prosecutor v Krnoljelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 133
1485
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 28; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 28
1486
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 65
1487
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Relief from Defects in the
Indictment (30 September 2014) at para. 25
1488
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Further Amendments and Challenges to the
Indictment (13 July 2006) at para. 49
1489
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 67

245
whether he has been found guilty of a crime in respect of the alleged incidents under the
principle of a fair trial. 1490

identification of perpetrators

Where the prosecution is in a position to identify perpetrators by name, it is

obliged to do so.1491

identification of victims

If the personal physical commission of criminal acts is charged, the indictment

should set forth the victim’s identity, the place and time of the events and the means by
which the acts were committed.1492

The prosecution is not required to identify every victim when the scale of the
crimes renders such a high degree of specificity impractical. However, the identity of
those victims who are known should be included in a schedule to the indictment.1493

Since the identity of the victim is information that is valuable to the preparation of
the defence case, if the Prosecution is in a position to name the victims, it should do
so.1494

Since it was the prosecution’s case that the transfers took place repeatedly and on
a large scale, it was sufficient to identify the victims by the category of Bosnian Muslim
civilians. 1495

meetings and speeches

Meeting of civilian and military leaders at which accused’s responsibility for

crimes at Amici supposedly arose was a material fact which should have been pleaded in
the indictment.1496

1490
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 68
1491
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Motions Challenging the Indictment
Pursuant to Rule 72 of the Rules (31 May 2006) at para. 40
1492
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 28
1493
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Motions Challenging the Indictment
Pursuant to Rule 72 of the Rules (31 May 2006) at para. 35, 37; Prosecutor v Stanisic & Simatovic, No. IT-
03-69-T, Decision on the Prosecution Submission on Additional Victims…(24 March 2011) at paras. 7, 14;
Prosecutor v Mladic, No. IT-09-92-PT, Decision on Defence Preliminary Motion Objecting to the form of
the Indictment (13 October 2011) at para. 8
1494
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 90; Prosecutor v
Gotovina et al, No. IT-06-90-AR73.3, Decision on Joint Defence Interlocutory Appeal Against Trial
Chamber’s Decision on Joint Defence Motion to Strike the Prosecution’s Further Clarification of Identity
of Victims (26 January 2009)
1495
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 58
1496
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-A, Judgement (17 December 2004) at para. 147

246
 The details of speeches by the accused ordered to be set out in detail in an annex
to the indictment.1497

dates

Indictment which charged events on 25 March 1999 and “during the following
days” did not encompass deportation which occurred on 21 May 1999. 1498

Reference to crimes beginning on or about 25 March 1999 was sufficient to

include acts which occurred about 20-21 March 1999.1499

Second deportation from same location a month later was not charged in the
indictment and sufficient notice was not provided by other documents so conviction for
that deportation could not be sustained. 1500

The allegations that unlawful transfer took place in the municipality of Mostar in
“the days following the 9 May 1993 attack” and “during the first days of July 1993”155
do not sufficiently plead the dates of the 13-14 June and 29 September 1993 incidents of
unlawful transfer, and that the more general reference to a nine-month range is
insufficiently specific. 1501

The alleged discrepancy between the material facts pleaded in the Indictment and
the Trial Chamber's ultimate conclusions concerning the date of the attack, which
involved different, but partly overlapping date ranges, did not constitute a significant
variation.1502

In view of the approximate time frame of the JCE to Forcibly Remove provided in
the Indictment, the fact that the killing was found to have occurred within a week of that
indicated time frame, and that the accused received timely notice if the date of the killing
the fact that the killing was outside of the dates alleged in the indictment was of no legal
consequence. 1503

As a general principle, it is not an error of law to rely on evidence originating

from outside the time period of the Indictment.1504

The Trial Chamber did not abuse its discretion by relying on Tolimir's actions
prior to the Indictment period to establish his mens rea for the crimes committed during

1497
Prosecutor v Seselj, No. IT-03-67-T, Decision on Preliminary Motion Filed by the Accused (27
November 2007) at para 54
1498
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 615
1499
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 225
1500
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at paras. 615-17, 642-43
1501
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 59
1502
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 68
1503
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 536
1504
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 564

247
that period.1505

Even if the 22 February 1997 letter was ex post facto in time, and outside the
indictment period, constructively it was contemporaneous with the murder operation. The
Trial Chamber did not abuse its discretion by relying on the 22 February 1997 letter as
additional evidence in support of its finding that Tolimir possessed genocidal intent. 1506

state of mind

Where the state of mind with which the accused carried out his alleged acts is
relevant, the prosecution must plead either (i) the relevant state of mind as a material fact,
in which case the facts by which that state of mind are to be established are ordinary
matters of evidence and need not be proved; or (ii) the facts from which the relevant state
of mind is to be inferred.1507

The prosecution’s failure to specify the accused’s state of mind for each mode of
liability, or the facts from which the state of mind could be inferred, rendered the
indictment defective. 1508

The statement that each accused had the requisite state of mind required for each
individual crime is insufficient to plead mens rea with sufficient particularity. 1509

defective indictment in general

An indictment that fails to set forth material facts in sufficient detail is

defective. 1510

In accordance with Article 21(4)(a) of the Statute, an accused has the right “to be
informed promptly and in detail in a language which he understands of the nature and
cause of the charge against him” 1511

Under Articles 17(4), 20(2), 20(4)(a) and 20(4)(b) of the Statute and Rule 47(C)
of the Rules, the Prosecutor must state the material facts underpinning the charges in the
indictment, but not the evidence by which such facts are to be proved. 1512

1505
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 565
1506
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 569
1507
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Defence Motions Regarding Defects
in the Form of the Second Amended Indictment (12 April 2006) at para. 11
1508
Prosecutor v Pavkovic et al, No. IT-03-70-PT, Decision on Vladimir Lazarevic’s Preliminary Motion
on the Form of the Indictment (8 July 2005) at para. 21
1509
Prosecutor v Cermak & Markac, No. IT-03-73-PT, Decision on Ivan Cermak’s and Mladen Markac’s
Motions on Form of Indictment (8 March 2005) at para. 66
1510
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 576; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 29
1511
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 20
1512
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 20; Prosecutor v Prlic et al, No.
IT-04-74-A, Judgement (29 November 2017) at para. 27

248
 An indictment is defective if it does not plead the material facts underpinning the
charges in sufficient detail so as to provide notice to the accused and enable the accused
to prepare his or her defence. 1513

An indictment may also be defective when the material facts are pleaded without
sufficient specificity, such as, unless there are special circumstances, when the times refer
to broad date ranges, the places are only generally indicated, and the victims are only
generally identified. 1514

Allegations of acts committed in the period prior to that charged in the indictment
constituted material facts that must be pled with specificity when used to prove the
accused’s criminal responsibility. 1515

In determining whether an accused was adequately put on notice of the nature and
cause of the charges against him, the indictment must be considered as a whole. 1516

A defective indictment which has not been cured causes prejudice to the accused.
The defect may only be deemed harmless through a demonstration that the accused's
ability to prepare his or her defence was not materially impaired. 1517

curing defect

The defect may be cured if the prosecution provides the accused with timely,
clear, and consistent information detailing the factual basis underpinning the charge. 1518

In light of the factual and legal complexities normally associated with the crimes
within the jurisdiction of this Tribunal, there can only be a limited number of cases that
fall within the category of a defective indictment being cured by clear, consistent, and
timely notice. 1519

An inconsistency in the indictment cannot be cured by the pre-trial brief, but

requires amendment of the indictment.1520

1513
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 262; Nahimana et
al v Prosecutor, No. ICTR-99-52-A, Judgement (28 November 2007) at para. 322; Prosecutor v Simic, No.
IT-95-9-A, Judgement (28 Nov 2006) at para. 20
1514
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 31
1515
Prosecutor v Milutinovic et al, No. IT-05-88-PT, Decision on Defence Motions Alleging Defects in the
Form of the Proposed Amended Joinder Indictment (22 March 2006) at para. 15
1516
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 27
1517
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 100
1518
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 576; Prosecutor v
Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 262; Prosecutor v Prlic et al, No. IT-
04-74-A, Judgement (29 November 2017) at para. 29
1519
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 114
1520
Prosecutor v Haradinaj et al, No. IT-04-84bis-PT, Decision on Shortened Form of the Fourth Amended
Indictment (14 January 2011) at para. 39

249
 Defects concerning vagueness in an indictment can be cured in certain
circumstances and through post-indictment documents such as the pre-trial briefs, Rule
65ter witness summaries, and witness statements. 1521

There was a radical “transformation” of the prosecution case against the accused.
Based on the indictment, they had to mount a defence against an allegation of wide-
ranging criminal conduct against Bosnian Muslim civilians in the Ahmici region during a
seven-month period, such as systematic and deliberate killing, comprehensive destruction
of houses, and organised detention and expulsion. However, when it came to trial, this
was not the case that the Prosecution tried to prove. Instead, it pursued a trial strategy
which sought to demonstrate that the accused were guilty of persecution, principally,
because of their participation in two individual attacks. Considering this drastic change in
the prosecution case, the accused were not informed with sufficient detail of the charges
against them, so as to cure the defects in the Amended Indictment.1522

Information from one witness contained in witness summary appended to pre-trial

brief was insufficient to provide timely, clear, and consistent notice to defence of the new
material facts that the prosecution intended to prove at trial and therefore defect in the
indictment as to charge of deportation from a certain village was not cured. 1523

Where information in witness summaries did not refer to the murder of men at
specific time and place, but referred to “other relatives” or “almost all women and
children”, defect in indictment to charge murder of two men there was not cured. 1524

Witness summaries appended to pre-trial brief did not cure defect where they
mentioned that the accused beat prisoners, but failed to identify the individual victims of
provide the approximate dates of the incidents. 1525

Failure to specifically allege extended form of JCE in the indictment was not
cured by its inclusion in pre-trial brief where Trial Chamber had indicated its
understanding that extended form was not charged and prosecution did nothing to correct
this understanding.1526

In some instances, information given in an opening statement of the prosecution

may cure a defective indictment.1527

The mere service of witness statements does not serve to cure a defect in the
indictment.1528

1521
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 29
1522
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 121
1523
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at paras. 600, 617
1524
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 660
1525
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 42
1526
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 144
1527
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 169;
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 27
1528
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 24

250
 Service of potential exhibits does not serve to cure a defect in the indictment. 1529

Prosecution final trial briefs and closing arguments occur only at the end of a trial,
after the presentation of all the evidence, and are therefore not relevant for the
preparation of an accused's case for notice purposes.1530

An accused’s submissions at trial, for example the motion for judgement of

acquittal, the final trial brief or the closing arguments, may in some instances assist in
assessing to what extent the accused was put on notice of the Prosecution’s case and was
able to respond to the Prosecution’s allegations. 1531

No lack of notice of material facts supporting allegation of genocidal intent where

indictment contained general categories, pre-trial brief included reference to specific acts
used to prove genocidal intent, and accused defended himself in detail against the
genocide count.1532

expansion of charges

An expansion of charges through the introduction of new material facts should not
lead to a “radical transformation” of the prosecution’s case which may lead to unfairness
and prejudice to an accused.1533

If the new material facts are such that they could, on their own, support separate
charges, a formal amendment pursuant to Rule 50 is required.1534

When an indictment is very specific in pleading certain crimes—for example, by

giving an exhaustive list of locations and indicating a precise time period of incidents
occurred within those locations—the addition of new material facts by the prosecution,
such as an incident occurred in a location and/or a time period that was not specifically
alleged in the indictment, constitutes an expansion of charge which may lead to prejudice
to an accused. 1535

Inclusion in Rule 65 ter witness summaries of information about forcible transfer

from other villages not specified in the indictment constituted a radical transformation of
the prosecution’s case and required reversal of accused’s conviction based on those
events.1536

1529
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at paras. 27,61
1530
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 58, fn. 209
1531
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 24
1532
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Relief from Defects in the
Indictment (30 September 2014) at para. 27
1533
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 576
1534
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 576
1535
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 576
1536
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at paras. 605, 643

251
 armed conflict

The indictment must plead the nexus between the acts of the accused and the
armed conflict.1537

Where the alleged armed conflict is internal in nature, there is no requirement that
the indictment specify the parties to the conflict.1538

An indictment is not defective for failure to plead the mens rea with respect to the
armed conflict.1539

persecution

The fact that the offence of persecution is a so-called “umbrella” crime does not
mean that an indictment need not specifically plead the material aspects of the
prosecution case with the same detail as other crimes. 1540

This does not mean, however, that the Prosecution is required to lay a separate
charge in respect of each basic crime that makes up the general charge of persecution.
What the Prosecution must do, as with any other offence under the Statute, is to
particularise the material facts of the alleged criminal conduct of the accused that, in its
view, goes to the accused’s role in the alleged crime. Failure to do so results in the
indictment being unacceptably vague since such an omission would impact negatively on
the ability of the accused to prepare his defence. 1541

In the context of persecution, the indictment must set out the material facts as they
allegedly pertain to the persecutory acts of the accused.1542

The allegation that the accused were part of a group of soldiers who, in the early
morning of 16 April 1993, participated in the attack on a house, which resulted in the
murder of two persons, the house being set on fire, and the surviving members of the
family being expelled, constituted material facts in the Prosecution case against them.
Thus, the attack on the house and its consequences should have been specifically pleaded
in the Amended Indictment.1543

The attack on a specific house was pleaded elsewhere in the indictment. However,

1537
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Defence Preliminary Motions Alleging Defects
in the Form of the Indictment (22 July 2005) at para. 71
1538
Prosecutor v Milosevic, No. IT-98-29/1-PT, Decision on Defence Preliminary Motion Pursuant to Rule
72(A)(ii) (18 July 2005) at para.17
1539
Prosecutor v. Boskoski and Tarlukovski, No. IT-04-82-PT, Decision on Assigned Pro Bono Counsel
Motion on Jurisdiction (8 September 2006) at para. 19
1540
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 98
1541
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 98
1542
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 105
1543
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at paras. 99,320

252
the prosecution should have incorporated the factual allegations, at least by way of
reference, into the persecution count if it wanted to put the accused on notice that he was
charged with persecution for this attack.1544

Count charging persecution did not adequately make reference to events at

Velepromet and information in pre-trial brief and opening statement did not make it clear
that events were part of persecution charge. Therefore, proof of events could not form
basis of conviction for persecution. 1545

The prosecution’s failure to allege a discriminatory motive in its persecution

charge required that the charge be amended. 1546

unlawful attacks against civilians

Indictment which alleged that forces shelled civilian areas was defective for
charging indiscriminate attacks against civilians. 1547

cruel treatment

Allegation that the accused regularly beat prisoners was defective where it failed
to specify the individual incidents for which he was convicted. 1548

forced labour

Because the crime consists of forcing prisoners to perform labour that was
connected to war operations, the military character or purpose of the alleged incidents of
forced labour also needed to be pleaded as a material fact.1549

Allegations that prisoners were forced to perform labour such as construction on

private property of the commanders and perform labor at locations away from the front
line were not sufficient to cover incident in which prisoners were forced to turn private
property into premises for the military command and failed to allege that such forced
labor was for military purpose. 1550

deportation and forcible transfer

Merely pleading a general pattern of events throughout Kosovo is insufficient to

support the charge of deportation from a certain village. Where the indictment charged a
deportation from that village on one occasion after one attack, but the evidence

1544
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 312
1545
Prosecutor v Mrksic et al, No. IT-95-13/1-T, Decision on Motion Seeking Clarification With Regard to
Count One of the Indictment (19 May 2006)
1546
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Preliminary Motions (29 August 2005) at para. 25
1547
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 46
1548
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 40
1549
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 30
1550
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 32

253
established a second deportation two weeks later after a second attack, the second attack
was not properly pleaded in the indictment and the indictment for that incident was
defective. 1551

Indictment which failed to specify locations and times of forcible transfers was
defective, even where forcible transfers were widespread. 1552

Indictment which failed to allege deportation or forcible transfer arising from a

village in a charged municipality was defective and conviction for those events was
reversed. 1553

Indictment which listed certain villages in municipality from which forcible

transfers occurred was defective when failing to mention two villages which were the
subject of the accused’s conviction at trial where indictment did not allege transfers
“throughout the municipality” nor indicate that the villages listed were only examples. 1554

Accused’s authorship of directive was a matter of evidence to prove the allegation

that the accused took part in and helped implement the policy of forcible transfer and it
was not required to be pled in the Indictment.1555

murder

Indictment that charged murder of women and children at a specific place and
time was defective and could not include the killing of two men at that same time and
location. 1556

Indictment that charged murder of 105 people at a barn on a certain day was
defective and could not include the killing of nine men at a different location in the same
village the day before.1557

The Trial Chamber therefore erred by making findings that 779 persons were
unlawfully killed by Bosnian Serb Forces in circumstances not specified in the
Indictment and by relying on this higher figure in support of its conclusions on Tolimir's
convictions. 1558

However, the accused failed to show why his convictions should not stand on the
basis of at least 4,970 individuals being unlawfully killed in the specific circumstances
detailed in the Indictment, as opposed to the 5,749 individuals found by the Trial

1551
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 599
1552
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-A, Judgement (17 December 2004) at para. 163
1553
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 263
1554
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 604
1555
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 50
1556
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 659
1557
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 665
1558
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 90

254
Chamber.1559

plunder

Nine month range of systematic plunder was insufficiently specific and

indictment was defective in this regard.1560

other inhumane acts

Indictment which charges “other inhumane acts” without a clear indication of

what the inhumane acts are is impermissibly vague.1561

forms of liability

The prosecution has repeatedly been discouraged from simply restating the
language of Article 6(1) of the Statute.1562

Cumulative charging on the basis of the same acts, as well as alternative charging,
is permissible. 1563

Cumulative charging of several forms of responsibility in an indictment is

allowed, provided that the prosecution discharges its obligation to state all material facts
underpinning each charge.1564

The Prosecution may alternatively rely on one or more legal theories, on

condition that it is done clearly, early enough and allowing enough time to enable the
accused to know what exactly he is accused of and to enable him to prepare his defence
accordingly. 1565

Where it is alleged that the accused planned, instigated, ordered, or aided and
abetted the planning, preparation, or execution of the alleged crimes, the prosecution is
required to identify the particular acts or the particular course of conduct on the part of
the accused which forms the basis for the charges in question. 1566

1559
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 91
1560
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 78
1561
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Preliminary Motions (29 August 2005) at para. 12-
14
1562
Prosecutor v Mrksic & Slivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 138, fn. 499;
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 21
1563
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 400; Prosecutor v
Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 103
1564
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 29;
1565
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 55
1566
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 575, fn. 1902;

255
 An indictment charging liability under Article 7(1) must specify the conduct of
the accused giving rise to the form of liability as well as the acts of others for which the
accused is sought to be held responsible.1567

instigating

“Instigation” is a distinct form of participation under Article 7(1), and thus when
the Prosecution pleads such a case, the instigating acts, and the instigated persons or
groups of persons, are to be described precisely. 1568

ordering

Despite pleading ordering as a mode of responsibility, the indictment did not

include any material facts that allege that any accused ordered the commission of any
particular crime on any occasion. As a result, the indictment was defective. 1569

committing

When the Prosecution charges the “commission” of one of the crimes under the
Statute within the meaning of Article 7(1), it must specify whether the said term is to be
understood as meaning physical commission by the accused or participation in a joint
criminal enterprise, or both.1570

joint criminal enterprise

In cases where the Prosecution alleges liability pursuant to a JCE, the

following material facts must be pleaded: “the nature and purpose of the enterprise, the
period over which the enterprise is said to have existed, the identity of the participants in
the enterprise, and the nature of the accused’s participation in the enterprise.” 1571

A common purpose, design or plan is a material fact concerning the existence of a

joint criminal enterprise and, as such, must be pleaded in the Indictment. 1572

The common criminal purpose of the joint criminal enterprise is a material fact
which must be pleaded in the indictment.1573

1567
Prosecutor v Cermak & Markac, No. IT-03-73-PT, Decision on Ivan Cermak’s and Mladen Markac’s
Motions on Form of Indictment (8 March 2005) at para. 7
1568
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 226
1569
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 41
1570
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 22
1571
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 214; Prosecutor v
Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 22; Prosecutor v Kvocka et al, No. IT-98-30/1-A,
Judgement (28 February 2005) at para. 28;
1572
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 118
1573
Prosecutor v Pavkovic et al, No. IT-03-70-PT, Decision on Vladimir Lazarevic’s Preliminary Motion
on the Form of the Indictment (8 July 2005) at para. 28

256
 The accused’s authority and role in the joint criminal enterprise during the
indictment period are material facts that must be pleaded in the indictment. 1574

The nature of the participation of the accused in the joint criminal enterprise must
be specified. Where such participation is to be established by inference, the prosecution
must identity in the indictment the facts and circumstances from which that inference is
sought to be drawn.1575

Indictment must specify the conduct by which the accused participated in the joint
criminal enterprise separate and apart from his conduct for which he is alleged to be
individually liable. 1576

The way in which each accused participated in the enterprise must be

specified. 1577

The indictment should clearly indicate which form of joint criminal enterprise is
alleged. 1578

Prosecution ordered to further identify the “others” it alleged were members of

the joint criminal enterprise, if not by name, then by categories of participants. 1579

The plurality of persons can be sufficiently identified by referring to categories or

groups of persons. It is not necessary to name each of the individuals involved. 1580

The identity of those known to be members of the joint criminal enterprise must
be specified in the indictment.1581 If the identity of some members are unknown, it
should be specified what categories these persons belonged to.1582

Use of the term “committed” in the indictment was insufficient to plead joint
criminal enterprise liability. 1583
1574
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 119
1575
Prosecutor v Pavkovic et al, No. IT-03-70-PT, Decision on Vladimir Lazarevic’s Preliminary Motion
on the Form of the Indictment (8 July 2005) at para. 7
1576
Prosecutor v Cermak & Markac, No. IT-03-73-PT, Decision on Ivan Cermak’s and Mladen Markac’s
Motions on Form of Indictment (8 March 2005) at paras 58-60
1577
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Defence Preliminary Motions Alleging Defects
in the Form of the Indictment (22 July 2005) at para. 27; Prosecutor v Gotovina et al, No. IT-06-90-PT,
Decision on Ante Gotovina’s Preliminary Motions Alleging Defects in the form of the Joinder Indictment
(19 March 2007) at para. 23
1578
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 28; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 55
1579
Prosecutor v Cermak & Markac, No. IT-03-73-PT, Decision on Ivan Cermak’s and Mladen Markac’s
Motions on Form of Indictment (8 March 2005) at para. 57
1580
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1522
1581
Prosecutor v Pavkovic et al, No. IT-03-70-PT, Decision on Vladimir Lazarevic’s Preliminary Motion
on the Form of the Indictment (8 July 2005) at para. 25
1582
Prosecutor v Pavkovic et al, No. IT-03-70-PT, Decision on Vladimir Lazarevic’s Preliminary Motion
on the Form of the Indictment (8 July 2005) at para. 26
1583
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 42

257
 Indictment that charged accused with acting in concert together and with a
common purpose failed to sufficiently put the accused on notice that they were being
charged with the joint criminal enterprise form of liability. 1584

Since a large component of the case against the accused concerned the exercise of
his powers and functions - both in relation to JCE liability and superior responsibility -
facts concerning his acts and conduct after the change of an official position should have
been clearly pleaded in the Indictment as material facts. 1585

The Indictment itself did not provide clear notice to the accused that his alleged
responsibility extended to his acts and conduct as Minister of the Interior. The defect in
the Indictment was not subsequently cured through post-Indictment disclosures.1586

superior responsibility

In a case where superior responsibility pursuant to Article 7(3) is alleged, the

material facts which must be pleaded are: (1) that the accused is a superior; (2) the
identity of subordinates; (3) over whom he had effective control; and (4) for whose acts
he is sought to be held responsible. 1587

Among the material facts which must be included in an indictment when alleging
superior responsibility are (1) the conduct of the accused by which he may be found to
have had the requisite mens rea; (2) the acts of those others for which he is alleged to
have been responsible; and (3) the conduct of the accused by which he had failed to take
the necessary measures to prevent or punish the crimes. 1588

Failure to allege that the accused could be liable for his position as a team leader
of an inspection team, rather than as a military commander precluded the Trial Chamber
from convicting him for failure to prevent or punish crimes in his capacity on the
inspection team. 1589

1584
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 Nov 2006) at para. 46
1585
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 92
1586
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 94, 99
1587
Prosecutor v Pavkovic et al, No. IT-03-70-PT, Decision on Sreten Lukic’s Preliminary Motion on the
Form of the Indictment (8 July 2005); Prosecutor v Milosevic, No. IT-98-29/1-PT, Decision on Defence
Preliminary Motion Pursuant to Rule 72(A)(ii) (18 July 2005) at para. 11; Prosecutor v Prlic et al, No. IT-
04-74-PT, Decision on Defence Preliminary Motions Alleging Defects in the Form of the Indictment (22
July 2005) at para. 12; Prosecutor v Boskoski & Tarculovski, No. IT-04-82-PT, Decision on Prosecution
Motion for Leave to Amend the Original Indictment and Defence Motions Challenging the Form of the
Amended Indictment (1 November 2005) at para. 26; Prosecutor v Delic, No. IT-04-83-PT, Decision on
Defence Motion Alleging Defects in the Form of the Indictment and Order on Prosecution Motion to
Amend the Indictment (13 December 2005) at para. 8
1588
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 67, 75
1589
Prosecutor v Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 82

258
 The phrase “forces of the FRY and Serbia” is not sufficiently specific. The
prosecution must specify which forces and units were involved in the events in each
municipality. 1590

Indictment failed to adequately specify the forces alleged to be under the control
of the accused and to over whom there was a duty to prevent and punish. 1591

The forces committing the crimes must be specified for each municipality in
which crimes are alleged to have occurred.1592

Failure to identify guards as persons over which the accused had effective control
precluded his conviction under Article 7(3) for failing to prevent or punish the crimes of
the guards.1593

Prosecution ordered to specify subordinates who participated in the alleged crimes

and to specify whether accused is sought to be held liable as a superior for acts of
civilians, special police, prison guards, and hospital personnel. 1594

Indictment failed to adequately specify the source of the accused’s knowledge of

the crimes of their subordinates. 1595

The Prosecution was obliged to allege in the Indictment the specific acts or course
of conduct of the accused himself that formed the basis for his liability as a superior for
the crimes of his subordinates, and failed to do so.1596

It was sufficient to plead that the accused did not take any necessary and
reasonable measure to prevent or punish the commission of criminal acts without
specifying how he failed to act.1597

Allegation that crimes were carried out on the accused’s orders and directives was
sufficient to allege a failure to take the necessary measures to prevent and punish
crimes. 1598

1590
Prosecutor v Pavkovic et al, No. IT-03-70-PT, Decision on Vladimir Lazarevic’s Preliminary Motion
on the Form of the Indictment (8 July 2005) at para. 34
1591
Prosecutor v Cermak & Markac, No. IT-03-73-PT, Decision on Ivan Cermak’s and Mladen Markac’s
Motions on Form of Indictment (8 March 2005) at para. 33, 38
1592
Prosecutor v Milutinovic et al, No. IT-05-88-PT, Decision on Defence Motions Alleging Defects in the
Form of the Proposed Amended Joinder Indictment (22 March 2006) at para. 10
1593
Prosecutor v Oric, No. IT-03-68-A, Judgement (3 July 2008) at para. 76
1594
Prosecutor v Boskoski & Tacurlovsky, No. IT-04-82-PT, Decision on Ljube Boskoski’s Motion
Challenging the Form of the Indictment (22 August 2005)
1595
Prosecutor v Cermak & Markac, No. IT-03-73-PT, Decision on Ivan Cermak’s and Mladen Markac’s
Motions on Form of Indictment (8 March 2005) at para. 37
1596
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 90
1597
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3140
1598
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 69

259
 sentencing

There is no requirement that aggravating facts for sentencing be pleaded in the

indictment.1599

burden of proof

When an accused raises the issue of lack of notice before the Trial Chamber, the
burden rests on the prosecution to demonstrate that the accused’s ability to prepare a
defence was not materially impaired. When an appellant raises a defect in the indictment
for the first time on appeal, then the appellant bears the burden of showing that his ability
to prepare his defence was materially impaired.1600

Where accused filed challenge to defects in indictment just prior to closing

arguments, Trial Chamber considered that challenge was untimely and therefore burden
had shifted to the accused to show that his defence was materially impaired.1601

As the accused raised the issue of inadequate notice in his closing arguments and
the Trial Chamber addressed his claim without considering it untimely, the Appeals
Chamber considers that the burden of proof rests with the Prosecution to demonstrate the
accused’s ability to prepare his defence was not materially impaired. 1602

Where accused had called 240 witnesses and defended against all charges in the
indictment, he had not demonstrated that his defence was materially impaired. 1603

remedies for defective indictment

Where evidence is presented at trial which, in the view of the accused, falls
outside the scope of the indictment, an objection as to lack of fair notice may be raised
and an appropriate remedy may be provided by the Trial Chamber, either by way of an
adjournment of the proceedings, allowing the Defense adequate time to respond to the
additional allegations, or by excluding the challenged evidence. 1604

1599
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 142; Prosecutor v Kupreskic
et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 376
1600
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 35; Prosecutor v
Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para.22 and fn.76; Prosecutor v Simic,
No. IT-95-9-A, Judgement (28 November 2006) at para. 25; Prosecutor v Dordevic, No. IT-05-87/1-A,
Judgement (27 January 2014) at para. 573; Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23
January 2014) at para. 224; Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at
para. 30
1601
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Relief from Defects in the
Indictment (30 September 2014) at para. 22
1602
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 101
1603
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Relief from Defects in the
Indictment (30 September 2014) at para. 24
1604
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 61

260
 The prejudicial effect of a defective indictment maybe “remedied” if the
Prosecution provided the accused with clear, timely and consistent and consistent
information that resolves the ambiguity or clarifies the vagueness, thereby compensating
for the failure of the indictment to give proper notice of the charges. Nevertheless, in
light of the factual and legal complexities normally associated with the crimes within the
jurisdiction of the International Tribunal, there can only be a limited number of cases that
fall within this category. 1605

There is no jurisdiction for a Trial Chamber to review the sufficiency of the

evidence before the confirming judge. Such a challenge must wait for the close of the
prosecution’s case at trial. 1606

Trial Chamber correctly declined to exclude late-named victims from forming

basis of conviction of accused and found that the appropriate remedy was to give the
accused additional time to investigate those witnesses. 1607

Challenges to language of the indictment must be raised by preliminary motion.

Challenge raised at time of filing closing brief rejected as untimely. 1608

The Prosecution failed to meet its burden of demonstrating that the accused’s
defence was not materially impaired in relation to his role in the ICE as Minister of the
Interior, requiring that convictions in relation to his ICE responsibility as Minister of the
Interior be vacated.1609

Article 21(4)(b)--adequate time and facilities

adjournment of trial

Five weeks continuance after Rule 98 bis hearing granted to allow defence to
investigate additional killing incidents added during the prosecution’s case.1610

Adjournment was not required due to delayed disclosure of witness identity to the
accused to interview 12 individuals in preparation of the witness’ cross-examination to
ensure his fair trial rights.1611

1605
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 23
1606
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on the Gotovina Defence’s Motion to Dismiss
Counts 6 and 7 of the Indictment (7 May 2008)
1607
Prosecutor v Gotovina et al, No. IT-06-90-AR73.4, Decision on Joint Appeal Against Second Decision
on Joint Defence Motion to Strike the Prosecution’s Further Clarification of Identity of Victims (7 May
2009); Prosecutor v Gotovina et al, No. IT-06-90-T, Second Decision on Joint Defence Motion to Strike the
Prosecution’s Further Clarification of Identity of Victims (2 March 2009) at para. 8
1608
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion Alleging Defects in the form of the
Indictment (30 November 2016) at para. 12
1609
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 105
1610
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Joint Defence Request for a Stay of
Proceedings (23 March 2009)
1611
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Ninth Suspension of
Proceedings (28 October 2011) at para. 11

261
 Four week adjournment during defence case granted in light of recent disclosures,
including those under Rule 66(B) and delays in translation. 1612

Two week continuance of trial granted to allow accused to review audio tapes
recently discovered by prosecution at family residence of General Mladic. 1613

New defence team granted four month adjournment after death of lead counsel,
save for 8 sitting days which would be conducted during the third month. 1614

Four week adjournment during defence case granted to allow review of new
disclosure, prepare two witnesses who would testify in lieu of the accused, and improve
expert reports.1615

Continuance of commencement of cross examination not warranted by late

disclosure of materials authored by the witness under Rule 66(B), where the prosecution
promptly provided the documents after receipt of the request and where requests for Rule
66(B) material may be an ongoing process during the trial. 1616

Two month suspension of trial granted for accused to prepare defence case on
count for which he was acquitted, but was re-instated by the Appeals Chamber.1617

One-month suspension of trial for accused to prepare for re-opening of

prosecution case during defence case was reasonable. 1618

Unlike the case of the prosecution, which bears the burden of proof, defence
strategies often focus ou poking specifically targeted holes in the prosecution's case, an
endeavour which may require less time and fewer witnesses. Therefore, there was no
error in allowing the defence less time to prepare than the prosecution. 1619

1612
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Reasons for Decision Partially Granting the
Stanisic Defence Motion for Suspension of the Proceedings After the Summer Recess (28 September 2011)
at paras. 16,18
1613
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion for Suspension of
Proceedings (18 August 2010)
1614
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Motion for Adjournment of
Proceedings by the Simatovic Defence (15 October 2009)
1615
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Reasons for Decision Partially Granting the
Simatovic Defence Urgent Request for Adjournment (17 April 2012)
1616
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Additional Time to
Prepare Cross Examination of Momcilo Mandic (2 July 2010) at para. 9
1617
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motions to Sever Count One and for
Suspension of Defence Case (2 August 2013) at paras. 21-24
1618
Prosecutor v Mladic, No. IT-09-92-AR73.5, Decision on Interlocutory Appeal of the…Decision on
Modality for Prosecution Re-Opening (22 May 2015); Prosecutor v Mladic, No. IT-09-92-T, Decision on
Defence Request to Adopt Modality for Prosecution Re-Opening (27 March 2015) at para. 13
1619
Prosecutor v Mladic, No. IT-09-92-AR73.5, Decision on Interlocutory Appeal of the…Decision on
Modality for Prosecution Re-Opening (22 May 2015) at para. 13

262
 assistance of the Registrar

An accused does not have the right to have the Registrar serve his correspondence
on States or international organizations, where the accused has means to do so through
his defence team.1620

assistance of States and UN organs

UNMIK ordered to assist defence in investigating in Kosovo after defence

counsel attacked on first visit, but motion to stay proceedings denied. 1621

Efforts by UNMIK to facilitate defence visit and investigation in Kosovo were

sufficient to enable the defence to have adequate time and facilities for the preparation of
the defence.1622

courtroom facilities

An accused does not have a right to use a computer in court, or to be seated next
to his counsel. 1623

Legal interns may be present in the courtroom but only in lieu of the case
manager or legal associate when the accused deems it is necessary. The Chamber does
not agree that interns should be allowed in the courtroom as a reward for their voluntary
work.1624

funding

Motion to rectify inadequate funding of the defence was premature where the
Registrar had not made a final decision on the amount of funding for the prosecution
phase of the case. 1625

time to prepare for trial

1620
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused Motion for Service of Documents
(20 April 2009) at para. 8
1621
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Ojdanic Motion to Stay Proceedings (9
June 2006)
1622
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Second Ojdanic Motion for Stay of
Proceedings (19 October 2006); Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Third
Motion for Stay of Proceedings (27 August 2007)
1623
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Oral Request of the Accused Jadranko Prlic
for Request for Authorization to use a Laptop Computer at Hearings or to be Seated Next to his Counsel
(29 June 2006)
1624
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’sRequest for Authorisation for Legal
Interns to be Present in the Courtroom (5 May 2010)
1625
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Defence Motion for Equality
of Arms and Immediate Suspension of the Trial…(10 March 2011) at para. 19

263
 Whether an accused has had adequate time and facilities for the preparation of his
defence is not limited to the time on the case by his current defence team, but also must
take into account the time the accused has had to prepare.1626

When analyzing allegations related to a violation of the right to have adequate

time and facilities for the preparation of a defence, the Appeals Chamber must assess
whether the defence as a whole, and not any individual counsel, was deprived of adequate
time and facilities. 1627

The fact that counsel for the accused have been able to read less than 20% of the
disclosure material does not mean that adequate time and facilities for preparation have
not been provided.1628

The factors enumerated in Ngirabatware are not an objective check-list that Trial
Chambers must apply to a request for continuance of the trial, but are simply examples of
indicia that a Trial chamber might consider. 1629

Assessing the amount of pre-trial preparation time required is not a mechanical

duty and a Trial Chamber is not required to articulate its reasoning in detail. 1630

While Trial Chamber should consider President’s determination that additional

remuneration for defence team was required, it was not obligated to postpone the trial to
give effect to the President’s decision. 1631

Trial Chamber did not abuse its discretion in deciding to commence trial
notwithstanding President’s finding that defence team funding had been inadequate. The
Trial Chamber properly determined that the problems could be remedied during the
course of the trial. 1632

1626
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Second Defence Motion for Adjournment (4
March 2005) at para. 9 affirmed Prosecutor v Krajisnik, No. IT-00-39AR73.1, Decision on Interlocutory
Appeal of Decision on Second Defence Motion for Adjournment (25 April 2005) at para. 18
1627
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 30
1628
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Second Defence Motion for Adjournment (4
March 2005) at para. 13; affirmed Prosecutor v Krajisnik, No. IT-00-39AR73.1, Decision on Interlocutory
Appeal of Decision on Second Defence Motion for Adjournment (25 April 2005) at para. 42
1629
Prosecutor v Karadzic, No. IT-95-5/18-AR73.5, Decision on Radovan Karadzic’s Appeal of the
Decision on Commencement of the Trial (13 October 2009) at para. 19
1630
Prosecutor v Karadzic, No. IT-95-5/18-AR73.5, Decision on Radovan Karadzic’s Appeal of the
Decision on Commencement of the Trial (13 October 2009) at para. 20
1631
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appeal from Decision on Further Postponement
of the Trial (31 March 2010) at para. 21
1632
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appeal from Decision on Further Postponement
of the Trial (31 March 2010) at para. 28

264
 Comaprison to the amount of pre-trial preparation allowed in other cases is not
informative given the particularized circumstances of each individual tried by the
Tribunal. 1633

Preparation time during the trial is a valid factor for a Trial Chamber to consider
when setting the date for the trial. 1634

Trial Chamber granted delay of five weeks in the commencement of the evidence
in the trial due to disclosure errors by the prosecution.1635

Trial Chamber erred in allowing accused only two days to review marked up
indictment after reducing scope of case. It should have allowed him seven days.1636

Erroneous decision of the Registrar which deprived the accused of funding of his
defence team for a four month period did not justify postponement of the trial where
tasks that could have been performed during that period could be performed during the
course of the trial. 1637

Failure of the prosecution to disclose witness statements in the language of the

accused required a continuance of the trial date. Counsel’s familiarity with English was
not determinative since the accused must be able to understand the material to instruct
counsel adequately. 1638

time to present defence case

While a Trial Chamber has the authority to place limitations on the presentation
of the defence case, including limiting time for presentation of oral testimony and
translation of documents, it must assess the limitations as a whole to assure that it does
not hinder the capacity of the accused to make an adequate defence. 1639

While the Trial Chamber must ensure that the proceedings do not suffer undue
delays and that the trial is completed within a reasonable time, it must equally ascertain

1633
Prosecutor v Karadzic, No. IT-95-5/18-AR73.5, Decision on Radovan Karadzic’s Appeal of the
Decision on Commencement of the Trial (13 October 2009) at para. 23
1634
Prosecutor v Karadzic, No. IT-95-5/18-AR73.5, Decision on Radovan Karadzic’s Appeal of the
Decision on Commencement of the Trial (13 October 2009) at para. 24
1635
Prosecutor v Mladic, No. IT-09-92-T, Decision on Urgent Defence Motion of 14 May 2012 and
Reasons for Decision on Two Defence Requests for Adjournment of the Trial…(24 May 2012)
1636
Prosecutor v Karadzic, No. IT-95-5/18-AR73.5, Decision on Radovan Karadzic’s Appeal of the
Decision on Commencement of the Trial (13 October 2009) at para. 26
1637
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Postponement of Trial
(26 February 2010) at paras. 38-40
1638
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision on Joint Defence Motion for Postponement of
Trial (22 September 2005) at para. 6
1639
Prosecutor v Prlic et al, No. IT-04-74-AR73.9, Decision on Slobodan Prajlak’s Appeal Against the
Trial Chamber’s Decision of 16 May 2008 on Translation of Documents (4 September 2008) at para. 26

265
that the proceedings are not compromised by the imposition of excessive time
constraints.1640

Logistical considerations should not take priority over the Trial Chamber’s duty
to safeguard the fairness of the proceedings. 1641

translations

While a Trial Chamber has the authority to control the number of documents to be
translated for defence exhibits to be used at trial, it erred in the exercise of that authority
by miscalculating the number of pages allotted to the co-accused, and by basis one
accused’s entitlement on the number of pages granted to a co-accused.1642

trial schedule

Sitting four days per week does not violate self-represented accused’s right to
adequate time and facilities for the preparation of his defence. 1643

Sitting four days a week was not imperative for the health of the accused where
there was no showing that the benefit of shorter weeks would outweigh the detriment of a
longer trial. 1644 However, in a later decision, the Trial Chamber decided to sit four days a
week due to a heightened risk of stroke.1645

Article 21(4)(d)—presence of the accused

The right to be present at one’s trial means to be physically present. 1646

The right to be present is not absolute.1647 However, restriction on this

fundamental right must be in service of a suffiicently important objective and must
impair the right no more than is necessary to accomplish the objective. 1648

While it might be possible to proceed in the absence of an accused who has

voluntarily waived his right to be present by failing to appear for his trial, and in the

1640
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 101
1641
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 101
1642
Prosecutor v Prlic et al, No. IT-04-74-AR73.9, Decision on Slobodan Prajlak’s Appeal Against the
Trial Chamber’s Decision of 16 May 2008 on Translation of Documents (4 September 2008)
1643
Prosecutor v Karadzic, No. IT-95-5/18-T, Order on the Trial Schedule (27 May 2010)
1644
Prosecutor v Mladic, No. IT-09-92-T, Decision on Second Defence Motion Seeking Adjustment to the
Trial Sitting Schedule Due to the Health Concerns of the Accused (12 July 2013) at para. 17
1645
Prosecutor v Mladic, No. IT-09-92-T, Reasons for Decision on the Future Trial Sitting Schedule (17
September 2014 (17 September 2014) at para. 16
1646
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision
on Future Course of the Proceedings (16 May 2008) at para. 6
1647
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision
on Future Course of the Proceedings (16 May 2008) at para. 6
1648
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision
on Future Course of the Proceedings (16 May 2008) at para. 6

266
absence of any representative of the defence, such a course would be neither in the
interests of justice nor would it foster reconciliation in the former Yugoslavia.1649

Derogation of the right to be present may be based upon substantial trial

disruptions which are not intentional on the part of the accused. 1650

Trial Chamber erred in commencing trial when accused was too ill to attend
rather than postponing the trial for 3-6 months. 1651

Accused was sufficiently healthy to participate in his trial, under a modified

regime which would allow for sitting two days a week and other measures to
accommodate his illness.1652

Establsihment of a video link to UNDU was not a reasonable alternative to

postponing commencement of the trial where it was not established that the accused was
well enough to effectively participate in trial via video link. 1653

Additional three month delay in the commencement of the trial was the least
intrusive alternative given the fact that one accused was not medically fit to stand trial,
even though commencement of trial had already been postponed for 6 months. 1654

Trial Chamber erred in case of terminally ill accused in determining not to

proceed with the trial in the absence of the accused without considering, pursuant to the
proportionality principle, whether there were means to accomplish the objective of a fair
and expeditious completion of the trial without impairing the rights of the accused any
more than necessary, such as allowing him to attend via video conference, or to review
video or audio recordings or transcripts of the trial and be kept abreast of the trial through
contacts with his counsel. 1655

1649
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further
Trial Proceedings (5 November 2009) at para. 20
1650
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision
on Future Course of the Proceedings (16 May 2008) at para. 15
1651
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision
on Future Course of the Proceedings (16 May 2008) at para. 19
1652
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Revocation of
Jovica Stanisic’s Provisional Release and Re-assessment of his Health and Revocation of Franko
Simatovic’s Provisional Release (24 April 2009)
1653
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision
on Future Course of the Proceedings (16 May 2008) at para. 20
1654
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Prosecution Motion for Re-
assessment of Jovica Stanisic’s Health and Re-commencement of Trial…(17 December 2008)
1655
Prosecutor v Hadzic, No. IT-04-75-AR73.1, Decision on Prosecution’s Urgent Interlocutory Appeal
from Consolidated Decision on the Continuation of the Proceedings (4 March 2016) at para. 24

267
 Trial Chamber, which found accused fit to participate in his trial, erred in
applying a different standard to the issue of whether the trial could continue with him
monitoring the proceedings via video-conference.1656

Trial Chamber erred in failing to consider that prosecution’s offer to

unconditionally waive its cross-examination of remaining defence witnesses, which was
binding and not revocable, could militate in favor of proportionality of continuing the
trial in the absence of the accused. 1657

The accused bears the burden of proving that he is unfit to stand trial by a
preponderance of the evidence. This is also true of a claim that an accused is unwell to
attend trial on a particular day. 1658

Article 21(4)(d)--self representation

amicus curiae

Motion for accused representing himself on appeal to consult with amicus curiae
denied where amicus curiae has no mandate to assist the accused. 1659

assistance to self-represented accused

The Appeals Chamber sees no error in the Registry's determination that a self-
represented accused may have privileged access to up to three designated legal associates
and presumably to team members who visit the accused in the company of these
associates, but to no one else.1660

The Registry reasonably requires that designated legal associates meet the
requirements of Rule 44 of the Rules, including lack of discipline. 1661

A self-represented accused is not entitled to associates paid at a rate higher than

that of support staff. 1662

1656
Prosecutor v Hadzic, No. IT-04-75-AR73.1, Decision on Prosecution’s Urgent Interlocutory Appeal
from Consolidated Decision on the Continuation of the Proceedings (4 March 2016) at para. 28
1657
Prosecutor v Hadzic, No. IT-04-75-AR73.1, Decision on Prosecution’s Urgent Interlocutory Appeal
from Consolidated Decision on the Continuation of the Proceedings (4 March 2016) at para. 29
1658
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Reasons for Denying the Stanisic Defence Request
to Adjourn the Hearings…(2 July 2009) at para. 11; Prosecutor v Stanisic & Simatovic, No. IT-03-69-T,
Reasons for the Decision Denying the Stanisic Defence Request to Postpone the Court Proceedings and
Decision Proceeding with the Court Session of 29 June 2009 in the Absence of the Accused (22 July 2009)
at para. 14
1659
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Momcilo Krajisnik’s Request for Reconsideration
of the Pre-Appeal Judge’s Decision of 11 June 2008 (4 July 2008)
1660
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 33
1661
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 37

268
 In order for the Registrar to be obligated to remunerate legal associates to a self-
represented accused, the accused must demonstrate that he is indigent.1663

Trial Chamber had the authority to reinstate associates accused of divulging

confidential information to participate in open sessions of the trial to ensure that the
accused receives a fair trial. 1664

Where an accused lacks the requisite knowledge of the law or legal procedures to
the extent that it will substantially and persistently obstruct the proper and expeditious
conduct of the trial, the solution is not the funding of highly-experienced legal associates,
but rather the curtailment of his right to self-representation. 1665

Where the self-represented accused does not have a legal background and the case
against him involves complex factual and legal issues, the Chamber encourages the
assistance he receives from his defence team, including his Legal Advisor. 1666

Legal Advisor granted right of audience to address Chamber on legal issues and
matters arising out of his contacts with the prosecution, but not to cross examine
witnesses.1667

Decision to grant a limited right of audience to a self-represented accused’s legal

advisor is discretionary and depends upon the circumstances of the particular case. 1668

Legal advisor would not be granted audience in complaint before President where
self-represented accused could address the President himself. 1669

An accused who chooses to self-represent is not entitled to legal assistance.

Hence, he is not entitled to the subsidiary right mentioned later in Article 21(4)(d) to have
legal assistance paid for by the Tribunal if he is indigent.1670

1662
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused Motion for Adequate Facilities and
Equality of Arms: Legal Associates (28 January 2009) at para. 31; Prosecutor v Karadzic, No. IT-95-5/18-
PT, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Adequate Facilities (7 May
2009) at paras. 15-20
1663
Prosecutor v Seselj, No. IT-03-67-T, Decision on Vojislav Seselj’s Request for Review of Registrar’s
Decision of 10 September 2009 (21 October 2009) at para. 25
1664
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Accused’s Oral Request to Reinstate Messrs.
Zoran Krasic and Slavko Jerkovic as Privileged Associates (10 February 2010)
1665
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Adequate Facilities (7 May 2009) at para. 14
1666
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on the Accused’s Request to the Trial Chamber
Concerning Assistance of his Legal Advisor (28 April 2010) at para. 20
1667
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on the Accused’s Request to the Trial Chamber
Concerning Assistance of his Legal Advisor (28 April 2010)
1668
Prosecutor v Seselj, No. IT-03-67-T, Decision on Further Notifications to the President by the Legal
Advisor to Vojislav Seselj (21 March 2012) at para. 11
1669
Prosecutor v Seselj, No. IT-03-67-T, Decision on Further Notifications to the President by the Legal
Advisor to Vojislav Seselj (21 March 2012) at para. 11

269
 To the extent that the Registry requires or encourages indigent self-representing
accused to coordinate their defences through designated legal associates, it is appropriate
for the Tribunal to provide some funding for such associates. Such funding should not be
comparable to that paid to counsel for represented accused (particularly since work such
as the drafting of written filings should be considered the responsibility of the self-
representing accused), but nonetheless should adequately reimburse the legal associates
for their coordinating work and for related legal consultation. 1671

Registrar erred in failing to remunerate legal associate at rate of co-counsel after

he had been granted right of audience to make legal submissions before the Chamber.1672

Legal associate not entitled to DSA payments for period before he was granted
right of audience.1673

The Appeals Chamber sees no reason for disturbing the Registry's finding that
Article 21(4)(b) requires it to provide “certain technical and logistical support" and
“conceivabl[y]” the assignment of a Tribunal-paid “investigator and/or (an) expert(s),
depending on the stage of the proceedings”. 1674

While by reason of detention, there are certain tasks normally undertaken by

counsel which the accused will not be able to complete himself, in general a self-
represented accused is expected to undertake all the tasks normally assumed by counsel.
Those tasks he cannot perform by virtue of his detention should be performed by his legal
associates, but do not justify remuneration above the level of support staff. 1675

Funding of associates for self-represented accused need not be comparible to that

provided to amicus curiae or standby counsel. 1676

Registrar erred in concluding that self-represented accused was not entitled to

investigators and persons who could provide other technical assistance to him, rather than

1670
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 40
1671
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 42
1672
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of OLAD Decision on Trial
Phase Remuneration (19 February 2010) at para. 52; Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on
Appeal against Registrar’s 10 February 2010 Decision (13 July 2010) at para. 42; Prosecutor v Tolimir,
No. IT-05-88/2-A, Decision on Request for Review (24 July 2014) at para. 28
1673
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Appeal against Registrar’s 10 February 2010
Decision (13 July 2010) at para. 46
1674
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 43
1675
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Adequate Facilities (7 May 2009) at para. 23
1676
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Adequate Facilities (7 May 2009) at para. 26

270
simply persons performing consulting tasks and coordinating his work with the
Registry. 1677

Registrar was unreasonable in concluding that review of 300,000 new pages of

disclosure and other tasks associated with further preparing for trial could be done with a
support staff of two persons. Rather, the Registrar should have continued to fund the 8
people it had agreed were necessary for preparation during the pre-trial phase. 1678

Registrar’s decision that accused was entitled to only one person working 150
hours per month to assist him during trial was unreasonable and was insufficient to allow
the accused to effectively represent himself in a complex case. Rather, five persons
working at 150 hours per month were required. 1679

Registrar’s limitation of 150 hours per month for legal associate to self-
represented accused during trial was reasonable. 1680

The Registrar did not err in declining to pay the travel and DSA of the accused’s
case manager, or in refusing privileged meetings with the case manager. 1681

The Registry has sought to strike a balance between these competing interests by
enabling the self-represented accused to share confidential information only with
designated legal associates, who in turn can provide the professional supervision needed
to ensure appropriate use of the confidential information. 1682

Registrar was not required to provide office space to defence teams of self-
represented accused apart from use of the common staging area at the Tribunal. 1683

limitations and termination on self-representation

Any restrictions on the right of self-representation must be limited to the

minimum extent necessary to protect the Tribunal’s interest in a reasonably expeditious
trial. Trial Chamber erred in relegating accused to secondary role to assigned counsel.

1677
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of OLAD Decision on Trial
Phase Remuneration (19 February 2010) at para. 37
1678
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of OLAD Decision on Trial
Phase Remuneration (19 February 2010) at paras. 39, 45
1679
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of OLAD Decision on Trial
Phase Remuneration (19 February 2010) at paras. 43,46
1680
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Appeal against Registrar’s 10 February 2010
Decision (13 July 2010) at para. 44
1681
Prosecutor v Seselj, No. IT-03-67-T, Decision on Request for Review of Registry Decision Regarding
Visit of Defence Team Members (10 August 2011) at paras. 19, 23
1682
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 34
1683
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Decision on Office Space
(10 February 2012)

271
Instead it should provide assigned counsel to fill in only when the accused’s health does
not allow him to continue.1684

Potential disruption to the trial proceedings is a reason to deny self-representation.

When a request for self-representation is made after the trial commences, it will be
treated less favorably than a request before trial. Here the potential disruption and
equivocal request for self-representation justified denial of self-representation.1685

The conduct of the accused as a whole, disruptive and obstructionist behavior,

deliberate disrespect for the rules, intimidation of and slanderous comments about
witnesses, led the Trial Chamber to conclude that there is a strong indication that his self-
representation may substantially and persistently obstruct the proper and expeditious
conduct of the trial. Therefore, his right to self representation was denied. 1686

Self representation denied based upon the attitude and actions of the accused in
being deliberately disrespectful and inappropriate in court.1687

A Trial Chamber may place restrictions on the right of an accused to self-

representation where a defendant’s self-representation is substantially and persistently
obstructing the proper and expeditious conduct of his trial. A Trial Chamber has the
discretionary power to do so whether the conduct of the Accused is intentional or
unintentional. All that matters is that the disruptive behaviour of the Accused is
substantially and persistently obstructing the proper and expeditious conduct of his
trial. 1688

The right of self-representation may be limited when five successive conditions

are met: (1) the accused’s behavior substantially and persistently obstructs the proper and
expeditious conduct of the trial; (2) an explicit warning is made to the accused that if his
conduct persists, counsel may be imposed; (3) after a warning, the accused continues to
obstruct the proceedings; (4) the restriction on self representation must be limited to the
minimum extent necessary to assure a reasonably expeditious trial; and (5) the accused
must be given an opportunity to be heard prior to imposition of counsel. 1689

1684
Milosevic v Prosecutor, No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial
Chamber’s Decision on the Assignment of Defence Counsel (1 November 2004) at para. 19
1685
Prosecutor v Krajisnik, No. IT-00-39-T, Reasons for Oral Decision Denying Mr. Krajisnik’s Request to
Proceed Unrepresented by Counsel (18 August 2005)
1686
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Assignment of Counsel (21 August 2006) at para. 79
1687
Prosecutor v Jankovic & Stankovic, No. IT-96-23/2-PT, Decision Following Regustrar’s Notification
of Radovan Stankovic’s Request for Self-Representation (19 August 2005); Prosecutor v Seselj, No. IT-03-
67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel (20
October 2006) at para. 28
1688
Prosecutor v Seselj, No. IT-03-67-AR73.4, Decision on Appeal of the Trial Chamber Decision (No. 2)
on Assignment of Counsel (8 December 2006) at para. 19
1689
Prosecutor v Seselj, No. IT-03-67-T, Consolidated Decision on the Assignment of Counsel,
Adjournment, and Prosecution Motion for Additional Time (24 November 2009) at paras. 52-57

272
 Trial Chamber did not err in denying adjournment of trial at request of
prosecution pending decision on prosecution motion to impose counsel on accused. 1690

Trial Chamber declined to revoke accused’s self-representation where it was able

to control accused’s offensive in-court statements by striking them from the record or
ordering the accused to stop making such representations. 1691

Act of contempt by revealing identity of protected witnesses, which led to

contempt conviction, did not justify removal of right of self-representation as it was an
isolated act.1692

Warning to accused for different conduct did not count towards required warning
before counsel could be imposed. 1693

Trial Chamber erred in failing to provide warning to accused that continued

disruptive behavior will result in his loss of right of self-representation before assigning
counsel against his will. 1694

Self-representation terminated where, after warnings, accused went on hunger

strike and said he was too weak to attend the proceedings. 1695

right to self-representation

An accused has a presumptive right to self-representation.1696

Limitations on the right of self-representation are a rare occurrence and their

details are necessarily context-specific. 1697

The right to self-representation is a qualified one, however. 1698 An accused who

substantially and persistently disrupts the trial may have his right to self-representation
1690
Prosecutor v Seselj, No. IT-03-67-AR73.8, Decision on Prosecution’s Appeal Against the Trial
Chamber’s Order Regarding the Resumption of the Proceedings (16 September 2008)
1691
Prosecutor v Seselj, No. IT-03-67-T, Redacted Version of the Redacted Version on Decision on the
Prosecution Motion to Terminate the Accused’s Self Representation…(27 November 2008) at para. 23
1692
Prosecutor v Seselj, No. IT-03-67-T, Consolidated Decision on Assignment of Counsei, Adjournment,
and Prosecution Motion for Additional Time (24 November 2009) at para. 73
1693
Prosecutor v Seselj, No. IT-03-67-T, Consolidated Decision on Assignment of Counsei, Adjournment,
and Prosecution Motion for Additional Time (24 November 2009) at para. 75
1694
Prosecutor v Seselj, No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision
on Assignment of Counsel (20 October 2006)
1695
Prosecutor v Seselj, No. IT-03-67-T, Reasons for Decision (No. 2) on Assignment of Counsel (27
November 2006)
1696
Milosevic v Prosecutor, No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial
Chamber’s Decision on the Assignment of Defence Counsel (1 November 2004) at para. 11; Prosecutor v
Seselj, No. IT-03-67-PT, Decision on Assignment of Counsel (21 August 2006) at para. 13
1697
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Appeal from Decision on
Motion to Vacate Appointment of Richard Harvey (12 February 2010) at para. 35
1698
Milosevic v Prosecutor, No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial
Chamber’s Decision on the Assignment of Defence Counsel (1 November 2004) at para. 12

273
curtailed.1699 Similarly, an accused whose health does not permit him to represent
himself cannot assert that right and bring his trial to a halt.1700

self-representation on appeal

An accused has the right to represent himself on appeal from his conviction. 1701

The right is not unqualified. Should the accused substantially and persistently
obstruct the expeditious conduct of his appeal, then counsel may be imposed upon
him. 1702

Legal advisor granted right of audience on appeal from judgement concerning any
question of a legal nature that may arise in the presentation of arguments on alleged
errors of fact or law in the trial judgement. 1703

special treatment

Where an accused elects self-representation, the concerns about the fairness of the
proceedings are, of course, heightened, and a Trial Chamber must be particularly
attentive to its duty of ensuring that the trial be fair.1704 Trial Chamber’s decision on
length of time needed to prepare defence case was not abuse of discretion. 1705 Trial
Chamber’s decision on sitting four days a week was not an abuse of discretion. 1706

The principle of a fair trial, in the circumstances of self-representation, demands

that the accused is provided the conditions which fairly allow him to prepare his defence.

1699
Milosevic v Prosecutor, No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial
Chamber’s Decision on the Assignment of Defence Counsel (1 November 2004) at para. 13; Prosecutor v
Seselj, No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of
Counsel (20 October 2006) at para. 20
1700
Milosevic v Prosecutor, No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial
Chamber’s Decision on the Assignment of Defence Counsel (1 November 2004) at para. 14
1701
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Momcilo Krajsinik’s Right to Self-Represent, on
Counsel’s Motions in Relation to Appointment of Amicus Curiae and on the Prosecution Motion of 16
February 2007 (11 May 2007) at para. 10
1702
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Momcilo Krajsinik’s Right to Self-Represent, on
Counsel’s Motions in Relation to Appointment of Amicus Curiae and on the Prosecution Motion of 16
February 2007 (11 May 2007) at para. 13
1703
Prosecutor v Tolimir, No. IT-05-88/2-A, Decision on Tolimir’s Request to Grant a Right of Audience to
Mr. Aleksandar Gajic (20 June 2014) at p. 3
1704
Prosecutor v Milosevic, No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amicus
Curiae Against Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case
(20 January 2004) at para. 19
1705
Prosecutor v Milosevic, No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amicus
Curiae Against Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case
(20 January 2004)
1706
Prosecutor v Karadzic, No. IT-95-5/18-AR73.8, Decision on Appeal from Order on the Trial Schedule
(19 July 2010) at para. 13

274
Night monitoring ordered discontinued because it caused lack of sleep which might
detrimentally impinge on the accused’s ability to represent himself. 1707

An accused who is representing himself has no right to disclosure in hard copy

format, but if electronic disclosure is provided, he must be given training and equipment
to utilize it.1708

An indigent self-represented accused does not have the right to payment of travel
expenses for prosecution witnesses to interview them at the detention unit. 1709

standby counsel

Trial Chamber erred in immediately ordering the assignment of standby counsel

without establishing any persistent or obstructionist behaviour on the part of the
accused. 1710

An accused whose right of self-representation is terminated by persistent

obstructive behavior does not have the right to choose the counsel imposed upon him by
the Trial Chamber, or the standby counsel assigned to prepare in the event of that
eventuality. 1711

If standby counsel is to be appointed, the accused should be given the opportunity

to chose his standby counsel from the Rule 45 list. 1712

However, the Registrar was not obligated to made the list available to a self-
represented accused who had not had a troubled history with the standby counsel. 1713
The Seselj decision provided more rights to the accused than he was entitled to because
of the unique factual circumstances of his case. 1714

1707
Prosecutor v Tolimir, No. IT-05-88/2-T, Order Regarding the Nightly Monitoring of the Accused (25
August 2010) at para. 17
1708
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Form of Disclosure (4 July 2006) at para. 13,
affirmed Prosecutor v Seselj, No. IT-03-67-AR73.5, Decision on Vojislav Seselj’s Interlocutory Appeal
Against the Trial Chamber’s Decision on Form of Disclosure (17 April 2007) at para. 19
1709
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused’s Motion for Order re: Interview of
Prosecution Witness KDZ222 (26 August 2009)
1710
Prosecutor v Seselj, No. IT-03-67-AR73.4, Decision on Appeal of the Trial Chamber Decision (No. 2)
on Assignment of Counsel (8 December 2006)
1711
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Appeal from Decision on
Motion to Vacate Appointment of Richard Harvey (12 February 2010) at para. 27
1712
Prosecutor v Seselj, No. IT-03-67-AR73.4, Decision on Appeal of the Trial Chamber Decision (No. 2)
on Assignment of Counsel (8 December 2006) at para. 28
1713
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 37
1714
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Appeal from Decision on
Motion to Vacate Appointment of Richard Harvey (12 February 2010) at para. 31

275
 Standby counsel assigned to self-represented accused who, while cooperative in
pre-trial proceedings, substantially and persistently obstructed the proceedings by failing
to appear for his trial. 1715

Registrar’s decision to exclude all Serbian lawyers because they had previously
represented accused persons in related cases or were unavailable due to current
assignments was reasonable even though it had not excluded some non-Serbian lawyers
based upon that same criteria. 1716

Trial Chamber did not err in concluding that Registrar’s pre-screening criteria for
standby counsel neither contravened any legal requirement nor was unfair or
nonsensical. 1717

Self-representation of accused could continue during 3 ½ month period while

sandby counsel familiarized himself with the case and until such time as accused
obstructed the trial proceedings once they resumed.1718

Registrar’s procedure for appointing standby counsel was an issue which went to
the fairness of the trial and therefore was subject to review by the Trial Chamber. 1719

Article 21(4)(d) does not provide the right of a self-represented accused to choose
the standby counsel imposed by the Trial Chamber.1720

Standby counsel’s assignment would continue in the defence phase of the case,
where the standby counsel would be expected to formulate a defence strategy and
investigate the case in order to be prepared to present a defence in the event that the
accused lost his right of self-representation. 1721

Article 21(4)(e)--compulsory process

Article 21(4)(e) of the Statute grants an accused the right "to obtain the attendance
and examination of witnesses on his behalf". This right is, for obvious reasons, subject to

1715
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further
Trial Proceedings (5 November 2009) at para. 21
1716
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 41
1717
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Appeal from Decision on
Motion to Vacate Appointment of Richard Harvey (12 February 2010) at para. 34
1718
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further
Trial Proceedings (5 November 2009) at para. 25
1719
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 23
1720
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 26
1721
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Continuation of Standby Counsel Assignment
(21 June 2012) at p. 3

276
certain conditions, including a requirement that the evidence should be called at the
proper time.1722

Article 21(4)(e)—cross examination

The right to cross examine witnesses is a fundamental right recognized under

international human rights law. 1723

Evidence which has not been cross-examined and goes to the acts and conduct of
the Accused or is pivotal to the Prosecution case cannot be used as the sole basis by
which to establish a conviction1724

A conviction may not rest solely, or in a decisive manner, on the evidence of a

witness whom the accused has had no opportunity to examine or to have examined either
during the investigation or at trial. 1725

A conviction which rests decisively on untested evidence must be overturned.

Where conviction rested on statements of co-accused who did not testify, it was
reversed. 1726

It is considered to run counter to the principles of fairness to allow a conviction

based on untested evidence without sufficient corroboration. 1727

Article 21(4)(g)—self incrimination

The accused has a right not to testify and no adverse inference is drawn from this
1728
fact.

The prosecution may not summon a witness to testify at his own trial. 1729

A Trial Chamber is not under a strict obligation to inform a witness of his right to
remain silent. However, in order to determine whether a witness has waived his right to
self-incrimination, it is not sufficient to establish that the testimony was voluntary and

1722
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 75
1723
Prosecutor v Prlic et al, No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal
Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross Examination by Defence and
Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief (4 July 2006) at p. 2;
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 171
1724
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement (10 June 2010) at para.60
1725
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 137
1726
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4A, Judgement (23 July 2009) at para. 62
1727
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4A, Judgement (23 July 2009) at para. 62
1728
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 783; Prosecutor v
Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 19; Prosecutor v Strugar, No.
IT-01-42-T, Judgement (31 January 2005) at para.11; Prosecutor v Oric, No. IT-03-68-T, Judgement (30
June 2006) at para. 16; Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 22
1729
Prosecutor v Prlic et al, No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting
Transcript of Jadranko Prlic’s Questioning into Evidence (23 November 2007) at para. 38

277
free of duress. The witness would have to know of the right to remain silent and the
consequences of waiving it. Failure to so inform the witness renders his testimony
inadmissible in a case against him. 1730

Article 22—protection of victims and witnesses

The International Tribunal shall provide in its rules of procedure and evidence for
the protection of victims and witnesses. Such protection measures shall include, but
shall not be limited to, the conduct of in camera proceedings and the protection of
the victim’s identity.

See Rule 69

Article 23—judgement

1. The Trial Chambers shall pronounce judgements and impose sentences and
penalties on persons convicted of serious violations of international humanitarian
law.
2. The judgement shall be rendered by a majority of the judges of the Trial
Chamber, and shall be delivered by the Trial Chamber in public. It shall be
accompanied by a reasoned opinion in writing, to which separate or dissenting
opinions may be appended.

The right of an accused under Article 23(2) to a reasoned opinion is an aspect of

the fair trial requirement of Articles 20 and 21. 1731

Pursuant to Article 23 of the Statute and Rule 98ter(C) of the Rules, every
accused is guaranteed the right to a reasoned opinion.1732

Only a reasoned opinion allows the Appeals Chamber to understand and review
the findings of the Trial Chamber as well as its evaluation of evidence. 1733

A Trial Chamber is not required to make explicit findings as to facts agreed to by

the parties.1734

A Trial Chamber is required to make findings on those facts which are essential to
a determination of guilt on each count.1735

1730
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motion for the Admission into
Evidence of the Testimony of Milivoj Petkovic Given in Other Cases Before the Tribunal (17 October 2007)
1731
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 17;
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 603; Prosecutor v
Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 69; Prosecutor v Kunarac et al, No. IT-
96-23&23/1, Judgement (12 June 2002) at para. 41
1732
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 53
1733
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para.. 41
1734
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 18
1735
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 78

278
 The absence of any relevant legal findings in a trial judgement also constitutes a
manifest failure to provide a reasoned opinion. 1736

Every accused has the right to a reasoned opinion under Article 23 of the Statute
and Rule 98 ter (C). This makes it possible for an individual to exercise their right of
appeal and for the Appeals Chamber to understand and review the findings of the Trial
Chamber and the evaluation of the evidence. 1737

The requirement of a reasoned opinion applies to the Trial Chamber’s judgement

and not to all decisions made during the course of a trial. 1738

A trial chamber is not obliged to justify its findings in relation to every

submission made during trial. A trial chamber has discretion in deciding which legal
arguments to address, and is only required to make factual findings which are essential to
the determination of guilt on a particular count.1739

The Trial Chamber failed to explain in a clear and articulate manner how it
reached the conclusion that the accused were not responsible for the incidents at issue
under JCE III liability. This omission amounted to a failure to provide a reasoned
opinion.1740

Trial Chamber failed to provide reasoned opinion by not stating whether it was
taking into account as a mitigating factor for sentencing the assistance rendered by the
accused to Muslims. 1741

Trial Chamber failed to provide a reasoned opinion when it acquitted accused

based upon lack of mens rea for JCE without first addressing the actus reus. Without
making findings on the existence and scope of the common criminal purpose shared by a
plurality of persons, the Trial Chamber could not properly assess the words and conduct
of the accused to determine if mens rea could be inferred.1742

Failure to specify the evidence showing that the crisis staff used the security
service as an operating tool in the judgement violated the right of the accused to a
reasoned opinion.1743

1736
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 78
1737
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 603; Prosecutor
v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1387; Prosecutor v Stanisic &
Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 78; Prosecutor v Prlic et al, No. IT-04-
74-A, Judgement (29 November 2017) at para. 990
1738
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 603; Prosecutor
v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 81
1739
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 53
1740
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3113
1741
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 605
1742
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at paras. 79, 82, 88
1743
Prosecutor v Brdjanin, No. IT-98-36-A, Judgement (3 April 2007) at para. 142

279
 The Trial Chamber’s failure to enter express findings as to whether and how the
accused’s acts and conduct furthered the JCE, and whether his contribution was
significant constitutes a failure to provide a reasoned opinion. 1744

The Trial Chamber did not err in determining that the accused was not truthful in
his testimony at the trial of another accused, but erred in failing to specify the false
testimony as part of its duty to render a reasoned opinion. 1745

A Trial Chamber is not obliged to address every minor inconsistency in a

witness’s statement; however, neither can a Trial Chamber fail to address alleged
inconsistencies when the evidence of the witness at issue is the principal evidence relied
upon to convict an accused. This failure contravened the accused right to a reasoned
opinion, constituting an error of law. 1746

A trial chamber is not required to set out in detail why it accepted or rejected a
particular testimony. An accused’s right to a reasoned opinion does not ordinarily
demand a detailed analysis of the credibility of particular witnesses. However, a
trial chamber must provide reasons for accepting testimony despite alleged or material
inconsistencies when it is the principal evidence relied upon to convict an accused. 1747

Under some circumstances, a reasoned explanation of the Trial Chamber's

assessment of a particular witness's credibility is a crucial component of a reasoned
opinion - for instance, where there is a genuine and significant dispute surrounding a
witness's credibility and the witness's testimony is truly central to the question whether a
particular element is proven. 1748

Where a trial chamber does not refer to evidence it is to be presumed that it

assessed and weighed the evidence, provided that there is no indication that the trial
chamber completely disregarded evidence which is clearly relevant.1749

In making factual findings, a trial chamber is entitled to rely on the evidence it

finds most convincing and is not obliged to refer to every witness testimony or evidence
on the record as long as there is no indication that a trial chamber completely disregarded
evidence which is clearly relevant. 1750

Unless there is an indication that the Trial Chamber completely disregarded a

particular piece of evidence, it is presumed that the Trial Chamber evaluated all the
evidence before it. There may be an indication of disregard when evidence which is

1744
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 140
1745
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 101
1746
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 134
1747
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 133; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1642
1748
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 202
1749
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1196
1750
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 53

280
clearly relevant to the findings is not addressed in the Trial Chamber’s reasoning. 1751

There is a presumption that a trial chamber has evaluated all the evidence
presented to it, as long as there is no indication that it completely disregarded any
particular piece of evidence. This presumption may be rebutted when evidence which is
clearly relevant to the trial chamber’s findings is not addressed in its reasoning. 1752

Only where it is shown within the substance of a trial chamber’s reasoning that
clearly relevant evidence has been disregarded, should the Appeals Chamber intervene in
order to assess whether that evidence would have changed the factual basis supporting
the trial chamber’s conclusion.1753

A trial chamber's failure to explicitly refer to specific evidence on the record will
often not amount to an error of law, especially where there is significant contrary
evidence on the record.1754

It is not necessary for the Trial Chamber to refer to every piece of evidence on the
record and it is presumed that it evaluated all evidence presented before it. 1755

Given that the testimony of the witness was critical to the conviction,the Trial
Chamber was required to specifically explain why it found the witness credible despite
evidence of a possible motive on his part. The Trial Chamber’s failure to do so violated
the accused’s right to a reasoned opinion, constituting an error of law 1756

In certain circumstances, insufficient analysis of evidence on the record can

amount to a failure to provide a reasoned opinion. Such a failure constitutes an error of
law requiring de novo review of evidence by the Appeals Chamber. 1757

Even if required to discuss a specific piece of evidence, trial chamber's failure to

do so will often not amount to an error of law, especially when there is significant
contrary evidence on the record.1758

An analysis limited to a select segment of the relevant evidentiary record

is not necessarily sufficient to constitute a reasoned opinion. The Trial Chamber’s failure
to explicitly discuss and analyse the evidence of two defence witnesses constituted a
failure to provide a reasoned opinion on the issue of effective control. 1759

1751
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 359
1752
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 536
1753
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 537
1754
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 53
1755
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 56
1756
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 147
1757
Prosecutor v Perisic, No. IT-03-81-A, Judgement (28 February 2013) at para. 92
1758
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2624
1759
Prosecutor v Perisic, No. IT-03-81-A, Judgement (28 February 2013) at para. 95

281
 It is necessary for any appellant claiming an error of law because of the lack of a
reasoned opinion to identify the specific issues, factual findings or arguments, which he
submits the Trial Chamber omitted to address and to explain why this omission
invalidated the decision.1760

Where a finding of guilt is made on the basis of identification evidence given by a

witness under difficult circumstances, the Trial Chamber must rigorously implement its
duty to provide a reasoned opinion. Setting forth the standards for weighing identification
evidence in general was not sufficient. 1761

In accordance with the right to a reasoned opinion, Trial Chambers are obliged to
provide sufficient reasons for preferring the testimony of one crucial witness over
another.1762

A Trial Chamber should at least briefly explain why it accepted the evidence of
witnesses who may have had motives or incentives to implicate the accused; in this way,
a Trial Chamber shows its cautious assessment of this evidence. 1763

Article 24—penalties

1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In

determining the terms of imprisonment, the Trial Chambers shall have recourse to
the general practice regarding prison sentences in the courts of the former
Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into account such
factors as the gravity of the offence and the individual circumstances of the
convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return of any
property and proceeds acquired by criminal conduct, including by means of duress,
to their rightful owners.

See Rule 101

Article 25—appellate proceedings

The Appeals Chamber shall hear appeals from persons convicted by the Trial
Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.

1760
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 25; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1367; Prosecutor v Stanisic &
Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 137
1761
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 152
1762
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 196
1763
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para.242

282
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the
Trial Chambers.

acquittal

Article 25 of the Statute does not confer on an accused person the right to appeal
from an acquittal. 1764

Although the standard of unreasonableness and the same deference to factual

findings of the Trial Chamber apply when the Prosecution appeals against an acquittal,
the significance of an error of fact occasioning a miscarriage of justice takes on a specific
character when alleged by the Prosecution. This is because it has the more difficult task
of showing that there is no reasonable doubt about the appellant’s guilt when account is
taken of the Trial Chamber’s errors of fact. 1765

The same standard of reasonableness and the same deference to factual findings
of the Trial Chamber apply when the Prosecution appeals against an acquittal1766.

The Prosecution must show that, when account is taken of the errors of fact
committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been
eliminated.1767

appeal of right

The spirit of the Rules justified allowing an accused to appeal a decision to

continue his trial with a substitute Judge, even though the Trial Chamber had held that
Rule 15 bis, which provided for an appeal of right, did not apply to the situation. 1768

binding nature of decisions

Instances of situations where cogent reasons in the interests of justice require a

departure from a previous decision include cases where : (1) the previous decision has
been decided on the basis of a wrong legal principle; (2) cases where a previous decision
has been given per incuriam, that is a judicial decision that has been "wrongly decided,
usually because the judge or judges were ill-informed about the applicable law."1769

1764
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 7.
1765
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 14; Prosecutor v
Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 11
1766
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 13
1767
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 13; Prosecutor v
Halilovic, No. IT-01-48-A, Judgement (16 October 2007) at para. 11; Prosecutor v Boskoski &
Tarculovski, No. IT-04-82-A, Judgement (19 May 2010) at para 272; Prosecutor v Popovic et al, No. IT-
05-88-A, Judgement (30 January 2015) at para. 514
1768
Prosecutor v Seselj, No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of
Proceedings (6 June 2014) at para. 21
1769
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 108; Prosecutor v.
Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 8

283
 Where an Appeals Chamber is faced with previous decisions that are conflicting,
it is obiged to determine which decision it will follow, or whether to depart from both
decisions for cogent reasons in the interests of justice. 1770

The notion of “cogent reasons” encompasses considerations that are clear and
compelling.1771

The Appeals Chamber may, exceptionally, depart from its previous decisions if
there are cogent reasons to do so, i.e. if the previous decision was made “‘on the basis of
a wrong legal principle’ or given per incuriam, that is, ‘wrongly decided, usually because
the judge or judges were ill-informed about the applicable law’”. It is for the party
advocating a departure to demonstrate that there are cogent reasons in the interests of
justice that justify such departure.1772

In order to constitute a cogent reason for departing from its established

jurisprudence on a matter, the party advocating a departure would need to show that a
non-binding opinion of another court is the correct law and demonstrate that there is a
clear mistake in the Appeals Chamber’s approach. 1773

The Appeals Chamber considers that a proper construction of the Statute requires
that the ratio decidendi of its decisions is binding on Trial Chambers. 1774

Decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have
no binding force on each other, although a Trial Chamber is free to follow the decision of
another Trial Chamber if it finds that decision persuasive. 1775

The probative value of a document may be assessed differently in different cases,

depending on the circumstances.1776

Decisions of Trial Chambers have no binding force on each other. Factual

findings made in a case at the Tribunal are binding only for that individual accused in that
specific case.1777

As a rule, factual findings made by one chamber are not binding upon subsequent

1770
Prosecutor v Sainovic et al, No. IT-05-87-T, Judgement (23 January 2014) at para. 1622
1771
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 24; Prosecutor v Prlic
et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 588
1772
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 596; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 588
1773
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 598
1774
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 113
1775
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 114
1776
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 90
1777
Prosecutor v Mladic, No. IT-09-92-AR73.4, Decision on Defence Interlocutory Appeal from the Trial
Chamber Rule 98 bis Decision (24 July 2014) at para. 28; Prosecutor v Prlic et al, No. IT-04-74-A,
Judgement (29 November 2017) at para. 337

284
chambers.1778

Findings of criminal responsibility made in a case before the Tribunal are binding
only on the accused in a specific case. 1779

Two reasonable triers of fact may come to different but equally reasonable
conclusions based on the same evidence. 1780

An error cannot be established by merely pointing to the fact that other trial
chambers have exercised their discretion in a different way. 1781

Trial Chamber declined to invite the prosecution to withdraw charges based on

same evidence which Appeals Chamber had held to be insufficient in another case. A
particular body of evidence deemed insufficient by a Trial Chamber or even the Appeals
Chamber in another case will not necessarily also be regarded as insufficient in a
different case.1782

The International Tribunal need not defer to the International Court of Justice
such as to be bound by its decisions. It need not await a decision of that Court or of the
General Assembly, even if the same issue is being considered. However, the decisions of
the ICJ are of the utmost significance. 1783

Whilst the Tribunal recognizes the status of the International Court of Justice as
the ‘principal judicial organ’ within the United Nations system, the Tribunal is an
autonomous international judicial body, and there is no hierarchical relationship between
the two courts. Accordingly, although the Appeals Chamber will necessarily take into
consideration other decisions of international courts, it may, after careful consideration,
come to a different conclusion. 1784

The Appeals Chamber is not bound by the legal determinations reached by trial
chambers of this Tribunal or by the ICJ. However, the ICJ is the principal organ of the
United Nations and the competent organ to resolve disputes relating to the interpretation
of the Genocide Convention. 1785

The Appeals Chamber is not bound by the findings of other courts - domestic,
international, or hybrid. Even though it might take them into consideration, it may, after

1778
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 33
1779
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion Seeking to Disqualify the
Honourable Judge Alphons Orie and the Honourable Judge Christoph Flugge (26 August 2016), at p. 4
1780
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1677
1781
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1677
1782
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Withdrawal of Charges (13 October
2014) at para. 8
1783
Prosecutor v Kvocka et al, No. IT-98-30/1-AR73.5, Decision on Interlocutory Appeal by the Accused
Zoran Zigic Against the Decision of Trial Chamber I of 5 December 2000 (25 May 2001) at paras. 17, 22
1784
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 24.
1785
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 226

285
careful consideration, come to a different conclusion on a matter than that reached by
another judicial body.1786

clarification

While clarification of a decision is available to the parties, a final judgement will

not be clarified by the Appeals Chamber. 1787

collateral estoppel and res judicata

The principle of res judicata applies only to the accused in a particular case, and
does not extend to accused in other cases. Even if the evidence is the same, each Trial
Chamber is entitled to reach its own conclusions. 1788

The doctrine of collateral estoppel is not applicable in international criminal law

and one who was not a party to the first proceedings cannot preclude the other party from
re-litigating a matter it lost.1789

In a trial of an individual who has not been tried before, both the prosecution and
the defence should be able to present their best evidence in relation to all the issues
relevant to the case, including those that may have been touched upon or adjudicated by
previous Chambers. 1790

death of appellant

Upon the death of the appellant before the appeal is concluded, there is no
jurisdiction to continue the appeal proceedings. The trial judgement would not be
vacated, but would be considered final. 1791

The son of a deceased appellant has no standing to request that the appeal be
decided. 1792

expedited appeals

1786
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 590
1787
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Decision on Motion for Clarification (1 August
2013) at p, 1
1788
Prosecutor v Delic, No. IT-04-83-PT, Decision on the Prosecution’s Submission of Proposed Amended
Indictment and Defence Motion Alleging Defects in Amended Indictment (30 June 2006) at para. 42
1789
Prosecutor v Karadzic, No.IT-95-5/18-T, Decision on Accused’s Motion to Strike Scheduled Shelling
Incident on Grounds of Collateral Estoppel (31 March 2010)
1790
Prosecutor v Karadzic, No.IT-95-5/18-T, Decision on Accused’s Motion to Strike Scheduled Shelling
Incident on Grounds of Collateral Estoppel (31 March 2010) at para. 8
1791
Prosecutor v Delic, No. IT-04-83-A, Decision on the Outcome of the Proceedings (29 June 2010) at
paras. 8,15; Prosecutor v Popovic et al, No. IT-05-88-A, Decision Terminating Appellate Procedings in
Relation to Milan Gvero (7 March 2013) at para. 6
1792
Prosecutor v Delic, No. IT-04-83-A, Decision on Motion for Continuation of the Appellate
Proceedings (29 June 2010)

286
 Appeals Chamber declined to expedite its consideration of issue of validity of
judgement in light of participation by Trial Chamber judge who was later disqualified in
another case for bias. Consideration of the issues in the course of the normal appeals
process was not shown to be prejudicial to the accused where the application of the
disqualification to his case was speculative. 1793

factual findings

The Appeals Chamber may summarily dismiss challenges to factual findings

which were not relied upon for conviction. 1794

When considering alleged errors of fact on appeal from the Defence, the Appeals
Chamber will determine whether no reasonable trier of fact could have reached the
verdict of guilt beyond reasonable doubt.1795

A Trial Chamber need not refer to the testimony of every witness or every piece
of evidence on the trial record, “as long as there is no indication that the Trial Chamber
completely disregarded any particular piece of evidence.” Such disregard is shown “when
evidence which is clearly relevant to the findings is not addressed by the Trial Chamber’s
reasoning. 1796

The Appeals Chamber applies the same reasonableness standard to alleged errors
of fact regardless of whether the finding of fact was based on direct or circumstantial
evidence1797.

inconsistent findings

It is accepted that two reasonable triers of facts might reach different but equally
reasonable conclusions, even if they concern the same events. However, on appeal, the
question is whether no reasonable trier of fact could have reached the same conclusion
and not whether the conclusion reached by another trial chamber was a reasonable
one.1798

interlocutory decisions

The Appeals Chamber has the authority in extraordinary circumstances to rule on

alleged bias of Trial Chamber judge on an interlocutory basis on an appeal from

1793
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Joint Motion…Seeking Expedited
Adjudication… (23 October 2014) at para. 16
1794
Prosecutor v Brdjanin, No. IT-98-36-A, Judgement (3 April 2007) at para. 22
1795
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 12
1796
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 86
1797
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 12
1798
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 180

287
judgement, but declined to do so where normal appellate process was capable of
protecting rights of accused.1799

issues of general importance

The Appeals Chamber may consider issues of general significance to the

Tribunal’s jurisprudence, even if they do not affect the verdict, so long as there is a nexus
with the case at hand. 1800

In exceptional circumstances, the Appeals Chamber will also hear appeals where
a party has raised a legal issue that would not lead to invalidation of the judgement, but is
nevertheless of general significance to the International Tribunal’s jurisprudence 1801.

It is appropriate to consider an issue of general importance where its resolution is

deemed important for the development of the Tribunal’s case-law and it involves an
important point of law that merits examination. This is because the Appeals Chamber
must give the Trial Chambers guidance in their interpretation of the law. 1802

reconsideration

The Appeals Chamber, in its judgement on appeal from a final conviction, may
reconsider a previous interlocutory decision under its inherent discretionary power to do
so if a clear error of reasoning has been demonstrated or if it is necessary to do so to
prevent an injustice. 1803

remedy

The Appeal Chamber is not obliged, having identified an error in the decision of
the Trial Chamber and upheld the appeal, to remit for retrial. It could exercise its
discretion not to order a retrial, even though a ruling in favor of the accused was in
error.1804

An order for retrial is an exceptional measure to which resort must necessa1ily

be limited. 1805

1799
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Motion Requesting a
Declaration of Mistrial…(2 April 2014) at paras. 23-27
1800
Prosecutor v Brdjanin, No. IT-98-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s
Appeal (5 May 2005) at pg. 3; Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at
para. 6
1801
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 8; Prosecutor v
Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 10, 232
1802
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 7
1803
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 39
1804
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 77.
1805
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3131

288
 The factors considered included; (1) the fact that the genocide count for which the
cross-appellant had been acquitted was based on the killings to which he has already
pleaded guilty. The issue at the retrial would then be one of whether the intent was
present and the definition of specific intent had already been clarified in the context of
the Appeal Courts decision. (2) A prison would generally be in a better position than the
United Nations Detention Unit to provide long-term consistent psychological and
psychiatric follow-up treatment. (3) It was through no fault of the accused that the Trial
Chamber erred in law. In addition, the ad hoc nature of the International Tribunal means
that the resources are limited in terms of man -power and the uncertain longevity of the
Tribunal. Following this, the court held that it would not be in the interests of justice to
pursue a retrial. 1806

Where the Appeals Chamber finds an error committed by a trial chamber, the
choice of a remedy lies within the discretion of the Appeals Chamber. This discretion
must be exercised on proper judicial grounds on a case-by-case basis, balancing factors
including fairness to the accused, the interests of justice, the nature of the offences, and
the circumstances of the case.1807

In light of the impossibility of making findings on issues for which the Trial
Chamber erroneously acquitted the accused, and in remanding the case to the original
Trial Chamber, and in light of the fact that the accused remained convicted of serious
crimes, the interests of justice was better served by declines to order a retrial or remit
limited issues for further proceedings. 1808

Conviction for 7(3) liability can be entered on appeal where, although the Trial
Chamber did not convict under Article 7(3), it made the findings necessary for the
establishment of his responsibility under this provision for the sniping incidents. 1809

Despite finding that the Trial Chamber had erred in acquitting the accused of
some murders of prisoners in detention, conscious of the interests of fairness and the
interests of justice, and taking into account the nature of the offences and the
circumstances of the case, the Appeals Chamber declined to enter new convictions on
appeal in relation to these incidents. 1810

remit to Trial Chamber

The Appeals Chamber‘s inherent power to control proceedings in such a way as

to ensure that justice is done encompasses a power to remit limited issues to a Trial
Chamber for determination. 1811

1806
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 74-77.
1807
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3122
1808
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3131
1809
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 281
1810
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3055
1811
Prosecutor v Mucic et al, No. IT-96-21-Abis, Judgment on Sentence Appeal (8 April 2003) at para. 16.

289
 The Appeals Chamber has the inherent power to remit limited issues to be
determined by either the original or a newly composed trial chamber. 1812

Where the Appeals Chamber remanded a matter for decision by the Trial
Chamber, it retained jurisdiction to ensure that its decision was complied with. 1813

revision of judgement

Appeals Chamber has the power to convict an accused on modes of liability not
relied upon by the Trial Chamber under its power to “revise” a judgement. 1814

Trial Chamber is not required to make findings on all modes of liability and it
would be detrimental to an expeditious trial to require it to do so.1815

Appeals Chamber power to enter convictions on the basis of alternate 'modes of

liability is not dependent on whether the Prosecution appeals. 1816

The Appeals Chamber will not enter convictions under alternate modes of liability
where this would substantially compromise the fair trial rights of appellants or exceed its
jurisdiction as delineated in the Statute.1817

The Trial Chamber did not make explicit findings sufficient, on their face, to enter
convictions based on the two alternate modes of liability deemed relevant by the Appeals
Chamber. In the absence of such findings, and considering the circumstances of this
case, the Appeals Chamber declined to analyse the Trial Chamber's remaining findings
and evidence on the record in order to determine whether the accused’s actions were
sufficient to satisfy the elements of alternate modes of liability. To undertake such an
investigation in this case would require the Appeals Chamber to engage in excessive fact
finding and weighing of evidence and, in so doing, would risk substantially
compromising the accused’s fair trial rights. 1818

Any attempt by the Appeals Chamber to derive inferences required for

convictions under alternate modes of liability would require disentangling the Trial
Chamber's findings from its erroneous reliance on unlawful artillery attacks, assessing the
persuasiveness of this evidence, and then determining whether the accused’s guilt was
proved beyond reasonable doubt in relation to the elements of a different mode of

1812
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3126
1813
Prosecutor v Gotovina, No. IT-06-90-AR73.3, Decision on Joint Request of Ante Gotovina and Mladen
Markac for a Writ of Mandamus (27 March 2009) at para. 5
1814
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 106
1815
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying Prosecution Motion Requesting
Findings on all Modes of Liability Charged in the Indictment (16 January 2013)
1816
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 107
1817
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 108
1818
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 150

290
liability. Such a broad-based approach to factual findings on appeal risks transforming
the appeals process into a second trial. 1819

scope of review

The prosecutor was not estopped from changing its position on appeal where the
rights of the accused would not be affected. 1820

The Appeals Chamber is free to substitute its own decision for a decision of the
Trial Chamber where it is sufficiently apprised of the issues in the case. 1821

Arguments may not be made de novo before this Chamber and those not
presented to the Trial Chamber, such as a particular basis for admission of evidence, are
deemed waived. 1822

standard of review

On appeal, the Parties must limit their arguments to legal errors that invalidate the
decision of the Trial Chamber and to factual errors that result in a miscarriage of justice.
In exceptional circumstances, the Appeals Chamber will also hear appeals where a party
has raised a legal issue that would not lead to the invalidation of the judgement but is
nevertheless of general significance to the Tribunal’s jurisprudence. 1823

An allegation of an error of law which has no chance of resulting in an impugned

decision being quashed or revised is not a priori legitimate and may therefore be rejected
on that ground.1824

Where a party alleges that there is an error of law, that party must advance
arguments in support of the submission and explain how the error invalidates the
decision. However, if the appellant’s arguments do not support the contention, that party
does not automatically lose its point since the Appeals Chamber may step in and, for
other reasons, find in favour of the contention that there is an error of law. 1825

1819
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Judgement (16 November 2012) at para. 153
1820
Prosecutor v Brdjanin, No. IT-98-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s
Appeal (5 May 2005) at pg. 3
1821
Prosecutor v Milutinovic et al, No. IT-99-37-AR65, Decision on Motion for Modification of Decision
on Provisional Release and Motion to Admit Additional Evidence (12 December 2002)
1822
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 199
1823
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 7; Prosecutor v Kunarac et
al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 36; Prosecutor v. Limaj et al., No. IT-03-66-A,
Judgement (27 September 2007) at para. 8
1824
Prosecutor v Krnojelac, No. IT-97-25-A, Judgement (17 September 2003) at para. 10; Prosecutor v.
Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 9
1825
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 16;
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 6; Prosecutor v. Limaj et al.,
No. IT-03-66-A, Judgement (27 September 2007) at para. 9

291
 The Appeals Chamber must give a margin of deference to a finding of fact
reached by a Trial Chamber. It is only where the evidence relied on by the Trial Chamber
could not reasonably have been accepted by any reasonable person that the Appeals
Chamber can substitute its own finding for that of the Trial Chamber. It is important to
note that two judges, both acting reasonably, can come to different conclusions on the
basis of the same evidence. 1826

The Appeals Chamber will only interfere in findings of fact where no reasonable
trier of fact could have reached the same finding, If the finding of fact is erroneous, it will
be quashed or revised only if the error occasioned a miscarriage of justice. A micarriage
of justice is “a grossly unfair outcome in a judicial proceedings when a defendant is
convicted despite a lack of evidence on an essential element of the crime.1827

That the Appeals Chamber will not lightly disturb findings of fact by a Trial
Chamber is well known; the Trial Chamber has the advantage of observing witness
testimony first-hand, and is, therefore, better positioned than this Chamber to assess the
reliability and credibility of the evidence. 1828

Only where the evidence relied on by the Trial Chamber could not have been
accepted by any reasonable tribunal of fact or where the evaluation of the evidence is
“wholly erroneous” may the Appeals Chamber substitute its own finding for that of the
Trial Chamber.1829

Discernable errors that will cause the Appeals Chamber to overturn the exercise
of discretion by a Trial Chamber are that the Trial Chamber (1) misdirected itself as to
the principle to be applied or the law relevant to the exercise of its discretion; (2) took
into account irrelevant considerations; (3) failed to take into account relevant
considerations; (4) gave insufficient weight to relevant considerations; (5) made an error
as to the facts upon which it has exercised its discretion; or (6) reached a decision that no
reasonable Trial Chamber could have reached. 1830

A trial chamber enjoys considerable discretion in setting the parameters of cross-

examination and in outlining the exercise of this right, as well as in allocating time to the
parties for the presentation of their cases. 1831

A trial chamber is best placed to assess the credibility of a witness and reliability
of the evidence adduced. 1832

1826
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 64.
1827
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at paras 18-19;
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 39
1828
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 37
1829
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 39
1830
Prosecutor v Krajisnik, No. IT-00-39AR73.1, Decision on Interlocutory Appeal of Decision on Second
Defence Motion for Adjournment (25 April 2005) at para. 7; Prosecutor v Halilovic, No. IT-01-48-AR73.2,
Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the
Bar Table (19 August 2005) at para. 5
1831
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 40

292
 Trial Chambers exercise discretion in different types of decisions—such as when
imposing sentence, in determining provisional release, in relation to admissibility of
some types of evidence, in evaluating evidence, and in deciding points of practice and
procedure. Deference is afforded to the Trial Chamber’s discretion in these decisions
because they draw on the Trial Chamber’s organic familiarity with the day-to-day
conduct of the parties and practical demands of the case, and require a complex balancing
of intangibles in crafting a case-specific order to properly regulate a highly-variable set of
trial proceedings.1833

For the error to be one that occasioned a miscarriage of justice, it must have been
“critical to the verdict reached” 1834.

Decision to deny adding General Wesley Clark to prosecution witness list under
specified conditions pursuant to Rule 70 was a discretionary one to which deference to
the Trial Chamber was required. 1835

The standard of review of a judgement of acquittal entered at the close of the

prosecution’s case pursuant to Rule 98 bis is the same as review of a final judgement. 1836

When reviewing a decision of the Trial Chamber concerning review of a decision

of the Registrar, the Appeals Chamber applies the same standard of review as it does for
other trial-related decisions.1837

Where a party alleges on appeal that its right to a fair trial has been infringed, it
must prove that the trial chamber violated a provision of the Statute and/or the Rules and
that this caused prejudice to the alleging party, such as to amount to an error of law
invalidating the trial judgement.1838

The mere existence of a dissent does not render the majority's conclusion
unreasonable.1839

standing

1832
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 200
1833
Prosecutor v Popovic et al, No. IT-05-86-73.1, Decision on Vinko Pandurevic’s Interlocutory Appeal
Against the Trial Chamber Decision on Joinder of the Accused (24 January 2006) at para. 4
1834
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 13
1835
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Interlocutory Appeal Against Second
Decision Precluding the Prosecution from Adding General Wesley Clark to its 65 ter Witness List (20 April
2007) at para. 9
1836
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 9
1837
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Adequate Facilities (7 May 2009) at para. 11; Prosecutor v Karadzic, No. IT-95-5/18-
AR73.13, Decision on Appeal from Decision on Indigence (25 July 2014) at para. 6
1838
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 26
1839
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 670

293
 Although not a “party”, the interlocutory appeal of a subpoenaed witness would
be heard in the interests of justice.1840

stay pending appeal

While a stay of proceedings pending interlocutory appeal may be ordered

pursuant to Rule 54, it is an exceptional measure. 1841

Decision finding that accused had sufficient funds to remunerate his defence team
stayed pending appeal in the interests of justice. 1842

Where evidence would have to be repeated should the Appeals Chamber overturn
the Trial Chamber’s decision not to postpone the trial, it was in the interest of justice to
stay the resumption of the trial pending decision on the appeal. 1843

Decision that remuneration of defence team by accused must take place

immediately stayed pending review by the Trial Chamber and President where
implementation of the decision would affect the ability of the accused to file his closing
brief and have the assistance of his defence team during closing arguments. 1844

waiver

A party is under an obligation to formally raise before the Trial Chamber, either at
the pre-trial stage or during trial, any issues that require resolution. If a party raises no
objection to a particular issue before the Trial Chamber, when it could reasonably have
done so, in the absence of special circumstances the Appeals Chamber will find that the
party has waived its right to bring the issue as a valid ground of appeal. 1845

Prosecution waived its right to appeal decision on specificity of the indictment in

final judgement where it failed to appeal Rule 98 bis decision indicating that crimes in
question were not properly pleaded in the indictment.1846

1840
Prosecutor v Karadzic, No. IT-95-5/18-AR73.11, Decision on Appeal against the Decision on the
Accused’s Motion to Subpoena Zdravko Tolimir (13 November 2013) at para. 11
1841
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Urgent Motion for Stay of Proceedings
Pending Appeal (21 October 2016) at p. 2
1842
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Certification to
Appeal Chamber’s Decision on Indigence (10 April 2014) at p. 4
1843
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Stay Pending Appeal of Decision to
Postpone Trial (2 March 2010) at T994-95
1844
Prosecutor v Karadzic, No. IT-95-5/18-T, Order Regarding Accused’s Request for Review of
Registrar’s Decision and Urgent Motion for Stay (11 August 2014) at p. 3; Prosecutor v Karadzic, No. IT-
95-5/18-T, Order on Urgent Motion for Stay of Registrar’s Decision (18 September 2014) at p. 3
1845
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 21; Prosecutor v
Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 61; Prosecutor v Popovic et al, No.
IT-05-88-A, Judgement (30 January 2015) at para.176; Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement
(8 April 2015) at para. 170
1846
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 260

294
 Where the accused failed to object to the admission of evidence during the trial,
he waived his right to claim prejudice. 1847

The fact that the accused was self-represented at trial is a special circumstance
justifying the consideration of an issue raised for the first time on appeal.1848

If an appellant fails to specifically refer in his final brief or closing arguments

to a mitigating circumstance, the appellant cannot raise it for the first time on appeal. 1849

As the Prosecution did not expressly and formally withdraw JCE I as a form of
liability that could possibly be applied to all counts, the Prosecution did not abandon JCE
I as a possible mode of liability for some crimes by qualifying those crimes as only JCE
III crimes in its final trial brief. The Prosecution merely articulated its view on the more
appropriate mode of liability. Its qualification of some crimes as only JCE III crimes in
its final trial brief was not binding on the Trial Chamber. 1850

withdrawal of appeal

The decision to withdraw an appeal must be an informed one.1851

Misunderstanding by accused of the ability to serve his sentence in Montenegro

rendered his withdrawal of appeal uninformed, and he would be allowed to reinstate his
appeal. 1852

Article 26—review proceedings

Where a new fact has been discovered which was not known at the time of the
proceedings before the Trial Chambers or the Appeals Chamber and which could
have been a decisive factor in reaching the decision, the convicted person or the
Prosecutor may submit to the International Tribunal an application for review of
the judgement.
See Rule 119

Article 27—enforcement of sentences

Imprisonment shall be served in a State designated by the International Tribunal

from a list of States which have indicated to the Security Council their willingness to
accept convicted persons. Such imprisonment shall be in accordance with the

1847
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1314
1848
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at paras. 170, 184
1849
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2060
1850
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 60-61
1851
Prosecutor v Strugar, No. IT-01-42-Misc.1, Decision on Strugar’s Request to Reopen Appeal
Proceedings (7 June 2007) at para. 27
1852
Prosecutor v Strugar, No. IT-01-42-Misc.1, Decision on Strugar’s Request to Reopen Appeal
Proceedings (7 June 2007) at para. 29

295
applicable law of the State concerned, subject to the supervision of the International
Tribunal.

A convicted person does not have a right to be heard on the issue of which State
the President designates for him to serve his sentence. 1853

Article 28—pardon or commutation of sentences

If, pursuant to the applicable law of the State in which the convicted person is
imprisoned, he or she is eligible for pardon or commutation of sentence, the State
concerned shall notify the International Tribunal accordingly. The President of the
International Tribunal, in consultation with the judges, shall decide the matter on
the basis of the interests of justice and the general principles of law.

See Rule 125

Article 29—co-operation and judicial assistance

1. States shall co-operate with the International Tribunal in the investigation and
prosecution of persons accused of committing serious violations of international
humanitarian law.
2. States shall comply without undue delay with any request for assistance or an
order issued by a Trial Chamber, including, but not limited to:
(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.

States are obligated to comply without undue delay with any request for
assistance or an order by a Trial Chamber for the service of documents. 1854

States may not withhold documents on grounds of national security concerns. 1855

A State cannot point to its domestic law to justify non-compliance with its
international obligations. Domestic law not in conformity with a State’s obligations to
the Tribunal must be amended. 1856

1853
Prosecutor v Milosevic, No. IT-98-29/1-ES, Decision on Dragomir Milosevic’s Request for
Reconsideration of Order Designating State in Which he is to Serve his Sentence (10 March 2011) at para.
3
1854
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Second Application of Dragoljub Ojdanic
for Binding Orders Pursuant to Rule 54 bis (17 November 2005) at para. 17
1855
Prosecutor v Blaskic, No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997 (29 October 1997) at para. 67
1856
In the case against Jojic et al, No. IT-03-67-R77.5, Decision in Relation to the Cooperation of the
Government of the Republic of Serbia with the Tribunal (1 August 2016) at para. 8

296
 A State has no standing to challenge the merits of an arrest warrant issued by the
Tribunal. 1857

The Trial Chamber is empowered to issue an order against NATO or other

international organizations which are collections of States.1858

UNMIK is required to cooperate with the Tribunal, including through requests to

assist defence teams in preparing their defences. 1859

The parties are not required to go through the official channels of the States or
entities of the former Yugoslavia for identifying, summoning, or interviewing witnesses,
or conducting on-site investigations. The obligation of States under this Article requires
that the prosecution and defence must be allowed to fulfill their tasks free from any
possible impediment or hindrance.1860

Although a Trial Chamber has the power to order a State to cooperate by

providing documents to the Registry needed to assess the indigence of an accused, the
Registrar failed to seek the cooperation voluntarily prior to applying for an order.1861

States’ duty to cooperate with the Tribunal in its work includes co-operation with
the defence who is investigating issues relevant to its case. The State should therefore
cooperate with the defence to the maximum extent possible without involving the
Chamber or Registry. 1862

States are obligated to cooperate with the Tribunal with regard to contempt
matters.1863

Article 30—status, priviliges, and immunities

1. The Convention on the Privileges and Immunities of the United Nations of 13

February 1946 shall apply to the International Tribunal, the judges, the Prosecutor
and his staff, and the Registrar and his staff.
2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and
immunities, exemptions and facilities accorded to diplomatic envoys, in accordance
with international law.
1857
Prosecutor v Bobetko, No. IT-02-62-AR54 bis, Decision on Challenge by Croatia to Decision and
Orders of Confirming Judge (29 November 2002) at para. 12
1858
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.1, Decision on Request of NATO for Review
(12 May 2006) at para. 8
1859
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Third Motion for Stay of
Proceedings (27 August 2007) at para. 38
1860
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders
Directed to the Republic of Croatia (12 March 2010) at para. 30
1861
Prosecutor v Seselj, No. IT-03-69-T, Decision on Registry Submission Pursuant to Rule 33(B)…on 22
June 2011 (21 July 2011)
1862
Prosecutor v Karadzic, No. IT-95-5/18-T, Order to France (4 May 2012) at p. 3
1863
In the case against Jojic et al, No. IT-03-67-R77.5, Decision in Relation to the Cooperation of the
Government of the Republic of Serbia with the Tribunal (1 August 2016) at para. 8

297
3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and
immunities accorded to officials of the United Nations under articles V and VII of
the Convention referred to in paragraph 1 of this article.
4. Other persons, including the accused, required at the seat of the International
Tribunal shall be accorded such treatment as is necessary for the proper functioning
of the International Tribunal.

It was not necessary for amicus curiae to obtain waiver of immunities to

interview ICTY staff members, and the accused had no standing to object in any
event.1864

OTP spokesperson did not have immunity for a book she wrote after she left the
employment of the ICTY.1865

Defence counsel and investigators are covered by the privileges and immunities
granted by Article 30(4).1866

Defence members enjoy functional immunity from legal process that is immunity
from legal process "with respect to words spoken or written and acts done by them in the
course of the performance of their duties as [defence members] before the Tribunal. 1867

Croatia enjoined from further investigating or prosecuting defence investigators

for acts in the course of the performance of their duties and must return all items seized
from the defence during the investigation. 1868

Article 31—seat of the International Tribunal

The International Tribunal shall have its seat at The Hague.

Article 32—expenses of the International Tribunal

The expenses of the International Tribunal shall be borne by the regular budget of
the United Nations in accordance with Article 17 of the Charter of the United
Nations.

1864
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Defence
Motion for Stay of Proceedings for Abuse of Process (3 February 2009) at para. 7
1865
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Defence
Motion for Stay of Proceedings for Abuse of Process (3 February 2009) at para. 7
1866
Prosecutor v Gotovina et al, No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12
March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia
(14 February 2011) at para. 27
1867
Prosecutor v Gotovina et al, No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12
March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia
(14 February 2011) at para. 28
1868
Prosecutor v Gotovina et al, No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12
March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia
(14 February 2011) at paras. 36,67

298
Article 33—working languages

The working languages of the International Tribunal shall be English and French.

Article 34—annual report

The President of the International Tribunal shall submit an annual report of the
International Tribunal to the Security Council and to the General Assembly.

299
Rules of Procedure and Evidence

Rule 1—entry into force

These Rules of Procedure and Evidence, adopted pursuant to Article 15 of the

Statute of the Tribunal, shall come into force on 14 March 1994.

Rule 2—definitions

(A) In the Rules, unless the context otherwise requires, the following terms shall
mean:
Rules: The Rules of Procedure and Evidence in force;
Statute: The Statute of the Tribunal adopted by Security Council resolution 827 of
25 May 1993;
Tribunal: The 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, established by Security Council
resolution 827 of 25 May 1993.
Accused: A person against whom one or more counts in an indictment have been
confirmed in accordance with Rule 47;
Ad litem Judge: A Judge appointed pursuant to Article 13 ter of the Statute;
Arrest: The act of taking a suspect or an accused into custody pursuant to a warrant
of arrest or under Rule 40;
Bureau: A body composed of the President, the Vice-President and the Presiding
Judges of the Trial Chambers;
Defence: The accused, and/or the accused’s counsel;
Investigation: All activities undertaken by the Prosecutor under the Statute and the
Rules for the collection of informationand evidence, whether before or after an
indictment is confirmed;
Parties: The Prosecutor and the Defence;
Permanent Judge: A Judge elected or appointed pursuant to Article 13 bis of the
Statute;
President: The President of the Tribunal;
Prosecutor: The Prosecutor appointed pursuant to Article 16 of the
Statute;
Regulations: The provisions framed by the Prosecutor pursuant to
Rule 37 (A) for the purpose of directing the functions of the Office of the
Prosecutor;
State: (i) A State Member or non-Member of the United Nations; (ii) an entity
recognised by the constitution of Bosnia and Herzegovina, namely, the Federation of
Bosnia and Herzegovina and the Republic Srpska; or (iii) a self-proclaimed entity de
facto exercising governmental functions, whether recognised as a State
or not;
Suspect: A person concerning whom the Prosecutor possesses reliable information
which tends to show that the person may have committed a crime over which the
Tribunal has jurisdiction;

300
Transaction: A number of acts or omissions whether occurring as one event or a
number of events, at the same or different locations and being part of a common
scheme, strategy or plan;
Victim: A person against whom a crime over which the Tribunal has jurisdiction
has allegedly been committed.
(B) In the Rules, the masculine shall include the feminine and the singular the
plural, and vice-versa.

Rule 3—languages

(A) The working languages of the Tribunal shall be English and French.
(B) An accused shall have the right to use his or her own language.
(C) Other persons appearing before the Tribunal, other than as counsel, who do
not have sufficient knowledge of either of the two working languages, may use
their own language.
(D) Counsel for an accused may apply to the Presiding Judge of a Chamber for
leave to use a language other than the two working ones or the language of the
accused. If such leave is granted, the expenses of interpretation and translation shall
be borne by the Tribunal to the extent, if any, determined by the President, taking
into account the rights of the defence and the interests of justice.
(E) The Registrar shall make any necessary arrangements for interpretation and
translation into and from the working languages.
(F) If:
(i) a party is required to take any action within a specified time after the filing or
service of a document by another party; and
(ii) pursuant to the Rules, that document is filed in a language other than one of the
working languages of the Tribunal, time shall not run until the party required to
take action has received from the Registrar a translation of the document into one of
the working languages ofthe Tribunal.

exhibits

Limits on translation of potential defence exhibits were reasonable where Trial

Chamber determined that some of proposed documents were not relevant.1869

Trial Chamber erred in failing to make an individualized assessment of the

resources needed by the accused for the translation of documents to ensure the effective
presentation of his case.1870

When imposing limitations on the number of pages to be translated on behalf of

the accused, a Trial Chamber is required to ensure that the allotted resources are
reasonably sufficient in light of the complexity and number of issues to be litigated. 1871

1869
Prosecutor v Prlic et al, No. IT-04-74-AR73.12, Decision on Slobodan Prajlak’s Appeal of the Trial
Chamber’s 13 October 2008 Order Limiting the Translation of Defence Evidence (5 December 2008) at
para. 17
1870
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 119

301
 It would not be appropriate to limit the number of pages translated for the accused
purely on the capacity restraints of the Language Section. 1872

Trial Chamber violated right of accused at joint trial to have his case considered
separately when it based allocation of translations on amount given to co-accused without
making assessment of whether it was adequate for the needs of the accused. 1873

for the accused

The standard for determining whether materials need to be translated into the
native language of a self-represented accused is whether an accused understands one of
the working languages of the Tribunal sufficiently in order to allow for the effective
exercise of his right to conduct his defence. 1874

The Tribunal need not adopt the standard of the International Criminal Court that
the accused must “fully understand” one of the working languages in order to dispense
with the requirement of translation. 1875

An accused does not have a general right to have the prosecution’s pre-trial brief
translated into a language he understands. 1876

Trial Chamber did not err in concluding that the accused could read Serbian in
Latin script and did not abuse its discretion in failing to order translation of documents
into Cyrillic script.1877

Trial Chamber did not err in considering evidence of accused’s use of English 14-
17 years earlier. Such evidence was relevant, and was supplemented by additional

1871
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 117
1872
Prosecutor v Prlic et al, No. IT-04-74-AR73.12, Decision on Slobodan Prajlak’s Appeal of the Trial
Chamber’s 13 October 2008 Order Limiting the Translation of Defence Evidence (5 December 2008) at
para. 24; Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 114
1873
Prosecutor v Prlic et al, No. IT-04-74-AR73.9, Decision on Slobodan Prajlak’s Appeal Against the
Trial Chamber’s Decision of 16 May 2008 on Translation of Documents (4 September 2008) at para. 21
1874
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Prosecution Motion Seeking Determination that the Accused Understands English (4 June
2009) at para. 11
1875
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Prosecution Motion Seeking Determination that the Accused Understands English (4 June
2009) at para. 11
1876
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Joint Defence Motions Requesting the
Translation of the Pre-Trial Brief and Specific Motions (24 May 2006) at para. 11
1877
Prosecutor v Tolimir, No. IT-05-88/2-AR73.1, Decision on Interlocutory Appeal Against Oral Decision
of the Pre-Trial Judge of 11 December 2007 (28 March 2008); Prosecutor v Karadzic, No. IT-95-5/18-PT,
Decision on the Accused’s Request that all Materials, Including Transcripts, be Disclosed to him in
Serbian and Cyrillic Script (25 September 2008) at para. 14

302
evidence showing that the accused continued to be able to speak and understand
English. 1878

An accused has the right to translation of statements and testimony to be admitted

into evidence pursuant to Rule 92 bis. This requirement may be fulfilled by providing
audio recordings of prior testimony. There is no right to translation of the Rule 92 bis
motion.1879

A self-represented accused is not entitled to written BCS transcripts of prior

testimony rather than audio recordings. Although listening to recordings is more time-
consuming, there were adequate resources allocated to the defence team to assist him. 1880

The accused is not entitled to receive all documents in a language he understands.

However, certain documents, such as the indictment and items disclosed pursuant to
Rules 66(A)(i) and (ii) must be translated into the language of the accused. 1881

All transcripts disclosed to the accused pursuant to Rule 66(A) must be translated
into Serbian, rather than the accused being provided with the audio recordings. 1882
However, the accused is not entitled to transcripts of his own proceedings when audio
recordings were available. 1883

Translation of motions and decisions into Serbian was practice of Registry and
should continue.1884

Exculpatory material must be translated into a language which the accused

understands where the accused is representing himself. 1885

Rule 4—meetings away from the seat of the Tribunal

A Chamber may exercise its functions at a place other than the seat of the Tribunal,
if so authorised by the President in the interests of justice.

1878
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Prosecution Motion Seeking Determination that the Accused Understands English (4 June
2009) at para. 15
1879
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Joint Defence Motions Requesting the
Translation of the Pre-Trial Brief and Specific Motions (24 May 2006) at para. 16
1880
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Zdravko Tolimir’s Request for Transcripts in a
Language Which he Understands ( August 2010) at p. 8
1881
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on the Accused’s Request that all Materials,
Including Transcripts, be Disclosed to him in Serbian and Cyrillic Script (25 September 2008) at para. 7
1882
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on the Accused’s Request that all Materials,
Including Transcripts, be Disclosed to him in Serbian and Cyrillic Script (25 September 2008) at para. 11
1883
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on the Accused’s Request that all Materials,
Including Transcripts, be Disclosed to him in Serbian and Cyrillic Script (25 September 2008) at para. 13
1884
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on the Accused’s Request that all Materials,
Including Transcripts, be Disclosed to him in Serbian and Cyrillic Script (25 September 2008) at para. 12
1885
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Form of Disclosure (4 July 2006) at para. 15

303
 denied

Request for trial sessions in former Yugoslavia denied where only mere
convenience to witnesses was shown.1886

Trial Chamber did not abuse its discretion in denying a site visit to Sarajevo
where the accused could point to no prejudice from the lack of visit. 1887

Trial Chamber denied request for site visit to Kosovo, holding that maps, aerial
photographs and video recordings were adequate for determination of the issues in the
case. 1888

evidence

A site visit is part of the trial. 1889

Trial Chamber admitted video record of site visit as an exhibit finding it to be

relevant and have probative value in the trial. 1890

presence of accused

Because a site visit is part of the trial, the accused should be present for it, in
principle.1891

Where security reasons prevented the accused from being present for the site visit,
the reasons for holding a site visit in his absence must be compelling. 1892

Value of site visit was not so great as to warrant conducting it in the absence of
the accused.1893

Since there was no evidence gathering during the site visit, the right of the
accused to be present at his trial was not abridged. 1894

1886
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Trial in the Former
Yugoslavia (4 July 2012) at para. 5
1887
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at paras 50-54
1888
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Prosecution’s Motion for a Site Visit (2
October 2007)
1889
Prosecutor v Galic, No. IT-98-29-A, Decision on Prosecution’s Motion for the Trial Chamber to
Travel to Sarajevo (4 February 2003) at para. 9
1890
Prosecutor v Perisic, No. IT-04-81-T, Decision on the Admission into Evidence of Record of Site Visit
(2 December 2010)
1891
Prosecutor v Galic, No. IT-98-29-A, Decision on Prosecution’s Motion for the Trial Chamber to
Travel to Sarajevo (4 February 2003) at para. 11
1892
Prosecutor v Galic, No. IT-98-29-A, Decision on Prosecution’s Motion for the Trial Chamber to
Travel to Sarajevo (4 February 2003) at para. 16
1893
Prosecutor v Galic, No. IT-98-29-A, Decision on Prosecution’s Motion for the Trial Chamber to
Travel to Sarajevo (4 February 2003) at para. 19
1894
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Site Visit (4 June 2013) at para. 8

304
 Self-represented accused could be represented by his legal advisor at the site visit
where he requested it and where the purpose is not the collection of evidence. 1895

Rule 5—non-compliance with rules

(A) Where an objection on the ground of non-compliance with the Rules or

Regulations is raised by a party at the earliest opportunity, the Trial Chamber shall
grant relief if it finds that the alleged non-compliance is proved and that it has
caused material prejudice to that party.
(B) Where such an objection is raised otherwise than at the earliest opportunity,
the Trial Chamber may in its discretion grant relief if it finds that the alleged
non-compliance is proved and that it has caused material prejudice to the
objecting party.
(C) The relief granted by a Trial Chamber under this Rule shall be such remedy as
the Trial Chamber considers appropriate to ensure consistency with the
fundamental principles of fairness.

Rule 6—amendment of the Rules

(A) Proposals for amendment of the Rules may be made by a Judge, the
Prosecutor or the Registrar and shall be adopted if agreed to by not less than ten
permanent Judges at a plenary meeting of the Tribunal convened with notice of the
proposal addressed to all Judges.
(B) An amendment to the Rules may be otherwise adopted, provided it is
unanimously approved by the permanent Judges.
(C) Proposals for amendment of the Rules may otherwise be made in accordance
with the Practice Direction issued by the President.
(D) An amendment shall enter into force seven days after the date of issue of an
official Tribunal document containing the amendment, but shall not operate to
prejudice the rights of the accused or of a convicted or acquitted person in any
pending case.

Rule 7—authentic texts

The English and French texts of the Rules shall be equally authentic. In case
of discrepancy, the version which is more consonant with the spirit of the Statute
and the Rules shall prevail.

Rule 7 bis—non-compliance with obligations

(A) In addition to cases to which Rule 11, Rule 13, Rule 59 or Rule 61 applies, where
a Trial Chamber or a permanent Judge is satisfied that a State has failed to comply
with an obligation under Article 29 of the Statute which relates to any proceedings

1895
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Proposal for Site Visit (2 July 2010)
at p. 2

305
before that Chamber or Judge, the Chamber or Judge may advise the President,
who shall report the matter to the Security Council.
(B) If the Prosecutor satisfies the President that a State has failed to comply with an
obligation under Article 29 of the Statute in respect of a request by the Prosecutor
under Rule 8, Rule 39 or Rule 40, the President shall notify the Security Council
thereof.

Prosecution did not violate prerogative of President by commenting on non-

cooperation of Croatia before Security Council nor did such action violate equality of
arms. 1896

Rule 8—request for information

Where it appears to the Prosecutor that a crime within the jurisdiction of the
Tribunal is or has been the subject of investigations or criminal proceedings
instituted in the courts of any State, the Prosecutor may request the State to
forward all relevant information in that respect, and the State shall transmit such
information to the Prosecutor forthwith in accordance with Article 29 of the Statute.

Rule 9—Prosecutor’s request for deferral

Where it appears to the Prosecutor that in any such investigations or criminal

proceedings instituted in the courts of any State:
(i) the act being investigated or which is the subject of those proceedings
is characterized as an ordinary crime;
(ii) there is a lack of impartiality or independence, or the investigations or
proceedings are designed to shield the accused from international
criminal responsibility, or the case is not diligently prosecuted; or
(iii) what is in issue is closely related to, or otherwise involves, significant
factual or legal questions which may have implications for investigations or
prosecutions before the Tribunal,
the Prosecutor may propose to the Trial Chamber designated by the President that
a formal request be made that such court defer to the competence of the Tribunal.

Rule 10—formal request for deferral

(A) If it appears to the Trial Chamber seised of a proposal for deferral that, on any
of the grounds specified in Rule 9, deferral is appropriate, the Trial Chamber
may issue a formal request to the State concerned that its court defer to the
competence of the Tribunal.
(B) A request for deferral shall include a request that the results of the
investigation and a copy of the court's records and the judgement, if already
delivered, be forwarded to the Tribunal.
(C) Where deferral to the Tribunal has been requested by a Trial Chamber, any

1896
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Motion for Non-Disclosure Order Directed
to Prosecutor Serge Brammertz (1 December 2009) at paras. 8-9

306
subsequent trial shall be held before another Trial Chamber.

A Trial Chamber has the power to revoke an order of deferral of prosecution from
a State to the Tribunal and authorize the State to proceed with its investigation and
prosecution. 1897

Rule 11—non-compliance with a request for deferral

If, within sixty days after a request for deferral has been notified by the Registrar to
the State under whose jurisdiction the investigations or criminal proceedings have
been instituted, the State fails to file a response which satisfies the Trial Chamber
that the State has taken or is taking adequate steps to comply with the request, the
Trial Chamber may request the President to report the matter to the Security
Council.

Rule 11 bis—referral of the indictment to another court

(A) After an indictment has been confirmed and prior to the commencement of trial,
irrespective of whether or not the accused is in the custody of the Tribunal, the
President may appoint a bench of three Permanent Judges selected from the Trial
Chambers (hereinafter referred to as the “Referral Bench”), which solely and
exclusively shall determine whether the case should be referred to the authorities of
a State:
(i) in whose territory the crime was committed; or
(ii) in which the accused was arrested; or
(iii) having jurisdiction and being willing and adequately prepared to accept such a
case,
so that those authorities should forthwith refer the case to the appropriate court for
trial within that State. (
(B) The Referral Bench may order such referral proprio motu or at the request of
the Prosecutor, after having given to the Prosecutor and, where applicable, the
accused, the opportunity to be heard and after being satisfied that the accused will
receive a fair trial and that the death penalty will not be imposed or carried out.
(C) In determining whether to refer the case in accordance with paragraph (A), the
Referral Bench shall, in accordance with Security Council resolution 1534 (2004)1,
consider the gravity of the crimes charged and the level of responsibility of the
accused.
(D) Where an order is issued pursuant to this Rule:
(i) the accused, if in the custody of the Tribunal, shall be handed over to the
authorities of the State concerned;
(ii) the Referral Bench may order that protective measures for certain witnesses or
victims remain in force;
(iii) the Prosecutor shall provide to the authorities of the State concerned all of the

1897
In Re: the Former Yugoslav Republic of Macedonia, No. IT-02-55-Misc.6, Decision on Prosecution’s
Motion for a Ruling Under Rule 73(A) Concerning the Effect of Deferral Under Rule 10 and
Reconsideration of Request for Deferral (17 January 2008) at para. 14

307
information relating to the case which the Prosecutor considers appropriate and, in
particular, the material supporting the indictment;
(iv) the Prosecutor may send observers to monitor the proceedings in the national
courts on her behalf.
(E) The Referral Bench may issue a warrant for the arrest of the accused, which
shall specify the State to which he is to be transferred to trial.
(F) At any time after an order has been issued pursuant to this Rule and before the
accused is found guilty or acquitted by a national court, the Referral Bench may, at
the request of the Prosecutor and upon having given to the State authorities
concerned the opportunity to be heard, revoke the order and make a formal request
for deferral within the terms of Rule 10.
(G) Where an order issued pursuant to this Rule is revoked by the Referral Bench,
it may make a formal request to the State concerned to transfer the accused to the
seat of the Tribunal and the State shall accede to such a request without delay in
keeping with Article 29 of the Statute. The Referral Bench or a Judge may also issue
a warrant for the arrest of the accused.
(H) A Referral Bench shall have the powers of, and insofar as applicable shall follow
the procedures laid down for, a Trial Chamber under the Rules.
(I) An appeal by the accused or the Prosecutor shall lie as of right from a decision of
the Referral Bench whether or not to refer a case. Notice of appeal shall be filed
within fifteen days of the decision unless the accused was not present or represented
when the decision was pronounced, in which case the time-limit shall run from the
date on which the accused is notified of the decision.

choice of state

There is no hierarchy among the factors to be considered when determining which

State is the most appropriate for referral. The Referral Bench did not err in concluding
that the nexus with Bosnia was greater than Serbia and deciding to refer the case to
Bosnia.1898

Nexus with Bosnia, where crimes were committed, was greater than with Serbia,
where the accused lived and when unrelated charges were pending.1899

Citizenship has no significant relevance to the determination of the State to which

referral should be ordered.1900

The factors to be considered in determining the designation of the referral venue

are (1) proximity to victims; (2) safety of witnesses; (3) availability of evidence; and (4)
the prospects of a fair and expeditious trial for the accused. 1901
1898
Prosecutor v Jankovic, No. IT-96-23/2-AR11bis, Decision on Rule 11 bis Referral (15 November
2005) at para. 33,39; Prosecutor v Rasevic & Todovic, No. IT-97-25/1-AR11bis, Decision on Savo
Todovic’s Appeals Against Decisions on Referrals Pursuant to Rule 11 bis (4 September 2006) at para. 45
1899
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Referral of Case Pursuant to Rule 11 bis
(5 April 2007) at para. 41
1900
Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against
Decision on Referral Pursuant to Rule 11 bis (7 April 2006) at para. 33

308
 The Referral Bench can consider referral to a state other than that requested by the
prosecution, and must apply a nexus test to determine the most appropriate referral
venue. 1902

conditions of detention

The conditions of detention in the receiving jurisdiction is a legitimate subject of

inquiry for the Referral Bench. However, the Referral Bench drew well-informed
conclusions that the conditions of detention for the accused would be adequate in
Bosnia.1903

The conditions of detention in a national jurisdiction, both pre and post-trial, is a

matter that touches upon the fairness of the State’s criminal justice system and are
properly considered by a referral bench.1904

death penalty

An accused may face the risk of death not only by the possible imposition of the
death penalty, but also by attacks on him by private individuals. Although this issue is not
prima facie one to be considered under the first prong of the test in Rule 11 bis(B), the
Bench will nevertheless consider it, since the security of an accused “touches upon the
fairness of the State’s criminal justice system”, and is therefore always a matter of
concern when determining whether a case should be referred pursuant to Rule 11 bis.1905

defence investigation

There is no need for the defence to conduct its own investigation or take
statements since in contrast to preparing a case for trial, the issue on a proposed transfer
is based upon the case made by the prosecution concerning the gravity of the offences
and responsibility of the accused as well as the suitability of the State to receive the
case. 1906

1901
Prosecutor v Ljubicic, No. IT-00-41-PT, Decision to Refer the Case to Bosnia and Herzegovina
Pursuant to Rule 11 bis (12 April 2006) at para. 28
1902
Prosecutor v Ljubicic, No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral
Under Rule 11 bis (4 July 2006) at para. 13
1903
Prosecutor v Stankovic, No. IT-96-23/2.AR11bis, Decision on Rule 11 bis Referral (1 September 2005)
at para. 34,37; Prosecutor v Jankovic, No. IT-96-23/2-AR11bis, Decision on Rule 11 bis Referral (15
November 2005) at para. 76; Prosecutor v Ljubicic, No. IT-00-41-AR11bis.1, Decision on Appeal Against
Decision on Referral Under Rule 11 bis (4 July 2006) at para. 43
1904
Prosecutor v Rasevic & Todovic, No. IT-97-25/1-AR11bis, Decision on Savo Todovic’s Appeals
Against Decisions on Referrals Pursuant to Rule 11 bis (4 September 2006) at para. 115
1905
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Referral of Case Pursuant to Rule 11 bis
(5 April 2007) at para. 64
1906
Prosecutor v Zelenovic, No. IT-96-23/2-PT, Decision on Defence Motion to Vacate Order for Further
Information in the Context of Prosecutor’s Motion Pursuant to Rule 11 bis (13 September 2006)

309
 discretion

If the prerequisites of Rule 11 bis are satisfied, the Referral Bench retains the
discretion whether or not to order the transfer of a case. 1907

ex post facto

Rule 6(D) which prohibits application of an amended rule to the disadvantage of

an accused does not apply to defeat the transfer of a case where Rule 11 bis was enacted
after the accused had surrendered.1908

factors

An evaluation of whether a case should be referred to a State involves a two step

process requiring consideration of (1) whether the gravity of the crimes charged and the
level of responsibility of the accused renders the case appropriate for referral because it
involves intermediate or lower-rank accused; and (2) whether the State to which the
prosecution seeks to refer the case is a competent national jurisdiction whose legal
system is compatible with the requirements of Rule 11 bis (B).1909

fair trial

The Referral Bench was reasonable in determining that the accused would receive
a fair trial in Bosnia.1910

The fact that the accused will not have the same level of public funding for his
defence as he has at the ICTY is not grounds for finding that he would not receive a fair
trial. 1911

Because the receiving State had adequate protections in place for an accused who
was not mentally fit to stand trial, referral was consonant with the rights of the
accused. 1912

1907
Prosecutor v Trbic, No. IT-05-88/1-PT, Decision on Referral of Case Under Rule 11 bis (27 April
2007) at para. 18
1908
Prosecutor v Ljubicic, No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral
Under Rule 11 bis (4 July 2006) at para. 9
1909
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision for Further Information in the Context of the
Prosecutor’s Motion Under Rule 11 bis (15 April 2005) at page 2
1910
Prosecutor v Stankovic, No. IT-96-23/2.AR11bis, Decision on Rule 11 bis Referral (1 September 2005)
at para. 30; Prosecutor v Jankovic, No. IT-96-23/2-AR11bis, Decision on Rule 11 bis Referral (15
November 2005) at para. 54; Prosecutor v Ljubicic, No. IT-00-41-AR11bis.1, Decision on Appeal Against
Decision on Referral Under Rule 11 bis (4 July 2006) at para. 49; Prosecutor v Rasevic & Todovic, No.
IT-97-25/1-AR11bis, Decision on Savo Todovic’s Appeals Against Decisions on Referrals Pursuant to Rule
11 bis (4 September 2006)
1911
Prosecutor v Ljubicic, No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral
Under Rule 11 bis (4 July 2006) at para. 25; Prosecutor v Rasevic & Todovic, No. IT-97-25/1-AR11bis,
Decision on Savo Todovic’s Appeals Against Decisions on Referrals Pursuant to Rule 11 bis (4 September
2006) at para. 56

310
 gravity of offence

When assessing the gravity of the charges, the Referral Bench is limited to the
offenses charged in the indictment.1913 The Referral Bench did not err in refusing to
examine extrinsic facts outside of the indictment.1914

The currently operative indictment, not that which is pending at the time of the
request for referral, should be used. 1915

The temporal length and geographical scope of the charged crimes are relevant to
the determination of the gravity of the offence. 1916

When determining the gravity of the charges, the referral bench may consider the
number of victims, the time frame and geographical area where they were committed, the
number of incidents, and the way in which the criminal conduct was realized. 1917

indictment

Referral bench erred in ordering referral without a determination of the

application to amend the indictment. 1918

Whether the events charged in the indictment have previously been sufficiently
tried before the Tribunal is irrelevant to the transfer decision. 1919

jurisdiction of Trial Chamber

The Trial Chamber has no jurisdiction to entertain motions after referral of a case
to a national jurisdiction by the Referral Bench. 1920

1912
Prosecutor v Kovacevic, No. IT-01/42/2-I, Decision on Referral of Case Pursuant to Rule 11 bis (17
November 2006) at para. 56; Prosecutor v Kovacevic, No. IT-01/42/2-AR11bis, Decision on Appeal
Against Decision on Referral Under Rule 11 bis (28 March 2007) at para. 21; Prosecutor v Trbic, No. IT-
05-88/1-PT, Decision on Referral of Case Under Rule 11 bis (27 April 2007) at para. 38
1913
Prosecutor v Jankovic, No. IT-96-23/2-AR11bis, Decision on Rule 11 bis Referral (15 November
2005) at para. 21,24; Prosecutor v Ljubicic, No. IT-00-41-PT, Decision to Refer the Case to Bosnia and
Herzegovina Pursuant to Rule 11 bis (12 April 2006) at para. 18
1914
Prosecutor v Lukic & Lukic, No. IT-98-32/1-AR11bis.1, Decision on Milan Lukic’s Appeal Regarding
Referral (11 July 2007) at para. 17
1915
Prosecutor v Lukic & Lukic, No. IT-98-32/1-AR11bis.1, Decision on Milan Lukic’s Appeal Regarding
Referral (11 July 2007) at para. 12
1916
Prosecutor v Rasevic & Todovic, No. IT-97-25/1-AR11bis, Decision on Savo Todovic’s Appeals
Against Decisions on Referrals Pursuant to Rule 11 bis (4 September 2006) at paras. 13-14
1917
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Referral of Case Pursuant to Rule 11 bis
(5 April 2007) at para. 27
1918
Prosecutor v Todovic No. IT-97-25-AR11bis, Decision on Rule 11bis Referral (23 February 2006)
1919
Prosecutor v Rasevic & Todovic, No. IT-97-25/1-AR11bis, Decision on Savo Todovic’s Appeals
Against Decisions on Referrals Pursuant to Rule 11 bis (4 September 2006) at para. 30
1920
Prosecutor v Trbic, No. IT-05-88/1-PT, Decision on Trial Chamber’s Competence to Entertain Motion
Filed After Entry into Force of Decision Under Rule 11 bis (1 June 2007)

311
 level of responsibility of the accused

The Referral Bench did not err in referring the case of an intermediate military
superior to Bosnia. The accused could not be characterized as a leader for purposes of
Rule 11 bis.1921

The Referral Bench erred in determining that paramilitary leader was not of
sufficient responsibility to warrant trial by the Tribunal. It is important that some
paramilitary leaders be prosecuted at the ICTY.1922

The level of responsibility relates both to the role of the accused in the offence
and his position in the hierarchy of the relevant organ. 1923

Chief of Staff of Bosnian Army was among the most senior leaders, even if he
was alleged to be only remotely connected to the crimes. Referral to Bosnia was
denied. 1924

To qualify for a level of responsibility not appropriate for transfer, the accused
must be alleged to have excercised such a significant degree of authority that it is
appropriate to refer to him as among the “most senior” rather than intermediate
leaders.1925

Assistant Warden of a prison was not a leader for purposes of Rule 11 bis.1926

Leaders of local paramilitary group were not leaders for purposes of Rule 11
1927
bis.

Even though the crime of genocide at Srebrenica was extremely grave, the role of
the accused justified referral of the case to Bosnia. 1928

1921
Prosecutor v Jankovic, No. IT-96-23/2-AR11bis, Decision on Rule 11 bis Referral (15 November
2005) at para. 20
1922
Prosecutor v Lukic & Lukic, No. IT-98-32/1-AR11bis.1, Decision on Milan Lukic’s Appeal Regarding
Referral (11 July 2007) at para. 22
1923
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Referral of Case Pursuant to Rule 11 bis
(5 April 2007) at para. 28
1924
Prosecutor v Delic, No. IT-04-83-PT, Decision on Motion for Referral of Case Pursuant to Rule 11 bis
(9 July 2007) at para 25
1925
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Referral of Case Pursuant to Rule 11 bis
(5 April 2007) at para. 28
1926
Prosecutor v Rasevic & Todovic, No. IT-97-25/1-AR11bis, Decision on Savo Todovic’s Appeals
Against Decisions on Referrals Pursuant to Rule 11 bis (4 September 2006) at para. 22
1927
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Referral of Case Pursuant to Rule 11 bis
(5 April 2007) at para. 30
1928
Prosecutor v Trbic, No. IT-05-88/1-PT, Decision on Referral of Case Under Rule 11 bis (27 April
2007)

312
 monitoring compliance

The Referral Bench had the authority to order the prosecution to monitor the
progress of a referred case and report back to the Bench, but did not have the authority to
direct the prosecution to engage outside bodies to do the monitoring. 1929

The referral bench, as part of its duties to ensure a fair trial, has the power to
recall the transfer of the accused if at any time it appears that his safety cannot be
guaranteed in the receiving State.1930

post-conviction proceedings

The Tribunal does not have appellate jurisdiction to review general claims
regarding the proceedings against a defendant who was convicted in a national
jurisdiction subsequent to a referral to that jurisdiction. Post conviction claims should be
submitted to the appellate courts of the receiving State.1931

A national jurisdiction may amend an indictment following referral if there is a

proper factual and legal basis for the amendment.1932

re-transfer

Since transfer to and from the Tribunal is not an extradition, a State cannot
impose conditions on the transfer of an accused or invoke the rule of specialty or non-
transfer concerning its nationals. United Nations Security Council resolutions
authorizing referrals override provisions of treaties or national law relating to
extradition.1933

A citizen of a state with a “no extradition” clause who voluntarily surrendered to

the Tribunal cannot invoke extradition provisions to object to the transfer of his case. 1934

1929
Prosecutor v Stankovic, No. IT-96-23/2.AR11bis, Decision on Rule 11 bis Referral (1 September 2005)
at para. 59; Prosecutor v Jankovic, No. IT-96-23/2-AR11bis, Decision on Rule 11 bis Referral (15
November 2005) at para. 60-61; Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint
Defence Appeal Against Decision on Referral Pursuant to Rule 11 bis (7 April 2006) at para. 95
1930
Prosecutor v Trbic, No. IT-05-88/1-PT, Decision on Referral of Case Under Rule 11 bis (27 April
2007) at para. 41
1931
Prosecutor v Jankovic, No. IT-96-23/2-PT, Decision on Gojko Jankovic’s Motion of 12 April 2010 (21
June 2010) at para. 10
1932
Prosecutor v Jankovic, No. IT-96-23/2-PT, Decision on Gojko Jankovic’s Motion of 12 April 2010 (21
June 2010) at para. 12
1933
Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against
Decision on Referral Pursuant to Rule 11 bis (7 April 2006) at para. 31; Prosecutor v Ljubicic, No. IT-00-
41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11 bis (4 July 2006) at para.
8
1934
Prosecutor v Ljubicic, No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral
Under Rule 11 bis (4 July 2006) at para. 8

313
 revocation of referral

Only the prosecutor and not the accused can move to revoke a referral. Although
the Chamber may do so proprio motu, it would only do so in the circumstances of a grave
violation left unchallenged by the prosecution, or untimely submitted. 1935

severance

There is nothing in the rules which prohibit transferring one accused in a multi-
accused case.1936

standard of review on appeal

The decision to make a referral pursuant to Rule 11 bis is a discretionary one and
will not be disturbed on appeal unless it can be shown that the Referral Bench
misdirected itself either as to a principle to be applied, or as to the law which is relevant
to the exercise of discretion, or gave weight to extraneous or irrelevant considerations,
failed to give sufficient weight to relevant considerations, made an error as to the facts, or
reached a conclusion that was so unreasonable and plainly unjust that the Appeals
Chamber is able to infer that the Referral Bench did not exercise its discretion
properly. 1937

standing to request transfer

The defence has no standing to make a request for referral pursuant to Rule 11bis.
The Trial Chamber is without authority to order a referral proprio motu. This is the
exclusive province of the referral bench.1938

Neither the accused or a State has standing to request a transfer. 1939

willing and able

Since the Tribunal is without authority to compel a national jurisdiction to receive

a case for prosecution, it must be shown that the national jurisdiction is willing and
adequately prepared to accept the referral of a case from the Tribunal. 1940

1935
Prosecutor v Jankovic, No. IT-96-23/2-PT, Decision on Gojko Jankovic’s Motion of 12 April 2010 (21
June 2010) at para. 14
1936
Prosecutor v Trbic, No. IT-05-88/1-PT, Decision on Referral of Case Under Rule 11 bis (27 April
2007) at para. 47
1937
Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against
Decision on Referral Pursuant to Rule 11 bis (7 April 2006) at para. 10; Prosecutor v Rasevic & Todovic,
No. IT-97-25/1-AR11bis, Decision on Savo Todovic’s Appeals Against Decisions on Referrals Pursuant to
Rule 11 bis (4 September 2006) at para. 8
1938
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Defence’s Motions for Separate Trials and
Severance of Counts (1 July 2005) at para. 6
1939
Prosecutor v Rasevic & Todovic, No. IT-97-25/1-AR11bis, Decision on Savo Todovic’s Appeals
Against Decisions on Referrals Pursuant to Rule 11 bis (4 September 2006) at para. 40

314
Rule 12—determinations of courts of any State

Subject to Article 10, paragraph 2, of the Statute, determinations of courts of any

State are not binding on the Tribunal.

Rule 13—non bis in idem

When the President receives reliable information to show that criminal proceedings
have been instituted against a person before a court of any State for a crime for
which that person has already been tried by the Tribunal, a Trial Chamber shall,
following mutatis mutandis the procedure provided in Rule 10, issue a reasoned
order requesting that court permanently to discontinue its proceedings. If that court
fails to do so, the President may report the matter to the Security Council.

Rule 14—solemn declaration

(A) Before taking up duties each Judge shall make the following solemn
declaration:
"I solemnly declare that I will perform my duties and exercise my powers as a
Judge of the 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 honourably, faithfully, impartially and
conscientiously".
(B) The declaration shall be signed by the Judge and witnessed by, or by a
representative of, the Secretary-General of the United Nations. The
declaration shall be kept in the records of the Tribunal.
(C) A Judge whose service continues without interruption after expiry of a
previous period of service shall not make a new declaration.

Rule 15—disqualification of judges

(A) A Judge may not sit on a trial or appeal in any case in which the Judge has a
personal interest or concerning which the Judge has or has had any association
which might affect his or her impartiality. The Judge shall in any such
circumstance withdraw, and the President shall assign another Judge to the
case.
(B) (i) Any party may apply to the Presiding Judge of a Chamber for the
disqualification and withdrawal of a Judge of that Chamber from a trial
or appeal upon the above grounds. The Presiding Judge shall confer
with the Judge in question and report to the President.
(ii) Following the report of the Presiding Judge, the President shall, if
necessary, appoint a panel of three Judges drawn from other Chambers

1940
Prosecutor v Stankovic, No. IT-96-23/2.AR11bis, Decision on Rule 11 bis Referral (1 September 2005)
at para. 40; Prosecutor v Jankovic, No. IT-96-23/2-AR11bis, Decision on Rule 11 bis Referral (15
November 2005) at para. 66

315
to report to him its decision on the merits of the application. If the
decision is to uphold the application, the President shall assign another
Judge to sit in the place of the Judge in question.
(iii) The decision of the panel of three Judges shall not be subject to
interlocutory appeal.
(iv) If the Judge in question is the President, the responsibility of the
President in accordance with this paragraph shall be assumed by the
Vice-President or, if he or she is not able to act in the application, by
the permanent Judge most senior in precedence who is able to act.
(C) The Judge of the Trial Chamber who reviews an indictment against an
accused, pursuant to Article 19 of the Statute and Rules 47 or 61, shall not be
disqualified for sitting as a member of the Trial Chamber for the trial of that
accused. Such a Judge shall also not be disqualified for sitting as a member of
the Appeals Chamber to hear any appeal in that case.
(D) (i) No Judge shall sit on any appeal in a case in which that Judge sat as a
member of the Trial Chamber.
(ii) No Judge shall sit on any State Request for Review pursuant to Rule 108 bis in a
matter in which that Judge sat as a member of the Trial Chamber whose decision is
to be reviewed.

administrative duties

The President or Vice President cannot be disqualified from their administrative

duties of appointing judges to the bench of the Appeals Chamber to hear a particular
case. 1941

There was no ground for disqualifying a judge from presiding over a trial because
he has become President of the Tribunal. 1942

appearance of bias

A Judge is not impartial if it is shown that actual bias exists. There is an

unacceptable appearance of bias if: (i) a Judge is a party to the case, or has a financial or
proprietary interest in the outcome of a case, or if the Judge's decision will lead to the
promotion of a cause in which he or she is involved, together with one of the parties.
Under these circumstances, a Judge's disqualification from the case is automatic; or (ii)
the circumstances would lead a reasonable observer, properly informed, to reasonably
apprehend bias. 1943

An unacceptable appearance of bias exists where: (i) a Judge is a party to the case,

1941
Prosecutor v Lukic & Lukic, No. IT-98-32/1-AR11bis.1, Decision on Motion to Disqualify President
and Vice-President from Appointing Appeals Chamber and to Disqualify President Judge and Judge Meron
from Sitting on Appeals Chamber (4 May 2007)
1942
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Motion for Disqualification (12 January
2009) at para. 14
1943
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 189

316
or has a financial or proprietary interest in the outcome of a case, or if the Judge’s
decision will lead to the promotion of a cause in which he or she is involved, together
with one of the parties; or (ii) the circumstances would lead a reasonable observer,
properly informed, to reasonably apprehend bias. 1944

A judge is disqualified if there is a showing of actual bias or an unacceptable

appearance of bias. An unacceptable appearance of bias exists if the circumstances
would lead a reasonable observer, properly informed, to reasonably apprehend bias. 1945

The apprehension of bias test reflects the maxim that “justice should not only be
done, but should manifestly and undoubtedly be seen to be done” and is founded on the
need to ensure public confidence in the judiciary. 1946

The reasonable observer must be an informed person, with knowledge of all of the
relevant circumstances, including the traditions of integrity and impartiality that form a
part of the background. The pertinent factor is whether the reaction of the hypothetical
fair-minded observer would be that the judge might not bring an impartial and
unprejudiced mind to the issues arising in the case. 1947

The reasonable observer test is not applied as a reasonable observer from the
region or a reasonable observer from a particular ethnic group.1948

The fact that the judge rendered several procedural decisions in favor of the
defence is irrelevant to the issue of apprehension of bias when convicting the accused on
the substantive charges.1949

A reasonable observer is a hypothetical fair-minded person, acting in good faith,

with sufficient knowledge of the relevant circumstances to make a reasonable judgement
of whether a Judge might not bring an impartial and unprejudiced mind to the issues
arising in the case.1950

Personal convictions and opinions of Judges are not in themselves a basis for
inferring a lack of impartiality. 1951

In the absence of evidence to the contrary, a reasonable observer properly

1944
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 43
1945
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 683; Prosecutor v
Milosevic, No. IT-01-54-T, Decision on Interlocutory Appeal of Kosta Bulatovic Contempt Proceedings
(29 August 2005) at para. 17; Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at
para 189
1946
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 43
1947
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Interlocutory Appeal of Kosta Bulatovic
Contempy Proceedings (29 August 2005) at para. 19; Prosecutor v Furundzija, No.IT-95-17/1-T,
Judgement (21 July 2000) at para. 190
1948
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 45
1949
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 47
1950
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 48
1951
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 54

317
informed of the circumstances would presume that the judge could disabuse his mind of
any irrelevant personal beliefs or predispositions. 1952

Disqualification of judge who wrote private letter criticizing recent acquittals and
attributing them to improper influence of States on the President was not required as it
would not lead a reasonable observer properly informed to conclude that he was
predisposed to convicting accused persons before the Tribunal. 1953

Judge’s letter indicating approval of convicting military commanders for crimes

committed with their knowledge and criticizing recent acquittals demonstrated
appearance of bias in favor of conviction even without specific reference to case he was
sitting on, and required his disqualification from case in which evidence had concluded
but judgement had not yet been rendered. 1954

Statement of Judge in capacity as President of the Tribunal of the need to arrest

and try the accused and that Tribunal was obligated to try persons most responsible for
crimes in former Yugoslavia were not indications of bias, but statements of the mandate
of the Tribunal. 1955

burden of proof

It is the burden of the party seeking disqualification of a Judge to demonstrate a

reasonable apprehension of bias.1956

contempt

There are situations in which the involvement of a Trial Chamber in both

directing the investigation and prosecution of a complaint of contempt and adjudicating
the contempt case could affect the impartiality of the Chamber or create the appearance
of bias. Such circumstances should be determined on a case-by-case basis.1957

Given the extent of involvement of the Trial Chamber in directing the course and
parameters of the case in the investigative stage, exceptional circumstances existed to
refer the matter to another Chamber for trial. 1958

1952
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 55
1953
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 56
1954
Prosecutor v Seselj, No. IT-03-67-T, Decision on Defence Motion for Disqualification of Judge
Harhoff…(28 August 2013) at paras. 12-13
1955
Prosecutor v Mladic, No. IT-09-92-T, Decision on Ratko Mladic’s Motion for Disqualification of
Judge Theodor Meron (26 October 2016) at para. 21
1956
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 33
1957
In the case against Florence Hartmann, No. IT-02-54-R77.5, Report of Decision on Defence Motion
for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer (27 February 2009)
at para. 38
1958
In the case against Florence Hartmann, No. IT-02-54-R77.5, Report of Decision on Defence Motion
for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer (27 February 2009)
at para. 53

318
 Fact that judges sat on Trial Chamber which convicted the accused of an earlier
contempt for disclosure of confidential information did not require their disqualification
from current case.1959

Fact that the accused wrote derogatory things about judges in his book did not
warrant disqualification where judges had not read the book and in any event a litigant
cannot create grounds for disqualification by writing derogatory things about a judge and
then seeking his or her disqualification. 1960

decisions as source of bias

While the possibility is not ruled out that decisions rendered by a judge or a
chamber could suffice to establish bias, this would be “truly extraordinary.” 1961

Issuing decision without waiting for reply was not evidence of bias against a
party.1962

extrajudicial activities as source of bias

A judge may be considered impartial even when he or she might be called upon to
consider acts of the State of which he is a national. 1963

Appearance of bias not shown as a result of judge’s representation of views of her

government in United Nations Commission on the Status of Women. 1964

Appearance of bias not shown by Judge’s casual acquiantence with UN Civil

Affairs Officer whose reports were admitted into evidence and whose credibility was in
issue.1965

Appearance of bias not shown by judge’s having questioned witness now

appearing for prosecution in connection with work for NGO ten years earlier.
Prosecution motion for disqualification denied. 1966

1959
Prosecutor v Seselj, No. IT-03-67-R77.3, Decision on Motion by Professor Vojislav Seselj for the
Disqualification of Judges O-Gon Kwon and Kevin Parker (22 June 2010) at para. 32
1960
Prosecutor v Seselj, No. IT-03-67-R77.3, Decision on Motion by Professor Vojislav Seselj for the
Disqualification of Judges O-Gon Kwon and Kevin Parker (19 November 2010) at paras. 31,33
1961
Prosecutor v Mladic, No. IT-09-92-T, Decision on Ratko Mladic’s Motion for Disqualification of
Judge Theodor Meron (26 October 2016) at para. 22
1962
Prosecutor v Mladic, No. IT-09-92-T, Decision on Ratko Mladic’s Motion for Disqualification of
Judge Theodor Meron (26 October 2016) at para. 22
1963
Prosecutor v Martic, No. IT-95-11-A, Report to the Vice President Pursuant to Rule 15(b)(ii)
Concerning Defence Motion to Disqualify Judge Schomburg from Sitting on Appeal (19 October 2007)
1964
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 199
1965
Prosecutor v Prlic et al, No. IT-04-74-T, Decision of the President on Jadranko Prlic’s Motion to
Disqualify Judge Arpad Prandler (4 October 2010)
1966
Prosecutor v Seselj, No. IT-03-67-T, Order on the Prosecution Motion for the Disqualification of
Judge Frederik Harhoff (14 January 2008)

319
 Appeal Chamber Judge’s support for creation of Bosnia War Crimes court as
President did not disqualify him from sitting on appeal from decision to transfer an
accused to that court.1967

Judge’s service as President of Bosnia Human Rights Chamber and participation

in decisions finding that Republika Srpska government was responsible for disappearance
of Muslims from Srebrenica and failure to account to their families, as well as public
statements in connection with that decision, did not amount to facts showing an
appearance of bias.1968

fair trial

There is a fundamental human right of an accused to be tried before an

independent and impartial tribunal is generally recognized as being an integral
component of the requirement that an accused should have a fair trial. 1969

multiple cases

Determinations of actual bias or unacceptable appearance of bias under Rule 15

should be made on a case-by-case basis. 1970

A judge’s disqualification in one case, does not automatically disqualify him from
other cases. It must be shown that those actions of the judge which warranted
disqualification in another case, impacted on his impartiality in the present case. 1971

The circumstances of the present case differed from the other case in which the
judge was disqualified because the judge’s letter allegedly evidencing bias was sent while
the other case was ongoing, but after the present case was completed. 1972

nullification of decisions

Where the disqualification was based upon the need to prevent the appearance of
bias in the adjudicative phase of the case, there was no error in failing to nullify the
decisions of the Chamber reached during the investigative phase of contempt
proceedings.1973

1967
Prosecutor v Lukic & Lukic, No. IT-98-32/1-AR11bis.1, Order on Second Motion to Disqualify
President and Vice President from Appointing Judges to Appeal Bench and to Disqualify President and
Judge Meron from Sitting on Appeal (11 May 2007)
1968
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motion to Disqualify Judge Picard (18 May
2009) at paras. 17-22; Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motion to Disqualify Judge
Picard and Report to the Vice President Pursuant to Rule 15(B)(ii) (22 July 2009)
1969
Prosecutor v Furundzija, No.IT-95-17/1-A, Judgement (21 July 2000) at para. 177; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 42
1970
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 32
1971
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 32
1972
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 33
1973
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para. 26

320
 The Trial Chamber has the discretion whether or not to nullify decisions of a Trial
Chamber whose members have been disqualified for the appearance of bias. In this case,
the Chamber determined that the earlier decisions could be maintained. 1974

Appearance of bias of one Judge did not taint the remaining Judges and they
would be allowed to continue to serve on the case. 1975

panel of three judges

Where the President’s decision against disqualification under Rule 15(B) is

challenged, it becomes necessary to appoint a panel of three judges to review the
matter.1976

There is no need to appoint a panel of three judges where the motion is patently
unmeritorious, or an applicant fails to substantiate his claim. 1977

The procedure set forth in Rule 15(B) is appropriate for determination of a motion
to recuse a Judge on the basis that he does not meet the qualifications under Article 13 of
the Statute.1978

The procedure set forth in Rule 15(B) is not appropriate for determination of a
motion challenging the term of office of the judges, as the matter is one of jurisdiction
and not of bias.1979

The procedure set forth in Rule 15(B) is appropriate for a determination to

disqualify one of the panel of judges assigned to adjudicate a disqualification motion. 1980

1974
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Decision on the Defence Motion
Pertaining to the Nullification of Trial Chamber’s Orders and Decisions (19 May 2009) at para. 9
1975
Prosecutor v Seselj, No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of
Proceedings (6 June 2014) at para. 57
1976
Prosecutor v Karadzic, No. IT-95-5/18-AR15, Decision on Appeal from Decision on Motion to
Disqualify Judge Picard (26 June 2009) at para. 8; Prosecutor v Stanisic & Zupljanin, No. 08-91-A,
Decision on Zupljanin Defence Request for Appointment of a Panel to Adjudicate the Request for
Disqualification of Judge Liu Daqun (7 February 2014)
1977
Prosecutor v Seselj, No. IT-03-67-AR77.3, Decision on Vojislav Seselj’s Motion to Disqualify Judge
Alphons Orie (7 October 2010) at para.28; Prosecutor v Mladic, No. IT-09-92-PT, Order Denying Defence
Motion Pursuant to Rule 15(B) Seeking Disqualification of Presiding Judge Alphons Orie and for a Stay of
Proceedings (15 May 2012) at p. 3; Prosecutor v Seselj, No. IT-03-67-R77.4-A, Decision on Vojislav
Seselj’s Motion to Disqualify Judges Arlette Ramoroson, Mehmet Guney, and Andresia Vaz (10 January
2013) at para. 21; Prosecutor v Mladic, No. IT-09-92-T, Decision on Ratko Mladic’s Motion for
Disqualification of Judge Theodor Meron (26 October 2016) at para. 23
1978
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Motion to Recuse Judge
Melville Baird (30 September 2009) at para. 11
1979
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Disqualification of Judges
Kwon, Morrison, Baird and Lattanzi (31 July 2014) at para. 8
1980
Prosecutor v Seselj, No. IT-03-67-AR77.3, Decision on Vojislav Seselj’s Motion to Disqualify Judge
Alphons Orie (7 October 2010) at para. 15

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 The panel of three Judges is under no obligation to consider the report of the
presiding judge to the President made under this Rule. 1981

presiding judge

A motion for disqualification of a judge must first be made to the Presiding Judge
of the Trial Chamber, not the Presiding Judge of the specific case. 1982

presumption of impartiality

There is a presumption of impartiality of a judge. 1983

There is a strong presumption of impartiality attached to a Judge which cannot be

easily rebutted.1984

There is a high threshold to overcome the presumption of impartiality. It is as

much a threat to the interests of an impartial and fair administration of justice for judges
to disqualify themselves on the basis of unfounded and unsupported allegations of
apparent bias, as the real appearance of bias itself. 1985

The reason for this high threshold is that, just as any real appearance of bias on
the part of a Judge undermines confidence in the administration of justice, it is equally
important that judicial officers “do not, by acceding too readily to suggestions of apparent
bias, encourage parties to believe that, by seeking the disqualification of a judge, they
will have their case tried by someone thought to be more likely to decide the case in their
favour”.1986

The reasonable apprehension of bias must be firmly established to rebut the

presumption of impartiality of a judge. 1987

1981
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration on Decision
for Disqualification, Requests for Clarification, and Motion on Behalf of Stanisic and Zupljanin (7 October
2013) at para. 19
1982
Prosecutor v Prlic et al, No. IT-04-74-T, Decision of the President on Jadranko Prlic’s Motion to
Disqualify Judge Arpad Prandler (16 September 2010) at para. 6
1983
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 700; Prosecutor v
Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para 182; Prosecutor v Galic, No. IT-98-29-A,
Judgement (30 November 2006) at para. 41
1984
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 44
1985
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motion to Disqualify Judge Picard and Report
to the Vice President Pursuant to Rule 15(B)(ii) (22 July 2009) at para. 17; Prosecutor v Seselj, No. IT-03-
67-R77.3, Decision on Motion by Professor Vojislav Seselj for the Disqualification of Judges O-Gon Kwon
and Kevin Parker (19 November 2010) at para. 17; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A,
Decision on Motion Requesting Recusal of Judge Liu from Adjudication of Motion to Vacate Trial
Judgement (24 February 2014) at para. 11
1986
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 44
1987
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Interlocutory Appeal of Kosta Bulatovic
Contempy Proceedinsgs (29 August 2005) at para. 19; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A,
Judgement (30 June 2016) at para. 44

322
 prior involvement with same or related matter

A judge’s previous participation in convictions or acquittals are not relevant when

considering bias or the appearance of bias. 1988

Judge’s service as Presiding Judge in trial in which findings were made that the
current accused was responsible for the same events for which he is being tried did not
disqualify Judge from serving on interlocutory appeal of decision unrelated to the merits
and involving only fair trial rights.1989

Fact that judges rejected accused’s appeal on the merits does not disqualify them
from hearing his request for review.1990

Appearance of bias not shown from judge’s administrative communications to

UN Security Council while serving as Tribunal President concerning extention of term of
ad litem judges—the issue presented in the instant appeal. 1991

Bias not shown where judges authorized contempt investigation of defence

counsel during trial, but found insufficient evidence of misconduct. 1992

Judge’s confirmation of indictment of another accused whose case was related to

that of this accused did not require his disqualification.1993

Judges’ conduct of trial and prior service on related cases did not provide a
reasonable apprehension of bias.1994

Fact that judges participated in earlier contempt case against the accused does not
warrant their disqualification. 1995

1988
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration on Decision
for Disqualification, Requests for Clarification, and Motion on Behalf of Stanisic and Zupljanin (7 October
2013) at para. 14
1989
Prosecutor v Mladic, No. IT-09-92-T, Decision on Ratko Mladic’s Motion for Disqualification of
Judge Carmel Agius (26 October 2016) at para. 23; Prosecutor v Mladic, No. IT-09-92-T, Decision on
Ratko Mladic’s Motion for Disqualification of Judge Fausto Pocar (26 October 2016) at para. 23
1990
Prosecutor v Blagojevic, No. IT-02-60-R, Decision on Motion for Disqualification (2 July 2008) at
para. 8
1991
Prosecutor v Krajisnik, No. IT-00-39-AR73.2, Order on Defence Motion that His Honour Judge Meron
Not Sit on an Appeal (1 September 2006)
1992
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Motion for Disqualification (12 January
2009) at para. 10
1993
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at paras. 42, 44
1994
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 184; Prosecutor v
Mladic, No. IT-09-91-T, Decision Concerning…Defence Motion…Seeking Disqualification of Presiding
Judge Alfons Orie (22 January 2014) at p. 4; Prosecutor v Mladic, No. IT-09-91-T, Decision
Concerning…Defence Motion…Seeking Disqualification of Judge Christoph Flugge (22 January 2014) at
p. 4; Prosecutor v Mladic, No. IT-09-91-T, Decision on Defence Motion Seeking to Disqualify the
Honourable Judge Alfons Orie and the Honourable Judge Christoph Flugge (26 August 2016), p. 4
1995
Prosecutor v Seselj, No. IT-03-67-R77.3, Decision on Motion by Professor Vojislav Seselj for the
Disqualification of Judges O-Gon Kwon and Kevin Parker (19 November 2010) at para. 29

323
 Fact that judge dissented from disqualification of same Judge on same issue in
another case did not overcome the presumption in favor of impartiality and therefore
disqualification of that judge was not warranted.1996

replacement judge

The provisions of Rule 15 bis should be applied mutatis mutandus to the decision
whether to replace a judge who has been disqualified for bias under Rule 15(A). 1997

When deciding whether to continue trial with a replacement judge, the Trial
Chamber should consult the accused. 1998

Replacement judge authorized where one member of the Trial Chamber was
disqualified for appearance of bias during deliberations. Replacement judge to review
the record, view videos of testimony where necessary, and recall witnesses if necessary.
Once the replacement judge certified his familiarity with the case, deliberations would
begin anew. 1999

review

The lack of an interlocutory appeal from a decision on disqualification of a Judge

pursuant to Rule 15(B) of the Rules does not violate an accused’s right to a fair trial. 2000

Upon a motion to disqualify a judge, pursuant to Rule 15(B), the presiding judge
of the Trial Chamber is required to submit the matter to the Bureau if the moving party
objects to his decision.2001

A party waives his right to raise the issue of disqualification of a judge by raising
it for the first time on appeal. 2002

staff

Legal officers assisting Judges at the Tribunal are not subject to the same

1996
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Motion Requesting Recusal (3
December 2013) at para. 23; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Motion
Requesting Recusal of Judge Liu from Adjudication of Motion to Vacate Trial Judgement (24 February
2014) at para. 16
1997
Prosecutor v Seselj, No. 03-67-T, Order Following Decision of the Panel to Disqualify Judge Fredrik
Harhoff (3 September 2013)
1998
Prosecutor v Seselj, No. 03-67-T, Order Assigning a Judge Pursuant to Rule 15 (31 October 2013)
1999
Prosecutor v Seselj, No. 03-67-T, Decision on Continuation of Proceedings (13 December 2013) at
paras. 53-55 aff’d Prosecutor v Seselj, No. IT-03-67-AR15bis, Decision on Appeal Against Decision on
Continuation of Proceedings (6 June 2014) at para. 44
2000
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 31
2001
Prosecutor v Galic, No. IT-98-29-AR54, Decision on Appeal from Refusal of Application for
Disqualification and Withdrawal of Judge (13 March 2003)
2002
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 174

324
standards of impartiality as the Judges of the Tribunal. 2003

Legal officers merely provide assistance to the Judges in legal research and
preparing draft decisions, judgements, opinions, and orders in conformity with the
instructions given to them by the Judges. 2004

However, in some cases, a prospective staff member’s statements or

activities may be so problematic as to either impugn the perceived impartiality of the
Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s
fundamental guarantees of fair trial. 2005

Rule 15 does not apply to disqualification of Chamber staff, nor does working
with staff who worked on related cases create the appearance of bias on the part of the
judges.2006

Argument that the staff may have reached conclusions on the evidence tendered in
the Karadzic case and may rely on these conclusions in assisting in the judgement
drafting of the related Mladic case falls short of demonstrating that Mladic’s fair trial
rights were not violated, given the limited role played by staff. 2007

A staff’s previous work on an overlapping case is, in and of itself, sufficient to

impugn the Judges’ impartiality or the appearance thereof.2008

stay of procedings

Stay of proceedings granted pending determination of motion for disqualification

of judge. 2009

Stay of decision to appoint replacement judge granted pending determination of

the consent of accused and if not, determination of remaining judges. 2010

2003
Prosecutor v Mladic, No. IT-09-92-AR73.6, Decision on Interlocutory Appeal from Decision on
Defence Motion for a Fair Trial and the Presumption of Innocence (27 February 2017) at para. 9
2004
Prosecutor v Mladic, No. IT-09-92-AR73.6, Decision on Interlocutory Appeal from Decision on
Defence Motion for a Fair Trial and the Presumption of Innocence (27 February 2017) at para. 9
2005
Prosecutor v Mladic, No. IT-09-92-AR73.6, Decision on Interlocutory Appeal from Decision on
Defence Motion for a Fair Trial and the Presumption of Innocence (27 February 2017) at para. 10
2006
In the case against Florence Hartmann, No. IT-02-54-R77.5, Report of Decision on Defence Motion
for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer (27 February 2009)
at para. 54; Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the
Presumption of Innocence, or, in the Alternative, a Mistrial (4 July 2016) at para. 26
2007
Prosecutor v Mladic, No. IT-09-92-AR73.6, Decision on Interlocutory Appeal from Decision on
Defence Motion for a Fair Trial and the Presumption of Innocence (27 February 2017) at para. 30
2008
Prosecutor v Mladic, No. IT-09-92-AR73.6, Decision on Interlocutory Appeal from Decision on
Defence Motion for a Fair Trial and the Presumption of Innocence (27 February 2017) at para. 39
2009
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Prlic Defence Motion to Stay the Proceedings
(20 September 2010)
2010
Prosecutor v Seselj, No. 03-67-T, Order Following Decision of the Panel to Disqualify Judge Fredrik
Harhoff (3 September 2013)

325
 waiver

Failure to raise issue of judicial bias at trial does not waive the issue on appeal. 2011

It would not be unduly burdensome for an accused to find out the qualifications of
the Presiding Judge of his trial. If he finds out the qualifications and does not raise the
matter, if he considered it relevant, before the Trial Chamber, either pre-trial or during
trial, the Appeals Chamber could find that the accused has waived his right to raise the
matter.2012

Rule 15 bis—absence of a judge

(A) If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of
authorised Tribunal business, unable to continue sitting in a part-heard case for a
period which is likely to be of short duration, and (ii) the remaining Judges of the
Chamber are satisfied that it is in the interests of justice to do so, those remaining
Judges of the Chamber may order that the hearing of the case continue in the
absence of that Judge for a period of not more than five working days.
(B) If (i) a Judge is, for illness or urgent personal reasons, or for reasons of
authorised Tribunal business, unable to continue sitting in a part-heard case for a
period which is likely to be of short duration, and (ii) the remaining Judges of the
Chamber are not satisfied that it is in the interests of justice to order that the
hearing of the case continue in the absence of that Judge, then (a) those remaining
Judges of the Chamber may nevertheless conduct those matters which they are
satisfied it is in the interests of justice that they be disposed of notwithstanding the
absence of that Judge, and (b) the remaining Judges of the Chamber may adjourn
the proceedings.
(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for
a period which is likely to be longer than of a short duration, the remaining
Judges of the Chamber shall report to the President who may assign another
Judge to the case and order either a rehearing or continuation of the
proceedings from that point. However, after the opening statements provided
for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85,
the continuation of the proceedings can only be ordered with the consent of all the
accused, except as provided for in paragraphs (D) and (G).
(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an
accused withholds his consent, the remaining Judges may nonetheless decide
whether or not to continue the proceedings before a Trial Chamber with a
substitute Judge if, taking all the circumstances into account, they determine
unanimously that doing so would serve the interests of justice. This decision is
subject to appeal directly to a full bench of the Appeals Chamber by either party. If
no appeal is taken from the decision to continue proceedings with a substitute Judge

2011
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 182
2012
Prosecutor v Furundzija, No.IT-95-17/1-A, Judgement (21 July 2000) at para. 174

326
or the Appeals Chamber affirms that decision, the President shall assign to the
existing bench a Judge, who, however, can join the bench only after he or she has
certified that he or she has familiarised himself or herself with the record of the
proceedings. Only one substitution under this paragraph may be made.
(E) For the purposes of paragraphs (C) and (D), due consideration shall be given
to paragraph 6 of Article 12 of the Statute.
(F) Appeals under paragraph (D) shall be filed within seven days of filing of the
impugned decision. When such decision is rendered orally, this time-limit shall run
from the date of the oral decision, unless (i) the party challenging the decision was
not present or represented when the decision was pronounced, in which case the
time-limit shall run from the date on which the challenging party is notified of the
oral decision; or (ii) the Trial Chamber has indicated that a written decision will
follow, in which case, the time-limit shall run from the filing of the written decision.
(G) If, in a trial where a reserve Judge has been assigned in accordance with Rule
15 ter, a Judge is unable to continue sitting and a substitute Judge is not assigned
pursuant to paragraphs (C) or (D), the trial shall continue with the reserve Judge
replacing the Judge who is unable to continue sitting.
(H) In case of illness or an unfilled vacancy or in any other similar circumstances,
the President may, if satisfied that it is in the interests of justice to do so, authorise a
Chamber to conduct routine matters, such as the delivery of decisions, in the
absence of one or more of its members.

Rule 15 ter—reserve judges

(A) The President may, in the interests of justice, assign a reserve Judge to sit with
a Trial Chamber in a trial.
(B) A reserve Judge shall be present at each stage of a trial to which that Judge has
been assigned.
(C) A reserve Judge may pose questions which are necessary to the reserve
Judge’s understanding of the trial.
(D) A reserve Judge shall be present, but shall not vote, during any deliberations in
a trial.

Rule 16—resignation

A Judge who decides to resign shall communicate the resignation in writing to the
President who shall transmit it to the Secretary-General of the United Nations.

Rule 17—precedence

(A) All Judges are equal in the exercise of their judicial functions, regardless of
dates of election, appointment, age or period of service.
(B) The Presiding Judges of the Trial Chambers shall take precedence according to
age after the President and the Vice-President.
(C) Permanent Judges elected or appointed on different dates shall take
precedence according to the dates of their election or appointment; Judges elected

327
or appointed on the same date shall take precedence according to age.
(D) In case of re-election, the total period of service as a Judge of the Tribunal
shall be taken into account.
(E) Ad litem Judges shall take precedence after the permanent Judges according to
the dates of their appointment. Ad litem Judges appointed on the same date shall
take precedence according to age.

Rule 18—election of the President

(A) The President shall be elected for a term of two years, or such shorter term as
shall coincide with the duration of his or her term of office as a Judge. The
President may be re-elected once.
(B) If the President ceases to be a member of the Tribunal or resigns from office
before the expiration of his or her term, the permanent Judges shall elect from
among their number a successor for the remainder of the term.
(C) The President shall be elected by a majority of the votes of the permanent
Judges composing the Tribunal. If no Judge obtains such a majority, the
second ballot shall be limited to the two Judges who obtained the greatest
number of votes on the first ballot. In the case of equality of votes on the second
ballot, the Judge who takes precedence in accordance with Rule 17 shall be declared
elected.

Rule 19—functions of the President

(A) The President shall preside at all plenary meetings of the Tribunal. The
President shall coordinate the work of the Chambers and supervise the activities
of the Registry as well as exercise all the other functions conferred on the
President by the Statute and the Rules.
(B) The President may from time to time, and in consultation with the Bureau, the
Registrar and the Prosecutor, issue Practice Directions, consistent with the
Statute and the Rules, addressing detailed aspects of the conduct of proceedings
before the Tribunal.

While the President has the authority to supervise the activities of the Registrar,
his decisions are not binding on Trial Chambers. 2013

The President has no authority to act on a motion claiming that the Trial Chamber
could not provide a fair trial because of disagreements among its Judges. 2014

Issues raising matters of the condition of detention must first be raised with the
Commanding Officer and then the Registrar before being brought before the President.

2013
Prosecutor v Karadzic, No. IT-95-5/18-AR73.7, Decision on Appeal from Decision on Further
Postponement of the Trial (31 March 2010) at para. 19
2014
Prosecutor v Prlic et al, No. IT-04-74-T, Decision of the President on Prlic Motion for the President to
Convene an Independent Panel of Judges or to Consult with the Bureau (16 December 2010)

328
However, as the Registrar responded to the issue in pleadings with the President, the
President would exceptionally entertain the issues. 2015

Word limits in practice direction apply to proceedings before the President. 2016

Rule 20—vice-president

(A) The Vice-President shall be elected for a term of two years, or such shorter
term as shall coincide with the duration of his or her term of office as a
permanent Judge. The Vice President may be re-elected once.
(B) The Vice-President may sit as a member of a Trial Chamber or of the Appeals
Chamber.
(C) Rules 18 (B) and (C) shall apply mutatis mutandis to the Vice-President.

Rule 21—functions of vice-president

Subject to Rule 22 (B), the Vice-President shall exercise the functions of the
President in case of the latter’s absence or inability to act.

Rule 22—replacements

(A) If neither the President nor the Vice-President remains in office or is able to
carry out the functions of the President, these shall be assumed by the senior
permanent Judge, determined in accordance with Rule 17 (C).
(B) If the President is unable to exercise the functions of Presiding Judge of the
Appeals Chamber, that Chamber shall elect a Presiding Judge from among its
number.
(C) The President and the Vice-President, if still permanent Judges, shall continue
to discharge their functions after the expiration of their terms until the election
of the President and the Vice-President has taken place.

Rule 23—the bureau

(A) The Bureau shall be composed of the President, the Vice-President and the
Presiding Judges of the Trial Chambers.
(B) The President shall consult the other members of the Bureau on all major
questions relating to the functioning of the Tribunal.
(C) The President may consult with the ad litem Judges on matters to be discussed
in the Bureau and may invite a representative of the ad litem Judges to attend
Bureau meetings
(D) A Judge may draw the attention of any member of the Bureau to issues that the
Judge considers ought to be discussed by the Bureau or submitted to a plenary

2015
Prosecutor v Mladic, No. IT-09-92-T, Decision on Three Defence Motions (13 November 2017) at
paras. 33-34
2016
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 30

329
meeting of the Tribunal.
(E) If any member of the Bureau is unable to carry out any of the functions of the
Bureau, these shall be assumed by the senior available Judge determined in
accordance with Rule 17.

Rule 23 bis—the coordination council

(A) The Coordination Council shall be composed of the President, the Prosecutor
and the Registrar.
(B) In order to achieve the mission of the Tribunal, as defined in the Statute, the
Coordination Council ensures, having due regard for the responsibilities and the
independence of any member, the coordination of the activities of the three
organs of the Tribunal.
(C) The Coordination Council shall meet once a month at the initiative of the
President. A member may at any time request that additional meetings be held.
The President shall chair the meetings.
(D) The Vice-President, the Deputy Prosecutor and the Deputy Registrar may
ex officio represent respectively, the President, the Prosecutor and the Registrar.

Rule 24—plenary meetings

Subject to the restrictions on the voting rights of ad litem Judges set out in
Article 13 quater of the Statute, the Judges shall meet in plenary to:
(i) elect the President and Vice-President;
(ii) adopt and amend the Rules;
(iii) adopt the Annual Report provided for in Article 34 of the Statute;
(iv) decide upon matters relating to the internal functioning of the Chambers
and the Tribunal;
(v) determine or supervise the conditions of detention;
(vi) exercise any other functions provided for in the Statute or in the Rules.

Rule 25—dates of plenary sessions

(A) The dates of the plenary sessions of the Tribunal shall normally be agreed upon
in July of each year for the following calendar year.
(B) Other plenary meetings shall be convened by the President if so requested by at
least nine permanent Judges, and may be convened whenever the exercise of the
President’s functions under the Statute or the Rules so requires.

Rule 26—quorum and vote

(A) The quorum for each plenary meeting of the Tribunal shall be ten permanent
Judges.
(B) Subject to Rules 6 (A), (B) and 18 (C), the decisions of the plenary meetings of
the Tribunal shall be taken by the majority of the Judges present. In the event

330
of an equality of votes, the President or the Judge acting in the place of the
President shall have a casting vote.

Rule 27—rotation

(A) Permanent Judges shall rotate on a regular basis between the Trial Chambers
and the Appeals Chamber. Rotation shall take into account the efficient
disposal of cases.
(B) The Judges shall take their places in their new Chamber as soon as the
President thinks it convenient, having regard to the disposal of part-heard
cases.
(C) The President may at any time temporarily assign a member of a Trial
Chamber or of the Appeals Chamber to another Chamber.

Rule 28—reviewing and duty judges

(A) On receipt of an indictment for review from the Prosecutor, the Registrar shall
consult with the President. The President shall refer the matter to the Bureau
which shall determine whether the indictment, prima facie, concentrates on
one or more of the most senior leaders suspected of being most responsible for
crimes within the jurisdiction of the Tribunal. If the Bureau determines that
the indictment meets this standard, the President shall designate one of the
permanent Trial Chamber Judges for the review under Rule 47. If the Bureau
determines that the indictment does not meet this standard, the President shall
return the indictment to the Registrar to communicate this finding to the
Prosecutor
(B) The President, in consultation with the Judges, shall maintain a roster
designating one Judge as duty Judge for the assigned period of seven days.
The duty Judge shall be available at all times, including out of normal Registry
hours, for dealing with applications pursuant to paragraphs (C) and (D) but
may refuse to deal with any application out of normal Registry hours if not
satisfied as to its urgency. The roster of duty Judges shall be published by the
Registrar.
(C) All applications in a case not otherwise assigned to a Chamber, other than the
review of indictments, shall be transmitted to the duty Judge. Where accused
are jointly indicted, a submission relating only to an accused who is not in the
custody of the Tribunal, other than an application to amend or withdraw part
of the indictment pursuant to Rule 50 or Rule 51, shall be transmitted to the
duty Judge, notwithstanding that the case has already been assigned to a
Chamber in respect of some or all of the co-accused of that accused. The duty
Judge shall act pursuant to Rule 54 in dealing with applications under this
Rule.
(D) Where a case has already been assigned to a Trial Chamber:
(i) where the application is made out of normal Registry hours, the
application shall be dealt with by the duty Judge if satisfied as to its
urgency;

331
(ii) where the application is made within the normal Registry hours and the
Trial Chamber is unavailable, it shall be dealt with by the duty Judge if
satisfied as to its urgency or that it is otherwise appropriate to do so in
the absence of the Trial Chamber.
In such case, the Registry shall serve a copy of all orders or decisions issued
by the duty Judge in connection therewith on the Chamber to which the matter
is assigned.
(E) During periods of court recess, regardless of the Chamber to which he or she is
assigned, in addition to applications made pursuant to paragraph (D) above,
the duty Judge may:
(i) take decisions on provisional detention pursuant to Rule 40 bis;
(ii) conduct the initial appearance of an accused pursuant to Rule 62.
The Registry shall serve a copy of all orders or decisions issued by the duty Judge in
connection therewith on the Chamber to which the matter is assigned.
(F) The provisions of this Rule shall apply mutatis mutandis to applications before
the Appeals Chamber.

A duty judge has the power to stay a decision on provisional release if she is
satisfied of its urgency and appropriateness. 2017

A duty judge has the power to rule on matters in the absence of the Trial
Chamber, even if the absence is during working hours. 2018

Duty Judge erred in determining that there was no urgency to motion for
provisional release filed on Friday afternoon to attend funeral of accused father on
Tuesday. The matter had to be dealt with on the weekend to give adequate time to
arrange transportation. 2019

Rule 29—deliberations

The deliberations of the Chambers shall take place in private and remain
secret.

Rule 30—appointment of the Registrar

The President shall seek the opinion of the permanent Judges on the candidates for
the post of Registrar, before consulting with the Secretary-General of the United
Nations pursuant to Article 17, paragraph 3, of the Statute.

2017
Prosecutor v Prlic et al, No. IT-04-74-AR65.1, Decision on Motions for Reconsideration,
Clarification, Request for Release, and Applications for Leave to Appeal (8 September 2004) at para. 8
2018
Prosecutor v Krajisnik & Plavsic, No. IT-00-39-AR73.2, Decision on Interlocutory Appeal by Momcilo
Krajisnik (26 February 2002) at para. 11
2019
Prosecutor v Krajisnik & Plavsic, No. IT-00-39-AR73.2, Decision on Interlocutory Appeal by Momcilo
Krajisnik (26 February 2002) at para. 17

332
Rule 31—deputy Registrar and staff

The Registrar, after consultation with the Bureau, shall make recommendations to
the Secretary-General of the United Nations for the appointment of the Deputy
Registrar and other Registry staff.

Rule 32—solemn declaration

(A) Before taking up duties, the Registrar shall make the following declaration
before the President:
"I solemnly declare that I will perform the duties incumbent upon me as
Registrar of the 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 in all
loyalty, discretion and good conscience and that I will faithfully observe
all the provisions of the Statute and the Rules of Procedure and Evidence
of the Tribunal".
(B) Before taking up duties, the Deputy Registrar shall make a similar
declaration before the President.
(C) Every staff member of the Registry shall make a similar declaration before
the Registrar.

Rule 33—functions of the Registrar

(A) The Registrar shall assist the Chambers, the plenary meetings of the Tribunal,
the Judges and the Prosecutor in the performance of their functions. Under the
authority of the President, the Registrar shall be responsible for the administration
and servicing of the Tribunal and shall serve as its channel of communication.
(B) The Registrar, in the execution of his or her functions, may make oral and
written representations to the President or Chambers on any issue arising in the
context of a specific case which affects or may affect the discharge of such functions,
including that of implementing judicial decisions, with notice to the parties where
necessary.
(C) The Registrar shall report regularly on his or her activities to the Judges
meeting in plenary and to the Prosecutor

The Appeals Chamber requests that the Registry make any Rule 33(B)
submissions in response to motions within ten days of the filing of the English translation
of such motions. 2020

2020
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 23; Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Praljak Motions for
Stay of Procedure and Assignment of Counsel in the Interests of Justice (4 April 2014) at para. 15

333
 Where a party seeks judicial review of a Registry determination, it is appropriate
to allow that party a right of reply to a Rule 33(B) submission, with the timeline for the
reply to be the same as the timeline for replies made to responses. 2021

The submission of the Registrar pursuant to this Rule has no word count
limitations, but a reply to the Registrar’s submission may include an equal number of
words. 2022

Registry submissions on issue where its decision is being appealed were proper
and necessary for Chamber to have complete picture on remuneration scheme. 2023

The Registry is allowed to appeal decisions by Trial Chambers where the decision
is directed at the Registry.2024

Rule 33 bis—functions of the deputy Registrar

(A) The Deputy Registrar shall exercise the functions of the Registrar in the event of
the latter’s absence from duty or inability to act or upon the Registrar’s delegation.
(B) The Deputy Registrar shall in particular:
(i) take all appropriate measures so that the decisions rendered by the Chambers
and Judges are executed, especially sentences and penalties;
(ii) make recommendations regarding the missions of the Registry which affect the
judicial activity of the Tribunal.

Rule 33 ter—function of the head of chambers

The Head of Chambers shall, under the authority of the President, administer the
Chambers Legal Support Section. In particular, in conjunction with the
administrative services of the Registry, the Head of Chambers shall oversee the
assignment of appropriate resources to the Chambers with a view to enabling them
to accomplish their mission.

Rule 34—victims and witnesses section

(A) There shall be set up under the authority of the Registrar a Victims and
Witnesses Section consisting of qualified staff to:
(i) recommend protective measures for victims and witnesses in accordance with
Article 22 of the Statute; and

2021
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 24
2022
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Krajisnik Request and on Prosecution Motion (12
September 2007) at para. 25
2023
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused Motion for Adequate Facilities and
Equality of Arms: Legal Associates (28 January 2009) at para. 26
2024
Prosecutor v Seselj, No. IT-03-67-R33B, Decision on the Registry Submissions Pursuant to Rule 33(B)
Regarding the Trial Chamber’s Decision on Financing of Defence Rendered on 8 April 2011 (17 May
2011) at para. 16

334
(ii) provide counselling and support for them, in particular in cases of rape and
sexual assault.
(B) Due consideration shall be given, in the appointment of staff, to the employment
of qualified women.

Rule 35—minutes

Except where a full record is made under Rule 81, the Registrar, or Registry staff
designated by the Registrar, shall take minutes of the plenary meetings of the
Tribunal and of the sittings of the Chambers, other than private deliberations.

Rule 36—record book

The Registrar shall keep a Record Book which shall list, subject to any Practice
Direction under Rule 19 or any order of a Judge or Chamber providing for the non-
disclosure of any document or information, all the particulars of each case brought
before the Tribunal. The Record Book shall be open to the public.

Rule 37—functions of the prosecutor

(A) The Prosecutor shall perform all the functions provided by the Statute in
accordance with the Rules and such Regulations, consistent with the Statute
and the Rules, as may be framed by the Prosecutor. Any alleged inconsistency in the
Regulations shall be brought to the attention of the Bureau to whose opinion the
Prosecutor shall defer.
(B) The Prosecutor’s powers and duties under the Rules may be exercised by staff
members of the Office of the Prosecutor authorised by the Prosecutor, or by any
person acting under the Prosecutor’s direction

Rule 38—deputy prosecutor

(A) The Prosecutor shall make recommendations to the Secretary-General of the

United Nations for the appointment of a Deputy Prosecutor.
(B) The Deputy Prosecutor shall exercise the functions of the Prosecutor in the
event of the latter’s absence from duty or inability to act or upon the
Prosecutor's express instructions.

Rule 39—conduct of investigations

In the conduct of an investigation, the Prosecutor may:

(i) summon and question suspects, victims and witnesses and record their
statements, collect evidence and conduct on-site investigations;
(ii) undertake such other matters as may appear necessary for completing
the investigation and the preparation and conduct of the prosecution at the trial,
including the taking of special measures to provide for the safety of potential
witnesses and informants;

335
(iii) seek, to that end, the assistance of any State authority concerned, as well as of
any relevant international body including the International Criminal Police
Organization (INTERPOL); and
(iv) request such orders as may be necessary from a Trial Chamber or a
Judge.

Rule 40—provisional measures

In case of urgency, the Prosecutor may request any State:

(i) to arrest a suspect or an accused provisionally;
(ii) to seise physical evidence;
(iii) to take all necessary measures to prevent the escape of a suspect or an accused,
injury to or intimidation of a victim or witness, or the destruction of evidence.
The State concerned shall comply forthwith, in accordance with Article 29 of the
Statute.

Rule 40 bis—transfer and provisional detention of suspects

(A) In the conduct of an investigation, the Prosecutor may transmit to the Registrar,
for an order by a Judge assigned pursuant to Rule 28, a request for the transfer to
and provisional detention of a suspect in the premises of the detention unit of the
Tribunal. This request shall indicate the grounds upon which the request is made
and, unless the Prosecutor wishes only to question the suspect, shall include a
provisional charge and a summary of the material upon which the Prosecutor relies.
(B) The Judge shall order the transfer and provisional detention of the suspect if
the following conditions are met:
(i) the Prosecutor has requested a State to arrest the suspect provisionally, in
accordance with Rule 40, or the suspect is otherwise detained by State authorities;
(ii) after hearing the Prosecutor, the Judge considers that there is a reliable and
consistent body of material which tends to show that the suspect may have
committed a crime over which the Tribunal has jurisdiction; and
(iii) the Judge considers provisional detention to be a necessary measure to prevent
the escape of the suspect, injury to or intimidation of a victim or witness or the
destruction of evidence, or to be otherwise necessary for the conduct of the
investigation.
(C) The order for the transfer and provisional detention of the suspect shall be
signed by the Judge and bear the seal of the Tribunal. The order shall set forth
the basis of the application made by the Prosecutor under paragraph (A), including
the provisional charge, and shall state the Judge’s grounds for making the order,
having regard to paragraph (B). The order shall also specify the initial time-limit for
the provisional detention of the suspect, and be accompanied by a statement of the
rights of a suspect, as specified in this Rule and in Rules 42 and 43.
(D) The provisional detention of a suspect shall be ordered for a period not
exceeding thirty days from the date of the transfer of the suspect to the seat of the
Tribunal. At the end of that period, at the Prosecutor’s request, the Judge who
made the order, or another permanent Judge of the same Trial Chamber, may

336
decide, subsequent to an inter partes hearing of the Prosecutor and the suspect
assisted by counsel, to extend the detention for a period not exceeding thirty days, if
warranted by the needs of the investigation. At the end of that extension, at the
Prosecutor’s request, the Judge who made the order, or another permanent Judge
of the same Trial Chamber, may decide, subsequent to an inter partes hearing of the
Prosecutor and the suspect assisted by counsel, to extend the detention for a further
period not exceeding thirty days, if warranted by special circumstances. The total
period of detention shall in no case exceed ninety days, at the end of which, in the
event the indictment has not been confirmed and an arrest warrant signed, the
suspect shall be released or, if appropriate, be delivered to the authorities of the
requested State.
(E) The provisions in Rules 55 (B) to 59 bis shall apply mutatis mutandis to the
execution of the transfer order and the provisional detention order relative to a
suspect.
(F) After being transferred to the seat of the Tribunal, the suspect, assisted by
counsel, shall be brought, without delay, before the Judge who made the order, or
another permanent Judge of the same Trial Chamber, who shall ensure that the
rights of the suspect are respected.
(G) During detention, the Prosecutor and the suspect or the suspect’s counsel may
submit to the Trial Chamber of which the Judge who made the order is a member,
all applications relative to the propriety of provisional detention or tothe suspect’s
release.
(H) Without prejudice to paragraph (D), the Rules relating to the detention on
remand of accused persons shall apply mutatis mutandis to the provisional
detention of persons under this Rule.

Rule 41—retention of information

Subject to Rule 81, the Prosecutor shall be responsible for the retention, storage and
security of information and physical material obtained in the course of the
Prosecutor’s investigations until formally tendered into evidence.

Rule 42—rights of suspects

The prosecution was not obliged to advise a suspect of the crimes of which he
was suspected or of his right to stop the interview at any time. 2025

Rule 43—rights of suspects during investigation

(A) A suspect who is to be questioned by the Prosecutor shall have the following
rights, of which the Prosecutor shall inform the suspect prior to questioning, in
a language the suspect understands:
(i) the right to be assisted by counsel of the suspect’s choice or to be assigned legal
assistance without payment if the suspect does not have sufficient means to pay for

2025
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on the Admissibility of the Borovcanin
Interviewand the Amendment of the Rule 65 ter Exhibit List (25 October 2007) at para. 35

337
it;
(ii) the right to have the free assistance of an interpreter if the suspect cannot
understand or speak the language to be used for questioning;and
(iii) the right to remain silent, and to be cautioned that any statement the suspect
makes shall be recorded and may be used in evidence.
(B) Questioning of a suspect shall not proceed without the presence of counsel
unless the suspect has voluntarily waived the right to counsel. In case of waiver, if
the suspect subsequently expresses a desire to have counsel, questioning shall
thereupon cease, and shall only resume when the suspect has obtained or has been
assigned counsel.

Failure to clarify on the record the discussions held during a break in the
recording of the interview of the accused raised sufficient doubts about whether the
accused relied upon an inducement discussed during the break that the Trial Chamber
should have held a hearing on the voluntariness of the statement before admitting it. 2026

The appropriate test to determine whether a suspect has in fact voluntarily waived
the right to be assisted during questioning by counsel of his or her choice is objective, not
subjective. Provided the suspect manifests all the indicia of understanding and voluntarily
waiving his right, the waiver will be valid. The suspect’s cultural background and
personal knowledge of the jurisdiction is irrelevant.2027

The prosecution or another competent authority who is obliged to inform a

suspect or accused about his right to counsel must do so in an unambiguous way and in a
a language which the accused or suspect understands.2028

Accused failed to establish that his counsel rendered ineffective assistance to him
such as to justify exclusion of his post-arrest statement.2029

A suspect should be informed of the nature of the investigation prior to an

interview in order to make an informed decision about the waiver of his rights. In this
case, he was so informed. 2030

Failure of interview of the accused conducted by Serbian authorities to comply

with requirements of interviews of suspects of ICTY did not preclude the use of the
statement for impeachment of the accused’s testimony, as the Serbian authorities were
not acting under the direction of the ICTY.2031

2026
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 45
2027
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 549 – 554.
2028
Prosecutor v Popovic et al, No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting
Material Relating to Borovcanin’s Questioning (14 December 2007) at para. 34
2029
Prosecutor v Popovic et al, No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting
Material Relating to Borovcanin’s Questioning (14 December 2007) at para 35
2030
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4A, Judgement (23 July 2009) at para. 37
2031
Prosecutor v Mrskic et al, No. IT-95-13/1-T, Decision Concerning the Use of Statements Given by the
Accused (9 October 2006)

338
Rule 43—recording of questioning

Whenever the Prosecutor questions a suspect, the questioning shall be

audiorecorded or video-recorded, in accordance with the following procedure:
(i) the suspect shall be informed in a language the suspect understands that the
questioning is being audio-recorded or video-recorded;
(ii) in the event of a break in the course of the questioning, the fact and the time of
the break shall be recorded before audio-recording or videorecording ends and the
time of resumption of the questioning shall also be recorded;
(iii) at the conclusion of the questioning the suspect shall be offered the opportunity
to clarify anything the suspect has said, and to add anything the suspect may wish,
and the time of conclusion shall be recorded;
(iv) a copy of the recorded tape will be supplied to the suspect or, if multiple
recording apparatus was used, one of the original recorded tapes;
(v) after a copy has been made, if necessary, of the recorded tape, the original
recorded tape or one of the original tapes shall be sealed in the presence of the
suspect under the signature of the Prosecutor and the suspect; and
(vi) the tape shall be transcribed if the suspect becomes an accused.

Statement of accused which was not video recorded would not be admitted. 2032

Rules 42 and 43 do not apply in situations where questioning of a suspect by

national authorities is not for the purpose of an investigation by the ICTY Prosecutor. 2033

Proceedings by commission investigating same events as ICTY were independent

of ICTY and statements which did not comply with Rules 42 and 43 were not per se
inadmissible.2034

Rule 44—appointment, qualifications and duties of counsel

(A) Counsel engaged by a suspect or an accused shall file a power of attorney with
the Registrar at the earliest opportunity. Subject to any determination by a
Chamber pursuant to Rule 46 or 77, a counsel shall be considered qualified to
represent a suspect or accused if the counsel satisfies the Registrar that he or she:
(i) is admitted to the practice of law in a State, or is a university professor
of law;
(ii) has written and oral proficiency in one of the two working languages of the
Tribunal, unless the Registrar deems it in the interests of justice to waive this
requirement, as provided for in paragraph (B);

2032
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Exclusion of Statement of the Accused
(8 July 2005)
2033
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Prosecution Motion for Admission
into Evidence of Documents…(7 December 2007) at para. 15
2034
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Prosecution Motion for Admission
into Evidence of Documents…(7 December 2007) at para. 33

339
(iii) is a member in good standing of an association of counsel practicing at the
Tribunal recognised by the Registrar;
(iv) has not been found guilty or otherwise disciplined in relevant disciplinary
proceedings against him in a national or international forum, including proceedings
pursuant to the Code of Professional Conduct for Defence Counsel Appearing
Before the International Tribunal, unless the Registrar deems that, in the
circumstances, it would be disproportionate to exclude such counsel;
(v) has not been found guilty in relevant criminal proceedings;
(vi) has not engaged in conduct whether in pursuit of his or her profession or
otherwise which is dishonest or otherwise discreditable to a counsel, prejudicial to
the administration of justice, or likely to diminish public confidence in the
International Tribunal or the administration of justice, or otherwise bring the
International Tribunal into disrepute; and
(vii) has not provided false or misleading information in relation to his or her
qualifications and fitness to practice or failed to provide relevant information.
(B) At the request of the suspect or accused and where the interests of justice so
demand, the Registrar may admit a counsel who does not speak either of the two
working languages of the Tribunal but who speaks the native language of the
suspect or accused. The Registrar may impose such conditions as deemed
appropriate, including the requirement that the counsel or accused undertake to
meet all translations and interpretation costs not usually met by the Tribunal, and
counsel undertakes not to request any extensions of time as a result of the fact that
he does not speak one of the working languages. A suspect or accused may seek the
President’s review of the Registrar’s decision.
(C) In the performance of their duties counsel shall be subject to the relevant
provisions of the Statute, the Rules, the Rules of Detention and any other rules or
regulations adopted by the Tribunal, the Host Country Agreement, the Code of
Professional Conduct for Defence Counsel Appearing Before the International
Tribunal and the codes of practice and ethics governing their profession and, if
applicable, the Directive on the Assignment of Defence Counsel adopted by the
Registrar and approved by the permanent Judges.
(D) An Advisory Panel shall be established to assist the President and the
Registrar in all matters relating to defence counsel. The Panel members shall
be selected from representatives of professional associations and from
counsel who have appeared before the Tribunal. They shall have recognised
professional legal experience. The composition of the Advisory Panel shall
be representative of the different legal systems. A Directive of the Registrar
shall set out the structure and areas of responsibility of the Advisory Panel.

Registrar’s decision to strike from list of counsel a lawyer convicted of contempt

was upheld. 2035

A defence counsel’s duties do not cease until the judgement is rendered. 2036

2035
Prosecutor v Tadic, No. IT-94-1-A, Decision on Milan Vujin’s Request for the Review of the
Registrar’s Decision Pursuant to Article 14(D) of the Directive on Assignment of Defence Counsel (11
September 2001)

340
Rule 45—assignment of counsel

(A) Whenever the interests of justice so demand, counsel shall be assigned to

suspects or accused who lack the means to remunerate such counsel. Such
assignments shall be treated in accordance with the procedure established in a
Directive set out by the Registrar and approved by the permanent Judges.
(B) For this purpose, the Registrar shall maintain a list of counsel who: (i) fulfil all
the requirements of Rule 44, although the language requirement of Rule 44 (A)(ii)
may be waived by the Registrar as provided for in the Directive;
(ii) possess established competence in criminal law and/or international criminal
law/international humanitarian law/international human rights law;
(iii) possess at least seven years of relevant experience, whether as a judge,
prosecutor, attorney or in some other capacity, in criminal proceedings; and
(iv) have indicated their availability and willingness to be assigned by the Tribunal
to any person detained under the authority of the Tribunal lacking the means to
remunerate counsel, under the terms set out in the Directive.
(C) The Registrar shall maintain a separate list of counsel who, in addition to
fulfilling the qualification requirements set out in paragraph (B), are readily
available as “duty counsel” for assignment to an accused for the purposes of the
initial appearance, in accordance with Rule 62.
(D) The Registrar shall, in consultation with the permanent Judges, establish the
criteria for the payment of fees to assigned counsel.
(E) Where a person is assigned counsel and is subsequently found not to be
lacking the means to remunerate counsel, the Chamber may, on application
by the Registrar, make an order of contribution to recover the cost of
providing counsel.
(F) A suspect or an accused electing to conduct his or her own defence shall so
notify the Registrar in writing at the first opportunity.

appeal

Review of a decision concerning assignment of counsel by the Registrar lies with

the President. A Chamber has no authority to review such a decision except where
necessary to ensure that its proceedings are fair. 2037

The standard of review by the President of the Registrar’s decision requires a

showing that the Registrar has (1) failed to comply with the Directive; (2) failed to
observe any basic rules of natural justice or to act with procedural fairness towards the
person affected by the decision; (3) taken into account irrelevant material or failed to take

2036
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 36
2037
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Motion Seeking Review of the Decisions of the
Registry in Relation to Assignment of Counsel (29 January 2007); Decision on Request for Review of the
Decision of the Registry in Relation to Assignment of Counsel (1 February 2007) at para. 10

341
into account relevant material; or (4) reached a conclusion which no sensible person
could have reached.2038

choice of counsel

An accused who lacks means to retain his own counsel does not have a right to
choice of counsel. While the Registrar normally takes account of the accused’s
preferences, it is within the Registrar’s discretion to override those preferences in the
interests of justice.2039

co-counsel

Although there is no absolute right to counsel of one’s choice, it is always

desirable for the fairness of the trial to consider the preferences of the accused for co-
counsel, especially when they coincide with lead counsel’s preferences. 2040

Lack of proficiency in English or French by co-counsel would not impede the

efficiency of the proceedings.2041

In a complex case of seven accused, a co-counsel for each accused is an absolute

necessity. 2042

Registry decision to deny co-counsel who did not speak working languages of the
Tribunal overturned by Trial Chamber.2043, but upheld by the Trial Chamber in a different
case. 2044

cooperation

An accused is obligated to cooperate with his assigned counsel and cannot base a
claim for a new trial on breakdown of communication with counsel when he unilaterally
refused to cooperate with his counsel. 2045

2038
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Request for Review of the Decision of the
Registry in Relation to Assignment of Counsel (1 February 2007) at para. 11
2039
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 17
2040
Prosecutor v Popovic, No. IT-05-88-T, Decision on the Third Request for Review of the Registry
Decision on the Assignment of Co-Counsel for Radivoje Miletic (20 February 2007) at p. 4; Prosecutor v
Stanisic, No. IT-04-79-PT, Decision on Review of Registrar’s Decision Re: Co-Counsel for Mico Stanisic
(24 April 2007) at para. 12
2041
Prosecutor v Popovic, No. IT-05-88-T, Decision on the Third Request for Review of the Registry
Decision on the Assignment of Co-Counsel for Radivoje Miletic (20 February 2007) at p. 4
2042
Prosecutor v Popovic, No. IT-05-88-T, Decision on the Third Request for Review of the Registry
Decision on the Assignment of Co-Counsel for Radivoje Miletic (20 February 2007) at p. 5
2043
Prosecutor v Popovic, No. IT-05-88-T, Decision on the Third Request for Review of the Registry
Decision on the Assignment of Co-Counsel for Radivoje Miletic (20 February 2007)
2044
Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Review of Registrar’s Decision Re: Co-Counsel
for Mico Stanisic (24 April 2007)
2045
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 21

342
 effective assistance

An assigned counsel is presumed to be competent unless rebutted by evidence to

the contrary. 2046

An appellant must demonstrate gross incompetence on the part of assigned

counsel, among other things.2047

As a general principle, an accused’s right to a fair trial is infringed when counsel

admittedly does not understand the case of his client and fails to prepare a proper defence
strategy. 2048

indigence

Counsel would be assigned to accused in the interest of justice despite his not
satisfying Registrar of his indigence given the fact that trial of case was complex, would
last more than two years, and the interests of the co-accused must be considered. 2049

Where the accused had the ability to pay counsel but chose not to do so, he would
be required to represent himself. 2050

Only Chamber and not the Registrar could order an accused to repay the costs of
his defence to the Tribunal under Rule 45(E).2051

Order requiring contribution of accused to repay legal aid issued and Registrar
ordered to take all steps to enforce it where accused found to have means to fund his own
defence. 2052

legal associates

The Registry has the right to require legal associates of an accused who is
representing himself to meet the requirements of counsel under Rule 44 before allowing

2046
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 23
2047
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 23
2048
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Momcilio Krajisnik’s Motion to Present
Additional Evidence (20 August 2008) at para. 19
2049
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Assignment of Defence Counsel (15 February
2006)
2050
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-PT, Decision on the Motions on Fair Trial and
Extensions of Time (19 May 2006)
2051
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 39
2052
Prosecutor v Prlic et al, No. IT-04-74-A, Order on the Registrar’s Application Pursuant to Rule 45(E)
of the Rules (13 May 2014) at para. 22

343
them privileges such as UNDU visits with the accused and access to areas of the
Tribunal. 2053

Rule 45 bis—detained persons

Rules 44 and 45 shall apply to any person detained under the authority of the
Tribunal.

Rule 45 ter—assignment of counsel in the interests of justice

The Trial Chamber may, if it decides that it is in the interests of justice, instruct the
Registrar to assign a counsel to represent the interests of the accused.

Rule 45 ter was enacted to codify, not modify, existing jurisprudence on

restricting the right to self-representation. Therefore a single act of contempt is not
sufficient to revoke self-representation. 2054

Rule 45 ter does not justify assignment of counsel where accused was found to
have funds with which to retain counsel and had not requested to represent himself. 2055

Appeals Chamber ordered assignment of counsel to appellant who had been found
able to remunerate counsel where self-representation would result in delays due to need
to translate voluminous documents and delays would violate right of co-appellants to
expeditious resolution of appeal. 2056

Rule 46—misconduct of counsel

(A) If a Judge or a Chamber finds that the conduct of a counsel is offensive, abusive
or otherwise obstructs the proper conduct of the proceedings, or that a counsel is
negligent or otherwise fails to meet the standard of professional competence and
ethics in the performance of his duties, the Chamber may, after giving counsel due
warning:
(i) refuse audience to that counsel; and/or
(ii) determine, after giving counsel an opportunity to be heard, that counsel is no
longer eligible to represent a suspect or an accused before the Tribunal pursuant to
Rule 44 and 45.
(B) A Judge or a Chamber may also, with the approval of the President,
communicate any misconduct of counsel to the professional body regulating
the conduct of counsel in the counsel’s State of admission or, if a university

2053
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Appeal Against Decision of the Registry of 20
January 2006 (7 April 2006) at para. 5
2054
Prosecutor v Seselj, No. IT-03-67-T, Consolidated Decision on Assignment of Counsei, Adjournment,
and Prosecution Motion for Additional Time (24 November 2009) at para. 63
2055
Prosecutor v Krajisnik & Plavsic, No. IT-00-39-AR73.2, Decision on Interlocutory Appeal by Momcilo
Krajisnik (26 February 2002) at para. 19
2056
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Praljak’s Request for Stay of Proceedings (27
June 2014) at para. 16

344
professor of law and not otherwise admitted to the profession, to the governing body
of that counsel’s University.
(C) Under the supervision of the President, the Registrar shall publish and oversee
the implementation of a Code of Professional Conduct for defence counsel.

defence counsel

Inadvertent publication of confidential documents on accused’s web site for the

second time warranted a warning to defence counsel, who had a duty not only to refrain
from disclosure of confidential documents, but to protect them from disclosure. 2057

Simultaneous filing of motions before a Trial Chamber and the President

constituted an abuse of process and defence counsel was warned to refrain from that
practice in the future.2058

prosecution

Rule 46 does not strictly apply to prosecution counsel, as well as defence counsel,
but the Trial Chamber has inherent power to sanction prosecution counsel and can use
Rule 46 as a guideline in doing so.2059

Warning issued to prosecution under Rule 54 for walking out of court without
explanation or apology.2060

Warning issued to prosecution for not disclosing existence of statements required

to be disclosed to the accused until after the trial had concluded. 2061

Prosecutor’s comments to a journalist concerning the guilt of the accused and

threats to witnesses did not rise to the level of affecting the fairness or expeditiousness of
the trial and did not warrant an evidentiary hearing or the imposition of sanctions. 2062

Rule 47—submission of indictment by prosecutor

(A) An indictment, submitted in accordance with the following procedure, shall

2057
Prosecutor v Prlic et al, No. IT-04-74-T, Decision Warning Counsel for the Accused Praljak and the
Accused Praljak (12 November 2010)
2058
Prosecutor v Mladic, No. IT-09-92-T, Decision on Three Defence Motions (13 November 2017) at
para. 29
2059
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Idriz Balaj’s Request for Evidentiary
Hearing Regarding Interview of Carla del Ponte (28 January 2008) at para. 5
2060
Prosecutor v Prlic et al, No. IT-04-74-T, Order Issuing a Warning to the Prosecution (5 February
2009)
2061
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution’s Request for Non-Disclosure of Three
Witness Statements to the Accused (18 October 2012)
2062
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Idriz Balaj’s Request for Evidentiary
Hearing Regarding Interview of Carla del Ponte (28 January 2008) at paras. 8-9

345
be reviewed by a Judge designated in accordance with Rule 28 for this purpose.
(B) The Prosecutor, if satisfied in the course of an investigation that there is
sufficient evidence to provide reasonable grounds for believing that a suspect
has committed a crime within the jurisdiction of the Tribunal, shall prepare and
forward to the Registrar an indictment for confirmation by a Judge, together with
supporting material.
(C) The indictment shall set forth the name and particulars of the suspect, and a
concise statement of the facts of the case and of the crime with which the suspect is
charged.
(D) The Registrar shall forward the indictment and accompanying material to the
designated Judge, who will inform the Prosecutor of the date fixed for review of the
indictment.
(E) The reviewing Judge shall examine each of the counts in the indictment, and any
supporting materials the Prosecutor may provide, to determine, applying the
standard set forth in Article 19, paragraph 1, of the Statute, whether a case exists
against the suspect.
(F) The reviewing Judge may:
(i) request the Prosecutor to present additional material in support of any
or all counts;
(ii) confirm each count;
(iii) dismiss each count; or
(iv) adjourn the review so as to give the Prosecutor the opportunity to
modify the indictment.
(G) The indictment as confirmed by the Judge shall be retained by the Registrar,
who shall prepare certified copies bearing the seal of the Tribunal. If the accused
does not understand either of the official languages of the Tribunal and if the
language understood is known to the Registrar, a translation of the indictment in
that language shall also be prepared, and shall be included as part of each certified
copy of the indictment.
(H) Upon confirmation of any or all counts in the indictment,
(i) the Judge may issue an arrest warrant, in accordance with
Rule 55 (A), and any orders as provided in Article 19 of the Statute,
and
(ii) the suspect shall have the status of an accused.
(I) The dismissal of a count in an indictment shall not preclude the Prosecutor
from subsequently bringing an amended indictment based on the acts
underlying that count if supported by additional evidence.

Rule 48—joinder of accused

Persons accused of the same or different crimes committed in the course of the same
transaction may be jointly charged and tried.

completion strategy

346
 It would be improper for a Trial Chamber to consider the completion strategy in
its decision on joinder of cases. 2063

discretion

The Trial Chamber’s decision to order joinder is one in which it has considerable
discretion. 2064

factors

The factors to be considered include (1) protection of the rights of the accused; (2)
avoidance of any conflict of interest which may prejudice an accused and (3) protection
of the interests of justice. 2065

The factors to be considered concerning joinder of cases include: (1) avoiding the
duplication of evidence; (2) promoting judicial economy; (3) minimizing hardship to
witnesses; (4) ensuring the consistency of verdicts; (5) avoiding conflicts of interest that
might cause serious prejudice to an accused; and (6) protecting the interests of justice. 2066

Where there was only one common witnesses to three cases sought to be joined,
and joinder would delay the commencement of trial for an accused who had been in
custody for 3 years, the interests of justice required that joinder be denied. 2067

Where the majority of the evidence offered at a joint trial would be admissible
against the accused at his separate trial, and in light of the ability of professional judges
to disregard evidence at a joint trial not admissible against a particular accused, joinder
was not an abuse of discretion in a case where the accused was not charged with all the
crimes of the co-accused.2068

2063
Prosecutor v Popovic et al, No. IT-02-57-PT, Decision on Motion for Joinder (21 September 2005),
Separate Opinion of Judge Robinson
2064
Prosecutor v Popovic et al, No. IT-05-86-73.1, Decision on Vinko Pandurevic’s Interlocutory Appeal
Against the Trial Chamber Decision on Joinder of the Accused (24 January 2006) at para. 5
2065
Prosecutor v Popovic et al, No. IT-05-86-73.1, Decision on Vinko Pandurevic’s Interlocutory Appeal
Against the Trial Chamber Decision on Joinder of the Accused (24 January 2006); Prosecutor v Gotovina
et al, No. IT-03-73-AR73.1, Decision on .Interlocutory Appeals Against the Trial Chamber’s Decision to
Amend the Indictment and for Joinder (25 October 2006) at para. 17
2066
Prosecutor v Popovic et al, No. IT-02-57-PT, Decision on Motion for Joinder (21 September 2005) at
para. 8; Prosecutor v Martic, No. IT-95-11-PT, Decision on Prosecution Motion for Joinder (10 November
2005) at para. 35; Prosecutor v Seselj et al, No. IT-95-14-R77, Decision on Motion for Joinder (31 May
2006) at paras. 35, 38-39; Prosecutor v Gotovina et al, No. IT-03-73-AR73.1, Decision on .Interlocutory
Appeals Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder (25 October 2006)
at para. 17; Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Prosecution’s Motion for Joinder and for
Leave to Consolidate and Amend Indictments (23 September 2008) at para. 26
2067
Prosecutor v Martic, No. IT-95-11-PT, Decision on Prosecution Motion for Joinder (10 November
2005) at para. 58
2068
Prosecutor v Popovic et al, No. IT-05-86-73.1, Decision on Radivoje Militec’s Interlocutory Appeal
Against the Trial Chamber’s Decision on Joinder of the Accused (27 January 2006) at paras. 22-23

347
 Joinder was not in the interest of justice where a large amount of evidence would
be relevant to only one of the accused and the commencement and completion of the trial
for an accused arrested earlier than the others would be delayed by joinder. 2069

Prejudice from joinder would exist where evidence against one accused would not
be admissible against a co-accused or where exculpatory evidence would be unavailable
at a joint trial. 2070

The fact that two accused may seek to blame each other is not grounds against
joinder.2071

same transaction

The same transaction test requires that the alleged acts or omissions in the
indictment formed part of a common scheme, strategy, or plan. 2072

The same transaction test of Rule 48 was satisfied where the accused acted with
the same common purpose of removing non-Serbs from certain areas through
commission of crimes, even though there were differences in the times and places of the
acts and the modes of liability charged against each accused. 2073

The same transaction test was satisfied where the same common plan was alleged
even though one accused was charged with crimes in more localities over a greater time
period.2074

The same transaction test was satisfied where the indictment alleged a common
plan to ethnically cleanse the enclaves of Srebrenica and Zepa. 2075

The same transaction test was satisfied by participation in the same military
operation at the same time in the same geographical area. 2076

The same transaction test was satisfied where journalists published the same
information about a protected witness at around the same time. However, as to a

2069
Prosecution v Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Stoljan Zupljanin’s Motion for
Joinder (6 January 2009) at paras. 22-26
2070
Prosecutor v Seselj et al, No. IT-95-14-R77, Decision on Motion for Joinder (31 May 2006) at para. 41
2071
Prosecutor v Cermak & Markac, No. IT-01-45-PT, Decision on Prosecution’s Consolidated Motion to
Amend the Indictment and Joinder (14 July 2006) at para. 68
2072
Prosecutor v Gotovina et al, No. IT-03-73-AR73.1, Decision on .Interlocutory Appeals Against the
Trial Chamber’s Decision to Amend the Indictment and for Joinder (25 October 2006) at para. 21
2073
Prosecutor v Martic, No. IT-95-11-PT, Decision on Prosecution Motion for Joinder (10 November
2005) at para. 33
2074
Prosecution v Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Stoljan Zupljanin’s Motion for
Joinder (6 January 2009) at para. 17
2075
Prosecutor v Popovic et al, No. IT-05-86-73.1, Decision on Vinko Pandurevic’s Interlocutory Appeal
Against the Trial Chamber Decision on Joinder of the Accused (24 January 2006) at para.17
2076
Prosecutor v Gotovina et al, No. IT-03-73-AR73.1, Decision on .Interlocutory Appeals Against the
Trial Chamber’s Decision to Amend the Indictment and for Joinder (25 October 2006) at para. 21

348
journalist who had published the information four years earlier in a different publication,
the same transaction test was not satisfied. 2077

There is no requirement that the events constituting the “same transaction” take
place at the same time or be committed together.2078

The particular role that an accused played in the same transaction is not
determinative.2079

standing

An accused, as well as the prosecutor, has standing to request joinder of cases. 2080

time to prepare

Sufficient time to prepare for trial should be allowed for each accused,
irrespectively of whether he is tried separately or joined with another accused for trial. 2081

Rule 49—joinder of crimes

Two or more crimes may be joined in one indictment if the series of acts committed
together form the same transaction, and the said crimes were committed by the
same accused.

factors

The test for severance of charges against a single accused is the same as for
joinder of charges. The Chamber should consider (1) prejudice to the accused from
severance; (2) the interests of justice, particularly the affect of severance on the length of
the proceedings; (3) whether separate trials would be personally onerous to the accused;
and (4) the possible prejudice to the accused of trying certain crimes and not others.2082

Severance of charges against a single accused denied where accused would be

prejudiced by having to participate in pre-trial and appeal proceedings at the same time,

2077
Prosecutor v Seselj et al, No. IT-95-14-R77, Decision on Motion for Joinder (31 May 2006) at paras.
29-30
2078
Prosecutor v Popovic et al, No. IT-05-86-73.1, Decision on Vinko Pandurevic’s Interlocutory Appeal
Against the Trial Chamber Decision on Joinder of the Accused (24 January 2006) at para. 7, 17; Prosecutor
v Stanisic, No. IT-04-79-PT, Decision on Prosecution’s Motion for Joinder and for Leave to Consolidate
and Amend Indictments (23 September 2008) at para. 23
2079
Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Prosecution’s Motion for Joinder and for Leave
to Consolidate and Amend Indictments (23 September 2008) at para. 23
2080
Prosecution v Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Stoljan Zupljanin’s Motion for
Joinder (6 January 2009) at para. 8
2081
Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Prosecution’s Motion for Joinder and for Leave
to Consolidate and Amend Indictments (23 September 2008) at para. 32
2082
Prosecutor v Mladic, No. IT-09-92-PT, Decision on Consolidated Prosecution Motion to Sever the
Indictment, to Conduct Separate Trials, and to Amend the Indictment (13 October 2011) at para. 25

349
where two trials would take longer than a single trial, and where some witnesses may
have to testify twice.2083

It is not necessary that crimes be “committed together” in order to be joined under

Rule 49.2084

Severance of count reinstated after appeal from judgement of acquittal was not in
the interests of justice where a separate trial of that count would require recalling
prosecution witnesses and would lengthen the overall proceedings. 2085

same transaction

It is not necessary that the crimes be overlapping in time if common plan or

strategy has a long term aim. Crimes in Kosovo beginning in 1998 were part of common
strategy with crimes in Bosnia and Croatia beginning in 1992—that strategy being the
forcible removal of non-Serb populations from areas which Serbia wished to control.
Thus they could be said to be part of the “same transaction.” 2086

Crimes in Srebrenica and Zepa in 1995 were sufficiently related to justify their
joinder in the same indictment.2087

standing

A Trial Chamber has the authority to order severance of counts against a single
accused, either on its own motion or upon motion of a party. 2088

Rule 50—amendment of indictment

(A) (i) The Prosecutor may amend an indictment:

(a) at any time before its confirmation, without leave;
(b) between its confirmation and the assignment of the case to a Trial Chamber,
with the leave of the Judge who confirmed the indictment, or a Judge assigned by
the President; and
(c) after the assignment of the case to a Trial Chamber, with the leave of that Trial
Chamber or a Judge of that Chamber, after having heard the parties.

2083
Prosecutor v Mladic, No. IT-09-92-PT, Decision on Consolidated Prosecution Motion to Sever the
Indictment, to Conduct Separate Trials, and to Amend the Indictment (13 October 2011) at paras. 31-37
2084
Prosecutor v Milosevic, No. IT-99-37-PT, Reasons for Decision on Prosecution Interlocutory Appeal
from Refusal to Order Joinder (18 April 2002) at para. 18
2085
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motions to Sever Count One and for
Suspension of Defence Case (2 August 2013) at para. 16-17
2086
Prosecutor v Milosevic, No. IT-99-37-PT, Reasons for Decision on Prosecution Interlocutory Appeal
from Refusal to Order Joinder (18 April 2002) at para. 20-21
2087
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Preliminary Motions on the Indictment Pursuant
to Rule 72 of the Rules of Procedure and Evidence (14 December 2007) at paras. 66- 67
2088
Prosecutor v Mladic, No. IT-09-92-PT, Decision on Consolidated Prosecution Motion to Sever the
Indictment, to Conduct Separate Trials, and to Amend the Indictment (13 October 2011) at para. 24

350
(ii) Independently of any other factors relevant to the exercise of the discretion,
leave to amend an indictment shall not be granted unless the Trial Chamber or
Judge is satisfied there is evidence which satisfies the standard set forth in Article
19, paragraph 1, of the Statute to support the proposed amendment.
(iii) Further confirmation is not required where an indictment is amended by leave.
(iv) Rule 47 (G) and Rule 53 bis apply mutatis mutandis to the amended indictment.
(B) If the amended indictment includes new charges and the accused has already
appeared before a Trial Chamber in accordance with Rule 62, a further appearance
shall be held as soon as practicable to enable the accused to enter a plea on the new
charges.
(C) The accused shall have a further period of thirty days in which to file
preliminary motions pursuant to Rule 72 in respect of the new charges and, where
necessary, the date for trial may be postponed to ensure adequate time for the
preparation of the defence.

during trial

Amendment of indictment to identify two victims who had previously been

unidentified did not prejudice the accused nor add new charges which might result in
undue delay and therefore amendment would be granted. 2089

In instances in criminal trials where the evidence turns out differently than
expected it may require the indictment to be amended, an adjournment to be granted, or
certain evidence to be excluded as not being within the scope of the indictment. 2090

new charges

An amendment includes “new charges” if it introduces a new basis for conviction

not previously reflected in the indictment that is factually or legally distinct from any

2089
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Prosecution Motion Seeking Leave to
Amend the Revised Second Amended Indictment (5 September 2007)
2090
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 132

351
already alleged.2091 Adding a new form of liability constitutes new charges .2092 This is
true whether the form of liability is cumulative or alternative. 2093

Since the addition of new charges will result in a new plea and opportunity to
challenge the indictment through new preliminary motions, proposed amendments which
constitute new charges are likely to cause delay. 2094

Expanding the dates of an incident in the indictment and adding an allegation of

destruction of cultural and religious institutions constituted new charges for which a new
initial appearance was required. 2095

Expansion of the time frame of the armed conflict constituted new charges. 2096

Adding new groups of persons for whose conduct the accused can be liable
constitutes new charges.2097

Adding an allegation of destruction of houses to an existing persecution count,

and an allegation of home invasion to a count of inhumane acts constituted new
charges.2098

2091
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Prosecution Motion for Leave to
Amend the Amended Indictment (16 December 2005) at p. 4; Prosecutor v Beara, No. IT-02-58-PT,
Decision on Prosecution Motion to Amend the Indictment (24 March 2005) at page 3; Prosecutor v
Marijacic & Rebic, No. IT-95-14-R77.2, Decision on Prosecution’s Motions to Amend the Indictment (7
October 2005) at para. 29; Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Further Amendments
and Challenges to the Indictment (13 July 2006) at para. 11; Prosecutor v Seselj et al, No. IT-95-14-R77.5,
Decision on Prosecution Motion to Amend the Indictments (8 June 2006) at para. 12; Prosecutor v
Haradinaj et al, No. IT-04-84-PT, Decision on Motion to Amend the Indictment and on Challenges to the
Form of the Amended Indictment (25 October 2006) at para. 13
2092
Prosecutor v Beara, No. IT-02-58-PT, Decision on Prosecution Motion to Amend the Indictment (24
March 2005) at page 3; Prosecutor v Marijacic & Rebic, No. IT-95-14-R77.2, Decision on Prosecution’s
Motions to Amend the Indictment (7 October 2005) at para. 29; Prosecutor v Popovic et al, No. IT-05-88-
PT, Decision on Further Amendments and Challenges to the Indictment (13 July 2006) at para. 11
2093
Prosecutor v Marijacic & Rebic, No. IT-95-14-R77.2, Decision on Prosecution’s Motions to Amend the
Indictment (7 October 2005) at para. 34
2094
Prosecutor v Delic, No. IT-04-83-PT, Decision on the Prosecution’s Submission of Proposed Amended
Indictment and Defence Motion Alleging Defects in Amended Indictment (30 June 2006) at para. 22;
Prosecutor v Stanisic & Zupljanin, No. IT-08-91PT, Decision on Motion and Supplementary Motion for
Leave to Amend the Indictment (28 April 2009) at para. 41
2095
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Prosecution’s Motion for Leave to Amend the
Indictment (27 May 2005) at para. 17
2096
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-PT, Decision on Prosecution Motion for Leave to
Amend the Original Indictment and Defence Motions Challenging the Form of the Amended Indictment (1
November 2005) at para.10
2097
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-PT, Decision on Prosecution Motion for Leave to
Amend the Original Indictment and Defence Motions Challenging the Form of the Amended Indictment (1
November 2005) at para. 36
2098
Prosecutor v Lukic et al, No. IT-98-32/1-PT, Decision Granting Prosecution’s Motion to Amend
Indictment and Scheduling Further Appearance (1 February 2006) at paras. 17-18

352
 Adding torture as a means for the crime of persecution and additional kinds of
crimes against humanity for the same incident constitute new charges. 2099

The inclusion of three new factual situations resulted in a new charge.2100

The addition of liability under Article 7(1) to the same events for which liability
under Article 7(3) was previously charged amounts to new charges. 2101

An amendment which alleges a different crime or a different underlying offence,

even without additional factual allegations, is a new charge because it could be the sole
legal basis for the accused’s conviction. 2102

A new factual allegation which does not in itself expose the accused to additional
risk of conviction does not qualify as a new charge.2103

prejudice

The basic principle in relation to whether to grant leave to amend an indictment is

whether the amendments result in unfair prejudice to the accused. 2104

Where amendment did not add new charges, and sought to include in the
indictment those matters which had been contained in the pre-trial brief, amendment on
eve of trial would be granted as there was no prejudice to the accused. 2105

Two factors are primarily considered when evaluating prejudice: (1) whether the
accused is given an adequate opportunity to prepare an effective defence; and (2) whether
granting the amendment will result in undue delay. 2106

2099
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Decision on Motion to Amend the Amended Indictment
(12 January 2007) at para. 18
2100
Prosecutor v Delic, No. IT-04-83-PT, Decision on the Prosecution’s Submission of Proposed Amended
Indictment and Defence Motion Alleging Defects in Amended Indictment (30 June 2006) at para. 55
2101
Prosecutor v Delic, No. IT-04-83-PT, Decision on the Prosecution’s Submission of Proposed Amended
Indictment and Defence Motion Alleging Defects in Amended Indictment (30 June 2006) at para. 56;
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Prosecution Motion Seeking Leave to Amend
the Second Amended Indictment…(8 July 2008) at para. 49
2102
Prosecutor v Seselj et al, No. IT-95-14-R77.5, Decision on Prosecution Motion to Amend the
Indictments (8 June 2006) at para. 12
2103
Prosecutor v Seselj et al, No. IT-95-14-R77.5, Decision on Prosecution Motion to Amend the
Indictments (8 June 2006) at para. 12
2104
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-PT, Decision on Prosecution Motion for Leave to
Amend the Original Indictment and Defence Motions Challenging the Form of the Amended Indictment (1
November 2005) at para. 7
2105
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on the Prosecutor’s Motion to Amend
the Revised Second Amended Indictment (4 July 2008)
2106
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-PT, Decision on Prosecution Motion for Leave to
Amend the Original Indictment and Defence Motions Challenging the Form of the Amended Indictment (1
November 2005) at para. 7

353
 Addition of two additional instances of publication of confidential information
would prejudice the accused, as for contempt, each publication is a separate violation. 2107

Addition of five new counts on eve of trial denied where prosecution had not been
diligent in moving to amend indictment.2108

Although prejudice to accused could be cured by the fact that there was no set
trial date yet, the amendments would be denied because by adding new charges the
prosecution would complicate the trial and thus delay its completion. 2109

Amendment which simply clarified existing charges did not prejudice accused. 2110

The risk of delay is greater when a proposed amendment involves new charges as
it requires a new arraignment and an opportunity for additional preliminary motions. 2111

Addition of five incidents to schedules in the indictment would constitute new

charges and require investigation which would prejudice the accused given that the trial
was imminent.2112

Adding of new charges on eve of trial permitted. Fact that trial would have to be
postponed for two months or more was outweighed by need to ensure a full consideration
of the relevant issues in the case. 2113

prima facie case

Only if a particular amendment amounts to a new charge must the Trial Chamber
satisfy itself that a prima facie case for that amendment is established. 2114

Amendments which allege material facts, even those not amounting to new
charges, must be supported by prima facie evidence to support the allegations. 2115
2107
Prosecutor v Seselj et al, No. IT-95-14-R77.5, Decision on Prosecution Motion to Amend the
Indictments (8 June 2006) at para. 26
2108
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Prosecution Motion Seeking Leave to
Amend the Second Amended Indictment…(8 July 2008)
2109
Prosecutor v Delic, No. IT-04-83-PT, Decision on the Prosecution’s Submission of Proposed Amended
Indictment and Defence Motion Alleging Defects in Amended Indictment (30 June 2006) at para. 74
2110
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Prosecution’s Motion for Leave to File an Amended
Indictment (14 September 2007)
2111
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Decision on Motion to Amend the Amended Indictment
(12 January 2007) at para. 15
2112
Prosecutor v Stanisic & Zupljanin, No. IT-08-91PT, Decision on Motion and Supplementary Motion
for Leave to Amend the Indictment (28 April 2009) at para. 41
2113
Prosecutor v Tolimir, No. IT-05-88/2-PT, Written Reasons for Decision on Prosecution Motion to
Amend the Second Amended Indictment (17 December 2009) at para. 29
2114
Prosecutor v Marijacic & Rebic, No. IT-95-14-R77.2, Decision on Prosecution’s Motions to Amend the
Indictment (7 October 2005) at para. 19
2115
Prosecutor v Milutinovic et al, No. IT-05-88-PT, Decision on Defence Motions Alleging Defects in the
Form of the Proposed Amended Joinder Indictment (22 March 2006) at para. 31; Prosecutor v Seselj et al,
No. IT-95-14-R77.5, Decision on Prosecution Motion to Amend the Indictments (8 June 2006) at para. 13

354
 scope of amendments

Wholesale restriction of an indictment is beyond the Trial Chamber’s powers for

leave to amend an indictment under Rule 50. 2116

supporting material

Supporting material for an amended indictment is required to be disclosed to the

accused so that he can respond to the issue of whether leave to amend the indictment
would result in prejudice to the accused. 2117

Rule 51—withdrawal of indictment

(A) The Prosecutor may withdraw an indictment:

(i) at any time before its confirmation, without leave;
(ii) between its confirmation and the assignment of the case to a Trial Chamber,
with the leave of the Judge who confirmed the indictment, or a Judge assigned by
the President; and
(iii) after the assignment of the case to a Trial Chamber, by motion before that Trial
Chamber pursuant to Rule 73.
(B) The withdrawal of the indictment shall be promptly notified to the suspect or the
accused and to the counsel of the suspect or accused.

An agreement made by the prosecution to dismiss an indictment is not binding, as

such agreements must be approved by a Judge. 2118

Even if agreement made by diplomat had been made on behalf of the prosecution,
it would not be valid since only a Judge could approval withdrawal of an indictment.2119

Leave of Trial Chamber not required to withdraw individual charges from

scheduled incidents in indictment. Prosecution’s statement that it is withdrawing those
charges is sufficient.2120

Rule 52—public character of indictment

2116
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution Motion to Amend the First
Amended Indictment (16 February 2009) at para. 37
2117
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Defence Motions for Access to Ex
Parte Supporting Materials Related to the Prosecution Motion for Leave to Amend the Indictment (15 June
2005)
2118
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 41
2119
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 41
2120
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-Fourth Disclosure Violation
Motion (13 October 2014) at para. 18

355
Subject to Rule 53, upon confirmation by a Judge of a Trial Chamber, the
indictment shall be made public.

Rule 53—non-disclosure
(A) In exceptional circumstances, a Judge or a Trial Chamber may, in the
interests of justice, order the non-disclosure to the public of any documents or
information until further order.
(B) When confirming an indictment the Judge may, in consultation with the
Prosecutor, order that there be no public disclosure of the indictment until it is
served on the accused, or, in the case of joint accused, on all the accused.
(C) A Judge or Trial Chamber may, in consultation with the Prosecutor, also
order that there be no disclosure of an indictment, or part thereof, or of all or any
part of any particular document or information, if satisfied that the making of such
an order is required to give effect to a provision of the Rules, to protect confidential
information obtained by the Prosecutor, or is otherwise in the interests of justice.
(D) Notwithstanding paragraphs (A), (B) and (C), the Prosecutor may disclose an
indictment or part thereof to the authorities of a State or an appropriate authority
or international body where the Prosecutor deems it necessary to prevent an
opportunity for securing the possible arrest of an accused from being lost.

While the balance between the rights of the accused to a fair trial and the rights of
victims must favor the rights of the accused, non-disclosure of a victim’s identity to the
public can be accomplished without infringing on the rights of the accused to prepare his
defence. 2121

This rule could not be used to prevent the prosecution from disclosing information
to the UN Security Council concerning the cooperation of Croatia in this case. 2122

Rule 53 bis—service of indictment

(A) Service of the indictment shall be effected personally on the accused at the time
the accused is taken into custody or as soon as reasonably practicable thereafter.
(B) Personal service of an indictment on the accused is effected by giving the
accused a copy of the indictment certified in accordance with Rule 47 (G).

Rule 54—general rule

At the request of either party or proprio motu, a Judge or a Trial Chamber may
issue such orders, summonses, subpoenas, warrants and transfer orders as may be
necessary for the purposes of an investigation or for the preparation or conduct of
the trial.

2121
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution’s Motion for Non-Disclosure (2
September 2008) at para. 6
2122
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Motion for Non-Disclosure Order Directed
to Prosecutor Serge Brammertz (1 December 2009) at para. 7

356
 Chamber witnesses

Personal notes of convicted person summoned to testify as a Chamber witness

would be ordered to be produced by the witness. 2123

discretion

The obligation vested in the Trial Chamber to ensure the proper administration of
justice cumulatively entails that any steps which the Trial Chamber takes are
discretionary and in its overarching interest and commitment to ensuring that in the case
of the accused, justice is not only done, but justice is seen to be done, including by the
accused himself. 2124

dismissal

Trial Chamber declined to use its residual powers to dismiss case of accused
found unable to stand trial for lack of mental competency, preferring to wait to see if his
mental health was restored.2125

humanitarian workers

An employee of a humanitarian organization whose purpose is to document

crimes and provide information to the Tribunal could not decline to testify as neither the
war correspondent nor any other privilege applied. 2126

Statements and documents of Red Cross officials admissible despite fact that it
was not possible to have access to Red Cross material that might contradict or provide
further information about the statements.2127

injunctions

Trial Chamber declined to enjoin Croatian prosecution of defence investigator

where investigator had not exhausted his remedies in Croatian courts and where the
fairness of the trial was not affected. 2128

2123
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Nikolic Motion for Reconsideration and
Order for Issuance of Subpoena Duces Tecum (2 April 2009)
2124
Prosecutor v Popovic, No. IT-05-88-T, Decision on the Third Request for Review of the Registry
Decision on the Assignment of Co-Counsel for Radivoje Miletic (20 February 2007) at p. 3
2125
Prosecutor v Kovacevic, No. IT-01-42/2-I, Decision on Defence Motion to Dismiss the Indictment (1
September 2006)
2126
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Motion by Witness 28 to Set Aside a
Subpoena or Alternate Relief (5 September 2007)
2127
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Motion to Exclude Evidecne (23 April
2010) at T1502
2128
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Defendant Ante Gotovina’s Motion for a
Restraining Order Against the Republic of Croatia (23 July 2009)

357
 If the exercise of domestic jurisdiction against defence team members is such that
a trial before the Tribunal would be rendered unfair, this would constitute an exceptional
circumstance warranting a significant intervention in the domestic jurisdiction. 2129

Investigation of defence team members for the performance of their duties does
not per se constitute an infringement of the right of the accused to a fair trial. 2130

The factors to be considered are (1) whether the State is exercising its jurisdiction
improperly with the substantial or forseeable result of hindering the defence team ‘s
performance of their functions; (2) whether the domestic proceedings impede or hinter
the defence in the fulfillment of its tasks such that it would result in the infringement of a
fair trial; and (3) whether the proceedings infringe the accused’s procedural rights to
equality of arms.2131

investigation

Trial Chamber ordered investigation into news reports that Seselj case discussed
among Prime Minister Djindic, Prosecutor Del Ponte, and Judge May. 2132

medical intervention

Trial Chamber ordered medical intervention to prevent accused on a hunger strike

from committing suicide. 2133

Parliament members

While immunities and privileges may protect parliamentary statements in

domestic proceedings, this does not apply in international criminal proceedings. 2134

peace negotiators

A person who served as a peace negotiator may be compelled to testify about the
negotiations without calling into question the impartiality of peace negotiators. 2135

2129
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders
Directed to the Republic of Croatia (12 March 2010) at para. 64
2130
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders
Directed to the Republic of Croatia (12 March 2010) at para. 65
2131
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders
Directed to the Republic of Croatia (12 March 2010) at para. 66
2132
Prosecutor v Seselj, No. IT-03-67-T, Order Requesting Investigation into the Publication of Articles in
the Press (18 September 2008)
2133
Prosecutor v Seselj, No. IT-03-67-T, Urgent Order to the Dutch Authorities Regarding the Health and
Welfare of the Accused (6 December 2006)
2134
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Accused’s Motion to Preclude Questioning
on Statements made in Parliament (7 November 2013) at T43150
2135
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Ambassador
Jose Cutileiro (19 December 2012) at para. 11

358
 reconsideration

A Chamber has an inherent power to reconsider its own decisions if the existence
of a clear error of reasoning has been demonstrated or if reconsideration is necessary in
order to prevent an injustice.2136

The principle of finality dictates that the power to reconsider previous decisions
should be exercised sparingly and a party must therefore meet a high threshold in order to
succeed in its motion for reconsideration. 2137

Reconsideration granted where prosecution failed to adequately explain reason for

seeking judicial notice of duplicates in intercepted conversation exhibits since it was in
the interest of justice to consider such a time-saving device despite the default.2138

However, there is no power to reconsider a final judgement. 2139

Victims’ interest in the success of a prosecution motion for reconsideration of a

final judgement did not constitute a legal basis for reconsidering the judgement. 2140

A decision authorizing withdrawal of an appeal is not a final judgement and may

therefore be reconsidered by the Appeals Chamber.2141

Decision excluding testimony of prosecution witness would be reconsidered to

prevent injustice to the prosecution where at a later stage of the trial, the admission of the
evidence now seems appropriate.2142

2136
Nikolic v Prosecutor, No. IT-02-60/1-A, Decision on Appellant’s Urgent Motion for Reconsideration of
Decision on Second Defence Motion to Enlarge Time for Filing of Replies Dated 1 April 2005 (6 April
2005) at page 4; Prosecutor v Seselj, No. IT-03-67-AR72.1, Decision on Motion for Reconsideration of the
“Decision on the Interlocutory Appeal Concerning Jurisdiction Dated 31 August 2004 (15 June 2006) at
para. 9; Prosecutor v Delic, No. IT-04-83-PT, Decision on the Prosecution Motion for Reconsideration (23
August 2006) at pg. 3; Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion
Requesting Reconsideration of Trial Chamber “Decision on Evidence Tendered Through Witness K-82”
Issued 3 October 2006 and Leave to Recall Witness K-82 (13 March 2007) at para. 14
2137
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Motion Seeking
Reconsideration of Decision on Stanisic’s Motion for Declaration of Mistrial…(24 July 2014) at para. 12
2138
Prosecutor v Perisic, No. IT-04-81-T, Decision on Reconsideration of the Trial Chamber’s Decision of
1 September 2008 (7 October 2008) at para. 8
2139
Prosecutor v Zigic, No. IT-98-30/1-A, Decision on Zoran Zigic’s Motion for Reconsideration of
Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005 (26 June 2006) at para. 9;
Prosecutor v Blaskic, No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration
(23 November 2006) at para. 79; Prosecutor v Mrksic & Slivancanin, No. IT-95-13/1-A, Decision on
Motion on Behalf of Veselin Slivancanin Seeking Reconsideration of the Judgement Rendered by the
Appeals Chamber on 5 May 2009—or an Alternative Remedy (8 December 2009); Prosecutor v Lukic &
Lukic, No. IT-98-32/1-A, Decision on Sredoje Lukic’s Motion Seeking Reconsideration of the Appeals
Judgement…(30 August 2013) at p. 4; Prosecutor v Perisic, No. IT-04-81-A, Decision on Motion for
Reconsideration (20 March 2014)
2140
Prosecutor v Perisic, No. IT-04-81-A, Decision on Motion for Reconsideration (20 March 2014) at p. 4
2141
Prosecutor v Strugar, No. IT-01-42-Misc.1, Decision on Strugar’s Request to Reopen Appeal
Proceedings (7 June 2007) at para. 25

359
 Death of substituted prosecution witness was a new circumstance which justified
reconsideration of the substitution of that witness and denial of admission of his
testimony pursuant to Rule 92 quater.2143

Reconsideration of administrative decisions by the President are permitted. 2144

A person who is not a party in the case has no standing to request reconsideration
of a decision. This includes States, other accused persons, and Judges who are
disqualified by virtue of the decision, and the remaining Judges of the bench. 2145

review of administrative decisions

A Trial Chamber does not have the power to review administrative decisions
where that review function has been explicitly assigned to another organ of the
Tribunal. 2146

A Trial Chamber may intervene in a matter which is within the primary

competence of the Registry where the matter goes to the fairness of the trial. 2147

safe conduct

International law permits the protection of witnesses appearing before the judicial
authorities of a state other than their state of residence from prosecution, detention, or any
other restrictions on their liberty in respect of acts or convictions committed or entered
before their departure from the territory of the state of residence to the state where they
are supposed to testify. 2148

Safe conduct order issued directing the witness not be arrested, detained,
prosecuted, or subjected to any other restriction, whether physical or legal, of his personal
2142
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion Requesting
Reconsideration of Trial Chamber “Decision on Evidence Tendered Through Witness K-82” Issued 3
October 2006 and Leave to Recall Witness K-82 (13 March 2007)
2143
Prosecutor v Karadzic, No. IT-95-5/18-T, Decisions on Prosecution Motion for Admission of Evidence
of Witness KDZ595 pursuant to Rule 92 quarter and Accused’s Motion for Reconsideration (6 December
2011)
2144
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Decision on Defence
Team Funding (31 January 2012) at para. 37
2145
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration on Decision
for Disqualification, Requests for Clarification, and Motion on Behalf of Stanisic and Zupljanin (7 October
2013) at paras. 4-6; Prosecutor v Prlic, No. IT-04-74-A, Decision on Application of the Republic of
Croatia for Reconsideration of the Decision of 18 July 2016 Denying Leave to Appear as Amicus Curiae (4
July 2017)
2146
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Appeal from Decision on
Motion to Vacate Appointment of Richard Harvey (12 February 2010) at para. 25
2147
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Appeal of the Registrar’s Denial of
In-Person Witness Interview: Momcilo Krajisnik (29 October 2013) at para. 12
2148
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution’s Motion for Safe Conduct for
Witness Momcilo Mandic (16 June 2010) at para. 5

360
liberty in respect of any acts or convictions prior to his departure from his home
country.2149

Safe conduct order applies from time witness leaves his residence until he returns
to his residence, in all countries in which he stays or transits. 2150

Safe conduct order was necessary for witness who was subject to European Union
travel ban. 2151

Safe conduct order granted for former Minister of Interior of Republika Srpska
where it was not shown that he was under investigation for conduct during the war, but
he had been interviewed by the ICTY as a suspect.2152

self represented accused

The fair trial rights of the accused were not violated by the Registrar’s refusal to
bring potential defence witness for pre-trial motion to meet the accused in detention and
in taking the position that it was not obligated to do so until the accused filed his witness
list after the close of the prosecution case.2153

State officials

A State official who witnessed acts while employed by the State, as opposed to an
official who is merely a custodian of records, may be subpoenaed to give evidence by the
Tribunal. 2154

The International Tribunal is empowered to issue binding orders to States for

production of documents.2155 While it may issue a subpoena to a private individual
within a State2156, the Tribunal may not issue a subpoena for a state official for
documents in his control.2157

2149
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution’s Motion for Safe Conduct for
Witness Momcilo Mandic (16 June 2010) at para. 11
2150
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution’s Motion for Safe Conduct for
Witness Momcilo Mandic (16 June 2010) at para. 11; Prosecutor v Seselj, No. IT-03-67-R77.3, Decision on
Request for the Safe Transfer of Defence Witness Zoran Drazilovic (1 June 2011)
2151
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution’s Motion for Safe Conduct for
Witness Momcilo Mandic (16 June 2010) at para. 7
2152
Prosecutor v Karadzic, No. IT-95-5/18-PT, Order on the Accused’s Motion for Safe Conduct Order or
Subpoena: Dragan Kijac (4 November 2013) at para. 13
2153
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Interview of Defence
Witness and Third Motion for Disclosure (9 April 2009) at para. 20
2154
Prosecutor v Krstic, No. IT-98-33-A, Decision on Application for Subpoenas (1 July 2003) at para. 27
2155
Prosecutor v Blaskic, No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997 (29 October 1997) at para. 26
2156
Prosecutor v Blaskic, No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997 (29 October 1997) at para. 48
2157
Prosecutor v Blaskic, No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for
Review of the Decision of Trial Chamber II of 18 July 1997 (29 October 1997) at para. 43

361
 An application for an interview with and testimony from a State official—as
opposed to an application for information from a State which does not seek to summon a
specific official as a witness—should be made for a subpoena ad testificandum rather
than a binding order issued to the State.2158

Where a party wishes to question an employee of a State, as opposed to seeking

documents from that state, a subpoena to the individual, as opposed to a binding order to
that state is the appropriate mechanism. 2159

A motion for subpoena under Rule 54, rather than a motion for binding order
under Rule 54 bis, is the appropriate mechanism for seeking to compel an interview with
an individual who was or is a state employee. 2160

Where official had raised state secret privilege as an objection to submitting to

interview by the defence, he would be required to apply to Croatia for waiver of that
privilege, rather than the Chamber issuing an order to Croatia compelling it to waive the
privilege.2161

As long as during the interview, the witness is asked about the events he saw or
heard, which in turn makes him a prospective witness, he can be subpoenaed to submit to
an interview despite the fact that he may have seen the events in question, or heard
about them, in the course of exercising his official functions as the director of the
Croatian Intelligence Service.2162

The Tribunal has power to issue a subpoena to a person to give evidence as a

witness or to produce documents where that person obtained the information of which
evidence is to be given, or the documents which that person is to produce, as an
individual acting in his or her private capacity. 2163

stay of proceedings

A Trial Chamber possesses broad powers with which to assure the fairness of a
trial. Under Rule 54 of the Rules, a Trial Chamber has the power to issue such orders,
subpoenas, warrants, and transfer orders as may be necessary for the purposes of an
investigation or for the preparation or conduct of the trial, which includes the power to:

2158
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Assigned Counsel Application for Interview and
Testimony of Tony Blair and Gerhard Schroeder (9 December 2005) at para. 27
2159
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Subpoena for Douglas Lute and
John Feeley (8 July 2009) at para. 8
2160
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Subpoena for Douglas Lute and
John Feeley (8 July 2009) at para. 8
2161
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Subpoena to Interview
Mirolsav Tudjman (14 July 2011) at para. 23
2162
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Subpoena to Interview
Mirolsav Tudjman (14 July 2011) at para. 27
2163
Prosecutor v Krstic, No. IT-98-33-A, Decision on Application for Subpoenas (1 July 2003) at para. 19

362
adopt witness protection measures; take evidence by video-conference link or by way of
deposition; and summon witnesses and order their attendance. In addition, if such
measures fail, upon the request of a party or proprio motu, a Trial Chamber can order that
proceedings be adjourned or stayed.2164

stay pending decision

A Trial Chamber has inherent right to stay its decisions pending appeal. 2165

The Trial Chamber’s decision to suspend a trial while a disqualification motion is

pending is a discretionary decision. Where the Trial Chamber refuses to suspend the
proceedings, the accused can petition the Bureau to do so upon its consideration of the
application for disqualification. 2166

The Appeals Chamber has the right to stay a Trial Chamber decision in order to
preserve the status quo of the appeal. 2167

Trial Chamber refused to suspend the trial where prosecutor filed motion for
referral of case pursuant to Rule 11 bis on the eve of trial after Trial Chamber had
ordered it to reduce scope of indictment.2168

A stay of proceedings is an exceptional measure. The Trial Chamber must

consider whether the continuation of the trial would have an impact on the conduct of a
fair and expeditious trial. 2169

Appeals Chamber refused to stay proceedings pending resolution of funding

dispute between counsel and the Registrar. The proper remedy is for administrative
review of the Registrar’s decision by the President. 2170

Stay of four-day week trial schedule pending appeal denied as the prejudice from
the decision if reversed, if any. would not be great.2171

2164
Prosecutor v Haradinaj et al, No. IT-04-84-A, Judgement (19 July 2010) at para. 36
2165
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis, Stay of Trial Chamber Decision (16 December
2005)
2166
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 33
2167
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Stay of Decision on Defence Motion of Ramush
Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005 (16
December 2005)
2168
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Suspension of the
Commencement of Trial and all Related Proceedings (5 July 2007)
2169
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Milan Lukic’s Notice of Verification of
Alleged Victim Survivors and Application for Stay of Proceedings…(12 March 2009) at para. 12
2170
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Nebojsa Pavkovic’s Motion for Stay of
Proceedings (2 March 2010)
2171
Prosecutor v Karadzic, No. IT-05-95-5/18-T, Decision on Accused’s Application for Certification to
Appeal the Trial Chamber’s Order on Trial Schedule and for Stay (4 June 2010) at para. 8

363
 subpoenas

subpoena to accused persons

Where an accused in another case is sought to be subpoenaed as a witness, the

Chamber hearing the trial of the party seeking the subpoena, and not the Chamber seised
of the witness’ case, has jurisdiction to rule on the subpoena request.2172

subpoena for defence interview

A Trial Chamber may issue a subpoena when it is necessary for the purposes of an
investigation or for the preparation or conduct of the trial. 2173 This power includes the
authority to require a prospective witness to attend at a nominated place and time in order
to be interviewed by the defence where that attendance is necessary for the preparation or
conduct of the trial. 2174

An alternative for a witness has declined to meet with the defence is for the
witness to be subpoenaed before the Trial Chamber where the Judge can explain to him
the importance of his cooperation to assist in producing a just result in the trial and how
he will be afforded protection by the Tribunal if required. 2175

Subpoena for interview of potential defence witness denied where accused was a
participant in conversations with the witness which would be the subject of his testimony
and thus was already fully aware of the precise nature of the evidence that the witness
could give if called to testify. 2176

Subpoena for interview of potential defence witness denied where accused had
transcript of witness’ interview with prosecution and was therefore aware of his potential
evidence. Where witness, when recently contacted, had claimed lack of memory, the
need to refresh his memory was not a sufficient reason for issuance of a subpoena for
interview.2177

2172
Prosecutor v Karadzic, No. IT-95-5/18-AR73.11, Decision on Appeal against the Decision on the
Accused’s Motion to Subpoena Zdravko Tolimir (13 November 2013) at para. 31; Prosecutor v Mladic, No.
IT-05-92-T, Decision on Urgent Defence Motion Seeking that the Trial Chamber Intervene to Protect the
Rights of the Accused in Relation to the Subpoena Issued by the Karadzic Trial Chamber (24 January 2014)
at para. 8
2173
Prosecutor v Halilovic, No. IT-01-48-AR73, Decision on the Issuance of Subpoenas (21 June 2004) at
para. 5
2174
Prosecutor v. Krsti , IT-98-33-A, Decision on Application for Subpoenas, (1 July 2003) at para. 10;
Prosecutor v Halilovic, No. IT-01-48-AR73, Decision on the Issuance of Subpoenas (21 June 2004) at
para. 5
2175
Prosecutor v Krstic, No. IT-98-33-A, Decision on Application for Subpoenas (1 July 2003) at para. 12
2176
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Subpoena to Interview President
Karolos Papoulias (20 March 2012) at para. 12
2177
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Subpoena to Interview Edin
Garapljia (15 November 2012) at para. 11

364
 The Trial Chamber erred in failing to examine whether the defence has presented
reasons for the need to interview these witnesses which went beyond the need to prepare a
more effective cross-examination. If such examination discloses a need for the defence to
interview the witnesses, as mentioned above, subpoenas should issue. 2178

In a situation where the defence is unaware of the precise nature of the evidence
which a prospective witness can give, and where the defence has been unable to obtain his
voluntary cooperation, it would not be reasonable to require the defence to seek a
subpoena compelling his testimony at trial or at a deposition without first knowing what
he would say. This would be contrary to the duty owed by counsel to their client to act
skillfully and with loyalty. 2179

subpoena denied

Subpoena to former FRY Prime Minister Milan Panic denied where his proposed
testimony related to statements of the accused recorded in written correspondence, which
could be admitted through other witnesses or through the bar table. 2180

Subpoena for police inspector at Omarska camp denied where 10 other inspectors
worked at the camp and therefore the subpoena was not shown to be necessary. 2181

Subpoena for member of Prijedor Crisis Staff denied where it was not shown that
other members of the Crisis Staff could not provide the same evidence. 2182

Subpoena denied for US Ambassador Tony Hall where information about his
meetings with the accused and the successful passage of a food convoy into Sarajevo was
available through other evidence.2183

Subpoena denied to Bosnian Muslim leader Hasan Cengic where information

about arms smuggling and population movement was available from other sources.2184

Subpoena to Bosnian Muslim leader Fikret Abdic denied where information about
his activities and contacts with the accused and alleged JCE members was already
admitted through documents.2185

2178
Prosecutor v Halilovic, No. IT-01-48-AR73, Decision on the Issuance of Subpoenas (21 June 2004) at
para. 15
2179
Prosecutor v Krstic, No. IT-98-33-A, Decision on Application for Subpoenas (1 July 2003) at para. 8
2180
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Prime Minister
Milan Panic (13 December 2012) at para. 12
2181
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Ranko Mijic (11
January 2013) at para. 10
2182
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Slavko Budimir
(22 January 2013) at para. 16
2183
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Ambassador
Hall (16 January 2013) at para. 19
2184
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Hasan Cengic (6
May 2013) at para. 17

365
 Subpoena to Bosnian Muslim commander Naser Oric denied where information
about Muslim arms smuggling, appropriation of humanitarian aid, lack of
demilitarization, and attacks from the safe area had already been introduced into evidence
and therefore information sought from witness was available through other means. 2186

Subpoena to battalion commander denied where the accused failed to show that
other members of the battalion could not give the same evidence and therefore that the
evidence was not available by other means. 2187

Defence subpoena to Minister who gave speech which prosecution claimed

showed genocidal intent unnecessary where text of speech was available. 2188

Defence subpoena to Dutchbat commander denied where similar information as to

the decision to evacuate the population of Srebrenica was admitted from other witnesses
and therefore there was no necessity to compel the evidence by subpoena. 2189

Defence subpoena to former chief of US CIA Balkans Task Force denied where
similar information was available from other sources. 2190

Defence subpoena to military judge denied where similar information as to why

suspects in crimes against non-Serbs were released from detention was available in
judicial records.2191

Defence subpoena to municipal official denied where other witnesses from the
same municipality had already testified or were scheduled to testify and therefore the
information was obtainable through other means. 2192

subpoena factors

2185
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Fikret Abdic (26
February 2013) at para. 13
2186
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Second Motion to Subpoena Naser
Oric (4 April 2013) at para. 15
2187
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Dragos
Milankovic (18 January 2013) at para. 14; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s Motion to Subpoena Milos Tomovic (28 January 2013) at para. 14
2188
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Dragan Kalinic
(18 December 2013) at para. 11
2189
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Thomas
Karremans (29 May 2013) at para. 14
2190
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Subpoena to Norman
Schindler (19 February 2014) at para. 20
2191
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Nikola
Tomasevic (11 December 2013) at paras.11-13; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s Motion to Subpoena Srdan Forca (18 December 2013) at para. 12
2192
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Witness KW540
(3 February 2014) at para. 13

366
 In considering whether to issue a subpoena, the Trial Chamber must consider (1)
whether the information in the possession of the prospective witness is necessary for the
resolution of specific issues in the trial (the “legitimate forensic purpose” requirement)
and (2) whether the information in the possession of the prospective witness is obtainable
by other means (the “last resort” requirement)2193

Factors relevant to supporting the issuance of a subpoena include (1) the position
held by the prospective witness in relation to the events in question; (2) any relationship
the witness may have had with the accused which is relevant to the charges; (3) any
opportunity the witness may have had to observe or to learn about those events: (4) and
any statements the witness made to the Prosecution or others in relation to them. 2194

Information sought through the issuance of a subpoena must be of “material

assistance”, rather than merely helpful or of some assistance. The information must be of
“substantial or considerable assistance” to the party in relation to a clearly identified issue
that is relevant to the trial. 2195

The applicant seeking a subpoena must demonstrate a reasonable basis for his
belief that the prospective witness is likely to give information that will materially assist
the applicant with respect to clearly identified issues in the forthcoming trial. 2196

subpoena granted

Subpoena issued to ABiH General and Croatian Intelligence Service Director

where it was shown that he was likely to have information on arms smuggling to Tuzla
and Srebrenica, where such information was relevant to the accused’s case and could not
be obtained from other sources, and where the General had declined to be interviewed. 2197

Subpoena for interview issued to German national suspected of smuggling

ammunition to Bosnian Muslims where evidence was relevant to charge that accused
hindered passage of humanitarian convoys, where Germany had claimed it had no records
pertaining to the matter, and where the witness failed to respond to request for
interview.2198

2193
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Assigned Counsel Application for Interview and
Testimony of Tony Blair and Gerhard Schroeder (9 December 2005) at para. 36
2194
Prosecutor v. Krsti , IT-98-33-A, Decision on Application for Subpoenas, (1 July 2003) at para. 11;
Prosecutor v Halilovic, No. IT-01-48-AR73, Decision on the Issuance of Subpoenas (21 June 2004) at
para. 6
2195
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena President
Karolos Papoulias (23 October 2012) at para. 15
2196
Prosecutor v. Krsti , IT-98-33-A, Decision on Application for Subpoenas, (1 July 2003) at para. 10;
Prosecutor v Halilovic, No. IT-01-48-AR73, Decision on the Issuance of Subpoenas (21 June 2004) at
para. 6
2197
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena for Interview
General Said Delic and Brigadier Refik Brdjanovic (5 July 2011); Prosecutor v Karadzic, No. IT-95-5/18-
T, Decision on the Accused’s Motion for Subpoena to Interview Mirolsav Tudjman (14 July 2011)
2198
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Subpoena to Interview
Christoph von Bezold (1 December 2011)

367
 Subpoena for interview issued to Croatian General in charge of obtaining weapons
during the war where evidence of arms smuggling was relevant to the accused’s case and
could not be obtained from other sources, and where the General had declined to be
interviewed.2199

Subpoena to Bosnian Serb Army leader was necessary where he declined to testify
and could testify to whether he informed the accused of the killings in Srebrenica. 2200

Subpoena granted to former Bosnian Muslim security operative who stated in

OTP interview that Muslims had staged some shellings in Sarajevo to blame the Bosnian
Serbs as this would be of material assistance to the defence case and was not obtainable
by other means. 2201

Subpoena granted for Ambassador Jose Cutileiro where his contact with the
accused during peace negotiations was relevant to the mens rea of the accused and he had
sustained personal contact with the accused, making his evidence not obtainable by other
means.2202

Subpoena granted to accused’s political advisor who had relevant information

about the accuseds knowledge and state of mind concerning the events charged in the
indictment.2203

Subpoena granted to Minister of Interior who was alleged to be member of JCE

and who had personal conversations with the accused and therefore possessed information
not available by other means.2204

Subpoena granted to assistant commander of Trnopolje Camp where commander

was deceased and where testimony concerning establishment and operation of camp were
relevant to defence. 2205

2199
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Subpoena to Interview
Vladimir Zagorec (12 March 2012)
2200
Prosecutor v Karadzic, No. IT-9505/18-T, Decision on Accused’s Motion to Subpoena Radislav Krstic
(23 October 2012) at paras. 9-11; Prosecutor v Karadzic, No. IT-9505/18-T, Decision on Accused’s Motion
to Subpoena Milenko Zivanovic (23 April 2013) at para. 16; Prosecutor v Karadzic, No. IT-9505/18-T,
Decision on Accused’s Motion to Subpoena Zdravko Tolimir (9 May 2013) at para. 19; Prosecutor v
Karadzic, No. IT-9505/18-T, Decision on Accused’s Motion to Subpoena Ljubisa Beara (9 May 2013) at
para. 14; Prosecutor v Karadzic, No. IT-9505/18-T, Decision on Accused’s Motion to Subpoena Radivoje
Miletic (9 May 2013) at para. 14; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion
to Subpoena Ratko Mladic (11 December 2013) at para. 22
2201
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Second Motion for Subpoena: Edin Garaplija
(18 December 2012) at paras. 15-16
2202
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Ambassador
Jose Cutileiro (19 December 2012) at paras. 13-15
2203
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena John Zametica
(27 August 2013) at para. 12
2204
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Mico Stanisic
(13 December 2013) at para. 14

368
 Defence subpoena to brigade commander granted where he had authored
documents used by the prosecution as evidence of a plan to expel Muslims and where
witness is uniquely situated to explain what he meant in those documents. 2206

necessity

Testimony about accused’s statements to Greek President denying responsibility

for marketplace shelling and claiming that UN personnel were detained as prisoners of
war was obtainable from other persons and therefore subpoena to Greek President was
not necessary. 2207

Whether or not the legal arguments put forth by the accused are ultimately
successful, he is entitled to make those arguments and gather evidence in support thereof,
including by issuance of a subpoena where necessary. 2208

Where accused had already interviewed three persons who attended the meeting in
question, and where two witnesses sought to be subpoenaed avered through the US State
Department that they had no information about an agreement made at that meeting, the
accused failed to demonstrate a reasonable basis for his belief that there is a good chance
that the witnesses, if subpoenaed, would be able to give information which would
materially assist him in his case. 2209

Declining to submit to an interview and refusing to testify are two different things.
Where witness declined to be interviewed, motion for subpoena to testify denied absent
showing that witness also refused to testify. 2210

Where witness declined to be interviewed as a result of pending investigation

against him, it was not established that he would decline to testify voluntarily and
therefore motion for subpoena would be denied.2211

not issued lightly

Subpoenas should not be issued lightly for they involve the use of coercive powers
and may lead to the imposition of a criminal sanction.2212
2205
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Slavko Puhalic
(20 March 2013) at paras. 14-16
2206
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena Svetozar Andric
(28 May 2013) at para. 14
2207
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Subpoena President
Karolos Papoulias (23 October 2012) at paras. 17-18
2208
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Compel Interview: General
Rupert Smith (25 January 2011) at para. 10
2209
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Subpoena for Douglas Lute and
John Feeley (8 July 2009) at para. 14
2210
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Subpoena: Edin Garaplija (26
November 2012) at para. 13
2211
Decision on Accused’s Motion to Subpona Naser Oric (11 January 2013) at para. 15

369
 subpoena for pretrial motion

A subpoena can be issued to obtain information necessary for a pre-trial

motion.2213

subpoena for prosecution interview

Witnesses to a crime are the property of neither the Prosecution nor the Defence;
both sides have an equal right to interview them. Where, however, a person for any reason
declines to be interviewed, the Prosecution does not have the power to compel the person
to attend an interview or to respond to questions posed by the Prosecution. If the
Prosecution or the Defence wishes to compel an unwilling person to submit to a pre-trial
interview, then it must seek the assistance of the Chamber pursuant to Rule 54. 2214

relevance

The applications of the accused failed to identify with sufficient specificity the
particular indictment-related issues to which the proposed testimony of Tony Blair and
Gerhard Schroeder was relevant or how this testimony would materially assist the
accused in his case.2215

waiver

Where a potential witness refuses to be interviewed by a party, the party is

obligated to use all mechanisms of compulsion available to contact the witness. Failure to
do so, a party cannot complain of error on appeal. 2216

war correspondents

In order for a Trial Chamber to issue a subpoena to a war correspondent, (1) the
evidence sought must be of direct and important value in determining a core issue in the
case; and (2) the evidence sought cannot reasonably be obtained elsewhere. 2217

An individual war correspondent can decide to waive this privilege. 2218

2212
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 399
2213
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Subpoena for Douglas Lute and
John Feeley (8 July 2009) at para. 12
2214
Prosecutor v Mrksic et al, No. IT-95-13/1-AR73, Decision on Defence Interlocutory Appeal on
Communication with Potential Witnesses of the Other Party (30 July 2003) at para. 15
2215
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Assigned Counsel Application for Interview and
Testimony of Tony Blair and Gerhard Schroeder (9 December 2005) at para. 48
2216
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 58
2217
Prosecutor v Brdjanin & Talic, No. IT-99-36-AR73.9, Decision on Interlocutory Appeal (11 December
2002)
2218
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motion to Exclude Testimony of War
Correspondents (20 May 2009) at para. 3; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s Motion to Exclude the Testimony of Aernout van Lynden (17 May 2010)

370
 witnesses of the opposing party

The mere fact that the person has agreed to testify for the Defence does not
preclude the Prosecution from interviewing him provided of course that there is no
interference with the course of justice. Particular caution is needed where the Prosecution
is seeking to interview a witness who has declined to be interviewed by the Prosecution,
since in such a case the witness may feel coerced or intimidated.2219

The prosecution may interview defence witnesses without permission of the Trial
Chamber but must provide notice of the interview to the defence. 2220

Where prosecution has the contact details of a defence witness, they are free to
contact the defence witness directly, rather than going through the Victims and Witnesses
Section, but should give advance notice of those witnesses they intended to contact. 2221

Victims and Witness Section ordered to contact prosecution witnesses whom the
defence wishes to interview and ascertain whether they agree to be interviewed by the
defence and whether they wish a member of the prosecution to be present. 2222

Defence allowed to interview witness with potential exculpatory information by

telephone conference in presence of prosecution as a means of obtaining voluntary
cooperation of the witness. 2223

Prosecution has the unilateral right to contact persons on defence witness list,
although Trial Chamber took note of its willingness to provide advance notice to defence
of interviews with sensitive witnesses. 2224

Prosecution would not be required to provide notice to the defence of defence

witnesses it wishes to interview beyond providing a blanket list which included virtually
every defence witness. 2225

Subpoena could only be issued to submit to interview by opposing party only in

the most extraordinary circumstances, such as where the potential witness was a

2219
Prosecutor v Mrksic et al, No. IT-95-13/1-AR73, Decision on Defence Interlocutory Appeal on
Communication with Potential Witnesses of the Other Party (30 July 2003) at para. 16
2220
Prosecutor v Mrksic et al, No. IT-95-13/1-T, Decision on Prosecution Motion to Interview Defence
Witnesses (1 September 2006)
2221
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interviews of Defence Witnesses by the
Prosecution (8 November 2012) at paras. 13-14
2222
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motion for Reconsideration of Decision on
Motion for Order for Contact with Prosecution Witnesses (15 July 2009)
2223
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Order on Disclosure of Memorandum and on
Interviews with a Prosecution Source and Witness (13 December 2006) at pg. 7
2224
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Slobodan Praljak’s Motion for Protective
Measures (20 March 2008)
2225
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Clarification of Decision
on Defence Witness Interviews (8 January 2013) at para. 10

371
participant in or witness to the underlying crimes. Motion to subpoena amicus curiae for
interview denied.2226

Where a witness whom a party seeks to subpoena is scheduled to testify during the
trial, a Trial Chamber may refuse the request where its sole rationale is to prepare for a
more effective cross-examination. 2227 However, given that during cross-examination the
Defence can elicit from the Prosecution witness information which is relevant to its own
case and goes beyond the scope of the Prosecution’s examination-in-chief, the Defence
may have a legitimate need to interview this witness prior to trial in order to properly
prepare its case. 2228

Taking a cautious approach to the issuance of a subpoena is particularly necessary

when a party seeks to subpoena a witness who will testify for the opposing party and who
had declined to be interviewed in advance of that testimony. Such a subpoena should be
issued as a last resort.2229

Accused demonstrated that subject matter upon which he proposed to interview

prosecution witness was relevant to his defence and that the witness was uniquely
positioned to provide such information. Therefore, he showed a legitimate need to
interview the prosecution witness in order to gather information that may materially assist
his defence. 2230

Subpoena to prosecution witness General Rupert Smith denied where witness

agreed to be interviewed by defence team after motion for subpoena was filed. 2231

Rule 54 bis—orders directed to States

(A) A party requesting an order under Rule 54 that a State produce documents or
information shall apply in writing to the relevant Judge or Trial Chamber and
shall:
(i) identify as far as possible the documents or information to which the
application relates;
(ii) indicate how they are relevant to any matter in issue before the Judge or Trial
Chamber and necessary for a fair determination of that matter; and
(iii) explain the steps that have been taken by the applicant to secure the State’s

2226
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Urgent
Defence Motion for Issuance of Subpoena to Amicus Curiae Prosecutor (3 February 2009) at para. 14
2227
Prosecutor v Halilovic, No. IT-01-48-AR73, Decision on the Issuance of Subpoenas (21 June 2004) at
para. 10
2228
Prosecutor v Halilovic, No. IT-01-48-AR73, Decision on the Issuance of Subpoenas (21 June 2004) at
para. 14
2229
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Compel Interview: General
Rupert Smith (25 January 2011) at para. 9
2230
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Compel Interview: General
Rupert Smith (25 January 2011) at para. 11
2231
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Compel Interview: General
Rupert Smith (25 January 2011)

372
assistance.
(B) The Judge or Trial Chamber may reject an application under paragraph (A) in
limine if satisfied that:
(i) the documents or information are not relevant to any matter in issue in the
proceedings before them or are not necessary for a fair
determination of any such matter; or
(ii) no reasonable steps have been taken by the applicant to obtain the documents or
information from the State.
(C) (i) A decision by a Judge or a Trial Chamber under paragraph (B) or (E)
shall be subject to:
(a) review under Rule 108 bis; or
(b) appeal.
(ii) An appeal under paragraph (i) shall be filed within seven days of filing of the
impugned decision. Where such decision is rendered orally, this time-limit shall run
from the date of the oral decision, unless
(a) the party challenging the decision was not present or represented when the
decision was pronounced, in which case the time-limit shall run from the date on
which the challenging party is notified of the oral decision; or
(b) the Trial Chamber has indicated that a written decision will follow, in which
case the time-limit shall run from filing of the written decision.
(D) (i) Except in cases where a decision has been taken pursuant to paragraph
(B) or paragraph (E), the State concerned shall be given notice of the application,
and not less than fifteen days’ notice of the hearing of the application, at which the
State shall have an opportunity to be heard.
(ii) Except in cases where the Judge or Trial Chamber determines otherwise, only
the party making the application and the State concerned shall have the right to be
heard.
(E) If, having regard to all circumstances, the Judge or Trial Chamber has good
reasons for so doing, the Judge or Trial Chamber may make an order to which this
Rule applies without giving the State concerned notice or the opportunity to be
heard under paragraph (D), and the following provisions shall apply to such an
order:
(i) the order shall be served on the State concerned;
(ii) subject to paragraph (iv), the order shall not have effect until fifteen days after
such service;
(iii) a State may, within fifteen days of service of the order, apply by notice to the
Judge or Trial Chamber to have the order set aside, on the grounds that disclosure
would prejudice national security interests. Paragraph (F) shall apply to such a
notice as it does to a notice of objection;
(iv) where notice is given under paragraph (iii), the order shall thereupon be stayed
until the decision on the application;
(v) paragraphs (F) and (G) shall apply to the determination of an application made
pursuant to paragraph (iii) as they do to the determination of an application of
which notice is given pursuant to paragraph (D);
(vi) the State and the party who applied for the order shall, subject to any special
measures made pursuant to a request under paragraphs (F) or (G), have an

373
opportunity to be heard at the hearing of an application made pursuant to
paragraph (E)(iii) of this Rule.
(F) The State, if it raises an objection pursuant to paragraph (D), on the grounds
that disclosure would prejudice its national security interests, shall file a notice of
objection not less than five days before the date fixed for the hearing, specifying the
grounds of objection. In its notice of objection the State:
(i) shall identify, as far as possible, the basis upon which it claims that its national
security interests will be prejudiced; and
(ii) may request the Judge or Trial Chamber to direct that appropriate protective
measures be made for the hearing of the objection, including in particular:
(a) hearing the objection in camera and ex parte;
(b) allowing documents to be submitted in redacted form, accompanied by an
affidavit signed by a senior State official explaining the reasons for the redaction;
(c) ordering that no transcripts be made of the hearing and that documents not
further required by the Tribunal be returned directly to the State without being
filed with the Registry or otherwise retained.
(G) With regard to the procedure under paragraph (F) above, the Judge or Trial
Chamber may order the following protective measures for the hearing of the
objection:
(i) the designation of a single Judge from a Chamber to examine the documents or
hear submissions; and/or
(ii) that the State be allowed to provide its own interpreters for the hearing and its
own translations of sensitive documents.
(H) Rejection of an application made under this Rule shall not preclude a
subsequent application by the requesting party in respect of the same documents or
information if new circumstances arise.
(I) An order under this Rule may provide for the documents or information in
question to be produced by the State under appropriate arrangements to protect its
interests, which may include those arrangements specified in paragraphs (F)(ii) or
(G).

appeal

Direct appeal did not lie from decision of Trial Chamber denying binding order to
European Union where decision was not in limine denial of binding order but was
decision on merits after full consideration by Trial Chamber in consultation with parties
and European Union.2232

In cases where the judgement is on appeal, the Appeals Chamber will only
compel material pursuant to Rule 54 bis in exceptional circumstances. Such
circumstances arise if a failure to compel production has the potential to result in a
miscarriage of justice. The Appeals Chamber will also consider whether the information

2232
Prosecutor v Gotovina et al, No. IT-06-90-AR54bis.1, Decision on Prosecution Motion to Strike
Gotovina Defence’s Appeal Pursuant to Rule 54 bis…(6 July 2010) at para. 12

374
sought could have been discovered by the moving party at trial through the exercise of
due diligence.2233

compliance

Inviting a party to search through immense archives while giving no indication

whether the documents exist at all is not satisfactory compliance with a request to a State
for production of documents.2234

Government of Croatia ordered to intensify search for documents requested by the

prosecution and to provide detailed reports of its efforts where its claim that it could not
find the requested documents was not conclusive. 2235

existence

Where the creation, continued existence, and current whereabouts of the requested
documents was uncertain, the Trial Chamber declined to issue a binding order for the
documents.2236

efforts to obtain voluntary compliance

Implicit in the Rule’s requirement that a party explain the steps he has taken to
obtain voluntary compliance is that an applicant must have made a reasonable effort to
obtain the materials voluntarily before seeking a binding order.2237

Only after a State declines to lend the requested support should a party make a
request to a Trial Chamber to take mandatory action under Article 29 and Rule 54 bis.2238

Rule 54 bis motion dismissed as premature where State indicated a willingness to

provide some documents. It is not necessary that an accused have all documents he seeks
from a State before his trial commences. 2239

2233
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Decision on Ante Gotovina’s Renewed Application
for an Order Pursuant to Rule 54 bis Directing the Government of the Republic of Serbia to Produce
Documents (16 November 2011) at para. 7
2234
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Sreten Lukic’s Amended Rule 54 bis
Application (29 September 2006) at para. 10
2235
Prosecutor v Gotovina et al, No. IT-06-90-T, Order in Relation to Prosecution’s Application for an
Order Pursuant to Rule 54 bis (16 September 2008)
2236
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Prosecution’s Application for an Order
Pursuant to Rule 54 bis Directing the Government of the Republic of Croatia to Produce Documents or
Information (26 July 2010) at para. 137
2237
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Sreten Lukic’s Amended Rule 54 bis
Application (29 September 2006) at para. 7; Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on
Accused’s Application for Binding Order Pursuant to Rule 54 bis (United States of America) at para. 10;
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Application for Binding Order
Pursuant to Rule 54 bis (Federal Republic of Germany) (19 May 2010) at para. 16
2238
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Application for Binding Order
Pursuant to Rule 54 bis (United States of America) at para. 10

375
 Rule 54 bis motion dismissed as premature where, despite passage of 18 month
since the request, the State indicated that it was cooperating in the process by seeking
review by a third and fourth state to declassify the requested document. 2240

Rule 54 bis motion dismissed as premature where motion was filed 37 days after
request to the State, as the State was not given enough time to voluntarily provide the
documents.2241

An applicant may not be found to have met the reasonable steps requirement
under Rule 54 bis where he refused the same requested documents or information when
they were volunteered by a State under Rule 70. 2242

A party may not bypass a State’s cooperative efforts to assist it with gaining
access to certain confidential information simply because that party does not want the
State to be able to utilize the protections afforded to it through Rule 70. 2243

Where a State refused to allow use of exculpatory material at trial pursuant to

Rule 70, while the State could not be compelled to so consent, the applicant could apply
to the Trial Chamber for other relief. 2244

Request for documents served on government and failure of government to

respond to that request within a reasonable time constituted sufficient evidence of
reasonable steps to obtain compliance.2245

Where government’s cooperation in producing requested documents was slow

and sometimes problematic, it was incumbent upon the accused to apply for the Trial
Chamber’s assistance in order to assure that the documents were received in a timely
manner.2246

Interpol

2239
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Application for Binding Order
Pursuant to Rule 54 bis (United States of America) at para. 12
2240
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Third Application for Binding Order
(United States of America)(17 February 2011) at para. 9
2241
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Decision on Ante Gotovina’s Application for an
Order Pursuant to Rule 15 bis Directing the Government of the Republic of Serbia to Produce Documents
(19 July 2011)
2242
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 31
2243
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 37
2244
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 38, fn 91
2245
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Binding Order (The
Islamic Republic of Iran) (9 June 2010) at para. 19
2246
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 93

376
 Registrar requested to request Interpol to publish “red notice” to facilitate the
arrest of three persons charged with contempt for whom Serbia declined to execute ICTY
arrest warrants.2247

national security interests

States cannot refuse to produce documents on the ground of national security

interests, but must seek protective measures from the Chamber to protect those
interests.2248

After examination in camera at the United Kingdom Embassy of documents

subject to national security concerns, Trial Chamber was satisfied that summaries offered
to the accused would constute bona fide compliance with his request, such as to justify
Rule 70 conditions were not being used as a blanket refusal to provide the material in
question. 2249

necessity

The necessity requirement does not require a showing that the material in fact
exists. All that is required is that an applicant make a reasonable effort to demonstrate
their existence. 2250

The necessity requirement does not require that an applicant demonstrate that he
has exhausted all other sources for the information. However, it is reasonable for the
applicant to demonstrate that he has been unable to obtain the material from other sources
through due diligence or that the information received from other sources is insufficiently
probative for a fair determination of the matter.2251

2247
Prosecutor v Jojic et al, No. IT-03-67-R77.5, Order in Relation to Interpol Red Notice (14 February
2017)
2248
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Application for Binding Order
Pursuant to Rule 54 bis (Federal Republic of Germany) (19 May 2010) at paras. 41.43; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Binding Order (French Republic)(30
June 2010) at para. 27
2249
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion to Compel Production of
Seven Documents (28 March 2013) at para. 15
2250
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 23; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the
Accused’s Application for Binding Order Pursuant to Rule 54 bis (Federal Republic of Germany) (19 May
2010) at para. 15
2251
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 25; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the
Accused’s Application for Binding Order Pursuant to Rule 54 bis (Federal Republic of Germany) (19 May
2010) at para. 15

377
 It is for the Trial Chamber alone to determine whether the requirements of Rule
54 bis are met. It is not for a State to unilaterally determine which documents are
necessary for a fair hearing. 2252

A State cannot unilaterally narrow the request. It is for the applicant to determine
what information he needs. However, Rule 54 bis orders are reserved for cases in which
they are really necessary. 2253

Where prosecution had provided disclosure of some of the documents on the same
topic as those sought by the binding order application, the accused did not show that a
binding order was necessary. 2254

Binding order would not issue for production of raw data for 14 DNA cases from
International Commission on Missing Persons where sufficient cases were provided
voluntarily by organization for accused to test the accuracy of the results. 2255

Trial Chamber declined to order European Union to interview persons to

determine whereabouts of log book where it was not convinced that log books existed
and that such interviews were necessary. 2256

originator principle

A State cannot be required to produce material which originated with another

2257
State.

In such a case, the State should indicate to the Chamber which particular
documents are owned by third states and thus cannot be disclosed to the party without
that state’s permission. 2258

The identity of the originator State need not be disclosed to the party where the
receiving State was willing to disclose the material and the Trial Chamber, after in

2252
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Sreten Lukic’s Amended Rule 54 bis
Application (29 September 2006) at para. 7
2253
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 27
2254
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Binding Order (The
Islamic Republic of Iran) (9 June 2010) at para. 23
2255
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for BindingOrder to
International Commission on Missing Persons (4 March 2013) at para.26
2256
Prosecutor v Gotovina, No. IT-06-90-T, Decision on the Gotovina Defence’s Request to Order the
European Union to Carry out Further Investigations on the Whereabouts of the RC-Knin Log Book (3 Juen
2010)
2257
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 45; Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.1,
Decision on Request of NATO for Review (12 May 2006) at para. 20
2258
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Application for Binding Order
Pursuant to Rule 54 bis (Federal Republic of Germany) (19 May 2010) at para. 43

378
camera inspection of the material, was satisfied that the accused would not be
prejudiced.2259

protective measures

Protective measures granted under Rule 54 bis do not apply mutatis mutandis in
other proceedings before the Tribunal. 2260

A State bears the burden of demonstrating national security interests in order to

warrant protective measures under Rule 54 bis.2261

Republic of Serbia failed to meet its burden of showing that national security
interests warranted protective measures.2262

Identity of employees of state security services in 1990s, and identities of entities

receiving the state security information would not be redacted as the State had not shown
a national security interest that would be affected by disclosure. Identity of the sources of
the information would be redacted.2263 Contacts with intelligence agencies of other
countries would also be redacted.2264

While protective measures would be granted for documents containing the name
of current state security operatives, documents containing the names of former operatives
would not be redacted.2265

No compelling reason existed to redact the names of persons not involved in the
ICTY proceedings and such a request made on behalf of a State was denied. 2266

2259
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion to Compel Production of
Seven Documents (28 March 2013) at para. 16
2260
Prosecutor v Perisic, No. IT-04-81-AR108bis.4, Decision on the Republic of Serbia’s Request for
Review of the Trial Chamber’s Decision of 15 February 2010 (15 April 2010) at para. 14; Prosecutor v
Stanisic & Simatovic, No. IT-03-69-T, Decision on the Republic of Serbia’s Request for Protective
Measures for Four Documents (12 April 2012) at para. 9
2261
Prosecutor v Perisic, No. IT-04-81-AR108bis.4, Decision on the Republic of Serbia’s Request for
Review of the Trial Chamber’s Decision of 15 February 2010 (15 April 2010) at para. 21
2262
Prosecutor v Perisic, No. IT-04-81-AR108bis.4, Decision on the Republic of Serbia’s Request for
Review of the Trial Chamber’s Decision of 15 February 2010 (15 April 2010) at paras. 16,22
2263
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Republic of Serbia’s Request for
Protective Measures for Four Documents (12 April 2012) at paras. 12-14; Prosecutor v Stanisic &
Simatovic, No. IT-03-69-T, Decision on the Republic of Serbia’s Request for Protective Measures for
Three Witnesses (17 April 2012) at paras. 21-22; Prosecutor v Stanisic & Simatovic, No. IT-03-69-T,
Decision on the Serbia’s Request for Protective Measures in Relation to Defence Documents (18 July
2012) at paras. 23-24
2264
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Republic of Serbia’s Request for
Protective Measures for Three Witnesses (17 April 2012) at para. 25
2265
Prosecutor v Mladic, No. IT-09-92-T, Decision on Republic of Serbia’s Motion for Protective
Measures (15 July 2014) at paras. 14-15
2266
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Serbia’s Request for Protective
Measures in Relation to Defence Documents (18 July 2012) at para. 28

379
 State had not demonstrated that disclosure of means and methods of security
services 20 years ago would damage its national security interests.2267

relevance

Binding order to Bosnia granted for records of criminal convictions of

prosecution witnesses and list of pending indictments against those witnesses. 2268

The applicant must set out succinctly the reasons why documents are deemed
relevant to the trial. If the party considers that setting forth the reasons for the request
might jeopardize its prosecutorial or defence strategy it should say so and at least indicate
the general grounds on which the request rests.2269

While documents which may impeach certain international witnesses may be

relevant, failure of the accused to specify which witnesses would have their testimony
impacted by the documents and why justified denial of the request for binding order. 2270

Request for documents related to arms smuggling to Bosnian Muslims by

government of Iran and Saudi Arabia failed to meet the relevance requirement where it
was not shown that the arms were connected to the attack on Srebrenica or involvement
of UN personnel in arms smuggling.2271

Request for documents related to responsibility of Bosnian Muslims for shelling

and sniping events in Sarajevo were relevant and necessary and French government was
ordered to produce them to the defence.2272

Request for production of UN or NATO legal opinions on whether air strikes

would make their forces combatants was not relevant to the accused’s mens rea where
there was no evidence that he was aware of those legal opinions, and was not necessary

2267
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Serbia’s Request for Protective
Measures in Relation to Defence Documents (18 July 2012) at para. 25
2268
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Addendum to Further Defence Report re Access
to Foss Material and Additional Motions re Criminal Record of Prosecution Witnesses Filed on 5 January
2005 and 11 February 2005 (18 March 2005)
2269
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Requests by the Accused for Trial Chamber II to
Issue Subpoena Orders (3 June 2005)
2270
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Binding Order
(French Republic)(30 June 2010) at paras. 19,24
2271
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Binding Order (The
Islamic Republic of Iran) (9 June 2010) at paras. 20-23; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision
on the Accused’s Second Motion for Binding Order (The Islamic Republic of Iran) and Motion for
Subpoena to Interview General Director Sadeghi (10 May 2011) at para. 14; Prosecutor v Karadzic, No.
IT-95-5/18-T, Decision on Accused’s Motion for Binding Order (The Kingdom of Saudi Arabia) (30 June
2011) at paras. 14,18
2272
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Binding Order
(French Republic)(30 June 2010) at para. 20

380
for determination of the actual status of the forces, which would be a legal issue to be
determined by the Chamber.2273

Request for documentation of US meetings with Bosnian President denied where

it was irrelevant who started the war in Bosnia and whether the United States encouraged
the Bosnian government not to accept a peace agreement.2274

Request for subpoena to President Clinton denied where US encouragement of

arms shipments to Bosnian government in violation of UN arms embargo was
irrelevant.2275

requirements

A party seeking an order that a State produce documents or information must (1)
identify as far as possible the documents or information to which the application relates;
(2) indicate how they are relevant to any matter in issue and necessary for a fair
determination of that matter; and (3) explain the steps that have been taken by the
applicant to secure the State’s assistance. 2276

specificity

The underlying purpose of the requirement of specificity is to allow a State, in

complying with its obligation to assist the Tribunal in the collection of evidence, to be
able to identify the requested documents for the purpose of turning them over to the
requested party.2277

A request for intercepted conversations was insufficiently specific where it was

not limited to those conversations concerning issues relevant to the case and did not
specify where and when the conversations took place. The accused was ordered to
reformulate his request.2278

2273
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Binding Order (United
Nations and NATO) at paras. 15-16
2274
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Fifth Motion for Binding Order
(United States of America)(22 August 2012) at para, 10
2275
Prosecutor vKaradzic, No, IT-95-5/18-T, Decision on Accused’s Second Motion for Subpoena to
Interview President Bill Clinton (21 August 2012) at para. 12
2276
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Second Application of Dragoljub Ojdanic
for Binding Orders Pursuant to Rule 54 bis (17 November 2005) at para.18; Prosecutor v Milutinovic et al,
No. IT-05-87-AR108bis.2, Decision on Request of United States of America for Review (12 May 2006) at
para. 11
2277
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-AR108bis, Decision on Request of the Republic of
Croatia for Review of a Binding Order (9 September 1999) at para. 38; Prosecutor v Milutinovic et al, No.
IT-05-87-AR108bis.2, Decision on Request of United States of America for Review (12 May 2006) at para.
15
2278
Prosecutor v Milutinovic et al, No. IT-99-37-PT, Decision on Application of Dragoljub Ojdanic for
Binding Orders Pursuant to Rule 54 bis (23 March 2005) at page 5

381
 The requirement of specificity clearly prohibits the use of broad categories, but
does not prohibit the use of categories as such. A requested category of documents,
defined with sufficient clarity to enable ready identification will suffice. 2279

The applicant must identify specific documents and not broad categories.
Documents must be identified as far as possible and in addition be limited in number.
The Trial Chamber may, considering the need for a fair trial, allowing the omission of
those details if it is satisfied that the party requesting the order, acting bona fide, has no
means of providing these particulars. 2280

If the requesting party is unable to specify the title, date,and author of the
requested documents, but provides an explanation and is able to identify the requested
documents in some appropriate manner, a Trial Chamber may, in consideration of the
need to ensure a fair trial, allow the omission of those details if it is satisfied that the
party requesting the order, acting bona fide, has no means of providing those
particulars.2281

standard of review

The Trial Chamber’s decision on a Rule 54 bis request is a discretionary one. It

must be demonstrated that the Trial Chamber committed a discernable error causing
prejudice to a party. The decision will be overturned only where it has been found to be
(1) based upon an incorrect application of governing law; (2) based upon a patently
incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of
discretion. The Appeals Chamber will also consider whether the Trial Chamber gave
weight to extraneous or irrelevant considerations or failed to give sufficient weight to
relevant considerations. 2282

standing

A State against whom a binding order is sought does not have a right to be heard
before the issuance of the order. It is sufficient if it is heard on petition for review of that
order.2283

2279
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-AR108bis, Decision on Request of the Republic of
Croatia for Review of a Binding Order (9 September 1999) at para.39; Prosecutor v Milutinovic et al, No.
IT-05-87-AR108bis.2, Decision on Request of United States of America for Review (12 May 2006) at para.
15
2280
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Requests by the Accused for Trial Chamber II to
Issue Subpoena Orders (3 June 2005); Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision
on Request of United States of America for Review (12 May 2006) at para. 17
2281
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Application for Binding Order
Pursuant to Rule 54 bis (Federal Republic of Germany) (19 May 2010) at para. 14
2282
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 6
2283
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-AR108bis, Decision on Request of the Republic of
Croatia for Review of a Binding Order (9 September 1999) at para. 17

382
 A State does not have the locus standi to challenge the determination of whether
requested documents are necessary to a fair determination of the matter. 2284

A State to which a binding order is addressed does not have standing to challenge
the order on relevance grounds.2285

Rule 54bis(D)(ii) provision that "[e]xcept in cases where [a] Judge or Trial
Chamber determines otherwise, only the party making the application and the State
concerned shall have the right to be heard", applies to oral hearings and not to written
pleadings.2286

A State may seek protective measures for documents not produced by that State
where its security interests are involved. 2287

State has standing to request protective measures for documents it provided

voluntarily to prosecution.2288

unduly onerous

A request for a binding order must not be unduly onerous. This does not
automatically exclude all requests that call for the production of hundreds of documents.
The difficulty of producing the evidence must not be disproportionate to the exigencies of
the trial. 2289

The requirement that the request not be unduly onerous is not concerned with
protecting the confidentiality concerns of a state or an organisation but with the
“identification, collection and scrutiny” of the material requested. In other words, it is
concerned with the burden placed on states in cases where the requesting party is seeking
a large volume of material, requiring extensive effort on behalf of the states to identify
and collect such material. 2290

2284
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 21
2285
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-AR108bis, Decision on Request of the Republic of
Croatia for Review of a Binding Order (9 September 1999) at para. 40; Prosecutor v Milutinovic et al, No.
IT-05-87-AR108bis.2, Decision on Request of United States of America for Review (12 May 2006) at para.
21
2286
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Decision on Prosecution Request for Leave to
Respond to Gotovina’s Application Pursuant to Rule 54 bis (28 June 2011)
2287
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Serbia’s Requests for Provisional
Protective Measures in Relation to Defence Documents (19 October 2012) at para. 15
2288
Prosecutor v Mladic, No. IT-09-92-T, Decision on Republic of Serbia’s Motion for Protective
Measures (15 July 2014) at para. 9
2289
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-AR108bis, Decision on Request of the Republic of
Croatia for Review of a Binding Order (9 September 1999) at para. 41; Prosecutor v Karadzic, No. IT-95-
5/18-T, Decision on the Accused’s Application for Binding Order Pursuant to Rule 54 bis (Federal
Republic of Germany) (19 May 2010) at para. 17
2290
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for BindingOrder to
International Commission on Missing Persons (4 March 2013) at para.25, fn. 72

383
Rule 55—execution of arrest warrants
(A) A warrant of arrest shall be signed by a permanent Judge. It shall include an
order for the prompt transfer of the accused to the Tribunal upon the arrest of the
accused.
(B) The original warrant shall be retained by the Registrar, who shall prepare
certified copies bearing the seal of the Tribunal.
(C) Each certified copy shall be accompanied by a copy of the indictment
certified in accordance with Rule 47 (G) and a statement of the rights of the accused
set forth in Article 21 of the Statute, and in Rules 42 and 43 mutatis mutandis. If the
accused does not understand either of the official languages of the Tribunal and if
the language understood by the accused is known to the Registrar, each certified
copy of the warrant of arrest shall also be accompanied by a translation of the
statement of the rights of the accused in that language.
(D) Subject to any order of a Judge or Chamber, the Registrar may transmit a
certified copy of a warrant of arrest to the person or authorities to which it is
addressed, including the national authorities of a State in whose territory or under
whose jurisdiction the accused resides, or was last known to be, or is believed by the
Registrar to be likely to be found.
(E) The Registrar shall instruct the person or authorities to which a warrant is
transmitted that at the time of arrest the indictment and the statement of the rights
of the accused be read to the accused in a language that he or she understands and
that the accused be cautioned in that language that the accused has the right to
remain silent, and that any statement he or she makes shall be recorded and may be
used in evidence.
(F) Notwithstanding paragraph (E), if at the time of arrest the accused is served
with, or with a translation of, the indictment and the statement of rights of the
accused in a language that the accused understands and is able to read, these need
not be read to the accused at the time of arrest.
(G) When an arrest warrant issued by the Tribunal is executed by the authorities
of a State, or an appropriate authority or international body, a member of the
Office of the Prosecutor may be present as from the time of the arrest.

Rule 56—cooperation of States

The State to which a warrant of arrest or a transfer order for a witness is

transmitted shall act promptly and with all due diligence to ensure proper and
effective execution thereof, in accordance with Article 29 of the Statute.

Rule 57—procedure after arrest

Upon arrest, the accused shall be detained by the State concerned which shall
promptly notify the Registrar. The transfer of the accused to the seat of the
Tribunal shall be arranged between the State authorities concerned, the authorities
of the host country and the Registrar.

384
Rule 58—national extradition proceedings

The obligations laid down in Article 29 of the Statute shall prevail over any
legal impediment to the surrender or transfer of the accused or of a witness to the
Tribunal which may exist under the national law or extradition treaties of the State
concerned.

Rule 59—failure to execute a warrant or transfer order

(A) Where the State to which a warrant of arrest or transfer order has been
transmitted has been unable to execute the warrant, it shall report forthwith its
inability to the Registrar, and the reasons therefor.
(B) If, within a reasonable time after the warrant of arrest or transfer order has
been transmitted to the State, no report is made on action taken, this shall be
deemed a failure to execute the warrant of arrest or transfer order and the
Tribunal, through the President, may notify the Security Council accordingly.

Rule 59 bis—transmission of arrest warrants

(A) Notwithstanding Rules 55 to 59, on the order of a permanent Judge, the

Registrar shall transmit to an appropriate authority or international body or
the Prosecutor a copy of a warrant for the arrest of an accused, on such terms
as the Judge may determine, together with an order for the prompt transfer of
the accused to the Tribunal in the event that the accused be taken into custody by
that authority or international body or the Prosecutor.
(B) At the time of being taken into custody an accused shall be informed
immediately, in a language the accused understands, of the charges against him or
her and of the fact that he or she is being transferred to the Tribunal. Upon such
transfer, the indictment and a statement of the rights of the accused shall be read to
the accused and the accused shall be cautioned in such a language.
(C) Notwithstanding paragraph (B), the indictment and statement of rights of the
accused need not be read to the accused if the accused is served with these, orwith a
translation of these, in a language the accused understands and is able to read.

Rule 60—advertisement of indictment

At the request of the Prosecutor, a form of advertisement shall be transmitted

by the Registrar to the national authorities of any State or States, for publication in
newspapers or for broadcast via radio and television, notifying publicly the
existence of an indictment and calling upon the accused to surrender to the Tribunal
and inviting any person with information as to the whereabouts of the accused to
communicate that information to the Tribunal.

Rule 61—procedure in case of failure to execute a warrant

(A) If, within a reasonable time, a warrant of arrest has not been executed, and
personal service of the indictment has consequently not been effected, the Judge

385
who confirmed the indictment shall invite the Prosecutor to report on
the measures taken. When the Judge is satisfied that:
(i) the Registrar and the Prosecutor have taken all reasonable steps to secure the
arrest of the accused, including recourse to the appropriate authorities of the State
in whose territory or under whose jurisdiction and control the person to be served
resides or was last known to them to be; and (ii) if the whereabouts of the accused
are unknown, the Prosecutor and the Registrar have taken all reasonable steps to
ascertain those whereabouts, including by seeking publication of advertisements
pursuant to Rule 60, the Judge shall order that the indictment be submitted by the
Prosecutor to the Trial Chamber of which the Judge is a member.
(B) Upon obtaining such an order the Prosecutor shall submit the indictment to
the Trial Chamber in open court, together with all the evidence that was before the
Judge who initially confirmed the indictment. The Prosecutor may also call before
the Trial Chamber and examine any witness whose statement has been submitted to
the confirming Judge. In addition, the Trial Chamber may request the Prosecutor to
call any other witness whose statement has been submitted to the confirming Judge.
(C) If the Trial Chamber is satisfied on that evidence, together with such additional
evidence as the Prosecutor may tender, that there are reasonable grounds for
believing that the accused has committed all or any of the crimes charged in the
indictment, it shall so determine. The Trial Chamber shall have the relevant parts of
the indictment read out by the Prosecutor together with an account of the efforts to
effect service referred to in paragraph (A) above.
(D) The Trial Chamber shall also issue an international arrest warrant in respect
of the accused which shall be transmitted to all States. Upon request by the
Prosecutor or proprio motu, after having heard the Prosecutor, the Trial Chamber
may order a State or States to adopt provisional measures to freeze the assets of the
accused, without prejudice to the rights of third parties.
(E) If the Prosecutor satisfies the Trial Chamber that the failure to effect personal
service was due in whole or in part to a failure or refusal of a State to cooperate with
the Tribunal in accordance with Article 29 of the Statute, the Trial Chamber shall
so certify. After consulting the Presiding Judges of the Chambers, the President
shall notify the Security Council thereof in such manner as the President thinks fit.

Rule 62—initial appearance of accused

(A) Upon transfer of an accused to the seat of the Tribunal, the President shall
forthwith assign the case to a Trial Chamber. The accused shall be brought before
that Trial Chamber or a Judge thereof without delay, and shall be formally
charged. The Trial Chamber or the Judge shall:
(i) satisfy itself, himself or herself that the right of the accused to counsel is
respected;
(ii) read or have the indictment read to the accused in a language the accused
understands, and satisfy itself, himself or herself that the accused understands the
indictment;
(iii) inform the accused that, within thirty days of the initial appearance, he or she
will be called upon to enter a plea of guilty or not guilty on each count but that,

386
should the accused so request, he or she may immediately enter a plea of guilty or
not guilty on one or more count;
(iv) if the accused fails to enter a plea at the initial or any further appearance, enter
a plea of not guilty on the accused’s behalf;
(v) in case of a plea of not guilty, instruct the Registrar to set a date for trial;
(vi) in case of a plea of guilty:
(a) if before the Trial Chamber, act in accordance with Rule 62 bis, or
(b) if before a Judge, refer the plea to the Trial Chamber so that it may act in
accordance with Rule 62 bis; (vii) instruct the Registrar to set such other dates as
appropriate.
(B) Where the interests of justice so require, the Registrar may assign a duty
counsel as within Rule 45 (C) to represent the accused at the initial appearance.
Such assignments shall be treated in accordance with the relevant provisions of the
Directive referred to in Rule 45 (A).
(C) Within 30 days of the initial appearance, if the accused has not retained
permanent counsel or has not yet elected in writing to conduct his or her own
defence in accordance with Rule 45 (F), permanent counsel shall be assigned
by the Registrar. Should the Registrar be unable to appoint permanent counsel
within the time-limit, he will seek an extension from the Trial Chamber.

Rule 62 bis—guilty pleas

If an accused pleads guilty in accordance with Rule 62 (vi), or requests to change his
or her plea to guilty and the Trial Chamber is satisfied that:
(i) the guilty plea has been made voluntarily;
(ii) the guilty plea is informed;
(iii) the guilty plea is not equivocal; and
(iv) there is a sufficient factual basis for the crime and the accused’s participation in
it, either on the basis of independent indicia or on lack of any material disagreement
between the parties about the facts of the case, the Trial Chamber may enter a
finding of guilt and instruct the Registrar to set a date for the sentencing hearing.

Rule 62 ter—plea agreement procedure

(A) The Prosecutor and the defence may agree that, upon the accused entering a
plea of guilty to the indictment or to one or more counts of the indictment, the
Prosecutor shall do one or more of the following before the Trial Chamber:
(i) apply to amend the indictment accordingly;
(ii) submit that a specific sentence or sentencing range is appropriate;
(iii) not oppose a request by the accused for a particular sentence or sentencing
range.
(B) The Trial Chamber shall not be bound by any agreement specified in paragraph
(A).
(C) If a plea agreement has been reached by the parties, the Trial Chamber shall
require the disclosure of the agreement in open session or, on a showing of good
cause, in closed session, at the time the accused pleads guilty in accordance with

387
Rule 62 (vi), or requests to change his or her plea to guilty.

Following a plea agreement, Trial Chambers shall give due consideration to the
recommendation of the parties and, should the sentence diverge substantially from that
recommendation, give reasons for the departure.2291

Although there can be exceptions, Trial Chambers in general are limited to the
factual basis of the guilty plea set forth in such documents as the plea agreement,
indictment, and written statement of facts.2292

Rule 63—questioning of accused

(A) Questioning by the Prosecutor of an accused, including after the initial

appearance, shall not proceed without the presence of counsel unless the accused
has voluntarily and expressly agreed to proceed without counsel present. If the
accused subsequently expresses a desire to have counsel, questioning shall
thereupon cease, and shall only resume when the accused’s counsel is present.
(B) The questioning, including any waiver of the right to counsel, shall be
audiorecorded or video-recorded in accordance with the procedure provided for in
Rule 43. The Prosecutor shall at the beginning of the questioning caution the
accused in accordance with Rule 42 (A)(iii).

Rule 64—detention on remand

Upon being transferred to the seat of the Tribunal, the accused shall be
detained in facilities provided by the host country, or by another country. In
exceptional circumstances, the accused may be held in facilities outside of the host
country. The President may, on the application of a party, request modification of
the conditions of detention of an accused.

rules of detention

The Rules of Detention also apply to locations outside of the UN Detention Unit,
such as the Tribunal Main Building, where a detainee is temporarily held. 2293

communication

Registrar’s decision to cut off communication by detainee for 2 weeks was

excessive where it was not shown detainee’s calls intended to cause harm and he was not
warned. 2294
2291
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 89;
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 30
2292
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 12
2293
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Reversal of Decision on Limitations
on Contact with Journalist: Suddeustche Zeitung Magazin (7 October 2013) at para. 14
2294
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Milan Lukic’s Appeal Against the
Registrar’s Decision of 18 November 2008 (28 November 2008)

388
 Appeal of Registrar’s decision to terminate privileged communication with legal
associates was to President and not to the Trial Chamber. 2295

Appeal of Trial Chamber’s decision concerning restrictions on communication

must be made to the Appeals Chamber, not the President.2296

Registrar acted reasonably in terminating privileged calls between self-

represented accused and his legal associates where the associates disclosed confidential
information. 2297

Registrar is allowed to monitor all privileged telephone calls of all inmates

without specific reason to believe that a particular detainee will escape, interfere with or
intimidate a witness, interfere with the administration, disturb the security and good order
of the detention unit, or disclose confidential information. 2298

contacts with media

Registrar’s total ban on all interactive contacts between detainee and news media
was unreasonable and violated procedural fairness. 2299

It is possible for a detainee to have contact with a member of the news media in
ways which do not disturb the good order of the detention unit. 2300

Monitoring of conversation and warning to journalist are sufficient safeguards to

prevent disclosure of confidential information by an accused in his contacts with the
media. 2301

Remote, monitored contact between detainee and journalist permitted. 2302

2295
Prosecutor v Seselj, No. IT-03-67-T, Decision on Accused’s Submission 479 on the Monitoring of his
Privileged Communications (10 November 2011)
2296
Prosecutor v Seselj, No. IT-03-67-T, Decision on Urgent Registry Submission Pursuant to Rule 33(B)
Seeking Direction from the President on the Trial Chamber’s Decision of 27 November 2008 (17 December
2008)
2297
Prosecutor v Seselj, No. IT-03-67-T, Decision on Vojislav Seselj’s Request for Review of Registrar’s
Decision of 10 September 2009 (21 October 2009) at para. 21
2298
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Reversal of Decision to Monitor
Telephone Calls (21 April 2011)
2299
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Request for Denial of
Contact with Journalist (12 February 2009) at para. 18
2300
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Request for Denial of
Contact with Journalist (12 February 2009) at para. 19
2301
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Request for Denial of
Contact with Journalist (12 February 2009) at para. 21
2302
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Request for Denial of
Contact with Journalist (12 February 2009)

389
 Registrar was not unreasonable in limiting communication with journalists to
written communication where it did not have the ability to delay transmission of oral
communications such as to prevent unauthorized disclosure of confidential
information. 2303

Registrar’s decision to limit communication between a detainee and the media to

written communication was not unreasonable. 2304

Given the relatively large number of protected witnesses appearing in proceedings

before the Tribunal, as well as the high volume of confidential information generated in
those proceedings, there is a considerable risk that confidential information could be
inadvertently disclosed during a telephone conversation. 2305

When assessing a detainee’s request for access to the media, the Registrar has to
respect the detainee’s right to freedom of expression and balance it carefully against the
interests of the prison authorities. 2306

Any decision limiting a detainee’s right of freedom of expression must follow the
general provisions of proportionality. 2307

Registrar’s refusal to approve release of pre-recorded, screened audio-visual

answers to broadcast journalists questions was reasonable in light of the administrative
burden on the Registrar to review the contents of the audio-visual material. 2308

Registrar’s refusal to approve communication from accused in which he accused

UNPROFOR of smuggling weapons to Bosnian Muslims was reasonable. The accused
cannot use the media to discuss issues which are the subject of his trial, as it strips the
other party of the right to immediately react to those contentions. The courtroom is the
only place for such communications.2309

Three months taken by Registrar to review proposed communication with the

news media was inordinate delay. Such review should be conducted within ten days. 2310

2303
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Request for Reversal of Limitations on Contact
with Journalist (21 April 2009) at para. 21
2304
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Reversal of Decision on Limitations
on Contact with Journalist: Suddeustche Zeitung Magazin (7 October 2013) at paras. 15-16
2305
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Request for Reversal of Limitations on Contact
with Journalist (21 April 2009) at para. 24
2306
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Request for Reversal of
Limitations on Contact with Journalist: Russia Today (6 November 2009) at para. 23
2307
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Request for Reversal of
Limitations on Contact with Journalist: Russia Today (6 November 2009) at para. 23
2308
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Request for Reversal of
Limitations on Contact with Journalist: Russia Today (6 November 2009) at para. 23
2309
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Request for Reversal of
Limitations on Contact with Journalist: LeMonde (28 October 2009) at para. 17
2310
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Reversal of Limitations on Contact
with Journalist: Profil Magazine (11 October 2010) at paras. 19-20

390
 The Registrar is obliged to respect the detainee’s right to freedom of expression,
and to carefully balance it against the interests of the prison authorities. 2311

No reasonable person could conclude that detainee’s subjective opinion alleging

bias on the part of the prosecution and a general lack of impartiality in the conduct of its
investigations could interfere with the administration of justice or undermine the
Tribunal’s mandate. Registrar’s refusal to authorize this communication was
reversed. 2312

medical issues

Issue of Registrar’s failure to provide detainee with his full medical records
should be appealed to the President and not the Trial Chamber. 2313

Registrar was not shown to have denied detainee access to his medical records
and was only obligated to obtain medical records held by an external provider upon a
specific request by the detainee. 2314

privileged communications

Refusal of Registrar to allow privileged calls to mobile phones was

unreasonable.2315

visits

The Registrar was reasonable in determining that visitor who had revealed the
identity of a protected visit and the state of the health of the accused after a visit should
not be allowed to visit the accused again as his purpose was to disclose information to the
news media. 2316

Registrar’s decision to prohibit visit by leader of accused’s political party who

had previously made statements to media was upheld as reasonable, although it was noted

2311
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Reversal of Limitations on Contact
with Journalist: Profil Magazine (11 October 2010) at para. 21
2312
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Reversal of Limitations on Contact
with Journalist: Profil Magazine (11 October 2010) at para. 23
2313
Prosecutor v Mladic, No. IT-09-92-T, Decision on Urgent Defence Motion to Compel Registrar and
United Nations Detention Unit to Provide Medical Records (20 October 2017)
2314
Prosecutor v Mladic, No. IT-09-92-T, Decision on Three Defence Motions (13 November 2017) at
paras. 39-43
2315
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Decision on Privileged
Telephone Calls (23 March 2012) at para. 15
2316
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Appeal Against Decisions of the Registry of 20
August 2004 and 30 January 2006 (11 April 2006)

391
that it would not be reasonable to make a blanket prohibition on visits by any member of
the accused’s party. 2317

Ban on face to face meetings with journalists is reasonable so long as other means
of communication exist.2318

Registrar violated self-represented accused’s right to procedural fairness by

refusing his request to interview former detainee testifying as defence witness without
providing adequate reasons.2319

Registrar’s decision to refuse self-represented accused in-person meeting with

former detainee for witness proofing constituted a blanket ban on meetings with former
detainees not allowed by Rule 61(C) and was unreasonable. 2320

Rule 65—provisional release

(A) Once detained, an accused may not be released except upon an order of a
Chamber.
(B) Release may be ordered at any stage of the trial proceedings prior to the
rendering of the final judgement by a Trial Chamber only after giving the host
country and the State to which the accused seeks to be released the opportunity
to be heard and only if it is satisfied that the accused will appear for trial and, if
released, will not pose a danger to any victim, witness or other person. The
existence of sufficiently compelling humanitarian grounds may be considered in
granting such release.
(C) The Trial Chamber may impose such conditions upon the release of the accused
as it may determine appropriate, including the execution of a bail bond and the
observance of such conditions as are necessary to ensure the presence of the accused
for trial and the protection of others.
(D) Any decision rendered under this Rule by a Trial Chamber shall be subject to
appeal. Subject to paragraph (F) below, an appeal shall be filed within seven days of
filing of the impugned decision. Where such decision is rendered orally, the appeal
shall be filed within seven days of the oral decision, unless
(i) the party challenging the decision was not present or represented when the
decision was pronounced, in which case the time-limit shall run from the date on
which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which
case, the time-limit shall run from filing of the written decision.
(E) The Prosecutor may apply for a stay of a decision by the Trial Chamber to

2317
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Seselj’s Appeal Against Decision of the Registrar of
14 June 2006 (25 August 2006)
2318
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Request for Denial of
Contact with Journalist (12 February 2009) at para. 16
2319
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Appeal of the Registrar’s Denial of
In-Person Witness Interview: Momcilo Krajisnik (29 October 2013) at para. 16
2320
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Appeal of the Registrar’s Denial of
In-Person Witness Interview: Momcilo Krajisnik (29 October 2013) at paras. 22-23

392
release an accused on the basis that the Prosecutor intends to appeal the decision,
and shall make such an application at the time of filing his or her response to the
initial application for provisional release by the accused.
(F) Where the Trial Chamber grants a stay of its decision to release an accused,
the Prosecutor shall file his or her appeal not later than one day from the rendering
of that decision.
(G) Where the Trial Chamber orders a stay of its decision to release the accused
pending an appeal by the Prosecutor, the accused shall not be released until
either:
(i) the time-limit for the filing of an appeal by the Prosecutor has expired,
and no such appeal is filed;
(ii) the Appeals Chamber dismisses the appeal; or
(iii) the Appeals Chamber otherwise orders.
(H) If necessary, the Trial Chamber may issue a warrant of arrest to secure the
presence of an accused who has been released or is for any other reason at liberty.
The provisions of Section 2 of Part Five shall apply mutatis mutandis.
(I) Without prejudice to the provisions of Rule 107, the Appeals Chamber may
grant provisional release to convicted persons pending an appeal or for a fixed
period if it is satisfied that:
(i) the appellant, if released, will either appear at the hearing of the appeal or will
surrender into detention at the conclusion of the fixed period, as the case may be;
(ii) the appellant, if released, will not pose a danger to any victim, witness or other
person, and
(iii) special circumstances exist warranting such release.
The provisions of paragraphs (C) and (H) shall apply mutatis mutandis.

advanced stage of the trial

A Trial Chamber is no longer required to consider compelling humanitarian

circumstances when deciding on provisional release of an accused at an advanced stage
of the trial. 2321

The recent amendment of Rule 65(B) has converted the requirement of showing
compelling humanitarian grounds from a conditio sine qua non when granting
provisional release at advanced stages of proceedings to a discretionary consideration in
granting such release.2322

When considering release of an accused at an advanced stage of the proceedings,

the Trial Chamber should consider the possible negative effect on victims and
witnesses.2323
2321
Prosecutor v Prlic et al, No. IT-04-74-AR65.26, Decision on Prosecution Appeal of Decision on
Provisional Release of Jdranko Prlic (15 December 2011) at para. 12
2322
Prosecutor v Stanisic & Zupljanin, No. IT-06-91-T, Decision Granting Mico Stanisic’s Request for
Provisional Release (18 November 2011) at para. 14; Prosecutor v Stanisic & Simatovic, No. IT-03-69-T,
Decision on Simatovic Motion for Provisional Release (13 December 2011)
2323
Prosecutor v Prlic et al, No. IT-04-74-AR65.26, Decision on Prosecution Appeal of Decision on
Provisional Release of Jdranko Prlic (15 December 2011) at para. 10

393
 Imposing strict security conditions on accused adequately addressed the possible
negative effect on victims and witnesses by provisional release. 2324

Provisional release between last witness and closing argument granted.2325

appeal of provisional release decision

“Good cause” requires that the party seeking leave to appeal demonstrate that the
Trial Chamber “may have erred” in the impugned decision. No such showing was made
in this case where accused had been fugitive for several years and his earlier provisional
release was for a few days and under stringent conditions. 2326

Decision denying modification of conditions of appeal is appealable as of right

under Rule 65(D) and does not require leave to appeal. 2327

The Appeals Chamber will only overturn a Trial Chamber’s decision on

provisional release where it is found to be (1) based upon an incorrect interpretation of
governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or
unreasonable as to constitute an abuse of the Trial Chamber’s discretion. 2328

The party challenging the Trial Chamber’s decision concerning provisional

release bears the burden of showing that the Trial Chamber committed a discernible error
in that it (1) misdirected itself as to the principle applied; (2) misdirected itself as to the
law which is relevant to the exercise of discretion; (3) gave weight to extraneous or
irrelevant considerations; (4) failed to give weight or sufficient weight to relevant
considerations; (5) made an error as to the facts upon which it has exercised its
discretion; or (6) rendered a decision so unreasonable and plainly unjust that the Appeals
Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion
properly. 2329

2324
Prosecutor v Prlic et al, No. IT-04-74-AR65.26, Decision on Prosecution Appeal on the Decision on
Further Extension of Jadranko Prlic’s Provisional Release (23 April 2012) at para. 20; Prosecutor v Prlic
et al, No. IT-04-74-AR65.26, Decision on Prosecution Appeal of Decision on Provisional Release of
Jdranko Prlic (15 December 2011) at para. 10; Prosecutor v Prlic et al, No. IT-04-74-AR65.33, Decision
on the Prosecution’s Appeal of the Decision on Further Extension of Bruno Stojic’s Provisional Release
(16 May 2012) at para. 20
2325
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Stanisic Defence Request for
Provisional Release (16 July 2012)
2326
Prosecutor v Mrksic et al, No. IT-95-13/1-AR65.2, Decision on Application for Leave to Appeal (19
April 2005)
2327
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Request for Leave to Appeal Decision on Motion to
Modify Terms of Provisional Release (19 January 2016)
2328
Prosecutor v Stanisic, No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mico
Stanisic’s Provisional Release (17 October 2005) at para. 6
2329
Prosecutor v Mejakic et al, No. IT-02-65-AR65.2, Decision on Dusan Fustar’s Request for
Interlocutory and Expedited Appeal (16 December 2005) at para. 7; Prosecutor v Popovic et al, No. IT-05-
88-AR65.1, Decision on Interlocutory Appeal of Trial Chamber Decision Denying Drago Nikolic’s Motion
for Provisional Release (24 January 2006)

394
 Appeal of denial of temporary provisional release during court recess denied by
Duty Judge, subject to reconsideration of full Appeals Chamber at end of recess. 2330

awaiting appeal

Provisional release pending appeal granted where accused had served 2/3 of
sentence or more.2331

Provisional release pending appeal denied where accused had served considerable
period, but not yet 2/3 of sentence.2332

Where convicted person awaiting appeal had spent considerably less than 2/3 of
his sentence in detention, no special circumstances existed to warrant his release pending
appeal. 2333

A person convicted and awaiting appeal is a greater flight risk than a person
awaiting trial. 2334

Temporary provisional release granted to convicted person awaiting appeal to

visit his sister who was critically ill. 2335

Where a convicted person seeks provisional release pending appeal, the Appeals
Chamber has only found special circumstances where there is an acute justification, such
as a medical need, or a memorial service for a near family member. Where a convicted
person simply wishes to spend time with his family or visit a close relative in poor health,
such special circumstances do not exist.2336

Special circumstances did not exist for provisional release on appeal to attend
wedding of only daughter.2337
2330
Prosecutor v Milutinovic et al, No. IT-05-87-AR65.3, Decision on Pavkovic Appeal Pursuant to Rule
116 bis Against the Decision on Pavkovic Motion for Temporary Provisional Release Dated 12 December
2007 (18 December 2007)
2331
Prosecutor v Mrksic et al, No. IT-95-13/1-A, Decision on the Motion of Veselin Sljivancanin (11
December 2007); Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4-A, Decision on Motion of Bajrush
Morina for Provisional Release (9 February 2009); Prosecutor v Delic, No. IT-04-83-A, Decision on
Motion of Rasim Delic for Provisional Release (11 May 2009)
2332
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Valentin Coric’s Request for Provisional
Release…(1 December 2016) at p. 3
2333
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Valentin Coric’s Motion Seeking Provisional
Release…(14 May 2015) at para. 11
2334
Prosecutor v Galic, No. IT-98-29-A, Decision on Second Defence Request for Provisional Release of
Stanislas Galic, (31 October 2005) at para. 16
2335
Prosecutor v Strugar, No. IT-01-42-A, Decision on the Renewed Defence Request Seeking Provisional
Release on Compassionate Grounds (15 April 2008)
2336
Prosecutor v Brdjanin, No. IT-99-36-A, Decision on Radoslav Brdjanin’s Motion for Provisional
Release (23 February 2007)
2337
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Motion on Behalf of Vinko Pandurevic for
Provisional Release (6 June 2012)

395
 Special circumstances did not exist for provisional release on appeal to attend
surgery of 4 year old son. 2338

Motion for provisional release by person who had waived his right to appeal was
assessed under Rule 65(I) even though the rule by its terms only applies to cases pending
appeal. 2339

In situations where an application for temporary release is made pending appellate

proceedings, special circumstances exist where there is an acute justification, such as
medical need, a memorial service for a close family member, or a visit to a close family
member who is believed to be in very poor health and whose death may be imminent.
However, request to visit elderly siblings whose death was not imminent denied. 2340

Temporary release of accused awaiting appeal to attend 10 year memorial for

deceased father denied. 2341

Temporary release of accused with heart condition denied where treatment could
be adequately carried out in The Netherlands. 2342

An accused who has been convicted and is awaiting appeal may obtain
provisional release under Rule 65(I), but the fact that he has been convicted may be
considered when balancing the probabilities of flight. Accused granted provisional
release to attend memorial service for his father. 2343 , his mother2344, his brother2345, and
his daughter.2346

awaiting judgement

2338
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Nebojsa Pavkovic’s Motion for Provisional
Release on Compassionate Grounds (14 June 2012)
2339
Prosecutor v Borovcanin, No. IT-05-88-AR65.12, Decision on Appeal from Decision on Ljubomir
Borovcanin’s Request for Provisional Release (1 March 2011) at para. 8
2340
Prosecutor v Stugar, No. IT-01-42-A, Decision on Decision on the Defence Request Seeking
Provisional Release on the Grounds of Compassion (2 April 2008) at para. 12
2341
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Decision on Tarculovski Motion for Provisional
Release on Compassionate Grounds (22 July 2009)
2342
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Valentin Coric’s Motion Seeking Provisional
Release…(14 May 2015) at para. 12
2343
Prosecutor v Simic et al, No. IT-95-9-A, Decision on Motion of Blagoje Simic Pursuant to Rule 65(I)
for Provisional Release for a Fixed Period to Attend Memorial Services for his Father (21 October 2004);
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Sreten Lukic’s Third Motion for Provisional
Release on Compassionate Grounds (3 September 2010)
2344
Prosecutor v Simic et al, No. IT-95-9-A, Decision on Motion of Blagoje Simic Pursuant to Rule 65(I)
for Provisional Release for a Fixed Period to Attend Memorial Services for his Mother (5 May 2006)
2345
Prosecutor v Limaj et al, No. IT-03-66-A, Decision Granting Provisional Release to Haradin Bala to
Attend his Brother’s Memorial Service and to Observe the Traditional Period of Mourning (1 September
2006)
2346
Prosecutor v Limaj et al, No. IT-03-66-A, Decision Granting Provisional Release to Haradin Bala to
Attend His Daughter’s Memorial Service (20 April 2006)

396
 Temporary provisional release granted to accused during the period between
conclusion of the closing arguments and the judgement.2347

Temporary provisional release for medical reasons while awaiting judgement

granted2348, and denied.2349

Temporary provisional release granted after trial and before judgement to accused
charged with contempt.2350

Temporary provisional release for 9 days granted for person awaiting judgement
to attend funeral of father-in-law and to support family during bereavement.2351

Where the accused had compiled with all of the conditions of pre-trial release,
there was no reason to require him to remain in detention for the period between closing
argument and delivery of the judgement, especially since the presumption of innocence
continued. 2352

Release between closing argument and judgement granted. Prosecution argument

that accused has incentive to flee given the strength of the evidence against him
dismissed as inconsistent with the presumption of innocence. 2353

Provisional release pending judgement extended and prosecution request for

Chamber to indicate whether it has found accused guilty when assessing continued
provisional release rejected.2354

Considering that the trial was concluded, there would be no danger to witnesses
from provisional release of the accused awaiting judgement. 2355

2347
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic’s Request for Provisional
Release After Closing Arguments and Until Entry of Trial Judgement (12 Feburary 2013)
2348
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Milutinovic Motion for Temporary
Provisional Release (5 September 2008)
2349
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Sainovic Motion for Temporary
Provisional Release (5 September 2008); Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on
Prosecution Appeal from Decision on Lazarevic Motion for Temporary Provisional Release dated 26
September 2008 (23 October 2008); Decision on Sreten Lukic’s Motion for Provisional Release (3 April
2003)
2350
Prosecutor v Haraqija & Morina, IT-04-84-R77.4, Decision on Defence Application for Provisional
Release of the Accused (15 September 2008)
2351
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion for Provisional
Release…(10 February 2011)
2352
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Provisional Release (1 September
2005); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Motion for Provisional Release of the
Accused Milivoj Petkovic (30 November 2011)
2353
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting Mico Stanisic’s Motion for
Provisional Release (6 June 2012) at para. 22
2354
Prosecutor v Prlic et al, No. IT-04-74-T, Order on Jadranko Prlic’s Motion to Extend his Provisional
Release (1 March 2012)
2355
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Jadranko Prlic’s Motion for Provisional Release
(24 November 2011)

397
 Accused who failed to provide State or personal guarantees, who did not
cooperate during his trial, who had several contempt cases, and whose length of detention
was not unreasonable was denied provisional release awaiting judgement.2356

awaiting transfer or serving sentence

Sentenced prisoner awaiting transfer to serve his sentence posed a flight risk, and
his guilty plea and cooperation with the prosecution did not constitute special
circumstances warranting provisional release. 2357

Visit to ailing mother constituted special circumstances warranting 4 days of

provisional release for person whose conviction and 20 year sentence were final where he
would be in custody of local authorities during his release. 2358

Temporary release to attend memorial service for counsin by sentenced prisoner

whose appeal was affirmed denied on the basis of insufficient reasons and risk of flight
now that conviction was final. 2359

Accused serving 25 year sentence denied provisional release to see his dying
mother.2360

Accused who had served two-thirds of his sentence granted provisional release on
2361
appeal.

Provisional release denied to convicted person who did not appeal. Fact that once
transferred to a State to serve his sentenced, the convicted person would not likely see his
elderly father again did not constitute a special circumstance warranting temporary
provisional release. 2362

2356
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Accused Vojislav Seselj’s Request for Provisional
Release (23 March 2012)
2357
Prosecutor v Zelenovic, No. IT-96-23/2-ES, Decision on Motion for Provisional Release (21 February
2008)
2358
Prosecutor v Krajisnik, No. IT-00-39-ES, Decision on Krajisnik’s Application for a Custodial Visit (17
June 2009)
2359
Prosecutor v Limaj et al, No. IT-03-66-A, Decision on Motion on Behalf of Haradin Bala for
Temporary Provisional Release (14 February 2008)
2360
Prosecutor v Kordic & Cerkez, No. IT-95-14/2-A, Decision on Dario Kordic’s Request for Provisional
Release (19 April 2004)
2361
Prosecutor v Hadzihasanovic & Kabura, No. IT-01-47-A, Decision on Motion on Behalf of Enver
Hadzihasanovic for Provisional Release (20 June 2007)
2362
Prosecutor v Borovcanin, No. IT-05-88-ES.1, Decision on Borovcanin’s Request for a Custodial Visit
(7 October 2010) at para. 31

398
 Fact that person convicted of contempt had served her sentence was a special
circumstance justifying provisional release while the prosecution appealed the
sentence. 2363

Special circumstances did not exist to warrant provisional release for accused who
had served 2/3 of his sentence and whose appeal was pending. Possibility of increase in
sentence due to prosecution’s appeal mitigated against release. 2364

burden of proof

Trial Chamber did not err in placing the burden on the accused of satisfying it that
he was not a flight risk or danger.2365

It is irrelevant whether provisional release is the exception or the rule. 2366

Trial Chamber was not required to consider a presumption in favor of detention.

The proper inquiry for provisional release is whether the criteria in Rule 65(B) are
met.2367

conditions of release

Accused would be allowed to make public appearances and be involved in

political life as condition of provisional release where UNMIK contended that his
involvement would have a positive effect on political affairs in Kosovo. 2368

Tribunal can delegate to States the power to vary conditions of provisional

release,2369 as well as international bodies such as UNMIK. 2370

2363
Prosecutor v Rasic, No. IT-98-32/1-R77.2A, Decision on Jelena Rasic’s Urgent Motion for Provisional
Release…(4 April 2012) at para. 12
2364
Prosecutor v Popovic et al, No. IT-02-88-A, Decision on Vinko Pandurevic’s Motion for Provisional
Release (14 March 2014) at para. 19
2365
Prosecutor v Limaj et al, No. IT-03-66-AR15, Decision on Fatmir Limaj’s Request for Provisional
Release (31 October 2003) at para. 40; Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-AR65.3,
Decision on Ljube Boskoski’s Interlocutory Appeal on Second Motion for Provisional Release (28 August
2006) at para. 11
2366
Prosecutor v Popovic et al, No. IT-05-88-AR65.1, Decision on Interlocutory Appeal of Trial Chamber
Decision Denying Drago Nikolic’s Motion for Provisional Relase (24 January 2006)
2367
Prosecutor v Prlic et al, No. IT-04-74-AR65.26, Decision on Prosecution Appeal on the Decision on
Further Extension of Jadranko Prlic’s Provisional Release (23 April 2012) at para. 11; Prosecutor v Prlic
et al, No. IT-04-74-AR65.33, Decision on the Prosecution’s Appeal of the Decision on Further Extension
of Bruno Stojic’s Provisional Release (16 May 2012) at para. 12
2368
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Decision on Defence Motion on Behalf of Ramush
Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005 (12
October 2005)
2369
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Ramush Haradinaj’s Modified
Provisional Release (10 March 2006) at para. 76
2370
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Ramush Haradinaj’s Modified
Provisional Release (10 March 2006) at para. 80

399
 Equality of arms requires that the prosecution be allowed to be heard before
UNMIK approves participation by the accused in political events or activities. 2371

Insofar as the release of the accused was ordered strictly on humanitarian

grounds, the Trial Chamber would not impose any condition other than not to influence
witnesses and victims, and to appear before the Chamber as soon as it so orders. 2372

Accused would not be allowed to have contact with defence witnesses, past or
future, given that there was a possibility that the trial would resume if the accused
regained his health.2373

Where the trial was suspended due to the terminal illness of the accused, social
visits with witnesses would not be detrimental to the integrity of the process or the
administration of justice and would be allowed.2374

confidential status

There was no need for Trial Chamber decision granting provisional release which
included dates and place of release to be made confidential, as an insufficient showing of
danger to the accused or his escort was made. 2375

contempt

Witnesses charged with contempt would be provisionally released where they

voluntarily surrendered and did not constitute a flight risk or danger. 2376

cooperation with prosecution

The lack of value of information provided by the accused in an interview with the
prosecution by itself does not disprove cooperation by the accused. 2377 Being willing to
be interviewed is itself a measure of cooperation. 2378

2371
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Ramush Haradinaj’s Modified
Provisional Release (10 March 2006) at para. 103
2372
Prosecutor v Seselj, No. IT-03-67-T, Order on the Provisional Release of the Accused Proprio Motu (6
November 2014) at p.4
2373
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Motion to Modify Terms of Provisional Release (15
December 2015) at p. 4
2374
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Request for Reconsideration of Decision Continuing
Prohibition of Social Contacts During Provisional Release (19 April 2016) at p. 3
2375
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Prosecution Motion for Reconsideration of
Filing Status of the Appeals Chamber’s Decision on Vinko Pandurevic’s Pandurevic of 11 January 2012
(17 January 2012) at p. 4
2376
Prosecutor v Haraqija & Morina, No. IT-04-74-R77.4, Decision on Application for Provisional
Release (13 May 2008); Prosecutor v Haxhiu, No. IT-04-84-R77.5, Decision on Provisional Release of
Baton Haxhiu (23 May 2008)
2377
Prosecutor v Delic, No. IT-04-83-PT, Decision on Defence Request for Provisional Release (6 May
2005)

400
 “To restate a first principle of the International Tribunal, an accused is not
required to assist the prosecution in proving its case against them.”2379

The prosecution’s argument that, as a matter of discretion, an accused person

should not be released until the prosecution has been able to interview him fully is
misconceived. An accused person is not, while in the custody of the Tribunal, at the
disposal of the prosecution. An accused person may, if he decides to do so, co-operate
with the prosecution, inter alia, by accepting to be interviewed, but he does not have to
do so and his provisional release is not conditioned, all other conditions being met, upon
his giving such an interview while still in custody. 2380

Trial Chamber did not err in granting provisional release to accused despite fact
that he made surrender conditional on obtaining state guarantee and had not agreed to be
interviewed by the prosecution. A Trial Chamber may not penalize an accused for
exercising the right not to incriminate oneself by drawing an adverse inference from the
accused’s lack of cooperation with the prosecution or by conditioning provisional release
on such cooperation.2381

Trial Chamber erred in according insufficient weight to accused’s cooperation

with the prosecution when it denied provisional release. Cooperation with the
prosecution, while not required, may show a general attitude of cooperation with the
Tribunal relevant to the issue of whether an accused will appear for trial. 2382

The Trial Chamber was within its discretion to conclude that submitting to
interviews by the prosecution while the accused was a suspect was not indicative of
whether the accused would appear for trial. 2383

The fact that the prosecution does not accept that the information provided by an
accused to be credible or as extensive as the accused could provide is irrelevant. 2384

custodial visits

2378
Prosecutor v Simatovic, No. IT-03-69-AR65.2, Decision on Prosecution’s Appeal Against Decision on
Provisional Release (3 December 2004) at para. 9
2379
Prosecutor v Simatovic, No. IT-03-69-AR65.2, Decision on Prosecution’s Appeal Against Decision on
Provisional Release (3 December 2004) at para. 9
2380
Prosecutor v Milutinovic et al, No. IT-99-37-AR65, Decision on Provisional Release (30 October
2002) at para. 8
2381
Prosecutor v Stanisic, No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mico
Stanisic’s Provisional Release (17 October 2005) at para. 24
2382
Prosecutor v Cermak & Markac, No. IT-03-73-AR65.1, Decision on Interlocutory Appeal Against
Trial Chamber’s Decision Denying Provisional Release (2 December 2004) at para. 23
2383
Prosecutor v Popovic et al, No. IT-05-88-AR65.2, Decision on Defence’s Interlocutory Appeal of Trial
Chamber Decision Denying Ljubomir Borovcanin Provisional Release (30 June 2006) at para. 30
2384
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal
Against the Trial Chamber’s Decision Denying his Provisional Release (9 March 2006) at para. 18

401
 Custodial visits, such as those to an Embassy in The Hague to obtain a biometric
passport, are not provisional release and therefore the Chamber does not have the power
to authorize them. Such visits should be sought under the Rules of Detention, with a
possible appeal to the President.2385

danger to others

Given the volatile situation in Kosovo, Trial Chamber had to be cautious in

determining whether the accused would pose a danger if released. Although no proof of
threats could be established against the accused, he had not discharged his burden of
proving he would not pose a danger if released. 2386

Accused would not be released pending retrial where the earlier trial was marred
by allegations of witness intimidation in Kosovo, although the accused did not himself
pose a danger to any witness. 2387

Disclosure to the accused of identities of protected witnesses did not establish that
accused would be a danger to those witnesses if released. 2388

Prosecution allegations of interference with witness by third party not connected

to accused, while not thoroughly investigated, were enough to tip the scales against
provisional release. 2389

Evidence of threats by the accused against a witness and other information led to
conclusion that accused KLA leader would pose a danger to others if released. 2390

Subjective witness fear is not per se a reason to refuse provisional release. If it

were it is doubtful provisional release would ever be granted.2391

Releasing the accused to the community where he was alleged to have committed
the crimes and where victims and witnesses still reside would be unacceptable. 2392

2385
Prosecutor v. Popovic et al. No IT-05-88-A, Decision on Vinko Panduerevic’s Motion for Temporary
Alteration of the Conditions of his Detention (9 November 2011) at p. 3, fn. 21
2386
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Decision on Lahi Brahimaj’s Motion for Provisional
Release (3 November 2005)
2387
Prosecutor v Haradinaj, No. IT-04-84bis-PT, Decision on Ramush Haradinaj’s Motion for Provisional
Release (10 September 2010) at para. 38
2388
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR65.4, Decision on Prosecution Appeal of Decision
on Provisional Release and Motions to Present Additional Evidence Pursuant to Rule 115 (26 June 2008)
at para. 55
2389
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Defence Motion Requesting
Provisional Release During the Adjournment (12 May 2010) at para. 34
2390
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Further Decision on Lahi Brahimaj’s Motion for
Provisional Release (3 May 2006)
2391
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Ramush Haradinaj’s Modified
Provisional Release (10 March 2006) at para. 46
2392
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Sredoje Lukic’s Motion for Provisional
Release (13 December 2006) at para. 30

402
 When considering provisional release, the accused’s conduct, past and likely, is
the key issue, not the possible, unproven effects of the decision. 2393

factors

Factors to be considered for provisional release include (1) the fact that the
applicants are charged with serious criminal offences; (2) the fact that, if convicted, they
are likely to face long prison terms;(3) the circumstances in which they surrendered; (4)
the degree of co-operation given by the authorities of the state providing the guarantees ;
(5) the fact that the government gave guarantees that they would ensure the presence of
the accused for trial and guaranteed the observance of the conditions set by the Trial
Chamber upon their provisional release; (6) the senior positions held by the accused, so
far as it is relevant to the weight of governmental guarantees; (7) the fact that the State
recently passed a Law on Co-operation with the International Tribunal; (8) the personal
guarantees of the accused in which they undertook to abide by the conditions set by the
Trial Chamber should they be released; (9) the likelihood that, in light of the
circumstances prevailing at the time of the decision and, as far as foreseeable , the
circumstances as they may turn out to be at the time when the accused will be expected to
return for trial, the relevant authorities will re-arrest the accused should he decline to
surrender; and (10) the fact that the showed some degree of co-operation with the
Prosecution. 2394

The length of detention is a factor to be considered in the exercise of the Trial

Chamber’s discretion but cannot be a factor in determining whether the accused is a flight
risk.2395

Provisional release decisions are fact-intensive, and they are discretionary. The fact
that other trial chambers reached different conclusions in different cases, having taken into
account similar factors, has no bearing on the reasonableness of the finding of the Trial
Chamber in a particular case2396

host country

Failure to give the host country an opportunity to be heard before granting

provisional release constituted an error of law. 2397

2393
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Ramush Haradinaj’s Modified
Provisional Release (10 March 2006) at para. 50
2394
Prosecutor v Milutinovic et al, No. IT-99-37-AR65, Decision on Provisional Release (30 October
2002) at para. 6
2395
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal
Against the Trial Chamber’s Decision Denying his Provisional Release (9 March 2006) at para. 23
2396
Prosecutor v Mladic, No. IT-09-92-AR65.1, Decision on Interlocutory Appeal against Urgent Defence
Motion for Provisional Release (30 June 2017) at para. 25
2397
Prosecutor v. Milutinovic et al, No. IT-05-87-AR65.1, Decision on Interlocutory Appeal from Trial
Chamber Decision Granting Nebojsa Pavkovic’s Application for Provisional Release (1 November 2005)
at para. 12

403
 A Trial Chamber is only obligated to give the State and opportunity to be heard
before granting provisional release. It can deny provisional release without hearing from
the State.2398

length of detention

Three years of pretrial detention is proportional to the circumstances of the case

brought against him in the indictment. 2399

Fact that pretrial period was not expected to be lengthy was a factor which led the
Trial Chamber to exercise its discretion not to grant provisional release. 2400

The time at which the trial is likely to commence is a relevant factor in

determining whether to grant provisional release. 2401 However, where accused had spent
18 months in detention and it was hoped his trial would commence soon, this factor did
not weigh in favor of provisional release. 2402

The length of provisional detention of an accused is a factor to be taken into

account when considering provisional release. Accused ordered released after delay in
judgement due to disqualification of judge, combined with deteriorating health. 2403

The prospect of further delay of the trial is a factor which weighs in the exercise
of the Trial Chamber’s discretion in determining whether to grant provisional release to a
person who is neither a fight risk nor danger.2404

length of expected sentence

The gravity of the offences cannot, by itself, justify long periods of detention. 2405

2398
Prosecutor v Popovic et al, No. IT-05-88-AR65.1, Decision on Interlocutory Appeal of Trial Chamber
Decision Denying Drago Nikolic’s Motion for Provisional Release (24 January 2006)
2399
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision on Defence Motion for Provisional Release (9
March 2005) at para. 25
2400
Prosecutor v Haradinaj, No. IT-04-84bis-PT, Decision on Ramush Haradinaj’s Motion for Provisional
Release (10 September 2010) at para. 40
2401
Prosecutor v Haradinaj, No. IT-04-84-PT, Decision on Ramush Haradinaj’s Motion for Provisional
Release (6 June 2005) at para. 29; Prosecutor v Popovic et al, No. IT-05-88-AR65.2, Decision on
Defence’s Interlocutory Appeal of Trial Chamber Decision Denying Ljubomir Borovcanin Provisional
Release (30 June 2006) at para. 46
2402
Prosecutor v Milosevic, No. IT-98-29/1-PT, Decision on Second Defence Motion for Provisional
Release (9 February 2006)
2403
Prosecutor v Seselj, No. IT-03-67-T, Order on the Provisional Release of the Accused Proprio Motu (6
November 2014) at p.3
2404
Prosecutor v Milutinovic et al, No. IT-99-37-PT, Decision on Applications for Provisional Release (14
April 2005) at para. 32; Prosecutor v Delic, No. IT-04-83-PT, Decision on Defence Request for Provisional
Release (6 May 2005)
2405
Prosecutor v Pavkovic et al, No. IT-04-70-PT, Decision on Defence Request for Provisional Release
(14 April 2005) at page 4; Prosecutor v Delic, No. IT-04-83-PT, Decision on Defence Request for
Provisional Release (6 May 2005); Prosecutor v Perisic, No. IT-04-81-PT, Decision on Momcilo Perisic’s

404
 The expectation of a lengthy sentence cannot be held against the accused in
abstracto because all accused before this Tribunal, if convicted, are likely to face heavy
sentences.2406

Trial Chamber erred in regarding length of expected sentence as determinative in

justifying denial of provisional release. 2407

medical reasons

An application for provisional release for medical reasons cannot be granted

unless it can be demonstrated that the medical care is not available in The
Netherlands.2408

Medical reasons can be a salient and relevant factor in assessing whether to grant
the discretion to order provisional release. 2409

Where the accused was in fragile health, the risk of disruption of the trial were the
accused unable to return from provisional release outweighed the benefits that
provisional release might have on his health. 2410

Provisional release may be considered on humanitarian grounds, including the

health of the accused. Provisional release ordered for accused whose health had
deteriorated allow the Accused to receive treatment in the most suitable environment.2411

Trial Chamber failed to sufficiently address the issue of whether an accused

with a limited life expectancy may, as a humanitarian matter, be provisionally released to
his family while his trial remains adjourned, irrespective of the sufticiency of the
treatment received at the Detention Unit. 2412

Motion for Provisional Release (9 June 2005); Prosecutor v Popovic et al, No. IT-05-88-AR65.1, Decision
on Interlocutory Appeal of Trial Chamber Decision Denying Drago Nikolic’s Motion for Provisional
Release (24 January 2006)
2406
Prosecutor v Haradinaj, No. IT-04-84-PT, Decision on Ramush Haradinaj’s Motion for Provisional
Release (6 June 2005) at para. 24
2407
Prosecutor v Cermak & Markac, No. IT-03-73-AR65.1, Decision on Interlocutory Appeal Against
Trial Chamber’s Decision Denying Provisional Release (2 December 2004) at para.27
2408
Prosecutor v Milosevic, No. IT-04-54-T, Decision on Assigned Counsel Request for Provisional
Release (23 February 2006); Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR65.4, Decision on
Prosecution Appeal of Decision on Provisional Release and Motions to Present Additional Evidence
Pursuant to Rule 115 (26 June 2008) at para. 68
2409
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Provisional Release (26 May 2008)
at para. 41
2410
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Urgent Stanisic Defence Motion for
Provisional Release (31 March 2010) at para. 33; Prosecutor v Stanisic & Simatovic, No. IT-03-69-T,
Decision on Urgent Stanisic Defence Motion for Provisional Release (22 July 2010)
2411
Prosecutor v Seselj, No. IT-03-67-T, Order on the Provisional Release of the Accused Proprio Motu (6
November 2014) at p.3
2412
Prosecutor v Hadzic, No. IT-04-75-AR65.1, Decision on Urgent Interlocutory Appeal from Decision
on Defence Urgent Request for Provisional Release (13 April 2015) at para. 16

405
 Trial Chamber also failed to sufticiently consider and assess whether the
accused’s recovery from the side-effects of his medical treatment could be alleviated by
the close support of his family members and his general well-being could be improved by
his provisional release to his family environment. 2413

Trial Chamber erred in considering its obligation to ensure the expeditiousness of

the proceedings without explaining how this interest is served by denying the request for
a short period of provisional release during which time, in all likelihood, the accused will
not be able to attend the proceedings.2414

Appeals Chamber ordered the provisional release of the accused for a limited
period (approximately one month) and until the date of his MRI scan in The Hague. 2415

Trial Chamber continued provisional release of terminally ill accused, requiring

him to return to The Hague periodically for medical examinations. 2416

Where adequate treatment was available at the UNDU, the medical condition of
the accused was not incompatible with continued detention. 2417

oral hearing

A Trial Chamber is not required to hold an oral hearing on an application for

provisional release. 2418

An accused and his counsel do not have a right to be present at the provisional
release hearing of a co-accused.2419

reasoned opinion

2413
Prosecutor v Hadzic, No. IT-04-75-AR65.1, Decision on Urgent Interlocutory Appeal from Decision
on Defence Urgent Request for Provisional Release (13 April 2015) at para. 17
2414
Prosecutor v Hadzic, No. IT-04-75-AR65.1, Decision on Urgent Interlocutory Appeal from Decision
on Defence Urgent Request for Provisional Release (13 April 2015) at para. 18
2415
Prosecutor v Hadzic, No. IT-04-75-AR65.1, Decision on Urgent Interlocutory Appeal from Decision
on Defence Urgent Request for Provisional Release (13 April 2015) at para. 22
2416
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Urgent Motion for Provisional Release…(21 May
2015) at para. 33
2417
Prosecutor v Mladic, No. IT-09-92-T, Decision on Urgent Defence Motion for Provisional Release (11
May 2017) at para. 18
2418
Prosecutor v Racevic & Todovic, No. IT-97-25/1-AR65.1, Decision on Interlocutory Appeal from Trial
Chamber Decision Denying Savo Todovic’s Application for Provisional Release (7 October 2005) at para.
29; Prosecutor v Limaj et al, No. IT-03-66-AR15, Decision on Fatmir Limaj’s Request for Provisional
Release (31 October 2003) at para. 17; Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-AR65.3,
Decision on Ljube Boskoski’s Interlocutory Appeal on Second Motion for Provisional Release (28 August
2006) at para. 12
2419
Prosecutor v Krajisnik & Plavsic, No. IT-00-39-AR73.3, Decision on Interlocutory Appeal by
Momocilo Krajisnik (14 February 2002)

406
 A Trial Chamber is not obliged to deal with all possible factors which it can take
into account when deciding whether it is satisfied that, if released, an accused will appear
for trial. It must, however, render a reasoned opinion. This obliges it to indicate all those
relevant factors which a reasonable Trial Chamber would have been expected to take into
account before coming to a decision 2420

The right to a reasoned opinion requires that the Trial Chamber expressly state its
reasons for concluding that the factors relevant to provisional release have not been met
by the accused. 2421

Trial Chamber erred in finding that vague plans of the accused upon release and
inability to earn a living created risk of flight without providing detailed reasons for such
a finding. 2422

release after trial has begun

Rule 65(B) also governs release after trial has begun. 2423

Where trial began but the decision to begin the trial was reversed due to ill health
of the accused, it would be considered that trial had not commenced and that case was
still at pre-trial stage.2424

risk of flight—release denied

Pending application for transfer of case pursuant to Rule 11 bis may be a factor
against provisional release. 2425

Accused with no concrete plans or demonstrated means to earn a living while on

provisional release, and who did not fully cooperate with the prosecution in his interview
did not discharge his burden of establishing that he was not a flight risk. 2426

2420
Prosecutor v Milutinovic et al, No. IT-99-37-AR65, Decision on Provisional Release (30 October
2002) at para. 6; Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Ramush Haradinaj’s
Modified Provisional Release (10 March 2006) at para. 23
2421
Prosecutor v Popovic, No. IT-05-88-AR65.3, Decision on Interlocutory Appeal of Trial Chamber’s
Decision Denying Ljubomir Borovcanin Provisional Release (7 March 2007) at para. 13
2422
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal
Against the Trial Chamber’s Decision Denying his Provisional Release (9 March 2006) at para. 10
2423
Prosecutor v Milutinovic et al, No. IT-05-87-AR65.2, Decision on Interlocutory Appeal of Denial of
Provisional Release During the Winter Recess (14 December 2006) at para. 10
2424
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Provisional Release (26 May 2008)
at para. 63
2425
Prosecutor v Mejakic et al, No. IT-02-65-AR65.2, Decision on Dusan Fustar’s Request for
Interlocutory and Expedited Appeal (16 December 2005) at para. 9; Prosecutor v Mrksic et al, No. IT-95-
13/1-PT, Decision on Defence Motion for Provisional Release (9 March 2005) at para. 15; Prosecutor v
Racevic & Todovic, No. IT-97-25/1-AR65.1, Decision on Interlocutory Appeal from Trial Chamber
Decision Denying Savo Todovic’s Application for Provisional Release (7 October 2005) at para. 21;
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Sredoje Lukic’s Motion for Provisional
Release (13 December 2006) at para. 28

407
 The fact that an accused complied with provisional release on emergency, limited
basis does not mean that he is not a flight risk for longer term provisional release in
which he would not be accompanied by a 24 hour a day escort.2427

Trial Chamber did not err in concluding that former Interior Minister of
Macedonia was flight risk where he had fled to Croatia and was incarcerated there at the
time of his transfer to the Tribunal. 2428

Trial Chamber did not err in denying provisional release to accused who had been
fugitive and actively fled to avoid arrest, despite his claims of a change in attitude,
insufficiency of the evidence against him, and the guarantees of Croatia. 2429

Provisional release to attend mother’s memorial service denied where accused had
actively evaded arrest in seven years as a fugitive. 2430

Trial Chamber did not err in concluding that accused from Macedonia was flight
risk where he had evaded interview by prosecution and faced a lengthy sentence if
convicted. The fact that other accused who faced more serious charges had been granted
provisional release was not determinative since provisional release applications are fact
intensive. 2431

Trial Chamber did not err in denying provisional release to accused who
surrendered after being a fugitive for three years and who faced a long sentence if
convicted.2432

Accused failed to establish that he was not a flight risk where he failed to
surrender for 1-2 years after his indictment .2433

2426
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Decision on Lahi Brahimaj’s Motion for Provisional
Release (3 November 2005)
2427
Prosecutor v Galic, No. IT-98-29-A, Decision on Second Defence Request for Provisional Release of
Stanislas Galic, (31 October 2005) at para. 15
2428
Prosecutor v Boskoski, No. IT-04-82-AR65.2, Decision on Ljube Boskoski’s Interlocutory Appeal on
Provisional Release (28 September 2005)
2429
Prosecutor v Gotovina et al, No. IT-06-90-AR65.1, Decision on Ante Gotovina’s Appeal Against
Denial of Provisional Release (17 January 2008)
2430
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Hadzic’s Urgent Request for Provisional Release
(31 October 2012) at para. 9
2431
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-AR65.1, Decision on Johan Takulovski’s
Interlocutory Appeal on Provisional Release (4 October 2005)
2432
Prosecutor v Pandurevic & Trbic, No. IT-05-86-AR65.1, Decision on Interlocutory Appeal from Trial
Chamber Decision Denying Vinko Pandurevic’s Application for Provisional Release (3 October 2005);
Prosecutor v Popovic et al, No. IT-05-88-AR65.1, Decision on Interlocutory Appeal of Trial Chamber
Decision Denying Drago Nikolic’s Motion for Provisional Release (24 January 2006); Prosecutor v
Popovic et al, No. IT-05-88-AR65.2, Decision on Defence’s Interlocutory Appeal of Trial Chamber
Decision Denying Ljubomir Borovcanin Provisional Release (30 June 2006); Prosecutor v Popovic et al,
No. IT-05-88-AR65.7, Decision on Vujadin Popovic’s Interlocutory Appeal Against the Decision on
Popovic’s Motion for Provisional Release (1 July 2008)

408
 Trial Chamber did not err in denying provisional release where accused had
remained a fugitive for several years and was reported to have fled to Russia in the
interim. 2434

Accused who had failed to surrender and demonstrated determination and ability
to avoid arrest would not be given provisional release. 2435

Where accused had been in hiding for 16 years, the Chamber was not convinced
that the accused would return if granted provisional release for medical treatment in
Russia. 2436

Whether an accused has voluntarily surrendered to the Tribunal or has absconded

justice for several years is a factor frequently taken into account when assessing whether
an accused is at risk of flight.2437

risk of flight—release granted

Explanation of accused that he failed to surrender for almost 2 years due to

directive of government of Serbia that surrender of the accused would be detrimental to
national security interests was sufficient, when combined with guarantees of government,
to warrant his provisional release. 2438

Trial Chamber did not err in granting provisional release to high ranking officers
even where coaccused remained a fugitive, since provisional release involves an
individual assessment of the particular accused’s risk of flight and danger to victims and
witnesses.2439

Provisional release granted to former Prime Minister of Kosovo where he

surrendered voluntarily immediately upon learning of his indictment and where UNMIK
provided strong guarantees in support of his provisional release. 2440

2433
Prosecutor v Milosevic, No. IT-98-29/1-PT, Decision on Defence Motion for Provisional Release (13
July 2005); Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Drago Nikolic’s Request for
Provisional Release (9 November 2005)
2434
Prosecutor v. Popovic, IT-02-57-AR65.1, Decision on Interlocutory Appeal from Trial Chamber
Decision Denying Vujadin Popovic’s Application for Provisional Release (28 October 2005)
2435
Prosecutor v. Gotovina et al, No. IT-06-90-PT, Decision on Defendant Ante Gotovina’s Motion for
Provisional Release (28 Novembet 2007)
2436
Prosecutor v Mladic, No. IT-09-92-T, Decision on Urgent Defence Motion for Provisional Release (11
May 2017) at para. 17
2437
Prosecutor v Mladic, No. IT-09-92-AR65.1, Decision on Interlocutory Appeal against Urgent Defence
Motion for Provisional Release (30 June 2017) at para. 15
2438
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Sreten Lukic’s Provisional Release (3
October 2005)
2439
Prosecutor v Tolimir et al, No. IT-04-80-AR65.1, Decision on Interlocutory Appeal Against Trial
Chamber’s Decisions Granting Provisional Release (19 October 2005)
2440
Prosecutor v Haradinaj, No. IT-04-84-PT, Decision on Ramush Haradinaj’s Motion for Provisional
Release (6 June 2005)

409
 Provisional release granted to former Yugoslavian Army Chief of Staff who had
surrendered immediately after his indictment and been interviewed extensively by the
prosecution. 2441

State guarantees

The ICTY has relied successfully in the past upon the guarantees of the
government of Republika Srpska for provisional release. 2442

UNMIK is the guarantor of public safety in Kosovo and its guarantees, and not
that of other entities, is controlling. 2443

The Trial Chamber requires fresh guarantees for subsequent applications for
provisional release. 2444

The general level of cooperation by the State with the international tribunal is
relevant in determining whether it would arrest the accused in question. Its guarantee
must be evaluated on the balance of probabilities. 2445

It appears that the policy of the government of Serbia to encourage all indictees to
surrender voluntarily, failing which they will be arrested and transferred, is working in
practice. 2446

Instability of Serbian government is speculative and insufficient reason for

rejecting their guarantees. 2447

The Trial Chamber erred in determining that the accused’s senior position was
irrelevant because it was in a country other than the one offering the guarantees.

2441
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Momcilo Perisic’s Motion for Provisional Release
(9 June 2005)
2442
Prosecutor v Galic, No. IT-98-29-A, Decision on Defence Request for Provisional Release of Stanislav
Galic (23 March 2005) at para. 17
2443
Prosecutor v Limaj et al, No. IT-03-66-AR15, Decision on Fatmir Limaj’s Request for Provisional
Release (31 October 2003) at para. 25
2444
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision on Defence Motion for Provisional Release (9
March 2005) at para. 14
2445
Prosecutor v Milutinovic et al, No. IT-99-37-PT, Decision on Applications for Provisional Release (14
April 2005) at para. 20; Prosecutor v Cermak & Markac, No. IT-03-73-AR65.1, Decision on Interlocutory
Appeal Against Trial Chamber’s Decision Denying Provisional Release (2 December 2004) at para. 32
2446
Prosecutor v Milutinovic et al, No. IT-99-37-PT, Decision on Applications for Provisional Release (14
April 2005) at para. 21
2447
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR65.4, Decision on Prosecution Appeal of Decision
on Provisional Release and Motions to Present Additional Evidence Pursuant to Rule 115 (26 June 2008)
at para.50

410
Nevertheless, there was no evidence that the accused possessed information such that the
surrendering state would be unwilling to arrest him for the Tribunal. 2448

Trial Chamber erred in failing to consider accused’s senior position in

Yugoslavian army as it affected the state’s guarantees. 2449

The position of an accused in the hierarchy and the consequence thereof upon the
weight of governmental guarantees are indeed significant factors which the Trial
Chamber is expected to address as they could have an important bearing upon a State’s
willingness and readiness to arrest that person if he refuses to surrender himself; those
factors therefore reduce the likelihood of his appearing at trial. In failing to address these
factors, the Trial Chamber committed an error of law. 2450

Failure to arrest fugitive Gotovina is not a justification for refusing to accept the
State’s guarantees offered on behalf of other accused.2451

The Trial Chamber was not compelled to give weight to the state guarantees just
because they had been offered by governments with power to arrest the accused and to
enforce conditions for provisional release, where the accused had been a fugitive for a
long time. State guarantees are not dispositive of provisional release determinations.2452

statements of accused

Trial Chamber erred in not giving adequate weight to prior statements of accused
that he would not surrender.2453

stay of decision to release pending appeal

Where prosecution failed to seek a stay in its response to the motion for
provisional release, it was not error for the Trial Chamber to refuse a stay in the absence
of exceptional circumstances. 2454

2448
Prosecutor v Stanisic, No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mico
Stanisic’s Provisional Release (17 October 2005) at paras. 19, 22
2449
Prosecutor v. Milutinovic et al, No. IT-05-87-AR65.1, Decision on Interlocutory Appeal from Trial
Chamber Decision Granting Nebojsa Pavkovic’s Application for Provisional Release (1 November 2005)
at para. 8
2450
Prosecutor v Milutinovic et al, No. IT-99-37-AR65, Decision on Provisional Release (30 October
2002) at para. 9
2451
Prosecutor v Cermak & Markac, No. IT-03-73-AR65.1, Decision on Interlocutory Appeal Against
Trial Chamber’s Decision Denying Provisional Release (2 December 2004) at para. 33
2452
Prosecutor v Mladic, No. IT-09-92-AR65.1, Decision on Interlocutory Appeal against Urgent Defence
Motion for Provisional Release (30 June 2017) at para. 16
2453
Prosecutor v Milutinovic et al, No. IT-99-37-AR65, Decision on Provisional Release (30 October
2002) at para. 10; Prosecutor v. Milutinovic et al, No. IT-05-87-AR65.1, Decision on Interlocutory Appeal
from Trial Chamber Decision Granting Nebojsa Pavkovic’s Application for Provisional Release (1
November 2005) at para. 7
2454
Prosecutor v Stanisic, No. IT-04-79-AR65.1, Decision on Prosecution’s Motion to Stay Decision on
Provisional Release Concerning the Accused Mico Stanisic (22 July 2005)

411
 Where provisional release motion was made orally, the prosecution was required
to request a stay of the release orally and its failure to do so relinquished its right to
appeal the release. 2455

Trial Chamber declined to stay provisional release pending appeal where 20 days
remained before the release for the prosecution to seek a stay from the Appeals
Chamber.2456

subsequent motions

Where a request for provisional release has already been denied, the accused must
show a material change in circumstances to justify reconsideration of the previous
decision.2457

Accused failed to show material change in circumstances warranting

reconsideration of provisional release decision. 2458

An accused who has previously applied for provisional release must show a
material change in circumstance. While additional guarantees of Macedonia and its
status as a candidate for EU membership were positive developments, the evasion of the
accused of arrest and the imminence of the trial weighed against provisional release.2459

Fact that trial had now commenced, period of provisional release sought was only
temporary, and government guarantees were stronger were not such material changes in
circumstances such as to warrant granting of provisional release.2460

temporary release in general

Where sufficient humanitarian reasons exist for temporary provisional release, the
period of release should be proportional to those circumstances. 2461

2455
Prosecutor v Haraqija and Morina, No. IT-04-84-R77.4, Decision on Prosecution’s Urgent Motions
for Stay of Decisions Granting Applications for Provisional Release (16 September 2008)
2456
Prosecutor v Stanisic & Zupljanin, No. IT-06-91-T, Decision Granting Mico Stanisic’s Request for
Provisional Release (18 November 2011) at para. 25
2457
Prosecutor v Martic, No. IT-95-11-PT, Decision on Second Motion for Provisional Release (12
September 2005) at para. 16
2458
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Pandurevic’s Renewed Application for
Provisional Release (6 June 2006)
2459
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-PT, Decision Concerning Renewed Motion for
Provisional Release of Johan Tarkulovski (17 January 2007)
2460
Prosecutor v Popovic, No. IT-05-88-AR65.3, Decision on Interlocutory Appeal of Trial Chamber’s
Decision Denying Ljubomir Borovcanin Provisional Release (7 March 2007)
2461
Prosecutor v Prlic et al, No. IT-04-74-AR65, Decision on Prosecution’s Appeal from Decision Relative
a la Demande de Mise en Liberte Provisoire de la Accuse Petkovic Dated 31 March 2008 (21 April 2008)
at para. 17

412
 The duration of provisional release to visit an ailing family member can be no
longer than it would take to visit the family member.2462

Matter remanded to Trial Chamber to determine whether severe depression of

accused’s wife and deteriorating health of accused’s mother were sufficiently compelling
humanitarian reasons justifying temporary provisional release. 2463

While illness of relative, birth of grandchild, and attendance at 3 rd memorial

service of brother’s death was each alone insufficient to constitute compelling
humanitarian reasons for release, when considered cumulatively, provisional release was
granted.2464

Ill health of wife of accused was not so serious as to constitute compelling

humanitarian circumstance, alone, or in combination with attendance at 4 th memorial
service of brother’s death.2465

Temporary provisional release granted to accused after Rule 98 bis motion

denied, and even after conviction, to attend memorial service for his parent, who had
recently died.2466

The memorial service on the 40-day anniversary of the death of the accused’s
sister constitutes a special circumstance for which temporary provisional release may be
ordered.2467

By granting provisional release to an accused when special circumstances exist,

the Tribunal fulfills its obligation to respect his private and family life. 2468

2462
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution’s Appeal From Decision Relative a
la Demande de Mise en Liberte Provisoire de l’Accuse Prlic Dated 7 April 2008 (25 April 2008) at para. 18
2463
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution’s Appeal from Decision Relative a la
Demande de Mise en Liberte Provisoire de la Accuse Petkovic Dated 31 March 2008 (21 April 2008) at
para. 20
2464
Prosecutor v Perisic, No. IT-04-81-T, Decision onMr. Perisic’s Motion for Provisional Release During
the Summer Recess (15 July 2010) at para. 21
2465
Prosecutor v Perisic, No. IT-04-81-AR65.1, Decision on Mr. Perisic’s Appeal Against the Decision on
Mr. Perisic’s Motion for Provisional Release (29 July 2011) at para. 21
2466
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Nikolic Motion for Provisional Release (21
July 2008); Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Urgent Motion Requesting
Provisional Release of Nebojsa Pavkovic on Compassionate Grounds (17 September 2009); Prosecutor v
Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Urgent Motion for Custodial Release on
Compassionate Grounds (30 January 2013) at p. 4
2467
Prosecutor v Galic, No. IT-98-29-A, Decision on Defence Request for Provisional Release of Stanislav
Galic (23 March 2005) at para. 15; Prosecutor v Sainovic et al, No. IT-5-87-A, Decision on Dragoljub
Ojdanic’s Motion for Temporary Provisional Release on Compassionate Grounds (9 August 2010)
2468
Prosecutor v Galic, No. IT-98-29-A, Decision on Defence Request for Provisional Release of Stanislav
Galic (23 March 2005) at para. 18; Prosecutor v Simic et al, No. IT-95-9-A, Decision on Motion of Blagoje
Simic Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for
his Father (21 October 2004)

413
 Temporary provisional release denied where father and wife of the accused were
not shown to be unable to travel to The Hague to visit the accused. 2469

Where relative was terminally ill but there was no suggestion of acute crisis,
special circumstances did not exist to warrant provisional release.2470

Visit to aliling father consitituted special circumstances to warrant provisional

release, but duration limited to only that time necessary to accomplish visit. 2471 Portions
of release to take care of personal matters reversed.2472

Attending the wedding of son not a special circumstance warranting provisional

release.2473

Temporary provisional release granted for three days for accused to visit the
gravesites of family members who had recently died.2474

Provisional release for hip replacement surgery in Montenegro granted.2475

temporary release—trial recesses

Accused detained for three years in lengthy trial failed to demonstrate compelling
humanitarian circumstances for 10 days of provisional release during summer recess to
recuperate from stress of testimony and detention and spend time with his family. 2476

Temporary provisional release granted to accused during judicial recess where

they had previously obeyed all conditions of release prior to trial. 2477

2469
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Lukic Motion for Temporary Provisional
Release (25 June 2007)
2470
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Application for Provisional Release Pursuant
to Rule 65(I) (29 April 2008)
2471
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Sreten Lukic’s Second Motion for Provisional
Release on Compassionate Grounds (14 July 2010)
2472
Prosecutor v Popovic et al, No. IT-05-88-AR65.4, Decision on Consolidated Appeal Against Decision
on Borovcanin’s Motion for a Custodial Visit and Decisions on Gvero and Militec’s Motions for
Provisional Release During the Break in the Proceedings (15 May 2008) at para. 17-18;
2473
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Application for Provisional Release Pursuant
to Rule 65(I) (29 April 2008)
2474
Prosecutor v Popovic et al, No. IT-05-88-AR65.4, Decision on Consolidated Appeal Against Decision
on Borovcanin’s Motion for a Custodial Visit and Decisions on Gvero and Militec’s Motions for
Provisional Release During the Break in the Proceedings (15 May 2008) at para. 32
2475
Prosecutor v Strugar, No. IT-01-42-A, Decision on Defence Motion: Defence Request for Provisional
Release for Providing Medical Aid in the Republic of Montenegro (16 December 2005)
2476
Prosecutor v Prlic et al, No. IT-04-74-AR65.15, Decision on Prosecution Appeal Against the Trial
Chamber’s Decision on Slobodan Prajalak’s Motion for Provisional Release (8 July 2009) at para. 20
2477
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Joint Motion of the Accused Militec and
Gvero for Temporary Provisional Release from 15 July 2006 Until the Continuation of the Trial (13 July
2006); Decision on Joint Motion for Temporary Provisional Release During Summer Recess (1 June 2006);
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Motion for Provisional Release from 21 July 2007
Until the Resumption of Trial (13 July 2007); Prosecutor v Delic, No. IT-04-83-T, Decision on Defence

414
 Temporary provisional release during judicial recess denied where Chamber was
not satisfied that accused’s release would not pose a danger to witnesses. 2478

Temporary provisional release denied to accused during winter recess where

significant number of prosecution witness had been heard and Trial Chamber had
obligation to prevent possible disruption to expeditious trial by risks inherent in
provisional release. 2479

Temporary provisional release granted for part of winter recess for accused to
attend memorial service of deceased relatives. 2480

Temporary provisional release granted during trial for accused to attend funeral of
his nephew. 2481

Temporary provisional release granted during winter judicial recess where

accused needed to undergo a medical procedure.2482

Temporary provisional release granted during defence case where prepartation of

the defence case would benefit from the accused’s presence in Belgrade. 2483

Motion for Provisional Release (23 November 2007); Prosecutor v Popovic et al, No. IT-05-88-T,
Decision on Motions for Provisional Release During the Winter Judicial Recess (7 December 2007);
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Motion on Behalf of Ramush Haradinaj for
Provisional Release (14 December 2007); Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on
Motion on Behalf of Lahi Brahimaj for Provisional Release (14 December 2007); Prosecutor v Perisic, No.
IT-04-81-T, Decision on Mr. Perisic’s Motion for Provisional Release During Easter Recess (6 April
2009); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Defence Motion for
Provisional Release During the Upcoming Court Recess (10 July 2009); Prosecutor v Perisic, No. IT-04-
81-T, Decision on Perisic’s Motion for Provisional Release During the Summer Court Recess (17 July
2009); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Defence Motion
Requesting Provisional Release During the Summer Court Recess (22 July 2010); Prosecutor v Haradinaj
et al, No. IT-04-84bis-PT, Decision on Ramush Haradinaj’s Motion for Provisional Release (8 December
2010); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Defence Motion
Requesting Provisional Release During the Winter Court Recess (10 December 2010)
2478
Prosecutor v Haradinaj et al, No. IT-04-84bis-PT, Decision on Application for Temporary Provisional
Release filed by the Accused Lahi Brahimaj (8 December 2010)
2479
Prosecutor v Milutinovic et al, No. IT-05-87-AR65.2, Decision on Interlocutory Appeal of Denial of
Provisional Release During the Winter Recess (14 December 2006) at para. 15; Prosecutor v Milutinovic et
al, No. IT-05-87-T, Decision on Joint Defence Motion for Provisional Release During Winter Recess (5
December 2006)
2480
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Defence Motions for Provisional Release of
Radivoje Militec and Milan Gvero (7 December 2006); Prosecutor v Popovic et al, No. IT-05-88-PT,
Decision on Pandurevic Request for Provisional Release on Compassionate Grounds (11 December 2007)
2481
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Defence Motion on Behalf of Ramush
Haradinaj for Urgent Provisional Release (3 October 2007)
2482
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Milutinovic Motion for Temporary
Provisional Release (7 December 2007)
2483
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Request for Provisional
Release (4 April 2012) at para. 8

415
 Temporary provisional release during recess denied to accused whose trial had
just commenced where interrupting medical treatment in detention would jeopardize the
expeditiousness of the trial. 2484

Temporary provisional release ordered after denial of Motion for Judgement of

Acquittal and before defence case where accused needed medical treatment in Croatia. 2485

Temporary provisional release granted to accused for two month recess between
prosecution and defence cases.2486

Temporary provisional release granted to accused after prosecution rested to visit

his ailing father,2487mother2488, and ailing wife. 2489

Temporary provisional release for person whose trial was almost completed
denied where no medical records supported contention that accused needed medical
attention that could not be obtained in the detention unit. 2490

Temporary provisional release granted to accused after prosecution rested to visit

graves of recently deceased family members. 2491

Temporary provisional release during short period between prosecution and

defence cases denied in Chamber’s discretion as not warranted by humanitarian reasons
and because accused had recently returned from provisional release from winter
recess. 2492

2484
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Urgent Stanisic Defence Motion for
Provisional Release During the Upcoming Court Recess (22 July 2009)
2485
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Application for Provisional Release by the
Accused Pusic (19 March 2008); Prosecutor v Prlic et al, No. IT-04-74-AR65.16 Decision on
Prosecution’s Appeal Against Decision on Pusic’s Motion for Provisional Release (20 July 2009)
2486
Prosecutor v Prlic et al, No. IT-04-74-T, Decisions on Motions for Provisional Release of the Accused
(19 February 2008)
2487
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Borovcanin’s Motion for Custodial Visit (9
April 2008)
2488
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Pandurevic’s Motion for Provisional Release
(21 July 2008)
2489
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Militec’s Motion for Provisional Release (21
July 2008)
2490
Prosecutor v Popovic et al, No. IT-05-88-AR65.8, Decision on Prosecution’s Appeal Against Decision
on Gvero’s Motion for Provisional Release (20 July 2009)
2491
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Militec Request for Provisional Release
During a Break in the Proceedings (9 April 2008)
2492
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Motion for Provisional Release of Ivan
Cermak (27 February 2009)

416
 Trial Chamber erred in failing to consider accused’s contact with potential
witness on earlier provisional release. Temporary provisional release order over witner
recess reversed by Appeals Chamber.2493

Special circumstances did not exist to release accused during three week trial
recess despite the fact he had been on pretrial release for over 2 years. 2494

Temporary provisional release during summer recess granted where spouse of

accused and accused’s mother were suffering from mental health issues, and the presence
of the accused would benefit them. 2495

Accused’s medical situation warranted three week provisional release during

recess before closing arguments.2496

Accused released to visit aging mother during recess in trial, 2497 and aging
father,2498 and ailing wife. 2499

violations

Violations of conditions of release by attending social events warranted temporary

revocation of provisional release, but were not so serious as to refuse reinstatement of
release where the accused had voluntarily surrendered and cooperated with all other
conditions. 2500

Violation of condition that accused not discuss his case with anyone warranted
modification of provisional release so that accused was placed under house arrest for the
remainder of his period of temporary provisional release. 2501

Violation of condition of house arrest by going on a hunting trip warranted

revocation of provisional release. 2502

2493
Prosecutor v Prlic et al, No. IT-04074-AR65.13, Reasons for Decision on Prosecution’s Appeal of the
Trial Chamber’s 10 December 2008 Decision on Prlic Provisional Release During Winter Recess…(20
January 2009)
2494
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Provisional Release (21 April 2005)
2495
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Accused Petkovic’s Motion for Provisional
Release (17 June 2009)
2496
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Motion for Provisional Release
(10 July 2008)
2497
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Sainovic Motion for Temporary
Provisional Release (7 June 2007)
2498
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Pavkovic Motion for Temporary
Provisional Release (18 June 2007)
2499
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Lazarevic Motion for Temporary
Provisional Release (18 June 2007)
2500
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision to Reinstate the Provisional Release of Ivan
Cermak (15 February 2007)
2501
Prosecutor v Delic, No. IT-04-83-T, Decision on Prosecution Motion to Arrest the Accused Rasim
Delic (19 December 2007)

417
 A Chamber granting provisional release has to remain satisfied throughout the
period of the accused’s provisional release that the essential conditions of Rule 65(B)
justifying the release are still fulfilled. 2503

A Chamber has a duty to address any information brought to its attention that may
constitute a change in circumstances that may call into question as to whether the pre-
conditions set forth in Rule 65(B) remain fulfilled. 2504

In light of the accused’s public statements that he would not return for trial, no
reasonable Trial Chamber could have concluded that the condition of Rule 65(B) that the
accused would appear when required remained fulfilled. Therefore, the Trial Chamber
erred in failing to revoke provisional release when those statements were called to its
attention.2505

Where Trial Chamber erred in failing to revoke provisional release, matter was
remanded for Trial Chamber to do so, and then provide parties, and States, to make
further submissions on advisability of provisional release in light of new information. 2506

Accused’s public statements calling prosecution witnesses traitors, while

unfortunate, did not constitute an attempt to threaten or influence witnesses. 2507

Rule 65 bis—status conferences

(A) A Trial Chamber or a Trial Chamber Judge shall convene a status conference
within one hundred and twenty days of the initial appearance of the accused and
thereafter within one hundred and twenty days after the last status conference:
(i) to organize exchanges between the parties so as to ensure expeditious preparation
for trial;
(ii) to review the status of his or her case and to allow the accused the opportunity to
raise issues in relation thereto, including the mental and physical condition of the
accused.
(B) The Appeals Chamber or an Appeals Chamber Judge shall convene a status
conference, within one hundred and twenty days of the filing of a notice of appeal
and thereafter within one hundred and twenty days after the last status conference,

2502
Prosecutor v Gotovina et al, No. IT-06-90-PT, Order for the Arrest and Transfer of the Accused
Mladen Markac from Provisional Release (28 December 2007)
2503
Prosecutor v Seselj, No. IT-03-67-AR65.1, Decision on Prosecution Appeal against the Decision on
the Prosecution Motion to Revoke the Provisional Release of the Accused (30 March 2015) at para. 16
2504
Prosecutor v Seselj, No. IT-03-67-AR65.1, Decision on Prosecution Appeal against the Decision on
the Prosecution Motion to Revoke the Provisional Release of the Accused (30 March 2015) at para. 17
2505
Prosecutor v Seselj, No. IT-03-67-AR65.1, Decision on Prosecution Appeal against the Decision on
the Prosecution Motion to Revoke the Provisional Release of the Accused (30 March 2015) at para. 19
2506
Prosecutor v Seselj, No. IT-03-67-AR65.1, Decision on Prosecution Appeal against the Decision on
the Prosecution Motion to Revoke the Provisional Release of the Accused (30 March 2015) at para. 20
2507
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motion to Revoke Provisional Release
(13 January 2015) at para. 13

418
to allow any person in custody pending appeal the opportunity to raise issues in
relation thereto, including the mental and physical condition of that person.
(C) With the written consent of the accused, given after receiving advice from his
counsel, a status conference under this Rule may be conducted
(i) in his presence, but with his counsel participating either via teleconference
or video-conference; or
(ii) in Chambers in his absence, but with his participation via teleconference if he so
wishes and/or participation of his counsel via teleconference or video-conference.

Rule 65 bis (A), which requires a status conference to be held every 120 days,
applies only to the pre-trial stage of a case, and not the trial stage.2508

Rule 65 ter—pre-trial Judge

(A) The Presiding Judge of the Trial Chamber shall, no later than seven days after
the initial appearance of the accused, designate from among its members a Judge
responsible for the pre-trial proceedings (hereinafter “pre-trial Judge”).
(B) The pre-trial Judge shall, under the authority and supervision of the Trial
Chamber seised of the case, coordinate communication between the parties during
the pre-trial phase. The pre-trial Judge shall ensure that the proceedings are not
unduly delayed and shall take any measure necessary to prepare the case for a fair
and expeditious trial.
(C) The pre-trial Judge shall be entrusted with all of the pre-trial functions set forth
in Rule 66, Rule 67, Rule 73 bis and Rule 73 ter, and with all or part of the functions
set forth in Rule 73.
(D) (i) The pre-trial Judge may be assisted in the performance of his or her duties by
one of the Senior Legal Officers assigned to Chambers.
(ii) The pre-trial Judge shall establish a work plan indicating, in general terms, the
obligations that the parties are required to meet pursuant to this Rule and the dates
by which these obligations must be fulfilled.
(iii) Acting under the supervision of the pre-trial Judge, the Senior Legal Officer
shall oversee the implementation of the work plan and shall keep the pre-trial Judge
informed of the progress of the discussions between and with the parties and, in
particular, of any potential difficulty. He or she shall present the pre-trial Judge
with reports as appropriate and shall communicate to the parties, without delay,
any observations and decisions made by the pre-trial Judge.
(iv) The pre-trial Judge shall order the parties to meet to discuss issues related to
the preparation of the case, in particular, so that the Prosecutor can meet his or her
obligations pursuant to paragraphs (E)(i) to (iii) of this Rule and for the defence to
meet its obligations pursuant to paragraph (G) of this Rule and of Rule 73 ter.
(v) Such meetings are held inter partes or, at his or her request, with the Senior
Legal Officer and one or more of the parties. The Senior Legal Officer ensures that
the obligations set out in paragraphs (E) (i) to (iii) of this Rule and, at the
appropriate time, that the obligations in paragraph (G) and Rule 73 ter, are

2508
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Request for Status Conference (11
June 2014) at para. 4

419
satisfied in accordance with the work plan set by the pre-trial Judge.
(vi) The presence of the accused is not necessary for meetings convened by the
Senior Legal Officer.
(vii) The Senior Legal Officer may be assisted by a representative of the Registry in
the performance of his or her duties pursuant to this Rule and may require a
transcript to be made.
(E) Once any existing preliminary motions filed within the time-limit provided by
Rule 72 are disposed of, the pre-trial Judge shall order the Prosecutor, upon the
report of the Senior Legal Officer, and within a time-limit set by the pre-trial Judge
and not less than six weeks before the Pre-Trial Conference required by Rule 73 bis,
to file the following:
(i) the final version of the Prosecutor’s pre-trial brief including, for each count, a
summary of the evidence which the Prosecutor intends to bring regarding the
commission of the alleged crime and the form of responsibility incurred by the
accused; this brief shall include any admissions by the parties and a statement of
matters which are not in dispute; as well as a statement of contested matters of fact
and law;
(ii) the list of witnesses the Prosecutor intends to call with :
(a) the name or pseudonym of each witness;
(b) a summary of the facts on which each witness will testify;
(c) the points in the indictment as to which each witness will testify, including
specific references to counts and relevant paragraphs in the indictment;
(d) the total number of witnesses and the number of witnesses who will testify
against each accused and on each count;
(e) an indication of whether the witness will testify in person or pursuant to Rule 92
bis or Rule 92 quater by way of written statement or use of a transcript of testimony
from other proceedings before the Tribunal; and
(f) the estimated length of time required for each witness and the total time
estimated for presentation of the Prosecutor’s case.
(iii) the list of exhibits the Prosecutor intends to offer stating where possible whether
the defence has any objection as to authenticity. The Prosecutor shall serve on the
defence copies of the exhibits so listed.
(F) After the submission by the Prosecutor of the items mentioned in paragraph (E),
the pre-trial Judge shall order the defence, within a time-limit set by the pre-trial
Judge, and not later than three weeks before the Pre-Trial Conference, to file a pre-
trial brief addressing the factual and legal issues, and including a written statement
setting out:
(i) in general terms, the nature of the accused’s defence;
(ii) the matters with which the accused takes issue in the Prosecutor’s pre-trial
brief; and
(iii) in the case of each such matter, the reason why the accused takes issue with it.
(G) After the close of the Prosecutor’s case and before the commencement of the
defence case, the pre-trial Judge shall order the defence to file the following:
(i) a list of witnesses the defence intends to call with:
(a) the name or pseudonym of each witness;
(b) a summary of the facts on which each witness will testify;

420
(c) the points in the indictment as to which each witness will testify;
(d) the total number of witnesses and the number of witnesses who will testify for
each accused and on each count;
(e) an indication of whether the witness will testify in person or pursuant to Rule 92
bis or Rule 92 quater by way of written statement or use of a transcript of testimony
from other proceedings before the Tribunal; and
(f) the estimated length of time required for each witness and the total time
estimated for presentation of the defence case; and
(ii) a list of exhibits the defence intends to offer in its case, stating where possible
whether the Prosecutor has any objection as to authenticity. The defence shall serve
on the Prosecutor copies of the exhibits so listed.
(H) The pre-trial Judge shall record the points of agreement and disagreement on
matters of law and fact. In this connection, he or she may order the parties to file
written submissions with either the pre-trial Judge or the Trial Chamber.
(I) In order to perform his or her functions, the pre-trial Judge may proprio motu,
where appropriate, hear the parties without the accused being present. The pre-trial
Judge may hear the parties in his or her private room, in which case minutes of the
meeting shall be taken by a representative of the Registry.
(J) The pre-trial Judge shall keep the Trial Chamber regularly informed,
particularly where issues are in dispute and may refer such disputes to the Trial
Chamber.
(K) The pre-trial Judge may set a time for the making of pre-trial motions and, if
required, any hearing thereon. A motion made before trial shall be determined
before trial unless the Judge, for good cause, orders that it be deferred for
determination at trial. Failure by a party to raise objections or to make requests
which can be made prior to trial at the time set by the Judge shall constitute waiver
thereof, but the Judge for cause may grant relief from the waiver.
(L) (i) After the filings by the Prosecutor pursuant to paragraph (E), the pretrial
Judge shall submit to the Trial Chamber a complete file consisting of all the filings
of the parties, transcripts of status conferences and minutes of meetings held in the
performance of his or her functions pursuant to this Rule.
(ii) The pre-trial Judge shall submit a second file to the Trial Chamber after the
defence filings pursuant to paragraph (G).
(M) The Trial Chamber may proprio motu exercise any of the functions of the
pre-trial Judge.
(N) Upon a report of the pre-trial Judge, the Trial Chamber shall decide, should the
case arise, on sanctions to be imposed on a party which fails to perform its
obligations pursuant to the present Rule. Such sanctions may include the exclusion
of testimonial or documentary evidence.

agreed facts

421
 At the trial phase of the proceedings, the Trial Chamber may choose to note on
the record any matters of fact or law which are agreed between the parties. 2509

Agreed facts are not evidence, but may be considered by the Chamber as facts in
support of which no evidence need be brought. Therefore, the Chamber need not make
any determination of the relevance of the agreed facts.2510

It is in the interests of justice and of the parties themselves to reach agreement on

as many matters as possible in order to avoid the expenditure of valuable time in the
courtroom bringing evidence to support facts which are not in dispute. 2511

defence pre-trial brief

The defence pre-trial brief need not provide details of the evidence it intends to
adduce in the course of its case. It is primarily intended as a tool to set general
boundaries for the trial prior to its commencement and to identify potential areas of
agreement between the parties.2512

Defence pretrial brief which failed to provide the reasons why the defence took
issue with facts presented in Prosecution pretrial brief was deficient. Supplemental briefs
ordered.2513

Trial Chamber declined to order accused to specify which facts he disputed, but
indicated it would remedy any prejudice to the prosecution during the trial if necessary to
rebut a challenge which was not anticipated. 2514

exhibits

Where the prosecution wishes to offer a document not on its exhibit list, it must
make a motion to amend the list, except for personal information sheets, Rule 92 ter
statements, and other routine documents where the issue of adequate notice is not
present.2515

2509
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Response to Karadzic’s
Submission of Agreed Facts and Motion for Reconsideration (26 August 2010) at para. 6; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Agreed Facts (14 February 2013) at para. 4
2510
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Response to Karadzic’s
Submission of Agreed Facts and Motion for Reconsideration (26 August 2010) at para. 9; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Agreed Facts (14 February 2013) at para. 5
2511
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Response to Karadzic’s
Submission of Agreed Facts and Motion for Reconsideration (26 August 2010) at para. 12
2512
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision on Prosecution’s Motion for Relief Pursuant to
Rule 65 ter (F) (10 October 2005) at para. 3
2513
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-PT, Order to the Defence to Supplement the Pre-Trial
Briefs Pursuant to Rule 65 ter (F)(9 July 2009)
2514
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision Regarding the Accused’s Pre-Trial Brief (30 July
2009)
2515
Prosecutor v Perisic, No. IT-04-81-T, Trial Chamber’s Ruling on Defence Motion to Clarify Whether
the Prosecution Must Request Leave to Amend its Rule 65 ter Exhibit List (17 November 2008)

422
 Prosecution motion to vary exhibit list by adding additional exhibits granted
where exhibits could be introduced at a late stage in the case to give the defence adequate
time to examine them. 2516

Prosecution motion to vary exhibit list denied where prosecution did not act with
diligence and defence could have used the exhibits in its cross examination if they had
been timely disclosed. 2517

Prosecution motion to add document to its exhibit list denied where prosecution
did not act with diligence and motion was not made until after case had closed. 2518

Prosecution motion to add Mladic diaries to exhibit list required that prosecution
specify which diary entries it wished to offer. 2519

Prosecution motion to add Mladic diaries to exhibit list granted for 15 of 18

diaries where they did not come into possession of prosecution until after exhibit list had
been filed and they were relevant to the case against the accused. 2520

Trial Chamber did not abuse its discretion in allowing the prosecution to amend
its exhibit list by adding statement of accused and related documents which had been
inadvertently omitted from original list.2521

Motion to amend exhibit list and admit statement of deceased witness denied
where prosecution failed to include statement in its original list or include witness on its
original witness list and therefore were not diligent.2522

Motion to admit maps from bar table after witness testified denied where maps
were not on the prosecution’s exhibit list and no good cause existed for adding them. 2523

prosecution pre-trial brief

2516
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Prosecution’s Application for Leave to Vary Its
Exhibit List Filed Pursuant to Rule 65 ter (E)(iii)(14 February 2005)
2517
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion to Admit One Document from
the Bar Table Pursuant to the Testimony of Ramiz Dumanjic (6 March 2012) at paras. 17-19
2518
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying Prosecution’s Motion to Admit
into Evidence MFI P171 and P911(13 March 2012) at para. 16
2519
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Order Requiring the Prosecution to Select the
Relevant Portions of the Mladic Notebooks and to Provide English Translations Thereof (29 June 2010)
2520
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Second Prosecution Motion for Leave to
Amend its Rule 65 ter Exhibit List (Mladic Notebooks)(22 July 2010)
2521
Prosecutor v Popovic et al, No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting
Material Relating to Borovcanin’s Questioning (14 December 2007) at para. 39
2522
Prosecutor v Prlic, No. IT-04-74-T, Decision on Motion to Amend Witness and Exhibit Lists (3
December 2007)
2523
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of an
Exhibit from the Bar Table Following Major Thomas’ Testimony (28 October 2010)

423
 A Trial Chamber has the discretion to order the prosecution to amend its pre-trial
brief after the amendment of the indictment. It was appropriate to order the prosecution
to do so and include details as to the new events. 2524

referral to Chamber

Pre-Appeal Judge granted request to refer his decison on extension of time and
word limits for appeal brief to entire panel for review. 2525

witness summaries

Witness summaries must be sufficiently detailed to allow the other parties to

properly prepare cross-examination.2526

Witness summaries should include biographical information such as the name of

the witness, his father’s name, and his date of birth, as well as the occupation of the
witness during the relevant period, the witness’ rank and unit, and locations and specific
events which the witness will discuss. 2527

Witness’ date of birth and father’s name must be included in defence witness
submissions to enable the prosecution to properly prepare for cross examination. 2528

Where defence witness summaries were not sufficiently detailed to provide

adequate notice to the prosecution, no defence witness would be allowed to testify until at
least 14 days after disclosure of his draft witness statement to the prosecution. 2529

Rule 65 ter does not require an accused to provide a summary of his own
testimony. 2530

There is no requirement for a party to take a statement from a witness who is to

testify viva voce. The defence was put on notice of the expected testimony of the witness
via the Rule 65 ter summary. No more was required.2531

2524
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Accused’s Preliminary Motion Pursuant to Rule
72(A)(ii)(10 February 2010) at para. 17
2525
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Motions for Referral to the Panel of Judges (18
September 2014) at p. 3
2526
Prosecutor v Milosevic, No. IT-29/1-T, Decision on the Prosecution’s Motion for Defence Compliance
With Rule 65 ter (G) (26 June 2007) at page 3
2527
Prosecutor v Milosevic, No. IT-29/1-T, Decision on the Prosecution’s Motion for Defence Compliance
With Rule 65 ter (G) (26 June 2007) at page 4
2528
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Request for Disclosure of
Further Information Regarding Witnesses to be Called by Lazarevic and Lukic Defences (5 October 2007)
2529
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Relief from Defence
Disclosure Violations (26 March 2013) at para. 14
2530
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Relief from Defence
Disclosure Violations (26 March 2013) at para. 15
2531
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Urgent Defence Motion to Preclude GH-162’s
Appearance Until After Disclosure of a Proper Witness Statement (17 May 2013) at para. 6

424
Rule 66—disclosure by the Prosecutor

(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available
to the defence in a language which the accused understands (i) within thirty days of
the initial appearance of the accused, copies of the supporting material which
accompanied the indictment when confirmation was sought as well as all prior
statements obtained by the Prosecutor from the accused; and
(ii) within the time-limit prescribed by the Trial Chamber or by the pretrial Judge
appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom
the Prosecutor intends to call to testify at trial, and copies of all transcripts and
written statements taken in accordance with Rule 92 bis, Rule 92 ter, and Rule 92
quater; copies of the statements of additional prosecution witnesses shall be made
available to the defence when a decision is made to call those witnesses.
(B) The Prosecutor shall, on request, permit the defence to inspect any books,
documents, photographs and tangible objects in the Prosecutor’s custody or control,
which are material to the preparation of the defence, or are intended for use by the
Prosecutor as evidence at trial or were obtained from or belonged to the accused.
(C) Where information is in the possession of the Prosecutor, the disclosure of
which may prejudice further or ongoing investigations, or for any other reasons
may be contrary to the public interest or affect the security interests of any State,
the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved
from an obligation under the Rules to disclose that information. When making such
application the Prosecutor shall provide the Trial Chamber (but only the Trial
Chamber) with the information that is sought to be kept confidential.

documents material to the defence

Request for inspection must be made to the prosecution first before the Trial
Chamber will entertain it.2532

The disclosure of material and information by the prosecution is fundamental to

the fairness of the proceedings before the Tribunal. 2533

The defence must (1) specifically identify the items sought; (2) demonstrate prima
facie that the requested items are material to the preparation of the defence; and (3)
demonstrate prima facie that the requested items are in the custody and control of the
prosecution. 2534

2532
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Inspection and Disclosure
(9 October 2008); Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for
Inspection and Disclosure: Immunity Issue (17 December 2008) at para. 9
2533
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Prosecution Access to Defence
Documents Used in Cross-Examination of Prosecution Witnesses (9 May 2005) at para. 12
2534
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 10

425
 Memoranda of discussions about the accused by the Prosecutor could not be
ordered disclosed where the prosecution claimed it was not in possession of such
documents.2535

An item will only be material to the preparation of the defence where it is used in
an argument that has some prospect of success. 2536

The prosecution must disclose to the accused at the earliest available opportunity
and, at the latest, prior to cross-examination, any new material it wishes to submit to a
defence witness in cross-examination. 2537

Information falling within Rule 68 will also necessarily be material to the

preparation of the defence under Rule 66(B). 2538

Statements and prior testimony given in closed session which mention the
accused from witnesses whom the prosecution does not intend to call may be material to
the defence and should be disclosed under Rule 66(B).2539

Request for memoranda and correspondence related to a specific meeting was too
broad and did not meet the specificity requirement. 2540

Prosecution did not violate Rule 66(B) when it sought consent from Rule 70
provider to disclose Rule 66(B) material one month after the Rule 66(B) request was
made, given the breadth of the Rule 66(B) request.2541

Prosecution did not violate Rule 66(B) by disclosing requested material after the
deadline imposed by the Trial Chamber and after the defence witness to whom the
material related had testified. Given the language of Rule 66(B), there can only be a
violation of the Rule if the prosecution refused to permit the accused to inspect the
requested material. 2542

2535
Prosecutor v Seselj, No. IT-03-67-T, Order on Vojislav Seselj’s Motions for Disclosure of Documents
by the Prosecution (3 September 2010) at para. 35
2536
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 23
2537
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Prosecution Access to Defence
Documents Used in Cross-Examination of Prosecution Witnesses (9 May 2005) at para. 12
2538
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 14
2539
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Form of Disclosure (4 July 2006) at para. 16, 18
2540
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 20
2541
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Third, Fourth, Fifth, and Sixth
Motions for Finding of Disclosure Violations and for Remedial Measures (20 July 2010) at para. 35
2542
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Seventy-Fourth Dislcosure Violation
Motion (6 November 2012) at para. 11; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s
102nd and 103rd Disclosure Violation Motions (4 November 2015) at para. 37

426
 While items relevant to the decision by the defence whether or not to call persons
as defence witnesses may be material to the defence and disclosable pursuant to Rule
66(B), the defence request for broad categories of items for all potential defence
witnesses lacked the specificity required under Rule 66(B).2543

Prosecution ordered to make questioned documents available to defence expert

through the Registry for forensic examination. 2544

Material from the International Commission on Missing Persons (ICMP) was not
in the possession of the prosecution and thus, not within Rule 66(B). The fact that the
prosecution has a good relationship with a third party is not relevant unless it can be
established that the prosecution has some ability to direct and control the party. 2545

Prosecution ordered to disclose the following material for prospective defence

Army,UN, and Crisis Staff witnesses: (1) statements and reports of interviews; (2)
documents authored by the witness; (3) judicial records pertaining to the witness; and (4)
immigration records pertaining to the witness. 2546

electronic disclosure suite

Prosecution is not required to provide hard copies of Rule 66 disclosure on the

electronic disclosure suite (EDS) in hard copy. 2547

The prosecution is not required to provide an index to the documents on the

EDS.2548

Posting a document on the EDS is insufficient to comply with Rule 66(A)(ii). 2549

expert witnesses

Disclosure of earlier drafts of the expert’s report and e-mail communications with
the prosecution was not required by Rules 94 bis, 66(B), or 68.2550

2543
Prosecutor v Boskoski and Tarkulovski, No. IT-04-82-T, Decision on Boskoski Urgent Defence Motion
for an Order to Disclose Material Pursuant to Rule 66(B) (31 January 2008)
2544
Prosecutor v Oric, No. IT-03-68-T, Decision on Motion to Enable Document Examination by the
Defence Forensic Document Examiner (12 October 2005)
2545
Prosecutor v Popovic et al, No, IT-05-88-T, Decision on Popovic’s Motion for Disclosure Pursuant to
Rule 66(B)…(6 October 2008) at para. 11
2546
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion to Compel Inspection of Items Material
to Sarajevo Defence Case (8 February 2012) at paras. 14-17; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Motion to Compel Inspection of Items Material to the Municipalities Defence Case (7 May
2012) at paras. 9-12
2547
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Defence Motion to Receive Hard
Copies of Rule 66 Material (11 March 2005)
2548
Prosecutor v Halilovic, No.IT- 01-48-T, Decision on Motion for Enforcement of Court Order re
Electronic Disclosure Suite (27 July 2005)
2549
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Milan Lukic’s Motion to Suppress
Testimony for Failure of Timely Disclosure (3 November 2008) at para. 17

427
 post-indictment investigation

Investigation by the prosecution is not strictly limited to the stage preceding

confirmation of the indictment. Remedies for disclosures resulting from investigation
conducted after the indictment is confirmed are adequate without ordering the
prosecution to stop investigating. 2551

purpose

The purpose of Rule 66(A)(ii) is to enable the defence to confront witnesses with
all their prior statements and transcripts. The provision is of fundamental importance to
the accused’s right to a fair trial. 2552

It is an essential element of Rule 66(A)(ii) that the disclosures occur within a

specific time limit so as to provide adequate time and resources for the accused to
examine the material and prepare its case. 2553

The size and complexity of the case is not an excuse for prosecution’s failure to
properly organise itself to ensure that disclosure is carried out in accordance with the
Rules.2554

remedy

Late disclosure of Rule 66(A)(ii) material could give rise to exclusion of the
material from evidence or a decision not to allow the affected witness give evidence at
all. Prosecution ordered to provide explanation for late disclosure. 2555

Late disclosure of items violated Rule 66(A)(ii) but did not warrant any remedy
given lack of prejudice and large volume of disclosure in the case. 2556
2550
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Request for Order of
Disclosure of Materials Related to the Admissibility of the Expert Report of Reynaud Theunens (11 March
2011)
2551
Prosecutor v Boskoski and Tarculovski, No. IT-04-82-T, Reasons for Oral Decision Denying Boskoski
Defence Motion to Stop Prosecution’s Continued Investigation and Continued Disclosure (10 May 2007)
2552
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Joint Defence Motion Requesting
Preclusion of Prosecution’s New Witnesses and Exhibits (31 August 2009) at para. 19
2553
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Second Motion for Finding
Disclosure Violation and for Remedial Measures (17 June 2010) at para. 8
2554
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Accused’s Twenty-Sixth Disclosure
Violation Motion (3 November 2010) at T8908
2555
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Joint Defence Motion Requesting
Preclusion of Prosecution’s New Witnesses and Exhibits (31 August 2009) at para. 19
2556
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Second Motion for Finding
Disclosure Violation and for Remedial Measures (17 June 2010) at paras. 12-18; Prosecutor v Karadzic,
No. IT-95-5/18-T, Decision on Accused’s Third, Fourth, Fifth, and Sixth Motions for Finding of Disclosure
Violations and for Remedial Measures (20 July 2010) at para. 41; Prosecutor v Karadzic, No. IT-95-5/18-
T, Decision on Accused’s Seventh and Eighth Motions for Finding Disclosure Violation and for Remedial
Measures (18 August 2010); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninth and

428
 In the absence of a “material issue” or prejudice to the accused from the
prosecutor’s repeated violations of Rule 66(A)(ii), the Trial Chamber declined to exclude
the testimony of the witnesses whose statements were not timely disclosed. 2557

Cumulative effect of multiple disclosure violations resulted in an order that the

prosecution not be allowed to call any witness affected by late disclosure for period of
approximately 90 days to give defence time to prepare. 2558

The defence’s failure to agree to stipulate to evidence or agreed facts is no excuse

for the prosecution’s failure to meet its disclosure obligations. The defence is in its full
right to resist in view of the fact that the onus to prove the charges rests only and wholly
upon the prosecution. 2559

reserve witnesses

The provisions of Rule 66(A)(ii) apply to all persons who the prosecution has
designated as “reserve witnesses”. 2560

Rule 92 bis witnesses

The prosecution’s obligation under Rule 66(A)(ii) extends witnesses whose

statements have been proposed for admittance pursuant to Rule 92 bis.2561

supporting material

Supporting material for previous inoperative indictments that has not been relied
upon for confirmation of any charge which remains in the amended indictment does not
come within Rule 66(A)(i) and need not be disclosed. 2562

Tenth Motions for Finding Disclosure Violation and for Remedial Measures (26 August 2010); Prosecutor
v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eleventh through Fifteenth Motions for Finding
Disclosure Violation and for Remedial Measures (24 September 2010); Prosecutor v Karadzic, No. IT-95-
5/18-T, Decision on Accused’s Twenty-Seventh Disclosure Violation Motion (17 November 2010) at para.
14; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Twenty-Ninth Disclosure Violation
Motion (11 January 2011) at para. 16; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s
Forty-Eighth Disclosure Violation Motion (30 May 2011) at para. 12
2557
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Forty-Sixth Disclosure Violation
Motion (20 April 2011) at para. 9; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s 102nd
and 103rd Disclosure Violation Motions (4 November 2015) at para. 35
2558
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighteenth to Twenty-First
Disclosure Violation Motions (2 November 2010) at para. 43
2559
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Joint Defence Motion Requesting
Preclusion of Prosecution’s New Witnesses and Exhibits (31 August 2009) at fn. 19
2560
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighteenth to Twenty-First
Disclosure Violation Motions (2 November 2010) at para. 35; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Twenty-Seventh Disclosure Violation Motion (17 November 2010) at para. 10
2561
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighteenth to Twenty-First
Disclosure Violation Motions (2 November 2010) at para. 35

429
 Redacted statement of witness used in supporting material need not be disclosed
in unredacted form where witness was subject to protective measures of delayed
disclosure of his identity.2563

Where accused was self-represented, transcripts of testimony included in

supporting material required to be translated into B/C/S rather than provided to the
accused in audio format.2564

Supporting material must be provided in a language the accused understands, not

necessarily the language of the accused. 2565

Obligation to translate supporting material was on the prosecution, not the

Registry. 2566

time limits

It is an essential element of Rule 66(A)((ii) that disclosure of material falling

under this Rule must occur within a specific time limit. 2567

Disclosure of witness statements during trial and several months after they had
been in the possession of the prosecution violated Rule 66(A)(ii) and was
unacceptable.2568

witness statements

A witness statement is an account of a person’s knowledge of a crime which is

recorded through due procedure in the course of an investigation into the crime. 2569

Interview notes concerning a witness’ recollection of events is a witness statement

which must be disclosed pursuant to Rule 66(A)(ii).2570

2562
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Full Disclosure of
Supporting Material (25 November 2008) at para. 25
2563
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Full Disclosure of
Supporting Material (25 November 2008) at para. 19
2564
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Full Disclosure of
Supporting Material (25 November 2008) at para. 28
2565
In Re Florence Hartmann, No. IT-02-54-R77.5, Decision on Defence Motion Requesting the Provision
of Supporting Materials in the French Language (1 December 2008) at para. 9
2566
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Full Disclosure of
Supporting Material (25 November 2008) at para. 31
2567
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Motion to Set Deadlines for
Disclosure(1 October 2009) at para. 13
2568
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Seventh Disclosure Violation
Motion (10 March 2014) at para. 12
2569
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Motion for Disclosure of Witness
Statements and for Finding of Violation of Rule 66(A)(ii) (29 September 2006) at para. 14

430
 As with statements of the accused, the prosecution is under an obligation to
disclose all statements of prosecution witnesses in its possession, regardless of who took
the statement.2571

Rule 66(A)(ii) covers statements taken by national authorities in the course of

other judicial proceedings involving a witness. 2572

The same definition of a “statement” of an accused applies to the definition of a

“statement” of a witness. 2573

Statements of prosecution witnesses taken by humanitarian organizations and

furnished to the prosecution are witness statements pursuant to Rule 66(A)(ii) and must
be disclosed prior to trial. 2574

Statements made by prosecution witnesses to journalists in the possession of the

prosecution are not witness statements pursuant to Rule 66(A)(ii). 2575

The prosecutor’s disclosure obligations are not only in his capacity as an organ of
the Tribunal, but also as an organ of international criminal justice. 2576

Notes taken by the Prosecution do not qualify as witness statements within the
meaning of Rule 66(A)(ii). Rather, they qualify as internal documents prepared by the
Prosecution in the sense of Rule 70(A). 2577

2570
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Milan Lukic’s Motion to Suppress
Testimony for Failure of Timely Disclosure (3 November 2008) at para. 16; Prosecutor v Milutinovic et al,
No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its Rule 65 ter Witness List to Add
Michael Phillips and Shaun Byrnes (15 January 2007) at para. 12; Prosecutor v Karadzic, No. IT-95-5/18-
T, Decision on Accused’s Third, Fourth, Fifth, and Sixth Motions for Finding of Disclosure Violations and
for Remedial Measures (20 July 2010) at para. 42; Prosecutor v Haradinaj et al, No. IT-04-84bis-T,
Decision on Haradinaj Motion for Disclosure of Exculpatory Materials in Relation to Witness 81 (18
November 2011) at para. 32
2571
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Motion for Disclosure of Witness
Statements and for Finding of Violation of Rule 66(A)(ii) (29 September 2006) at para. 15, fn. 17;
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Reasons for Decision on Postponement of Cross-
Examination of the Testimony of Witness Milovanovic (22 July 2010) at para. 8
2572
Prosecutor v. Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Order to Obtain
Witness Statements and Testimony from National Courts (12 January 2011) at para. 7
2573
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Michael Phillips and Shaun Byrnes (15 January 2007) at fn. 18
2574
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Motion for Disclosure of Witness
Statements and for Finding of Violation of Rule 66(A)(ii) (29 September 2006) at para. 14
2575
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighteenth to Twenty-First
Disclosure Violation Motions (2 November 2010) at para. 40
2576
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Motion for Disclosure of Witness
Statements and for Finding of Violation of Rule 66(A)(ii) (29 September 2006) at para. 13
2577
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 164

431
 Preliminary statements taken from witnesses must be disclosed as Rule 66(A) is
not limited to final, official statements taken from a witness. 2578

The prosecution is not obligated to take a statement from a witness when

interviewing the witness.2579

Prosecution is not obligated to retain a list of questions it used in interviewing a

witness.2580

Rule 67--additional disclosure

(A) Within the time-limit prescribed by the Trial Chamber, at a time not prior to a
ruling under Rule 98 bis, but not less than one week prior to the commencement of
the Defence case, the Defence shall:
(i) permit the Prosecutor to inspect and copy any books, documents, photographs,
and tangible objects in the Defence’s custody or control, which are intended for use
by the Defence as evidence at trial; and
(ii) provide to the Prosecutor copies of statements, if any, of all witnesses whom the
Defence intends to call to testify at trial, and copies of all written statements taken in
accordance with Rule 92 bis, Rule 92 ter, or Rule 92 quater, which the Defence
intends to present at trial. Copies of the statements, if any, of additional witnesses
shall be made available to the Prosecutor prior to a decision being made to call those
witnesses.
(B) Within the time-limit prescribed by the Trial Chamber or by the pre-trial
Judge appointed pursuant to Rule 65 ter:
(i) the defence shall notify the Prosecutor of its intent to offer:
(a) the defence of alibi; in which case the notification shall specify the place or places
at which the accused claims to have been present at the time of the alleged crime
and the names and addresses of witnesses and any other evidence upon which
the accused intends to rely to establish the alibi;
(b) any special defence, including that of diminished or lack of mental
responsibility; in which case the notification shall specify the names and addresses
of witnesses and any other evidence upon which the accused intends to rely to
establish the special defence; and
(ii) the Prosecutor shall notify the defence of the names of the witnesses that the
Prosecutor intends to call in rebuttal of any defence plea of which the Prosecutor
has received notice in accordance with paragraph (i) above.
(C) Failure of the Defence to provide notice under this Rule shall not limit the right
of the accused to testify on the above defences.

2578
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision onHaradinaj Motion for Disclosure of
Exculpatory Materials in Relation to Witness 81 (18 November 2011) at para. 27
2579
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Decision on Urgent Defence Motion
Requesting an Order to the Amicus Curiae to Take and Disclose Witness Statements (29 January 2009) at
para. 6; Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Reasons for Decision on Postponement of
Cross-Examination of the Testimony of Witness Milovanovic (22 July 2010) at para. 8
2580
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Reasons for Decision on the Defence
Motion for Stay of Proceedings for Abuse of Process (3 February 2009) at para. 9

432
(D) If either party discovers additional evidence or material which should have been
disclosed earlier pursuant to the Rules, that party shall immediately disclose that
evidence or material to the other party and the Trial Chamber.

continuing duty of disclosure

It is improper for the prosecution to provide non-exculpatory material directly to

the Trial Chamber pursuant to Rule 67(C) without the consent of the defence. Direct
provision of material pursuant to Rule 67(C) should be limited to material that may
suggest the innocence or mitigate the guilt of the accused, or affect the credibility of
prosecution evidence. 2581

notice of alibi

The prosecution has the burden of eliminate any reasonable possibility that the
evidence of alibi is true.2582

The finding that an alibi is false does not itself establish the opposite of what it
asserts. The prosecution must not only rebut the validity of the alibi, but also establish
beyond reasonable doubt the guilt of the accused. 2583

An alibi does not constitute a defence in its proper sense. Where an accused raises
an alibi he is merely denying that he was in a position to commit the crime with which he
was charged. An accused does not bear the burden of proof beyond reasonable doubt in
relation to establishing an alibi, but only needs to produce evidence likely to raise a
reasonable doubt in the Prosecution’s case. If the alibi is reasonably possibly true, it must
be accepted. Where the alibi evidence does prima facie account for the accused’s
activities at the relevant time of the commission of the crime, the onus remains on the
Prosecution to eliminate any reasonable possibility that the alibi is true. The Prosecution
must establish beyond reasonable doubt that, despite the alibi, the facts alleged are
nevertheless true.2584

Notice of alibi should be provided as soon as practicable so that prosecution can

investigate alibi and present relevant evidence in its case-in-chief. Rule 67(A) does not
contemplate that the alibi notice only serve to inform the prosecution so it can present
evidence in the rebuttal phase. 2585

2581
Prosecutor v Haradinaj et al, No. IT-04-84-T, Trial Chamber’s Order Clarifying Proper Late
Disclosure Procedure Pursuant to Rule 67(C) and/or Other Appropriate Sanctions (7 November 2007)
2582
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 11; Prosecutor v.
Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 63
2583
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 11
2584
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 343
2585
Prosecutor v Limaj et al, No, IT-03-66-T, Decision on Prosecution’s Motion Pursuant to Rule
67(A)(1)(a) (16 February 2005)

433
 Notice of alibi ordered to be made more specific to cover whereabouts of accused
within the town he specified and during certain hours of the specified day. 2586

Alibi notice need not include address of alibi witnesses at the time of the
event.2587

Accused ordered to indicate places within the town where he claimed to be at the
time of the alleged offence if he intends to lead evidence on such places. 2588

Accused was required to specify the documents he would rely on to support his
alibi and it was not sufficient to simply indicate that such documents were already in
possession of the prosecution. 2589

Accused’s failure to provide names and addresses of alibi witnesses, once he had
given notice of intent to rely on alibi, could result in denial of right to lead evidence of
the alibi or adverse inferences on the reliability of the alibi. 2590

mental defences

The defence of lack of mental capacity is a defence in the true sense, in that the
defendant bears the onus of establishing it – that, more probably than not, at the time of
the offence he was labouring under such a defect of reason, from disease of the mind, as
not to know the nature and quality of his act or, if he did know it, that he did not know
that what he was doing was wrong. Such a plea, if successful, is a complete defence to a
charge and it leads to an acquittal. 2591

Diminished mental responsibility can be raised by the defendant as a

matter in mitigation of sentence only. It cannot lead to acquittal of the accused. 2592

reciprocal disclosure

Amendment adding Rule 67(A) during trial did not prejudice any right of the
accused and therefore new reciprocal disclosure provisions could be applied to ongoing
trial. 2593

2586
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on the Prosecution’s Motion for an Order
Requiring the Accused Sredoje Lukic to Clarify Alibi Notice (15 May 2008)
2587
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on the Prosecution’s Motion for an Order
Requiring the Accused Sredoje Lukic to Clarify Alibi Notice (15 May 2008) at para. 11
2588
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion for Order Requiring
Particulars of Accused’s Alibi Defence (1 December 2010) at para. 22
2589
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion for Order Requiring
Particulars of Accused’s Alibi Defence (1 December 2010) at para. 26
2590
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion for Order Requiring
Particulars of Accused’s Alibi Defence (1 December 2010) at para. 29
2591
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 582. However note that
the Appeals Chamber did not hold that lack of mental capacity constituted a defence under the Statute.
2592
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 590.

434
 Rule 67(A)(ii) requires the defence to disclose all statements of its prospective
witnesses to the prosecution. This includes testimony or statements taken by third parties
in the possession of the defence, but does not include notes of interviews. 2594

While the Defence’s disclosure obligation does not attach to draft or non-finalised
Rule 92 ter statements, the Chamber considers that a statement once reviewed and signed
by a witness and in the possession of the Defence, becomes a finalised statement and
subject to disclosure. 2595

There was no rule which requires the defence to disclose its communications with
its expert witnesses or earlier drafts of expert reports.2596

reprisals

The defence of reprisals is not a special defence for which notice pursuant to Rule
67(B) is required.2597

Rule 68—disclosure of exculpatory material

Subject to the provisions of Rule 70,

(i) the Prosecutor shall, as soon as practicable, disclose to the Defence any material
which in the actual knowledge of the Prosecutor may suggest the innocence or
mitigate the guilt of the accused or affect the credibility of Prosecution evidence;
(ii) without prejudice to paragraph (i), the Prosecutor shall make available to the
defence, in electronic form, collections of relevant material held by the Prosecutor,
together with appropriate computer software with which the defence can search
such collections electronically;
(iii) the Prosecutor shall take reasonable steps, if confidential information is
provided to the Prosecutor by a person or entity under Rule 70 (B) and contains
material referred to in paragraph (i) above, to obtain the consent of the provider to
disclosure of that material, or the fact of its existence, to the accused;
(iv) the Prosecutor shall apply to the Chamber sitting in camera to be relieved from
an obligation under paragraph (i) to disclose information in the possession of the
Prosecutor, if its disclosure may prejudice further orongoing investigations, or for
any other reason may be contrary to the public interest or affect the security

2593
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Slobodan Prajlak’s Motion on the Application of
Rule 67(A) of the Rules (4 April 2008)
2594
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Urgent Motion Relating
to Non-Compliance of Stanisic Defence with Rule 65 ter (G) and Rule 67 of the Rules (12 October 2011) at
paras. 29-30
2595
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion Requesting the Defence to
Submit a Revised 65 ter Witness List…(25 July 2014) at para. 38
2596
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Disclosure of Expert Materials (27 August
2009) at para. 9
2597
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Accused’s Notice of Special Defence of
Reprisals on Count Eleven (14 March 2013) at T35475

435
interests of any State, and when making such application, the Prosecutor shall
provide the Trial Chamber (but only the Trial Chamber) with the information that
is sought to be kept confidential;
(v) notwithstanding the completion of the trial and any subsequent appeal, the
Prosecutor shall disclose to the other party any material referred to in paragraph (i)
above.

certificate

There is no requirement that the prosecution certify that it has met its disclosure
obligations. 2598

continuing obligation

The prosecution’s duty to disclose exculpatory evidence is a continuing one, and

extends to the post-trial stage, including appeals, 2599 and even after a final judgement.2600

The stage of a proceeding is not a factor to be considered when discharging the

prosecution’s disclosure obligations. 2601

Counsel for convicted person failed to specify items which had not been disclosed
to him in violation of Rule 68 and therefore motion for disclosure was denied. 2602

cumulative documents

It is no excuse for failure to disclose an excupatory document that the accused had
the same information in other documents. The violation, however, did not prejudice the
accused, and no remedy was warranted.2603

2598
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 182
2599
Prosecutor v Brdjanin, No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to
Rule 68 and Motion for an Order the Registrar to Disclose Certain Materials (7 December 2004);
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Decision on Appellant’s Notice and Supplemental
Notice of Prosecution’s Non-Compliance with its Disclosure Obligation Under Rule 68 of the Rules (11
February 2004) at para. 17; Prosecutor v Bralo, No. IT-95-17-A, Decision on Motions for Access to Ex-
Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material (30 August 2006) at
para. 29; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Request for Reconsideration
of Trial Chamber’s 11 November 2010 Decision (10 December 2010) at para. 11
2600
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Motion Seeking Disclosure of Rule 68 Material
(7 September 2012) at para. 10
2601
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Motion Seeking Disclosure of Rule 68 Material
(7 September 2012) at para. 12
2602
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Motion Seeking Disclosure of Rule 68 Material
(7 September 2012) at para. 11
2603
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Seventh Disclosure Violation
Motion (10 March 2014) at paras. 13-14

436
 deference to prosecutor

The determination of what material meets Rule 68 disclosure obligations falls

within the prosecution’s discretion. 2604 In view of the imperative to provide a fair trial to
an accused, considerations of fairness must be the overriding factor in making that
determination.2605 The Prosecution must exercise its Rule 68 discretion in good faith.2606

There exists a rebuttable presumption that the prosecution is operating in good

faith in the fulfillment of its disclosure obligations. 2607

While typically the decision about what material is potentially exculpatory and
should be disclosed pursuant to Rule 68 is a fact-based assessment left within the
discretion of the prosecution, the prosecution’s view of what is not potentially
exculpatory does not accord with the view of the Chamber. 2608

electronic disclosure suite

It is well established that the EDS cannot be used as a substitute for positive
disclosure.2609

The prosecution may satisfy its Rule 68 obligations by placing material on the
EDS in a separate folder and notifying the accused of material posted on the EDS. 2610

evidentiary hearing

Evidentiary hearing not warranted where there was nothing to suggest bad-faith
on the part of the Prosecution with respect to the error in failing to disclose the 1995
witness statement until 2015. Evidentiary hearing would not help shed any more light on

2604
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 183;
Prosecutor v Oric, No. IT-03-68-T, Decision on Ongoing Complaints About Prosecutorial Non-
Compliance With Rule 68 of the Rules (13 December 2005) at para. 21; Prosecutor v Bralo, No. IT-95-17-
A, Decision on Motions for Access to Ex-Parte Portions of the Record on Appeal and for Disclosure of
Mitigating Material (30 August 2006) at para 30
2605
Prosecutor v Oric, No. IT-03-68-T, Decision on Ongoing Complaints About Prosecutorial Non-
Compliance With Rule 68 of the Rules (13 December 2005) at para. 21
2606
Prosecutor v Bralo, No. IT-95-17-A, Decision on Motions for Access to Ex-Parte Portions of the
Record on Appeal and for Disclosure of Mitigating Material (30 August 2006) at para 30
2607
Prosecutor v Mladic, No. IT-09-92-AR73.2, Decision on Defence Interlocutory Appeal Against the
Trial Chamber’s Decision on EDS Disclosure Methods (28 November 2013) at para. 24
2608
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Forty-Ninth and Fiftieth Disclosure
Violation Motions (30 June 2011) at para. 39
2609
Prosecutor v Mladic, No. IT-09-92-AR73.2, Decision on Defence Interlocutory Appeal Against the
Trial Chamber’s Decision on EDS Disclosure Methods (28 November 2013) at para. 25
2610
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motions for Rule 68 Material and
Reconsideration of Decision on Adequate Facilities (10 March 2009) at para. 20; Prosecutor v Mladic, No.
IT-09-92-AR73.2, Decision on Defence Interlocutory Appeal Against the Trial Chamber’s Decision on
EDS Disclosure Methods (28 November 2013) at para. 25

437
the issue or be of assistance in ensuring full compliance by the prosecution with its
disclosure obligations at this stage.2611

exculpatory nature

standard

The standard for assessing whether material is considered to be exculpatory is

whether there is any possibility, in light of the submissions of the parties, that the given
information could be relevant to the defence of the accused. 2612

suggests innocence

The disclosure obligation under Rule 68 is not limited to material which is

exculpatory on its face. For material to fall within the ambit of Rule 68, it is not required
that it in fact suggests the innocence of the accused; it is sufficient that it may so
suggest.2613

Evidence of Serb crimes against Croat civilians could aid in showing an

alternative explanation to the prosecution allegation of a joint criminal enterprise by the
Croatian forces and is therefore exculpatory. 2614

Evidence of accused’s denial of responsibility for barricades erected in Sarajevo

was exculpatory and should have been disclosed. 2615

Evidence that UN convoy contained arms being smuggled to the Muslims was
exculpatory as it tended to show justification for the Serb searches of UN convoys. 2616

Evidence supporting free movement of humanitarian convoys was exculpatory

and should have been disclosed, but accused was not prejudiced because of other similar,
available evidence.2617

2611
Decision on Accused’s One Hundredth Disclosure Violation Motion (13 July 2015) at para. 18
2612
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on Milan Lukic’s Motion for Remedies
Arising out of Disclosure Violations by the Prosecution (12 May 2011) at para. 14
2613
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Defence Motion on Rule 68 of the Rules of
Procedure and Evidence (2 June 2006) at para. 9 Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on
Ivan Cermak’s Motion Requesting the Trial Chamber to Order the Prosecution to Disclose Rule 68
Material to the Defence (7 August 2009) at para. 11;
2614
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion Requesting the Trial
Chamber to Order the Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 11
2615
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Twenty-Second, Twenty-Fourth, and
Twenty –Sixth Motions for Disclosure Violation (11 November 2010) at para. 29
2616
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s 47th Motion for Finding of Disclosure
Violation and for Further Suspension of Proceedings (10 May 2011) at para. 14
2617
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s 107th Disclosure Violation Motion
(14 March 2016) at para. 17

438
 Evidence of UN commander’s statements about factories being used for military
facilities in Sarajevo and protests of Muslim offensives, as well as copies of an analysis
of orders issued by the accused calling for obedience to humanitarian law, were of an
exculpatory nature and should have been disclosed.2618

Evidence of investigation of Serbs for war crimes was exculpatory as it tended to

refute the allegation that the accused failed to punish such crimes. 2619

Evidence that movement of the population was pursuant to agreement of the

parties rather than ethnic cleansing, appeal to protect citizens of all nationalities,
smuggling of ammunition in UNHCR vehicles, and motive of Muslims to provoke
international intervention was exculpatory in nature and should have been disclosed. 2620

Evidence that young male prisoners from Srebrenica were put on buses with
women and that soldiers were ordered to treat civilians properly during Srebrenica
operation was exculpatory in nature and should have been disclosed. 2621

Evidence that treatment at prison camp was correct was exculpatory where
indictment charged mistreatment of prisoners at that camp during the period covered by
the statement.2622

Evidence that events in Prijedor were in response to military activities by the

Bosnian Muslims was potentially exculpatory and failure to disclose evidence in a timely
manner violated the prosecution’s disclosure obligations. However, no prejudice was
shown where material was largely duplicative of material already disclosed. 2623

Evidence of existence of Bosnian Muslim snipers firing into Serb areas was
exculpatory and failure to disclose it violated Rule 68.2624

Evidence of correct treatment of prisoners was potentially exculpatory and failure

to disclose it violated Rule 68.2625

2618
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Seventeenth bis and Twenty-Eighth
Disclosure Violation Motions (16 December 2010) at paras. 22,26
2619
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s 47th Motion for Finding of Disclosure
Violation and for Further Suspension of Proceedings (10 May 2011) at para. 15; Prosecutor v Karadzic,
No. IT-95-5/18-T, Decision on Accused’s Ninety-Sixth Disclosure Violation Motion (21 January 2015) at
para. 8
2620
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Thirtieth and Thirty-First Disclosure
Violation Motions (3 February 2011) at paras. 9,11
2621
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-Eighth and Ninety-Ninth
Disclosure Violation Motions (6 June 2015) at paras. 11-12
2622
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Second Disclosure Violation
Motion (7 November 2013) at para. 18
2623
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Eighth Disclosure Violation
Motion (18 March 2014) at para. 10
2624
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Fourth Disclosure Violation
Motion (16 January 2014) at para. 10

439
 Evidence that massacre was spontaneous and self-initiated, and that authorities
exerted pressure to prosecute the perpetrators was exculpatory and failure to disclose it
violated Rule 68.2626

Evidence that victims were killed trying to escape was exculpatory and the failure
to disclose this information violated Rule 68. 2627

contradicts prosecution evidence

Material will affect the credibility of the Prosecution’s evidence if it undermines

the case presented by the Prosecution at trial. 2628

Notes of a prior statement which was inconsistent with later statement constituted
exculpatory material which must be disclosed. 2629

The prosecution has a general duty to make a record of any inconsistencies in a

witness’ account and to disclose it to the defence. 2630

Statement of witness which contradicted testimony of other prosecution witnesses

fell within Rule 68 and should have been disclosed.2631

Statements of witnesses which contradicted facts judicially noticed fell within

Rule 68 and should have been disclosed. 2632

Evidence that witness acknowledged recruiting a witness who falsely testified and
confirmed his alibi at his own trial falls within Rule 68.2633

2625
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Ninth and Ninetieth
Disclosure Violation Motions (16 April 2014) at paras. 17-19
2626
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Fourth Disclosure Violation
Motion (16 January 2014) at para. 14
2627
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-First Disclosure Violation
Motion (7 May 2014) at para. 17
2628
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 178; Prosecutor v Gotovina et
al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion Requesting the Trial Chamber to Order the
Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 6
2629
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision onHaradinaj Motion for Disclosure of
Exculpatory Materials in Relation to Witness 81 (18 November 2011) at para. 33
2630
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision onHaradinaj Motion for Disclosure of
Exculpatory Materials in Relation to Witness 81 (18 November 2011) at para. 37
2631
Prosecutor v Oric, No. 03-68-T, Decision on Alleged Prosecution Non-Compliance With Disclosure
Obligations Under Rule 66(B) and 68(i) (29 September 2005)
2632
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-Fourth Disclosure Violation
Motion (14 October 2014) at para. 14
2633
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Decision on Motion by Dario Kordic for Access to
Unredacted Portions of October 2000 Interviews With Witness AT (23 May 2003) at para. 26

440
 Memorandum of meeting in which no mention of ethnic cleansing was made did
not contradict or affect the credibility of testimony of prosecution witness who testified
that the accused frequently acknowledged ethnic cleansing. 2634

Prosecution violated Rule 68 by failing to timely disclose a document which

contained post-conflict information which could have affected the credibility of a
prosecution witness.2635

Prosecution violated Rule 68 by failing to timely disclose witness statement

which contained material which could have affected his credibility. As a result, the
Chamber decided not to rely on that witness’ evidence on that subject. 2636

The prosecution’s failure to disclose that it had referred an investigation into a

prosecution witness’s potential criminal responsibility to State authorities, with no
conclusion as to his culpability, did not violate Rule 68.2637

benefits to prosecution witnesses

Evidence that the prosecution has provided or may provide any objective form of
assistance to a witness falls squarely within the purview of Rule 68.2638

Any material in the possession of the prosecution establishing that a witness

requested and/or received a benefit from being a prosecution witness may affect the
credibility of the said witness and therefore should be disclosed pursuant to Rule 68.2639

Prosecution’s failure to disclose letter which assisted witness in his asylum

application, as well as requests for such a letter, violated Rule 68. 2640

2634
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Third, Fourth, Fifth, and Sixth
Motions for Finding of Disclosure Violations and for Remedial Measures (20 July 2010) at para. 36
2635
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-Fifth Disclosure Violation
Motion (5 December 2014) at para. 10
2636
Decision on Accused’s One Hundredth Disclosure Violation Motion (13 July 2015) at paras. 15-17
2637
Decision on Accused 101st Disclosure Violation Motion (20 July 2015) at para. 15
2638
Prosecutor v Haradinaj, No. IT-04-84bis-T, Decision on Joint Defence Motion for Relief from Rule 68
Violations by the Prosecution and for Sanctions Pursuant to Rule 68 bis (12 October 2011) at para. 45
2639
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Sixtieth, Sixty-First, Sixty-Third, and
Sixty-Fourth Disclosure Violation Motions (22 November 2011) at para. 23; Prosecutor v Karadzic, No.
IT-95-5/18-T, Decision on Accused’s Sixty-Fifth Disclosure Violation Motion (12 January 2012) at para.
16; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Sixty-Sixth and Sixty-Seventh
Disclosure Violation Motions (1 March 2012) at para. 17
2640
Prosecutor v Haradinaj, No. IT-04-84bis-T, Decision on Joint Defence Motion for Relief from Rule 68
Violations by the Prosecution and for Sanctions Pursuant to Rule 68 bis (12 October 2011) at para.51;
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Sixtieth, Sixty-First, Sixty-Third, and
Sixty-Fourth Disclosure Violation Motions (22 November 2011) at paras. 25,27,29,31; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighty-Third Disclosure Violation Motion (21
November 2013) at para. 10; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s 102nd and
103rd Disclosure Violation Motions (4 November 2015) at para. 33

441
 Where it was not shown that witness’ statements or testimony had materially
changed after the promise or benefit relating to their immigration status, witnesses would
not be recalled for cross examination after late disclosure of the promises or benefits. 2641

form of disclosure

Rule 68 does not require the prosecution to identify the material being disclosed
to the defense as exculpatory. 2642

importance

The obligation to disclose under Rule 68 is as important as the obligation to

prosecute.2643

In pursuit of justice, the disclosure of Rule 68 material to the defence is of

paramount importance to ensure the fairness of proceedings before the Tribunal. 2644

Rule 68 of the Rules has an important function as it requires the Prosecution to

disclose exculpatory material because of its superior – and sometimes even sole – access
to this material. 2645

The disclosure of Rule 68 material is fundamental to the fairness of proceedings

before the Tribunal, and considerations of fairness are the overriding factor in any
determination of whether the governing Rule has been breached. 2646

The prosecution’s obligation to disclose exculpatory material is essential to a fair

trial. This obligation has always been interpreted broadly. 2647

The Appeals Chamber reminds the prosecution of the paramount importance of its
disclosure obligations and expects the prosecution to take the necessary steps to prevent
such disclosure violations from occurring in the future.2648

2641
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Sixty-Fifth Disclosure Violation
Motion (12 January 2012) at para. 23; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s
Eighty-Third Disclosure Violation Motion (21 November 2013) at para. 11
2642
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 190
2643
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 183, 242;
Prosecutor v Brdjanin, No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule
68 and Motion for an Order the Registrar to Disclose Certain Materials (7 December 2004); Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Request for Reconsideration of Trial Chamber’s 11
November 2010 Decision (10 December 2010) at para. 10
2644
Prosecutor v Oric, No. IT-03-68-T, Decision on Ongoing Complaints About Prosecutorial Non-
Compliance With Rule 68 of the Rules (13 December 2005) at para. 20
2645
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Decision on Appellant’s Notice and Supplemental
Notice of Prosecution’s Non-Compliance with its Disclosure Obligation Under Rule 68 of the Rules (11
February 2004) at para. 17
2646
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 188
2647
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on Milan Lukic’s Motion for Remedies
Arising out of Disclosure Violations by the Prosecution (12 May 2011) at para. 13

442
 mitigation of sentence

Recordings or notes of meetings at which accused claimed he was promised

immunity if he resigned from public office may mitigate an eventual sentence and was
within Rule 68.2649

possession

Rule 68 prima facie obliges the Prosecution to monitor the testimony of

witnesses, and to disclose material relevant to the impeachment of the witness, during or
after testimony. If the amount of material is extensive, the parties are entitled to request
an adjournment in order to properly prepare themselves. 2650

Testimony given in other trials is generally encompassed by the Prosecution’s

disclosure obligation pursuant to Rule 68. 2651

Prosecution would not be required to obtain broad categories of material from

Bosnian courts and disclose them to the defence—the defence could equally request, and
if unsuccessful, compel production of the records from the State. 2652

prejudice

If a newly disclosed document adds nothing new to the material already available
to the accused, or he has the opportunity to use the document through another witness, he
has suffered no prejudice from its late disclosure. 2653

No prejudice from disclosure violation where the accused will have the
opportunity to introduce the information in its defence case. 2654

2648
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on Milan Lukic’s Motion for Remedies
Arising out of Disclosure Violations by the Prosecution (12 May 2011) at para. 23
2649
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Second Motion for Inspection and
Disclosure: Immunity Issue (17 December 2008) at para. 21
2650
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 206; Prosecutor v Lukic &
Lukic, No. IT-98-32/1-A, Decision on Milan Lukic’s Motion for Remedies Arising out of Disclosure
Violations by the Prosecution (12 May 2011) at para. 14
2651
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Decision on Appellant’s Notice and Supplemental
Notice of Prosecution’s Non-Compliance with its Disclosure Obligation Under Rule 68 of the Rules (11
February 2004) at para. 20
2652
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Slobodan Praljak’s Request for the Production of
Rule 68 Exculpatory Material in Relation to Domestic Proceedings (10 May 2007)
2653
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Forty-Ninth and Fiftieth Disclosure
Violation Motions (30 June 2011) at para. 48; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s Eighty-Fifth Disclosure Violation Motion (21 January 2014) at para. 22; Prosecutor v Karadzic,
No. IT-95-5/18-T, Decision on Accused’s Ninety-Sixth Disclosure Violation Motion (21 January 2015) at
para. 8
2654
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Fifty Fifth Disclosure Violation
Motion (19 August 2011) at para. 12

443
 No prejudice from disclosure violation where material was duplicative of other
material entered into evidence during the trial or otherwise disclosed to the accused.2655

No prejudice from disclosure violations where material consisted of “self-serving

denials of crimes or involved the shifting of blame for certain events” which have little if
any probative value. 2656

privileged material

Where prosecution came upon potentially privileged material in items seized

through the execution of a search warrant, and applied to the Chamber for appointment of
an independent counsel to review it and determine its privileged status, Chamber
determined that it was more appropriate for a Judge of another Chamber to perform the
review. 2657

Psychological evaluation of prosecution witness whose testimony was admitted

under Rule 92 quarter would be reviewed by the Trial Chamber in camera to determine
if they contain material affecting the credibility of the witness. Review of the records
themselves, and not a medical officer’s summary of the records, was required. 2658

public material

Prosecution is relieved of its obligation to disclose under Rule 68 when the

material is already available on the Tribunal website.2659

relief from disclosure

The prosecution may be relieved of its obligation to disclose Rule 68 material if

the excupatory nature of the evidence is known and the material is accessible to the
accused. 2660

remedy

2655
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-Third Disclosure Violation
Motion (20 March 2015) at para. 17; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s
104th and 105th Disclosure Violation Motions (18 February 2016) at paras. 27,33
2656
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s 104th and 105th Disclosure Violation
Motions (18 February 2016) at para. 27
2657
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Prosecution Motion for the Appointment of
Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege (10 July 2012) at
para. 8
2658
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Deputy Registrar’s Further Submission on
Medical Records Pertaining to Milan Babic (19 April 2013) at paras. 2,15
2659
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion Requesting the Trial
Chamber to Order the Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 12
2660
Prosecutor v Bralo, No. IT-95-17-A, Decision on Motions for Access to Ex-Parte Portions of the
Record on Appeal and for Disclosure of Mitigating Material (30 August 2006) at para. 30

444
 Where prosecution breached its disclosure obligation under Rule 68, defence
would be allowed to recall prosecution or defence witnesses affected by the non-
disclosure.2661

Trial Chamber would proprio motu not rely on evidence of prosecution witness
on subject of statement which had not been timely disclosed to the defence and which
could have affected the credibility of the witness. 2662

Six-week suspension of trial warranted by prosecution’s late disclosure of 32,000

pages of Rule 68 material. It is untenable to expect the defence to be able to review this
material during an ongoing trial. 2663

Suspension of proceedings for period of one month was warranted in order to

allow defence to review 14,276 pages of documents disclosed by prosecution on 13 and
22 October 2010.2664

The one-month suspension of the trial [for the review of 14,276 pages of newly
disclosed documents] is not premised on a calculation of the time necessary to conduct a
detailed examination of all the documents, but rather, on the time required to assess the
material, as a whole, and identify those which must be given the most immediate
attention.2665

In determining the period of suspension, the Chamber also takes into

consideration the significant number of violations by the Prosecution of its disclosure
obligation under 66(A)(ii) and Rule 68 which have been found to date. While,
individually, it may be said that the accused has not suffered prejudice by the late
disclosure of certain documents, the Chamber is increasingly troubled by the potential
cumulative effect of such late disclosure.2666

Six week postponement of trial warranted where Rule 68 material was not timely
disclosed by the prosecution. However, preparing a defence is not exclusively done at

2661
Prosecutor v Delic, No. IT-04-83-T, Decision on Urgent Defence Motion Concerning Rule 68
Compliance by the Prosecution (28 March 2008); Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision
on Milan Lukic’s Motion to Suppress Testimony for Failure of Timely Disclosure (3 November 2008) at
para. 18
2662
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s One Hundredth Disclosure Violation
Motion (13 July 2015) at para. 17
2663
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Fourth Suspension of
Proceedings (16 February 2011) at para. 11
2664
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Interim Decision on Accused’s Twenty-Sixth Disclosure
Violation (3 November 2010) at T8906-09
2665
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Interim Decision on Accused’s Twenty-Sixth Disclosure
Violation (3 November 2010) at T8907
2666
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Interim Decision on Accused’s Twenty-Sixth Disclosure
Violation (3 November 2010) at T8908

445
the pre-trial stage and the defence is expected to review new disclosures on an ongoing
basis during the trial. 2667

Reduction of the scope of the case due to prosecution’s disclosure violations not
warranted where accused was not prejudiced by the violations. 2668

Appointment of Special Master not warranted for multiple violations of Rule

68—instead prosecution would be required to submit detailed report explaining reasons
for non-disclosure. 2669

Allowing defence access to OTP database rejected as a remedy for multiple

disclosure violations as neither realistic nor practical. 2670

Where it is found on appeal that the accused has been prejudiced by a violation of
Rule 68, that prejudice may be remedied through the application of Rule 115 and the
admission of additional evidence on appeal. 2671

Appeals Chamber made finding that prosecution had violated Rule 68 by failing
to disclose materials showing that bodies of alleged victims were exhumed a considerable
distance away from the crime. 2672

Prosecution ordered to explain how the material was not identified in earlier
searches; and to substantiate its assertion that it had remedied the problem which resulted
in the disclosure violation. Citing to “human error” or similar explanations is not
satisfactory. 2673

New trial not warranted as remedy for cumulative disclosure violations where,
despite a disclosure practice that reflected badly on the prosecution, the accused had not
been prejudiced by the disclosure violations. 2674

2667
Prosecutor v Mladic, No. 09-92-T, Reasons for Decision on Defence Motion for Reconsideration (29
June 2012) at para. 23
2668
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Forty-Ninth and Fiftieth Disclosure
Violation Motions (30 June 2011) at para. 50
2669
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Forty-Ninth and Fiftieth Disclosure
Violation Motions (30 June 2011) at para. 52
2670
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Seventy-Seventh and Seventy-Eighth
Disclosure Violation Motions (11 March 2013) at para. 22
2671
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on Milan Lukic’s Motion for Remedies
Arising out of Disclosure Violations by the Prosecution (12 May 2011) at para. 17
2672
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on Milan Lukic’s Motion for Remedies
Arising out of Disclosure Violations by the Prosecution (12 May 2011) at para. 20
2673
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-Fourth Disclosure Violation
Motion (13 October 2014) at para. 16
2674
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for New Trial for Disclosure
Violations (3 September 2012) at paras. 17-19; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s Second Motion for New Trial for Disclosure Violations (14 August 2014) at para. 17

446
 Dismissal of appeal would be disproportionate remedy where items not disclosed
in violation of Rule 68 and contrary to prosecution’s certification were not material to the
appeal. 2675

Appointment by Appeals Chamber of amicus curiae prosecutor for disclosure

violations was not appropriate where violations occurred before Trial Chamber. 2676

Where prosecution violated Rule 68 by failing to disclose UN report dealing with

investigation of Sarajevo shelling incident, the report was admitted into evidence as a
remedy for the Rule 68 violation, but was not of such import as to require the recall of the
witness.2677

request

A request for materials pursuant to Rule 68 must be specific as to the nature of the
evidence sought and its being in the possession of the prosecution, but need not precisely
identify which documents should be disclosed. 2678

Rule 70 material

Disclosure of the number of exculpatory documents provided pursuant to Rule

70(B) for which the provider has not yet authorized disclosure would not be required in
light of Rule 68(iii)’s protection of the fact of the existence of such documents. 2679

Where the prosecution’s confidentiality obligations under Rule 70(B) conflict

with its disclosure obligations under Rule 68, it is for the prosecution to take measures to
resolve these concerns without falling in breach of either provision, with the supervision
of the Trial Chamber if necessary. 2680

The prosecution cannot be relieved of its Rule 68 obligation by virtue of Rule 70

without taking steps to secure the consent of the provider to disclose the material. 2681

2675
Prosecutor v Karadzic, No. IT-95-5/18-AR98 bis.1, Decision on Motion to Dismiss Appeal and for
Appointment of Amicus Curiae Prosecutor (4 July 2013) at p. 3
2676
Prosecutor v Karadzic, No. IT-95-5/18-AR98 bis.1, Decision on Motion to Dismiss Appeal and for
Appointment of Amicus Curiae Prosecutor (4 July 2013) at p. 4
2677
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Accused’s Seventy-Sixth Disclosure
Violation Motion (29 January 2013) at T32882-83
2678
Prosecutor v Bralo, No. IT-95-17-A, Decision on Motions for Access to Ex-Parte Portions of the
Record on Appeal and for Disclosure of Mitigating Material (30 August 2006) at para. 30
2679
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Disclosure of Rule 68
Material Obtained Under Rule 70(B) and Order on Prosecution Disclosure Report (15 January 2009) at p.
3
2680
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Application for Certification to
Appeal Decision on Rule 70(B) (12 February 2009) at para. 8
2681
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion Requesting the Trial
Chamber to Order the Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 12

447
 The prosecution’s delay in identifying exculpatory documents and requesting the
consent of the provider to disclose them violated Rule 68. 2682

Nothing in Rule 70(A) relieves the prosecution of its duty to disclose exculpatory
material pursuant to Rule 68. Therefore, exculpatory parts of internal memorandum of
OTP must be disclosed to the defence, as well as those parts necessary to understand the
context of the exculpatory parts.2683

Prosecution could not justify its failure to disclose correspondence in witness’

asylum case on fact that State had requested that the material should be confidential
where State did not invoke Rule 70 in its correspondence. 2684

scope

Material to be disclosed under Rule 68 is not restricted to material which is in a

form which would be admissible in evidence. Rather, it includes all information which in
any way tends to suggest the innocence or mitigate the guilt of an accused or may affect
the credibility of prosecution evidence, as well as material which may put an accused on
notice that such material exists.2685

specificity

Despite finding that evidence of agreement that accused would not be prosecuted
at ICTY was relevant to mitigation, request for any items in the possession of the
prosecution supporting the accused’s contention that such an agreement was made was
insufficiently specific to require production pursuant to Rule 68. 2686

Request for evidence of all crimes by Serb forces in South sector from 1991-95
was sufficiently specific under Rule 68. 2687

stipulation

2682
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Third, Fourth, Fifth, and Sixth
Motions for Finding of Disclosure Violations and for Remedial Measures (20 July 2010) at para. 28
2683
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Order on Disclosure of Memorandum and on
Interviews with a Prosecution Source and Witness (13 December 2006) at pg. 4
2684
Prosecutor v Haradinaj, No. IT-04-84bis-T, Decision on Joint Defence Motion for Relief from Rule 68
Violations by the Prosecution and for Sanctions Pursuant to Rule 68 bis (12 October 2011) at para. 52
2685
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 178; Prosecutor v Gotovina et
al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion Requesting the Trial Chamber to Order the
Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 6; Prosecutor v Kordic &
Cerkez, No. IT-65-14/2-A, Decision on Motion by Dario Kordic for Access to Unredacted Portions of
October 2000 Interviews With Witness AT (23 May 2003) at para. 24
2686
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused Motion for Interview of Defence
Witness and Third Motion for Disclosure (9 April 2009) at para. 27
2687
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion Requesting the Trial
Chamber to Order the Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 10

448
 Prosecution’s willingness to stipulate to crimes committed by Serb forces as
claimed by the defence does not relieve it of the obligation to disclose the materials in its
possession.2688

timing

The prosecution is required to disclose evidence of an exculpatory nature to the

defence forthwith, notwithstanding the practical difficulties.2689

Regardless of the prosecution’s internal practices, Rule 68 requires that disclosure

be made as soon as practicable.2690

When coming into possession of a large collection of potentially exculpatory

materials, the prosecution should inform the accused of the nature and existence of the
material even if it will take time for the material to be processed and reviewed. 2691

Prosecution’s practice of conducting name searches for exculpatory material

proximate to the time the witness will testify was unacceptable. Deadline given by Trial
Chamber for disclosure of all remaining exculpatory material. 2692

It is no excuse for the failure to make timely disclosure of exculpatory material

that the accused had requested a large volume of disclosure under Rule 66(B).2693

It is no excuse for the failure to make timely disclosure that the prosecution did
not know the nature of the accused’s defence or that the defence was not set out in the
pre-trial brief. The prosecution is required to make its own assessment of what material
is potentially exculpatory of an accused person. This assessment should be made as early
as the initial appearance, and on an ongoing basis, regardless of what the accused’s
ultimate defence strategy proves to be. 2694

2688
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s Motion Requesting the Trial
Chamber to Order the Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 13
2689
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 243
2690
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Request for Reconsideration of
Trial Chamber’s 11 November 2010 Decision (10 December 2010) at para. 11
2691
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Twenty-Second, Twenty-Fourth, and
Twenty –Sixth Motions for Disclosure Violation (11 November 2010) at para. 38
2692
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Twenty-Second, Twenty-Fourth, and
Twenty –Sixth Motions for Disclosure Violation (11 November 2010) at para. 33
2693
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighteenth to Twenty-First
Disclosure Violation Motions (2 November 2010) at para. 30; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Twenty-Second, Twenty-Fourth, and Twenty –Sixth Motions for Disclosure
Violation (11 November 2010) at para. 31; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Prosecution’s Request for Reconsideration of Trial Chamber’s 11 November 2010 Decision (10 December
2010) at para. 14
2694
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Request for Reconsideration of
Trial Chamber’s 11 November 2010 Decision (10 December 2010) at para. 13

449
 Where the prosecution had not provided information on the date when the
document came into its possession, or when it had requested consent for disclosure under
Rule 70, the Trial Chamber would presume the material had been in the possession of the
prosecution for a considerable time. 2695

The fact that the prosecution has a continuing duty to disclose exculpatory
evidence does not suggest that the prosecution can delay disclosure of material already in
its possession or identify and disclose exculpatory material on a “rolling basis”.2696

videos

Because of copyright concerns, disclosure of videos to accused required that

videos be viewed on the premises of the Tribunal and not copied or disseminated. 2697

Rule 68 bis—failure to comply with disclosure obligations

The pre-trial Judge or the Trial Chamber may decide proprio motu, or at the
request of either party, on sanctions to be imposed on a party which fails to perform
its disclosure obligations pursuant to the Rules.

The defence can challenge at any time the prosecution’s compliance with Rule 68
if it has reason to believe that the prosecution is failing to perform its duty and if it
presents a prima facie case which would make probable the exculpatory nature of the
materials sought.2698

If the defence believes that the prosecution has not complied with Rule 68, it must
establish that additional evidence exists that might prove exculpatory or mitigating for the
accused and is in the possession of the prosecution. It must show the probable
exculpatory or mitigating nature of the items sought.2699

If an accused wishes to show that the prosecution is in breach of its disclosure

obligations, it must identify specifically the items sought, present a prima facie showing
of the exculpatory nature of the items, and prove the prosecutor’s custody and control of
the items.2700

2695
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Eighteenth to Twenty-First
Disclosure Violation Motions (2 November 2010) at para. 30
2696
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Request for Reconsideration of
Trial Chamber’s 11 November 2010 Decision (10 December 2010) at para. 11; Prosecutor v Karadzic, No.
IT-95-5/18-T, Decision on Accused’s Seventeenth bis and Twenty-Eighth Disclosure Violation Motions (16
December 2010) at para. 23; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s 47th Motion
for Finding of Disclosure Violation and for Further Suspension of Proceedings (10 May 2011) at para. 11
2697
Prosecutor v Seselj, No. IT-03-67-T, Decision on Disclosure of Videos to the Accused (12 May 2009)
2698
Prosecutor v Halilovic, No. 01-48-T, Decision on Urgent Motion for Immediate Disclosure (11 March
2005) at page 5
2699
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para 179
2700
Prosecutor v Bralo, No. IT-95-17-A, Decision on Motions for Access to Ex-Parte Portions of the
Record on Appeal and for Disclosure of Mitigating Material (30 August 2006) at para. 31

450
 The Rules do not require a showing of malice before sanctions may be
imposed.2701

Prosecution failed to comply with Rule 68 in this case and its approach to Rule 68
was less than diligent. However, there was no prejudice to the accused in light of the
Trial Chamber’s finding that he should be sentenced to no more than the time he has
already served. 2702

The Trial Chamber reserves the right to draw adverse inferences against the
prosecution as to evidence which is the subject of violations of Rule 68. 2703

Where an accused has been prejudiced by a breach of Rule 68, that prejudice may
be remedied where appropriate through the admission of additional evidence on appeal
under Rule 115.2704

Even where a Rule 68 violation is shown, the accused must demonstrate that he is
prejudiced before a remedy will be ordered.2705

Prosecution’s violation of Rule 68 permitted the defence to recall witnesses called

by the prosecution where its cross-examination was affected by the non-disclosure of the
material. 2706 This is an adequate remedy to cure Rule 68 violations. 2707

Prosecutor cannot personally be reprimanded as a sanction for violation of this

section. The sanctions imposed under this section are intended to apply to the Office of
the Prosecutor and individual sanctions for disclosure violation may only be imposed
pursuant to Rule 46(A) after warning.2708

Rule 69—protection of victims and witnesses

(A) In exceptional circumstances, either party may apply to a Judge or Trial

Chamber to order the non-disclosure of the identity of a victim or witness who may
be in danger or at risk until such person is brought under the protection of the
Tribunal.
(B) In the determination of protective measures for victims and witnesses, the Judge
or Trial Chamber may consult the Victims and Witnesses Section.

2701
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 190
2702
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 77
2703
Prosecutor v Oric, No. IT-03-68-T, Decision on Ongoing Complaints About Prosecutorial Non-
Compliance With Rule 68 of the Rules (13 December 2005) at para. 35
2704
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 187
2705
Prosecutor v Bralo, No. IT-95-17-A, Decision on Motions for Access to Ex-Parte Portions of the
Record on Appeal and for Disclosure of Mitigating Material (30 August 2006) at para. 31
2706
Prosecutor v Oric, No. 03-68-T, Decision on Urgent Defence Motion Regarding Prosecutorial Non-
Compliance With Rule 68 (27 October 2005)
2707
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 192
2708
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision on Prosecutor’s Motion for Reconsideration
of Relief Ordered Pursuant to Rule 68 bis (27 March 2012) at paras. 40-41

451
(C) Subject to Rule 75, the identity of the victim or witness shall be disclosed within
such time as determined by the Trial Chamber to allow adequate time for
preparation of the Prosecution or Defence

current address

An order withholding the current address of a witness from the accused requires a
showing of “exceptional circumstances”. The prosecution must establish that there is a
likelihood that the particular witness will be interfered with or intimidated once their
identity is made known to the accused and his defence team, notwithstanding the
obligations on the accused and his defence team in relation to disclosure to third
parties. 2709

The likelihood of interference must be objective: while the witness may

personally feel that he or she may be at risk, any subjective fears expressed by the
witness are not in themselves sufficient to establish any real likelihood that they may be
in danger or at risk. In order to warrant an interference with the rights of the accused,
those fears must be well-founded in fact.2710

Prosecution failed to establish that there is a real likelihood of danger to the

witness should his address be known to the Accused.2711

delayed disclosure

Nothing in Rule 69(C) requires that the identity of all witnesses be disclosed prior
to trial. A Trial Chamber has the discretion to delay disclosure even after the trial has
commenced so long as the accused is given adequate time for the preparation of his
defence. 2712

Delayed disclosure of the identity of witnesses even after the trial commences is
permissible. 2713

Two key factors in allowing early disclosure of some witness identities is the
approaching trial date and the fact that the disclosure ordered is narrow—to the defence
teams and the accused only. 2714

2709
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Further Protective
Measures for Witness KDZ310…(13 January 2015) at para. 11
2710
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Further Protective
Measures for Witness KDZ310…(13 January 2015) at para. 11
2711
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Further Protective
Measures for Witness KDZ310…(13 January 2015) at para. 12
2712
Prosecutor v Seselj, No. IT-03-67-AR73.6, Decisions on Vojislav Seselj’s Appeal Against the Trial
Chamber’s Oral Decision of 7 November 2007 (24 January 2008) at para, 15
2713
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Sixty-Sixth Disclosure Violation
Motion (8 February 2012) at para. 17
2714
Prosecutor v Haradinaj et al, No. 04-84-PT, Decision on Second Haradinaj Motion to Lift Redactions
of Protected Witness Statements (22 November 2006) at para. 23

452
 Factors to consider when requested to delay disclosure to the accused include: (1)
objective likelihood of interference from disclosure to the accused; (2) specific, rather
than general basis for the request; and (3) length of time before the trial at which
disclosure to the accused must take place. 2715

Where witness for whom delayed disclosure had been ordered in another case
consented to variation of the protective measures to allow disclosure of his identity at an
earlier time in the present case, the Trial Chamber ordered his identity to be immediately
disclosed to the accused.2716

Order in original case which provided that disclosure in subsequent proceedings

should be delayed until the same time frame as disclosure to the defence in the original
case would be respected as to those witnesses the prosecution intended to call in the
subsequent proceedings. As for other witnesses, disclosure should be made forthwith in
redacted form.2717

Delayed disclosure orders cannot be circumvented by a claim that the information

is material to the preparation of the defence pursuant to Rule 66(B). Should the late
disclosure reveal information that could have been used with a witness called before the
disclosure is effected, the accused can move to recall the witness affected by the delayed
disclosure.2718

requirements

The Trial Chamber will only issue an order for non-disclosure of witness
identities where the prosecution demonstrates the existence of exceptional
circumstances—specific evidence of an identifiable risk to the security and welfare of the
particular witness or his family. Broad allegations of dangerous conditions for victims
and witnesses in general will not suffice to justify the issuance of a non-disclosure
order.2719

scope

2715
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution’s Motion for Delayed
Disclosure… (5 June 2009) at para. 11
2716
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision of the Accused’s Motion for Modification of
Delayed Disclosure: Witness KDZ320 (7 December 2011) at para. 12
2717
Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Mico Stanisic’ Motion to rescind or Vary the
Delayed Disclosure Orders in Prosecutor v Brdjanin (31 January 2008)
2718
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Modification of Protective
Measures: Wttnesses KDZ490 and KDZ492 (25 March 2010) at paras. 18-19
2719
Prosecutor v Haradinaj et al, No. 04-84-PT, Decision on Second Haradinaj Motion to Lift Redactions
of Protected Witness Statements (22 November 2006) at para. 2

453
 Members of defence team of self-represented accused include the legal associates
and investigator assigned by the Registry, but do not include pro bono advisors or others
assisting the accused. 2720

timing

Disclosure of identities of three witnesses 30 days prior to their testimony was not
an abuse of discretion. 2721

Disclosure of identities of protected witnesses need not occur until 30 days before
trial commences in accordance with standard practices of ICTY trial chambers. 2722

Rule 70—matters not subject to disclosure

(A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or

other internal documents prepared by a party, its assistants or representatives in
connection with the investigation or preparation of the case, are not subject to
disclosure or notification under those Rules.
(B) If the Prosecutor is in possession of information which has been provided to the
Prosecutor on a confidential basis and which has been used solely for the purpose of
generating new evidence, that initial information and its origin shall not be disclosed
by the Prosecutor without the consent of the person or entity providing the initial
information and shall in any event not be given in evidence without prior disclosure
to the accused.
(C) If, after obtaining the consent of the person or entity providing information
under this Rule, the Prosecutor elects to present as evidence any testimony,
document or other material so provided, the Trial Chamber, notwithstanding Rule
98, may not order either party to produce additional evidence received from the
person or entity providing the initial information, nor may the Trial Chamber for
the purpose of obtaining such additional evidence itself summon that person or a
representative of that entity as a witness or order their attendance. A Trial
Chamber may not use its power to order the attendance of witnesses or to require
production of documents in order to compel the production of such additional
evidence.
(D) If the Prosecutor calls a witness to introduce in evidence any information
provided under this Rule, the Trial Chamber may not compel that witness to answer
any question relating to the information or its origin, if the witness declines to
answer on grounds of confidentiality.
(E) The right of the accused to challenge the evidence presented by the
Prosecution shall remain unaffected subject only to the limitations contained

2720
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motions for Rule 68 Material and
Reconsideration of Decision on Adequate Facilities (10 March 2009) at paras. 25-26
2721
Prosecutor v Seselj, No. IT-03-67-AR73.6, Decisions on Vojislav Seselj’s Appeal Against the Trial
Chamber’s Oral Decision of 7 November 2007 (24 January 2008) at para, 16
2722
Prosecution v. Mrksic et al, No. IT-95-13/1-PT, Decision on Confidential Prosecution Motions for
Protective Measures and Non-Disclosure (9 March 2005) at page 4

454
in paragraphs (C) and (D).
(F) The Trial Chamber may order upon an application by the accused or defence
counsel that, in the interests of justice, the provisions of this Rule shall apply
mutatis mutandis to specific information in the possession of the accused.
(G) Nothing in paragraph (C) or (D) above shall affect a Trial Chamber’s power
under Rule 89 (D) to exclude evidence if its probative value is substantially
outweighed by the need to ensure a fair trial.

conditions not accepted

The overall circumstances surrounding the witness do not justify the extraordinary
level of protection that testimony in closed session affords. Allowing the witness to
testify in closed session would result in substantial unfairness to the accused, and such
unfairness outweighs the probative value of the witness’ expected testimony. Therefore,
testimony would not be allowed under current Rule 70 conditions imposed by
provider.2723

confidential treatment

When directed to protect the Rule 70 provider’s interests, private session

testimony should only be granted sparsely. 2724

There is nothing to suggest that the prosecution’s explanation for its disclosure
violation of Rule 70 material is inaccurate or that there is any inconsistency which would
warrant an order requiring disclosure of its confidential communication with a Rule 70
provider.2725

defence use of Rule 70

The reference of Rule 70(F) to “specific information in the possession of an

accused” does not require that the accused actually be in possession of such information
before the guarantee of confidentiality can be given to a third party. 2726

material subject to Rule 70

In addressing whether the material is subject to Rule 70(B), the Chamber only
needs to be satisfied that it was provided on a confidential basis. 2727

2723
Decision on Prosecution’s Motion for Protective Measures for Witness KDZ487 (24 November 2009)
at para. 18
2724
Prosecutor v Mladic, No. IT-09-92-T, Decision on Urgent Motion for Protective Measures…(18
October 2013) at para. 9
2725
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Disclosure of Rule 70
Correspondence (24 February 2015) at para. 7
2726
Prosecutor v Oric, No. 03-68-AR73, Decision on Interlocutory Appeal Concerning Rule 70 (26 March
2004)
2727
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Twenty-Second, Twenty-Fourth, and
Twenty –Sixth Motions for Disclosure Violation (11 November 2010) at para. 26, fn. 60; Prosecutor v

455
 The protections of Rule 70 can apply to information received from a third party
even if the sole purpose was not that it be used to generate new evidence. Therefore, a
third party who makes a witness available to testify is entitled to the protections of Rule
70 including consent, closed sessions, and representation, regardless of whether the
prosecution already knew of the witness or if the witness’ information simply
corroborated other evidence.2728

A Chamber has the authority to asses whether information has been provided in
accordance with Rule 70 but such inquiries must be of limited nature and must extend
only to an examination of whether the information was provided on a confidential basis.
Where there is any doubt that the protections of Rule 70 are sought, the Chambers should
invite the party which provided the information and the party to which the information
was provided to supply evidence upon these issues before ruling on the application of
Rule 70.2729

Prosecution should do its utmost to ensure that it has a reliable and efficient
system for recording and disclosing Rule 70 material, and that the accused is informed of
the Rule 70 status of documents in a timely and efficient manner. 2730

Prosecution’s failure to raise Rule 70 conditions when documents were admitted

publicly throws into doubt whether such conditions existed at the time. 2731

Prosecution ordered to provide communications with the Rule 70 provider to

establish that Rule 70 conditions were placed upon the documents sought to be placed
under seal. 2732

Rule 70 does not apply to documents sent by the prosecution to a State. 2733

Karadzic, No. IT-95-5/18-T, Decision on Accused’s Twenty-Seventh Disclosure Violation Motion (17
November 2010) at para. 12, fn. 21
2728
Prosecutor v Milosevic, No. IT-02-54-AR108 bis, Public Version of the Confidential Decision on the
Interpretation and Application of Rule 70 (23 October 2002) at para. 21-25.
2729
Prosecutor v Karadzic, No. IT-95-5/18-T, Interim Decision on Prosecution’s Motion for Partial
Reconsideration or Clarification of the Chamber’s Decision on the Accused’s Motion to Unseal ICMP
Exhibits (11 July 2012) at para. 14
2730
Prosecutor v Karadzic, No.IT-95-5/18-T, Decision on Prosecution’s Motion for Partial
Reconsideration or Clarification of the Chamber’s Decision on the Accused’s Motion to Unseal ICMP
Exhibits (5 September 2012) at para. 28
2731
Prosecutor v Karadzic, No. IT-95-5/18-T, Interim Decision on Prosecution’s Motion for Partial
Reconsideration or Clarification of the Chamber’s Decision on the Accused’s Motion to Unseal ICMP
Exhibits (11 July 2012) at para. 16
2732
Prosecutor v Karadzic, No. IT-95-5/18-T, Interim Decision on Prosecution’s Motion for Partial
Reconsideration or Clarification of the Chamber’s Decision on the Accused’s Motion to Unseal ICMP
Exhibits (11 July 2012) at para. 21
2733
Prosecutor v Haradinaj, No. IT-04-84bis-T, Decision on Joint Defence Motion for Relief from Rule 68
Violations by the Prosecution and for Sanctions Pursuant to Rule 68 bis (12 October 2011) at para. 52

456
 obligation of States

Rule 70 should not be used by States as a blanket right to withhold, for security
purposes, documents necessary for trial from being used as evidence at trial as this would
jeopardize the very function of the Tribunal. Such an interpretation of Rule 70 would be
a violation of a State’s obligation under Article 29 to cooperate with the Tribunal. 2734

opportunity to be heard

The provider of information pursuant to Rule 70 should have the opportunity to

be heard if there is an issue over disclosing that information, but that opportunity need
not be at an oral hearing. 2735

presence of provider representative in court

Rule 70 provider authorized to have legal representatives present in the courtroom

when its witness testified. 2736

public material

Documents previously filed as public exhibits would be reclassified as

confidential where the Rule 70 provider had requested confidentiality, as the Chamber
would limit itself to determining whether the information was provided on a confidential
basis.2737

Rule 70 is not intended to apply to documents which are already in the public
domain. However, where prosecution obtained public copies and disclosed them, there
was no violation. 2738

remedy for non-disclosure

The prosecution would not be allowed to adduce evidence from witnesses

concerning information discussed in their interviews with the prosecution if the notes of
those interviews are withheld from the defence pursuant to Rule 70(B). 2739

2734
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 38
2735
Prosecutor v Milosevic, No. IT-02-54-AR108 bis, Public Version of the Confidential Decision on the
Interpretation and Application of Rule 70 (23 October 2002) at para. 31
2736
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution’s Application for Rule 70
Conditions for Testimony of Witness W-46 (12 March 2007) at p. 4; Prosecutor v Milutinovic et al, No. IT-
05-87-T, Decision on Prosecution Second Renewed Motion for Leave to Amend its Rule 65 ter List to Add
Michael Phillips and Shaun Byrnes (12 March 2007) at para. 35; Prosecutor v Mladic, No. IT-09-92-T,
Decision on Urgent Motion for Protective Measures…(18 October 2013) at para. 10
2737
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Prosecution’s Motion to Change the Status
of ECMM Documents Pursuant to Rule 70 (14 April 2011)
2738
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Seventeenth bis and Twenty-Eighth
Disclosure Violation Motions (16 December 2010) at para. 25

457
 Rule 70 allows the provider to set conditions on further disclosure of material to
be disclosed to the defence. However, whether such conditions infringe upon the rights
of the accused would be addressed in the context of admissibility of the testimony to
which the Rule 70 material relates. 2740

Where the restrictions imposed by the Rule 70 provider impact upon the fair trial
rights of the accused, the remedy is for the Trial Chamber to refuse to hear the
witness.2741

restrictions on cross examination

Rule 70(G) allows the Trial Chamber to decline to hear testimony if the
restrictions imposed would render the unfairness greater than the probative value of the
testimony. It is not required to hear the testimony and then decide upon its exclusion. 2742

Proposed restrictions on cross examination, limiting its scope and requiring

advance permission of the provider before expanding scope, were patently unfair and
warranted exclusion of testimony of Rule 70 witness. 2743

There is no requirement that the defence indicate in advance the line of cross
examination to be pursued. To require them to seek permission from the Rule 70
provider in advance for examination on a particular subject would oblige them to make
disclosure not required by the rules. 2744

Any neutral bystander would be bound to view as unfair a trial in which one of
the parties to a conflict insisted upon controlling the cross examination of its citizen who
commanded one force in the trial of an accused from the other, thus depriving them of
their full right to confront the witnesses against them. 2745

2739
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Michael Phillips and Shaun Byrnes (15 January 2007) at para. 14
2740
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Order of Non-
Disclosure in Relation to Shaun Byrnes (15 February 2007) at para. 7
2741
Prosecutor v Milutinovic et al, No. IT-05-87-T, Second Decision on Prosecution Motion for Leave to
Amend its Rule 65 ter Witness List to Add Wesley Clark (15 February 2007) at para. 26; Prosecutor v
Karadzic, No. IT-95-5/18-PT, Decision on Motion for and Notifications of Protective Measures (26 May
2009) at para. 26
2742
Prosecutor v Milutinovic et al, No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against
Second Decision Precluding the Prosecution from Adding General Wesley Clark to its 65 ter Witness List
(20 April 2007) at para. 17
2743
Prosecutor v Milutinovic et al, No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against
Second Decision Precluding the Prosecution from Adding General Wesley Clark to its 65 ter Witness List
(20 April 2007) at para. 20
2744
Prosecutor v Milutinovic et al, No. IT-05-87-T, Second Decision on Prosecution Motion for Leave to
Amend its Rule 65 ter Witness List to Add Wesley Clark (15 February 2007) at para. 27
2745
Prosecutor v Milutinovic et al, No. IT-05-87-T, Second Decision on Prosecution Motion for Leave to
Amend its Rule 65 ter Witness List to Add Wesley Clark (15 February 2007) at para. 30

458
 Cross examination of Rule 70 witness would be limited to the subjects set forth in
his interview where the nature of the interview provided sufficient basis for the defence
to conduct a thorough cross examination of the witness on matters relevant to the
case. 2746

Restriction on cross examination that precluded cross examination of Rule 70

witness on matters outside of his Rule 65 ter summary and issues of credibility did not
prejudice the defence because the scope of cross examination was already broad and the
defence could call the witness in its own case if necessary. 2747

Restriction requiring advance notice to the provider, and hence, the witness, or
cross-examination outside of the scope of the direct examination was not warranted since
it would remove any advantage because the witness would be prepared for it. 2748

work product

Rule 70(A) does not prohibit the Trial Chamber from ordering the prosecution to
produce documents to the Trial Chamber for in camera review, particularly where the
accused’s right to counsel is implicated. Prosecution ordered to produce materials
worked on by former OTP member now serving as defence counsel. 2749

Once a question is put to a witness and is thus part of a witness statement, it is

distinguished from internal documents prepared by a party under Rule 70(A) and is not
imbued with the protection of that Rule.2750

Rule 71—depositions

(A) Where it is in the interests of justice to do so, a Trial Chamber may order,
proprio motu or at the request of a party, that a deposition be taken for use at trial,
whether or not the person whose deposition is sought is able physically to appear
before the Tribunal to give evidence. The Trial Chamber shall appoint a Presiding
Officer for that purpose.
(B) The motion for the taking of a deposition shall indicate the name and
whereabouts of the person whose deposition is sought, the date and place at which
the deposition is to be taken, a statement of the matters on which the person is to be

2746
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution’s Application for Rule 70
Conditions for Testimony of Witness W-46 (12 March 2007) at pp. 3-4
2747
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Second Renewed Motion for
Leave to Amend its Rule 65 ter List to Add Michael Phillips and Shaun Byrnes (12 March 2007) at paras.
31-34
2748
Prosecutor v Milutinovic et al, No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against
Second Decision Precluding the Prosecution from Adding General Wesley Clark to its 65 ter Witness List
(20 April 2007) at para. 22
2749
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Motion for Clarification, Reconsideration,
and Certification to Appeal (18 September 2007)
2750
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision onHaradinaj Motion for Disclosure of
Exculpatory Materials in Relation to Witness 81 (18 November 2011) at para. 26

459
examined, and of the circumstances justifying the taking of the deposition.
(C) If the motion is granted, the party at whose request the deposition is to be taken
shall give reasonable notice to the other party, who shall have the right to attend the
taking of the deposition and cross-examine the person whose deposition is being
taken.
(D) Deposition evidence may be taken either at or away from the seat of the
Tribunal, and it may also be given by means of a video-conference.
(E) The Presiding Officer shall ensure that the deposition is taken in accordance
with the Rules and that a record is made of the deposition, including cross
examination and objections raised by either party for decision by the Trial
Chamber. The Presiding Officer shall transmit the record to the Trial Chamber.

It is in the context of a particular trial that the Chamber hearing that particular
case is empowered to issue orders for the taking of depositions pursuant to Rule 71.
Therefore, the Trial Chamber cannot issue a general order for a deposition to be taken
from an accused who has pled guilty which does not relate to specific trial
proceedings.2751

Two Judges of the Trial Chamber were without power to sit as presiding judges
for a deposition when the third judge became unavailable due to illness. Given the
preference for hearing oral testimony so that all three judges can observe the demeanor
and put questions to the witness, the ruling to proceed by way of deposition was contrary
to the Rules, and absent the consent of the accused, was error requiring the witnesses to
be recalled.2752

Prosecution motion for deposition of ill witness denied where it was not shown
witness could not testify at later time by video link, and the medical condition of the
accused prevented him from giving instructions to his counsel. 2753

Rule 72—Preliminary Motions

(A) Preliminary motions, being motions which

(i) challenge jurisdiction;
(ii) allege defects in the form of the indictment;
(iii) seek the severance of counts joined in one indictment under Rule 49 or seek
separate trials under Rule 82 (B); or
(iv) raise objections based on the refusal of a request for assignment of counsel made
under Rule 45 (C)
shall be in writing and be brought not later than thirty days after disclosure by
the Prosecutor to the defence of all material and statements referred to in Rule 66

2751
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 78
2752
Prosecutor v Kupreskic et al, No. IT-96-16-AR73.3, Decision on Appeal by Dragan Papic Against
Ruling to Proceed by Deposition (15 July 1999)
2753
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Prosecution Motion for Deposition
Pursuant to Rule 71 (26 May 2008)

460
(A)(i) and shall be disposed of not later than sixty days after they were filed and
before the commencement of the opening statements provided for in Rule 84.
Subject to any order made by a Judge or the Trial Chamber, where permanent
counsel has not yet been assigned to or retained by the accused, or where the
accused has not yet elected in writing to conduct his or her defence in accordance
with Rule 45 (F), the thirty-day time-limit under this Rule shall not run,
notwithstanding the disclosure to the defence of the material and statements
referred to in Rule 66 (A)(i), until permanent counsel has been assigned to the
accused.
(B) Decisions on preliminary motions are without interlocutory appeal save
(i) in the case of motions challenging jurisdiction;
(ii) in other cases where certification has been granted by the Trial Chamber, which
may grant such certification if the decision involves an issue that would significantly
affect the fair and expeditious conduct of the proceedings or the outcome of the
trial, and for which, in the opinion of the Trial Chamber, an immediate resolution
by the Appeals Chamber may materially advance the proceedings.
(C) Appeals under paragraph (B)(i) shall be filed within fifteen days and requests
for certification under paragraph (B)(ii) shall be filed within seven days of filing of
the impugned decision. Where such decision is rendered orally, this time-limit shall
run from the date of the oral decision, unless
(i) the party challenging the decision was not present or represented when the
decision was pronounced, in which case the time-limit shall run from the date on
which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which
case, the time-limit shall run from filing of the written decision.
If certification is given, a party shall appeal to the Appeals Chamber within
seven days of the filing of the decision to certify.
(D) For the purpose of paragraphs (A)(i) and (B)(i), a motion challenging
jurisdiction refers exclusively to a motion which challenges an indictment on the
ground that it does not relate to:
(i) any of the persons indicated in Articles 1, 6, 7 and 9 of the Statute;
(ii) the territories indicated in Articles 1, 8 and 9 of the Statute;
(iii) the period indicated in Articles 1, 8 and 9 of the Statute;
(iv) any of the violations indicated in Articles 2, 3, 4, 5 and 7 of the Statute.

armed conflict

The Trial Chamber did not err in concluding that the decision as to whether a state
of armed conflict existed is one of fact to be determined at trial, rather than by
preliminary motion challenging jurisdiction. 2754

appeals of right—jurisidiction issues

2754
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-AR72.1, Decision on Interlocutory Appeal on
Jurisdiction (22 July 2005) at para. 13

461
 A Trial Chamber’s power under Rule 54 to decide an issue of jurisdiction that
should have been brought under Rule 72(A) within a prescribed period is questionable.
However, any appeal from such a decision would be subject to certification rather than an
appeal of right.2755

An issue whether a charge in an indictment falls within a statutory grant of

jurisdiction meets the requirements of Rule 72(D) for an interlocutory appeal of right.2756

A claim that the supporting material fails to establish a prima facie case is not a
matter of jurisdiction subject to an interlocutory appeal as of right.2757

A claim of illegal arrest is not a matter of jurisdiction within the meaning of Rule
2758
72(D).

A claim that a commander could not be held responsible as a superior for the acts
of his subordinates in the course of an armed conflict which was not international in
character is a jurisdictional one within Article 72(D) even though the internal character of
the conflict was expressed in the alternative. 2759

A claim of illegal establishment of the Tribunal is not a matter of jurisdiction

within the meaning of Rule 72(D) and may therefore be brought at any time pursuant to
Rule 73.2760

A claim that the accused is not a person subject to the jurisdiction of the Tribunal
under Article 1 did not raise an issue of jurisdiction since it relied upon external factors,
in this case, an agreement, as its basis. 2761

2755
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-AR72.2, Decision on Ljube Boskoski’s Appeal on
Jurisdiction (9 January 2007) at para. 3
2756
Prosecutor v Seselj, No. IT-03-67-AR72.1, Decision on Validity of Appeal of Vojislav Seselj
Challenging Jurisdiction and Form of Indictment (29 July 2004)
2757
Prosecutor v Delic, No. IT-04-83-AR72, Decision on Interlocutory Appeal Challenging the
Jurisdiction of the Tribunal (8 December 2005) at para. 11; Prosecutor v Stanisic & Simatovic, No. IT-03-
69-PT, Decision on Defence Motions Regarding Defects in the Form of the Second Amended Indictment
(12 April 2006) at para. 24
2758
Prosecutor v Nikolic, No. IT-94-2-AR72, Decision on Notice of Appeal (9 January 2003); Prosecutor v
Tolimir, No. IT-05-88-AR72.2, Decision on Zdravko Tolimir’s Appeal Against Decision on Submissions of
the Accused Concerning Legality of Arrest (12 March 2009)
2759
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to
Validity of Appeal (21 February 2003) at para. 12
2760
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Nebojsa Pavkovic’s Motion for Dismissal
of the Indictment Against Him on Grounds that the United Nations Security Council Illegally Established
the International Criminal Tribunal for the former Yugoslavia (21 February 2008) at para. 7; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion Challenging the Legal Validity and
Legitimacy of the Tribunal (7 December 2009) at para.10
2761
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8
July 2009) at para. 43

462
 The only issue to be determined when deciding the admissibility of an
interlocutory appeal is whether the challenge goes to the jurisdiction of the Tribunal.
Whether the challenge is meritorious is not relevant at the admissibility stage. 2762

The issue of whether a perpetrator must be a member of the joint criminal

enterprise is not a matter of jurisdiction, but a matter to be determined at trial. 2763

A jurisdictional challenge to the indirect co-perpetration form of liability could

not be heard on direct appeal where it was not filed within the time limits of Rule 72. 2764

Challenges to actus reus and mens rea for genocide did not raise jurisdictional
issues so as to permit a direct appeal. 2765

Challenge to whether omissions can be the basis of liability under Article 7(1)
was not an issue of jurisdiction.2766

Challenge to whether superior liability extended to failure to prevent or punish a

subordinate’s failure to prevent or punish did not raise an issue of jurisdiction. 2767

Challenge to whether actus reus of deportation or forcible transfer required that

the crimes be committed in occupied territory was not jurisdictional under Rule 72. 2768

Challenge to whether a victim of inhumane acts or cruel treatment under Articles

3 and 5 must be in the hands of a party to the conflict did not raise an issue of jurisdiction
under Rule 72.2769

Challenge to whether a state of armed conflict existed at the time of some of the
acts alleged in the indictment did not raise an issue of jurisdiction under Rule 72. 2770

2762
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to
Validity of Appeal (21 February 2003) at para. 13
2763
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Ojdanic Motion Challenging
Jurisdiction: Indirect Co-Perpetration (22 March 2006) at para. 23; Prosecutor v Popovic et al, No. IT-05-
88-PT, Decision on Motions Challenging the Indictment Pursuant to Rule 72 of the Rules (31 May 2006) at
para. 21
2764
Prosecutor v Prlic et al, No. IT-04-74-AR72.2, Decision on Petkovic Appeal Against Decision on
Defence Motion to Strike the Amended Indictment (4 June 2007)
2765
Prosecutor v Tolimir, No. IT-05-88/2-AR72.1, Decision on Tolimir’s Interlocutory Appeal Against the
Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concerning the Jurisdiction
of the Tribunal (25 February 2009)
2766
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Motions Challenging
Jurisdiction (Omission Liability, JCE III Special Intent, and Superior Responsibility) (25 June 2009) at
para. 37
2767
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Motions Challenging
Jurisdiction (Omission Liability, JCE III Special Intent, and Superior Responsibility) (25 June 2009) at
para. 37
2768
Prosecutor v Gotovina et al, No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal
Against Decision on Several Motions Challenging Jurisdiction (6 June 2007) at para. 15
2769
Prosecutor v Gotovina et al, No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal
Against Decision on Several Motions Challenging Jurisdiction (6 June 2007) at para. 18

463
 Challenge to forseeability element of JCE was not an issue of jurisdiction under
Rule 72.2771

The Appeals Chamber now focuses on whether the crime charged is envisioned
by the statute and whether the mode of liability upholds the principle of individual
criminal responsibility. The contours and elements of modes of liability are considered
an issue of law which can properly be advanced an argued during the course of the
trial. 2772

An order granting disclosure by SFOR of material related to the arrest of the

accused, ancillary to a motion to dismiss the indictment, cannot be appealed as of right
under Rule 72.2773

deferring decision

Trial Chamber erred in deferring decision on jurisdiction over forms of liability

such as indirect co-perpetration and aiding and abetting JCE until final judgement.2774

timeliness

Failure to challenge the form of the indictment until the trial had commenced
warranted dismissal of the motion, as good cause was not shown by items in the pre-trial
brief or opening statement, as such items cannot operate to make an indictment
defective. 2775

Motion challenging JCE was an attack on jurisdiction that would not be

entertained after the time for filing preliminary motions had expired. 2776

Rule 73—other motions

2770
Prosecutor v Gotovina et al, No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal
Against Decision on Several Motions Challenging Jurisdiction (6 June 2007) at para. 21
2771
Prosecutor v Gotovina et al, No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal
Against Decision on Several Motions Challenging Jurisdiction (6 June 2007) at para. 24; Prosecutor v
Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Motions Challenging Jurisdiction
(Omission Liability, JCE III Special Intent, and Superior Responsibility) (25 June 2009) at para. 37
2772
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Radovan Karadzic’s Motions Challenging
Jurisdiction (Omission Liability, JCE III Special Intent, and Superior Responsibility) (25 June 2009) at
para. 36
2773
Prosecutor v Simic et al, No. IT-95-9-AR72.2, Decision on Interlocutory Appeal Filed by Prosecutor
on 26 October 2000 from Trial Chamber Decision of 18 October 2000 (4 December 2000)
2774
Prosecutor v Prlic et al, No. IT-04-74-AR72.3, Decision on Petkovic’s Appeal on Jurisdiction (23
April 2008)
2775
Prosecutor v Stanisic & Simatovic, No.IT-03-69-T, Decision on Stanisic Defence Motion on the form of
the Indictment (29 March 2010) at para. 10
2776
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Jadranko Prlic Motion Against the Application of
Joint Criminal Enterprise and in Favour of the Application of Joint Co-Perpetration (17 May 2010)

464
(A) After a case is assigned to a Trial Chamber, either party may at any time move
before the Chamber by way of motion, not being a preliminary motion, for
appropriate ruling or relief. Such motions may be written or oral, at the discretion
of the Trial Chamber.
(B) Decisions on all motions are without interlocutory appeal save with
certification by the Trial Chamber, which may grant such certification if the
decision involves an issue that would significantly affect the fair and expeditious
conduct of the proceedings or the outcome of the trial, and for which, in the opinion
of the Trial Chamber, an immediate resolution by the Appeals Chamber may
materially advance the proceedings.
(C) Requests for certification shall be filed within seven days of the filing of the
impugned decision. Where such decision is rendered orally, this time-limit shall run
from the date of the oral decision, unless
(i) the party challenging the decision was not present or represented when the
decision was pronounced, in which case the time-limit shall run from the date on
which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which
case the time-limit shall run from filing of the written decision.
If certification is given, a party shall appeal to the Appeals Chamber within
seven days of the filing of the decision to certify.
(D) Irrespective of any sanctions which may be imposed under Rule 46 (A), when
a Chamber finds that a motion is frivolous or is an abuse of process, the Registrar
shall withhold payment of fees associated with the production of that motion and/ or
costs thereof.

certification to appeal

in general

Certification will not be granted unless the Rule 73(B) criteria are met—there is
no inherent power to grant certification for important issues.2777

It is not the practice of the Appeals Chamber to hear oral argument on

interlocutory appeals. To depart from this practice, it must be demonstrated that there are
reasons why matters cannot effectively be addressed in writing. 2778

Decision on motions for access for confidential material in other cases are subject
to certification regardless of whether the case of the party seeking the material is already
before the Appeals Chamber.2779

2777
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Request for
Certification of Rule 73 bis Issue for Appeal (30 August 2006) at para. 5
2778
Prosecutor v Krajisnik, No. IT-00-39AR73.1, Decision on Interlocutory Appeal of Decision on Second
Defence Motion for Adjournment (25 April 2005) at para. 4
2779
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-PT, Decision on Nasser Oric’s Request for
Certification (17 January 2007)

465
 Co-accused do not have standing to join an interlocutory appeal unless they too
have been granted certification to appeal. 2780

A witness has no right to certification to appeal a decision denying her challenge

to a subpoena.2781

A witness has the right to certification to appeal a decision denying his challenge
to a subpoena.2782

Application for certification to appeal filed outside 7 day time limit was treated as
if validly filed when the interests of justice suggested that the decision should be subject
to appeal.2783

No good cause was shown to extend time for application for certification to
appeal where defence team didn’t see the e-mail in their inbox setting forth reasons for
impuged decision. 2784

denied

Certification denied to appeal on issues of imposition of assigned counsel2785,

leave to amend the indictment2786, challenges to the form of the indictment,2787 challenges

2780
Prosecutor v Haradinaj et al, No. IT-04-84bis-AR73.1, Decision on Idriz Balaj and Lahi Brahimaj’s
Requests for Standing before the Appeals Chamber…(4 March 2011)
2781
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Purported Motion for Certification to
Appeal Trial Chamber Decision Concerning Subpoenaed Witness (14 September 2007)
2782
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Tolimir Request for Certification to Appeal
Subpoena Decision (4 June 2013) at para. 7
2783
Prosecutor v Mladic, No. IT-09-92-T, Decision on the Defence Motions for Certification to Appeal the
Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts (27 June 2012) at para. 14
2784
Prosecutor v Mladic, No. IT-09-92-T, Decision on the Defence Motion for Variation of Time Limit for
Motion for Certification to Appeal Decision on Protective Measures (11 December 2014) at para. 10
2785
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Certification to
Appeal Decision on Appointment of Counsel and Order on Further Trial Proceedings (23 November
2009)
2786
Prosecutor v Mejakic et al, No. IT-02-65-PT, Decision on Knezevic’s Motion for Certification of
Interlocutory Appeal of Decision on Prosecution’s Motion to Amend Consolidated Indictment Schedules A
through F, the Rule 65 ter Witness Summaries, and the Pretrial Brief Incident Summaries (25 January
2005); Prosecutor v Halilovic, No. 01-48-T, Decision on Prosecution Request for Certification for
Interlocutory Appeal of Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment (12
January 2005); Prosecutor v Milutinovic et al, No. IT-05-97-PT, Decision on Prosecution’s Request for
Certification for Appeal of Decision on Vladimir Lazarevic’s and Sreten Lukic’s Preliminary Motions on
Form of the Indictment (19 August 2005); Prosecutor v Marijacic & Rebic, No. IT-95-14-R77.2, Decision
on Request of the Accused Markica Rebic for Certification of Appeal to Challenge Decision on Amendment
of the Indictment (25 October 2005); Prosecutor v Marijacic & Rebic, No. IT-95-14-R77.2, Decision on
Prosecution Motion to Request Certification of Appeal (25 October 2005); Prosecutor v Stanisic &
Simatovic, No. ICTR-03-69-PT, Decision on Defence Requests for Certification to Appeal Decision
Granting Prosecution Leave to Amend the Amended Indictment (8 February 2006); Prosecutor v Delic, No.
IT-04-83-PT, Decision on Prosecution Request for Certification to Appeal Trial Chamber Decision
Denying Prosecution Application for Leave to Amend (14 July 2006) ; Prosecutor v Lukic & Lukic, No. IT-
98-32/1-T, Decision on Prosecution Motion for Certification to Appeal the Trial Chamber’s Decision on

466
to mandate of amicus curiae prosecuting contempt,2788 requiring explanation from judge
for association which might give rise to bias, 2789 order precluding prosecutor from
commenting on cooperation of Croatia2790, order to investigate for contempt,2791 motion
concerning allegations in Pre-Trial Brief2792, allegations in indictment concerning joint
criminal enterprise2793, responsibility for omissions2794, dismissal of indictment where
accused is not mentally competent2795, fitness of the accused to stand trial2796, joinder
and severance of accused2797, translation issues,2798 protective measures for prosecution

Prosecution Motion to Amend the Second Amended Indictment (19 August 2008); Prosecutor v Tolimir,
No. IT-05-88/2-PT, Decision on Tolimir’s Motion for Leave to File an Appeal Against Decision Regarding
Second Amended Indictment (22 April 2009) ; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-PT,
Decision on Defence Motions for Certification (22 April 2009)
2787
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Milivoj Petkovic’s Application for Certification
to Appeal Decision on Motions Alleging Defects in Form of Indictment (19 September 2005); Prosecutor v
Prlic et al, No. IT-04-74-PT, Decision on Milivoj Petkovic’s Application for Certification to Appeal
Decision on Motion for Leave to Amend the Indictment and Form of Proposed Indictment (3 November
2005); Prosecutor v Jovic, No. IT-95-14-R77, Decision on Defence Application for Certification on
Interlocutory Appeal (3 February 2006); Prosecutor v Boskoski & Tarculovski, No. IT-04-82-PT, Decision
on Motion for Certification (17 November 2006); Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on
Tolimir’s Request for Leave to File an Interlocutory Appeal (19 February 2009); Prosecutor v Mladic, No.
IT-09-92-T, Decision on Defence Motion for Reconsideration of, or in the Alternative, Certification to
Appeal the Decision on Defence Motion Alleging Defects in the Form of the Indictment (23 February 2017)
2788
In the case against Florence Hartmann, No. IT-02-54-R77.5, Decision on Motion for Certification to
Appeal Trial Chamber’s Decision on Defence Motion for Reconsideration Dated 14 January 2009 (13 May
2009); In the case against Florence Hartmann, No. IT-02-54-R77.5, Decision on Motion for Certification
to Appeal Trial Chamber’s Decision re Stay of Proceedings for Abuse of Process (13 May 2009)
2789
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prlic Defence Request for Certification to Appeal
the Decision of 26 July 2010 (24 August 2010)
2790
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Gotovina Request for Certification to Appeal
the Trial Chamber’s Decision on Motion for Non-Disclosure Order Directed to Prosecutor Serge
Brammertz (20 January 2010)
2791
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution’s Request for Certification to Appeal the
Decision of 29 June 2010…(3 December 2010)
2792
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ante Gotovina’s Request for Certification to
Appeal the Decision on Rule 73 Motion to Strike Parts of Pre-Trial Brief (10 April 2008); Prosecutor v
Tolimir, No. IT-05-88/2-PT, Decision on Motion for Certification to Appeal Decision on Accused’s Pre-
Trial Brief Requests (19 January 2010)
2793
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Request for Certification to Appeal Decision
on Motions Challenging the Indictment Pursuant to Rule 72 (26 June 2006)
2794
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Defence Application for Certification of
Interlocutory Appeal of Rule 98 bis Decision (14 June 2007)
2795
Prosecutor v Kovacevic, No. IT-01-42/2-I, Decision on Defence Request for Certification for
Interlocutory Appeal of Decision on Defence Motion to Dismiss the Indictment from 1 September 2006 (27
September 2006)
2796
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Defence Request for Certification to
Appeal the Trial Chamber’s Decision on Prosecution Motion for Revocation of Jovica Stanisic’s
Provisional Release and Re-assessment of his Health (29 May 2009); Prosecutor v Mladic, No. IT-09-92-
T, Decision on Motion to Reconsider Decision on Urgent Defence Motions of 10 November 2017
or…Motion for Certification to Appeal (21 November 2017) at para. 14
2797
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Valentin Coric’s Application for Certification to
Appeal Decision on Motions for Separate Trials and Severance of Counts (22 July 2005); Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-PT, Decision on Stoljan Zupljanin’s Motion for Certification (13
February 2009)

467
witnesses2799, transporting defence witness for interview by self-represented accused2800,
order to specify alibi details2801, order to supplement defence pre-trial brief2802, disclosure
of witness statements2803, remedy for disclosure violation2804, denial of subpoena2805, time
for response to Rule 92 bis motions 2806, Rule 70 disclosure2807, varying the witness
list2808, admissibility of documents2809, admissibility of intercepted conversations 2810,
2798
Prosecutor v Popovic et al, No. IT-05-88-PT, Decision on Joint Defence Motion Seeking Certification
of the Trial Chamber’s Decision on the Joint Defence Motion Seeking the Trial Chamber to Order the
Registrar to Provide the Defence with BCS Transcripts of Proceedings in Two Past Cases before the
International Tribunal (23 March 2006)
2799
Prosecutor v Seselj, No. IT-02-67-PT, Decision on Prosecution’s Request for Certification to Appeal
(21 June 2006); Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution Request for
Certification on Ruling on Proposed Exhibits P438 and P473 (17 October 2006) ; Prosecutor v Stanisic &
Simatovic, No. IT-03-69-PT, Decision on Prosecution’s Request for Certification to Appeal the Trial
Chamber’s Decision on Protective Measures of 13 September 2007 (7 November 2007); Prosecutor v
Karadzic, No. IT-95-5/18-T, Reasons for Trial Chamber Decision on Defence Request for Certification to
Appeal : Modification of Protective Measures for KDZ088 (14 September 2010)
2800
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused‘s Application for Certification to
Appeal Decision on Motion for Interview of Defence Witness (22 April 2009)
2801
Prosecutor v Lukic & Lukic, No. IT-98-32/1-PT, Decision on Sredoje Lukic’s Request for
Reconsideration, or in the Alternative, Certification to File an Interlocutory Appeal on the Trial Chamber’s
Decision of 15 May 2008 (26 May 2008)
2802
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-PT, Decision to Deny the Joint Defence Motion for
Certification to Appeal the Order to Supplement the Pre-Trial Briefs (23 July 2009)
2803
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Decision on Defence Motion for Leave
to Appeal Trial Chamber’s Decision Regarding Witness Statements (19 May 2009); Prosecutor v Stanisic
& Zupljanin, No. IT-08-91-T, Decision on Defence Motion for Certification of the Decision on Joint
Defence Motion Requesting Preclusion of Prosecution’s New Witnesses and Exhibits (16 September 2009)
2804
Prosecutor v Karadzic, No. I-95-5/18-T, Decision on Prosecution Request for Certification to Appeal
Decision on Accused’s Thirty Seventh to Forty Second Disclosure Violation Motions (8 April 2011)
2805
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on the Beara Motion for Reconsideration and
Beara and Nikolic Joint Motion for Certification of the Decision Denying Motion for a Subpoena Duces
Tecum Compelling Momir Nikolic to Disclose his Personal Notes (10 January 2008); In the Case Against
Florence Hartmann, No. IT-02-54-R77.5, Decision on Defence Motion for Certification to Appeal Trial
Chamber’s Decision Regarding the Issuance of a Subpoena to Amicus Curiae Prosecutor (19 May 2009);
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Mladic Request for Certification to Appeal
Subpoena Decision (23 December 2013); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Urgent
Motions for Reconsideration of Decision on Mladic Request for Certification to Appeal Subpoena Decision
(22 January 2014); Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for Certification to
Appeal the Third Defence Case Omnibus Decision in relation to Tabeau and Clark (1 December 2016)
2806
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Application for Certification to
Appeal Decision on Motion for Extension of Time: Rule 92bis and Response Schedule (8 July 2009)
2807
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Application for Certification to
Appeal Decision on Rule 70(B) (12 February 2009)
2808
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Joint Beara and Nikolic Request for
Certification to Appeal the Trial Chamber’s Decision Denying Reconsideration of Two Decisions Related
to Witness PW-108 (11 June 2007); Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence
Motion for Certification of Decision Adding Eightteen Witnesses to Prosecution Witness List and Admitting
their Written Statements Pursuant to Rule 92 bis (11 March 2008)
2809
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Certification (6 April 2005);
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Lukic Motion for Reconsideration of Trial
Chamber’s Decision on Motion for Admission of Documents from the Bar Table (2 July 2008) at para. 43;
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Sredoje Lukic Request for Certification to
Appeal Decision of 13 November 2008 (1 December 2008); Prosecutor v Prlic et al, No. IT-04-74-T,
Decision on Praljak Defence Request for Reconsideration, or, in the Alternative, Certification to Appeal

468
admission of amicus curiae report2811, access to confidential material in a related case2812,
public access to exhibits2813, admission of prior statements of a witness 2814, admission of

the Order to Admit Evidence Regarding Witness 4D-AB (3 February 2010); Prosecutor v Prlic et al, No.
IT-04-74-T, Decision on Petkovic Defence Request for Reconsideration, or, in the Alternative, Certification
to Appeal the Order to Admit Evidence Regarding Witness Bozo Pavlovic (17 February 2010); Prosecutor v
Prlic et al, No. IT-04-74-T, Decision on Request for Certification to Appeal Against the Decision on Prlic
Defence Motion to Reconsider the Rejection of a Number of Videos (21 January 2010); Prosecutor v Prlic
et al, No. IT-04-74-T, Decision on the Motion of the Petkovic Defence for Reconsideration, or, in the
Alternative, Certification to Appeal the Order to Admit Evidence Regarding Witness Dragan Curcic (21
January 2010); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Request of the Stojic Defence for
Reconsideration, or in the Alternative, for Certificationto Appeal the Order Admitting Evidence Relating to
the Testimony of Slobodan Praljak (29 March 2010); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on
the Request of the Stojic Defence for Reconsideration, or in the Alternative, for Certificationto Appeal the
Order Admitting Evidence Relating to Witness Radmillo Jasak (21 April 2010); Prosecutor v Prlic et al,
No. IT-04-74-T, Decision on the Praljak Defence Request for Clarification and or Reconsideration, or in
the Alternative for Certification to Appeal,the Order on the Admission of Evidence Relating to
theTestimony of Slobodan Praljak (13 May 2010); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on
Request of Prlic Defence for Certification to Appeal the Order Admitting Evidence of Zvonko Vidovic (3
June 2010); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Request for
Certification to Appeal the Trial Chamber’s Guidance on Admission into Evidence on Documents Tendered
by the Prosecution During the Defence Case…(19 October 2011); Prosecutor v Haradinaj, No. IT-04-
84bis-T, Decision on Prosecution Motion for Reconsideration of Majority Decision Denying Admission of
Document…(27 February 2012); Prosecutor v Haradinaj, No. IT-04-84bis-T, Decision on Prosecution
Motion for Certification of Decision on Prosecution Motion to Admit Evidence from the Bar Table…(15
March 2012); Prosecutor v Stanislav & Simatovic, No. IT-03-69-T, Decision on Stanisic Request for
Certification to Appeal the Trial Chamber’s Decision on Defence Motion for Exclusion of Specified
Exhibits and Admission of Various Other Documents (3 October 2012); Prosecutor v Mladic, No. IT-09-
92-T, Decision on Defence Motion for Reconsideration and Certification to Appeal Decision on Foca
Municipality Bar Table Motion (31 January 2014); Prosecutor v Mladic, No. IT-09-92-T, Decision on
Defence’s Motion for Partial Reconsideration or Certification to Appeal the Decision on Defence’s Second
Bar Table Motion (6 July 2016); Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for
Certification to Appeal the Second Defence Case Omnibus Decision as to Exhibit P7782 (1 August 2016);
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence’s Motion for Certification to Appeal the Fifth
Bar Table Decision…(1 August 2016); Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence’s
Motion for Certification to Appeal the Fifth Bar Table Decision…(2 August 2016); Prosecutor v Mladic,
No. IT-09-92-T, Decision on Defence’s Motion for Certification to Appeal the Decision Denying the
Admission into Evidence of the Documents…(31 August 2016)
2810
Prosecutor v Stanisic & Zupljanin, No. IT-06-91-T, Decision Denying Defence Motion for Certification
of the Decision Reconsidering in part and Providing Written Reasons for the Trial Chamber’s Oral
Decision of 26 March 2010 (16 December 2010); Prosecution v Mladic, No. 08-92-T, Decision on Defence
Motion for Certification to Appeal the Decision on Prosecution’s Second Residual Bar Table Motion (2
June 2014)
2811
Prosecutor v Seselj, No. IT-02-67-T, Decision on Prosecution Request for Certification to Appeal
Decision of 22 December 2011 (25 January 2012)
2812
Prosecutor v Seselj, No. IT-02-67-T, Decision on Prosecution Motion for Certification to Appeal the
Trial Chamber’s Decision Denying Access to the Full Record of IT-03-67-R77.1 (27 February 2009)
2813
Prosecutor v Seselj, No. IT-02-67-T, Decision on Prosecution Motion for Certification to Appeal the
Trial Chamber’s Decision Regarding Public Access to Trial Exhibits (6 November 2008)
2814
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Motion for Certification to Appeal
Decision Admitting PW-104 Interview Statements (25 April 2007); Prosecutor v Hadzic, No. IT-04-75-T,
Decision on Defence Motion for Certification to Appeal Trial Chamber’s Decision Concerning Admission
of Prior Inconsistent Statements (21 June 2013)

469
evidence pursuant to Rule 92 bis,2815 and 92 quater,2816 admission of exhibits without
confrontation2817, admission of evidence of discussions between witness and defence
counsel, 2818 admission of evidence of discussion between client and defence counsel, 2819
order for prosecution to produce internal documents2820, the ability of an accused to retain
documents after their trial2821, taking of judicial notice,2822 admission and exclusion of
expert witness2823, limitation on time for cross examination2824, scope of cross

2815
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Motion for Certification to Appeal
Decision Admitting Written Evidence Pursuant to Rule 92 bis (19 October 2006); Prosecutor v Seselj, No.
IT-03-67-T, Decision on Prosecution Motion for Certification to Appeal the Decision of 7 January 2008
(21 May 2008); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Praljak Defence Request for
Certification to Appeal the Order of 20 May 2010 (Franjo Lozic) (22 June 2010); Prosecutor v Tolimir, No.
IT-05-88/2-T, Decision on Defence Request for Certification to Appeal (13 January 2012); Prosecutor v
Mladic, No. IT-09-92-T, Decision on Defence Motion for Certification to Appeal Decision on Forty-Fifth
Motion to Admit Evidence pursuant to Rule 92 bis (30 June 2015)
2816
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused’s Application for Certification to
Appeal Decision on Rule 92 quater (Witness KDZ198) (31 August 2009); Prosecutor v Tolimir, No. IT-05-
88/2-PT, Decision on the Accused’s Request for Leave to Appeal the Decision on Prosecution’s Motion for
Admission of Evidence Pursuant to Rule 92 quarter (18 January 2010); Prosecutor v Karadzic, No. IT-95-
5/18-T, Decision on Prosecution Motion for Reconsideration, Alternatively for Certification, of the
Decision Concerning the Evidence of Miroslav Deronjic (20 April 2010); Prosecutor v Karadzic, No. IT-
95-5/18-T, Decision on Prosecution Motion for Reconsideration and/or Certification, on Parts of the
Decision on Prosecution’s Motion for Admission of the Evidence of KDZ172 (Milan Babic) Pursuant to
Rule 92 quater (3 June 2010); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic
Defence Request for Certification to Appeal (Todorovic) (31 January 2011); Prosecutor v Stanisic &
Simatovic, No. IT-03-69-T, Decision on Simatovic Defence Request for Certification to Appeal (Babic) (17
February 2011); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for
Certification to Appeal Decision on Prosecution’s Motion for Admission of the Evidence of Milenko Lazic
Pursuant to Rule 92 quater (3 February 2012)
2817
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ante Gotovina Defence Request for
Certification to Appeal the Trial Chamber Decision of 9 November 2009 (20 January 2010)
2818
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Nikolic Request for Certification to Appeal
Oral Decision on PW-165 and Request for Variation of Time Limits (12 July 2007)
2819
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Request for Certification to Appeal Oral
Decision of 12 September 2013 (21 October 2013)
2820
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Motion for Clarification, Reconsideration,
and Certification to Appeal (18 September 2007)
2821
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Accused’s Motion for Certification to Appeal the
Oral Decision of 20 March 2008 (10 April 2008)
2822
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Motion for Certification to Appeal
Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (20 October 2006); Prosecutor v
Stanisic, No. IT-04-79-PT, Decision on Defence Motion for Certification (16 January 2008); Prosecutor v
Lukic & Lukic, No. IT-98-32/1-T, Decision on Milan Lukic’s Request for Reconsideration or of
Certification to Appeal the Decision on Prosecution’s Motion for Notice of Adjudicated Facts (31 October
2008) at para. 16; Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Request for Certification of
Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (23 February 2010); Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying the Prosecution’s Request for Certification to
Appeal the Decision Granting in Part Prosecution’s Motions for Adjudicated Facts Pursuant to Rule
94(B)(14 July 2010); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for
Certification to Appeal Decision on Judicial Notice of Authenticity of Intercepts (17 February 2011)
2823
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Request for Certification of
Interlocutory Appeal of Decision on Admission of Witness Philip Coo’s Expert Report (30 August 2006);
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Miletic’s Request for Certification of the Decision
on Defence Objections to the Admission of the Expert Statement of General Rupert Smith (15 April 2008);

470
examination2825, exclusion of statement of accused 2826, exclusion of certain incidents
pursuant to Rule 73 bis (D)2827, allowing the prosecution leave to add exhibits to its
exhibit list2828 delay of trial2829, denial of postponement of testimony2830, denial of leave
to allow the prosecution case to remain open2831, denial of motion for judgement of
acquittal2832, protective measures for defence witness 2833, admission of defence exhibits
2834
, representation by counsel rejected due to conflict of interest 2835, appointment of co-

Prosecutor v Dordjevic, No. IT-05-87-T, Decision on Vlastimir Dordevic’s Motion for Reconsideration ot
Certification to Appeal Regarding Proposed Expert Mr. Aleksander Pavic (23 April 2010); Prosecutor v
Mladic, No. IT-09-92-T, Decision on Defence Motion for Certification to Appeal Oral Decision Admitting
Witness Van Der Weijden’s Expert Report (13 September 2013); Prosecutor v Mladic, No. IT-09-92-T,
Decision on Defence Motion for Certification to Appeal the Decision on the Admission of the Evidence of
Milan Tutoric (15 July 2015)
2824
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Application of the Petkovic Defence for
Certification to Appeal the Decision Denying Additional Time for Cross-Examination (6 December 2007)
2825
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Borovcanin’s Request for Certification of
Decision on Borovcanin’s Motion for Admission of Written Evidence Pursuant to Rule 92 bis (21 October
2008); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Praljak and Petkovic Defence Request for
Certification to Appeal the Decision on Scope of Cross Examination Under Rule 90(H) of the Rules (9
January 2009); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Defence Request
for Certification to Appeal the Trial Chamber’s Guidance on Rule 90(H)(ii) and Decision on Stanisic
Defence Submissions on Rule 90(H)(ii) (13 December 2011); Prosecutor v Stanisic & Simatovic, No. IT-
03-69-T, Decision on Stanisic Defence Request for Certification to Appeal the Trial Chamber’s in-court
Decisions on Stanisic Defence Submissions Regarding Rule 90(H)(ii) (14 June 2012)
2826
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Prosecution Request for Certification for
Interlocutory Appeal of Decision on Motion for Exclusion of Statement of Accused (25 July 2005)
2827
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Request for
Certification of Rule 73 bis Issue for Appeal (30 August 2006)
2828
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Certification (30 March 2005);
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Request for Certification to Appeal Decision to
Grant Leave to Amend Prosecution’s Rule 65 ter Witness and Exhibit Lists (17 January 2007); Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying Prosecution Motion Requesting Certification to
Appeal Decision of 14 April 2010 (Amendment of Exhibit List) (18 June 2010)
2829
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Defence Request for Certification of An
Interlocutory Appeal on Second Decision Denying Motion for Delay of Trial (12 May 2006); Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-PT, Decision on the Motion for Mico Stanisic for Certification to
Appeal the Decision Denying the Motion to Vary Trial Date and on Joint Motion for Postponement of the
Start of the Trial (14 September 2009)
2830
Prosecutor v Popovic et al, No. IT-05-88-T, Reasons for Oral Decision Denying Certification of the
Oral Decision Concerning the Postponement of the Testimony of Witness 128 (9 July 2007)
2831
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Prosecution’s Request for Certification to
Appeal the Trial Chamber’s Decision Concerning Shefqet Kabashi (5 December 2007)
2832
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Motion for Certification of Rule 98 bis
Decision (15 April 2008)
2833
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Nikolic’s Motion for Certification to Appeal
the Trial Chamber’s Decision Denying the Protective Measures Requested for Defence Witness 3DW5 (9
October 2008)
2834
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Prosecution Motion for Certification Regarding
Evidence of Defence Witness Barry Lituchy (17 May 2005); Prosecutor v Milosevic, No. IT-98-29/1-T,
Decision on Defence Request for Certification of Oral Decision of 23 July 2007(21 August 2007);
Prosecutor v Prlic et al, No. IT 04-74-T, Decision on Petkovic Defence Motion for Reconsideration of or
Certification to Appeal Two Orders Dated 1 September 2008 (1 October 2008); Prosecutor v Prlic et al,
No. IT-04-74-T, Decision on Praljak Defence Request for Reconsideration or for Certification to Appeal
the Order of 14 October 2008 (12 November 2008)

471
counsel2836, scheduling of the defence case 2837, denying the prosecution voir dire to
challenge the admission of defence evidence 2838, denial of protective measures for
defence witness2839, adequacies of defence witness summaries2840, allowing prosecution
interviews of defence witnesses2841, closing the defence case,2842 reopening of
prosecution case,2843 admission of prosecution documents after the defence had rested 2844,
calling defence evidence for sentencing 2845, admission of rebuttal evidence 2846, admission

2835
Prosecutor v Delic, No. IT-04-83-PT, Decision on Defence Motion Requesting Certification of Trial
Chamber Decision and Request for an Interim Measure (2 June 2005)
2836
Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Defence Motion for Certification (14 June 2007)
2837
Prosecutor v Martic, No. IT-95-11-T, Decision on Defence Application for Certification of Appeal
Pursuant to Rule 73(B) and Defence Motion for Stay of Proceedings (23 June 2006); Prosecutor v
Krajisnik, No. IT-00-39-T, Decision on Defence Application for Certification to Appeal Against Trial
Chamber’s Decision of 23 May 2006 (2 June 2006)
2838
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Prosecution Motion for Certification of Trial
Chamber Decision on Prosecution Motion for Voir Dire Proceeding (20 June 2005)
2839
Prosecutor v Oric, No. IT-03-68-T, Decision on Urgent Defence Request for Certification for Appeal of
the Trial Chamber’s Confidential Decision on Second Defence Motion for Protective Measures for Witness
D002 (28 September 2005)
2840
Prosecutor v Perisic, No. IT-04-81-T, Decision on the Defence Request for Leave to Appeal the
Confidential Decision on the Rule 65 ter Summaries (5 February 2010)
2841
Prosecutor v Mrskic et al, No. IT-95-13/1-T, Decision on Defence Motion for Certification (21
September 2006)
2842
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for Reconsideration of, or
Alternatively, Certification to Appeal the Decision on the Closure of the Defence Case (26 September
2016)
2843
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Prosecution’s Request for Certification to Appeal
Under Rule 73(B) (18 January 2006); Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Gvero
Motion Seeking Certification to Appeal the Decision on the Prosecution’s Second Motion to Reopen its
Case (3 June 2009); Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Popovic Request for
Certification to Appeal the Decision on the Prosecution’s Second Motion to Reopen its Case (3 June 2009);
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Coric Defence Request for Certification to Appeal
the Decision on Reopening the Prosecution Case (27 October 2010); Prosecutor v Prlic et al, No. IT-04-
74-T, Decision on Petkovic Defence Request for Certification to Appeal the Decision on Reopening the
Prosecution Case (1 November 2010); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prlic
Defence Request for Certification to Appeal the Decision on Reopening the Prosecution Case… (1
November 2010); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Praljak Defence Request for
Certification to Appeal the Decision of 23 November 2010 (7 December 2010)
2844
Prosecutor v Delic, No. IT-04-83-T, Decision on Defence Request for Certification to Appeal Trial
Chamber Decision of 9 May 2008 (21 May 2008); Prosecutor v Mladic, No. IT-09-92-T, Decision on
Defence Motion for Certification to Appeal Defence Bar Table Submissions Decision (17 May 2016)
2845
Prosecutor v Krajisnik, No. IT-00-39-T, Reasons for Denying Defence Application for Certification to
Appeal (28 August 2006); Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for
Certification to Appeal Decision on Extension of Time to Tender Sentence-Related Information (11
November 2006)
2846
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Motion for Reconsideration or
Certification to Appeal the Decision on Rebuttal Witnesses (9 April 2009); Prosecutor v Stanisic &
Zupljanin, No. IT-05-92-T, Decision Denying the Prosecution Motion for Reconsideration or Certification
of Decision Denying Prosecution’s Fifth Motion Seeking Leave to Present Evidence in Rebuttal…(11 April
2012); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Defence Request for
Certification to Appeal Three Trial Chamber Decisions on Prosecution Motions for Admission of Rebuttal
Evidence (6 December 2012)

472
of rejoinder evidence2847, reopening defence case, 2848 extension of time for final brief2849,
challenge to conditions of detention, 2850 request for status conference,2851 standard for
reconsideration of ex parte decisions,2852 denial of mistrial. 2853

granted

Certification granted to appeal issue of alleged immunity agreement 2854, right to

impartial Tribunal, 2855 fitness of accused to stand trial2856, necessity of translation of
pleadings into language of self-represented accused2857, remuneration by accused of costs
of his defence, 2858 adequacy of remuneration of defence team members 2859, request for
order halting investigation of defence team members2860, Rule 68 disclosure issues, 2861
denial of additional time for defence to prepare2862, four-day per week trial schedule 2863,

2847
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Defence Request for
Certification to Appeal Decision on Motion for Admission into Evidence of Rejoinder Material (5 February
2013)
2848
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Certification to
Appeal Denial of Third Motion to Re-Open Defence Case (15 January 2015)
2849
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Gvero Motion Seeking Certification to Appeal
the Decision on the Extension of Time for Filing the Final Trial Brief (15 July 2009)
2850
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on the Accused’s Request for Leave to Appeal the
Oral Ruling of the Chamber of 22 October 2009 (8 December 2009)
2851
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Certification to
Appeal Decision on Request for Status Conference (24 June 2014)
2852
Prosecutor v Karadzic, No. IT-95/5-18-T, Decision on the Accused’s Application for Certification to
Appeal Decision on Reconsideration of Protective Measures (16 August 2011)
2853
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for Certification to Appeal
Decision on Motion for a Stay of Proceedings or a Mistrial (21 October 2016)
2854
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Application for Certification to
Appeal Decision on Holbrooke Agreement (17 July 2009)
2855
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for Reconsideration or
Certification to Appeal Decision on Motion for a Fair Trial or Mistrial (27 September 2016)
2856
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Defence Motion Requesting
Certification for Leave to Appeal (16 April 2008); Prosecutor v Hadzic No. IT-04-75-T, Decision on
Prosecution Request for Certification to Appeal Consolidated Decision on the Continuation of
Proceedings (24 November 2015); Prosecutor v Hadzic No. IT-04-75-T, Decision on Requests for
Certification to Appeal Decision on Prosecution’s Motion for Formal Termination of the Proceedings (6
July 2016)
2857
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Motion for Certification to Appeal the 11
December 2007 Decision (15 January 2007); Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on
Accused’s Application for Certification to Appeal Decision on Languages (22 April 2009)
2858
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Certification to
Appeal Chamber’s Decision on Indigence (10 April 2015)
2859
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Application for Certification to
Appeal Decision on Adequate Facilities (13 February 2009)
2860
Prosecution v Gotovina et al, No. IT-06-90-T, Decision on Defence Request for Certification to Appeal
the Trial Chamber’s Decision of 12 March 2010 (21 April 2010)
2861
Prosecutor v Mladic, IT No. 09-92-T, Decision on the Defence Motion for Certification to Appeal the
Decision on Submissions Relative to the Proposed “EDS” Method of Disclosure (13 August 2012)
2862
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Defence Application for Certification on
Interlocutory Appeal (15 March 2005); Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s
Application for Certification to Appeal Decision on Commencement of Trial (18 September 2009);
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Request for Certification to

473
time limitations2864, limitations on number of pages translated for the defence 2865,
impeachment of one’s own witness 2866, restrictions on accused putting questions to
witnesses2867, judicial notice, 2868 admission of interview of the accused 2869, admission of
witness statements and testimony2870, refusal to admit Rule 92 bis statements2871, conflict
of interest of defence counsel2872, denial of self-representation2873, exclusion of

Appeal Against the Scheduling Order…(26 April 2011); Prosecutor v Mladic, No. IT-09-92-T, Decision on
Defence Motion to Appeal the Decision on Defence Request to Adopt Modality for Prosecution Re-Opening
(17 April 2015)
2863
Prosecutor v Karadzic, No. IT-05-95-5/18-T, Decision on Accused’s Application for Certification to
Appeal the Trial Chamber’s Order on Trial Schedule and for Stay (4 June 2010); Prosecutor v Stanisic &
Simatovic, No. IT-03-69-T, Decision on Stanisic Defence Request for Certification to Appeal the Trial
Chamber’s Decision Partially Granting its Motion for Suspension of Proceedings (28 November 2011)
2864
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Defence Request Filed Jointly by the Six Accused
for Certification of Interlocutory Appeal Against the Oral Decision of 8 May on Time Allocated for Cross
Examination by the Defence (29 May 2006); Prosecutor v Oric, No. IT-03-68-T, Decision on Request for
Certification to Appeal Trial Chamber’s Decision on Defence Filings (4 July 2005); Prosecutor v Prlic et
al, No. IT-04-74-T, Decision on the Request of Certification of Appeal Concerning the Trial Chamber’s
Decision of 1 March 2007 (22 March 2007); Prosecutor v Prlic et al, No. IT-04-74-T, Decision Allocating
Time to the Defence to Present its Case (25 April 2008) at para. 46; Prosecutor v Prlic et al, No. IT-04-74-
T, Decision on the Petkovic Defence Motion for Certification to Appeal the Decision of 24 April 2008 (29
May 2008); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Application for Certification
to Appeal Decision on Time for Defence Case (5 October 2012); Prosecutor v Mladic, No. IT-09-92-T,
Decision on Defence Motions for Reconsideration and Certification to Appeal the Decision on Defence
Motion Seeking Adjustment of the Trial Schedule (22 August 2013)
2865
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Praljak Defence Request for Reconsideration or
for Certification to Appeal the Order of 16 May 2008 (11 June 2008); Prosecutor v Prlic et al, No. IT-04-
74-T, Decision on Request for Reconsideration or for Certification to Appeal the Order of 13 October 2008
(4 November 2008)
2866
Prosecutor v Popovic, No. ICTR-05-88-T, Decision on Certification and Clarification of the Trial
Chamber’s Oral Decision on Impeachment of a Party’s Own Witness (21 November 2007) at para. 18
2867
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Certification to Appeal the Decision on the Mode
of Interrogating Witnesses (28 June 2007); Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Praljak
Request for Certification to Appeal (23 July 2008)
2868
Prosecutor v Mladic, No. IT-09-92-T, Decision on the Defence Motions for Certification to Appeal the
Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts (27 June 2012)
2869
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Certification (30 June 2005);
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Request for Reconsideration and Certification to
Appeal the Decision for Admission of the Statement of Jadranko Prlic (8 October 2007); Prosecutor v
Popovic et al, No. IT-05-88-T, Decision on the Admissibility of the Borovcanin Interview and the
Amendment of the Rule 65 ter Exhibit List (25 October 2007) at para. 82
2870
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Nikolic and Beara Motions for Certification
of the Rule 92 Quarter Decision (19 May 2008)
2871
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Praljak Requests for Certification to Appeal
the Decisions of 16 February and 17 March 2010 (1 April 2010)
2872
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Request for Certification for Appeal
of Decision of 25 May 2006 on Lead Counsel’s Assignment of Mr. Orsat Miljenic as Pro Bono Co-Counsel
for the Accused Petkovic (23 June 2006); Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on
Request to File Certification of Interlocutory Appeal Against Trial Chamber’s Decision on Conflict of
Interest…(13 March 2007); Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Request to File
Interlocutory Appeal Against Trial Chamber’s Decision on Conflict of Interest of Attorneys Cedo
Prodanovic and Jadranka Slokovic (27 April 2007)
2873
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Request to Certify an Appeal Against Decision on
Assignment of Counsel (29 August 2006); Prosecutor v Seselj, No. IT-03-67-T, Decision on Request for
Certification to Appeal Decision (No. 2) on Assignment of Counsel (5 December 2006); Prosecution v

474
testimony due to Rule 70 conditions 2874, prosecution requirement to rebut alibi in case-in-
chief2875, joinder of cases2876, severance of an accused 2877, admission of testimony of
witness who subsequently died 2878, exclusion of exhibits2879, bias of expert witnesses2880,
subpoena of witness with pending charges, 2881 validity of extension of appointment of
judge2882, motion for judgement of acquittal, 2883 consultation between accused and
counsel during testimony2884, reopening of prosecution case,2885 adequate time for
prosecution reply, 2886 defence recall of prosecution witnesses, 2887 allowing prosecution to
specify additional victims during trial. 2888, introduction of prosecution exhibits during the
defence case2889, time for closing submissions, 2890 scope of retrial or remand.2891

Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Application for Certification to Appeal the Trial
Chamber’s Decision on Motion to Vacate Appointment of Richard Harvey (13 January 2010)
2874
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Request for Certification of
Interlocutory Appeal of Second Decision on Addition of Wesley Clark to Rule 65 ter List (14 March 2007)
2875
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Prosecution Motion for Reconsideration
of, or in the Alternative, Certification to Appeal Oral Decision of the Trial Chamber (27 August 2008)
2876
Prosecutor v Popovic et al, No. IT-02-57-PT, Decision on Motion for Certification of Joinder Decision
for Interlocutory Appeal (6 October 2005); Prosecutor v Gotovina et al, No. IT-01-45-PT, Decision on
Defence Applications for Certification to Appeal Decision on Prosecution’s Consolidated Motion to Amend
the Indictment and for Joinder (14 August 2006)
2877
Prosecutor v Trbic, No. IT-05-88/1-PT, Decision on Requete de la Defense en Certification d’Appel
Suite a la Decision de la Chambre Datee du 26 Juin 2006(14 July 2006)
2878
Prosecutor v Martic, No. IT-95-11-T, Decision on Defence Application for Certification to Appeal
Pursuant to Rule 73(B) (20 June 2006)
2879
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Requests for Certification to Appeal Two
Decisions Filed by the Prlic Defence Dated 6 and 9 October 2008 Respectively (6 November 2008);
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Certification to Appeal Decision on Prlic Defence
Motion for Reconsideration of the Decision on Admission of Documentary Evidence (16 July 2009)
2880
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Motions for Certification of Decision on
Defence Rule 94 bis Notice Regarding Prosecution Expert Witness Richard Butler (30 October 2007)
2881
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Tolimir Request for Certification to Appeal
Subpoena Decision (4 June 2013)
2882
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Defence Application for Certification to Appeal
Against Trial Chamber’s Decision of 16 June 2006 (23 June 2006)
2883
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for Certification to Appeal the
Chamber’s Decision Under Rule 98 bis (16 May 2014)
2884
Prosecutor v Prlic et al, No. IT-04-74-T, Order on the Mode of Examining an Accused Pursuant to
Rule 85(C) of the Rules (1 July 2008)
2885
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Popovic’s Motion for Certification of
Decision on the Motion to Reopen the Prosecution’s Case (27 May 2008); Prosecutor v Gotovina et al, No.
IT-06-90-T, Decision on Cermak and Markac Defence Requests for Certification to Appeal the Trial
Chamber Decision of 21 April 2010 to Reopen the Prosecution Case (10 May 2010)
2886
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Prosecution Motion for Reconsideration or
Certification to Appeal Concerning Ordonnance Relative a la Demande de l’Accusation de Susprendre le
Delai de Depot de se Demande de Replique (6 July 2010)
2887
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Motion on Behalf of Milan Gvero Seeking
Reconsideration and, in the Alternative, Certiifcation (26 June 2009)
2888
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Joint Defence Request for Certification to
Appeal the Trial Chamber;s Decision of 9 October 2008 (11 November 2008); Prosecutor v Gotovina et al,
No. IT-06-90-T, Decision on Joint Defence Request for Certificate to Appeal the Second Decision on Joint
Defence Motion to Strike the Prosecution’s Further Clarification of Identity of Victims (19 March 2009)
2889
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Joint Motion for Certification to Appeal the
Decision on Presentation of Documents by the Prosecution in Cross Examination of Defence Witnesses (9
January 2009)

475
 Certification to appeal should ordinarily be granted for issues relating to the
fitness of an accused to stand trial, unless the submissions are frivolous or manifestly
without merit.2892

decisions

Rule 73 should be understood as imposing a duty on a chamber to render an order

or decision on every validly filed motion, even if the motion is considered frivolous or an
abuse of process. The Trial Chamber erred in not clearly deciding the 25 October 2007
Motion. 2893

evidentiary hearing

Where, as a matter of law, the accused cannot succeed on a motion even if the
facts upon which he relies are proven, it is not necessary to hold and evidentiary
hearing.2894

Trial Chamber erred in dismissing motion as a matter of law, but not accepting
the facts of the moving party as true. If a Trial Chamber dismisses an argument as a
matter of law only, it must accept the party’s factual allegations as true. 2895

sanctions

Defence counsel sanctioned for frivolous Rule 115 motion on appeal. 2896

Defence counsel sanctioned for abuse of process.2897

An order imposing sanctions under this section is not appealable as of right. 2898

2890
Prosecutor v Mladic, No. IT-09-92-T, Decision on Decision on Defence Motion for Reconsideration of
and Certification to Appeal Scheduling Order (28 September 2016)
2891
Prosecutor v Haradinaj et al, No. IT-04-84bis-PT, Decision on Application on Behalf of Ramush
Haradinaj for Certification Pursuant to Rule 73(B) (3 February 2011); Prosecutor v Haradinaj et al, No.
IT-04-84bis-PT, Decision on Idriz Balaj’s Application Pursuant to Rule 73(B) for Certification to Appeal
the Trial Chamber’s Decision of 8 February 2010 (24 February 2011); Prosecutor v Karadzic, No. IT-95-
5/18-T, Decision on Accused’s Application for Certification to Appeal Decision on Remand of Count One
(3 September 2013)
2892
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 34
2893
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1952
2894
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Accused’s Holbrooke Agreement Motion (8
July 2009) at para. 46
2895
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 27
2896
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Dragomir Milosevic’s Third Motion to Present
Additional Evidence (8 September 2009) at para. 17
2897
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Motion for Reconsideration of Decision of 21
January 2010 and Application of Rule 73(D) of the Rules to Prlic’s Defence (1 February 2010)

476
 timing

Trial Chamber erred in deciding motion without giving accused opportunity to

present evidence supporting his case. Since motions under Rule 73 can be made at any
time, it should have either held an evidentiary hearing or directed the accused to present
his evidence during the course of the trial. 2899

Rule 73 bis—pre trial conference

(A) Prior to the commencement of the trial, the Trial Chamber shall hold a Pre-
Trial Conference.
(B) In the light of the file submitted to the Trial Chamber by the pre-trial Judge
pursuant to Rule 65 ter (L)(i), the Trial Chamber may call upon the Prosecutor to
shorten the estimated length of the examination-in-chief for some witnesses.
(C) In the light of the file submitted to the Trial Chamber by the pre-trial Judge
pursuant to Rule 65 ter (L)(i), the Trial Chamber, after having heard the
Prosecutor, shall determine
(i) the number of witnesses the Prosecutor may call; and
(ii) the time available to the Prosecutor for presenting evidence.
(D) After having heard the Prosecutor, the Trial Chamber, in the interest of a fair
and expeditious trial, may invite the Prosecutor to reduce the number of counts
charged in the indictment and may fix a number of crime sites or incidents
comprised in one or more of the charges in respect of which evidence may be
presented by the Prosecutor which, having regard to all the relevant circumstances,
including the crimes charged in the indictment, their classification and nature, the
places where they are alleged to have been committed, their scale and the victims of
the crimes, are reasonably representative of the crimes charged.
(E) Upon or after the submission by the pre-trial Judge of the complete file of the
Prosecution case pursuant to paragraph (L)(i) of Rule 65 ter, the Trial Chamber,
having heard the parties and in the interest of a fair and expeditious trial, may
direct the Prosecutor to select the counts in the indictment on which to proceed. Any
decision taken under this paragraph may be appealed as of right by a party.
(F) After commencement of the trial, the Prosecutor may file a motion to vary the
decision as to the number of crime sites or incidents in respect of which evidence
may be presented or the number of witnesses that are to be called or for additional
time to present evidence and the Trial Chamber may grant the Prosecutor’s request
if satisfied that this is in the interests of justice.

2898
Prosecutor v Prlic et al, No. IT-04-74-AR73.18, Decision on Jadranko Prlic’s Interlocutory Appeal
Against the Trial Chamber’s Decision on Motion for Reconsideration of Decision of 21 January 2010 and
Application of Rule 73(D) of the Rules to Prlic’s Defence (20 October 2010)
2899
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 30

477
 The Trial Chamber did not err in directing that the disclosure material be provided
for its review prior to commencement of the trial. 2900

limiting incidents

The Trial Chamber has the power to specify certain incidents upon which
evidence should not be led by the prosecution at trial if it believes that the remaining
incidents alleged in the indictment will be reasonably representative of the crimes
charged. 2901

The application of Rule 73 bis (D) would be unworkable if the prosecution were
allowed to lead evidence of crimes not included in the indictment.2902

Prosecution ordered not to present evidence of 16 separate sniping incidents under

the Trial Chamber’s power under Rule 73 bis (D).2903

Prosecution ordered only to present evidence on certain scheduled incidents. A

prosecution case lasting 3 years is unreasonable. A reasonable time for the prosecution
case is 14 months. 2904

Prosecution granted additional hours to present its case where Chamber required
some witnesses to be led viva voce instead of pursuant to Rule 92 ter as proposed by the
prosecution. 2905

Prosecution ordered to eliminate 10 of 28 incidents from proof at trial after

finding that remaining 18 incidents would provide representative proof of the allegations
in the indictment.2906

Rules 92 ter and quarter and Rule 73 bis (D) are complimentary and the use of
the time saving mechanisms of Rule 92 does not preclude application of Rule 73 bis
(D).2907

The Tribunal was administered to administer justice, not create a historical record.
Argument that indictment should not be reduced for that reason rejected.2908

2900
Prosecutor v Blagojevic et al, No. IT-03-60-AR73, Decision (8 April 2003)
2901
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Application of Rule 73 bis (11 July 2006)
2902
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Evidence Tendered Through Witness K82
(3 October 2006) at para. 18
2903
Prosecutor v Milosevic, No. IT-98-29/1-PT, Decision on Amendment of the Indictment and Application
of Rule 73 bis (D) (12 December 2006)
2904
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Application of Rule 73 bis and Amendment of
Indictment (15 May 2007)
2905
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion for Additional Time for
Completion of its Case in Chief (24 April 2013)
2906
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision Pursuant to Rule 73 bis (D) (4 February
2008)
2907
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision Pursuant to Rule 73 bis (D) (4 February
2008) at para. 15

478
 Where removal of counts or incidents may result in an indictment which is no
longer reasonably representative of the prosecution’s case as a whole and may effect the
ability of the prosecution to present evidence on the scope of the alleged widespread and
systematic attack and joint criminal enterprise, the Trial Chamber declined to exercise its
discretion under Rule 73 bis (D).2909

Where certain crimes had been removed from the indictment, the prosecution is
still allowed to lead evidence of those crimes to establish a pattern of conduct relevant to
the remaining allegations in the indictment. However, the accused cannot be convicted
of the crimes which had been removed. 2910

Evidence tending to show a pattern of sniping and shelling in Sarajevo was

admissible despite Chamber’s order that evidence of “unscheduled incidents” not be
led. 2911

Where prosecution never sought to vary order under Rule 73 bis (F) during the
trial, the incidents stricken pursuant to Rule 73 bis (D) would be dismissed. 2912

Incidents stricken pursuant to Rule 73 bis (D) adequately withdrawn by

prosecution by stating during closing argument that it did not intend to pursue any of
those charges.2913

The removal of crime sites or incidents from the indictment cannot be said to
constitute a completed trial of the accused with respect to those crime sites and incidents
for purposes of the application of non bis in idem.2914

Fact that prosecution represented in related case that it was not necessary to lead
evidence on all scheduled incidents did not warrant order prohibiting it from leading
evidence in this case, given the different positions held by the accused. 2915

2908
Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision Pursuant to Rule 73 bis (D) (4 February
2008) at para. 21
2909
Prosecutor v Haradinaj et al, No. IT-04-84-PT, Decision Pursuant to Rule 73 bis (D) (22 February
2007) at para. 9
2910
Prosecutor v Seselj, No. IT-03-67-AR73.7, Decision on Appeal Against the Trial Chamber’s Oral
Decision of 9 January 2008 (11 March 2008) at para. 24
2911
Prosecutor v Perisic, No. IT-04-81-T, Decision on Prosecution’s Submission on Interpretation of the
Trial Chamber’s Decision of 15 May 2007 Regarding Unscheduled Incidents (31 October 2008)
2912
Prosecutor v Milutinovic et al, No. IT-05-87-T, Order Regarding Prosecution’s Submission With
Regard to Rule 73 bis (D) (7 April 2009)
2913
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Withdrawal of Charges (13 October
2014) at para. 7
2914
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Finding of Non Bis in
Idem (16 November 2009) at para. 13
2915
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion to Strike Sarajevo
Shelling and Sniping Incidents (27 January 2012) at para. 8

479
 The right of appeal in Rule 73 bis (E) does not confer upon the prosecution a
general right to appeal decisions denying leave to amend the indictment. Such motions
remain subject to certification by the Trial Chamber.2916

number of prosecution witnesses

Trial Chamber may properly limit number of prosecution witnesses, and

contingencies which later arise can be dealt with by a motion to vary the Chamber’s order
pursuant to Rule 73 bis (F).2917

time limits

Trial Chamber erred in reducing the time available for the prosecution to present
its case by basing its decision on the need to conclude the trial in a fixed period of time,
rather than on whether the time was sufficient to provide a fair opportunity for a party to
present its case.2918

Trial Chamber acted within its discretion on remand in reducing prosecution’s

case from 400 to 107 hours despite the complexity and importance of the case.2919

Trial Chamber granted prosecution an additional 23 hours to present its case

where it had made efforts to streamline the case through Rules 92 bis and ter. 2920

Allocation of same time to prosecution for its cross examination as all accused
consume during their direct examination was reasonable, where prosecution has burden
of proving its case against all accused, while each accused has limited interests in its own
defence, and where Trial Chamber allowed for flexibility in its time allocations.2921

varying witness list

When deciding whether it is in the interests of justice to allow the prosecution to

add a witness not on its witness list, the Trial Chamber must balance the probative value
of the proposed testimony against the need to insure a fair trial. The Trial Chamber

2916
Prosecutor v Delic, No. IT-04-83-Misc.1, Decision on Prosecution’s Appeal (1 November 2006)
2917
Prosecution v Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying Prosecution Motion for
Reconsideration of the Order Limiting the Number of Witnesses it may Call at Trial (21 October 2009)
2918
Prosecutor v Prlic et al, No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial
Chamber’s Ruling Reducing Time for the Prosecution Case (6 February 2007)
2919
Prosecutor v Prlic et al, No. IT-04-74-AR73.4, Decision on Prosecution Appeal Following Trial
Chamber’s Decision on Remand and Further Certification (11 May 2007)
2920
Prosecutor v Prlic et al, No. IT-04-74-T, Decision Allocating Additional Time for Completion of Case-
in-Chief (22 August 2007)
2921
Prosecutor v Prlic et al, No. IT-04-74-AR73.8, Decision on Petkovic and Prajalak’s Appeals Against
the Trial Chamber’s Decision Adopting Guidelines for the Presentation of Defence Evidence (18 July
2008)

480
should ensure that no prejudice will arise to the defence as a result of the late addition of
witnesses.2922

The spirit of Rule 73 bis (E) is to prevent the prosecution from calling witnesses
without sufficient notice to the defence while ensuring that the search for truth is
guaranteed by allowing the prosecution to amend its witness list when it is in the interests
of justice to do so.2923

Motion to add witness denied where prosecution failed to provide convincing

explanation for not adding witness to list earlier, and prosecution case was about to be
closed.2924

Motion to add witness denied where Trial Chamber was unable to determine if
defence would be prejudiced by non disclosure of portions of interview notes pursuant to
Rule 70(B).2925

Motion to remove witness after defence raised issues concerning his credibility
granted. It is for each party, subject to the Trial Chamber’s control, to decide which
witnesses to call to prove its case. 2926

Motion to add witness denied where Trial Chamber was unable to determine if
defence would be prejudiced by non disclosure of portions of interview notes pursuant to
Rule 70(B) 2927 or where restrictions on disclosure by third party operated to prejudice the
defence. 2928

Motion to add witness denied where restrictions placed on testimony by Rule 70

provider limiting cross examination to the scope of direct examination and requiring
defence to seek permission of provider in advance to elicit evidence on other topics
would operate to deny the defence a fair trial. 2929

2922
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Wesley Clark (15 January 2007) at para. 5; Prosecutor v Milutinovic et al,
No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its Rule 65 ter Witness List to Add
Michael Phillips and Shaun Byrnes (15 January 2007) at para. 7
2923
Prosecutor v Limaj et al, No. 03-66-T, Decision on Prosecution’s Third Motion for Provisional
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (9 March 2005) at
para. 4
2924
Prosecutor v Mrskic et al, No. IT-95-13/1-T, Decision on Prosecution Motion to Amend its Rule 65 ter
List (6 June 2006)
2925
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Michael Phillips and Shaun Byrnes (15 January 2007) at paras. 16-17
2926
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution’s Motion for Leave to Amend its Witness
List and Exhibit List (16 June 2008) at para. 18
2927
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Michael Phillips and Shaun Byrnes (15 January 2007) at paras. 16-17
2928
Prosecutor v Milutinovic et al, No. IT-05-87-T, Second Decision on Prosecution Motion for Leave to
Amend its Rule 65 ter Witness List to Add Wesley Clark (15 February 2007) at para. 17
2929
Prosecutor v Milutinovic et al, No. IT-05-87-T, Second Decision on Prosecution Motion for Leave to
Amend its Rule 65 ter Witness List to Add Wesley Clark (15 February 2007)

481
 Motion to substitute witness granted where witness would not be called for a long
time and no prejudice to the accused was shown. 2930

Adding defence witnesses justified by decision of the accused not to testify. 2931

Motion to add intercept operators as witnesses granted where at time of filing of

witness list, defence believed that intercepts would be admitted by agreement of the
parties. 2932

Motion to add defence witnesses granted as accused should be given flexibility to

call witnesses which would allow for efficient use of remainder of time allotted to
him. 2933

Motion to add witness denied where prosecution could not rely on non-binding
negotiations on agreed facts which had not been consummated in leaving the witness off
of its witness list.2934

Rule 73 ter—pre-defence conference

(A) Prior to the commencement by the defence of its case the Trial Chamber may
hold a Conference.
(B) In the light of the file submitted to the Trial Chamber by the pre-trial Judge
pursuant to Rule 65 ter (L)(ii), the Trial Chamber may call upon the defence to
shorten the estimated length of the examination-in-chief for some witnesses.
(C) In the light of the file submitted to the Trial Chamber by the pre-trial Judge
pursuant to Rule 65 ter (L)(ii), the Trial Chamber, after having heard the defence,
shall set the number of witnesses the defence may call.
(D) After commencement of the defence case, the defence may, if it considers it to
be in the interests of justice, file a motion to reinstate the list of witnesses or to vary
the decision as to which witnesses are to be called.
(E) After having heard the defence, the Trial Chamber shall determine the time
available to the defence for presenting evidence.
(F) During a trial, the Trial Chamber may grant a defence request for additional
time to present evidence if this is in the interests of justice.

2930
Prosecutor v Karadzic, No.IT-95-5/18-T, Decision on Prosecution’s Motion to Substitute Witness (4
May 2010)
2931
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Simatovic Defence Motion to Add Five
Witensses to its Rule 65 ter Witness List (24 April 2012) at para. 10
2932
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Vary Witness List (21
February 2013)
2933
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Vary List of Witnesses
(Srebrenica Component) (20 September 2013) at para. 9; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Motion to Vary List of Witnesses (Srebrenica and Municipality Components) (4
November 2013) at para. 10
2934
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision on Prosecution Motion to Admit Evidence
from the Bar Table, Revise its 65 ter Witness and Exhibit Lists, and Admit Evidence Pursuant to Rule 92 ter
(26 January 2012) at para. 33

482
 exhibits

The defence is not obligated to disclose to the prosecution copies of exhibits it

intends to use in its cross-examination until it actually uses the exhibit in court.2935

The defence is obligated to disclose the exhibits it intends to use in cross-

examination as soon as the prosecution witness is sworn.2936

time limits

The Trial Chamber retains the authority to limit the time for presentation of a
party’s evidence at trial. However, it must take into consideration the complexity of the
issues to be addressed and determine if the allocated amount of time provides a fair
opportunity for a party to present its case. 2937

Considerations of judicial economy should never impinge upon the rights of the
parties to a fair trial. 2938

The Trial Chamber erred in precluding the defence from offering evidence as to
certain issues. The defence should be allowed to present evidence on relevant issues
unless the Trial Chamber was prepared to grant a partial judgement of acquittal pursuant
to Rule 98 bis.2939

Trial Chamber allotted twice the time of direct examination for cross examination
of a witness in a single accused case. 2940

Limiting cross examination to time of direct examination of viva voce witness was
not disproportionate.2941

2935
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Motion for Prosecution Access to Defence
Documents Used in Cross-Examination of Prosecution Witnesses (9 May 2005) at para. 9
2936
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Notification of Cross Examination Material
(31 May 2007); Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Joint Defence Motion for
Modification of Order on Procedure and Evidence (16 August 2006); Prosecutor v Popovic et al, No. IT-
05-88-T, Order on Production of Defence Documents Used During Cross Examination of Prosecution
Witnesses (24 August 2006); Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Time-Limits for
Disclosure of Documents to be Used During a Witness’ Testimony (18 January 2007)
2937
Prosecutor v Prlic et al, No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial
Chamber’s Ruling Reducing Time for the Prosecution Case (6 February 2007) at para. 14
2938
Prosecutor v Prlic et al, No. IT-04-74-AR73.7, Decision on Defendants Appeal Against the Decision
Portant Attribution du Temps a la Defense Pour la Presentation des Moyens a Decharge (1 July 2008) at
para. 16
2939
Prosecutor v Oric, No. 03-68-AR73.2, Interlocuory Decision on Length of Defence Case (20 July
2005) at para. 6
2940
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Admission of Written Statements, Transcripts,
and Exhibits Pursuant to Rule 92 ter (22 February 2007)
2941
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 173

483
 It was not unreasonable to count the time an accused spent cross examining
evidence presented by a co-accused towards his allocation of time for his defence case
where the time was spent eliciting evidence favorable to his case. 2942

Trial Chamber’s are required to afford the accused proportional time to that of the
prosecution to present their cases in accordance with the longstanding principle of
equality of arms.2943

In multiple accused cases, the proportionality os affected by the amount of

evidence directed at a particular accused. The Appeals Chamber defers to the judgement
of the Trial Chamber unless it can be shown that the amount of time allowed to a given
accused was unreasonably disproportionate.2944

Allocation of 80 hours to accused to present his defence in multi-accused case,

and 240 hours to defence teams in general, where prosecution was granted 260 hours for
its case, was not unreasonably disproportionate. 2945

A Trial Chamber is required to justify its decision allocating the time for a party
to present its case by by indicating what documents and information it has taken into
account, as well as the factors it has taken into account but it does have to address the
specific testimony or pieces of evidence it considers unnecessary. 2946

Trial Chamber did not err in determining that proposed evidence of the accused
was repetitive based upon defence pre-defence filings, rather than waiting until evidence
was presented in defence case.2947

Trial Chamber’s decision granted deference where it indicated a willingness to

consider extension of time for defence case during the course of the trial. 2948

2942
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 141
2943
Prosecutor v Prlic et al, No. IT-04-74-AR73.4, Decision on Prosecution Appeal Following Trial
Chamber’s Decision on Remand and Further Certification (11 May 2007) at para. 38; Prosecutor v Prlic et
al, No. IT-04-74-AR73.7, Decision on Defendants Appeal Against the Decision Portant Attribution du
Temps a la Defense Pour la Presentation des Moyens a Decharge (1 July 2008) at para.16
2944
Prosecutor v Prlic et al, No. IT-04-74-AR73.7, Decision on Defendants Appeal Against the Decision
Portant Attribution du Temps a la Defense Pour la Presentation des Moyens a Decharge (1 July 2008) at
para. 39
2945
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 132
2946
Prosecutor v Prlic et al, No. IT-04-74-AR73.7, Decision on Defendants Appeal Against the Decision
Portant Attribution du Temps a la Defense Pour la Presentation des Moyens a Decharge (1 July 2008) at
para. 56
2947
Prosecutor v Prlic et al, No. IT-04-74-AR73.7, Decision on Defendants Appeal Against the Decision
Portant Attribution du Temps a la Defense Pour la Presentation des Moyens a Decharge (1 July 2008) at
para. 25
2948
Prosecutor v Prlic et al, No. IT-04-74-AR73.7, Decision on Defendants Appeal Against the Decision
Portant Attribution du Temps a la Defense Pour la Presentation des Moyens a Decharge (1 July 2008) at
para. 59

484
 In addition to assuring that the allocation to the defence of time and witnesses is
proportional, the Trial Chamber must also consider whether the time is objectively
adequate to permit the accused to set forth his case in a manner consistent with his
rights.2949

Trial Chamber did not err in limiting the number of Rule 92 bis statements that an
accused could tender after observing that the proposed statements were duplicative and
covered matters which were either irrelevant or went to the acts and conduct of the
accused. However, the Trial Chamber erred in putting an arbitrary 30 page limit on the
Rule 92 bis material. 2950

Where the disparity between the time allocated to the prosecution and defence is
great, no specific prejudice need be shown. 2951

Considering that the prosecution bears the burden of proof, an allocation of time
reasonably proportionate to that of the prosecution will often result in less time for the
defence to present its case.2952

Defence allowed the same number of hours as the prosecution to present its case.
The fact that 2300 adjudicated facts had also been admitted in the prosecution’s case did
not warrant the granting of additional time to the defence. 2953

The Trial Chamber may consider the fact that the defence elicited evidence
favorable to its case during cross examination of prosecution witnesses when allocating
time for the defence case.2954

Additional 25 hours allowed for accused to present witnesses on count which had
been dismissed at the close of the prosecution case, and then re-instated.2955

An accused subject to unreasonable restrictions on the time allowed to present its

case would be allowed to begin its case anew so that it could fully examine the witnesses
already called.2956

2949
Prosecutor v Oric, No. 03-68-AR73.2, Interlocuory Decision on Length of Defence Case (20 July
2005) at para. 8
2950
Prosecutor v Prlic et al, No. IT-04-74-AR73.17, Decision on Slobodan Praljak’s Appeal of the Trial
Chamber’s Refusal to Decide Upon Evidence Tendered Pursuant to Rule 92 bis (1 July 2010)
2951
Prosecutor v Oric, No. IT-03-68-AR73.2, Interlocuory Decision on Length of Defence Case (20 July
2005) at para.9
2952
Prosecutor v Karadzic, No. IT-95-5/18-AR73.10, Decision on Appeal of Decsion on Duration of
Defence Case (29 January 2013) at para. 16
2953
Prosecutor v Karadzic, No. IT-95-5/18-AR73.10, Decision on Appeal of Decsion on Duration of
Defence Case (29 January 2013) at paras. 18-19; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Time Allocated to the Accused for Presentation of his Case (19 September 2012) at paras. 10-12
2954
Prosecutor v Karadzic, No. IT-95-5/18-AR73.10, Decision on Appeal of Decsion on Duration of
Defence Case (29 January 2013) at para. 22
2955
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Request for Additional Hours to
Present his Defence Case and on Motion to Recall Defence Witnesses (29 October 2013) at para. 12

485
 An accused may call a witness on his own behalf even if that witness has already
testified in the case earlier.2957

Rule 74—amicus curiae

A Chamber may, if it considers it desirable for the proper determination of the

case, invite or grant leave to a State, organization or person to appear before it and
make submissions on any issue specified by the Chamber.

association of defence counsel

Where the appellant has no motivation to contest an issue of general importance

to the jurisprudence of the Tribunal, the Appeals Chamber would appoint the Association
of Defence Counsel to file a brief representing the interests of the defence. 2958

Appeals Chamber declined prosecution’s request to appoint Association of

Defence Counsel as amicus curiae where accused did not respond to grounds of appeal
asserted by the prosecution to be of general significance to the jurisprudence of the
Tribunal. 2959

Application of Association of Defence Counsel to appear as amicus curiae in

matter of defence investigator charged in Croatia denied where issue had been
extensively briefed by parties and ADC had not shown how it could assist the Chamber
with arguments not provided by the parties. 2960

denied

Requests of survivor’s groups to intervene in Hartmann contempt case concerning

public interest in disclosure of Serbian archives denied. 2961

Request of survivor’s groups to intervene in appeal of acquittal for genocide in

the municipalities denied where the prosecution brief would cover the same issues as
those proposed by the groups.2962

2956
Prosecutor v Oric, No. IT-03-68-AR73.2, Interlocuory Decision on Length of Defence Case (20 July
2005) at para. 10
2957
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Nikolic Motion Pursuant to Rule 92 bis (28
July 2008) at para. 11
2958
Prosecutor v Brdjanin, No. IT-98-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s
Appeal (5 May 2005) at pg. 5
2959
Prosecutor v Oric, No. IT-03-68-A, Decision on Motion in Relation to Ground 5 of the Prosecution’s
Appeal (12 September 2007)
2960
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Association of Defence Counsel (ADC-ICTY)
Motion for Leave to Appear as Amicus Curiae (9 June 2009)
2961
In the case against Florence Hartmann, No. IT-02-54-R77.5, Decision on Requests Pursuant to Rule
74 (6 May 2009)
2962
Prosecutor v. Karadzic, No. IT-95-5/18-AR98bis, Decision on Application for Leave to Submit an
Amicus Curiae Brief (21 September 2012)

486
 Request of group of ballistics expert to appear as amicus curiae denied where the
arguments were primarily of a factual nature and where the application failed to disclose
the relationship of the experts to the defence team. 2963

Request of Government of Croatia for amicus curiae participation rejected where

proposed submissions related to matters of fact, and submissions of amicus curaie should
be limited to questions of law.2964

Request by Croatia to intervene in appeal against its military officers denied

where the findings subject to the appeal dealt with the individual criminal responsibility
of the officers and not the responsibility of the State, and where briefing on the issue of
State responsibility would not assist the Appeals Chamber. 2965

Request by Croatia to intervene in appeal where findings were made concerning

the conduct of its leaders denied where the findings were not binding on the three men,
who maintained the presumption of innocence, nor Croatia’s State responsibility, which
is a subject not determined at a criminal tribunal. 2966

granted

Request of free-speech organization to file submissions in Hartmann contempt

appeal granted on legal standard but not on application of facts of case to that
standard.2967

Request of former American Ambassador who negotiated ICC statute to file

amicus curiae brief in appeal on issue of customary international law status of ICC
statute granted.2968

The Appeals Chamber can ask the amicus curiae to argue in the interests of a
particular party where this approach will serve the interests of justice. 2969

2963
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Decision on Application and Proposed Amicus
Curiae Brief (14 February 2012) at paras. 11-12
2964
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Request by the Government of the Republic of
Croatia for Leave to Appear as Amicus Curiae (11 October 2006); Prosecutor v Gotovina et al, No. IT-06-
90-PT, Decision on Requests of the Republic of Croatia for Leave to Appear as Amicus Curiae (18 October
2006)
2965
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Decision on Motion to Intervene and Statement of
Interest by the Republic of Croatia (8 February 2012)
2966
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Application by the Government of the Republic of
Croatia for Leave to Appear as Amicus Curiae and to file Amicus Curaie Brief (18 July 2016) at para. 9
2967
In the case against Florence Hartmann, No. IT-02-54-R77.5-A, Decision on Application for Leave to
File Amicus Curiae Brief (5 February 2010)
2968
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on David J. Scheffer’s Application to File an
Amicus Curiae Brief (7 September 2010)
2969
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Momcilo Krajsinik’s Right to Self-Represent, on
Counsel’s Motions in Relation to Appointment of Amicus Curiae and on the Prosecution Motion of 16
February 2007 (11 May 2007) at para. 17

487
Rule 74 bis—medical examination of the accused

A Trial Chamber may, proprio motu or at the request of a party, order a

medical, psychiatric or psychological examination of the accused. In such a case,
unless the Trial Chamber otherwise orders, the Registrar shall entrust this task to
one or several experts whose names appear on a list previously drawn up by the
Registry and approved by the Bureau.

Medical examination of the accused by two independent experts at the request of

the prosecution granted after extensive delay in the trial due to accused’s illness to advise
on feasibility and modalities of resuming the trial. 2970

In order to discharge its statutory function of ensuring a fair and expeditious trial,
it is within the Trial Chamber’s power to order more frequent reporting on the accused’s
medical condition.2971

The Defence has a role in ensuring that the accused is receiving adequate and
appropriate medical care while detained in the UNDU. 2972

Trial Chamber declined to order aily medical reports of accused who was unfit to
stand trial at the present time, but ordered that the weekly reports be augmented with
additional information. 2973

Rule 75—protection of victims and witnesses

(A) A Judge or a Chamber may, proprio motu or at the request of either party, or
of the victim or witness concerned, or of the Victims and Witnesses Section, order
appropriate measures for the privacy and protection of victims and witnesses,
provided that the measures are consistent with the rights of the accused.
(B) A Chamber may hold an in camera proceeding to determine whether to order:
(i) measures to prevent disclosure to the public or the media of the identity or
whereabouts of a victim or a witness, or of persons related to or associated with a
victim or witness by such means as:
(a) expunging names and identifying information from the Tribunal’s public
records;
(b) non-disclosure to the public of any records identifying the victim or witness;
(c) giving of testimony through image- or voice- altering devices or closed circuit
television; and

2970
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Request for a Medical Examination of
the Accused pursuant to Rule 74 bis (22 January 2015)
2971
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Urgent Motion for Daily Detailed Medical
Monitoring and Reporting of Mr. Hadzic’s Health Condition (10 April 2015) at para. 18
2972
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Urgent Motion for Daily Detailed Medical
Monitoring and Reporting of Mr. Hadzic’s Health Condition (10 April 2015) at para. 18
2973
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Urgent Motion for Daily Detailed Medical
Monitoring and Reporting of Mr. Hadzic’s Health Condition (10 April 2015) at paras. 20

488
(d) assignment of a pseudonym;
(ii) closed sessions, in accordance with Rule 79;
(iii) appropriate measures to facilitate the testimony of vulnerable victims and
witnesses, such as one-way closed circuit television.
(C) The Victims and Witnesses Section shall ensure that the witness has been
informed before giving evidence that his or her testimony and his or her identity
may be disclosed at a later date in another case, pursuant to Rule 75 (F).
(D) A Chamber shall, whenever necessary, control the manner of questioning to
avoid any harassment or intimidation.
(E) When making an order under paragraph (A) above, a Judge or Chamber shall
wherever appropriate state in the order whether the transcript of those proceedings
relating to the evidence of the witness to whom the measures relate shall be made
available for use in other proceedings before the Tribunal or another jurisdiction.
(F) Once protective measures have been ordered in respect of a victim or witness
in any proceedings before the Tribunal (the “first proceedings”), such protective
measures:
(i) shall continue to have effect mutatis mutandis in any other proceedings before
the Tribunal (“second proceedings”) or another jurisdiction unless and until they
are rescinded, varied, or augmented in accordance with the procedure set out in this
Rule; but
(ii) shall not prevent the Prosecutor from discharging any disclosure obligation
under the Rules in the second proceedings, provided that the Prosecutor notifies the
Defence to whom the disclosure is being made of the nature of the protective
measures ordered in the first proceedings.
(G) A party to the second proceedings seeking to rescind, vary, or augment
protective measures ordered in the first proceedings must apply:
(i) to any Chamber, however constituted, remaining seised of the first proceedings;
or
(ii) if no Chamber remains seised of the first proceedings, to the Chamber seised of
the second proceedings.
(H) A Judge or Bench in another jurisdiction, parties in another jurisdiction
authorised by an appropriate judicial authority, or a victim or witness for whom
protective measures have been ordered by the Tribunal may seek to rescind, vary,
or augment protective measures ordered in proceedings before the Tribunal by
applying to the President of the Tribunal, who shall refer the
application:
(i) to any Chamber, however constituted, remaining seised of the first proceedings;
(ii) if no Chamber remains seised of the first proceedings, to a Chamber seised of
second proceedings; or,
(iii) if no Chamber remains seised, to a newly constituted Chamber.
(I) Before determining an application under paragraph (G)(ii), (H)(ii), or (H)(iii)
above, the Chamber shall endeavour to obtain all relevant information from the
first proceedings, including from the parties to those proceedings, and shall consult
with any Judge who ordered the protective measures in the first proceedings, if that
Judge remains a Judge of the Tribunal.
(J) The Chamber determining an application under paragraphs (G) and (H) above

489
shall ensure through the Victims and Witnesses Section that the protected victim or
witness has given consent to the rescission, variation, or augmentation of protective
measures; however, on the basis of a compelling showing of exigent circumstances
or where a miscarriage of justice would otherwise result, the Chamber may, in
exceptional circumstances, order proprio motu the rescission, variation, or
augmentation of protective measures in the absence of such consent.
(K) An application to a Chamber to rescind, vary, or augment protective measures
in respect of a victim or witness may be dealt with either by the Chamber or by a
Judge of that Chamber, and any reference in this Rule to “a Chamber” shall include
a reference to “a Judge of that Chamber”

access to material from other cases

Parties before the MICT will be considered parties before the ICTY when
considering a motion for access to confidential information. 2974

Access to confidential material from another case is granted where the party can
establish that it may be of material assistance to its case. 2975 It is sufficient if there is a
good chance that access to the material sought would materially assist the applicant’s
case. 2976

A party is always entitled to seek material from any source, including confidential
material from another case before the International Tribunal. The test for granting access
to such material is whether the party seeking access has identified or described it by
general nature and has established that it may be of material assistance to its case or that
there is at least a good chance that it would – namely, whether a legitimate forensic
purpose for such access has been shown. 2977

The relevance of the material sought can be established by showing that the
events in the case from which the material is sought occurred in the same geographical
area and during the same time as the events in the case against the accused.2978

2974
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Karadzic’s Motion for Access to
Prosecution’s Sixth Protective Measures Motion (27 June 2016) at p.2; Prosecutor v Mladic, No. IT-09-92-
T, Decision on Motion by Stanislav Galic for Access to Confidential Materials in the Mladic Case (20 July
2016) at para 5
2975
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Motion of Defence of Jovica Stanisic for
Variance of Protective Measures Pursuant to Rule 75(G)(i) (11 March 2005) at p. 3
2976
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Motion of Defence of Jovica Stanisic for
Variance of Protective Measures Pursuant to Rule 75(G)(i) (11 March 2005) at page 3; Prosecutor v Prlic
et al, No. IT-04-74-PT, Decision on Defence’s Motion for Access to Confidential Material (9 March 2005)
at page 3; Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Decision on Motion by Radivoje Militec for
Access to Confidential Information (9 September 2005)
2977
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 214; Prosecutor v
Boskoski & Tarculovski, No. IT-04-82-T, Decision on Motion of Boskoski Defence for Access to Registry
Minutes of a Meeting Between the Chamber and the Office of the Prosecutor on 10 September 2002 in
Case No. IT-02-55-MISC-6 (1 October 2007) at para. 4
2978
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Motion of Defence of Jovica Stanisic for
Variance of Protective Measures Pursuant to Rule 75(G)(i) (11 March 2005) at page 3; Prosecutor v Limaj

490
 Where Rule 73 bis (D) motion had removed crimes for which there was overlap
between the two cases, the earlier decision granting access would be rescinded. 2979

Accused made a showing of legitimate forensic purpose for disclosure of medical

reports of his former co-accused who was testifying against him. 2980 However, given the
availability of information from public sources, the accused failed to show that denial of
the material had an impact upon the verdict.2981

Ex parte filings from other cases will not be disclosed to an applicant absent a
particularized showing of legitimate forensic purpose greater than geographical and
temporal overlap between the two cases. 2982

Where the accused had the opportunity to obtain equivalent information from the
prosecution, the disclosure of ex parte filings in another case was not necessary. 2983

Accused failed to show how Registry minutes of meeting between Chambers and
OTP in which request for deferral of Macedonia investigation was denied were likely to
materially assist its case.2984

A Chamber has the discretion to refer a motion for access to materials from the
first case to the Chamber seized of the second proceedings. 2985

Chamber which provided protective measures of pseudonym and image distortion

is properly seized of request from subsequent case to augment protective measures by
ordering closed session.2986

et al, No. IT-03-66-T, Decision on Motion of Assigned Counsel in Milosevic for Variance of Protective
Measures Pursuant to Rule 75 (14 April 2005); Prosecutor v Simic, No. IT-95-9-A, Judgement (28
November 2006) at para. 214
2979
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on the Prosecution’s Motion for
Reconsideration and Recission of the Order to Disclose Issued in Trial Chamber’s Decision on Motion of
Radovan Karadzic for Access to Confidential Materials in the Lukic & Lukic Case of 10 July 2009 (7
December 2009) at para 11
2980
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 217
2981
Prosecutor v Simic, No. IT-95-9-A, Judgement (28 November 2006) at para. 221
2982
Prosecutor v Simic, No. IT-95-9-A, Decision on Defence Motion by Franko Simatovic for Access to
Transcripts, Exhibits, Documentary Evidence and Motions filed by the Parties in the Simic et al Case (12
April 2005); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Access to the
Ex Parte Filings in the Slobodan Milosevic Case (Srebrenica Intercepts)(28 February 2011) at para. 9
2983
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Access to the Ex Parte
Filings in the Slobodan Milosevic Case (Srebrenica Intercepts)(28 February 2011) at para. 13
2984
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Decision on Motion of Boskoski Defence for
Access to Registry Minutes of a Meeting Between the Chamber and the Office of the Prosecutor on 10
September 2002 in Case No. IT-02-55-MISC-6 (1 October 2007) at para. 9
2985
Prosecutor v Krajisnik, No. IT-00-39-A, Order Regarding Rule 75 Motion by Stoljan Zupljanin (25
February 2009)
2986
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Urgent Prosecution Motion for Additional
Protective Measures for Witness KDZ084 (10 May 2012) at p. 2

491
 Enhanced protective measures of closed session warranted for prosecution
witness where there were Serbian nationalists in his community and the community
where his relatives lived, there could be repercussions from supporters of the accused,
and the accused’s case had a higher profile than the previous case where the witness
testified in public session.2987

A motion to alter the access of the defence to confidential records of a case which
had since been appealed was properly made to the Appeals Chamber even though the
Trial Chamber had been the one to grant access. 2988

Where the Trial Chamber which granted access is no longer seized of the case,
and the matter is pending before the Appeals Chamber, the appropriate method for
obtaining access to material previously denied is a fresh application to the Appeals
Chamber rather than a request to the Appeals Chamber to reconsider a decision of the
Trial Chamber.2989

However, a blanket referral of a determination of protective measures to the

Chamber seized of the second proceedings would frustrate the purpose of Rule
75(G)(i).2990

Access to confidential filings in enforcement proceedings require a greater

showing than geographical and temporal overlap before a legitimate forensic purpose is
established. 2991

Convicted person seeking access for the purposes of filing motion for review
based on new facts would be granted access to transcripts, exhibits, and filings related to
issues on which there was factual overlap between the cases. 2992

The threshold for access by a person whose case has concluded is higher than that
of a person with a pending case. A mere nexus between cases is insufficient. The person
2987
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Urgent Prosecution Motion for Additional
Protective Measures for Witness KDZ084 (10 May 2012) at p. 3
2988
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on the Prosecution’s Motion for
Reconsideration and Recission of the Order to Disclose Issued in Trial Chamber’s Decision on Motion of
Radovan Karadzic for Access to Confidential Materials in the Lukic & Lukic Case of 10 July 2009 (7
December 2009) at para. 4
2989
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Decision on Motion by Radovan Karadzic for
Reconsideration of Decision on Motion for Access to Confidential Material in the Stanisic & Simatovic
Case (16 February 2015) at p. 3
2990
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on Radovan Karadzic Motion for Variation of
Protective Measures (25 September 2009) at para. 8; Prosecutor v Milosevic, No. IT-98-29/1-A, Decision
on Radovan Karadzic’s Motion for Variance of Protective Measures (8 October 2009) at para. 9;
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Motion by Radovan Karadzic on Motion for
Protective Measures (12 October 2009); Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision
Denying Radovan Karadzic’s Motion for Variance of Protective Measures (13 October 2009)
2991
Prosecutor v Karadzic, No. 95-5/18-T, Decision on Motion for Access to Confidential Filings and
Decisions in Enforcement Proceedings (17 April 2012)
2992
Prosecutor v Mladic, No. IT-09-92-T, Decision on Motion by Stanislav Galic for Access to
Confidential Materials in the Mladic Case (20 July 2016) at para. 10

492
must explain how the materials sought would be of assistance to establish a new fact.2993

Motion for disclosure of closed session testimony from a case which has been
completed should be served on the accused in that case. 2994

burden of proof

The burden rests on the party seeking protective measures to justify in each case
why the measures requested should be granted. 2995

If protective measures are sought with respect to particular witnesses or victims,

the prosecution has the burden of demonstrating that the measures are justified in that
particular case. 2996

death

Death of the witness justifies recission of protective measures. 2997

Consent of a family member or relative of a deceased protected witness to

variation of protective measures to allow disclosure to national authorities, even if it were
given on behalf of the family, is not valid under Rule 75(J). However, the importance of
the testimony to the case of the national authorities constituted a compelling showing of
exceptional circumstances such as to allow disclosure to the authorities in the absence of
consent.2998

disclosure material

Documents disclosed to the defence on a confidential basis and not admitted into
evidence cannot be disclosed generally to members of the public by defence counsel. 2999

Prosecution motion for order to accused not to make public the contents of
disclosure provided by the prosecution was unnecessary where the protective measures

2993
Prosecutor v Mladic, No. IT-09-92-T, Decision on Vujadin Popovic’s Defence Request for Access to
Confidential Materials in the Mladic Case (11 May 2017) at para. 8
2994
Prosecutor v Popovic et al, No. IT-05-88-T, Order to Serve Momir Nikolic With Defence Motion on
Behalf of Drago Nikolic Seeking Access to Confidential Material in Case No. IT-02-6/1 (11 September
2007)
2995
Prosecutor v Gotovina, No. IT-01-45-PT, Decision on Prosecution Motion for Non-Disclosure to
Public of Materials Disclosed Pursuant to Rules 66 and 68 (14 July 2006) at pg. 6
2996
Prosecutor v Gotovina, No. IT-01-45-PT, Decision on Prosecution Motion for Non-Disclosure to
Public of Materials Disclosed Pursuant to Rules 66 and 68 (14 July 2006) at pg. 7
2997
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Admission of
Evidence of Stevqn Todorovic Pursuant to Rule 92 quarter (29 October 2010) at para. 5
2998
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application of the Prosecutor of the Tribunal for
Variation of Protective Measures (27 January 2010) at paras. 18-19
2999
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Jadranko Prlic’s Request for the Trial Chamber
to Issue an Order Lifting the Confidentiality of the Mladic Diary…(6 October 2010)

493
order and practice direction for EDS disclosed material already prohibited such
disclosure except when directly and specifically necessary for the defence of the case. 3000

disclosure to other courts

Disclosure of testimony authorized to Bosnian War Crimes Court for disclosure to

parties in accordance with protective measures in case related to one tried at ICTY.3001

Trial Chamber would not recuse itself from ruling on application for disclosure of
protected witness testimony to national authorities because it was capable of
distinguishing evidence in the trial record from the summary of facts provided by the
national authorities and it had always been transparent by promptly lifting the ex parte
status of Rule 75 applications and inviting the parties to file submissions. 3002

Prosecution was apprpriate party to request permission to disclose confidential

information for use in prosecution of Category II cases in Bosnia. However, disclosure
denied for materials of two witnesses who declined to consent to the disclosure. 3003

Nature of protective measures was disclosed to national authorities where witness

consented.3004

Protective measures granted to a witness by the ICTY continue automatically to

proceedings in national courts and no order is required continuing those protective
measures prior to the witness’ testimony in national proceedings. 3005

Consent of witness not required to disclose the nature of the protective measures
granted to the witness by the ICTY to a national court where the witness’ confidential
testimony was not being disclosed.3006

Exigent circumstances existed to disclose closed session testimony to national

authorities in the absence of the witness’ consent where the witness’ testimony was
unique. 3007

3000
Prosecutor v Seselj, No. IT-03-67-T, Order on Prosecution’s Motion to Prohibit Accused from
Publicising Information Disclosed Solely for Purposes of his Defence (5 July 2010) at p.4
3001
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Decision on Request of the Court of Bosnia and
Herzegovina for Variation of Protective Measures Pursuant to Rule 75(H) (13 December 2007)
3002
Prosecutor v Mladic, No. IT-09-92-R75H.19, Decision on Application pursuant to Rule 75(H) and on
Motion to Strike and Request for Recusal (9 June 2017) at paras. 7-8; Prosecutor v Mladic, No. IT-09-92-
R75F.4, Decision on Application pursuant to Rule 75(F) (4 July 2017) at para. 9
3003
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application of the Prosecutor of the Tribunal for
Variation of Protective Measures (10 November 2009)
3004
Prosecutor v Mladic, No. IT-09-92-R75F.1, Decision on Application pursuant to Rule 75(F) (19
October 2016)
3005
Prosecutor v Mladic, No. IT-09-92-R75H.5, Decision on Application pursuant to Rule 75(H) (18
December 2015) at paras. 9-10
3006
Prosecutor v Prlic et al, No. IT-04-74-R75H.2, Order on Application from [REDACTED]of 25
February 2011 (2 March 2011) at p. 3; Prosecutor v Prlic et al, No. IT-04-74-R75H.3, Order on
Application from the [REDACTED]of 10 March 2011 (15 March 2011) at p. 3

494
 Closed session transcripts would not be disclosed to national authorities where
witness refused to consent to disclosure and no exigent circumstances existed to order
disclosure over the objection of the witness. 3008

Where witness refused to consent, Trial Chamber would not order disclosure of
the witness’ contact details to national authorities, nor authorise the Tribunal to serve as
the focal point between the witness and the national authorities. 3009

Witnesses are entitled to provide information to the Victims and Witnesses

Support Section on a confidential basis and such information would not be disclosed to
the prosecution, whose role in Rule 75 proceedings is simply to provide relevant
information to the Chamber.3010

exhibits

Rule 75 does not require that if an exhibit is placed under seal in one case, it must
necessarily be placed under seal in a subsequent case. 3011

Documents only marked for identification or marked as not admitted do not form
part of the trial record and therefore are not subject to a motion for access under Rule 75.
Rather, the prosecution should disclose such documents consistent with its obligations
under Rule 66(B) and Rule 68.3012

3007
Prosecutor v Mladic, No. IT-09-92-R75H.6, Decision on Application pursuant to Rule 75(H) (10
March 2016) at para. 12
3008
Prosecutor v Mladic, No. IT-09-92-R75H.1, Decision on Application pursuant to Rule 75(H) (13
August 2014) at paras. 8-9; Prosecutor v Mladic, No. IT-09-92-R75H.2&3, Decision on Applications
pursuant to Rule 75(H) (8 June 2015) at paras. 10-11; Prosecutor v Mladic, No. IT-09-92-R75H.4,
Decision on Application pursuant to Rule 75(H) (29 September 2015) at para. 13; Prosecutor v Mladic, No.
IT-09-92-R75H.7, Decision on Application pursuant to Rule 75(H) (13 May 2016) at para. 11; Prosecutor
v Mladic, No. IT-09-92-R75H.8, Decision on Application pursuant to Rule 75(H) (18 August 2016) at para.
11; Prosecutor v Mladic, No. IT-09-92-R75H.12, Decision on Application pursuant to Rule 75(H) (30
January 2017) at para. 11; Prosecutor v Mladic, No. IT-09-92-R75H.14, Decision on Application pursuant
to Rule 75(H) (1 March 2017) at para. 10; Prosecutor v Mladic, No. IT-09-92-R75H.10, Decision on
Application pursuant to Rule 75(H) (10 March 2017) at para. 10; Prosecutor v Mladic, No. IT-09-92-
R75H.16, Decision on Application pursuant to Rule 75(H) (24 March 2017) at para. 11; Prosecutor v
Mladic, No. IT-09-92-R75H.13, Decision on Application pursuant to Rule 75(H) (25 May 2017) at para.
12; Prosecutor v Mladic, No. IT-09-92-R75H.18, Decision on Application pursuant to Rule 75(H) (25 May
2017) at para. 11; Prosecutor v Mladic, No. IT-09-92-R75H.17, Decision on Application pursuant to Rule
75(H) (14 June 2017) at para. 12; Prosecutor v Mladic, No. IT-09-92-R75F.4, Decision on Application
pursuant to Rule 75(F) (4 July 2017) at para. 11
3009
Prosecutor v Mladic, No. IT-09-92-R75H.7, Decision on Application pursuant to Rule 75(H) (13 May
2016) at para. 12
3010
Prosecutor v Mladic, No. IT-09-92-R75H.9&10, Decision on Prosecutor’s Requests for Access to
Deputy Registrar’s Further Submissions of 12 December 2016 (24 January 2017) at p. 3
3011
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the Accused’s Motion to Unsel ICMP Exhibits
(25 April 2012) at para. 8
3012
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Motion for Access to MFI and MNA Documents
(18 January 2012) at p. 3

495
 hierarchy

The ordering of closed session is the most extreme protective measure. 3013 With
respect to the most extreme measure sought, the proceedings must be in public unless
good cause is shown to the contrary. 3014 Other methods designed to conceal a witness’s
identity from the public (such as face and voice distortion) are considered less of an
infringement on the public nature of proceedings. 3015

The more extreme the protection sought, the more onerous will be the obligation
upon the applicant to establish the risk asserted.3016

The minimum measure required to protect the witness’s legitimate fears should be
utilised. 3017

protective measures denied

Protective measure of image distortion granted where witness traveled through

Serb areas of Bosnia and Serbia and where case was a high profile one in the media.
However, no pseudonym would be afforded to the witness. 3018

Fear that testimony would be used against him in state court and that he was more
likely to be prosecuted if he testified as a defence witness was speculative and
insufficient to warrant a pseudonym. 3019

Defence failed to substantiate an objective fear on the part of the witness to his
security or welfare, or that of his family. 3020

3013
Prosecutor v. Slobodan Miloševi , No. IT-02-54-T, Decision on Prosecution Motion for Trial Related
Protective Measures for Witnesses (Croatia) (30 July 2002) at para. 6.
3014
Prosecutor v. Radoslav Brdanin & Momir Tali , No. IT-99-36-PT, Decision on Motion by Prosecution
for Protective Measures (3 July 2000) at para. 53.
3015
Prosecutor v. Miloševi , No. IT-02-54-T, Decision on Prosecution Motion for Trial Related Protective
Measures for Witnesses (Croatia) (30 July 2002) at para. 7.
3016
Prosecutor v. Miloševi , No. IT-02-54-T, Decision on Prosecution Motion for Trial Related Protective
Measures for Witnesses (Croatia) (30 July 2002) at para. 5; Prosecutor v. Milan Milutinovi et al., No. IT-
05-87-T, Decision on Lazarevi Motion for Protective Measures for Witness SD3 (28 November 2007) at
para. 3; Prosecutor v. Dragomir Miloševi , No. IT-98-29/1-T, Decision on Prosecution’s Motion for
Protective Measures (12 February 2007) at para. 11.
3017
Prosecutor v. Miloševi , No. IT-98-29/1-T, Decision on Prosecution’s Motion for Protective Measures
(12 February 2007) at para. 11; Prosecutor v. Slobodan Miloševi , No. IT-02-54-T, Decision on
Prosecution Motion for Trial Related Protective Measures for Witnesses (Croatia) (30 July 2002) at para.
5.
3018
Prosecutor v Karadzic, No. 95-5/18-T, Decision on Prosecution Motion for Protective Measure for
Witness Bogdan Vidovic (21 September 2010)
3019
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Protective Measures for
Witness KW392 (14 February 2013) at para. 7
3020
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Protective Measures for Witness
KW456 (12 October 2012) at para. 11; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s
Motion for Protective Measures for Witness KW428 (9 July 2013) at para. 7

496
 Defence witness who sought protective measures sue to fear of media campaign
against him provided no objective basis for such fear and therefore protective measures
were denied.3021

Defence witness who expressed fear of personal safety due to public knowledge
of his former occupation provided no objective basis for such fear since his former
occupation was already publicly known and therefore protective measures were
denied. 3022

Defence witness who feared retaliation from Muslims and who did business with
customers in Muslim areas would be granted image distortion, but not a pseudonym or
voice distortion.3023

Bosnian Muslim witness who lived in border area near Serb villages failed to
substantiate fear for security such as to warrant protective measures. 3024

Threat to witness made at the time of the conflict does not justify protective
measures for testimony many years later.3025

Protective measures denied for former Serbian State Security employees as Serbia
failed to show any danger to its interests or those of the former employee from public
disclosure of that information.3026

relatives

A relative of a suspected victim does not become a “witness” for purposes of

protective measures by donating their genetic material for DNA identification. However,
their genetic material may be kept confidential pursuant to Rule 54.3027

Information relating to the genetic material of the alleged victims, including the
genetic material of family members, should be kept confidential under Rule 75 in order to
protect their privacy. 3028

3021
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Reasons for Denial of Protective Measures for
Witness DST-32 (20 July 2011) at para. 8
3022
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Protective Measures for Witness DST-
051 for Personal Reasons (20 July 2011) at para. 6
3023
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Protective Measures for Witness
KW402 (8 January 2013) at paras. 7-8
3024
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Motion for Protective Measures for
Witness RM-151 (13 March 2013) at para. 5
3025
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Protective Measures for
Witness KW007 (19 December 2012)
3026
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Republic of Serbia’s Motion for
Protective Measures for Witness DST-074 (19 January 2012)
3027
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the Accused’s Motion to Unsel ICMP Exhibits
(25 April 2012) at paras. 6, 9
3028
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the Accused’s Motion to Unsel ICMP Exhibits
(25 April 2012) at para. 9

497
 List of victims identified by DNA shall be made public, except for victims who
have been recently identified and whose families may not have yet been notified, and
with any genetic material redacted. 3029

requirements

A real fear for the security of the witness or his family must be shown to exist.
Subjective fears of the potential witness that he or she may be in danger or at risk are not
sufficient.3030

Grounds for the fear of a witness can be demonstrated to the Trial Chamber by the
submission to the Trial Chamber of a document setting out the personal circumstances of
the witness, including whether he still resides in the area where the alleged events
occurred, any family or business connections, or need to return to the area, ethnicity, and
any specific threats that have been made to the witness or his or her family. 3031

Factual considerations relevant to a request for protective measures include (1)

the identity of the witness; (2) the nationality and ethnicity of the witness; (3) the role,
duties performed, and positions occupied by the witness during the course of the conflict;
(4) the nature of the evidence the witness will give before this Trial Chamber; and (5) the
events upon which the witness will testify in relation to the accused before this Trial
Chamber.3032

An objectively grounded risk to the security or welfare of a witness or his

family exists when, inter alia, the prosecution informs the Chamber that a witness has
expressed fears based on his place of residence or of the prospect that individuals
sympathetic to the accused will recognise him. The defence has no right to voir dire the
witness on these representations.3033

rescission

Where witness had spoken publicly about the same information to which he was
to testify, recission of protective measures was not warranted absent consent of
witness.3034

3029
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the Accused’s Motion to Unsel ICMP Exhibits
(25 April 2012) at paras. 9-11
3030
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Order on Milan Lukic’s Request for Protective
Measures (23 July 2008) at pp. 3-4
3031
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Order on Milan Lukic’s Request for Protective
Measures (23 July 2008) at p. 4
3032
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution’s Motion for Delayed
Disclosure… (5 June 2009) at para. 14
3033
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution Motions for Protective
Measures for Witnesses KDZ601 and KDZ605 (19 August 2011) at paras. 10-11
3034
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Accused’s Motion to Modify Protective
Measures: Witness KDZ071 (10 April 2012) at T27207-09

498
 Exceptional circumstances existed to warrant recission of prosecution witness’
protective measures where witness had revealed in news media interviews that she had
testified in this case, and provided details of her testimony, rendering the protective
measures ineffective. 3035

rights of accused

The balance of rights of the accused and protection of witnesses favors the rights
of the accused.3036

While due regard must be had for the protection of victims and witnesses, this is a
secondary consideration to the rights of the accused.3037

The Trial Chamber will refuse to grant any order for non-disclosure where such
order would infringe the rights of the accused, even where the prosecution has shown
exceptional circumstances justifying non-disclosure.3038

The determination of protective measures requires the Chamber to consider, on

the one hand, the rights of the accused to a fair and public trial, and to cross-examine
witnesses against him, and, on the other hand, the rights of victims to protection and
privacy. The hierarchy between these interests is clearly reflected in Article 20 of the
Statute, which provides expressly that the rights of the accused take precedence over the
protection of the victims, as they are to be given “full respect,” while the protection of the
victims is to be given “due regard.” This priority is further confirmed by the wording of
Rule 75(A) of the Rules, which allows a Chamber to order protective measures,
“provided that [they] are consistent with the rights of the accused.”3039

The established practice of the Tribunal to publish redacted versions of

documents that contain information which, if disclosed, might cause prejudice, concerns
about safety, or serious embarrassment to a party or a witness also extends to
judgements.3040

By issuing a public redacted version of the Trial Judgement, the Trial Chamber
ensured the accused’s right to a public judgement, after balancing his rights with the need

3035
Prosecutor v Karadzic, No. IT-95-5/18-T, Public Redacted Decision on Accused’s Motion to Recall
KDZ080 and for Recission of Protective Measures (12 March 2015) at paras. 14-16
3036
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution’s Motion for Delayed
Disclosure… (5 June 2009) at para. 12; Prosecutor v Haradinaj et al, No. 04-84-PT, Decision on Second
Haradinaj Motion to Lift Redactions of Protected Witness Statements (22 November 2006) at para. 3
3037
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution’s Motion for Delayed
Disclosure… (5 June 2009) at para. 12
3038
Prosecutor v Haradinaj et al, No. 04-84-PT, Decision on Second Haradinaj Motion to Lift Redactions
of Protected Witness Statements (22 November 2006) at para. 3
3039
Prosecutor v. Slobodan Miloševi , No. IT-02-54-T, Decision on Prosecution Motion for Trial Related
Protective Measures for Witnesses (Croatia) (30 July 2002) at para. 4.
3040
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1957

499
to protect the identity of witnesses and victims in the interests of justice. Additionally,
the public redacted version sufficiently allows for public scrutiny of the Trial Judgement
in order to safeguard the right to a fair trial. 3041

Rule 70 conditions

Rule 75 does not require that orders concerning restrictions on disclosure pursuant
to Rule 70 apply to future cases in which the same witness gives evidence. 3042

Where the applicant has made a showing that he is entitled to the closed session
material, it will only be disclosed to him after the prosecution has obtained the consent of
the witness or Rule 70 provider. Otherwise, the transcripts must be redacted to prevent
disclosure of the witness’ identity. 3043

The disclosure of material from another case would be limited by the fact that
“sensitive witnesses” whose identity was not disclosed in the first proceeding until
shortly before the testimony would not be disclosed to the accused and Rule 70 material
would not be disclosed absent the consent of the provider. 3044

scope

Protective measures are not limited to victims and can be ordered for witnesses
who are not victims. 3045

standing

A witness does not have standing to challenge protective measures adopted in a

case. 3046

subpoenas

Trial Chamber’s denial of protective measures did not exhaust accused’s avenues
to obtain the attendance of the witness. The accused failed to show that he did not have
legal recourse to a subpoena to compel the witness to testify. Therefore, he would not be

3041
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1958
3042
Prosecutor v Milutinovic et al, No. IT-05-87-T, Second Decision on Prosecution Motion for Leave to
Amend its Rule 65 ter Witness List to Add Wesley Clark (15 February 2007) at para. 24; Prosecutor v
Karadzic, No. IT-95-5/18-PT, Decision on Motion for and Notifications of Protective Measures (26 May
2009) at para. 22
3043
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Motion of Defence of Jovica Stanisic for
Variance of Protective Measures Pursuant to Rule 75(G)(i) (11 March 2005) at page 4
3044
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Defence’s Motion for Access to Confidential
Material (9 March 2005); Prosecution v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the
Accused Slobodan Praljak’s Motion for Access to Confidential Testimony and Documents (11 April 2005)
3045
Prosecutor v Seselj, No. IT-03-67-T, Decision on Vojislav Seselj’s Motion for Reconsideration of the
Decision of 30 August 2007 on Adopting Protective Measures (11 January 2008) at para. 14
3046
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Motion by Witness 28 to Set Aside a
Subpoena or Alternate Relief (5 September 2007) at para. 9

500
heard on appeal to complain about the denial of protective measures. 3047

transfer cases

Because the Prosecution's obligation to disclose to the authorities ofthe State

to which a case is referred under Rule 11 bis encompasses "all appropriate evidentiary
materials relating to the case”, a variation of protective measures is not required for
disclosure of protected witness information to the authorities of the State.3048

Where disclosing protected witness material to a State to whom a case has been
referred pursuant to Rule 11 bis, the referral chamber should order that its protective
measures continue.3049

varying protective measures

Protective measures for prosecution witness lifted where no reasons existed to

maintain original protective measures considering (1) lapse of time since the testimony;
(2) willingness of witness to lift protective measures; and (3) need for use of protected
information in upcoming trial of contempt for disclosure of protected information. 3050

In order to vary a protective order, the defence must demonstrate that their right to
adequately investigate and prepare their cases dictates that the protective measures be
lifted immediately, rather than receiving disclosure 30 days before the testimony. 3051

The inadvertent disclosure to a party of the identity of a witness does not justify
removal of the protective measures. 3052

Where protective measures have been modified or rescinded by a second Trial

Chamber, any subsequent inquiry into protective measures should begin with the
measures in force after that decision, not the original protective measures. 3053

Trial Chamber declined to order Victims and Witnesses Unit to contact witnesses
who testified in closed session after the trial concluded to determine if they would
consent to revelation of the substance of their testimony while protecting their identity
where the accused did not present any information that the witnesses would likely
3047
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 82
3048
Prosecutor v Blaskic, No. IT-95-14-R, Decision on Prosecution’s Motion for Variance of Protective
Measures in the Prosecutor v Lubjicic Case (13 July 2006) at p. 5
3049
Prosecutor v Blaskic, No. IT-95-14-R, Decision on Prosecution’s Motion for Variance of Protective
Measures in the Prosecutor v Lubjicic Case (13 July 2006) at p. 6
3050
Prosecutor v Blaskic, No. IT-95-14-R, Decision on Prosecution’s Motion for Variance of Protective
Measures in the Prosecutor v Seselj and Margetic Case (24 January 2006)
3051
Prosecutor v Haradinaj et al, No. 04-84-PT, Decision on Second Haradinaj Motion to Lift Redactions
of Protected Witness Statements (22 November 2006) at para. 16
3052
Prosecutor v Haradinaj et al, No. 04-84-PT, Decision on Second Haradinaj Motion to Lift Redactions
of Protected Witness Statements (22 November 2006) at para. 20
3053
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Admission of
Evidence of Stevqn Todorovic Pursuant to Rule 92 quarter (29 October 2010) at para. 33

501
consent to vary their protective measures and failed to show any exigent circumstances
or that a miscarriage of justice would result if the Chamber did not vary the protective
measures. 3054

An accused is not entitled to obtaining a list of prosecution witnesses who

testified in his case for whom ex parte motions to vary protective measures have been
filed to enable disclosure to national authorities, as hs interest in knowing if witnesses
have subsequently made statements or testified in domestic proceedings are outweighed
by the need for information related to domestic proceedings to remain ex parte.3055

victims

As a matter of general practice, the public disclosue of the identity of victims of

crimes is a frequent and accepted occurrence in international criminal trials. The
Chamber was not convinced of the need to keep the identities of murder victims
private.3056

violation

Any deliberate conduct which creates a real risk that confidence in the Tribunal’s
ability to grant effective protective measures would be undermined amounts to a serious
interference with the administration of justice. Public confidence in the effectiveness of
such orders is absolutely vital to the success of the work of the Tribunal. 3057

Rule 75 bis—requests for assistance in obtaining testimony

(A) A Judge or Bench in another jurisdiction or parties in another jurisdiction

authorised by an appropriate judicial authority (“Requesting Authority”) may
request the assistance of the Tribunal in obtaining the testimony of a person under
the authority of the Tribunal in ongoing proceedings in the jurisdiction of the
Requesting Authority involving violations of international humanitarian law
committed in the territory of the former Yugoslavia since 1991.
(B) Requests pursuant to paragraph (A) shall be submitted to the President of the
Tribunal, who shall refer the application to a specially appointed Chamber
composed of three Judges of the Tribunal (“Specially Appointed Chamber”).
(C) Requests under paragraph (A) shall not be granted if granting the request may
prejudice ongoing investigations or proceedings before the Tribunal.
(D) The Specially Appointed Chamber, having heard the parties to the proceedings
before the Tribunal, may grant a request pursuant to paragraph (A) after having
verified that:
3054
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Variation of Protective
Measures for Witnesses who Testified in Closed Session (16 March 2015)
3055
Prosecution v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Disclosure of
Information on Variation of Protective Measures (18 February 2016) at p. 3
3056
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Serbia’s Request for Protective
Measures in Relation to Defence Documents (18 July 2012) at para. 27
3057
Prosecutor v Marijacic & Rebic, No. IT-95-14-T, Judgement (10 March 2006) at para. 44

502
(i) granting the request will not prejudice the rights of the person under the
authority of the Tribunal;
(ii) provisions and assurances are in place for observing any protective measures
granted by the Tribunal to the person under its authority;
(iii) granting the request will not pose a danger or risk to any victim, witness, or
other person; and
(iv) no overriding grounds oppose granting the request.
(E) The assistance will be rendered by way of video-conference link. If legal
provisions in the jurisdiction of the Requesting Authority do not allow for the
testimony to be received by way of video-conference link, the Specially Appointed
Chamber may consider to render the assistance by way of granting the Requesting
Authority access to the person to be heard on the premises of the Tribunal or the
transfer of the person under Rule 75 ter.
(F) Upon order of the Specially Appointed Chamber, the Registrar shall coordinate
the arrangements for the video-conference link and be present during the hearing.
(G) A Judge of the Specially Appointed Chamber shall be present during the
hearing and shall ensure that Rule 75 bis (D)(i)–(iii) is respected.
(H) The questioning of the person to be heard shall be conducted directly by, or
under the direction of, the Requesting Authority in accordance with its own laws.
(I) For purposes of this Rule, “person under the authority of the Tribunal” means
an accused or convicted person detained on the premises of the detention unit of the
Tribunal.
(J) No decision taken under this Rule or Rule 75 ter is subject to appeal.
(K) The President may in all cases request any document or additional information
from the Requesting Authority.

Where the testimony sought from the accused directly related to his own case at
the ICTY, which had not been concluded, the accused would not be required to give
testimony before the national court in Bosnia. 3058

Rule 75 ter—transfer of person for testimony

(A) The Specially Appointed Chamber, considering the transfer of a person under
Rule 75 bis (E), shall not grant such transfer unless:
(i) the person under the authority of the Tribunal has been duly summoned to
testify;
(ii) the person under the authority of the Tribunal has provided his consent to the
transfer;
(iii) the host country and the State to which the person under the authority of the
Tribunal is to be transferred have been given the opportunity to be heard;
(iv) the State to where the person is to be transferred (“Requesting State”) has
provided written guarantees to the Tribunal as to the return of the transferred

3058
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Assistance of the Court of Bosnia
and Herzegovina Pursuant to Rule 75 bis (9 August 2011) at p.3; Prosecutor v Mladic, No IT-09-92R75
bis, Second Decision on Request for Assistance from the Court of Bosnia and Herzegovina Pursuant to
Rule 75 bis (21 December 2011) at para. 12

503
person within a stipulated period; the nontransfer of the person to a third State; the
appropriate location of detention; and immunities from prosecution and service of
process for acts, omissions, or convictions prior to the person’s arrival in
the territory of the Requesting State;
(v) the transfer of such person will not extend the period of the person’s detention as
foreseen by the Tribunal; and
(vi) there are no overriding grounds for not transferring the person to the territory
of the Requesting State.
(B) The Specially Appointed Chamber may impose such conditions upon the
transfer of the person under the authority of the Tribunal as it may determine
appropriate, including the execution of a bail bond and the observance of such
conditions as are necessary to ensure the presence of the person for trial thereafter
and the protection of others.
(C) For purposes of this Rule, “person under the authority of the Tribunal” means
an accused or convicted person detained on the premises of the detention unit of the
Tribunal.
(D) If necessary, the Specially Appointed Chamber may issue a warrant of arrest to
secure the presence of a person who has been transferred under this Rule.
The provisions of Section 2 of Part Five shall apply mutatis mutandis.
(E) At any time after an order has been issued pursuant to this Rule, the Specially
Appointed Chamber may revoke the order and make a formal request for the
return of the transferred person.

Rule 76—solemn declaration by interpreters

Before performing any duties, an interpreter or a translator shall solemnly

declare to do so faithfully, independently, impartially and with full respect for the
duty of confidentiality.

An interpreter should only ever be called to give evidence if one of the following
three conditions are filled: (1) there should be a legal duty on the interpreter to make a
record of the interpretation between the parties; (2) in the interest of justice, there should
be no other way of obtaining the evidence sought other than through the testimony of the
interpreter; or (3) the determination of the issue should depend entirely on the evidence to
be given by the interpreter.3059

Rule 77—contempt of the Tribunal

(A) The Tribunal in the exercise of its inherent power may hold in contempt those
who knowingly and wilfully interfere with its administration of justice, including
any person who
(i) being a witness before a Chamber, contumaciously refuses or fails to answer a
question;
(ii) discloses information relating to those proceedings in knowing violation of an
order of a Chamber;
3059
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 562 – 563.

504
(iii) without just excuse fails to comply with an order to attend before or produce
documents before a Chamber;
(iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise
interferes with, a witness who is giving, has given, or is about to give evidence in
proceedings before a Chamber, or a potential witness; or
(v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other
person, with the intention of preventing that other person from complying with an
obligation under an order of a Judge or Chamber.
(B) Any incitement or attempt to commit any of the acts punishable under
paragraph (A) is punishable as contempt of the Tribunal with the same penalties.
(C) When a Chamber has reason to believe that a person may be in contempt of
the Tribunal, it may:
(i) direct the Prosecutor to investigate the matter with a view to the preparation and
submission of an indictment for contempt;
(ii) where the Prosecutor, in the view of the Chamber, has a conflict of interest with
respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to
investigate the matter and report back to the Chamber as to whether there are
sufficient grounds for instigating contempt proceedings; or
(iii) initiate proceedings itself.
(D) If the Chamber considers that there are sufficient grounds to proceed against a
person for contempt, the Chamber may:
(i) in circumstances described in paragraph (C)(i), direct the Prosecutor to
prosecute the matter; or
(ii) in circumstances described in paragraph (C)(ii) or (iii), issue an order in lieu of
an indictment and either direct amicus curiae to prosecute the matter or prosecute
the matter itself.
(E) The rules of procedure and evidence in Parts Four to Eight shall apply mutatis
mutandis to proceedings under this Rule. The time limit for entering a plea
pursuant to Rule 62(A), disclosure pursuant to Rule 66(A)(i), or filing of
preliminary motions pursuant to Rule 72(A) shall each not exceed ten days.
(F) Any person indicted for or charged with contempt shall, if that person satisfies
the criteria for determination of indigence established by the Registrar, be assigned
counsel in accordance with Rule 45.
(G) The maximum penalty that may be imposed on a person found to be in
contempt of the Tribunal shall be a term of imprisonment not exceeding seven
years, or a fine not exceeding 100,000 Euros, or both.
(H) Payment of a fine shall be made to the Registrar to be held in a separate
account.
(I) If a counsel is found guilty of contempt of the Tribunal pursuant to this Rule, the
Chamber making such finding may also determine that counsel is no longer eligible
to represent a suspect or accused before the Tribunal or that such conduct amounts
to misconduct of counsel pursuant to Rule 46, or both.
(J) Any decision rendered by a Trial Chamber under this Rule shall be subject to
appeal. Notice of appeal shall be filed within fifteen days of filing of the impugned
decision. Where such decision is rendered orally, the notice shall be filed within
fifteen days of the oral decision, unless

505
(i) the party challenging the decision was not present or represented when the
decision was pronounced, in which case the time-limit shall run from the date on
which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which
case the time-limit shall run from filing of the written decision.
(K) In the case of decisions under this Rule by the Appeals Chamber sitting as a
Chamber of first instance, an appeal may be submitted in writing to the President
within fifteen days of the filing of the impugned decision. Such appeal shall be
decided by five different Judges as assigned by the President.
Where the impugned decision is rendered orally, the appeal shall be filed
within fifteen days of the oral decision, unless
(i) the party challenging the decision was not present or represented when the
decision was pronounced, in which case the time-limit shall run from the date on
which the challenging party is notified of the oral decision; or
(ii) the Appeals Chamber has indicated that a written decision will follow, in which
case the time-limit shall run from filing of the written decision.

adequate time and facilities

A Trial Chamber must afford adequate facilities to an accused charged with

contempt even if the principle of equality of arms is inapplicable since the Trial Chamber
is prosecuting the case itself. 3060

Trial Chamber erred in denying right to case manager without sufficient

explanation, but the accused was not prejudiced by this error.3061

amicus curiae

There is nothing which prohibits an amicus investigator from being appointed as

an amicus prosecutor in the same case. 3062

appeal

An accused cannot appeal a denial of his motion to initiate contempt proceedings

under this section.3063

A notice of appeal for a judgement of contempt must be filed within 15 days.

Appeal filed outside of this time period dismissed.3064

3060
Contempt Proceedings Against Vojislav Seselj, No. IT-03-67-R77.4-A, Judgement (30 May 2013) at
para. 37
3061
Contempt Proceedings Against Vojislav Seselj, No. IT-03-67-R77.4-A, Judgement (30 May 2013) at
paras. 42,45
3062
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Joint Decision on Defence Motion for
Reconsideration and Defence Motion for Voir Dire Hearing and Termination of Mandate of the Amicus
Prosecutor (29 January 2009) at para. 23
3063
Prosecutor v Seselj, No. IT-03-67-AR77.1, Decision on Vojislav Seselj’s Appeal Against the Trial
Chamber’s Decision of 19 July 2007 (14 December 2007)

506
 A decision dismissing a request to initiate contempt proceedings may be appealed
as of right under Rule 77(J).3065 Failure to appeal such a decision waives one’s right to
raise the issue in an appeal from the final judgement.3066

disclosure

Disclosure of the identity of a protected witness does not require a mens rea other
than knowledge of the protected status of the witness. Therefore, disclosure of the
identity of protected witnesses by the accused in his book constituted contempt.3067

The actus reus of unlawful disclosure is the physical act of disclosure of

information relating to proceedings before the Tribunal, where such disclosure breaches
an order of the Chamber.3068

Disclosure of confidential decision cannot be justified by the right to freedom of

expression. Restricting a person’s freedom of expression through issuance of a
confidential decision is proportional and necessary to protect the public order by
encouraging sovereign states to cooperate with the Tribunal. 3069

Disclosure is to be understood as the revelation of information that was previously

confidential to a third party or to the public. 3070

It is not necessary to prove actual interference with the Tribunal’s administration

of justice. A violation of court order as such constitutues an interference with the
administration of justice.3071

Disclosure of legal reasoning of the Tribunal is covered by the contempt

3072
statute.

3064
Prosecutor v Haxhiu, No. IT-04-84-R77.5-A, Decision on Admissibility of Notice of Appeal Against
Trial Judgement (4 September 2008)
3065
Prosecutor v Seselj, No. IT-03-67-AR77.2, Decision on the Prosecution’s Appeal Against the Trial
Chamber Decision of 10 June 2008 (25 July 2008) at para. 12
3066
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 56
3067
Prosecutor v Seselj, No. IT-03-67-R77.2, Judgement on Allegations of Contempt (24 July 2009)
3068
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt
(14 September 2009) at para. 20
3069
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at paras.
161-62
3070
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt
(14 September 2009) at para. 20
3071
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt
(14 September 2009) at para. 21; In the case against Vojislav Seselj, No.IT-03-67-R77.2-A, Judgement (19
May 2010) at para. 20
3072
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt
(14 September 2009) at paras. 34-35

507
 A confidential document remains confidential until a Chamber orders otherwise.
A person is not entitled to disclose confidential information simply because the
information may otherwise have been made public by others. 3073

Termination of the case does not operate to terminate the confidentiality of

decisions. 3074

Disclosure of a protected witness’ involvement with the case was sufficient to

violate the protective measures, even if it was not specified that the person was a
prosecution witness or implied that he was a witness for the defence. 3075

Special Chamber appointed to determine if former Prosecutor Carla Del Ponte

violated Rule 77 by disclosing defence witness list of Milosevic to USA. 3076

incitement

A person may be convicted of incitement to commit contempt. Any person who

knowingly and willfully encourages and/or persuades another person to commit an act
punishable under Rule 77 is guilty of incitement.3077

indictment

The orders that the accused are charged with violating must be specified in the
indictment for contempt.3078

The means by which the accused “otherwise interfered with the witness” must be
specified in the indictment.3079

initiating

A party has the right to request that the Trial Chamber use its discretionary power
to initiate contempt proceedings for alleged conduct that, if proven, would harm that
party’s right to a fair trial. 3080

3073
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para. 91;
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt (14
September 2009) at para. 46; In the case against Vojislav Seselj, No.IT-03-67-R77.2-A, Judgement (19
May 2010) at para. 29; Prosecutor v Seselj, No. IT-03-67=R77.3, Judgement (31 October 2011) at para.69
3074
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para. 113
3075
Prosecutor v Seselj, No. IT-03-67=R77.3, Judgement (31 October 2011) at para. 49
3076
Prosecutor v Karadzic, No. IT-95-5/18-T, Order Assigning Specially Appointed Chamber (1 October
2013)
3077
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 20
3078
Prosecutor v Marijacic & Rebic, No. IT-95-14-PT, Decision on Motions to Dismiss the Indictment and
Order on Motions to Amend the Indictment (6 September 2005)
3079
Prosecutor v Jovic, No. IT-95-14-R77, Decision to Deny the Accused Josip Jovic’s Preliminary Motion
to Dismiss the Indictment on the Grounds of Lack of Jurisdiction and Defects in the Form of the Indictment
(21 December 2005) at para. 26

508
 Trial Chamber applied wrong standard for initiating contempt proceedings.
Standard requires existence of a prima facie case, not proof beyond a reasonable
doubt.3081

Investigation by amicus curiae into allegations of improper prosecution tactics

with respect to witnesses ordered by the Trial Chamber. 3082

Trial Chamber refused to initiate contempt proceedings against UNDU

Commander who disclosed confidential information on Milosevic to US government
because information disclosed did not interfere with Tribunal’s administration of
justice. 3083

interfering with a witness

Rule 77 includes, but is not limited to, conduct that deters a witness from giving
full and truthful evidence.3084

Publishing the testimony of a protected witness could constitute interference with

that witness and fall within Rule 77.3085

Any conduct which is likely to expose witnesses to threats, intimidation or injury

by a third party constitutes “otherwise interfering with a witness” as provided by Rule
77(A)(iv). It is not necessary that the conduct actually produced this result.3086

The conduct punishable pursuant to Rule 77(A)(iv) includes threatening,

intimidating, causing injury, offering a bribe to or otherwise interfering with a
witness.3087

3080
Prosecutor v Seselj, No. IT-03-67-AR77.2, Decision on the Prosecution’s Appeal Against the Trial
Chamber Decision of 10 June 2008 (25 July 2008) at para. 13
3081
Prosecutor v Seselj, No. IT-03-67-AR77.2, Decision on the Prosecution’s Appeal Against the Trial
Chamber Decision of 10 June 2008 (25 July 2008) at para. 16
3082
Prosecutor v Seselj, No. IT-03-67-T, Decision in Reconsideration of the Decision of 15 May 2007 on
Vojislav Seselj’s Motion for Contempt Against Carla del Ponte, Hildegard Uertz-Retzlaff, and Daniel
Saxon (29 June 2010)
3083
Prosecutor v Milosevic, No. IT-02-54-Misc.5 & Misc.6, Decision on the Initiation of Contempt
Investigations (18 July 2011) at para. 12
3084
Prosecutor v Jovic, No. IT-95-14-R77, Decision to Deny the Accused Josip Jovic’s Preliminary Motion
to Dismiss the Indictment on the Grounds of Lack of Jurisdiction and Defects in the Form of the Indictment
(21 December 2005) at para. 25
3085
Prosecutor v Jovic, No. IT-95-14-R77, Decision to Deny the Accused Josip Jovic’s Preliminary Motion
to Dismiss the Indictment on the Grounds of Lack of Jurisdiction and Defects in the Form of the Indictment
(21 December 2005) at para. 25
3086
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 64
3087
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 18

509
 A threat is defined as a communicated attempt to inflict harm or damage of some
kind to a witness and/or to the witness’ property or to a third person and/or his property
so as to influence or overcome the will of the witness to whom the threat is addressed. 3088

Intimidation consists of acts or culpable omissions likely to constitute direct,

indirect, or potential threats to a witness, which may interfere with or influence the
witness’ testimony. 3089

Otherwise interfering with a witness is an open ended provision which

encompasses acts or omissions, other than threatening, intimidating, causing injury, or
offering a bribe, capable of and likely to deter a witness from giving full and truthful
testimony or in any other way influence the nature of the witness’ evidence. 3090

It is immaterial whether the witness actually felt threatened or intimidated, or was

deterred or influenced. 3091

Mens rea for a violation of Rule 77(A)(iv) requires proof that the accused acted
willingly and with the knowledge that his conduct was likely to deter or influence the
witness.3092

It must be shown that the conduct was intended to interfere with witnesses. 3093

The absence of motive cannot disprove facts establish through reliable evidence.
The absence of motive may, however, call for further examination of the convincing
potential of the evidence before establishing that the crime was committed and the
accused committed it.3094

journalists

A journalist has no right to violate the Trial Chambers’ orders. 3095

3088
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 18
3089
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 18
3090
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 18
3091
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 18
3092
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 19
3093
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 66
3094
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 59
3095
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 81

510
 jurisdiction

The Tribunal possesses an inherent jurisdiction, deriving from its judicial

function, to ensure that its exercise of the jurisdiction expressly given to it by the Statute
is not frustrated and that its basic judicial functions are safeguarded. 3096

Residual mechanism, and not ICTY, has jurisdiction over motions for contempt
proceedings brought after 1 July 2013. 3097

Contempt case returned to President for referral to MICT where accused had not
been apprehended by the time of ICTY closure.3098

medical care

No reasons to believe that UN Detention Unit medical officer committed

contempt of court by recommending against medical visits prior to delivery of
judgement.3099

mens rea

The mens rea element of contempt, when charged under Rule 77(A)(ii), is the
knowledge of the alleged contemnor of the fact that his disclosure of particular
information is done in violation of an order of a Chamber. 3100

Journalists had requisite mens rea when they disclosed the identity of a witness
who testified in closed session as they knew that the information was given by a witness
with protective measures in place. 3101

Actual knowledge may be inferred from a variety of circumstances. In addition,

wilful blindness to the existence of an order is sufficient. However, to demonstrate wilful
blindness it must first be shown that the alleged contemnor had a suspicion or realisation
of the order’s existence.3102

3096
Prosecutor v Marijacic & Rebic, No. IT-95-14-A, Judgement (27 September 2006) at para. 23;
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007) at
para. 34; In the case against Vojislav Seselj, No.IT-03-67-R77.2-A, Judgement (19 May 2010) at para. 17
3097
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Appointment of Amicus
Curiae Prosecutor to Investigate Officials of the United States of America (17 January 2014)
3098
In the case against Jojic & Radeta, No. IT-03-67-R77.5, Decision Returning Case to President (2
November 2017) at paras. 10-11
3099
Prosecutor v Mladic, No. IT-09-92-T, Decision on Motion to Reconsider Decision on Urgent Defence
Motions of 10 November 2017 or…Motion for Certification to Appeal (21 November 2017) at para. 13
3100
Prosecutor v Marijacic & Rebic, No. IT-95-14-T, Judgement (10 March 2006) at para. 18; Prosecutor v
Haxhiu, No. IT-04-84-R77.5, Judgement on Allegations of Contempt (24 July 2008) at para. 11; In the Case
Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt (14 September
2009) at para. 22; In the case against Vojislav Seselj, No.IT-03-67-R77.2-A, Judgement (19 May 2010) at
para. 26
3101
Prosecutor v Marijacic & Rebic, No. IT-95-14-A, Judgement (27 September 2006) at para. 43
3102
Prosecutor v Marijacic & Rebic, No. IT-95-14-T, Judgement (10 March 2006) at para. 18

511
 Mere negligence in failing to ascertain whether the witness was subject to
protective measures does not amount to contempt. 3103

Knowing and wilful interference with the administration of justice is a

consequence of the disclosure of information relating to Tribunal proceedings in knowing
violation of an order of a Chamber. There is therefore no additional requirement for the
Prosecution to prove that such interference actually occurred. 3104

The knowledge requirement can be fulfilled by proof of actual knowledge,

reckless indifference, or willful blindness. 3105

Knowledge of the legality of the Trial Chamber’s order is not an element of the
mens rea of contempt. An accused may not raise a mistake of law as a defence to his
knowing breach of an order of the International Tribunal on the ground that the mistake
was founded on legal advice. 3106

Intent to interfere with the administration of justice is automatic when there is a

knowing and intentional violation of an order of the Chamber.3107

There was no reason to believe that contempt may have been committed by
members of the Prosecution in connection with the multiple disclosure violations in this
case. 3108

A person’s mistake of law is not an excuse for violation of it.3109

motions

Rule 72(D) is inapplicable to contempt proceedings. Therefore, the accused has

no right to make preliminary motions on matters of jurisdiction before the hearing on
contempt.3110

3103
Prosecutor v Haxhiu, No. IT-04-84-R77.5, Judgement on Allegations of Contempt (24 July 2008) at
para. 11; In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of
Contempt (14 September 2009) at para. 22
3104
Prosecutor v Marijacic & Rebic, No. IT-95-14-T, Judgement (10 March 2006) at para. 19; Prosecutor v
Haxhiu, No. IT-04-84-R77.5, Judgement on Allegations of Contempt (24 July 2008) at para. 10
3105
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 37; In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of
Contempt (14 September 2009) at para.22
3106
Prosecutor v Jovic, No. IT-95-14-R77-A, Judgement (15 March 2007) at para. 27
3107
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para.
128; In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt
(14 September 2009) at para. 52
3108
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Invitation from the Single Judge of the
Mechanism for International Tribunals (6 August 2014) at p. 3
3109
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para.
147; In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt
(14 September 2009) at para. 65

512
 parties

Neither the prosecution nor the accused in the underlying case is a party to the
proceedings against a witness for contempt by failing to appear pursuant to a subpoena
and neither has a right to be present at the hearing on the contempt. 3111

refusal to testify

The elements of contempt for refusing to testify are knowing and willful
interference with the Tribunal’s administration of justice by contumaciously refusing or
failing to answer a question while being a witness before the Tribunal. 3112

Rule 77(A)(i) imposes criminal liability where a witness knowingly and willfully
interferes with the Chamber’s administration of justice by persistently refusing or failing
to answer a question without reasonable excuse while being a witness before the
Chamber.3113

Rule 77(A) is violated not when a witness refuses to answer a question, but when
he or she maintains the refusal in the face of the Chamber’s request to answer the
question. 3114

Witnesses are under a duty to testify. This ensures that evidence required for the
proper administration of justice is available; therefore the duty is subject to very few
exceptions.3115

Protective measures are the appropriate remedy for security concerns, not a
refusal to testify. 3116

Unwillingness or fear of implicating others is not a valid excuse not to testify. 3117
3110
Prosecutor v Milosevic, No. IT-01-54-A, Decision on Interlocutory Appeal of Kosta Bulatovic
Contempt Proceedings (29 August 2005) at para. 35; Prosecutor v Marijacic & Rebic, No. IT-95-14-PT,
Decision on Motions to Dismiss the Indictment and Order on Motions to Amend the Indictment (6
September 2005); Prosecutor v Jovic, No. IT-95-14-R77, Decision to Deny the Accused Josip Jovic’s
Preliminary Motion to Dismiss the Indictment on the Grounds of Lack of Jurisdiction and Defects in the
Form of the Indictment (21 December 2005) at para. 10; Prosecutor v Krizic, No. IT-95-14R77.4, Decision
on Interlocutory Appeal Challenging the Jurisdiction of the Tribunal (2 March 2006)
3111
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Accused’s Motion to be Present During the
Hearing Held in the Matter of Ljubisa Petkovic (27 August 2008)
3112
Contempt Proceedings Against Dragan Jokic, No. IT-05-88-R77.1, Judgement on Allegations of
Contempt (27 March 2009) at para. 11
3113
Contempt Proceedings Against Dragan Jokic, No. IT-05-88-R77.1, Judgement on Allegations of
Contempt (27 March 2009) at para. 12
3114
Contempt proceedings against Dragan Jokic, No. IT-05-88-R77.1-A, Judgement on Allegations of
Contempt (25 June 2009) at para. 30
3115
Contempt Proceedings Against Dragan Jokic, No. IT-05-88-R77.1, Judgement on Allegations of
Contempt (27 March 2009) at para. 25
3116
Contempt Proceedings Against Dragan Jokic, No. IT-05-88-R77.1, Judgement on Allegations of
Contempt (27 March 2009) at para. 25

513
 A witness is not privileged to refuse to answer questions because he believed the
Trial Chamber was in error to proceed in the absence of the accused. The witness could
not rely on a right that pertained to the accused in refusing to answer questions. 3118

The Trial Chamber whose order was disobeyed by the witness was not
disqualified from adjudicating the contempt.3119

Evidence demonstrated that refusal to answer questions was willful. A witness

cannot set his own conditions for answering questions in violation of a clear order.3120

Health reasons did not justify a refusal to testify. 3121

Witness who suffered from PTSD had a reasonable excuse to refuse to testify and
therefore was found not guilty of contempt.3122

The mens rea of refusing to testify is knowingly and willfully interfering with the
Tribunal’s administration of justice by refusal to testify. 3123

scope

The power of the Tribunal to prosecute individuals for interfering with the
administration of justice is not limited to individuals who are parties to the proceedings ,
nor any other category of individuals. Rather, the Tribunal has the power to prosecute
any person who knowingly and willfully interferes with the administration of justice. 3124

Disclosure is revelation of information which was previously confidential to a

third party or to the public. 3125

Aiding and abetting contempt is punishable within Rule 77. 3126

3117
Contempt Proceedings Against Dragan Jokic, No. IT-05-88-R77.1, Judgement on Allegations of
Contempt (27 March 2009) at para. 30
3118
Prosecutor v Milosevic, No. IT-01-54-A, Decision on Interlocutory Appeal of Kosta Bulatovic
Contempt Proceedings (29 August 2005) at para. 11
3119
Prosecutor v Milosevic, No. IT-01-54-A, Decision on Interlocutory Appeal of Kosta Bulatovic
Contempt Proceedings (29 August 2005) at para. 22
3120
Prosecutor v Milosevic, No. IT-01-54-A, Decision on Interlocutory Appeal of Kosta Bulatovic
Contempt Proceedings (29 August 2005) at para. 41
3121
In the Contempt Case of Milan Tupajic, No. IT-95-5/18-R77.2, Judgement on Allegations of Contempt
(24 February 2012) at para. 21
3122
In the Contempt Case of Radislav Krstic, No. IT-95-5/18-R77.3, Judgement (18 July 2013) at para. 30
3123
Contempt proceedings against Dragan Jokic, No. IT-05-88-R77.1-A, Judgement on Allegations of
Contempt (25 June 2009) at para. 31
3124
Prosecutor v Marijacic & Rebic, No. IT-95-14-PT, Decision on Motions to Dismiss the Indictment due
to Lack of Jurisdiction (7 October 2005) at para. 18
3125
Prosecutor v Haxhiu, No. IT-04-84-R77.5, Judgement on Allegations of Contempt (24 July 2008) at
para. 10
3126
Prosecutor v Marijacic & Rebic, No. IT-95-14-R77.2, Decision on Prosecution’s Motions to Amend the
Indictment (7 October 2005) at para. 39

514
 The actus reus of contempt through disclosure of confidential information is the
physical act of disclosure of information relating to proceedings before the Tribunal,
when such disclosure would breach an order of a Chamber. 3127

Any defiance of an order of the Tribunal interferes with the administration of

3128
justice.

Publication of the identity of a protected witness, with knowledge of the existence

of those measures and an intention to frustrate their effect, constitutes contempt under
Rule 77(A).3129

In order for a protective order to be breached it must (1) apply to an accused; (2)
protect the specific information disclosed by an accused; and (3) be in effect at the time
of the disclosure.3130

The fact that the aforementioned information today is no longer confidential does
not present an obstacle to a conviction for having published the information at a time
when it was still under protection. 3131

A person not a party to proceedings of the Tribunal may be subject to its

jurisdiction. When a Chamber orders that testimony be given in closed session, rendering
everything that transpires confidential, such an order applies to all persons coming into
possession of the protected information.3132

The order for closed session made the identity of the witness confidential.
Journalists properly punished for contempt for revealing identity of witness. 3133

Whether or not a witness came to harm after confidential information about his
identity and testimony was revealed is not relevant to the question of whether the party
revealing that information should be found responsible for contempt, although it may
have some relevance to the matter of penalty. 3134

3127
Prosecutor v Marijacic & Rebic, No. IT-95-14-T, Judgement (10 March 2006) at para. 17; Prosecutor v
Haxhiu, No. IT-04-84-R77.5, Judgement on Allegations of Contempt (24 July 2008) at para. 10
3128
Prosecutor v Marijacic & Rebic, No. IT-95-14-A, Judgement (27 September 2006) at para. 44; In the
Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para. 107
3129
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 15
3130
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 36
3131
Prosecutor v Marijacic & Rebic, No. IT-95-14-A, Judgement (27 September 2006) at para. 45
3132
Prosecutor v Marijacic & Rebic, No. IT-95-14-A, Judgement (27 September 2006) at para. 24
3133
Prosecutor v Marijacic & Rebic, No. IT-95-14-A, Judgement (27 September 2006) at para. 42
3134
Prosecutor v Marijacic & Rebic, No. IT-95-14-T, Judgement (10 March 2006) at para. 44

515
 Closed session orders apply to all persons coming into possession of the
information. 3135

Admission of document in evidence as an exhibit without a specific reference to it

being admitted under seal did not render the document a public document and it remained
subject to protective orders.3136

Editor knowingly and willfully published confidential witness list and did not
labor under a misconception that the witness list had been made public by its admission
as an exhibit without a specific order that it be admitted under seal. 3137

Individuals, including journalists, cannot decide to publish information covered

by protective orders on the basis of their own assessment of the public interest in that
information. 3138

A confidentiality order respecting a Chamber decision necessarily encompasses

information concerning the purported effect of that decision and the confidential
submissions of the parties regarding the application for protective measures. 3139

Although the existence of the confidential decision that the accused was convicted
of disclosing had already been made public, the accused revealed the legal reasoning of
that decision had not been made public, and that is what the accused was convicted of
revealing.3140

The fact that the information disclosed by the accused was already in the public
domain is not a defence to violation of a court order of non-disclosure..3141

A violation of a court order as such constitutes an interference with the

International Tribunal’s administration of justice. Any defiance of an order of a Chamber
per se interferes with the administration of justice for the purposes of a conviction for
contempt. No additional proof of harm to the International Tribunal’s administration of
justice is required. 3142

3135
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 44; Prosecutor v Jovic, No. IT-95-14-R77-A, Judgement (15 March 2007) at para. 22
3136
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 47
3137
Prosecutor v Margetic, No. IT-95-14-R77.6, Judgement on Allegations of Contempt (7 February 2007)
at para. 61
3138
Prosecutor v Haxhiu, No. IT-04-84-R77.5, Judgement on Allegations of Contempt (24 July 2008) at
para. 28
3139
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para. 51
3140
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Judgement (19 July 2011) at para. 68
3141
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Joint Decision on Defence Motion for
Reconsideration and Defence Motion for Voir Dire Hearing and Termination of Mandate of the Amicus
Prosecutor (29 January 2009) at para. 17
3142
Prosecutor v Jovic, No. IT-95-14-R77-A, Judgement (15 March 2007) at para. 30

516
 Refusal to remove confidential information from website after being ordered to do
so, where accused had power to determine what was on website, constituted contempt of
the Tribunal under Rule 77(A). 3143

The fact that some portions of the Witness’s written statement or closed session
testimony may have been disclosed by another third party does not mean that this
information was no longer protected, that the court order had been de facto lifted or that
its violation would not interfere with the Tribunal’s administration of justice. 3144

sentence

Failure of defence counsel to make presentation as to sentencing during the trial

waived arguments on appeal as to sentence, but Appeals Chamber would allow payment
of fine in installments so as not to punish accused for the inadvertence of their
counsel. 3145

Four month consecutive sentence imposed for convicted person’s refusal to

3146
testify.

Two month sentence for refusal to testify. 3147

Two year sentence for repeated refusal to remove confidential material from
website.3148

subpoenas

Accused who was served with a subpoena and failed to appear was guilty of
contempt. His health issues, need for waiver of State secrets requirement, and need for
safe conduct order, did not constitute good cause for the accused’s failure to appear. 3149

Rule 77 bis—payment of fines

(A) In imposing a fine under Rule 77 or Rule 91, a Chamber shall specify the time
for its payment.
(B) Where a fine imposed under Rule 77 or Rule 91 is not paid within the time
specified, the Chamber imposing the fine may issue an order requiring the person
on whom the fine is imposed to appear before, or to respond in writing to, the

3143
In the matter of Vojislav Seselj, No. IT-03-67-R77.4, Judgement (28 June 2012) at para. 46
3144
Prosecutor v Jovic, No. IT-95-14-R77-A, Judgement (15 March 2007) at para. 30
3145
Prosecutor v Marijacic & Rebic, No. IT-95-14-A, Judgement (27 September 2006) at para. 55
3146
Contempt Proceedings Against Dragan Jokic, No. IT-05-88-R77.1, Judgement on Allegations of
Contempt (27 March 2009) at para. 42
3147
In the Contempt Case of Milan Tupajic, No. IT-95-5/18-R77.2, Judgement on Allegations of Contempt
(24 February 2012) at para. 35
3148
In the matter of Vojislav Seselj, No. IT-03-67-R77.4, Judgement (28 June 2012) at paras. 57-58
3149
Prosecutor v Pecanas, No. IT-05-88/2-R77.2, Judgement on Allegations of Contempt (9 December
2011)

517
Tribunal to explain why the fine has not been paid.
(C) After affording the person on whom the fine is imposed an opportunity to be
heard, the Chamber may make a decision that appropriate measures be taken,
including:
(i) extending the time for payment of the fine;
(ii) requiring the payment of the fine to be made in instalments;
(iii) in consultation with the Registrar, requiring that the moneys owed be deducted
from any outstanding fees owing to the person by the Tribunal where the person is a
counsel retained by the Tribunal pursuant to the Directive on the Assignment of
Defence Counsel;
(iv) converting the whole or part of the fine to a term of imprisonment not exceeding
twelve months.
(D) In addition to a decision under paragraph (C), the Chamber may find the
person in contempt of the Tribunal and impose a new penalty applying Rule 77 (G),
if that person was able to pay the fine within the specified time and has wilfully
failed to do so. This penalty for contempt of the Tribunal shall be additional to the
original fine imposed.
(E) The Chamber may, if necessary, issue an arrest warrant to secure the person’s
presence where he or she fails to appear before or respond in writing pursuant to an
order under paragraph (B). A State or authority to whom such a warrant is
addressed, in accordance with Article 29 of the Statute, shall act promptly and with
all due diligence to ensure proper and effective execution thereof. Where an arrest
warrant is issued under this Sub-rule, the provisions of Rules 45, 57, 58, 59, 59 bis,
and 60 shall apply mutatis mutandis. Following the transfer of the person concerned
to the Tribunal, the provisions of Rules 64, 65 and 99 shall apply mutatis mutandis.
(F) Where under this Rule a penalty of imprisonment is imposed, or a fine is
converted to a term of imprisonment, the provisions of Rules 102, 103 and 104 and
Part Nine shall apply mutatis mutandis.
(G) Any finding of contempt or penalty imposed under this Rule shall be subject to
appeal as allowed for in Rule 77 (J).

Where contempt fine was not paid, Appeals Chamber converted sentence to 7
days imprisonment and issued warrant for arrest of contemnor.3150

Rule 78—open sessions

All proceedings before a Trial Chamber, other than deliberations of the Chamber,
shall be held in public, unless otherwise provided.

Trial Chamber committed discernable error by holding hearing without prior

notice to the public. 3151

3150
In the Case Against Florence Hartmann, No. IT-02-54-R77.5-A, Second Order on Payment of Fine
Pursuant to Rule 77 bis and Warrant for Arrest (16 November 2011)
3151
Contempt proceedings against Dragan Jokic, No. IT-05-88-R77.1-A, Judgement on Allegations of
Contempt (25 June 2009) at para. 26

518
 Documents should be admitttted on a confidential basis only in exceptional
circumstances, when they contain information which, if disclosed, might cause prejudice,
concerns about safety, or serious embarrassment to a party or witness. 3152

Rule 79—closed sessions

(A) The Trial Chamber may order that the press and the public be excluded from
all or part of the proceedings for reasons of:
(i) public order or morality;
(ii) safety, security or non-disclosure of the identity of a victim or witness as
provided in Rule 75; or
(iii) the protection of the interests of justice.
(B) The Trial Chamber shall make public the reasons for its order.

closed sessions

Closed session not justified in order to allow the witness to make a full and honest
expression of his views. Threat to the security of the witness required. 3153

The trial should not only be fair but be seen to be fair. As such, it is of crucial
importance that the proceedings are open to the public, and the measure of closed session
is used exceptionally. 3154

confidential exhibits

Where the content of a written witness statement is largely the same as the content
of oral testimony given in closed session, that content must also be considered protected
by the terms of the closed session order, or the protection granted would be
ineffectual.3155

Exhibits admitted during the trial cannot be disclosed to the public until the
judgement. However, parties and national authorities can obtain access by applying to
the Trial Chamber.3156

confidential filings

Decisions containing mere references to confidential decisions are not required to

be filed confidentially. 3157

3152
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the Accused’s Motion to Unsel ICMP Exhibits
(25 April 2012) at para. 6
3153
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on Request for Closed Session for Yasushi Akashi
(17 April 2013) at para. 7
3154
Decision on Prosecution’s Motion for Protective Measures for Witness KDZ487 (24 November 2009)
at para. 18
3155
Prosecutor v Marijacic & Rebic, No. IT-95-14-T, Judgement (10 March 2006) at para. 27
3156
Prosecutor v Seselj, No. IT-03-67-T, Decision Regarding Public Access to Trial Exhibits (18
September 2008)

519
 The filing of a confidential judgement, along with a public redacted version, does
not violate the right to a public judgement.3158

Barring obscene or offensive language, an accused is entitled to challenge the

credibility of prosecution witnesses. Pleading which related to alleged plagiarism of
report by prosecution expert would not be reclassified as confidential. 3159

DNA coded genetic information would be redacted, but names of victims

included in list of missing persons whose remains were recovered would be public except
for those victims whose families had not yet been notified. 3160

Defence filing concerning difficulties in preparing final brief ordered filed

confidentially as contents would place Tribunal’s IT system at risk.3161

Parties can refer publicly to confidential documents in a way that does not reveal
the protected information contained therein. 3162

ex parte filings

Filings may be made ex parte in a case where they require a higher degree of
confidentiality because of the security interests of a State , other public interests, or
privacy interests of a person or an institution. 3163

The fundamental principle in every case is that ex parte proceedings should be

entertained only where it is thought to be necessary in the interests of justice to do so—
that is justice to everyone concerned—where disclosure would be likely to prejudice the
party making the application or some other person.3164

3157
In the Case Against Florence Hartmann, No. IT-02-54-R77.5, Judgement on Allegations of Contempt
(14 September 2009) at para. 38
3158
In the case against Vojislav Seselj, No.IT-03-67-R77.2-A, Judgement (19 May 2010) at para. 32
3159
Prosecutor v Karadzic, No.IT-95-5/18-T, Decision on Accused’s Motion to Compel Inspection of
Witness Material (Christian Nielsen)…(7 July 2011) at para. 7
3160
Prosecutor v Karadzic, No.IT-95-5/18-T, Decision on Prosecution’s Motion for Partial
Reconsideration or Clarification of the Chamber’s Decision on the Accused’s Motion to Unseal ICMP
Exhibits (5 September 2012) at paras. 19, 22-23
3161
Prosecutor v Mladic, No. IT-09-92-T, Fourth Defence Case Omnibus Decision (2 August 2016) at
para. 4
3162
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion to Strike Public Redacted Version
of Prosecution Final Brief (29 June 2017) at para. 6
3163
Prosecutor v. Blaskic, No.:IT-95-14-R, Decision on Defence’s Request for Relief with Regard to Ex
Parte Filings (20 November 2006) at p. 3
3164
Prosecutor v. Blaskic, No.:IT-95-14-R, Decision on Defence’s Request for Relief with Regard to Ex
Parte Filings (20 November 2006) at p. 4

520
 Ex parte materials, filed by prosecution in support of motion to withdraw right of
self-representation would not be disclosed to the accused due to concerns of victim
safety. 3165

Ex parte filing by the prosecution was justified by fact that prosecution motion
referred to confidential ex parte decision in another case, and did not warrant review by
the Chamber of all ex parte filings to determine if disclosure to the defence could be
made. 3166

Search warrants issued in the accused’s case prior to his apprehension ordered
disclosed to the accused.3167

reference to closed session testimony in judgements

In referring to closed session testimony in its final judgement, a Trial Chamber

does not modify the protective measures awarded to a witness. Rather, having conducted
a thorough analysis of the said evidence, the Chamber may consider it appropriate and
consistent with the closed session awarded to the witness to refer to certain parts of the
said evidence in its public judgement without compromising the said protective
measure.3168

unsealing records

Original warrant and order of surrender unsealed where defence sought to

examine the basis for his arrest.3169

The Trial Chamber did not err in refusing to allow the accused to examine the
affidavit in support of the search warrant from which seized items were introduced at his
trial. It was justified in concluding that providing access to the accused would jeopardize
“ongoing investigations and trials.” 3170

The accused has a right to access to all inter parties filings in his own case,
including confidential filings made before he was arrested.3171

3165
Prosecutor v Seselj, No. IT-03-67-T, Order on the Accused’s Oral Motion to Obtain the Confidential
and Ex Parte Version of the Motion to Impose Counsel (27 August 2008)
3166
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Review and
Disclosure of Ex Parte Filings (14 September 2011) at paras. 5-6
3167
Prosecutor v Karadzic, No. IT-95-5/18-I, Decision on the Accused’s Requests for Copies of Search
Warrants (29 August 2008)
3168
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Variation of Protective
Measures for Witnesses who Testified in Closed Session (16 March 2015) at para. 12
3169
Prosecutor v Beqaj, No. IT-03-66-R77, Decision on Defence’s Motion to Lift Confidentiality of
Warrant of Arrest and Order for Surrender (11 March 2005)
3170
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 233
3171
Bralo v Prosecutor, No. IT-95-17-A, Decision on Motion of Miroslav Bralo for Access to Certified
Trial Record (2 May 2006) at p. 4

521
Rule 80—control of proceedings

(A) The Trial Chamber may exclude a person from the courtroom in order to
protect the right of the accused to a fair and public trial, or to maintain the dignity
and decorum of the proceedings.
(B) The Trial Chamber may order the removal of an accused from the courtroom
and continue the proceedings in the absence of the accused if the accused has
persisted in disruptive conduct following a warning that such conduct may warrant
the removal of the accused from the courtroom.

Rule 81—records of proceedings and evidence

(A) The Registrar shall cause to be made and preserve a full and accurate record of
all proceedings, including audio recordings, transcripts and, when deemed
necessary by the Trial Chamber, video recordings.
(B) The Trial Chamber, after giving due consideration to any matters relating to
witness protection, may order the disclosure of all or part of the record of closed
proceedings when the reasons for ordering its non-disclosure no longer exist.
(C) The Registrar shall retain and preserve all physical evidence offered during the
proceedings subject to any Practice Direction or any order which a Chamber may at
any time make with respect to the control or disposition of physical evidence offered
during proceedings before that Chamber.
(D) Photography, video-recording or audio-recording of the trial, otherwise than
by the Registrar, may be authorised at the discretion of the Trial Chamber.

Motion for revision of trial transcripts denied where accused did not show that
interpretation errors were so prevalent as to affect his right to a fair trial. 3172

Rule 81 bis—proceedings by video conference link

At the request of a party or proprio motu, a Judge or a Chamber may order, if

consistent with the interests of justice, that proceedings be conducted by way of
video-conference link.

cross examination

Request for defence counsel to cross examine witness from the location of the
video-conference denied. The Chamber would not be able to satisfactorily supervise the
interaction between those in the physical presence of the witness. 3173

3172
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on Motion for Revision of Trial Transcripts (3 July
2013) at para. 16
3173
Prosecutor v Gotovina et al, No. IT-06-90-T, Reasons for Decision on Prosecution’s Renewed Motion
for Evidence of Witness 82 to be Presented via Video-Conference Link from Zagreb…(26 February 2009) at
para. 26

522
 denied

Video link denied without prejudice where motion failed to explain why witness
who had testified live in previous cases could not testify in person in this case despite
physical ailments.3174

Video link denied where medical evidence consisted of conclusory statement of

physician. 3175

Video link denied for defence witness who was unwilling to travel to The Hague
because of his busy schedule. The witness should be subpoenaed if he declined to appear
voluntarily. 3176

Video link denied for defence witness who was unwilling to travel to The Hague
because he was a university professor and his travel would interfere with his teaching
schedule.3177

A mere expression of a fear of flying, without supporting medical or psychiatric

evidence is not sufficient to meet the requirement that a witness is unable, or for good
reason unwilling, to come to the Tribunal. 3178

Witness’ fear of arrest on sealed indictment while in transit to The Hague is not
sufficient to constitute a good reason for unwillingness to travel where a safe conduct
order would suffice to prevent such an arrest.3179

granted

Fact that witness was a nursing mother justified testimony by video link. 3180

Video link authorized for witness who needed to care for ailing spouse. 3181
3174
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Testimony to be
Heard via Video-Conference Link (17 June 2010) at para. 11
3175
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Video Link Testimony
of Witness Cedomir Kljajic (17 April 2013) at para. 9; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision
on the Accused’s Motion for Video Link Testimony of Witness Nikola Poplasen (13 August 2013) at para.
11; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Video Link Testimony
of Witness Mile Dmicic (27 August 2013) at paras. 7-8
3176
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Reasons for Decision on Urgent Stanisic Defence
Motion for Video Conference Link for Testimony of Witness DST-060 (15 November 2011) at paras. 7-8
3177
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Motion for Testimony of DGH-042 to be
Heard Via Video-Conference Link (10 October 2014) at para. 6
3178
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Motion for Testimony to be Heard Via
Video-Conference Link (DGH-010) (19 September 2014) at para. 14
3179
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Motion for Testimony to be Heard Via
Video-Conference Link (DGH-010) (19 September 2014) at para. 15
3180
Prosecutor v Oric, No. 03-68-T, Decision on Prosecution Motion for the Testimony of a Witness Via
Video-Conference Link (16 March 2005)
3181
Prosecutor v Mladic, No. IT-09-92-T, Reasons for the Decision on Urgent Prosecution Motion for
Testimony of Witness RM-015 to be heard via Video-Conference Link (14 February 2013)

523
 Witness who could not travel to The Hague due to health problems allowed to
testify via video link. 3182

It was not necessary to obtain detailed medical evidence when a witness

represented he was too unwell to travel to The Hague.3183

Video link granted for witnesses were was unwilling to travel to The Hague, even
where there were no good reasons for such unwillingness. 3184

Video link of witnesses whose statements were admitted pursuant to Rule 92 bis
but who were ordered to appear for cross-examination granted where the testimony
would take less than one hour each and it was not necessary for the witnesses to travel to
The Hague for such brief testimony. 3185

prejudice

The use of video link is an extension of the courtroom and does not prejudice the
accused. 3186

Self-represented accused would not be prejudiced by inability to interview

witness proposed for video link as such an interview can be conducted by his
associates.3187

Self-represented accused suffers no greater prejudice that represented accused by

evidence presented via video-conference.3188

3182
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Sainovic Motion for Video-Conference
Link for Dusan Matkovic (23 August 2007); Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on
Motion for Videolink (Witness 30) (14 September 2007); Prosecutor v Gotovina et al, No. IT-06-90-T,
Reasons for Decision on Prosecution’s Renewed Motion for Evidence of Witness 82 to be Presented via
Video-Conference Link from Zagreb…(26 February 2009) at para. 21; Prosecutor v Karadzic, No. IT-95-
5/18-T, Decision on Prosecution’s Motion for Testimony to be Heard via Video-Conference Link (22 July
2010); Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Video-Conference Link and Protective
Measures for Witness KDZ595 (18 August 2010)
3183
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Popovic’s Motion Requesting Video
Conference Link Testimony of Two Witnesses (28 May 2008) at para. 13
3184
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Popovic’s Motion Requesting Video
Conference Link Testimony of Two Witnesses (28 May 2008) at para. 11; Prosecutor v Mladic, No. 09-92-
T, Decision on Prosecution Motion for Testimony of Witness RM-088 to be heard via Video-Conference
Link (1 November 2012); Prosecutor v Mladic, No. 09-92-T, Reasons for the Decision on Prosecution
Motion for Testimony of Witness RM-284 via Video-Conference Link (10 May 2013) at para. 10
3185
Prosecutor v Gotovina et al, No. IT-06-90-T, Reasons for Decision Granting Prosecution’s Motion to
Cross-Examine Four Proposed Rule 92 bis Witnesses and Reasons for Decision to Hear the Evidence of
those Witnesses via Video Conference Link (3 November 2009)
3186
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Motion for Testimony of Witness RM-
145 to be Heard via Video-Conferfence Link (7 September 2012) at para. 6
3187
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Testimony to be
Heard via Video-Conference Link (17 June 2010) at para. 10

524
 standard

Video link should be granted upon a showing that (1) the evidence is sufficiently
important to make it unfair to proceed without it; and (2) the witness is unable or
unwilling to travel to The Hague to give live testimony. 3189

When considering video link testimony, the Trial Chamber evaluates (1) whether
the witness is unable, or has good reasons to be unwilling, to come to the Tribunal; (2)
whether the testimony of the witness is sufficiently important to make it unfair to the
requesting party to proceed without it; and (3) whether the accused is prejudiced in his
right to confront the witness.3190

Factors weighed in connection with whether to authorise testimony by video-link

included the importance of the witness’s testimony, the ability for the parties to cross-
examine and directly confront the witness, the reasons for the witness’s unwillingness to
testify in The Hague, the parties’ ability to prepare for the examination of the witness, the
Trial Chamber’s ability to assess the witness’s demeanour, the impact on trial expediency
due to possible technical delays, the witness’s perception of the seriousness of the
proceedings, and the parties’ ability to present the witness’s evidence. 3191

weight

Testimony by video-link should be given the same probative value as that given
in the courtroom. 3192

Rule 82—joint and separate trials

(A) In joint trials, each accused shall be accorded the same rights as if such accused
were being tried separately.
(B) The Trial Chamber may order that persons accused jointly under Rule 48 be
tried separately if it considers it necessary in order to avoid a conflict of
interests that might cause serious prejudice to an accused, or to protect the
interests of justice.

3188
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Testimony to be
Heard via Video-Conference Link (22 July 2010) at para. 11
3189
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Popovic’s Motion Requesting Video
Conference Link Testimony of Two Witnesses (28 May 2008) at para. 8
3190
Prosecutor v Gotovina et al, No. IT-06-90-T, Reasons for Decision on Prosecution’s Renewed Motion
for Evidence of Witness 82 to be Presented via Video-Conference Link from Zagreb…(26 February 2009) at
para. 17
3191
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5254
3192
Prosecutor v Gotovina et al, No. IT-06-90-T, Reasons for Decision on Prosecution’s Renewed Motion
for Evidence of Witness 82 to be Presented via Video-Conference Link from Zagreb…(26 February 2009) at
para. 18

525
 The possibility of mutually antagonistic defences does not constitute a conflict of
interests capable of causing serious prejudice such as to warrant severance. 3193

Severance not warranted where each accused was allocated one-sixth of the time
taken in direct examination for his cross examination, subject to adjustment by the Trial
Chamber.3194

So long as the accused has the opportunity of cross examining witnesses called by
his or her co-accused during his or her defence cases, the evidence of such a witness may
be considered in relation to the accused. Severance is not required. 3195

Rule 83—instruments of restraint

Instruments of restraint, such as handcuffs, shall be used only on the order of the
Registrar as a precaution against escape during transfer or in order to prevent an
accused from self-injury, injury to others or to prevent serious damage to property.
Instruments of restraint shall be removed when the accused appears before a
Chamber or a Judge.

Rule 84—opening statements

Before presentation of evidence by the Prosecutor, each party may make an opening
statement. The defence may, however, elect to make its statement after the
conclusion of the Prosecutor’s presentation of evidence and before the presentation
of evidence for the defence.

Rule 84 bis—statement of the accused

(A) After the opening statements of the parties or, if the defence elects to defer its
opening statement pursuant to Rule 84, after the opening statement of the
Prosecutor, if any, the accused may, if he or she so wishes, and the Trial Chamber so
decides, make a statement under the control of the Trial Chamber. The accused
shall not be compelled to make a solemn declaration and shall not be examined
about the content of the statement.
(B) The Trial Chamber shall decide on the probative value, if any, of the statement.

Where the accused made an unsworn statement, but did not testify, the Trial
Chamber considered the unsworn statement as without probative value. 3196

3193
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Defence’s Motions for Separate Trials and
Severance of Counts (1 July 2005) at para. 18
3194
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Jadranko Prlic’s Motion for Severance (17
August 2007)
3195
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Pavkovic Motion for Partial Severance (27
September 2007) at para. 12
3196
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 23

526
 The assessment of unsworn statements under Rule 84bis of the Rules is a
discretionary function of the Trial Chamber. Such a statement is generally given
somewhat less weight than testimony given under oath, which is subject to cross-
examination and inquiry from the Bench. 3197The Appeals Chamber finds that the wording
of Rule 84bis of the Rules leaves to the discretion of the Trial Chamber the determination
of the probative value of an unsworn statement.3198
The purpose of Rule 84 bis is to give an accused the opportunity to be heard by
the Trial Chamber without having to appear as a witness. A statement by the Accused
under Rule 84 bis is a supplementary right, which can be exercised if the Accused so
wishes, notwithstanding other rights under the Statute and the Rules. The Trial Chamber
considered statements under Rule 84 bis as submissions 3199

Chamber refused to admit supplemental written statement of accused after close

of his case in which he purported to rebut prosecution expert testimony. 3200
An unsworn statement by the accused should generally be given prior to the
presentation of the prosecution’s case. 3201
The Trial Chamber has the discretion to allow the accused to make a supplement
to his unsworn opening statement given at the beginning of the case when the defence
case opens. 3202
A statement of an accused pursuant to Rule 84 bis may be in writing. 3203
An accused may take an oath prior to the making of his opening statement, and
his statements may be considered by the Trial Chamber as evidence, although the
probative value of such statements are low considering the lack of cross examination. 3204
Rule 85—presentation of evidence

(A) Each party is entitled to call witnesses and present evidence. Unless otherwise
directed by the Trial Chamber in the interests of justice, evidence at the trial shall
be presented in the following sequence:
(i) evidence for the prosecution;
(ii) evidence for the defence;
(iii) prosecution evidence in rebuttal;

3197
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 75
3198
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 78
3199
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement (10 June 2010) at para. 25
3200
Prosecutor v Prlic et al, No. IT-04-74-T, Decision Regarding Supplement to the Accused Prlic’s Rule
84 bis Statement (12 February 2009)
3201
Prosecutor v Prlic et al, No. IT-04-74-AR73.15, Decision on Jadranko Prlic’s Interlocutory Appeal
Against the Decision Regarding Supplement to the Accused Prlic’s Rule 84 bis Statement (20 April 2009)
at para. 16
3202
Prosecutor v Prlic et al, No. IT-04-74-AR73.15, Decision on Jadranko Prlic’s Interlocutory Appeal
Against the Decision Regarding Supplement to the Accused Prlic’s Rule 84 bis Statement (20 April 2009)
at para. 16; Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prajlak Defence Notice Concerning
Opening Statements Under Rules 84 and 84 bis (27 April 2009) at p. 5
3203
Prosecutor v Prlic et al, No. IT-04-74-AR73.15, Decision on Jadranko Prlic’s Interlocutory Appeal
Against the Decision Regarding Supplement to the Accused Prlic’s Rule 84 bis Statement (20 April 2009)
at para. 14
3204
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prajlak Defence Notice Concerning Opening
Statements Under Rules 84 and 84 bis (27 April 2009) at p. 11

527
(iv) defence evidence in rejoinder;
(v) evidence ordered by the Trial Chamber pursuant to Rule 98; and
(vi) any relevant information that may assist the Trial Chamber in determining an
appropriate sentence if the accused is found guilty on one or more of the charges in
the indictment.
(B) Examination-in-chief, cross-examination and re-examination shall be allowed in
each case. It shall be for the party calling a witness to examine such witness in chief,
but a Judge may at any stage put any question to the witness.
(C) If the accused so desires, the accused may appear as a witness in his or her own
defence.

defence exhibits

Guideline that defence cannot offer exhibits from the bar table during prosecution
case did not deny defence right to fair trial, as documents could be offered in defence
case and defence documentary evidence would not be directly relevant to determination
of sufficiency of prosecution evidence under Rule 98 bis.3205

prosecution exhibits

The prosecution may generally tender documents into evidence on cross-

examination of defence witnesses, either to impeach the credibility of the witness or to
advance its own case, unless the lack of notice or other factors make the admission of the
evidence at that stage more prejudicial than probative. 3206

There is no ban on the prosecution tendering evidence in the cross-examination of

defence witnesses, nor is exceptional circumstances required. The Trial Chamber will
determine, on a document-by-document basis, whether the prosecution should have
introduced the document in its case-in-chief and whether the admission of the document
would prejudice the accused in ways which cannot be redressed.3207

Prosecution’s motion to admit documents closely related to those admitted from

the bar table for the defence denied. The proper time to admit such documents would be
in the prosecution’s rebuttal case. 3208

questioning by the Chamber

Rule 85(B), which provides the judges with the discretion to put questions to a

3205
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Jadranko Prlic’s Request for Reconsideration of
the Decision of 29 November 2006 (30 August 2007)
3206
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Guidance on the Admission into Evidence of
Documents Tendered by the Prosecution During the Defence Case…(26 August 2011) at paras.14-15
3207
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motion
for Admission of Documents Shown to Witness…(8 July 2011) at paras. 47-49
3208
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for the Admission of Documents
from the Bar Table (10 May 2016) at para. 23; Prosecutor v Mladic, No. IT-09-92-T, Decision on
Defence’s First Motion to Admit Documents from the Bar Table (18 May 2016) at para.19

528
witness at any stage of his/her examination, does not mean that the judges are under any
obligation to put questions to witnesses or otherwise clarify any of the parties’ case. A
decision by the Trial Chamber not to use its discretion to question witnesses on a
particular point does not violate the right of an accused to be informed promptly and in
detail of the nature and cause of the charges against him. 3209

rebuttal

Only highly probative evidence on a significant issue in response to defence

evidence which could not reasonably have been forseen, and not mere reinforcement of
the prosecution’s case-in-chief, will be permitted in rebuttal. 3210

Rebuttal evidence must relate to a significant issue arising directly out of defence
evidence which could not reasonably have been anticipated. 3211

Rebuttal evidence will not be admissible where: (1) the evidence is itself evidence
probative of the guilt of the accused, and it is reasonably foreseeable by the Prosecution
that some gap in the proof of guilt needs to be filled by the evidence called by it; 3212 (2)
merely because the relevant party’s case has been met by certain evidence to contradict
it;3213 or (3) it could not have been brought as part of the Prosecution case in chief
because it was not in the hands of the Prosecution at the time. 3214

The fact that evidence is newly obtained, if that evidence does not meet the
standard for admission of rebuttal evidence, will not render it admissible as rebuttal
evidence. It merely puts it into the category of fresh evidence, to which a different basis
of admissibility applies.3215

It is only if a new issue is raised in the course of the defence case that the
prosecution may lead evidence in rebuttal. 3216

Rebuttal evidence denied where prosecution should have anticipated issue and led
the evidence in its own case-in-chief. 3217

3209
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1351
3210
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 220;
Prosecutor v Limaj et al, No. IT-03-66-T, Decision on Prosecution’s Motion to Admit Rebuttal Statements
Via Rule 92 bis (7 July 2005) at para. 6; Prosecutor v. Oric, No. IT-03-68-T, Decision on the Prosecution
Motion With Addendum and Urgent Addendum to Present Rebuttal Evidence Pursuant to Rule 85(A)(iii) (9
February 2006); Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 258
3211
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 273.
3212
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 275.
3213
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 275.
3214
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 276.
3215
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 276.
3216
Prosecutor v Limaj et al, No. IT-03-66-T, Decision on Prosecution’s Motion to Admit Rebuttal
Statements Via Rule 92 bis (7 July 2005) at para. 6
3217
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Prosecution Motion to Call Rebuttal Evidence (21
July 2005); Prosecutor v. Oric, No. IT-03-68-T, Decision on the Prosecution Motion With Addendum and
Urgent Addendum to Present Rebuttal Evidence Pursuant to Rule 85(A)(iii) (9 February 2006); Prosecutor

529
 Admission of four documents in rebuttal granted where prosecution could not be
expected to anticipate which scheduled incidents or events in the municipalities would be
the subject of defence evidence. 3218

Rebuttal evidence may not be called by the prosecution merely because its case
has been met by contradicting evidence. 3219

Rebuttal evidence to letters written by prosecution witness to defence counsel

denied where the proposed evidence did not directly address the information contained in
the letters.3220

The filing of a notice of alibi does not require that the prosecution lead evidence
to contradict the alibi in its case-in-chief. The alibi evidence is a matter arising out of the
defence case and is properly met by evidence offered in rebuttal. 3221

Although it was error to admit diary in rebuttal, where defence had notice of diary
from pre-trial disclosure and an opportunity to cross examine witnesses through whom
diary was authenticated, and to call a witness in rejoinder, the trial was not rendered
unfair by erroneous admission of the diary as rebuttal evidence. 3222

Prosecution rebuttal evidence refused where prosecution should have anticipated

that defence would lead evidence to rebut adjudicated facts and included its bolstering
evidence in its case-in-chief. 3223

It is not appropriate to call a prosecution witness in rebuttal whose evidence has

already been admitted pursuant to Rule 92 bis.3224

v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion to Present Rebuttal Evidence (21 March
2014) at paras. 20, 25, 30
3218
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Motion to Admit Evidence in Rebuttal
(16 August 2016) at paras. 20,23,26
3219
Prosecutor v Limaj et al, No. IT-03-66-T, Decision on Prosecution’s Motion to Admit Rebuttal
Statements Via Rule 92 bis (7 July 2005) at para. 6; Prosecutor v. Oric, No. IT-03-68-T, Decision on the
Prosecution Motion With Addendum and Urgent Addendum to Present Rebuttal Evidence Pursuant to Rule
85(A)(iii) (9 February 2006); Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in
Part the Prosecution’s First and Second Motions to Present Evidence in Rebuttal (15 December 2011) at
para. 48
3220
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Bar Table Motion for
Admission of Rebuttal Evidence regarding Witness JF-057 (20 September 2012) at para. 8
3221
Prosecutor v Lukic & Lukic, No. IT-98/32.1-AR73.1, Decision on the Prosecution’s Appeal Against the
Trial Chamber’s Order to Call Alibi Rebuttal Evidence During the Prosecution’s Case-in-Chief (16
October 2008)
3222
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 264
3223
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Motion for Reconsideration or
Certification to Appeal the Decision on Rebuttal Witnesses (9 April 2009); Prosecutor v Karadzic, No. IT-
95-5/18-T, Decision on Prosecution’s Motion to Present Rebuttal Evidence (21 March 2014) at para. 11
3224
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion to Present Rebuttal
Evidence (21 March 2014) at para. 56

530
 Prosecution rebuttal evidence concerning events in Doboj municipality allowed
where it arose from the testimony of a defence witness and could not have been
anticipated by the prosecution. 3225

Mladic notebook entries and Serbian DB records admitted on rebuttal where

prosecution could not have reasonably anticipated that defence would tender evidence
from these sources in its defence case. 3226

recalling a witness

The defence may not simply put a person who has testified as a prosecution
witness on its own witness list and call him as a defence witness. It must satisfy the
requirements for recalling a witness before the witness would be allowed to testify. 3227

Factors to be considered when a request to recall a witness is made are (1) the
purpose of the evidence that the requesting party expects to elicit from the witness; and
(2) the party’s justification for not eliciting that evidence when the witness testified. 3228

A witness will be recalled only when the evidence in question has considerable
probative value and is not cumulative in nature.3229

The right to be tried without undue delay as well as concerns for judicial economy
demand that a request to recall a witness should not be granted lightly and only
when the evidence is of significant probative value and not cumulative in nature.3230

Considerations when determining whether to recall a witness based upon failure

of the prosecution to disclose material which could have been used in cross examination
of the witness include the content of the documents, the questions asked of the witnesses

3225
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part the Prosecution’s First
and Second Motions to Present Evidence in Rebuttal (15 December 2011) at para. 39
3226
Prosecutor v Stanisic and Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Admission
of Rebuttal Evidence: Serbian DB Personnel Records (31 October 2012); Prosecutor v Stanisic and
Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Admission of Rebuttal Evidence: Mladic
Notebooks (31 October 2012)
3227
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion to Strike DGH-080 from the
Defence’s Rule 65 ter (G) list…(8 June 2015) at para. 11
3228
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Harry Konings for
Further Cross Examination (11 February 2011) at para. 8; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Requests in Relation to Notes Taken by Witness Adrianus Van Baal (17 February
2011) at para. 7; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Eleven
Sarajevo Witnesses (5 October 2011) at para. 7; Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the
Accused’s Motion to Recall Johannes Rutten (26 April 2012) at para. 8
3229
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Harry Konings for
Further Cross Examination (11 February 2011) at para. 8; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Requests in Relation to Notes Taken by Witness Adrianus Van Baal (17 February
2011) at para. 7; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Eleven
Sarajevo Witnesses (5 October 2011) at para. 7
3230
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the Accused’s Motion to Recall Johannes Rutten
(26 April 2012) at para. 8

531
during cross examination, the availability of documents containing similar information at
the time of cross examination, and any previous assessment of prejudice from the late
disclosure.3231

If the witness is to be recalled to show an inconsistency between the testimony

and his or her subsequent statements, there must be a demonstration of prejudice from not
having put those questions to the witness. A minor inconsistency or self-evident
explanation will not warrant recalling the witness. 3232

Subsequent disclosure of witness’ notes which failed to reflect statements he

claimed were made at a meeting did not warrant recall where witness had already
testified that he did not write everything down. However, notes would be admitted from
the bar table so that Chamber could evaluate them in connection with witness’
credibility. 3233

Subsequent disclosure of witness’ notes did not warrant recall where the items in
the notes were not necessary to a fair consideration of the witness’ credibility. 3234

Grounds did not exist for recalling witness where accused failed to ask witness
about inconsistencies in prior statement in the time allotted, and the time allotted for
cross examination was reasonable.3235

Recall of prosecution witness granted where at time of original testimony, defence

was not in possession of, or did not have time to examine, material related to his
testimony. 3236

Disclosure of exculpatory material after witnesses had testify did not warrant
recall of witnesses where the accused retained the ability to have the documents admitted
from the bar table.3237

3231
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Twelve
Municipalities Witnesses (20 January 2012) at para. 11
3232
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Harry Konings for
Further Cross Examination (11 February 2011) at para. 8; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Requests in Relation to Notes Taken by Witness Adrianus Van Baal (17 February
2011) at para. 7; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Eleven
Sarajevo Witnesses (5 October 2011) at para. 7; Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the
Accused’s Motion to Recall Johannes Rutten (26 April 2012) at para. 8
3233
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Requests in Relation to Notes Taken
by Witness Adrianus Van Baal (17 February 2011) at paras. 11-12
3234
Prosecutor v Karadzic, No. It-95-5/18-T, Decision on the Accused’s Motion to Recall Johannes Rutten
(26 April 2012)
3235
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Harry Konings for
Further Cross Examination (11 February 2011) at paras. 11-13
3236
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Motion Requesting the Recall
of Manoljo Milovanovic (22 November 2011) at paras. 9-10
3237
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Recall Eleven Sarajevo
Witnesses (5 October 2011) at paras. 10-13,15-17, 19-20.

532
 rejoinder

The defence may lead rejoinder evidence only with respect to what directly arises
out of rebuttal evidence and could not be expected to have been addressed during the
defence case.3238

According to the principles enshrined in the Statute on the rights of an accused –

in particular in Article 21(4)(b) and (e) – when evidence is tendered by the Prosecution
there must be a fair opportunity for the accused to challenge it. This is all the more true
if evidence is tendered after the close of the Prosecution case. 3239

reopening the case

standard

A party will only be allowed to reopen its case to offer fresh evidence when it is
shown that the evidence could not have, with reasonable diligence, been identified and
presented in the case in chief. Once that criteria is met, the Trial Chamber must weigh
the probative value of the evidence against the prejudice to the accused in admitting the
evidence late in the proceedings. 3240

If it is shown that the material could not have been obtained through the exercise
of due diligence, the Trial Chamber must weigh the probative value of the evidence
against the prejudice to the accused. Factors to be considered are: (1) stage of the trial at
the time the application is made: (2) delay likely to be caused by re-opening the case: (3)
probative value of the evidence must be such that it outweighs prejudice to the accused;
and (4) effect of re-opening on any coaccused. 3241

If the evidence was obtained before the prosecution closed its case, it will not be
allowed to re-open.3242 If the evidence was not so obtained, it will not be allowed to
reopen unless it can show that the evidence could not have been obtained with reasonable

3238
Prosecutor v Limaj et al, No. IT-03-66-T, Decision on Joint Defence Motion to Admit Rejoinder
Statement via Rule 92 bis (18 July 2005) at para. 3
3239
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1314
3240
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 283; Prosecutor v
Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 222
3241
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the Prosecution’s Application to
Reopen its Case (1 June 2005) at para. 45; Prosecutor v Milosevic, No. IT-02-54-T, Decision on
Application for a Limited Re-Opening of the Bosnia and Kosovo Components of the Prosecution Case (13
December 2005) at para. 13; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion to
Re-open its Case (20 March 2014) at para. 11; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s First Motion to Re-open Defence Case (12 September 2014) at para. 6
3242
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application for a Limited Re-Opening of the
Bosnia and Kosovo Components of the Prosecution Case (13 December 2005) at para. 23

533
diligence. And even if it could not have been so obtained, the Trial Chamber may
exercise its discretion under Rule 89(D) to deny re-opening.3243

In order to be able to re-open its case, a party must demonstrate that, despite
reasonable diligence, it was unable to obtain the proposed evidence before the close of its
case-in-chief. 3244

In order to justify re-opening of the prosecution’s case after all the defence cases
had concluded, the evidence admitted must relate directly to the criminal responsibility of
the accused. Therefore only entries in the Mladic notebooks which relate to directly to the
participation of the accused in the joint criminal enterprise would be admitted. 3245

The primary determination in considering an application to reopen the

prosecution’s case is whether, with reasonable diligence, the evidence could have been
identified and presented in the party’s case-in-chief. The evidence must also meet the
requirements of relevance and probative value under Rule 89(C).3246

The risk of prejudice caused by the admission of fresh evidence probative of guilt
is potentially greater as opposed to fresh evidence for the sole purpose of impeaching a
witness. However, admission of the fresh evidence should be decided on a case-by-case
basis.3247

There is no legal basis applying a different standard to evidence which was not
available to the defence during its case due to a violation of the prosecution’s disclosure
obligations. The admission of such evidence remains subject to the requirement that
exceptional circumstances exist which would warrant the Chamber to exercise its
discretion to re-open the case in the interests of justice. 3248

The issue of whether or not there was a disclosure violation by the Prosecution is
not relevant to the question of whether the defence ought to be allowed to re-open its case
to admit the evidence.3249

3243
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application for a Limited Re-Opening of the
Bosnia and Kosovo Components of the Prosecution Case (13 December 2005) at para. 14
3244
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the Prosecution’s Application to
Reopen its Case (1 June 2005) at para. 35
3245
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Prosecution’s Motion to Reopen its Case (6
October 2010) at paras. 58-59
3246
Prosecutor v Mrskic et al, No. IT-95-13/1-T, Decision on Motion to Reopen Prosecution Case (23
February 2007) at paras, 4-5
3247
Prosecutor v Prlic et al, No. IT-04-74-AR73.14, Decision on the Interlocutory Appeal Against the Trial
Chamber’s Decision on Presentation of Documents by the Prosecution in Cross Examination of Defence
Witnesses (26 February 2009) at para 28
3248
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Third Motion to Re-Open Defence
Case (17 December 2014) at para. 13
3249
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Seventh Motion to Re-Open
Defence Case (20 April 2015) at para. 13

534
 diligence

Due diligence requires that the party had identified questions of fact and law
underlying the case, that it identified all potential sources of evidence, it attempted to
obtain specific evidence about which it had concrete information, and it made every
effort to obtain all the evidence it needs before commencement of its case. If during its
case, it learns of additional evidence, it must further investigate without delay. 3250

The burden of showing reasonable diligence rests on the party seeking to reopen
its case.3251

Failure to discover book written before close of defence case precluded reopening
the case to admit testimony from the author of the book.3252

Accused could have, with reasonable diligence, requested cable from United
States of his meeting with U.S. Ambassador before his case closed, where meeting was
mentioned in book authored by Ambassador that had been disclosed to him. 3253

Defence exercised diligence where it sought document from State and filed
motion for binding order before receiving document after its case had closed. 3254

Although Rule 54 bis should not be the first or only method relied upon by parties
seeking evidence from states, the prosecution’s failure to take advantage of all the means
available to it to obtain evidence, especially when confronted with what it viewed as the
consistently obstructive behavior of the authorities in question cannot be considered the
exercise of reasonable diligence.3255

The prosecution will be allowed to adduce new evidence after it has closed its
case-in-chief only under exceptional circumstances. 3256 The prosecution failed to meet

3250
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the Prosecution’s Application to
Reopen its Case (1 June 2005) at paras. 38-42
3251
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application for a Limited Re-Opening of the
Bosnia and Kosovo Components of the Prosecution Case (13 December 2005) at para. 24; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion to Re-open its Case (20 March 2014) at para.
10
3252
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prlic Defence Motion to Reopen its Case (3 July
2009)
3253
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Fifth Motion to Re-Open Defence
Case: Zimmerman Cable (9 March 2015) at para. 9
3254
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s First Motion to Re-open Defence
Case (12 September 2014) at para. 7
3255
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application for a Limited Re-Opening of the
Bosnia and Kosovo Components of the Prosecution Case (13 December 2005) at para. 30
3256
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the Prosecution’s Application to
Reopen its Case (1 June 2005) at para. 47

535
this burden where it did not exercise due diligence in obtaining relevant documents from
archives available to it.3257

Prosecution was reasonable in waiting until investigations and analysis into

newly-discovered mass grave were complete rather than bringing piecemeal motions to
admit fresh evidence. 3258

Prosecution exercised due diligence in the discovery of fresh evidence and the
Trial Chamber’s decision to allow it to reopen its case to offer evidence that an accused
had ordered that a gun be planted next to a body was not error.3259

denied

Prosecution would not be allowed to reopen its case to call witness who
previously refused to testify, since there was no showing that the witness was now
willing to testify or that national contempt proceedings, if instituted, would lead to his
giving testimony. 3260

Although discovery of mass grave after prosecution rested its case was “fresh
evidence”, re-opening denied where connection of bodies to charges against the accused
remained speculative, the motion was filed late in the proceedings, and re-opening the
case was likely to delay its conclusion.3261

Prosecution not allowed to amend proof of death chart with new material after the
close of its case. 3262

Prosecution not allowed to admit new documents from the bar table after the close
of all of the evidence in the case. 3263

Defence motion to re-open case to admit newly available document denied where
delay caused by having to elicit testimony from document’s author after closing
arguments outweighed probative value of document.3264

3257
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the Prosecution’s Application to
Reopen its Case (1 June 2005)
3258
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Motion to Reopen its Case-in-Chief (23
October 2014) at para. 9
3259
Prosecutor v Gotovina et al, No. IT-06-90-AR73.6, Decision on Ivan Cermak and Mladen Markac
Interlocutory Appeals Against Trial Chamber’s Decision to Reopen the Prosecution Case (1July 2010)
3260
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Prosecution’s Request to Reopen its Case to
hear Evidence of Shefqet Kabashi and for a Judicial Representation to the United States of America (21
December 2007)
3261
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion to Re-open its Case (20
March 2014) at para. 18
3262
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motion to
Reconsider the Trial Chamber’s Decision…to Add Further Materials to the CAS (29 March 2012)
3263
Prosecutor v Tolimir, No. IT-05-88/2-T, Consolidated Decision on Prosecution’s Bar Table Motions
and the Accused’s Motion for Extension of Time (14 May 2012) at para. 47

536
 The potentially exculpatory portions are of such low probative value when read in
the context of the full document, that the interests of justice would not demand that the
case be re-opened to allow for its admission.3265

Absence of probative value in evaluating credibility of prosecution witness by

post-trial statement in which she expressed her view that the accused should be harshly
punished warranted not re-opening defence case to admit the statement.3266

Defence would not be allowed to re-open case to admit cable from U.S.
Ambassador where the cable was not favorable to the accused and its admission would
unjustifiably delay the proceedings. 3267

Defence would not be allowed to re-open case to admit testimony of witness who
claimed that Momir Nikolic told his subordinates that the Srebrenica prisoners would be
exchanged, as this evidence did not contradict or even relate to the specific evidence of
Momir Nikolić. 3268

Defence would not be allowed to re-open case to admit testimony of witness who
declined to testify while his own appeal was pending. Defence did not use due diligence
to obtain his testimony at that time. 3269

Defence would not be allowed to re-open case to admit testimony of ex-Vlasenica

police chief of his efforts to aid Muslims where evidence was of minimal probative value
to the case.3270

granted

Mladic notebooks found after the prosecution had rested its case constituted
“fresh” evidence, and notebooks found earlier would also be considered “fresh” evidence

3264
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s First Motion to Re-open Defence
Case (12 September 2014) at para. 11; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s
Third Motion to Re-Open Defence Case (17 December 2014) at para. 14
3265
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Ninety-Sixth Disclosure Violation
Motion (21 January 2015) at para. 9
3266
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Fourth Motion to Re-Open Defence
Case (24 February 2015) at para. 10
3267
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Fifth Motion to Re-Open Defence
Case: Zimmerman Cable (9 March 2015) at para. 10
3268
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Seventh Motion to Re-Open
Defence Case (20 April 2015) at para. 14
3269
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Tenth Motion to Re-Open
Defence Case (9 July 2015) at para. 12
3270
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Ninth Motion to Re-Open
Defence Case (9 July 2015) at paras. 11-12

537
because their significance was not apparent until the subsequent notebooks were
seized.3271

Prosecution allowed to re-open its case to admit Mladic notebooks where

notebooks were found after the prosecution had rested its case and their contents were
relevant.3272

Prosecution allowed to re-open its case to admit Ministry of Interior report first
introduced by the defence in another case , where the prosecution had requested
documents from Ministry of Interior and had not received it, and where it was probative
and not unduly prejudicial. 3273

The prosecution was allowed to introduce “fresh evidence” in cross examination

of defence witness where the document rebutted the witness’ assertion concerning an
issue in the case, even though the prosecution had been in possession of the documents
since the beginning of the trial. 3274

Prosecution allowed to re-open its case to introduce evidence of newly-discovered

mass grave where defence would have an opportunity to rebut the evidence during its
case and the delay from presenting the new evidence would not be unduly long. 3275

rejoinder to reopening

If the prosecution were allowed to re-open its case, the accused would be entitled
to cross-examine the prosecution witnesses as well as to lead evidence of his own. 3276

Where prosecution was allowed to re-open its case, only evidence which directly
addressed issues raised by new evidence would be admitted on behalf of the accused.
Where proposed exhibits did not directly address those issues, their admission was
denied. 3277

3271
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Prosecution’s Motion to Reopen its Case (6
October 2010) at paras. 40-41
3272
Prosecutor v Perisic, No. IT-04-81-T, Decision on Motion to Reopen the Prosecution Case and Tender
Documents Through the Bar Table (4 November 2010)
3273
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Motion to Reopen
Prosecution Case and for Admission of a Document from the Bar Table (1 September 2011) at paras. 17-
18,22
3274
Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion for Reconsideration of the Trial
Chamber’s Oral Decisions of 15 and 16 July 2010 on Admission of Fresh Evidence (17 September 2010) at
para. 20
3275
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Motion to Reopen its Case-in-Chief (23
October 2014) at para. 10
3276
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application for a Limited Re-Opening of the
Bosnia and Kosovo Components of the Prosecution Case (13 December 2005) at para. 36
3277
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Praljak Defence Motion to Reopen its Case (25
November 2010) at para. 21

538
 The Trial Chamber did not err when it decided to deny the Appellant the right to
call other witnesses on the ground that the proposed testimony fell outside the scope of
the re-opened proceedings. 3278

timing

The stage in the trial at which the evidence is sought to be adduced and the
potential delay that will be caused to the trial are matters highly relevant to the fairness to
the accused of admission of fresh evidence. 3279

The later in the trial that the application is made the less likely the Trial Chamber
is to accede to the request to re-open the case.3280

sentencing

Material which is relevant to sentencing does not have to meet the criteria of
Rules 89 or 92 bis.3281

Oral hearing of sentencing witnesses denied. Letters from witnesses admitted into
evidence.3282

Written statements and documents relating to alleged agreement with Richard

Holbrooke that accused would not be prosecuted at the ICTY in exchange for his
resignation was relevant to potential sentencing and would be admitted. 3283

Letter from UNDU Commander attesting to good behavior of accused while in

detention admitted into evidence.3284

Any defence evidence relevant to sentencing must be presented during the

defence case in chief and within the 325 hours allocated.3285

Nine day deadline for submitting sentencing information after the close of the
defence case would not be extended where defence team should have prepared to submit

3278
Prosecutor v Furundzija, No.IT-95-17/1-T, Judgement (21 July 2000) at para. 78
3279
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 290.
3280
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Application for a Limited Re-Opening of the
Bosnia and Kosovo Components of the Prosecution Case (13 December 2005) at para. 13
3281
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Defence Motion Pursuant to Rule 85(a)(iv)(24
August 2006) at para. 9 ; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Admission of Information
Related to Sentencing (26 February 2014) at para. 12
3282
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Defence Motion Pursuant to Rule 85(a)(iv)(24
August 2006)
3283
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Admission of Information Related to Sentencing
(26 February 2014) at para. 12
3284
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Admission of Information Related to Sentencing
(26 February 2014) at para. 14
3285
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Allocation of Time for Presentation of
Defence Case (17 December 2013) at T45215

539
such evidence well in advance and where it had submitted evidence relevant to
sentencing in its defence case. 3286

Rule 86—closing arguments

(A) After the presentation of all the evidence, the Prosecutor may present a closing
argument; whether or not the Prosecutor does so, the defence may make a
closing argument. The Prosecutor may present a rebuttal argument to which the
defence may present a rejoinder.
(B) Not later than five days prior to presenting a closing argument, a party shall file
a final trial brief.
(C) The parties shall also address matters of sentencing in closing arguments.

Rule 87—deliberations

(A) When both parties have completed their presentation of the case, the Presiding
Judge shall declare the hearing closed, and the Trial Chamber shall deliberate in
private. A finding of guilt may be reached only when a majority of the Trial
Chamber is satisfied that guilt has been proved beyond reasonable doubt.
(B) The Trial Chamber shall vote separately on each charge contained in the
indictment. If two or more accused are tried together under Rule 48, separate
findings shall be made as to each accused.
(C) If the Trial Chamber finds the accused guilty on one or more of the charges
contained in the indictment, it shall impose a sentence in respect of each finding of
guilt and indicate whether such sentences shall be served consecutively or
concurrently, unless it decides to exercise its power to imposea single sentence
reflecting the totality of the criminal conduct of the accused.

burden of proof

The burden of proof remains with the prosecution throughout the trial. 3287

It is not helpful to define the term “beyond a reasonable doubt” other than to say
that the standard requires a finder of fact to be satisfied that there is no reasonable
explanation for the evidence other than the guilt of the accused. 3288

The prosecution must prove the guilt of the accused beyond a reasonable doubt.
The Trial Chamber considers whether there is any reasonable interpretation of the
evidence other than the guilt of the accused. Any ambiguity or doubt is resolved in favor

3286
Prosecutor v Mladic, No, IT-09-92-T, Decision on Defence Motion for an Extension of Time to Tender
Sentencing-Related Information (2 September 2016) at para. 8
3287
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5250
3288
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 61

540
of the accused under the principle of in dubio pro reo.3289 If there is another conclusion
which is reasonably open from the evidence, the accused must be acquitted. 3290

While intent can be inferred from circumstantial evidence, it must be the only
reasonable inference. 3291

A trial chamber may draw inferences to establish a fact on which a conviction

relies based on circumstantial evidence as long as it is the only reasonable inference that
could be drawn from the evidence presented.3292

When based on circumstantial evidence, the finding that an accused had the
requisite intent to be a member of a JCE must be the only reasonable inference from the
evidence.3293

Whether an inference that the planning of one specific operation by an individual

can support a finding that the individual was informed of a different operation can be
made will ultimately depend on the context, including the similarities between the
operations, as well as the position of the individual in question. 3294

Trial Chamber erred in relying on notes of a meeting to show accused’s

knowledge where the accused was recorded as having left before the meeting started. 3295

A reasonable trier of fact could conclude, as the only reasonable inference, that a
subject must have been discussed at the meeting, notwithstanding the fact that the subject
was not referred to in the text of the report of the meeting. 3296

The principle of in dubio pro reo, as a corollary to the presumption of innocence,

and the burden of proof beyond a reasonable doubt, applies to findings required for
conviction, such as those which make up the elements of the crime charged. 3297

The principle of in dubio pro reo is not applied to individual pieces of evidence
and findings of fact on which the judgement does not rely. 3298

3289
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 18; Prosecutor
v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para. 12
3290
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 21; Prosecutor
v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para.15
3291
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1369; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1994
3292
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1709
3293
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1385
3294
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1694
3295
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1747
3296
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1994
3297
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 21
3298
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 21

541
 A Trial Chamber must determine beyond a reasonable doubt whether every
element of a crime and form of liability has been established beyond a reasonable doubt
before it can enter a conviction. 3299

If there is an inference reasonably open on the facts inconsistent with the guilt of
the accused, the onus and the standard of proof would require an acquittal to be entered in
respect of that count.3300

A trial chamber does not have to discuss other inferences it may have considered,
as long as it is satisfied that the inference it retained was the only reasonable one. 3301

In many instances the evidence suggested a conclusion which seemed to be very

likely. However, in keeping with the applicable standard of proof the Trial Chamber
strictly examined whether such conclusion was the only reasonable one. 3302

Whereas the assessment of an evidentiary factor in a vacuum might fail to

establish an essential matter, the weight of all relevant evidence taken together can
conclusively prove the same matter beyond reasonable doubt.3303

The fact that the accused has not challenged a factual allegation does not require
the Trial Chamber to accept that fact as proven. The burden of proof remains with the
prosecution beyond a reasonable doubt.3304

The identification of the accused as the perpetrator must be established beyond a

reasonable doubt.3305

Equation of proof beyond a reasonable doubt with “high degree of probability”

was error, but did not affect the verdict. 3306

Not every factual finding in a Trial Judgement must be established beyond

reasonable doubt. The standard of proof at trial requires that a Trial Chamber may only
find an accused guilty of a crime if the Prosecution has proved each element of that crime
and of the mode of liability, and any fact which is indispensable for the conviction,
beyond reasonable doubt.3307

3299
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 10
3300
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 5; Prosecutor v Limaj et
al, No. IT-03-66-T, Judgement (30 November 2005) at para. 10
3301
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 867; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 967
3302
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para. 7
3303
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1150
3304
Prosecutor v Halilovic, No. IT-01-48-T, Judgement (16 November 2005) at para.12, fn.24
3305
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 20
3306
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 60
3307
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 325; see also
para. 220; Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 10

542
 Even if some of the material facts pleaded in the indictment are not established
beyond reasonable doubt, a Chamber might enter a conviction provided that having
applied the law to those material facts it accepted beyond reasonable doubt, all the
elements of the crime charged and of the mode of responsibility are established by those
facts.3308

The ‘material facts’ which have to be pleaded in the indictment to provide the
accused with the information necessary to prepare his defence have to be distinguished
from the facts which have to be proved beyond reasonable doubt.3309

The standard “beyond reasonable doubt” is met where the evidence establishes a
particular point and demonstrates undisputedly that no reasonable alternative is possible.
This doesn’t mean that all doubt as to the guilt of the accused has been eliminated.
Rather, “[t]he standard of proof beyond reasonable doubt requires a finder of fact to be
satisfied that there is no reasonable explanation of the evidence other than the guilt of the
accused.”3310

Cumulative effect of taking judicial notice of 1500 adjudicated facts and

admitting 144 statements without cross examination did not violate the presumption of
innocence nor shift the burden of proof to the accused. 3311

At the conclusion of the case, the Accused is entitled to the benefit of the doubt as
to whether the crime has been proven. 3312

sentencing procedure

There is no reason to depart from the settled procedure at the ICTY of issuing a
single judgement for guilt and sentence, and the 2000 amendment of Rule 87(C) was not
intended to change that practice. Motion for bifurcated judgement denied. 3313

Rule 89—general provisions

(A) A Chamber shall apply the rules of evidence set forth in this Section, and shall
not be bound by national rules of evidence.
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules
of evidence which will best favour a fair determination of the matter before it and
are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence which it deems to have probative
value.
(D) A Chamber may exclude evidence if its probative value is substantially
3308
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 10, fn. 18
3309
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 10, fn. 18
3310
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 220
3311
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Stay of Proceedings (8 April 2010)
3312
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 30
3313
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Bifurcated Judgement (22
May 2014) at para. 4

543
outweighed by the need to ensure a fair trial.
(E) A Chamber may request verification of the authenticity of evidence obtained
out of court.
(F) A Chamber may receive the evidence of a witness orally or, where the interests
of justice allow, in written form

advance rulings

Trial Chamber declined to preclude defence evidence on grounds of tu quoque

and relevance in advance and said it would rule on objections as the evidence was
presented.3314

anonymous sources

Trial Chamber refused to admit documents from anonymous sources as it could

not properly evaluate the reliability and authenticity of the documents without knowing
their source.3315

assessment of evidence

All evidence adduced at trial, irrespective of which party tendered it, should be
analysed according to the same legal standard. 3316

The fact that the prosecution acknowledged the probative value of the accused’s
interview when tendering it into evidence cannot be seen as limiting the Trial Chamber’s
discretion to evaluate its weight in light of the entire trial record.3317

When considering the disparate dates, meetings, and purposes of the speeches and
statements, it is important not to combine them to give a semblance of a collective intent
where no such collective intent existed or to read individual statements and speeches in
isolation and without context.3318

authentication

The Trial Chamber did not consider documents which were not signed, dated, or
stamped to be a priori void of authenticity. 3319

A prima facie case of authenticity must be made out in order for a document to be
reliable. However, absolute proof of authenticity is not required for admissibility, but is

3314
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution Motion to Limit Defence Evidence
Relating to Principles of Tu Quoque and Provocation (5 April 2007)
3315
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prlic Defence Motion for Admission of
Documentary Evidence (6 March 2009) at para. 26
3316
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 99
3317
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 100
3318
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 4235
3319
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 29

544
a matter for the weight of the evidence to be given by the Chamber in its
deliberations. 3320

When a challenge has been made to the authenticity or reliability of a document,

the Trial Chamber will admit the document and decide what weight to give it during its
deliberations. 3321

Alleged audiotape of interview of accused by journalist would not be admitted

without testimony from the journalist demonstrating that the tape is reliable. 3322

Alleged videotapes of speech by the accused would not be admitted where it was
not sufficiently established when the speech was made. 3323

Statement of witness that parts of document were “probably correct” was not
sufficient to allow for admission of the document. 3324

bar table

documents authored by witnesses

While failure to put a document to a witness will not automatically exclude it

from being admitted from the bar table, the Trial Chamber may conclude that the
admission of such documents from the bar table at the end of the case is substantially
outweighed by the need to ensure a fair trial. Documents would be reviewed on a case-
by-case basis. 3325

3320
Prosecutor v Prlic et al, No. IT-04-AR73.16, Decision on Jadranko Prlic’s Interlocutory Appeal
Against the Decision on Prlic Defence Motion for Reconsideration on the Decision on the Admission of
Documentary Evidence (3 November 2009) at para. 34
3321
Prosecutor Halilovic, No. IT-01-48-T, Decision on Defence Motion for Exclusion of Exhibits (29 June
2005)
3322
Prosecutor v Mrskic et al, No. IT-95-13/1-T, Decision on Motion to Reopen Prosecution Case (23
February 2007)
3323
Prosecutor v Seselj, No. IT-03-67-T, Decision on Request for Admission Into Evidence of
Documents…(17 December 2010) at paras. 19,21
3324
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying Prosecution’s Motion to Admit
into Evidence MFI P171 and P911(13 March 2012) at para. 19
3325
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Bar Table Motion for the
Admission of Documents Related to the Sarajevo Component (11 May 2012) at para. 12; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s First Bar Table Motion for the Admission of
Intercepts (14 May 2012) at para. 17; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s
Motion for the Admission of Evidence from the Bar Table (Srebrenica)(22 May 2012) at para. 17;
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of Documents
from the Bar Table (Municipalities)(25 May 2012) at para. 12; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Prosecution’s Second Bar Table Motion for the Admission of Intercepts (25 May 2012) at para.
12

545
 Documents going to the credibility of a witness will not be admitted from the bar
table without giving the witness a chance to comment on them, unless the other party
does not object.3326

Documents may be admitted from the bar table even if used as source documents
by expert witnesses and not put to those witnesses during their testimony. However, the
impact on the right to a fair trial would be assessed on a case-by-case basis. 3327

The admission from the bar table of documents that could have been put to a
witness is the exception and not the default position.3328

denied

Documents which do not bear a seal or some other indication that it was actually
sent, as opposed to being a draft, would not be admitted from the bar table. 3329

Admission of report of Special Rapporteur for Human Rights would not be

admitted from the bar table where the accused would not have the opportunity to
challenge the findings of the report.3330

Admission of entirety of “Mladic notebooks” and Republika Srpska Assembly

Session transcripts from the bar table upon motion by the accused denied without
prejudice where accused failed to specify the parts of the voluminous diaries which were
relevant to the case.3331

granted

Bosnian Serb Assembly session minutes were admitted from the bar table with
agreement of the parties.3332

in general

3326
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on the Simatovic Defence First Bar Table
Motion (28 June 2012) at paras. 9-10
3327
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of
Documents from the Bar Table (Municipalities)(25 May 2012) at paras. 13,28
3328
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s First Bar Table Motion for the
Admission of Intercepts (14 May 2012) at para. 16
3329
Prosecutor v Delic, No. IT-04-83-T, Decision on Prosecution Submission on the Admission of
Documentary Evidence (16 January 2008) at para. 18; Prosecutor v Milutinovic et al, No. IT-05-87-T,
Decision on Lazarevic Motion for Admission of Documents from the Bar Table (16 January 2008) at para. 6
3330
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of
Documents from the Bar Table (Municipalities)(25 May 2012) at para. 48
3331
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, First Decision on Stanisic Defence Bar Table
Motion of 12 February 2012 (23 May 2012) at paras. 21, 25
3332
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Bar Table Motion for the
Admission of Bosnian Serb Assembly Records (22 July 2010)

546
 It is desirable that a witness speak to the origins and/or content of a document to
be tendered into evidence, to allow the Chamber to properly assess the relevance,
authenticity, and reliability of that document in a meaningful way in its overall
consideration of the evidence in the case. 3333

As a general rule, documents will not be admitted except in connection with the
testimony of witnesses. However, in some circumstances, the relevance and reliability of
a document is sufficiently apparent to justify its admission without the need for any
evidence relating to the document. Under this standard, some documents were admitted
from the bar table, others were not.3334

The bar table should not generally be the first port of call for the admission of
evidence. It is rather a supplementary method of introducing evidence which should be
used sparingly to assist the requesting party to fill gaps in its case at a later stage in the
proceedings.3335

Bar table motions should be kept to a minimum and should not be used for
admission of source documents used by expert witnesses. 3336

Admission from the bar table is a mechanism to be used on an exceptional basis

since it does not necessarily allow for proper contextualisation of the evidence in
question. 3337

Documents authored by a prosecution witness may be tendered through a bar

table motion, although it would be preferable to have been tendered during the testimony
of the witness.3338

When documents are sought to be admitted from the bar table, the offering party
must be able to demonstrate with clarity and specificity when and how each document
fits into its case.3339

3333
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Guidelines for the Admission of Evidence
Through Witnesses (19 May 2010) at para. 11
3334
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Prosecution’s Motion for
Admission of Exhibits from the Bar Table (14 May 2007) at paras 10,13
3335
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s First Bar Table Motion (13 April
2010) at para. 9; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Bar Table Motion
Relating to Witness Dorothea Hanson (26 June 2011) at para. 11
3336
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Bar Table Motion Relating to
Witness Dorothea Hanson (26 June 2011) at para. 15
3337
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Admit Documents Relevant
to Witnesses KDZ490 and KDZ492 from the Bar Table (9 January 2012) at para. 6; Prosecutor v Karadzic,
No. IT-95-5/18-T, Decision on Prosecution Motion to Admit Evidence from the Bar Table (Hostages) (1
May 2012) at para. 4
3338
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion to Admit Evidence from the
Bar Table (Hostages) (1 May 2012) at para. 11
3339
Prosecutor v Delic, No. IT-04-83-T, Decision on Prosecution Submission on the Admission of
Documentary Evidence (16 January 2008) at para. 9; Prosecutor v Delic, No. IT-04-83-T, Decision on
Defence Motion for the Admission of Documentary Evidence (5 March 2008) at para. 5

547
 Tendering documents through bar table motions at the end of a party's case is a
safety clause designed to ensure that documents, which for one reason or another could
not be tendered through a witness, can still be included in the trial record. 3340

news reports

News media reports will not generally be admitted from the bar table. 3341

Written interviews with the accused by journalists not admissible from the bar
table, but verbatim video recordings of interviews would be admitted. 3342

statements

Statements of third parties not taken by one of the parties nor prepared for the
litigation are not affected by Rule 92 bis and may be admitted from the bar table.3343

transcripts

Admission of transcripts of prior testimony is not appropriate through the bar

table as such documents are governed by Rules 92 bis through quinques.3344

UN documents

United Nations documents admitted from the bar table, with the weight of the
documents to be determined by the Trial Chamber at the end of the case. 3345

3340
Prosecution v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part the Prosecution’s Bar
Table Motion (1 February 2011) at para. 12
3341
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Second Motion for Admission of
Evidence from the Bar Table: General Michael Rose (17 December 2010) at para. 10; Prosecutor v Stanisic
and Zupljanin, No. IT-08-91-T, Decision Granting in Part the Prosecution’s Bar Table Motion (1 February
2011) at para. 20; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying Prosecution’s
Motion to Admit into Evidence MFI P171 and P911(13 March 2012) at para.17; Prosecutor v Karadzic,
No. IT-95-5/18-T, Decision on Accused’s Bar Table Motion (Karadzic Statements)(2 April 2014) at para.
10
3342
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Bar Table Motion for the
Admission of Documents Related to the Sarajevo Component (11 May 2012) at paras. 19-20; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for the Admission of Evidence from the Bar
Table (Srebrenica)(22 May 2012) at para. 16; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Prosecution’s Motion for Admission of Documents from the Bar Table (Municipalities)(25 May 2012) at
paras. 31,33
3343
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Second Decision on Stanisic Defence Bar Table
Motion of 12 February 2012 (23 May 2012) at para. 8
3344
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Admit Documents Relevant
to Witnesses KDZ490 and KDZ492 from the Bar Table (9 January 2012) at para. 6
3345
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Admission of Documentary Evidence (UN
Documents) (23 August 2007); Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Second
Motion to Admit United Nations Resolutions, Reports, and Code Cables from the Bar Table (14 November
2013)

548
 voluminous documents

Burden on accused resulting from admission of large numbers of documents from

the bar table outweighed time savings of admitting documents from bar table.
Prosecution ordered to admit documents through witnesses, when possible, and to renew
bar table motion to fill in gaps at the end of the proceedings. 3346

A prima facie showing of a document’s reliability may be made without showing

the document to a witness at trial. 3347 However, the Trial Chamber chose to require the
prosecution to present its exhibits to a witness at trial, or show cause why it is not able to
do so where the wholesale admission of exhibits without in court debate would make it
difficult to assess the relevancy and context of the documents and would prejudice the
accused, whose cross-examination time was dependent on the time of direct
examination. 3348

While there may be a perception that the admission of evidence from the bar table
saves some in-court time, it can infact lengthen the proceedings due to the sheer volume
of evidence thereby admitted. This is particularly so if the parties tie bar table motions to
particular witnesses and to regularly use them as a safety net when time runs out or as an
additional means of admitting even more documents. 3349

The fact that other exhibits may speak to the same or similar issues as the material
before it does not require that a document be rejected for admission from the bar table.
However, this does not mean that the prosecution can at the end of its case use bar table
motions to tender documents which are plainly unnecessary given the extremely
voluminous amount of other evidence on similar issues. 3350

weight

A document may be admitted without an authenticating witness, but the party

seeking the admission of a document without using a witness runs the risk that the
probative value will be lessened or the document will be excluded. Nevertheless, such
documents would be admitted where there was no objection by the prosecution. 3351

3346
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s First Bar Table Motion (13 April
2010) at paras. 8-9
3347
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Admission of Evidence (13 July 2006) at p. 5
3348
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Admission of Evidence (13 July 2006) at p. 6
3349
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Admit Documents Relevant
to Witnesses KDZ490 and KDZ492 from the Bar Table (9 January 2012) at para. 8
3350
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Bar Table Motion for the
Admission of Documents Related to the Sarajevo Component (11 May 2012) at para. 11
3351
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the Admissibility of Documents
of the Defence of Enver Hadzihasanovic (22 June 2005) at paras. 33-35

549
 It is not necessary that a document be authenticated by a witness for it to be
admitted. However, an exhibit which has not been presented to a witness has less
probative value than one which has. 3352

In its deliberations, the Trial Chamber attached greater weight to contents of

documents which were explained by the testimony of a witness, rather than introduced as
exhibits in isolation. However, where the circumstances showed that the documents were
part of a series of documents whose contents were not subject to question, the Trial
Chamber relied on the contents of those documents. 3353

books

Trial Chamber declined to admit entire book. It is up to the parties to highlight

the passages that are important and is not for the Chamber to have to sort through a book
to find what is important.3354

chain of custody

Proof of chain of custody is not a sine que non of admissibility, especially

considering the difficulty of maintaining chain of custody in armed conflicts.3355

circumstantial evidence

Circumstantial evidence can often be sufficient to satisfy a fact finder beyond

reasonable doubt. There is nothing to prevent a conviction being based upon such
evidence.3356

computer files

Computer files may be admitted without a further showing of authenticity. The

mere fact that computer files may be manipulated is insufficient to preclude their
admission.3357

credibility of witnesses

accomplices

3352
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 29; Prosecutor v Dordevic, No.
IT-05-87/1-T, Decision on Prosecution’s Motion to Admit Exhibits from Bar Table (28 April 2009) at para.
5
3353
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at paras 297-98
3354
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Praljak Defence Request for Reconsideration or
for Certification to Appeal the Order of 14 October 2008 (12 November 2008)
3355
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 27
3356
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para 303
3357
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 31

550
 Accomplice testimony is not per se unreliable. However, it must be carefully
considered in light of the circumstances in which it was given. 3358

A trial chamber’s discretion to rely on uncorroborated, but otherwise credible,

witness testimony applies equally to the evidence of witnesses who may have motive to
implicate the accused, such as accomplices, provided that appropriate caution is exercised
in the evaluation of their testimonies. 3359

A trial chamber has the discretion to rely upon evidence of accomplice witnesses.
However, when weighing the probative value of such evidence, the trial chamber is
bound to carefully consider the totality of the circumstances in which it was tendered. In
particular, consideration should be given to circumstances showing that accomplice
witnesses may have motives or incentives to implicate the accused person before the
Tribunal or to lie. 3360

ambiguity

Where a Prosecution witness whose evidence is vital is able to clarify any

ambiguity in that evidence, and where the Prosecution does not seek to have the witness
do so, the inference is available that it did not do so because the evidence would not have
assisted the Prosecution case. That is not to say that such an inference ought always to be
drawn against the Prosecution, but its mere availability tends to render unsafe any
resolution of the ambiguity in favour of the Prosecution. 3361

benefits

The fact that a witness expected that the prosecution would intervene in his favor
with authorities prosecuting him did not mean that he was incapable of telling the
truth.3362

Witness who pled guilty and testified against the accused with the expectation of
benefits should be treated with caution and requires corroboration. 3363

Witnesses who sought benefits concerning their relocation must be corroborated

as there is a significant doubt concerning their credibility. 3364

bias

The reliabiblity of evidence originating from a party to the armed conflict may be
of concern to the Trial Chamber. 3365
3358
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 82
3359
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 135
3360
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2690
3361
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 452.
3362
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 248
3363
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 34
3364
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 38

551
 Evidence of witnesses who might have motives or incentives to implicate the
accused is not per se unreliable, especially where such a witness may be thoroughly
cross-examined; therefore, reliance upon this evidence does not, as such, constitute an
error of law. A trial chamber must, however, explain the reasons for accepting the
evidence of such a witness. 3366

Trial Chamber failed to give reasoned opinion when it accepted reliability of three
witnesses without discussing the impact of their association with a victim’s group. 3367

There is a tendency of witnesses associated with one party to the conflict to give
testimony that supports its perceived interests. The testimony of persons involved in a
bitter armed conflict is often coloured by experiences and attitudes arising from that
conflict.3368

In evaluating the testimony of prosecution investigators, the Trial Chamber

properly exercised caution in evaluating their evidence in view of their present or former
association with a party to these proceedings. 3369

The Trial Chamber did not err in holding that the fact that a witness was a current
or former Prosecution investigators did not render their testimony and reports
unreliable.3370

The accused’s arguments that the Prosecution investigators lacked sufficient

independence to provide reliable evidence or that their evidence fell outside the scope of
their personal knowledge or expertise was properly rejected.3371

corroboration

There is no general requirement that the testimony of a witness be corroborated if

deemed otherwise credible.3372

The testimony of a single witness, even as to a material fact, may be accepted

without the need for corroboration. With the exception of the testimony of a child not
given under solemn declaration, the Trial Chamber is at liberty, in appropriate
circumstances, to rely on the evidence of a single witness. 3373

3365
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Judgement (29 November 2012) at para. 653
3366
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 2690
3367
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para.62
3368
Prosecutor v Tolimir, No. IT-05-88/2-T, Judgement (12 December 2012) at para. 37
3369
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 77
3370
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 57
3371
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 79
3372
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 215
3373
Prosecutor v. Tadic, No. IT-94-1-A, Judgement (15 July 1999) at para 65; Prosecutor v Kupreskic et al,
No. IT-95-16-A, Judgement (23 October 2001) at para. 33

552
 The testimony of a single witness on a material fact does not, as a matter of law,
require corroboration. However, such evidence must be scrutinized with particular care
before relying upon it.3374

A reasonable trial chamber could have accepted an eywitness’ testimony even

without corroboration. 3375

Nothing prohibits a trial chamber from relying on credible witness testimony

uncorroborated by physical evidence. 3376

Evidence which has not been cross-examined and which goes to acts and conduct
of the accused or is pivotal to the prosecution case requires corroboration if used to
establish a conviction. 3377

A conviction may not be based solely or substantially upon the statement of a

witness who has not been cross examined without sufficient corroboration. 3378

Corroborating evidence may include pieces of evidence that, although originating

from the same source, arose under different circumstances, at different times and for
different purposes.3379

Generally a person cannot corroborate his or her own testimony. However,

evidence originating from the same person but at different times may be reflective of the
consistency of the witness’s testimony. 3380

Corroboration of testimonies, even by many witnesses, does not establish

automatically the credibility, reliability or weight of those testimonies and that it is
neither a condition nor a guarantee of reliability of a single piece of evidence. 3381

cultural factors

Notions of loyalty and honor, particularly strong in the culture of Kosovo

Albanians, had a bearing on the credibility of some witnesses in the case.3382

3374
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 9; Prosecutor v Kordic &
Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 274; Prosecutor v Limaj et al, No. IT-
03-66-T, Judgement (30 November 2005) at para. 21
3375
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1119
3376
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 904
3377
Prosecutor v Martic, No.IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber Decision on
the Evidence of Witness Milan Babic (14 September 2006) at para. 20
3378
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 23
3379
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Judgement on Allegations of Contempt (17
December 2008) at para. 41
3380
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 30
3381
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 103
3382
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 13

553
 criminal activity

A witness’ prior criminal record, criminal conduct, and personal drug use weigh
very negatively in an assessment of the credibility of a witness. 3383

factors

The assessment of a witness’ credibility is based on a number of factors, including

the witness's demeanour in court, his or her role in the events in question, the plausibility
and clarity of the witness's testimony, whether there are contradictions or inconsistencies
in his or her successive statements or between his or her testimony and other evidence,
any prior examples of false testimony, any motivation to lie, and the witness's responses
during cross-examination.3384

It is not unreasonable for a trial chamber to accept the substance of a witness's

evidence notwithstanding the witness's inability to recall certain details, especially when
a significant amount of time has elapsed since the events to which the witness's evidence
relates.3385

There is no requirement for a witness to record his evidence in a

contemporaneous document before his or her evidence can be relied on by a trial
chamber. 3386

mixed

It is not unreasonable for a trial chamber to accept some but reject other parts of a
witness's testimony. 3387

other Chambers

Two reasonable triers of facts may reach different but equally reasonable
conclusions when assessing the reliability of a witness and determining the probative
value of the evidence presented at trial. An error cannot be established by simply
demonstrating that other trial chambers have exercised their discretion in a different
way3388

3383
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 28
3384
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 200
3385
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 201
3386
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1648
3387
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at paras. 201, 1621
3388
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 396

554
 prior statements

A prior inconsistent statement may, in the discretion of the Trial Chamber, be

considered as substantive evidence, even when offered by the party calling the
witness.3389

Prior inconsistent statement would not be admitted as an exhibit where cross-

examination fully explored the prior statement, and the thrust was omissions, rather than
inconsistencies of the prior statement. 3390

A trial chamber has the discretion to accept a witness’s evidence, notwithstanding

inconsistencies between the said evidence and his previous statements. However, a trial
chamber must take into account any explanations offered for such inconsistencies when
determining the probative value of the evidence. 3391

Considering that minor inconsistencies commonly occur in witness testimony

without rendering it unreliable, it is within the discretion of a trial chamber to evaluate
discrepancies and to consider the credibility of the evidence as a whole, without
explaining its decision in every detail. 3392

It is normal for a witness in several trials about the same event or occurrence to
focus on different aspects of the event, depending on the identity of the person on trial
and the questions posed to the witness.3393

While prior inconsistent statements were introduced as substantive evidence, the

Trial Chamber declined to rely on those statements as the sole or principal basis for
establishing a fact where the witness recanted the statements during their testimony. 3394

Because the party does not seek to admit the prior statement in lieu of oral
testimony, but rather seeks only to elicit the oral testimony of the witness in light of the
inconsistency of the prior statement, the statement used to impeach the witness need not
satisfy the requirements of Rule 92bis of the Rules.3395

In-court viva voce evidence is generally more reliable than prior statements. This
is based on the indicia of reliability provided by cross-examination of in-court evidence.

3389
Prosecutor v Popovic et al, No. IT-05-88-AR73.3, Decision on Appeals Against Decision on
Impeachment of a Party’s Own Witness (1 February 2008) at paras. 31-32
3390
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Submissions in Support of Admission of
Prior Inconsistent Statements of a Witness for Purpose of Impeachment (6 May 2012) at para. 8
3391
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 136
3392
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 137
3393
Prosecutor v Galic, No. IT-98-29-A Decision on First and Third Rule 115 Defence Motions to Present
Additional Evidence before the Appeals Chamber (30 June 2005) at para 73
3394
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 14
3395
Prosecutor v Simic et al, No. IT-95-9-AR73.6, Decision on Prosecution Interlocutory Appeals on the
Use of Statements Not Admitted into Evidence Pursuant to Rule 92 bis as a Basis to Challenge Credibility
and to Refresh Memory (23 May 2003) at para. 18

555
A trial chamber preferring a witness’s prior statement to his or her viva voce evidence
should provide reasons for doing so. The Trial Chamber failed to provide such
reasons.3396

While not attesting to parts of a Rule 92 ter statement may not always amount to
giving inconsistent statements, the effect is the same in that the subsequent testimony in
court differs in substance from the initial statement. Unattested portions of Rule 92 ter
statements may therefore be treated the same as prior inconsistent statements. 3397

reasons

It was open to the Trial Chamber to rely on the evidence of certain witnesses over
that of other witnesses, without necessarily referring to the testimony of each and every
witness who testified on a given topic. 3398

cross examination

A complete absence of, or deficiency in, the cross examination of a witness, will
not automatically lead to the exclusion of the evidence. 3399

cumulative

When deciding on admissibility under Rule 89(C), the Chamber does not take into
account the fact that other admitted exhibits may speak to the same or similar issues as
the material before it.3400

diaries

Admission of the diary of a non-witness would cause unfairness to the accused

and was therefore refused.3401

discretion

A Trial Chamber has discretion to restrict or exclude otherwise admissible

evidence, so long as such restrictions have a legitimate purpose.3402

3396
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 614
3397
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Judgement (20 May 2013) at para.12
3398
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 189
3399
Prosecutor v Martic, No.IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber Decision on
the Evidence of Witness Milan Babic (14 September 2006) at para. 20
3400
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for the Admission of 68
Sarajevo Romanija Corps Documents from the Bar Table (16 June 2011) at para. 11
3401
Prosecutor v Delic, No. IT-04-83-T, Decision on Prosecution Submission on the Admission of
Documentary Evidence (16 January 2008) at para. 14
3402
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion to Admit
Documentary Evidence (10 October 2006) at para. 11

556
 documentary evidence

In order to be admitted, a document must have some relevance and some

probative value.3403

A party must demonstrate the relevance, probative value, and reliability of

evidence it seeks to have admitted. It must admit United Nations documents into
evidence through the trial process, not through judicial notice, where the documents
contain conclusions and other material which are not facts of judicial notice. 3404

Documents which challenge a witness’ credibility may be admitted even where

the witness states that he or she has no knowledge of the document or rejects its contents.
In such a case, the fact that a document goes to the witness’ credibility may constitute
sufficient nexus between the witness and the document to make it admissible, assuming it
is otherwise authentic and reliable. 3405

A trial chamber has a broad discretion when deciding the weight to be accorded to
an exhibit.3406

It is error for a Trial Chamber to rely on a document which was never admitted
into evidence.3407

Documents shown to a witness on cross-examination will not be admitted unless

adopted by the witness.3408

equality of arms

Trial Chamber erred in imposing higher standard on admission of defence videos

than that it had imposed on the prosecution. 3409

exclusion of evidence

3403
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on the Admissibility of Documents
of the Defence of Enver Hadzihasanovic (22 June 2005) at para. 21
3404
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Prosecution Motion for Judicial Notice of Facts
of Common Knowledge and Admission of Documentary Evidence Pursuant to Rules 94(A) and 89(C) (3
February 2006)
3405
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Guidelines for the Admission of Evidence
Through Witnesses (19 May 2010) at para. 11
3406
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1681
3407
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 865
3408
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Prosecution Motion for Reconsideration
Regarding Evidence of Defence Witnesses Mitar Balevic, Vladislav Jovanovic, Vukasin Andric, and Dobre
Aleksovski (17 May 2005) at para. 9; Prosecutor v Milosevic, No. IT-01-54-T, Decision on Admission of
Documents in Connection with Testimony of Defence Witness Dragan Jasovic (26 August 2005) at para. 25
3409
Prosecutor v Prlic et al, No. IT-04-AR73.16, Decision on Jadranko Prlic’s Interlocutory Appeal
Against the Decision on Prlic Defence Motion for Reconsideration on the Decision on the Admission of
Documentary Evidence (3 November 2009) at para. 44

557
 The factors to be considered when determining whether to exclude evidence
despite an impediment to the accused’s cross examination include (1) the importance of
the evidence; (2) whether there was an adequate opportunity for cross examination and
the stage of cross-examination that was reached; (3) whether the completed cross
examination was sufficient to fairly judge the witness’ credibility; (4) whether the
interruption of cross examination could have been avoided or evidence of the same value
was reasonably available some other way; (5) the presence of the witness before the
accused and the Court; (6) defence counsel’s opportunity to put prior inconsistent
statements before the Court; (7) defence counsel’s submissions on any areas of cross
examination which were not pursued before the interruption; (8) a common sense realistic
assessment of the likely impact cross examination would have if completed; (9) whether
the limitations on cross examination could be remedied or ameliorated, such as by
admitting prior testimony; and (10) the existence of evidence corroborating the witness’
testimony. 3410

Testimony of Milan Babic, who committed suicide after three days of cross-
examination, would not be excluded, but the defence would be allowed to introduce
contradictory evidence on areas in which it did not have the opportunity to cross
examine. 3411

expert witnesses

Source material for expert witnesses are not admitted for their substantive content,
but simply to enable the Chamber to verify the basis upon which the expert reached his or
her conclusions. 3412

DNA evidence would not be excluded where ICMP refused to produce material
on 14 out of 300 randomly selected cases where the material produced was sufficient to
be adequately tested.3413

Portions of exhumation reports that included conclusions on the cause of death

could not be admitted through the testimony of non-expert who participated in the
exhumations. 3414

3410
Prosecutor v Martic, No. IT-95-11-T, Decision on Defence Motion to Exclude the Testimony of Milan
Babic, Together with Associated Exhibits, from Evidence (9 June 2006) at para. 23
3411
Prosecutor v Martic, No. IT-95-11-T, Decision on Defence Motion to Exclude the Testimony of Milan
Babic, Together with Associated Exhibits, from Evidence (9 June 2006) aff’d Prosecutor v Martic, No.IT-
95-11-AR73.2, Decision on Appeal Against the Trial Chamber Decision on the Evidence of Witness Milan
Babic (14 September 2006)
3412
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Submission on the Relevancy of
Certain Documents Relating to the Testimony of Richard Phillips (9 July 2010) at para. 10
3413
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion to Exclude DNA Evidence
(16 April 2013) at paras. 6-8
3414
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Objection to Admission of Expert Reports
(10 April 2012) at T27240

558
 further investigation

Trial Chamber appointed expert to examine Mladic notebooks to determine if he

was the author and whether they were written at intervals over several years before
deciding whether to admit the notebooks.3415

Trial Chamber did not err in admitting Mladic notebooks into evidence in light of
the various indicia relied upon for admission. Trial Chamber was not required to ordering
a graphological analysis of the notebooks.3416

hearsay

Hearsay evidence is admissible as long as it is of probative value. It may be

relied upon by the Trial Chamber if reliable. 3417

Hearsay evidence is only admissible when the Trial Chamber is satisfied that the
evidence is reliable.3418 Reliability of a hearsay statement is relevant to its admissibility,
and not just its weight.3419

Trial Chambers have a wide discretion in admitting hearsay evidence although

establishing the reliability of this type of evidence is of paramount importance when
hearsay evidence is admitted as substantive evidence in order to prove the truth of its
contents.3420

Since hearsay evidence, once admitted, constitutes substantive evidence, it is

important that its reliability be established. 3421

Whether the hearsay is first-hand or removed is relevant to determine the

probative value of the evidence. 3422

3415
Prosecutor v Seselj, No. ICTR-03-67-T, Decision on Prosecution’s Motion for Admission of Evidence
Relating to Mladic Notebooks (22 October 2010) at para. 40
3416
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 121
3417
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 217; Prosecutor
v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para.493
3418
Prosecutor v Aleksovski, No. IT- 95-14/1-AR73, Decision on Prosecutor’s Appeal on Admission of
Evidence (16 February 1999) at para. 15; Prosecutor v Milosevic, No. IT-01-54-T, Decision on Testimony
of Defence Witness Dragan Jasovic (15 April 2005) at page 4
3419
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Second Motion for
Admission of Evidence Pursuant to Rule 92 bis (13 September 2006) at para. 5
3420
Prosecutor v Prlic et al, No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting
Transcript of Jadranko Prlic’s Questioning into Evidence (23 November 2007) at para. 52
3421
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 516
3422
Prosecutor v Aleksovski, No. IT- 95-14/1-AR73, Decision on Prosecutor’s Appeal on Admission of
Evidence (16 February 1999) at para. 15; Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying
Prosecution’s Second Motion for Admission of Evidence Pursuant to Rule 92 bis (13 September 2006) at
para. 5

559
 A trial chamber has the discretion to rely on hearsay evidence. The weight and
probative value to be afforded to hearsay evidence will ultimately depend upon the
infinitely variable circumstances that surround hearsay evidence. 3423

In determining whether to admit a hearsay statement, the Trial Chamber may

consider the content of the statement and the circumstances under which the evidence
arose.3424

A trial chamber has wide discretion as to the assessment of the weight and
probative value of hearsay evidence, but must proceed with caution in the assessment of
such evidence.3425

The probative value of hearsay evidence is usually less than the weight given to
the testimony of a witness who testified under oath and was cross-examined. 3426

Official reports of interviews and investigation by Serbian Ministry of Interior are

sufficiently reliable to be admitted.3427

The Trial Chamber was entitled to take into consideration the stage of the trial,
the length of time the accused had been in custody, and its finding that the witness was
not immediately available when deciding to admit hearsay evidence. 3428

The prosecution must establish the relevance and probative value of documentary
hearsay evidence beyond a reasonable doubt, whereas the defence is only required to
prove the relevance and probative value of such evidence on a balance of
probabilities.3429

Trial Chamber erred in failing to consider the relevant criteria for assessing the
weight and probative value of hearsay evidence. Accepting evidence that the witness was
told by “others” that the accused was the person in question was error, albeit harmless. 3430

identification evidence

Visual identification evidence is a category of evidence which is particularly

liable to error. Errors may occur even with the most honest, confident, and apparently
3423
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 126; Prosecutor v Popovic
et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1307
3424
Prosecutor v Aleksovski, No. IT- 95-14/1-AR73, Decision on Prosecutor’s Appeal on Admission of
Evidence (16 February 1999) at para. 15; Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29
November 2017) at para. 1331
3425
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1646
3426
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.787
3427
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Admission of Documents in Connection with
Testimony of Defence Witness Dragan Jasovic (26 August 2005) at para. 18-19
3428
Prosecutor v Aleksovski, No. IT- 95-14/1-AR73, Decision on Prosecutor’s Appeal on Admission of
Evidence (16 February 1999) at para. 19
3429
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 23
3430
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 387

560
impressive witnesses. Wrongful convictions based upon mistaken eyewitness
identifications have been known to result. Therefore, visual identification evidence is
treated with very special care.3431

An identification of an accused in a courtroom may well have been unduly and

unconsciously influenced by the physical placement of the accused and other factors
which make the accused the focus of attention in a courtroom. 3432

Factors considered in evaluating identification of an accused from a photo spread

include (1) whether the photograph was clear enough and matched the description of the
accused at the time of the events; (2) whether the accused blended with or stood out
among the foils; (3) whether a long time had elapsed between the sighting of the accused
and the photo spread identification; (4) whether the identification was made immediately
and with confidence; (5) whether there were opportunities for the witness to become
familiar with the accused prior to his identification, be it in person or through the media;
and (6) whether the procedure may in some way have encouraged the witness to make a
positive identification despite some uncertainty or encouraged the witness to identify the
accused rather than someone else. 3433

Identification evidence can be particularly liable to error. Even where a witness

appears to be honest, the Trial Chamber must be convinced that his or her evidence is
objectively reliable before it will be sufficient to establish a positive identification. In
assessing identification evidence, relevant factors include: (1)the circumstances in which
each witness claimed to have observed the accused; (2) the length of the observation; the
familiarity of the witness with the accused prior to the identification; and (3) the
description given by the witness of his or her identification of the accused. 3434

The Trial Chamber's treatment of the courtroom identification of the Appellant,

was proper. In any event, there was other evidence of identity. 3435

No probative weight should be attached to in-court identifications. In-court

identifications are inherently unreliable because all of the circumstances of a trial
necessarily lead such a witness to identify the person on trial. 3436
The Trial Chamber attached some weight to the in-court identifications and to the
extent that it did, it was in error.3437
The Appeals Chamber observes that identification evidence may be affected by
the length of time between the crime and the confrontation. 3438

3431
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 17
3432
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 18
3433
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 19; Prosecutor v
Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 137
3434
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement (10 June 2010) at para.55
3435
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 107
3436
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 27; Prosecutor v
Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para.120
3437
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 28
3438
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 30

561
 Absolute conviction in witness’ identification evidence was very much a
reflection of her personality and not necessarily an indicator of her reliability. Trial
Chamber erred in relying upon the identification. 3439

Identification evidence strict senso concerns the identification of a person the

witness had not previously known. Recognition evidence concerns the identification of a
person whom the witness knew from before. Both types of evidence must be treated with
caution as its quality may depend on many variables, such as the vagaries of human
perception or recollection.3440

When weighing identification evidence, Trial Chamber considered that photo

board identifications were not carried out in full compliance with OTP guidelines. 3441

The failure of a witness to identify a perpetrator in the courtroom

does not necessarily prevent a reasonable trier of fact from relying on that witness’s
testimony. 3442

Where a finding of guilt is made on the basis of identification evidence given by a

witness under difficult circumstances, the Trial Chamber needs to “carefully articulate the
factors relied upon in support of the identification of the accused and adequately address
any significant factors impacting negatively on the reliability of the identification
evidence”. This is required only when a witness’s identification was made under difficult
circumstances, such as in the dark or as a result of a fleeting glance. None of the
challenged identifications here occurred under difficult circumstances. 3443

A witness who has acquired sufficient knowledge of an accused may be

considered a “recognition” witness, whereas someone to whom the accused was
previously unknown by sight may be considered an “identification” witness. However, it
was not incumbent on the Trial Chamber to distinguish between recognition and
identification witnesses in the present case.3444

As part of its reasoned opinion, a Trial Chamber should articulate the basis on
which it was satisfied that the witness had prior knowledge of an accused and was
therefore able to recognize that individual at the crime scene. 3445

illegally-obtained evidence

Even if law enforcement’s secret recording of accused’s meeting with witness

was not in accordance with the laws of the State, it would be admissible where the

3439
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para 154
3440
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 29
3441
Prosecutor v Haradinaj et al, No. IT-04-84-T, Judgement (2 April 2008) at para. 31
3442
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 503
3443
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 382
3444
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 384
3445
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 118

562
manner and circumstances demonstrated the evidence was reliable, and it was also
relevant and had probative value. 3446

intercepted conversations

Evidence of intercepted conversations was a reliable source of information. 3447

Intercepted conversations were adequately authenticated with evidence from a

witness who recognized the voices of the speakers. 3448

Intercept evidence is a special category of evidence in that it does not bear any
prima facie indication of authenticity or reliability. These requirements may generally be
fulfilled by hearing from the relevant intercept operators or participants in the intercepted
conversations. However, intercepts may be admitted from the bar table where other
evidence in the case established the reliability and authenticity of the general collection
of intercepts.3449

Reliability of intercepts were shown by the procedures employed in producing the

intercepts and the methods used to promote reliability, including instructions issued to
and practices followed by the intercept operators, as well as the fact that some of the
intercepts were independently corroborated by other sources. 3450
Summaries of intercepted conversations noted down by intercept operators were
admissible. The lack of recordings or verbatim transcripts of the conversations were
matters which went to the weight of the evidence, not its admissibility. 3451

Intercepted conversations could be admitted even where both speakers are not
identified.3452

Intercepted conversations would not be admitted from the bar table until the end
of the defence case and upon a showing of authenticity.3453

3446
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4, Decision on Morina and Haraqija Second
Request for a Declaration of Inadmissibility and Exclusion of Evidence (24 November 2008) at para. 15
3447
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 30; Prosecutor
v Popovic et al, No. IT-05-88-T, Decision on Admissibility of Intercepted Conversations (7 December
2007)
3448
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying the Stanisic Motion for
Exclusion of Recorded Transcripts (6 December 2009) at para. 23
3449
Prosecutor v Tolimir, No, IT-05-88/2-T, Decision on Prosecution’s Motion for Admission of 28
Intercepts from the Bar Table (20 January 2012) at para. 14
3450
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 59
3451
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s First Bar Table Motion for the
Admission of Intercepts (14 May 2012) at para. 15; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Prosecution’s Second Bar Table Motion for the Admission of Intercepts (25 May 2012) at para. 11
3452
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Third Motion for the Admission
of Intercepts (Srebrenica) (24 May 2012) at para. 20; Prosecutor v Popovic et al, No. IT-05-88-A,
Judgement (30 January 2015) at para. 919
3453
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Bar Table Motion (Sarajevo
Intercepts) (9 October 2012) at paras. 8-10

563
 investigator testimony

The Trial Chamber was entitled to decline to admit conclusions of a prosecution

investigator on issues on which it was required to make its own findings. That
determination did not require expertise beyond that which was within any capacity of a
tribunal of fact.3454

Investigator could not testify as to summary of witness statements taken by OTP

since the statements themselves were not in compliance with Rule 92 bis and thus were
not admissible. The material being summarized must itself be admissible.3455

Testimony of OTP intelligence analyst accorded no weight as to his views,

conclusions, and analysis of the documents he obtained. 3456

Testimony of missing persons commission lawyer concerning statistics on

missing persons was reliable and admissible, but statements about the underlying events
were not.3457

not included in the indictment

There is no requirement that the actual evidence on which the Prosecutor relies
has to be included in the indictment. Where, in the course of the trial, evidence is
introduced which, in the view of the accused, does not fall within the scope of the
indictment, or is within the scope but in relation to which there is no corresponding
material fact in the indictment, the defence may challenge the admission of the evidence
or request an adjournment.3458

Where an event is not heralded in an indictment, Rule 65 ter summary or pre-trial

brief, it is open to a Trial Chamber not to admit such evidence, even if there are general
averments in the indictment that may in some way encompass the unheralded event.
Testimony of uncharged crimes excluded. 3459

Evidence regarding unscheduled incidents and the general situation can be used to
support conclusions on the existence of a pattern of conduct 3460

3454
Prosecutor v Milosevic, No. IT-01-54-AR73.2, Decision on Admissibility of Prosecution Investigator’s
Evidence (30 September 2002) at para. 17
3455
Prosecutor v Milosevic, No. IT-01-54-AR73.2, Decision on Admissibility of Prosecution Investigator’s
Evidence (30 September 2002) at para. 21
3456
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 35
3457
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on the Motion to Bar the Testimony and
Statement of Amir Masovic (12 November 2008) at para. 45
3458
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 147
3459
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Evidence Tendered Through Witness K82
(3 October 2006) at para. 12
3460
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 219

564
 Defence expert evidence on unscheduled shelling and sniping incidents was
relevant, as the alleged campaign of shelling and sniping was not limited to scheduled
incidents, and relates to challenges to the methodology used by the prosecution’s
witnesses as to scheduled incidents.3461

outside of the time period charged

The Trial Chamber did not abuse its discretion by relying on evidence of acts
committed outside of the period charged in the indictment insofar as it had probative
value in defining the development of the Common Purpose which was in place during the
relevant period of the Indictment as well as the role played by the accused during that
period.3462

Evidence as to Bosnian Serb Army treatment of Muslim population around

Srebrenica and shelling directed at civilians and peacekeepers in 1993 was irrelevant to
massacres in Srebrenica in 1995 and would be excluded. 3463

polygraph evidence

Without deciding on the admissibility of polygraph evidence, the Trial Chamber

determined that the evidence did not go to a central feature of the witness’ evidence and
was therefore not of sufficient probative value to be admitted.3464

principle of orality

Prior statements of witnesses who are available to be cross-examined may be

admitted into evidence even if they don’t comply with Rule 92 bis, such as by touching
on acts and conduct of the accused. The fact that the witness is present and can orally
attest to the accuracy of the written statement is sufficient to place this application
beyond the scope of Rule 92bis.3465

A determination of whether a written statement should be admitted in the interests

of justice under Rule 89(F) must be made by the Trial Chamber in relation to each
individual witness, in light of not only the surrounding circumstances, but also the
evidence to be given by the witness. 3466
3461
Prosecutor v Mladic, No. IT-09-92-T, Interim Decision regarding the Expert Reports of Mile Poparic
and Zorica Subotic (17 September 2015) at paras. 6-7
3462
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 123; Prosecutor v Dordevic,
No. IT-05-87/1-A, Judgement (27 January 2014) at para. 295
3463
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 73
3464
Prosecutor v Mladic, No. IT-09-92-T, Decision on the Admissibility of a Polygraph Report (19
January 2016) at para. 8
3465
Prosecutor v Milosevic, No. IT-01-54-AR73.4, Decision on Interlocutory Appeal on the Admissibility
of Evidence-in-Chief in the Form of Written Statements (30 September 2003) at para. 16
3466
Prosecutor v Milosevic, No. IT-01-54-AR73.4, Decision on Interlocutory Appeal on the Admissibility
of Evidence-in-Chief in the Form of Written Statements (30 September 2003) at para. 21

565
 Written statement and related exhibits admitted pursuant to Rule 89(F) where
witness’ statement did not directly relate to the accused, but contained information on the
political developments in the territory. 3467

An accused’s prior statements may be introduced without the presence of a

witness to authenticate them. The right to confront the witnesses against the accused
does not apply to the accused’s own statements. 3468

prior statements

Prior inconsistent statements of witnesses may be admitted as substantive

evidence pursuant to Rule 89(C).3469

Prior inconsistent statements of prosecution witness sought to be offered by the

prosecution after the witness had testified would not be admitted where the witness was
not provided the opportunity to explain the inconsistencies. 3470

Prior inconsistent statements contained in unattested parts of Rule 92 ter material

may be admitted as prior inconsistent statements when put to the witness. However, the
Chamber declined to admit such statements proprio motu where the witness claimed
forgetfulness and old age.3471

relevance

Evidence may be rejected for admission solely on the grounds of relevance. It

must be considered whether the evidence relates to a material issue at the trial. The
material issues are assessed by reference to the indictment.3472

Testimony of witnesses to show that Bosnian Muslims possessed modified air

bombs of the kind used in shellings charged against the accused was not of sufficient
relevance where the testimony dealt with an uncharged incident and was not based upon
firsthand knowledge.3473

3467
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motion for Admission of Statement of
Witness Milan Babic Pursuant to Rule 89(F) (10 February 2006)
3468
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 17
3469
Prosecutor v Limaj et al, No. IT-03-66-T, Decisions on the Prosecution’s Motions to Admit Prior
Statements as Substantive Evidence (25 April 2005)
3470
Prosecutor v Halilovic, No. IT-01-48-T, Decision on Admission into Evidence of Prior Statement of
Witness (5 July 2005)
3471
Prosecutor v Gotovina et al, No. IT-06-90-T, Guidance on the Admissiblity into Evidence of Unattested
Parts of Rule 92 ter Statements as Previous Inconsistent Statements (30 March 2010)
3472
Prosecutor v Prlic et al, No. IT-04-AR73,13, Decision on Jadranko Prlic’s Consolidated Interlocutory
Appeal against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence (12 January
2009) at para. 17
3473
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Prior
Testimony of Thomas Hansen and Andrew Knowles Pursuant to Rule 92 bis (22 August 2012) at para. 8

566
 Although the Trial Chamber was not consistent by first labelling the issue of the
2nd Battalion’s capacity to decode the telegrams as “important” when allowing it to be
admitted in the prosecution’s case, only to call it “peripheral” in its judgement, having
had the benefit of lengthy deliberations after all the evidence had been presented, the
Trial Chamber was best suited to determine the ultimate relevance of this issue. 3474

reliability

A pre-requisite for admission of evidence must be compliance by the moving

party with any relevant safeguards and procedural protections and it must be shown that
the relevant evidence is reliable. There may be circumstances where a statement of an
accused is taken in compliance with Rules 42 and 43 but should be excluded. 3475

Statement of deceased witness was not sufficiently reliable to be admitted under

Rule 89(C) where it was not made under oath, was not subject to cross-examination, was
not corroborated by other evidence, was not based on first hand information, and was
taken through an interpreter.3476

Reliability is a prerequisite to a showing of probative value necessary for

admission of evidence, particularly with respect to out of court written statements.3477

Relevance and probative value are the two prerequisites for admissibility under
Rule 89(C). Reliability is a factor in the assessment of relevance and probative value but
is not itself a separate requirement. 3478

Definite proof of reliability is not necessarily required in order for a document to

be admitted. Prima facie proof of reliability on the basis of sufficient indicia is enough at
the admissibility stage.3479

Book which quoted the accused was not sufficiently reliable to be admitted from
the bar table where it was not established whether the quotes were accurate. 3480

3474
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1353
3475
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion to Exclude Interview of the Accused
Pursuant to Rules 89(D) and 95 (7 February 2006) at para. 23
3476
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-AR73.5, Decision on Appeal Regarding Statements of a
Deceased Witness (21 July 2000) at para. 27
3477
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Evidence Tendered Through Sandra
Mitchell and Frederick Abrahams (1 September 2006) at para. 9
3478
Prosecutor v Prlic et al, No. IT-04-AR73.16, Decision on Jadranko Prlic’s Interlocutory Appeal
Against the Decision on Prlic Defence Motion for Reconsideration on the Decision on the Admission of
Documentary Evidence (3 November 2009) at para. 33
3479
Prosecutor v Prlic et al, No. IT-04-AR73,13, Decision on Jadranko Prlic’s Consolidated Interlocutory
Appeal against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence (12 January
2009) at para. 15
3480
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision on Prosecution Motion to Admit Evidence
from the Bar Table, Revise its 65 ter Witness and Exhibit Lists, and Admit Evidence Pursuant to Rule 92 ter
(26 January 2012) at para. 31

567
 statements of the accused

Statements made by the accused in the presence of counsel are presumed to be

made knowing of the right to remain silent.3481

Only flagrant incompetent advocacy would justify exclusion of a statement of the

accused on the ground of ineffective assistance of counsel. 3482

Divergent political and personal views during the indictment period did not arise
to the level of conflict of interest on the part of defence counsel such that the statement of
the accused, taken in his presence, should not be admitted.3483

Statements not taken in accordance with national laws are not per se inadmissible
but are evaluated under Rules 89 and 95.3484

Notes and reports of Macedonian commission provided to the accused to correct

and sign, were sufficiently reliable to be admitted, whereas report of statement not taken
down verbatim and not reviewed by the accused was not sufficiently reliable to be
admitted. 3485

The prosecution bears the burden of establishing all factors of the reliability of a
statement of the accused which it offers in evidence. 3486

Testimony of accused in another trial admitted in his own trial where he had been
advised of his rights prior to giving the testimony and waived them. 3487

An accused cannot invoke his right against self incrimination to block admission
of a statement freely given after being advised of his right to remain silent. 3488

3481
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 15
3482
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion to Exclude Interview of the Accused
Pursuant to Rules 89(D) and 95 (7 February 2006) at para. 26
3483
Prosecutor v Prlic et al, No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting
Transcript of Jadranko Prlic’s Questioning into Evidence (23 November 2007) at para. 25
3484
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Prosecution Motion for Admission
into Evidence of Documents…(7 December 2007) at para. 18
3485
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Prosecution Motion for Admission
into Evidence of Documents…(7 December 2007) at paras. 41-43
3486
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion to Exclude Interview of the Accused
Pursuant to Rules 89(D) and 95 (7 February 2006) at para. 22
3487
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Prosecution’s Motion to Admit into Evidence
Transcripts of Vojislav Seselj’s Testimony in the Milosevic Case (30 October 2007)
3488
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 15

568
 Statement of accused excluded where prosecution linked statement to its position
on provisional release, failed to put on the record discussions during a break in the
recording, and the accused was not represented by competent counsel. 3489

Creating a privilege to exclude statements made during the course of a national

investigation of suspected war crimes would compromise the Tribunal’s discretion to
admit evidence under Rule 89 by potentially precluding the Tribunal from considering
vital pieces of evidence and consequently undermining the Tribunal’s ability to fulfill its
mandate. It could also create an impromptu immunity, allowing those responsible for the
commission of war crimes to comply with national investigations and thereafter rely on
the exemption to exclude incriminatory evidence form subsequent criminal
proceedings.3490

Defective translation of the statement, faulty interpretation of the questions to the

accused, and alleged aggressive manner in which the interview was conducted did not
warrant exclusion of the statement of the accused. 3491

statements by the coaccused

Recorded “suspect” interview of accused was admissible against co-accused

despite the lack of cross examination, and the weight to be given to the interview
statements would be determined when deliberating on the judgement.3492

In order to properly ensure the rights of all co-accused, a trier of fact is required to
carry out a careful balancing of the probative value of the suspect’s questioning to be
admitted into evidence, taking into account all of the circumstances of the case. 3493

Recorded “suspect” interview of accused was admissible against co-accused.

However, it could not be used as evidence of any critical element of the prosecution case
unless corroborated. This is wider in scope than the “acts and conduct of the
accused.”3494

3489
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 65
3490
Prosecutor v Boskoski & Tarculovski v. Boškoski, No. IT-04-82-A, Judgement (19 May 2010) at paras
190 – 191.
3491
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion to Exclude Interview of the Accused
Pursuant to Rules 89(D) and 95 (7 February 2006) at paras. 24-28
3492
Prosecutor v Prlic, No. IT-04-74-T, Decision on Request for Admission of the Statement of Jadranko
Prlic(22 August 2007); Prosecutor v Gotovina et al, No. IT-06-90-T, Reasons for the Admission into
Evidence of the Interviews of the Accused Ivan Cermak and Mladen Markac and Associated Exhibits (17
April 2009) at para. 14
3493
Prosecutor v Popovic et al, No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting
Material Relating to Borovcanin’s Questioning (14 December 2007) at para. 51
3494
Prosecutor v Prlic et al, No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting
Transcript of Jadranko Prlic’s Questioning into Evidence (23 November 2007) at para 59

569
 Statements of co-accused that went to the acts and conduct of the accused not
admitted where accused had no opportunity to cross examine the accused. 3495

Interview of accused was not inadmissible against co-accused despite fact that
trials were joined upon motion of prosecution and therefore the co-accused could not
cross-examine the accused on his statement. However, in certain circumstances, it may
be appropriate for the Trial Chamber to safeguard the rights of the co-accused by
severing proceedings, excluding certain evidence, or calling or recalling certain witnesses
to be examined in court.3496

Where defence had relied upon position of prosecution that statement of accused
could not be admitted against co-accused, the Trial Chamber would not admit the
statements after an intervening decision of the Appeals Chamber allowed such use of the
statements.3497

statements by NGOs

Statements taken by NGOs were not “prepared for the purpose of legal
proceedings before the Tribunal” as that phrase is used in the jurisprudence of the
Tribunal, but were nevertheless inadmissible because an insufficient showing of
reliability was made. 3498

statements by third parties

Statement of third party who ultimately was not called as a witness could not be
used for the truth of its contents, but was admitted for the limited purpose of assessing the
contradictions between the statement and the testimony of other witnesses to the extent
that the statement had been put to those other witnesses. 3499

Statement of third party put to a witness would not be admitted if the witness
cannot confirm the statement.3500

Statement of third party admissible when reference in expert report. 3501

3495
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Prosecution Motion for Admission
into Evidence of Documents…(7 December 2007) at para. 46
3496
Prosecutor v Popovic et al, No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting
Material Relating to Borovcanin’s Questioning (14 December 2007) at para 46
3497
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Use of Prosecution Interviews of Accused
(20 March 2008)
3498
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Evidence Tendered Through Sandra
Mitchell and Frederick Abrahams (1 September 2006) at para. 19, 22; Prosecutor v Milutinovic et al, No.
IT-05-87-T, Decision on Evidence Tendered Through Fuat Haxhibeqiri (8 September 2006); Prosecutor v
Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Second Motion for Admission of
Evidence Pursuant to Rule 92 bis (13 September 2006)
3499
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Motion for Removal from Evidence
of Momir Nikolic’s Statement of Facts (6 February 2008)
3500
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Second Motion for Admission of
Documents Previously Marked for Identification (16 December 2010) at para. 6

570
 Statements taken for the purpose of the present litigation are governed by Rule 92
bis and 92 ter, while statements taken by third-parties are governed by Rule 89(C).3502

Statement of prosecution investigators concerning utterances of the accused in

court were prepared for the litigation and went to the acts and conduct of the accused,
therefore their admission under Rules 89 and 92 bis were denied.3503

summaries

Summaries by a party of written statements of potential witnesses are

inadmissible. Parties may not circumvent the requirements of Rule 92 bis by seeking to
admit summaries under Rule 89(C). 3504

However, summaries by a non-party may be admissible provided that the witness

through whom the summaries are tendered can give evidence on the stand showing
sufficient indicia of reliability. 3505

Summaries by a non-party may be admissible since they are not subject to Rule
92 bis. However, the statements summarized must be reliable, as well as the method by
which the statements are summarized. The absence of cross-examination must also be
considered.3506

tu quoque

It may be legitimate to present exhibits proving the other side’s attacks upon the
civilian population of an accused’s camp if they go to refute, for example, allegations of a
widespread or systematic attacks perpetrated upon a civilian population, allegations of the
existence of a plan of concerted attacks upon several villages or perhaps to explain the
behaviour of the accused, or even to provide information on the organisation and
activities of the BH Army or the HVO. However, it is important in this instance that such
evidence addresses places appropriately defined.3507

3501
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion for Admission of Exhibits Cited
in Expert Report of Christian Nielsen (9 May 2013) at paras. 39,43,56
3502
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on the Motion to Bar the Testimony and
Statement of Amir Masovic (12 November 2008) at paras. 17-18
3503
Prosecutor v Mladic, No. IT-09-92-T, Decision on the Prosecution’s Motion for Admission of the
Utterances of the Accused (4 June 2013) at para. 6
3504
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Evidence Tendered Through Sandra
Mitchell and Frederick Abrahams (1 September 2006) at para. 14; Prosecutor v Lukic & Lukic, No. IT-98-
32/1-T, Decision on the Motion to Bar the Testimony and Statement of Amir Masovic (12 November 2008)
at para. 20
3505
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Evidence Tendered Through Sandra
Mitchell and Frederick Abrahams (1 September 2006) at para. 15
3506
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on the Motion to Bar the Testimony and
Statement of Amir Masovic (12 November 2008) at para. 21
3507
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Praljak DefenceMotion for Admission of
Documentary Evidence (1 April 2010) at para. 80

571
 waiver

Defence waived objection to statement of witness being admitted from the bar
table by failing to object at the time the statement was tendered. 3508

Rule 90—testimony of witnesses

(A) Every witness shall, before giving evidence, make the following solemn
declaration: "I solemnly declare that I will speak the truth, the whole truth and
nothing but the truth".
(B) A child who, in the opinion of the Chamber, does not understand the nature
of a solemn declaration, may be permitted to testify without that formality, if the
Chamber is of the opinion that the child is sufficiently mature to be able to report
the facts of which the child had knowledge and understands the duty to tell the
truth. A judgement, however, cannot be based on such testimony alone.
(C) A witness, other than an expert, who has not yet testified shall not be present
when the testimony of another witness is given. However, a witness who has heard
the testimony of another witness shall not for that reason alone be disqualified from
testifying.
(D) Notwithstanding paragraph (C), upon order of the Chamber, an investigator
in charge of a party’s investigation shall not be precluded from being called as a
witness on the ground that he or she has been present in the courtroom during the
proceedings.
(E) A witness may object to making any statement which might tend to incriminate
the witness. The Chamber may, however, compel the witness to answer the question.
Testimony compelled in this way shall not be used as evidence in a subsequent
prosecution against the witness for any offence other than false testimony.
(F) The Trial Chamber shall exercise control over the mode and order of
interrogating witnesses and presenting evidence so as to
(i) make the interrogation and presentation effective for the ascertainment of the
truth; and
(ii) avoid needless consumption of time.
(G) The Trial Chamber may refuse to hear a witness whose name does not appear
on the list of witnesses compiled pursuant to Rules 73 bis (C) and 73 ter (C).
(H) (i) Cross-examination shall be limited to the subject-matter of the evidence-in-
chief and matters affecting the credibility of the witness and, where the witness is
able to give evidence relevant to the case for the cross-examining party, to the
subject-matter of that case.
(ii) In the cross-examination of a witness who is able to give evidence relevant to the
case for the cross-examining party, counsel shall put to that witness the nature of
the case of the party for whom that counsel appears which is in contradiction of the
evidence given by the witness.
(iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into
additional matters.

3508
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for Reconsideration of Decision
Admitting Charts of Amor Masovic (19 September 2016) at para. 12

572
 accused as witness

While the accused is giving testimony, he shall have no communication with his
lawyer except by seeking permission from the Trial Chamber in writing, setting forth the
reasons for the contact.3509

Trial Chambers have discretion to determine when an accused may testify in his
own defence, but this power must nevertheless be exercised with caution, as it is, in
principle, for both parties to structure their cases themselves, and to ensure that the rights
of the accused are respected, in particular his or her right to a fair trial. 3510

The fact that the accused testified before any other defence witnesses were called
counts in his favor in the assessment of credibility. 3511

Trial Chamber did not err in requiring accused to be examined by his counsel, despite the
breakdown in communication between them. 3512

Trial Chamber erred in narrowly defining special circumstances in which an

accused represented by counsel would be allowed to put questions to witnesses himself.
Such circumstances should not be limited to matters in which the accused had personally
participated or had special expertise at the time of the offence. 3513

Trial Chamber did not err in requiring the accused to give testimony before the
expert witness. 3514

An accused is entitled to appear as a witness in his own defence. There are no

restrictions with regard to when, during the defence case, the accused can choose to
exercise this right.3515

An accused, unlike other witnesses, may consult with his counsel during the
duration of his testimony. 3516 This applies to cross examination by the prosecution, even
after it had disclosed to counsel the documents it would use in cross examination. 3517

3509
Prosecutor v Krajisnik, No. IT-00-39-T, Finalized Procedure on Chamber Witnesses, Decisions and
Orders on Several Evidentiary and Procedural Matters (24 April 2006) at para. 31
3510
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 20
3511
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 22
3512
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 28
3513
Prosecutor v Prlic et al, No. IT-04-74-AR73.11, Decision on Slobodan Praljak’s Appeal of the Trial
Chamber’s Decision on the Direct Examination of Witnesses Dated 26 June 2008 (11 September 2008) at
paras. 21-22
3514
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 22
3515
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 228
3516
Prosecutor v Prlic et al, No. IT-04-74-AR73.10, Decision on Prosecution’s Appeal Against Trial
Chamber’s Order on Contact between the Accused and Counsel During an Accused’s Testimony Pursuant
to Rule 85(C)(5 September 2008); Prosecutor v Prlic et al, No. IT-04-74-T, Order on the Mode of
Examining an Accused Pursuant to Rule 85(C) of the Rules (1 July 2008)

573
 Accused would be allowed contact with his defence team during his testimony,
but they could not discuss the substance of his testimony or show him the documents
notified by the prosecution to be used during his cross-examination.3518

There is no reason for departing from the well-established practice of question-

and-answer format when it comes to a self-represented accused's testimony. Narrative
testimony of the accused would not be more effective and time-saving than the standard
question-and-answer form. Therefore, the accused shall testify in question-and answer
form, with his legal advisor to put questions to him during his testimony. 3519

compelled testimony

Witness whose case was pending on appeal was protected by Rule 90(E) and
could be compelled to testify on behalf of accused in another case. 3520

Rule 90(E) prohibits the direct and indirect or derivative use of compelled
statements against a person in another proceeding. 3521

Any self-incriminatory testimony inadvertently provided by a witness who is also

an accused at the Tribunal cannot be used against the witness in his own case. 3522

The protection afforded by Rule 90(E) against use of compelled testimony

extends only before the Tribunal and does not bind national authorities. However, a
witness may request a closed session to avoid disclosure of his testimony to national
authorities. 3523

Compelled testimony in national court of Bosnia is not necessarily inadmissible

against the accused at the Tribunal or in other national jurisdictions. 3524

3517
Prosecutor v Prlic et al, No. IT-04-74-T, Order Clarifying the Relationship Between Counsel and an
Accused TestifyingWithin the Meaning of Rule 85(C) of the Rules (11 June 2009)
3518
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Request for Access to and Communictions With
Counsel During Goran Hadzic’s Testimony (2 July 2014) at paras. 15-16
3519
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Prosecutor’s Submission on form of
Karadzic’s Testimony (27 January 2014) at T45933-36
3520
Prosecutor v Karadzic, No. IT-95-5/18-AR73.11, Decision on Appeal against the Decision on the
Accused’s Motion to Subpoena Zdravko Tolimir (13 November 2013) at para. 45; Prosecutor v Karadzic,
No. IT-9505/18-T, Decision on Accused’s Motion to Subpoena Zdravko Tolimir (9 May 2013) at para. 22;
Prosecutor v Karadzic, No. IT-9505/18-T, Decision on Accused’s Motion to Subpoena Ljubisa Beara (9
May 2013) at para. 16; Prosecutor v Karadzic, No. IT-9505/18-T, Decision on Accused’s Motion to
Subpoena Radivoje Miletic (9 May 2013) at para. 16
3521
Prosecutor v Karadzic, No. IT-95-5/18-AR73.11, Decision on Appeal against the Decision on the
Accused’s Motion to Subpoena Zdravko Tolimir (13 November 2013) at para. 43
3522
Prosecutor v Karadzic, No. IT-95-5/18-AR73.11, Decision on Appeal against the Decision on the
Accused’s Motion to Subpoena Zdravko Tolimir (13 November 2013) at para. 44
3523
Prosecutor v Perisic, No. IT-04-81-T, Decision on Prosecution Motion for an Advance Ruling on the
Scope of Permissible Cross Examination (12 June 2009) at para. 21
3524
Prosecutor v Mladic, No IT-09-92R75 bis, Second Decision on Request for Assistance from the Court
of Bosnia and Herzegovina Pursuant to Rule 75 bis (21 December 2011) at para. 10

574
 cross examination

credibility

The defence has the right to ask a witness pointed questions in order to test his or
her credibility or reliability even though this may be an unpleasant experience for the
witness.3525

Subject to the overriding requirement of relevance, the Rules do not limit the
scope of matters which may be inquired into on cross-examination which is directed
solely at the credibility of the witness. 3526

Where a party wishes to confront a witness with allegations that the witness has
engaged in serious criminal conduct, that party must have reasonable grounds to do so at
the time the allegations are made. Reasonable grounds does not require that the party
have incontrovertible evidence of wrongdoing; it does however require more than mere
hunch, innuendo, or unsubstantiated hearsay. 3527

It would be unfair to preclude cross examination into pending criminal case

against prosecution witness since cross examination may extend to matters of
credibility. 3528

limitations

The Trial Chamber’s time limitations on cross examination did not violate rights
of accused where there was sufficient flexibility in that the time limit could be modified
as necessary by the Trial Chamber. 3529

Recognizing that the procedure for hearing witness at the Tribunal is rooted in the
adversarial process, it is important to be cautious in removing safeguards that belong to
that process for reasons of fairness to the parties or for ascertaining the truth. 3530

The right of cross examination is not absolute.3531 Trial Chamber was reasonable
in admitting testimony of witness who died while in the midst of cross examination
3525
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Cross Examination of Milorad Davidovic (15
December 2005) at para. 8
3526
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Cross Examination of Milorad Davidovic (15
December 2005) at para. 8
3527
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Cross Examination of Milorad Davidovic (15
December 2005) at para. 9
3528
Prosecutor v Perisic, No. IT-04-81-T, Decision on Prosecution Motion for an Advance Ruling on the
Scope of Permissible Cross Examination (12 June 2009) at para. 18
3529
Prosecutor v Prlic et al, No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal
Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross Examination by Defence and
Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief (4 July 2006)
3530
Prosecutor v Popovic et al, No. IT-05-88-AR73.3, Decision on Appeals Against Decision on
Impeachment of a Party’s Own Witness (1 February 2008) at para. 24

575
where it determined that cross examination had been adequate to determine reliability and
credibility of witness. 3532

Trial Chamber excluded testimony of witness who testified on direct examination

by fell ill before he could be cross examined on substantive matters. The prejudicial
effect of admitting his testimony, which went to the acts and conduct of the accused, and
which was not corroborated, outweighed its probative value. 3533

A party must make a substantiated allegation of misconduct on the part of counsel

before they will be permitted to ask questions about the conduct of counsel during pre-
trial meetings.3534

There was sufficient substantiation of improper prosecution conduct in dictating

the content of the witness’ statement to allow the defence to cross examine the witness on
the conduct of prosecution counsel during the pre-trial meeting. 3535

relevant to one’s own case

Rule 90(H) should be interpreted broadly as authorizing the cross examining party
to ask questions relevant to its own case, even when those questions go to matters that
were not raised in the direct examination. 3536

The prosecution may ask questions on cross-examination which relate to its case,
even though it has finished presenting its case. 3537

When eliciting evidence beyond the scope of direct examination for the benefit of
the party’s own case, leading questions are not permitted.3538

3531
Prosecutor v Martic, No.IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber Decision on
the Evidence of Witness Milan Babic (14 September 2006) at para. 12; Prosecutor v Haraqija & Morina,
No. IT-04-84-R77.4A, Judgement (23 July 2009) at para. 61
3532
Prosecutor v Martic, No.IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber Decision on
the Evidence of Witness Milan Babic (14 September 2006)
3533
Prosecutor v Haradinaj et al, No. IT-04-84-T, Reasons for Trial Chamber’s Decision to Exclude the
Evidence of Witness 55 Under Rule 89(D) and to Deny His Testimony Pursuant to Rule 92 Quarter (14
December 2007) at para. 10
3534
Prosecutor v Perisic, No. IT-04-81-T, Written Reasons for Oral Decision on Defence Application for
Permission to Cross Examine Muhamed Sacirbey Regarding his Pre-Trial Statements to the Prosecution (8
July 2009) at para. 16
3535
Prosecutor v Perisic, No. IT-04-81-T, Written Reasons for Oral Decision on Defence Application for
Permission to Cross Examine Muhamed Sacirbey Regarding his Pre-Trial Statements to the Prosecution (8
July 2009) at para. 19
3536
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Scope of Cross Examination Under Rule 90(H) of
the Rules (27 November 2008) at para. 11
3537
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Scope of Cross Examination Under Rule 90(H) of
the Rules (27 November 2008) at para. 12
3538
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Mode of Interrogating Witnesses (10 May
2007) at para. 13; Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motion on Use of
Leading Questions …(4 July 2008) at para. 19; Prosecutor v Stanisic & Simatovic, No. IT-03-69-T,

576
 When a party elicits information favorable to its case during cross examination,
pursuant to Rule 90(H), it may do so through leading questions. 3539

Rule 90(H)’s provision that the scope of cross examination shall include matters
relating to the credibility of the witness and matters in which the witness can assist the
case of the cross examining party are important for effective utilization of an accused’s
right to confront the witness’ brought against him and their restriction would appear to be
patently unfair.3540

In exceptional circumstances, the prosecution may introduce inculpatory

documents in its cross examination of defence witnesses upon a showing of when and by
what means it obtained the documents, when it disclosed them to the defence, and why
they are being offered only at the conclusion of their case. The defence would be granted
time to offer evidence in rebuttal or to conduct additional examination of the witness if
the prosecution evidence is admitted.3541

Trial Chamber has the discretion to admit fresh evidence from the prosecution in
its cross examination of defence witnesses, taking into account the probative value of the
evidence and the need to ensure a fair trial. 3542

Trial Chamber erred in failing to determine whether prosecution exhibits used to

cross examine defence witness and not contained on prosecution witness list could be
admitted for impeachment only or as substantive evidence, and in failing to consider
alternative remedies to ameliorate prejudice to the accused. 3543

Documents disclosed by defence for possible use during cross examination of

prosecution witnesses may be used by the prosecution as exhibits. 3544

Decision on Submissions by Stanisic Defence Regarding Prosecution’s Rule 90(H)(ii) Obligations During
Cross Examination of Defence Witness Borislav Pelevic (12 June 2012) at para. 11
3539
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Objection to Leading Questions (22
January 2013) at T32383-84
3540
Prosecutor v Milutinovic et al, No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against
Second Decision Precluding the Prosecution from Adding General Wesley Clark to its 65 ter Witness List
(20 April 2007) at para. 20
3541
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Presentation of Documents by the Prosecution in
Cross Examination of Defence Witnesses (27 November 2008) at paras. 20-21; affirmed by Prosecutor v
Prlic et al, No. IT-04-74-AR73.14, Decision on the Interlocutory Appeal Against the Trial Chamber’s
Decision on Presentation of Documents by the Prosecution in Cross Examination of Defence Witnesses (26
February 2009) at para. 24
3542
Prosecutor v Prlic et al, No. IT-04-74-AR73.14, Decision on the Interlocutory Appeal Against the Trial
Chamber’s Decision on Presentation of Documents by the Prosecution in Cross Examination of Defence
Witnesses (26 February 2009) at para. 23
3543
Prosecutor v Delic, No. IT-04-83-AR73.1, Decision on Rasim Delic’s Interlocutory Appeal Against
Trial Chamber’s Oral Decisions on Admission of Exhibits 1316 and 1317 (15 April 2008)
3544
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Joint Defence Motion to Prohibit Use of
Defence Documents by the Prosecution (5 December 2008)

577
 by the accused

An accused represented by counsel may only cross examine a witness in

exceptional circumstances. Those circumstances will ordinarily be linked to events in
which the accused took part of issues in which the accused is particularly competent. 3545

Trial Chamber declined to allow represented accused to examine witness where

he had neither legal training nor expertise to interrogate witnesses in court.3546

Restrictions on the accused’s right to question witnesses when represented by

counsel were reasonable where Trial Chamber retained the flexibility to allow the
accused to cross examine the witness after his counsel. 3547

direct examination

When a party wishes to ask leading questions on direct examination, it must

notify the Trial Chamber and parties that it is challenging its own witness. The evidence
so elicited may include challenges on the substantive issues of the testimony as well as
credibility. 3548

The Trial Chamber, and not a party, shall be the one to determine whether the
party may impeach or cross-examine its own witness.3549

It is not necessary that a witness be declared “hostile” for a party to put

inconsistent statements to its own witness if the Trial Chamber determines it to be in the
interest of justice. 3550

putting one’s case to a witness

Rule 90(H)(ii) imposes an obligation on a party to put to a witness in cross-

examination the nature of its case which is in contradiction with the evidence of that
witness. This may well include that party’s assessment of the character of the witness. 3551

3545
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Mode of Interrogating Witnesses (10 May
2007) at paras. 11-12
3546
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Motion for Reconsideration Presented by the
Praljak Defence (26 June 2008)
3547
Prosecutor v Prlic et al, No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s
10 May 2007 Decision on the Mode of Interrogating Witnesses (24 August 2007)
3548
Prosecutor v Popovic, No. ICTR-05-88-T, Decision on Certification and Clarification of the Trial
Chamber’s Oral Decision on Impeachment of a Party’s Own Witness (21 November 2007) at paras. 15-16
3549
Prosecutor v Popovic et al, No. IT-05-88-AR73.3, Decision on Appeals Against Decision on
Impeachment of a Party’s Own Witness (1 February 2008) at para. 26
3550
Prosecutor v Popovic et al, No. IT-05-88-AR73.3, Decision on Appeals Against Decision on
Impeachment of a Party’s Own Witness (1 February 2008) at para. 28
3551
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Cross Examination of Milorad Davidovic (15
December 2005) at para. 8

578
 Rule 90(H)(ii) requires the cross examining party to put the nature of its case,
meaning the substance of the contradictory evidence, and not every detail that the party
does not accept, to the witness if the party contests the evidence of the witness, and
allows for a certain flexibility. 3552

If it is obvious in the circumstances of the case that the version of the witness is
being challenged, there is no need for the cross examining party to waste time putting its
case to the witness. 3553

Putting one’s case to the witness is only required when a cross examining party is
eliciting evidence relating to the subject matter of his own case, and when he intends to
elicit contradictory evidence from other witnesses or otherwise challenge the credibility
of the witness on that point.3554

Trial Chamber will not rule on violations of Rule 90(H)(ii) in the abstract and
provide guidelines, but will rule on a case-by-case basis where specific violations of Rule
90(H)(ii) are alleged.3555

The cross examining party fulfils its duty to put to the witness “the nature of its
case” by explaining the general substance of that portion of its case which conflicts with
the evidence of the witness. The party need not explain in every detail the evidence it
intends to adduce, nor identify the witness or the provenance of the contradictory
evidence.3556

When the cross examining party fails to satisfactorily put to the witness the nature
of its case, it runs the risk of later not being able to adduce the contrary evidence. 3557

The defence is not required to put the nature of its case in contradiction to the
evidence of prosecution witnesses. However, its failure to do so may result in the

3552
Prosecutor v Oric, No. IT-03-68-T, Decision on Partly Confidential Defence Motion Regarding the
Consequences of a Party Failing to Put its Case to Witnesses Pursuant to Rule 90 (H) (ii) (17 January
2006); Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision on Prosecution’s Motion Seeking
Clarification in Relation to the Application of Rule 90(H)(ii)(12 May 2010) at para. 17
3553
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision on Prosecution’s Motion Seeking
Clarification in Relation to the Application of Rule 90(H)(ii)(12 May 2010) at para. 17
3554
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Guidance on Rule 90(H)(ii) and Decision on
Stanisic Defence Submissions on Rule 90(H)(ii) (19 October 2011) at para. 15
3555
Prosecutor v Oric, No. IT-03-68-T, Decision on Partly Confidential Defence Motion Regarding the
Consequences of a Party Failing to Put its Case to Witnesses Pursuant to Rule 90 (H) (ii) (17 January
2006)
3556
Prosecutor v Popovic et al, No. IT-05-88-T, Order Setting forth Guidelines for the Procedure Under
Rule 90(H)(ii) (6 March 2007) at para. 2
3557
Prosecutor v Popovic et al, No. IT-05-88-T, Order Setting forth Guidelines for the Procedure Under
Rule 90(H)(ii) (6 March 2007) at para. 3; ); Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision
on Prosecution’s Motion Seeking Clarification in Relation to the Application of Rule 90(H)(ii)(12 May
2010) at para. 21

579
Chamber giving little or no weight to its contradictory evidence that was not put to th e
prosecution witness.3558

If the cross examining party puts specific evidence to the witness, it will be
expected to adduce such evidence. 3559

According to the circumstances of the case, such as complexity or scope of the

indictment, the Chamber will adopt a flexible approach, allowing the defence latitude in
presenting evidence that goes against particular aspects of the prosecution witness’
testimony which it overlooked in cross-examination.3560

In order for Rule 90(H)(ii) to apply, the witness must testify, during cross
examination, to something in contradiction to the cross-examining party’s case. Absent
any contradictory evidence from the witness, there is no obligation to further explore the
issue or “put” one’s case to the witness. 3561

The prosecution was not required to have put all aspects of its case when cross
examining the accused and the Chamber would not automatically find in the accused’s
favor as to all matters that were not put to him. 3562

refreshing memory
A prior statement may be used to refresh the memory of a witness under cross-
examination3563, and direct examination. 3564
Because the party does not seek to admit the prior statement in lieu of oral
testimony, but rather seeks only to elicit the oral testimony of the witness after the
memory of the witness has been refreshed, the statement shown to the witness need not
satisfy the requirements of Rule 92bis of the Rules.3565

3558
); Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision on Prosecution’s Motion Seeking
Clarification in Relation to the Application of Rule 90(H)(ii)(12 May 2010) at para. 21
3559
Prosecutor v Popovic et al, No. IT-05-88-T, Order Setting forth Guidelines for the Procedure Under
Rule 90(H)(ii) (6 March 2007) at para. 4; ); Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision
on Prosecution’s Motion Seeking Clarification in Relation to the Application of Rule 90(H)(ii)(12 May
2010) at para.17
3560
); Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision on Prosecution’s Motion Seeking
Clarification in Relation to the Application of Rule 90(H)(ii)(12 May 2010) at para. 18
3561
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Submissions by Stanisic Defence
Regarding Prosecution’s Rule 90(H)(ii) Obligations During Cross Examination of Defence Witness
Borislav Pelevic (12 June 2012) at para. 9
3562
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement (10 June 2010) at paras. 20-21
3563
Prosecutor v. Simi et al., No. IT-95-9-AR73, Decision on Prosecution Interlocutory Appeals on the
Use of Statements not Admitted into Evidence Pursuant to Rule 92bis as a Basis to Challenge Credibility
and to Refresh Memory (23 May 2003) at paras. 18, 20.
3564
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.2, Decision on Interlocutory Appeal
Relating to the Refreshment of the Memory of a Witness (2 April 2004)
3565
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-AR73.2, Decision on Interlocutory Appeal
Relating to the Refreshment of the Memory of a Witness (2 April 2004); Prosecutor v Simic et al, No. IT-
95-9-AR73.6, Decision on Prosecution Interlocutory Appeals on the Use of Statements Not Admitted into
Evidence Pursuant to Rule 92 bis as a Basis to Challenge Credibility and to Refresh Memory (23 May
2003) at para. 18

580
 self-incrimination

Where witness was not warned prior to answering prosecution’s questions on

cross examination about statements he made to immigration authorities that could
potentially be used against him in domestic proceedings, the Trial Chamber redacted his
answers from the public transcript.3566

witness proofing

Trial Chamber declined to prohibit the practice of “witness proofing” finding that
discussion between a party and a potential witness regarding his/her evidence can
enhance the fairness and expeditiousness of the trial, provided that these discussions are a
genuine attempt to clarify the witness’ evidence. The proofing must be timely so as not
to prejudice the defence by late disclosure of new material. 3567

Witness proofing is not objectionable in itself, it is a normal and useful procedure

in most cases.3568

Trial Chamber has the power to require the audio recording of witness proofing
sessions, but was not convinced from circumstances of the case that such an order was
required.3569

Trial Chamber declined to order prosecution to have no contact with those

witnesses it had proposed for admission of their statements pursuant to Rule 92 bis, ter,
or 94 bis.3570

The practice of the Tribunal is to bar the parties from contacting a witness once
his or her testimony has begun, in order to avoid the risk of affecting or calling into
question the integrity of the witness's pending testimony. 3571 However, this does not
apply to witnesses called at a retrial. 3572

Witness proofing should not consist of the rehearsal, practice, or coaching

3566
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Reconsideration of
Redactions to Testimony of…(27 September 2013) at p. 3
3567
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Motion to Prohibit Witness
Proofing (12 December 2006)
3568
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-T, Decision on Boskoski Defence Motion for an
Order to Disclose (9 May 2007) at para. 10
3569
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Defence Request for Audio Recording of
Witness Proofing Sessions (23 May 2007); Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision on
Lahi Brahimaj’s Urgent Motion Seeking Memorialisation of Further Contact Between Prosecution and
Witness 3 (31 October 2011) at para. 20
3570
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Tolimir’s Request to Prohibit Prosecution
Contact with Witnesses Proposed in Prosecution’s 92 bis and 92 ter Motions (4 June 2009)
3571
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision on Lahi Brahimaj’s Urgent Motion Seeking
Memorialisation of Further Contact Between Prosecution and Witness 3 (31 October 2011) at para. 14
3572
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision on Lahi Brahimaj’s Urgent Motion Seeking
Memorialisation of Further Contact Between Prosecution and Witness 3 (31 October 2011) at para. 19

581
of witnesses; should not be considered as permission to train or tamper with a witness
before he or she gives evidence; must not be used by the Prosecution "to mould its case
against the Accused inthe course of a trial, and must not amount to the manipulation of a
witness' evidence. 3573

witness sequestration

Defence expert allowed to be present in the courtroom during prosecution expert

testimony and Registrar ordered to provide funding for that purpose. 3574

Rule 90 bis—transfer of a detained witness

(A) Any detained person whose personal appearance as a witness has been
requested by the Tribunal shall be transferred temporarily to the detention unit of
the Tribunal, conditional on the person’s return within the period decided by the
Tribunal.
(B) The transfer order shall be issued by a permanent Judge or Trial Chamber
only after prior verification that the following conditions have been met:
(i) the presence of the detained witness is not required for any criminal proceedings
in progress in the territory of the requested State during the period the witness is
required by the Tribunal;
(ii) transfer of the witness does not extend the period of detention as foreseen by the
requested State.
(C) The Registrar shall transmit the order of transfer to the national authorities of
the State on whose territory, or under whose jurisdiction or control, the witness is
detained. Transfer shall be arranged by the national authorities concerned in liaison
with the host country and the Registrar.
(D) The Registrar shall ensure the proper conduct of the transfer, including the
supervision of the witness in the detention unit of the Tribunal; the Registrar shall
remain abreast of any changes which might occur regarding the conditions of
detention provided for by the requested State and which may possibly affect the
length of the detention of the witness in the detention unit and, as promptly as
possible, shall inform the relevant Judge or Chamber.
(E) On expiration of the period decided by the Tribunal for the temporary
transfer, the detained witness shall be remanded to the authorities of the
requested State, unless the State, within that period, has transmitted an order of
release of the witness, which shall take effect immediately.
(F) If, by the end of the period decided by the Tribunal, the presence of the
detained witness continues to be necessary, a permanent Judge or Chamber may
extend the period on the same conditions as stated in paragraph (B).
3573
Prosecutor v Haradinaj et al, No. IT-04-84bis-T, Decision on Lahi Brahimaj’s Urgent Motion Seeking
Memorialisation of Further Contact Between Prosecution and Witness 3 (31 October 2011) at para. 15
3574
Prosecutor v Karadzic, No. IT-95-5/18-T, Order on Funding of Defence Experts Authoirised to be
Present in the Courtroom (11 June 2010); Prosecutor v Karadzic, No. IT-95-5/18-T, Order to the Registry
in Relation to Accused’s Request for Assistance of Defence Expert in the Courtroom (2 July 2010);
Prosecutor v Sljivancanin, No. IT-95-13/1-R.1, Decision on Motion on Behalf of Viselin Sljivancanin
Concerning the 12 October Review Hearing (7 October 2010) at p. 5

582
Rule 91—false testimony under solemn declaration

(A) A Chamber, proprio motu or at the request of a party, may warn a witness of
the duty to tell the truth and the consequences that may result from a failure to do
so.
(B) If a Chamber has strong grounds for believing that a witness has knowingly and
wilfully given false testimony, it may:
(i) direct the Prosecutor to investigate the matter with a view to the preparation and
submission of an indictment for false testimony; or
(ii) where the Prosecutor, in the view of the Chamber, has a conflict of interest with
respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to
investigate the matter and report back to the Chamber as to whether there are
sufficient grounds for instigating proceedings for false testimony.
(C) If the Chamber considers that there are sufficient grounds to proceed against
a person for giving false testimony, the Chamber may:
(i) in circumstances described in paragraph (B)(i), direct the Prosecutor to
prosecute the matter; or
(ii) in circumstances described in paragraph (B)(ii), issue an order in lieu of an
indictment and direct amicus curiae to prosecute the matter.
(D) The rules of procedure and evidence in Parts Four to Eight shall apply mutatis
mutandis to proceedings under this Rule.
(E) Any person indicted for or charged with false testimony shall, if that person
satisfies the criteria for determination of indigence established by the Registrar, be
assigned counsel in accordance with Rule 45.
(F) No Judge who sat as a member of the Trial Chamber before which the witness
appeared shall sit for the trial of the witness for false testimony.
(G) The maximum penalty for false testimony under solemn declaration shall be a
fine of 100,000 Euros or a term of imprisonment of seven years, or both. The
payment of any fine imposed shall be paid to the Registrar to be held in the account
referred to in Rule 77 (H).
(H) Paragraphs (B) to (G) apply mutatis mutandis to a person who knowingly and
willingly makes a false statement in a written statement taken in accordance with
Rule 92 bis or Rule 92 quater which the person knows or has reason to know may be
used as evidence in proceedings before the Tribunal.
(I) Any decision rendered by a Trial Chamber under this Rule shall be subject to
appeal. Notice of appeal shall be filed within fifteen days of filing of the impugned
decision. Where such decision is rendered orally, the notice shall be filed within
fifteen days of the oral decision, unless
(i) the party challenging the decision was not present or represented when the
decision was pronounced, in which case the time-limit shall run from the date on
which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which
case the time-limit shall run from filing of the written decision.

583
 Barring unusual circumstances – such as repeated warnings given to a witness
without apparent justification, in a manner that a witness might reasonably find
intimidating – a simple statement of this basic duty does not constitute ridicule or
harassment of a witness, nor does it compromise an accused’s right to a fair trial. 3575

Rule 92—confessions

A confession by the accused given during questioning by the Prosecutor shall,

provided the requirements of Rule 63 were strictly complied with, be presumed to
have been free and voluntary unless the contrary is proved.

The fact that an interview of an accused was broken off to discuss issues related
to inducement and the matters discussed were not thereafter put on the record was
sufficient to rebut the presumption of Rule 92 that a statement of an accused was
voluntarily given.3576

A statement by the prosecution which linked the accused’s statements to its

position on his provisional release raised an issue as to the voluntariness of the statements
which the Trial Chamber failed to take into account in admitting the statements. 3577

The Trial Chamber erred in failing to consider the possible incompetence of

defence counsel when deciding to admit the interview of the accused.3578

Rule 92 bis—admission of written statements

(A) A Trial Chamber may dispense with the attendance of a witness in person,
and instead admit, in whole or in part, the evidence of a witness in the form of a
written statement or a transcript of evidence, which was given by a witness in
proceedings before the Tribunal, 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.
(i) Factors in favour of admitting evidence in the form of a written statement or
transcript include but are not limited to circumstances in which the evidence in
question:
(a) is of a cumulative nature, in that other witnesses will give or have given oral
testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the
population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
3575
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 205
3576
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 46
3577
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 54
3578
Prosecutor v Halilovic, No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning
Admission of Record of Interview of the Accused from the Bar Table (19 August 2005) at para. 62

584
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.
(ii) Factors against admitting evidence in the form of a written statement or
transcript include but are not limited to whether:
(a) there is an overriding public interest in the evidence in question being presented
orally;
(b) a party objecting can demonstrate that its nature and source renders it
unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend
for cross-examination.
(B) If the Trial Chamber decides to dispense with the attendance of a witness, 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
(i) the declaration is witnessed by:
(a) a person authorised to witness such a declaration in accordance with the law and
procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose;
and
(ii) the person witnessing the declaration verifies in writing:
(a) that the person making the statement is the person identified in the said
statement;
(b) 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;
(c) 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
(d) the date and place of the declaration.
The declaration shall be attached to the written statement presented to the Trial
Chamber.
(C) The Trial Chamber shall decide, after hearing the parties, whether to require
the witness to appear for cross-examination; if it does so decide, the provisions of
Rule 92 ter shall apply.

acts or conduct of the accused

character

Evidence of the accused’s good character without reference to any of the charged
acts in the indictment does not constitute acts and conduct of the accused and may
therefore be received pursuant to Rule 92 bis.3579

in general

3579
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Partially Granting Stojan Zupljanin’s
Motion for Admission of Evidence Pursuant to Rule 92 bis (21 July 2011) at para. 26

585
 The only kind of written statement or transcript absolutely precluded from
admission under Rule 92 bis is one which goes to proof of acts and conduct of the
accused. 3580

liability for acts of others

Rule 92 bis’ limitation against “acts and conduct of the accused” does not extend
to acts and conduct of others for which the accused is charged in the indictment with
responsibility. 3581

“Acts or conduct of the accused” means deeds and behavior of the accused, as
well as any act or conduct of the accused which the prosecution relies upon to establish
that the accused was a superior to those who did actually commit the crimes or that he
knew or had reason to know of those crimes, or that he failed to prevent or punish
them.3582

Rule 92 bis excludes a written statement that goes to proof of any act or conduct
of the accused upon which the prosecution relies to establish that the accused (a)
committed any of the crimes charged; (b) planned, instigated, or ordered the crimes; (c)
otherwise aided or abetted the alleged perpetrators; (d) was the superior of the
perpetrators; (e) knew or had reason to know that those crimes were about to be or had
been committed by his subordinates; or (f) failed to take reasonable steps to prevent or
punish. 3583

Rule 92 bis also excludes any written statement which goes to proof of any act or
conduct of the accused upon which the prosecution relies to establish that the accused
participated in a joint criminal enterprise or shared with the person who did commit the
crime the requisite intent for those crimes. 3584

The phrase “acts and conduct of the accused” means deeds and behavior of the
accused in the strict sense, and does not extend to acts and conduct of subordinates or co-
perpetrators.3585

3580
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 6
3581
Prosecutor v Galic, No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis
(C)(7 June 2002) at para. 10
3582
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion for the Admission of the Witness
Statement of Avdo Husejnovic Pursuant to Rule 92 bis (15 September 2005)
3583
Prosecutor v Dordjevic, No. IT-05-97/1-T, Decision on Prosecution’s Motion for Admission of
Transcripts of Evidence of Forensic Witnesses in lieu of Viva Voce Testimony Pursuant to Rule 92 bis (11
February 2009) at para. 5
3584
Prosecutor v Dordjevic, No. IT-05-97/1-T, Decision on Prosecution’s Motion for Admission of
Transcripts of Evidence of Forensic Witnesses in lieu of Viva Voce Testimony Pursuant to Rule 92 bis (11
February 2009) at para. 5
3585
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion to Admit the Evidence of a Witness in
the Form of a Written Statement Pursuant to Rule 92 bis (6 December 2005); Prosecutor v Tolimir, No. IT-
05-88/2-T, Decision on Prosecution Motion for Admission of Written Evidence Pursuant to Rules 92 bis
and 94 bis (7 July 2010) at para. 30

586
 When determining whether particular evidence goes to the acts and conduct of the
accused, special consideration should be given to the special and sensitive situation posed
by the charge of command responsibility where the evidence goes to the acts and conduct
of the accused’s immediately proximate subordinates—those subordinates from whose
conduct it would be easy to infer that he knew or had reason to know.3586

Statement concerning the authenticity of a diary of the military police that was
relevant to the command structure did not go to the acts and conduct of the accused, but
touched on a live issue of dispute between the parties and would not be admitted pursuant
to Rule 92 bis.3587

state of mind

The “conduct” of an accused necessarily includes his relevant state of mind, so

that a written statement which goes to proof of any act or conduct of the accused upon
which the prosecution relies to establish that state of mind is not admissible pursuant to
Rule 92 bis. Acts or patterns of acts by others used to establish the state of mind of the
accused may be proven by Rule 92 bis.3588

Character evidence does not go to the “acts and conduct of the accused as charged
in the indictment” and may be admitted pursuant to Rule 92 bis. However, evidence
which pertains to the mens rea of the accused may not be admitted under this Rule, at
least without cross examination.3589

specific examples

Prior testimony of prosecution researcher who assembled intercepted

communications, and intercept operators, not admissible insofar as conversations of the
accused were concerned, but was otherwise admissible pursuant to Rule 92 bis.3590

Expert testimony about the roles played in a joint criminal enterprise go to “acts
and conduct of the accused” and cannot be admitted under Rule 92 bis.3591

3586
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Admission of Evidence
Pursuant to Rule 92 quarter (9 July 2007) at page 5
3587
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion for the Admission of the Witness
Statement of Avdo Husejnovic Pursuant to Rule 92 bis (15 September 2005)
3588
Prosecutor v Galic, No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis
(C)(7 June 2002) at para. 11
3589
Prosecutor v Stanisic & Zupljanin, No. IT-06-91-T, Decision Partially Granting Stojan Zupljanin’s
Motion for Admission of Evidence Pursuant to Rule 92 bis (21 July 2011) at para. 26
3590
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at paras. 30, 105
3591
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 26

587
 Testimony not mentioning the accused but concerning a meeting in which he was
in attendance was sufficiently related to the acts and conduct of the accused as to be
excluded from admission under Rule 92 bis.3592

Testimony about whether a crime was reported to the accused, as well as whether
the accused was involved in organizational issues within a municipality went to acts and
conduct of the accused and would be excluded from the evidence admitted pursuant to
Rule 92 bis.3593

Letter of Radovan Karadzic concerning role of the accused goes directly to the
acts and conduct of the accused and cannot be admitted under Rule 92 bis.3594

adjudicated facts

Admission of portion of proposed Rule 92 bis evidence denied where the same
information was already the subject of judicial notice of adjudicated facts. 3595

certification

Verification by attorney for NGO attesting to signature of witness complied with

the certification requirements of Rule 92 bis (B).3596

Admission of statement in another trial under Rule 92 ter satisfied the

certification requirements of Rule 92 bis (B).3597

Exhibits attached to a declaration need not meet the requirements of Rule 92 bis
3598
(B).

Statement sworn to before French Chamber of Grand Instance sufficiently

complied with requirements of Rule 92 bis.3599

3592
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 75
3593
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of Milan
Tupajic’s Evidence in lieu of Viva Voce Testimony Pursuant to Rule 92 bis (24 May 2012) at para. 15
3594
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Admission of Material Sought by Chamber and
Other Exhibits (14 July 2006) at para. 18
3595
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution’s Ninth Motion to Admit Evidence
Pursuant to Rule 92 bis (18 July 2013) at para. 16
3596
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Second Motion for
Admission of Evidence Pursuant to Rule 92 bis (13 September 2006) at para. 11
3597
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Defence Motion for
Admission of Transcripts…(15 December 2011) at para. 14
3598
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Second Motion for
Admission of Evidence Pursuant to Rule 92 bis (13 September 2006) at para. 11
3599
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Request for Admission of Exhibits
P53 and P54 (10 May 2010)

588
 In order to expedite the proceedings, a party is allowed to propose written
statements under Rule 92 bis for provisional admission pending their certification. 3600

Provisional admission of supplemental statement of Rule 92 bis statement denied

where prosecution raised questions as to the accuracy of the statement and the statement
was perfunctory. 3601

While in certain circumstances it is permissible for a party to propose written

statements for provisional admission pending their certification under Rule 92 bis (B),
where witness had refused to testify in person, Trial Chamber denied Rule 92 bis motion
based upon lack of certification. 3602

Certification requirement does not apply to transcripts of prior testimony under

oath, but does apply to transcripts of interviews where the witness did not make a solemn
declaration. 3603

OTP Statement sought to be admitted by defence was admitted without the

required certification where the prosecution did not object.3604

corroboration

It is permissible to admit evidence under Rule 92 bis which corroborates other

Rule 92 bis evidence.3605

Rule 92 bis does not require that proffered written evidence be cumulative or
corroborative of either live or other written evidence. 3606

3600
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Written
Evidence Pursuant to Rule 92 bis of the Rules (16 January 2006) at para. 11; Prosecutor v Oric, No. IT-03-
68-T, Decision on Defence Motion to Admit the Evidence of a Witness in the Form of a Written Statement
Pursuant to Rule 92 bis (17 January 2006); Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision
Denying Prosecution’s Second Motion for Admission of Evidence Pursuant to Rule 92 bis (13 September
2006) at para. 11, fn. 52; Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s
Confidential Motion for Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule
92 bis (12 September 2006) at para. 21; Prosecutor v Mladic, No. IT-07-91-T, Decision on Defence Motion
to Admit the Evidence of Zelka Malinovic pursuant to Rule 92 bis (8 September 2015) at para. 4
3601
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Admission of Supplemental
Statement of Rule 92 bis Witness Andja Gotovac (11 January 2011) at para. 7
3602
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Evidence
Pursuant to Rule 92 bis (18 March 2014) at paras. 39, 44,64,68
3603
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Evidence
Pursuant to Rule 92 bis (18 March 2014) at para. 39
3604
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Stanisic Defence Motion for
Admission of Transcripts…(15 December 2011) at para. 9
3605
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 12
3606
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 13

589
 The cumulative nature of the Rule 92 bis statement is measured by whether the
statement is cumulative to similar facts adduced in other evidence, and not whether the
similar facts also are of similar weight. Trial Chamber erred in holding that statement
was not cumulative because other witnesses were not of the same rank as the
declarant.3607

cross-examination

The proximity of the described acts to the accused, the pivotal importance of the
testimony for the prosecution, and the content of the cross-examination are factors to be
considered in determining whether the witness should be required to attend for cross-
examination. 3608

Factors to be considered in determining whether to admit a statement without

cross examination include whether the cross examination in the prior proceedings
adequately dealt with the issues relevant to the defence in the current proceedings,
whether the question relates to live and important issues between the parties, and whether
the witness was extensively cross-examined by a party with a common interest to the
accused. 3609

Witnesses would be required to attend for cross examination where (1) they were
eyewitnesses to the crimes charged in the indictment, which crimes were denied by the
accused; (2) testimony of non-eyewitnesses were also of sufficient importance to require
cross-examination; (3) a good deal of the proffered evidence was hearsay; and (4) cross-
examination at the prior trial was conducted by a self-represented accused.3610

Where issues of reliability and credibility of witness statements were raised by the
defence, and the evidence was not cumulative, cross examination would be required. 3611

Rule 92 bis does not place an explicit burden on the party seeking cross
examination to make any particular showing of the necessity of such cross-
examination. 3612

Evidence of witnesses concerned conduct of persons sufficiently remote from the

accused that these persons need not be called for cross-examination.3613
3607
Prosecutor v Nizeyimana, No. ICTR-2000-55C-AR73, 2, Decision on Prosecutor’s Interlocutory
Appeal of Decision not to Admit Marcel Gatsinzi’s Statement into Evidence Pursuant to Rule 92 bis (8
March 2011) at para. 14
3608
Prosecutor v Prlic et al, No. IT-04-64-T, Decision on the Prosecution Motion for Admission of
Transcript of Evidence Pursuant to Rule 92 bis of the Rules (28 September 2006) at para. 23
3609
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Written
Evidence Pursuant to Rule 92 bis of the Rules (16 January 2006) at para. 15
3610
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 18
3611
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on the First Batch of Rule 92 bis Witnesses (3
June 2008) at para. 8
3612
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Prosecution Motion for Admission of
Evidence Pursuant to Rule 92 bis (22 August 2008) at para. 24

590
 Where the prosecution intended to present its evidence of the crime of hostage
taking through only one viva voce witness, Trial Chamber determined that it was in the
interests of justice that other witnesses appear for cross examination as their testimony
may be pivotal to the prosecution’s case. 3614

Where the witness whose prior testimony was sought to be admitted by the
prosecution was called as a defence witness in the prior trial, and thus cross-examination
was conducted by the prosecution, the prior testimony would not be admitted pursuant to
Rule 92 bis in the exercise of the Trial Chamber’s discretion. 3615

The fact that the prior cross examination was conducted by a self-represented
accused did not affect the admissibility of the prior testimony. 3616

Witness would be called for cross examination where another prosecution witness
claimed that witness was the source of his information that the accused was angry that
fottage of Srebrenica events had been broadcast.3617

Where witness’ statement was admitted pursuant to Rule 92 bis at request of

prosecution, he would not be called for cross examination based upon interview with
defence whereby he provided a favorable assessment of the accused, as such assessment
was only his opinion and not based upon personal knowledge. 3618

Witness would not be required to be cross examined where the allegedly new
information could be elicited on cross examination of other prosecution witnesses or by
calling defence witnesses.3619

Witness would not be required to be cross examined where defence can obtain
information from the witness by calling him in its own case. 3620

3613
Prosecutor v Karadzic, No. I-95-5/18-PT, Decision on Prosecution’s Third Motion for Admission of
Statements and Transcripts of Evidence in lieu of Viva Voce Testimony Pursuant to Rule 92 bis (Witnesses
for Sarajevo Municipality) (15 October 2009) at para. 24-26
3614
Prosecutor v Karadzic, No. I-95-5/18-PT, Decision on Prosecution’s Sixth Motion for Admission of
Statements and Transcripts of Evidence in lieu of Viva Voce Testimony Pursuant to Rule 92 bis (Hostages)
(2 November 2009) at para. 23
3615
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 60
3616
Prosecutor v Mladic, No. 09-92-T, Decision on Prosecution’s 38th Motion to Admit Evidence Pursuant
to Rule 92 bis—Witness RM-098 (28 November 2013) at para. 10
3617
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion to Call Witness Zoran
Petrovic for Cross Examination (13 March 2012) at para. 6
3618
Prosecutor v Karadzic, No. I-95-5/18-T, Decision on Accused’s Motion to Call Witness Ferid Spahic
for Cross Examination (6 April 2011) at paras. 12-13
3619
Prosecutor v Karadzic, No. I-95-5/18-T, Decision on Accused’s Motion to Call Witness Drazen
Erdemovic for Cross Examination (13 April 2011) at para. 11
3620
Prosecutor v Karadzic, No. I-95-5/18-T, Decision on Prosecution’s Second Motion for Admission of
Evidence of Slobodan Stojkovic…(22 March 2012) at para. 18

591
 Factors considered in whether to require cross-examination include (1) whether
the evidence relates to a live and important issue between the parties; (2) the cumulative
nature of the evidence; (3) whether the evidence is “crime base” evidence or relates to the
acts and conduct of subordinates for whom the accused is alleged to be responsible; (4)
the proximity of the accused to the acts and conduct described in the evidence; and (5)
whether the cross examination of the witness in the earlier proceedings dealt adequately
with the issues relevant to the current proceedings. 3621

Issues concerning the accuracy of the statement are adequately addressed by the
witness confirming that the contents of the statement are true when the certification of the
statement before the Registry is made. 3622

The fact that the witness declined to be interviewed by the other party is not a
factor to be considered when deciding whether to admit the statement or require the
witness to attend for cross-examination.3623

critical and live issue

The issue of whether the witness should be called for cross examination depends
on whether the information contained in the written statement is related to a critical and
live issue between the parties as opposed to a peripheral or marginally important
issue.3624

When the proffered written evidence relates to a critical element of the

prosecution’s case or a live and important issue between the parties, the requirements of a
fair trial demand that the accused be given the right to cross examine the witnesses in
order to fully test the prosecution’s case. 3625

Defence witness required to attend for cross examination where his testimony
addresses live and important issues between the parties. 3626

3621
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 16; Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion for Admission
of Written Evidence Pursuant to Rules 92 bis and 94 bis (7 July 2010) at para. 34
3622
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of
Supplemental Rule 92 bis Statement (KDZ407)(10 April 2012) at para. 6
3623
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Partially Granting Stojan Zupljanin’s
Motion for Admission of Evidence Pursuant to Rule 92 bis (21 July 2011) at para. 31
3624
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion to Admit the Evidence of a Witness in
the Form of a Written Statement Pursuant to Rule 92 bis (6 December 2005); Prosecutor v Popovic et al,
No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for Admission of Written Evidence in Lieu
of Viva Voce Testimony Pursuant to Rule 92 bis (12 September 2006) at para. 15
3625
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Second Motion for
Admission of Evidence Pursuant to Rule 92 bis (13 September 2006) at para. 6
3626
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Borovcanin’s Motion for Admission of Written
Evidence Pursuant to Rule 92 bis (22 September 2008); Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Motion to Admit Statements Pursuant to Rule 92 bis (Srebrenica Component) (29
November 2013) at para. 18

592
 Although not implicating the accused, testimony concerning identification of the
victims and methods and means of identification was of sufficient importance to require
the witnesses to appear for cross examination. 3627

Although not implicating the accused, testimony concerning exhumations was of

sufficient importance to require the witnesses to appear for cross examination. 3628

Testimony of defence witness concerning departure of Muslim civilians from

Srebrenica went to critical issue in the case and should be heard orally. 3629

Prior testimony of witness who refused to testify and could therefore not be called
for cross examination would be admitted pursuant to Rule 92 bis, but those portions of
the testimony that went to live and important issues in the case, or the conduct of persons
in close proximity to the accused, would be excluded. 3630

Relevant factors include whether the information goes to a critical element in the
prosecution’s case and the proximity of the accused to the material in the written
statement.3631

Relevant to the issue of whether the witness shall be called for cross-examination
is whether the statement touches upon the very essence of the prosecution case against
the accused and the cumulative nature of the evidence sought to be admitted. 3632

Where intercepted conversations played a pivotal role in the prosecution’s case,

witnesses providing evidence as to the reliability and chain of custody of those
conversations should be called for cross-examination.3633

Evidence of the conduct of forces under the command of the accused, or going to
the existence and goal of the joint criminal enterprise, and effective control of the

3627
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Prosecution Motion for Admission of
Evidence Pursuant to Rule 92 bis (22 August 2008) at para. 25
3628
Prosecutor v Dordjevic, No. IT-05-97/1-T, Decision on Prosecution’s Motion for Admission of
Transcripts of Evidence of Forensic Witnesses in lieu of Viva Voce Testimony Pursuant to Rule 92 bis (11
February 2009)
3629
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion for Admission of Ljubislav Simic’s
Written Statement pursuant to Rule 92 bis (14 December 2015) at para. 10
3630
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of Milan
Tupajic’s Evidence in lieu of Viva Voce Testimony Pursuant to Rule 92 bis (24 May 2012) at para. 21
3631
Prosecutor v Oric, No. IT-03-68-T, Decision on Defence Motion to Admit the Evidence of a Witness in
the Form of a Written Statement Pursuant to Rule 92 bis (6 December 2005); Prosecutor v Galic, No. IT-
98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis (C)(7 June 2002) at para. 13
3632
Prosecutor v Limaj et al, No. IT-03-66-T, Decision on Prosecution’s Motion to Admit Rebuttal
Statements Via Rule 92 bis (7 July 2005) at para. 5
3633
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 32

593
accused is so pivotal to the prosecution’s case that cross-examination of witnesses on
these facts is required. 3634

Evidence of the relationship between the Muhajadeen and the Bosnian Army was
a live and important issue between the parties and required that the witness be called for
cross examination. 3635

Evidence of relationship between “Skorpion” unit and Bosnian Serb Army and
participation by Skorpions in execution of Srebrenica prisoners was live and important
issue and sole witness to these facts would not be appropriate for Rule 92 bis
evidence.3636

Evidence of the direction of sniper fire and command authority of the accused
was admissible pursuant to Rule 92 bis, but the witness would be required to be cross-
examined on those issues.3637

Evidence on important issue for which only other Rule 92 bis evidence had been
received warranted requiring the witness to appear in person to give his evidence. 3638

cumulative evidence

The purpose of Rule 92bis is to promote efficiency and expedite the presentation
of evidence while adhering to the requirements of a fair trial, not to encourage
duplication of testimony which would unnecessarily delay proceedings. 3639

discretion

Trial Chamber exercised its discretion not to admit written statements of

“insiders” whose live testimony would give the Chamber a better understanding of the
case, and not to admit the statements of deceased witnesses because the accused would be
deprived of his right of cross examination. 3640

3634
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Written
Evidence Pursuant to Rule 92 bis of the Rules (16 January 2006) at paras. 29, 33
3635
Prosecutor v Delic, No. IT-04-83-T, Decision on Prosecution Motion for Admission of Evidence
Pursuant to Rule 92 bis (13 November 2007) at para. 22
3636
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution’s Twenty-First Moiton to Admit
Evidence Pursuant to Rule 92 bis…(16 October 2013) at para. 19
3637
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution’s Motion for Admission of Witness
Statements Pursuant to Rule 92 bis (19 April 2007)
3638
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution’s 32nd Motion to Admit Evidence
Pursuant to Rule 92 bis (31 October 2013) at para. 10
3639
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 198
3640
Prosecutor v Seselj, No. IT-03-67-T, Redacted Version of the Decision on the Prosecution’s
Consolidated Motion Pursuant to Rules 89(F), 92 bis, 92 ter, and 92 quarter Filed Confidentially on 7
January 2008 (21 February 2008) at paras. 40-41

594
 While evidence of acts and conduct of persons proximate to the accused is
admissible pursuant to Rule 92 bis, such evidence may be rejected in the exercise of the
Chamber’s discretion if it would be unfair to admit such evidence in written form. 3641

Fact that different Trial Chamber required the same witnesses to attend for cross
examination did not warrant reconsideration of decision to admit testimony pursuant to
Rule 92 bis where witnesses were more proximate to the accused in the other case. 3642

exhibits

Exhibits which were admitted during the testimony of a witness whose transcript
is admitted pursuant to Rule 92 bis will also be admitted, as will exhibits shown to the
witness, but admitted through the testimony of other witnesses. Admission of the
exhibits is necessary to fully evaluate the relevance of the prior testimony. 3643

However, exhibits which were admitted in connection with the testimony of a

witness to a prior proceeding but not referred to during the testimony are not an integral
part of the prior testimony and would not be admitted pursuant to Rule 92 bis.3644

Exhibits accompanying transcripts form an inseparable and indispensible part of

the testimony and can be admitted.3645

In order to admit an exhibit along with prior testimony or statements, the witness’
testimony must actually discuss the document, and the document must be one without
which the witness’ testimony would become incomprehensible or of lesser probative
value. 3646

3641
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion for Admission of Written
Evidence Pursuant to Rules 92 bis and 94 bis (7 July 2010) at para. 32
3642
Prosecutor v Karadzic, No. IT-95/5-18-T, Decision on Motion for Reconsideration: Srebrenica 92 bis
Decision (27 August 2010) at para. 6
3643
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 24; Prosecutor v Prlic et al, No. IT-04-64-T, Decision on the Prosecution Motion for
Admission of Transcript of Evidence Pursuant to Rule 92 bis of the Rules (28 September 2006) at para. 24
3644
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 94
3645
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Admission of Evidence
Pursuant to Rule 92 quarter (9 July 2007) at page 4; Prosecutor v Lukic & Lukic, No. IT-98-32/1-T,
Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 bis (22 August 2008) at
para. 21; Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for Admission of
Evidence Pursuant to Rule 92 ter (10 February 2009) at para. 5; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits
Pursuant to Rule 92 quater (20 August 2009) at para. 7
3646
Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for Admission of
Evidence Pursuant to Rule 92 ter (10 February 2009) at para. 5

595
 Documents attached to Rule 92 bis written statements will be admitted to allow
full evaluation of the statement.3647

The Chamber may deny admission of testimony if the party fails to include
associated exhibits, without which the testimony is incomprehensible. 3648

Where the associated exhibits to the Rule 92 bis statements contained documents
which went to the acts and conduct of the accused, the statement would not be
admitted.3649

experts

Rule 92 bis applies to expert witnesses.3650 However an accused’s request to

cross examine the expert should ordinarily be granted, bearing in mind the procedure set
forth in Rule 94 bis.3651

Rule 92 bis does not apply to expert witnesses.3652

A party has the right to cross examine an expert witness pursuant to Rule 94 bis
and therefore a statement of an expert cannot be admitted pursuant to Rule 92 bis without
cross-examination.3653

An expert report can be admitted as an integral part of the expert’s testimony

under Rule 92 bis. The right to cross examine an expert whose testimony and report are
admitted is not automatic, but subject to the discretion of the Trial Chamber. 3654

It is not required that expert witness reports be admitted pursuant to Rule 94 bis
before the prior testimony of experts, including their reports tendered as exhibits, can be
admitted pursuant to Rule 92 bis.3655

3647
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 25
3648
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Prior
Testimony of Thomas Hansen and Andrew Knowles Pursuant to Rule 92 bis (22 August 2012) at para. 11
3649
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution’s Motion to Admit Witness GH-164’s
Evidence Pursuant to Rule 92 bis (22 April 2013) at para. 15
3650
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 23;
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Michael Phillips and Shaun Byrnes (15 January 2007) at para.22
3651
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion for Admission of Written
Evidence Pursuant to Rules 92 bis and 94 bis (7 July 2010) at para. 59
3652
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of Evidence
of Eight Experts Pursuant to Rules 92 bis and 94 bis (9 November 2009) at para. 23
3653
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 52
3654
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Michael Phillips and Shaun Byrnes (15 January 2007) at para. 27

596
 Expert testimony which goes to the acts and conduct of the accused cannot be
admitted under Rule 92 bis.3656

Where the expert witnesses were thoroughly cross-examined on the issues

identified by the defence in the trials in which they previously testified, their previous
testimony will be admitted without cross-examination.3657

interviews of witnesses

Subpoena for defence interviews of Rule 92 bis prosecution witnesses declined

where witnesses were crime-base witnesses and the information expected to be elicited
during the interviews would not materially assist the case of the accused. 3658

Subpoena for defence interview of Rule 92 bis witness denied where information
sought to be elicited from the witness, while going to live issues in the case, was not
necessary for a determination of those issues. 3659

Whether or not a witness consented to be interviewed by the other party was

irrelevant to the issue of whether the witness should be called for cross examination. 3660

Subpoena for pre-trial interview of Rule 92 bis prosecution witness denied where
witness would be called for cross examination and accused had not made showing that
interview would materially assist his case. 3661

other legal proceedings

Rule 92 bis applies to statements taken for ICTY proceedings, not to statements
prepared for other legal proceedings. 3662

3655
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 45
3656
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Leave to Amend its
Rule 65 ter Witness List to Add Michael Phillips and Shaun Byrnes (15 January 2007) at para. 32
3657
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 35
3658
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused Motion to Compel Interviews: Sarajevo
92 bis Witnesses (21 March 2011) at para. 14
3659
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Compel Interview:
Griffith’s Evans (20 April 2011)
3660
Prosecutor v Stanisic & Zupljanin, No. IT-06-91-T, Decision Partially Granting Stojan Zupljanin’s
Motion for Admission of Evidence Pursuant to Rule 92 bis (21 July 2011) at para. 31
3661
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion to Subpoena Prosecution Witness
Ronald Eimers for Interview (29 March 2010) at para. 11
3662
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Testimony of Defence Witness Dragan Jasovic
(15 April 2005) at page 5

597
 Statements prepared for legal proceedings must meet the requirements of Rule 92
bis and cannot otherwise be admitted as hearsay pursuant to Rule 89(C). 3663

other party’s documents

When a party offers a statement pursuant to Rule 92 bis, the Chamber will also
admit evidence offered by the responding party, in order to contextualise or clarify the
witness’ statement.3664

overbroad

Rule 92 bis motion denied where only a small portion of the testimony dealt with
a relevant issue. The party should obtain a more narrow witness statement or call the
witness live. 3665

procedure

The prosecution must notify the defence in advance which paragraphs of the
witness statement it intends to elicit live testimony on. 3666

proximity of acts to accused

Proximity of the accused to the acts sought to be proved is the core test for
admission of a written statement, as well as the decision whether to require cross-
examination. 3667

President of Croatia’s prior testimony in Blaskic trial admitted under Rule 92 bis
with redactions of acts and conduct of the accused, but he would be required to attend for
cross-examination where there were different interests than the parties in the prior case,
the prior case is under review, and new documents have been discovered since the
testimony was given.3668

A factor to be considered in determining whether to admit a written statement and

to require cross-examination is whether the individual whose acts and conduct are
described in the statement or transcript is so proximate to the accused and the evidence is

3663
Prosecutor v Galic, No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis
(C)(7 June 2002) at para. 31
3664
Prosecutor v Mladic, No. IT-07-91-T, Decision on Defence Motion to Admit the Evidence of Zelka
Malinovic pursuant to Rule 92 bis (8 September 2015) at para. 9
3665
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Prior
Testimony of Thomas Hansen and Andrew Knowles Pursuant to Rule 92 bis (22 August 2012) at para. 10
3666
Prosecutor v Prlic et al, No. IT-04-64-T, Decision on the Application of Rule 92 ter of the Rules (25
June 2007)
3667
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 20
3668
Prosecutor v Prlic et al, No. IT-04-64-T, Decision on the Prosecution Motion for Admission of
Transcript of Evidence Pursuant to Rule 92 bis of the Rules (28 September 2006)

598
so pivotal to the prosecution’s case that it would be unfair to permit it to be given in
written form. 3669

A statement of acts committed in the presence of the accused should not be

admitted pursuant to Rule 92 bis in the exercise of the Trial Chamber’s discretion. 3670

Statement of person in proximity to the accused in the VRS Main Staff about
dispatch of buses to Srebrenica and Zepa was more appropriately the subject of viva voce
testimony and would not be admitted pursuant to Rule 92 bis.3671

Where a statement did not identify the perpetrators of an incident nor any
connection between the perpetrators and the accused, and was not pivotal to the
prosecution’s case, it would be admitted without cross-examination.3672

The party opposing Rule 92 bis evidence does not have the burden of making a
concrete showing of why cross examination is warranted.3673

redactions

Where a statement has been admitted under Rule 92 bis, but redacted to remove
matters which go to the acts and conduct of the accused, it remains open to the accused to
seek admission of the redacted portions pursuant to Rule 89(F). 3674

relationship with Rule 89

Rule 92 bis applies to statements written for the purpose of the legal proceedings
while documents not prepared for the proceedings are evaluated under Rule 89. 3675

A Trial Chamber deciding to admit evidence must always ensure that the evidence
is relevant, probative, and not unduly prejudicial. 3676

3669
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 15
3670
Prosecutor v Galic, No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis
(C)(7 June 2002) at para. 13
3671
Prosecutor v Mladic, No. IT-09-92-T, Decision on Motion to Admit the Evidence of Ratko Miljanovic
pursuant to Rule 92 bis (18 December 2015) at para. 9
3672
Prosecutor v Limaj et al, No. 03-66-T, Decision on Prosecution’s Third Motion for Provisional
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (9 March 2005) at
para. 7
3673
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 11
3674
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Defence Request for Certification to Appeal (13
January 2012) at fn. 29
3675
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 223
3676
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 5

599
 A Trial Chamber faced with a request for admission of a written statement or
transcript pursuant to Rule 92 bis must be satisfied, in addition to the fact that the matters
do not go to proof of the acts and conduct of the accused and that the statements are
properly sworn and verified, that the material is relevant, probative, and bears sufficient
indicia of reliability. Even if probative, admission may be denied where the probative
value is substantially outweighed by the need to ensure a fair trial. 3677

Rule 92 bis motion denied as lacking probative value under Rule 89 where ABiH
Commander simply stated that 68 listed documents appeared to be in the form and
content of genuine ABiH documents but that he had only looked at their form and had not
read them. 3678

relationship with Rule 92 quarter

Where a party’s reason for offering testimony pursuant to Rule 92 bis is because
the witness is unable to travel to The Hague to testify for health reasons, the Trial
Chamber will decide the motion under the criteria of Rule 92 quater. Since the
unavailability of the witness under Rule 92 quater was not satisfactorily established, the
motion was denied.3679

requirements

Admission of evidence under Rule 92 bis is a two-step process. First, the Trial
Chamber must determine if the material is admissible at all under the Rule; and second, if
it is, whether to admit the evidence in the exercise of its discretion. 3680

Admission of evidence under Rule 92 bis involves three steps. First, the Trial
Chamber must determine if the evidence is admissible in that it goes to proof other than
that of the acts and conduct of the accused. Second, the Trial Chamber must determine,
in the exercise of its discretion, whether it is appropriate to admit the evidence. And
third, the Trial Chamber must decide whether the witness giving the evidence should be
required to appear for cross-examination. 3681

3677
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision Denying Prosecution’s Second Motion for
Admission of Evidence Pursuant to Rule 92 bis (13 September 2006) at para. 4; Prosecutor v Popovic et al,
No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for Admission of Written Evidence in Lieu
of Viva Voce Testimony Pursuant to Rule 92 bis (12 September 2006) at para. 9
3678
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Statement of
Vehid Karavelic Pursuant to Rule 92 bis (5 November 2012) at para. 8
3679
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Admit Testimony of Pero
Rendic Pursuant to Rule 92 bis (6 February 2014) at para. 7; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Accused’s Motion to Admit Testimony of Branko Basara Pursuant to Rule 92 bis (19 February
2014) at para. 4
3680
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 5
3681
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution’s Confidential Motion for
Admission of Written Evidence in Lieu of Viva Voce Testimony Pursuant to Rule 92 bis (12 September
2006) at para. 8; Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Prosecution Motion for Admission of
Written Evidence Pursuant to Rules 92 bis and 94 bis (7 July 2010) at para. 28

600
 retroactivity

Rule 92 ter and quarter may be applied retroactively so long as the accused is not
prejudiced. No prejudice existed where the accused could also use these rules in his
case. 3682

timing

Trial Chamber deferred decision on admission of Rule 92 bis statements until trial
had progressed to stage where it could determine cumulative nature of the evidence and
proximity of persons mentioned in the statements to the accused. 3683

Defence motion for admission of statements denied where pre-trial deadline for
admission of statements had passed and where witnesses’ subsequent refusal to testify
after having been granted protective measures should have been foreseen by the
defence. 3684

Defence motion for admission of statements denied where witnesses who refused
to testify had not been contacted by the defence in advance of the deadline for filing of
Rule 92 bis motions. 3685

Defence motion for admission of testimony under Rule 92 bis denied where
defence failed to specify that witness would testify under Rule 92 bis at the time he filed
his witness list.3686

transcripts

Admission of transcript of testimony in other ICTY trial allowed where testimony

did not involve the acts and conduct of the accused and the witness would be available
for cross-examination. 3687

3682
Prosecutor v Seselj, No. IT-03-67-T, Redacted Version of the Decision on the Prosecution’s
Consolidated Motion Pursuant to Rules 89(F), 92 bis, 92 ter, and 92 quarter Filed Confidentially on 7
January 2008 (21 February 2008) at para. 37
3683
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on the Admission of Rule 92 bis Witness
Transcripts (4 April 2006); Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on the Admission of Rule
92 bis Written Statements (4 April 2006)
3684
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Statements
Pursuant to Rule 92 bis: Sarajevo Component (6 November 2013) at paras. 8-9
3685
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Evidence
Pursuant to Rule 92 bis (18 March 2014) at paras. 43,60-62
3686
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Evidence
Pursuant to Rule 92 bis (18 March 2014) at para. 65-66
3687
Prosecutor v Beqaj, No. IT-03-66-R77, Decision on Prosecution’s Motion for Admission of Transcript
Pursuant to Rule 92 bis (7 April 2005); Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on
Prosecution Motion for Admission of Evidence Pursuant to Rule 92 bis (22 August 2008)

601
 Where the testimony of a witness in a prior proceeding is admitted, the related
exhibits may also be received into evidence provided they do not go to the acts and
conduct of the accused.3688

Admission of transcript does not include exhibits and other documents related to
the transcript.3689

viva voce testimony

There is no prohibition on admission of a written statement where the witness also

gives viva voce testimony. 3690

weight

Where evidence has been admitted without cross-examination, it cannot lead to a

conviction unless corroborated by other evidence. 3691

Rule 92 ter—other admission of written statements

(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the
form of a written statement or transcript of evidence given by a witness in
proceedings before the Tribunal, under the following conditions:
(i) the witness is present in court;
(ii) the witness is available for cross-examination and any questioning by the
Judges; and
(iii) the witness attests that the written statement or transcript accurately reflects
that witness’ declaration and what the witness would say if examined.
(B) Evidence admitted under paragraph (A) may include evidence that goes to
proof of the acts and conduct of the accused as charged in the indictment.

The significance of the evidence as to the individual criminal responsibility of the

accused is a factor weighing against admission of evidence pursuant to Rule 92 ter.3692

Admission of statements and testimony under Rule 92 ter denied where direct
examination would allow the testimony to be more focused than in the written
material. 3693

3688
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motion for Admission of an Exhibit As
Part of Transcripts Pursuant to Rule 92 bis (19 May 2006)
3689
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 47
3690
Prosecutor v Seselj, No. IT-02-67-T, Decision on the Accused’s Submission No. 403 (4 November
2008) at para. 8
3691
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 27; Prosecutor v Delic, No.
IT-04-83-T, Judgement (15 September 2008) at para.36
3692
Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for Admission of
Evidence Pursuant to Rule 92 ter (10 February 2009) at para. 10

602
 Where the defence challenged the witness’ credibility, the scope of his testimony
demonstrated that he was a key witness, and he had not testified before at the Tribunal,
the advantages of hearing his testimony live outweighed the time savings for using Rule
92 ter.3694

Rule 92 quarter—unavailable persons

(A) The evidence of a person in the form of a written statement or transcript who
has subsequently died, or who can no longer with reasonable diligence be traced, or
who is by reason of bodily or mental condition unable to testify orally may be
admitted, whether or not the written statement is in the form prescribed by Rule 92
bis, if the Trial Chamber:
(i) is satisfied of the person’s unavailability as set out above; and
(ii) finds from the circumstances in which the statement was made and recorded
that it is reliable.
(B) If the evidence goes to proof of acts and conduct of an accused as charged in the
indictment, this may be a factor against the admission of such evidence, or that part
of it.

acts and conduct of the accused

Although statement of deceased witness went to the acts and conduct of the
accused, it was cumulative to other testimony which had been subject to cross
examination and would be admitted.3695

Rule 92 quater allows for evidence that goes to the acts and conduct of the
accused to be admitted, although such contents may be a factor against admission of the
evidence. If admitted, cautious scrutiny of such evidence is required. 3696

Rule 92 quater allows for admission of evidence of acts and conduct of the
accused. 3697

3693
Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for Admission of
Evidence Pursuant to Rule 92 ter (10 February 2009) at paras. 13,15
3694
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decisionon Denying Prosecution’s Motion for
Admission of Evidence of Pedrag Radulovic Pursuant to Rule 92 ter (1April 2010) at para. 10
3695
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Prosecution’s Motion for Admission of
Evidence Pursuant to Rule 92 quarter and 13th Motion for Trial-Related Protective Measures (7 September
2007) at para. 10
3696
Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for Admission of
Evidence Pursuant to Rule 92 quater (5 February 2009) at para. 9; Prosecutor v Karadzic, No. IT-95-5/18-
T, Decision on Prosecution’s Motion for Admission of the Evidence of Milenko Lazic Pursuant to Rule 92
quater…(9 January 2012) at para. 20
3697
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution Motion for Admission of
Testimony of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater (20 August 2009) at
para. 4; Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1222

603
 The Chamber must be particularly cautious in admitting evidence of acts and
conduct of the accused under Rule 92 quarter. Evidence of acts and conduct of the
accused which was vague and confusing in prior testimony would be excluded. 3698

admission in another trial

A finding by another Trial Chamber that a witness is reliable is entitled to no

weight when determining whether the testimony should be admitted by another Trial
Chamber.3699

Admission of testimony of same witness under Rule 92 quarter by another Trial

Chamber did not provide grounds to reconsider decision to exclude the same testimony in
this case.3700

associated exhibits

Associated exhibits, including prior statements of the witness, may be admitted

under Rule 92 quater as ancillary to his prior testimony. However, OTP report of
interview was not sufficiently reliable to be admitted. 3701

corroboration

A statement or transcript admitted without cross examination cannot support a

conviction by itself unless the statement is otherwise corroborated. The Trial Chamber
will also consider the absence of cross examination when determining how much weight
to give to the statement.3702

A conviction may not rest solely, or in a decisive manner, on the evidence of a

witness whom the accused has had no opportunity to examine or to have examined either
during the investigation or at trial. This principle applies to any fact which is

3698
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution Motion for Admission of
Testimony of Witness KDZ446 and Associated Exhibits Pursuant to Rule 92 quater (25 September 2009) at
para. 8
3699
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of the
Evidence of KDZ172 (Milan Babic) Pursuant to Rule 92 Quarter (13 April 2010) at para. 29
3700
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration of the
Decision of 7 January 2008 Rejecting the Admission of Milan Babic’s Testimony (10 December 2010) at
para. 14
3701
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of
Testimony of Sixteen Witnesses and Associated Exhibits Pursuant to Rule 92 quarter (30 November 2009)
at paras. 18-19
3702
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Admission of
Evidence Pursuant to Rule 92 quarter (16 February 2007) at para. 13; Prosecutor v Karadzic, No. IT-95-
5/18-T, Decision on Prosecution’s Motion for Admission of Testimony of Sixteen Witnesses and Associated
Exhibits Pursuant to Rule 92 quarter (30 November 2009) at para. 8; Prosecutor v Hadzic, No. IT-04-75-T,
Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quarter (Herbert Okun)(22
February 2013) at para.15

604
indispensable for a conviction, meaning the findings that a trier of fact has to reach
beyond reasonable doubt. It is considered to run counter to the principles of fairness to
allow a conviction based on evidence of this kind without sufficient corroboration. 3703

Trial Chamber would not rely on evidence admitted under Rule 92 quarter to any
decisive extent unless it is corroborated by other evidence. 3704

Testimony of witness admitted pursuant to Rule 92 quarter that went to the acts
and conduct of the accused, but was corroborated by other evidence in the case.
However, the Trial Chamber noted that it could not base a conviction solely or to a
decisive extent on evidence that has not been subject to examination by both parties. 3705

Admission of evidence going to acts and conduct of the accused under this role
could not serve as the sole basis of a conviction and therefore does not violate the right to
a fair trial. 3706

In order for evidence admitted pursuant to Rule 92 quarter of the Rules to support
a conviction, it must be corroborated.3707

Although the Trial Chamber relied solely on the untested Rule 92 quater evidence
concerning the presence of the accused at the brick factory, these findings were not
indispensable for a conviction and therefore the untested Rule 92 quater evidence did not
require corroboration. 3708

Although no live witness testified to the killings at the Kravica Supermarket, no

conviction for “opportunistic” killings was based on the Kravica Supermarket events
alone. The convictions would stand even without the finding that the Kravica
Supermarket killings took place. 3709

Evidence that demonstrates a pattern of conduct may be used as corroborative

evidence and therefore untested evidence on the Kravica Supermarket killings could be
the basis of a conviction when supported by evidence of a pattern of other killings. 3710

In order for a statement admitted pursuant to Rule 92 quater to support a

conviction, it must be corroborated. Findings that are indispensable for a conviction must
3703
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 96
3704
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion for Admission of Evidence
Pursuant to Rule 92 quarter (Herbert Okun)(22 February 2013) at para. 15
3705
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution’s Motion for Admission of Evidence of
Mujo Dzafic Pursuant to Rule 92 quarter of the Rules of Procedure and Evidence (13 May 2009) at paras.
17,20; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of the
Evidence of KDZ172 (Milan Babic) Pursuant to Rule 92 Quarter (13 April 2010) at para. 43
3706
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Motion to Admit the Evidence of
Herbert Okun… (12 November 2013) at para. 6
3707
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 570
3708
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1226
3709
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 103
3710
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 104

605
not rest solely or decisively on untested evidence. These findings must be sufficiently
corroborated; the stronger the corroborative evidence, the less likely that the untested
evidence will be decisive.3711

Corroboration is not a requirement for admissibility under Rule 92 quarter but is a

factor to be taken into consideration when assessing the reliability of the evidence. 3712

Where one piece of untested evidence is being used to corroborate another piece
of untested evidence, a trial chamber must exercise caution to ensure that findings which
are indispensable for a conviction do not rest solely or decisively on untested
evidence.3713

Statement sworn in presence of representative of Registry by witness who later

died admitted where it was reliable, relevant, and probative, and although going to acts
and conduct of the accused, would not be used as the sole basis of a finding of fact. 3714

expert witnesses

This rule also applies to expert witnesses. 3715

fairness

Where important evidence is sought to be admitted from a witness who has died,
fairness and the circumstances of the case may preclude admission of the statement under
Rule 92 bis since there is no opportunity for cross examination. 3716

Proposed Rule 92 quater evidence is not necessarily excluded on the basis that it
goes to critical issues of the prosecution’s case. 3717

Testimony of witness in previous trial and statements to OTP admitted pursuant to

Rule 92 quarter where it did not go to fundamental issue in the case. 3718

3711
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1222
3712
Prosecutionv Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part the Prosecution Motion
for Admission of Evidence Pursuant to Rule 92 quarter (14 April 2010) at para. 23; Prosecutor v Karadzic,
No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of the Evidence of KDZ172 (Milan
Babic) Pursuant to Rule 92 Quarter (13 April 2010) at para. 30
3713
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1226
3714
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Prosecution Motion for Admission of a
Written Statement Pursuant to Rule 92 quarter of the Rules (Hasan Rizvic) (14 January 2008) at paras. 22-
23
3715
Prosecutor v Galic, No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis
(C)(7 June 2002) at para.
3716
Prosecutor v Milutinovic et al, No. IT-05-87-PT, Decision on Prosecution’s Rule 92 bis Motion (4 July
2006) at para. 7
3717
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of
Testimony of Sixteen Witnesses and Associated Exhibits Pursuant to Rule 92 quarter (30 November 2009)
at para. 6

606
 Testimony about the direction of fire in sniper incidents went to a critical issue in
the prosecution’s case and would not be admitted pursuant to Rule 92 quater.3719

Issues related to the substance of prior cross examination or interests of counsel

go to the weight of the evidence under Rule 92 quarter, not its admissibility. 3720

Issues related to the quality of prior cross examination go to the weight of

evidence under Rule 92 quarter and not its admissibility. 3721

Evidence elicited by defence in other trial which sought to blame the accused
would not be admitted under Rule 92 quater as its admission would be unfair and more
prejudicial than probative.3722

Evidence of the acts and conduct of the accused admitted where they were not
highly incriminating, but where the evidence was highly incriminating and the cross-
examination was non-existent or poor, those portions would not be admitted.3723

In the specific situation of a JCE, written statements which go to proof of acts and
conduct of the accused upon which the prosecution relies to establish that said accused
participated in that JCE or shared with the person who actually committed the crimes
charged, the required intent for those crimes, might be a factor against admission. Such
intent may be inferred from a written statement which indicates the presence of the
accused during the occurrence of crimes commited by individuals other than the
accused. 3724

3718
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Admission of Evidence
Pursuant to Rule 92 quarter (9 July 2007) at page 6
3719
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution’s Motion for Admission of Witness
Statements Pursuant to Rule 92 quater (19 April 2007) at paras. 16-17
3720
Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for Admission of
Evidence Pursuant to Rule 92 quater (5 February 2009) at para. 8; Prosecutionv Stanisic & Zupljanin, No.
IT-08-91-T, Decision Granting in Part the Prosecution Motion for Admission of Evidence Pursuant to Rule
92 quarter (14 April 2010) at para. 23; Prosecutor v Stanisic & Simatovic, No.IT-03-69-T, Decision on
Prosecution’s Motion for Admission of Evidence of Witness C-057 Pursuant to Rule 92 Quarter (12 April
2010) at para. 20; Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for
Admission of Evidence of Stevqn Todorovic Pursuant to Rule 92 quarter (29 October 2010) at para. 41
3721
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution’s Motion for Admission
of Evidence of Witness B-161 Pursuant to Rule 92 quarter (16 June 2010) at para. 28; Prosecutor v Stanisic
& Simatovic, No. IT-03-69-T, Decision on Prosecution’s Motion for Admission of Evidence of Witness
Milan Babic Pursuant to Rule 92 quarter (16 December 2010) at para. 37
3722
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of the
Evidence of Milenko Lazic Pursuant to Rule 92 quater…(9 January 2012) at para.22
3723
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of the
Evidence of KDZ172 (Milan Babic) Pursuant to Rule 92 Quarter (13 April 2010) at para. 41
3724
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution’s Motion for Admission
of Evidence of Witnesses Unavailable Pursuant to Rule 92 quarter (16 September 2009) at para. 14

607
 The right to cross examination is not absolute. Rule 92 quarter does not violate
Article 21(4)(e) of the Statute.3725

The admission of evidence under Rule 92 quarter, individually, or cumulatively

with 92 bis evidence and adjudicated facts, does not shift the burden of proof to the
accused. 3726

Statement of deceased witness in response to interrogation in Bosnia admitted at

the request of accused, where indicia of reliability existed and, although going to acts and
conduct of co-accused, it was only a fleeting reference. 3727

redactions

This rule allows for admission of part of a statement, but other parts may also be
admitted if it would have added to the relevant issue addressed by the admitted part. It is
not solely the prerogative of the offering party to decide what part of the statement is
admitted.3728

A witness’ evidence need not be admitted in its entirety. 3729

relationship to Rule 92 bis

A Rule 92 bis application as to unavailable witnesses should be reviewed under

the more stringent test of Rule 92 quarter even if the testimony does not go to the acts
and conduct of the accused. 3730

reliability

Rule 92 quater, unlike Rule 92 bis, does not require a declaration by the witness
that the contents of the statement are true and correct to the best of the witness’s
knowledge and belief. 3731

The following factors are relevant to the assessment of the reliability of the
statement: (1) whether the statement was made under oath; (2) whether it was signed with

3725
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of Testimony
of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater (20 August 2009) at para. 8
3726
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of Testimony
of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater (20 August 2009) at para. 9
3727
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Gvero’s Motion for the Admission of Evidence
Pursuant to Rule 92 quarter (3 February 2009)
3728
Prosecutor v Galic, No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis
(C)(7 June 2002) at para. 46
3729
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of Testimony
of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater (20 August 2009) at para. 4
3730
Prosecutor v Tolimir, No. IT-05-88/2-T, Partial Decision on Prosecution’s Rule 92 bis Motion for Five
Witnesses (27 August 2010) at para. 32
3731
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Omnibus Motion for Admission of Evidence
Pursuant to Rule 92 quarter (26 October 2015) at para. 30

608
an acknowledgement that it was true; (3) whether it was taken with the assistance of an
interpreter qualified by the Registry; (4) whether the statement was subject to cross
examination; (5) whether there is other evidence relating to the same events; and (6) other
factors such as manifest inconsistencies in the statement.3732

Among the factors considered when determining the reliability of a statement

under Rule 92 quarter are: (1) the circumstances under which the statement was
generated; (2) whether the evidence was subject to cross examination; (3) whether there
is other evidence which relates to the same events described by the witness; and (4) other
factors, including whether there are manifest inconsistencies in the evidence. 3733

Factors relevant to the exercise of discretion include issues of reliability going

beyond the circumstances in which the testimony was given and recorded: such as (1)
whether and to what extent the witness has been subject to cross-examination; (2)
whether the testimony is corroborated by other evidence; (3) the absence of manifest or
obvious inconsistencies; and (4) whether and to what extent the testimony goes to the acts
and conduct of the accused as charged in the indictment.3734

Testimony of witness in previous trial admitted pursuant to Rule 92 quarter where

it was reliable and where other live witnesses had addressed the same topics. 3735

The fact that a witness made a plea agreement with the prosecution does not
render his testimony unreliable. 3736

3732
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Admission of
Evidence Pursuant to Rule 92 quarter (16 February 2007) at para. 7; Prosecutor v Delic, No. IT-04-83-PT,
Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quarter (9 July 2007) at
page 4; Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Prosecution’s Motion for Admission of
Evidence Pursuant to Rule 92 quarter and 13th Motion for Trial-Related Protective Measures (7 September
2007) at para. 8; Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on the Admission of Statements of
Two Witnesses and Associated Documents Pursuant to Rule 92 quarter (16 January 2009) at para. 13;
Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for Admission of Evidence
Pursuant to Rule 92 quater (5 February 2009) at para. 6 Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits
Pursuant to Rule 92 quater (20 August 2009) at para. 5; Prosecutor v Tolimir, No. IT-05-88/2-PT,
Decision on Prosecution’s Motion for Admission of Evidence Pursuant to Rule 92 quarter (25 November
2009) at para. 29
3733
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of the
Evidence of KDZ297 (Miroslav Deronjic) Pursuant to Rule 92 Quarter (23 March 2010) at para. 22;
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of the Evidence
of KDZ172 (Milan Babic) Pursuant to Rule 92 Quarter (13 April 2010) at para. 25
3734
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution’s Motion for Admission
of Evidence of Witness Milan Babic Pursuant to Rule 92 quarter (16 December 2010) at para. 36
3735
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Admission of
Evidence Pursuant to Rule 92 quarter (5 March 2007); Prosecutor v Stanisic & Simatovic, No. IT-03-69-T,
Decision on Prosecution Motion for Admission of Evidence of Stevqn Todorovic Pursuant to Rule 92
quarter (29 October 2010); Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion for
Admission of Evidence Pursuant to Rule 92 quater (Milan Babic) (7 February 2013); Prosecutor v Hadzic,
No. IT-04-75-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater
(Milan Babic)(7 February 2013)

609
 While the witness’ status as an accused and beneficiary of a plea agreement with
the prosecution does not by itself necessarily render his evidence unreliable,
inconsistencies in his statements regarding the accused’s participation in events relevant
to the indictment, as well as his admission that he deliberately omitted the information
until after he was indicted, required that his evidence as a whole must be approached with
caution, and militates against admission. 3737

The inordinate amount of evidence of the witness going to the acts and conduct of
the accused, coupled with concerns over the reliability of the witness’ evidence, resulted
in the denial of admission of the witness’ prior testimony and statements under Rule 92
quarter.3738

Pervasive inconsistencies in witness’ answers to prosecution questions during

recorded interview, and highly evasive answers, so undermined the probative value of the
evidence so as to make it unreliable and inadmissible as defence evidence under Rule 92
quater.3739

Witness’s repudiation of earlier statements and a finding that witness was not
truthful when explaining his failure to appear before the Tribunal in another case
rendered his proposed evidence lacking in credibility and therefore devoid of probative
value and would not be admitted under Rule 92 quater.3740

Recorded interview with prosecution, or testimony at earlier trial, was sufficiently

reliable to warrant admission under Rule 92 quater despite inconsistencies, which were
not so pervasive as to render the statement inadmissible, but would be taken into account
when evaluating the weight to be given to the evidence. 3741

Any inconsistencies between the evidence of the Rule 92 quater witness and other
evidence is to be assessed in light of all the other evidence admitted at trial and goes to

3736
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of the
Evidence of KDZ172 (Milan Babic) Pursuant to Rule 92 Quarter (13 April 2010) at para. 28
3737
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of the
Evidence of KDZ297 (Miroslav Deronjic) Pursuant to Rule 92 Quarter (23 March 2010) at para. 31
3738
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of the
Evidence of KDZ297 (Miroslav Deronjic) Pursuant to Rule 92 Quarter (23 March 2010) at para. 39
3739
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for the Admission of the
Statement of Rajko Koprivica Pursuant to Rule 92 quater (3 October 2012) at para. 16
3740 3740
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter (26 October 2015) at para. 34
3741
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for the Admission of the
Statement of Vlado Lizdek Pursuant to Rule 92 quater (10 October 2012) at paras. 12-13; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Admit Evidence of Velibor Ostojic Pursuant
to Rule 92 quater (23 October 2012) at paras. 12-13; Prosecutor v Mladic, No. IT-09-92-T, Decision on
Prosecution Motion to Admit the Evidence of Ljubomir Bojanovic and Miroslav Deronjic Pursuant to Rule
92 quater (13 January 2014) at para. 8

610
the weight to be given to the evidence, not its admission. 3742

Testimony of witness at his own trial at which he was convicted was nevertheless
sufficiently reliable to render it admissible pursuant to Rule 92 quater.3743

Summary of evidence given in Croatian court proceedings was not sufficiently

reliable to be admitted.3744

Direct examination of witness who fell ill before being cross examined would not
be admitted pursuant to Rule 92 quarter where the testimony was not sufficiently reliable
or corroborated by other witnesses. 3745

Portions of testimony initially rejected under Rule 92 quarter as being unreliable

would be admitted on reconsideration after other witnesses at the trial had corroborated
it.3746

Deceased witness who had signed his statement with an “X” in the presence of a
representative of the Registry was sufficient proof of the reliability of the method under
which the statement was taken.3747

Where witness appeared confused and disoriented during prior testimony,

admission under Rule 92 quarter would be denied due to unreliability. 3748

Recorded interview of deceased witness by Office of the Prosecution was

sufficiently reliable to be admitted at the request of the defence, despite prosecution
claims that the witness was lying.3749

Inconsistencies in the prior evidence do not affect the admissibility of the

evidence under Rule 92 quater, but go to the weight to be given to the evidence. 3750

3742
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Omnibus Motion for Admission of Evidence
Pursuant to Rule 92 quarter (26 October 2015) at paras. 30,46,54
3743
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Admit the Evidence of
Radislav Krstic Pursuant to Rule 92 quater (26 November 2013) at paras. 26-28
3744
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter…(9 May 2013) at para. 61
3745
Prosecutor v Haradinaj et al, No. IT-04-84-T, Reasons for Trial Chamber’s Decision to Exclude the
Evidence of Witness 55 Under Rule 89(D) and to Deny His Testimony Pursuant to Rule 92 Quarter (14
December 2007) at para. 16
3746
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motion for Reconsideration of the
Decision of 7 January 2008 Rejecting the Admission of Milan Babic’s Testimony (12 December 2010) at
para. 18
3747
Prosecutor v Haradinaj et al, No. IT-04-84-T, Decision on Prosecution’s Motion for Admission of
Evidence Pursuant to Rule 92 quarter and 13th Motion for Trial-Related Protective Measures (7 September
2007) at para. 9
3748
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter…(9 May 2013) at para. 97
3749
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Statement of
Srdo Srdic pursuant to Rule 92 Quater (21 September 2012) at para. 11

611
 Testimony of an accused who testified at his own trial and later died admitted as
the status of the witness as an accused does not necessarily render his evidence
unreliable.3751

Whether prior testimony was given in open or closed session does not affect its
reliability. 3752

Fact that case in which prior testimony was given did not reach stage of
adjudication does not affect the reliability of the testimony. 3753

requirements

Rule 92 quarter requires that (1) the person whose statement or transcript is
sought to be admitted is unavailable; and (2) the statement is reliable. The proffered
evidence must also be relevant, have probative value, and not be unduly prejudicial. 3754

For a statement to be admitted pursuant to Rule 92 quarter, the Trial Chamber

must satisfy itself that (1) the witness is unavailable; (2) the statement is reliable; (3) the
statement is relevant and of probative value; and (4) whether the statement goes to the
acts and conduct of the accused or involves critical evidence. 3755

3750
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion for Admission of Testimony
of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater (20 August 2009) at para. 15;
Prosecutionv Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part the Prosecution Motion for
Admission of Evidence Pursuant to Rule 92 quarter (14 April 2010) at para. 23; Prosecutor v Karadzic, No.
IT-95-5/18-T, Decision on Accused’s Motion for Admission of Evidence of Milorad Krnojelac Pursuant to
Rule 92 quater (6 December 2012) at para. 21; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Accused’s Motion for Admission of Evidence of Witness KW582 Pursuant to Rule 92 quater (3 February
2014) at para. 14
3751
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Evidence of
Milorad Krnojelac Pursuant to Rule 92 quater (6 December 2012) at para. 21
3752
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution’s Motion for Admission
of Evidence of Witness B-161 Pursuant to Rule 92 quarter (16 June 2010) at para. 27
3753
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution’s Motion for Admission
of Evidence of Witness B-161 Pursuant to Rule 92 quarter (16 June 2010) at para. 27; Prosecutor v Stanisic
& Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Admission of Evidence of Stevqn
Todorovic Pursuant to Rule 92 quarter (29 October 2010) at para. 43
3754
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion for Admission of
Evidence Pursuant to Rule 92 quarter (16 February 2007) at paras. 3, 6; Prosecutor v Milutinovic et al, No.
IT-05-87-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quarter (5
March 2007) at para. 6; Prosecutor v Dordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Motions for
Admission of Evidence Pursuant to Rule 92 quater (5 February 2009) at para. 5; Prosecutor v Tolimir, No.
IT-05-88/2-PT, Decision on Prosecution’s Motion for Admission of Evidence Pursuant to Rule 92 quarter
(25 November 2009) at paras. 27-28; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution
Motion for Admission of the Evidence of KDZ172 (Milan Babic) Pursuant to Rule 92 Quarter (13 April
2010) at para. 7
3755
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Prosecution Motion for Admission of a
Written Statement Pursuant to Rule 92 quarter of the Rules (Hasan Rizvic) (14 January 2008) at paras. 10-
13

612
 In addition to the elements required to satisfy Rule 92 quarter, the general
requirements of admissibility of evidence under Rule 89 must be satisfied, namely that
the proffered evidence is relevant and has probative value, and that the probative value is
not substantially outweighed by the need to ensure a fair trial. 3756

In deciding a motion to admit evidence pursuant to Rule 92 quarter, the Trial

Chamber must first determine if the witness is unavailable, then whether the evidence is
reliable, whether to admit the evidence in the exercise of its discretion, including whether
the information goes to the acts and conduct of the accused, it goes to a core issue in the
case, and whether the cross examination in the prior proceeding adequately addressed
interests relative to the accused in this case. 3757

supplemental material

Defence motion to admit additional material under Rule 92 quarter for witnesses
whose testimony was admitted under the Rule in the prosecution’s case was granted. 3758

unavailability

can’t be found

The Trial Chamber must be satisfied on a balance of probabilities that a witness is

dead or can no longer be traced with reasonable diligence. 3759

health reasons

Witness suffering from PTSD whose testimony would be difficult for him was
(was not) unavailable within the meaning of Rule 92 quarter.3760

3756
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Admission of Evidence
Pursuant to Rule 92 quarter (9 July 2007) at page 4; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits Pursuant to
Rule 92 quater (20 August 2009) at para. 6
3757
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Prosecution Motion for Admission of
Evidence Pursuant to Rules 92 bis and quarter of the Rules (27 October 2006) at paras. 9-12; Prosecutor v
Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Admission of Evidence of
Stevqn Todorovic Pursuant to Rule 92 quarter (29 October 2010) at para. 37
3758
Prosecutor v Perisic, No.IT-04-81-T, Decision on Defence Motion for Admission of Evidence Pursuant
to Rule 92 auater (21 April 2010)
3759
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Written
Evidence Pursuant to Rule 92 bis of the Rules (16 January 2006) at para. 12
3760
Prosecutor v Stanisic & Zupljanin, Decision Granting in part Prosecution’s Motion for Admission of
Evidence of ST020 Pursuant to Rule 92 quater (19 January 2011) at para. 17; Prosecutor v Mladic, No. 09-
92-T, Decision on Prosecution Rule 92 quarter Motion (Witness RM-132)(28 June 2013) at para. 8;
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Admit the Evidence of Radislav
Krstic Pursuant to Rule 92 quater (26 November 2013) at para. 19; contra: Prosecutor v Tolimir, No. IT-
05-88/2-T, Decision on Prosecution’s Motion to Admit the Evidence of Prosecution Witness No. 39
Pursuant to Rule 92 quater (7 September 2011) at para. 30; Prosecutor v Hadzic, No. IT-04-75-T, Decision
on Prosecution Omnibus Motion for Admission of Evidence Pursuant to Rule 92 quarter…(9 May 2013) at
paras. 101, 104

613
 Witness suffering from dementia or Altzheimer’s disease was unavailable within
the meaning of Rule 92 quarter.3761

Witness with psychosis not unavailable within the meaning of Rule 92

quarter.3762

Witness not shown to be unavailable absent further current medical

information. 3763

Witness with walking impairment not shown to be unavailable. 3764

Witness who had suffered strokes and needed assistance when walking was
unavailable. 3765

Witness with cognitive impairments such as that she was sometimes not able to
recognize family members was unavailable within the meaning of Rule 92 quarter.3766

Witness who showed signs of forgetfulness and amnesia, and experienced

episodes of spontaneous sleep after which he does not recall what he was doing, is
incapable of answering questions put to him and testifying coherently and is therefore
objectively unavailable within the meaning of Rule 92 quater.3767

Witness who suffered from multiple sclerosis, cerebral meningioma, and cerebral
cavernoma and required therapy was unavailable within the meaning of Rule 92
quater.3768

Witness who had undergone brain surgery not unavailable absent evidence of
memory loss or other impairment that would prevent him from testifying coherently. 3769

3761
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter…(9 May 2013) at para. 41, 95; Prosecutor v Mladic, No. IT-09-92-
T, Decision on Prosecution Rule 92 quater Motion (Witness RM-012)(13 December 2013) at para. 5
3762
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter…(9 May 2013) at para. 99
3763
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter…(9 May 2013) at para. 55, 71
3764
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter…(9 May 2013) at para. 59
3765
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motions for Admission of Evidence of
GH-079, GH-083, and GH-142 Pursuant to Rule 92 quater (18 July 2013) at paras. 12,17
3766
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Omnibus Motion for Admission of
Evidence Pursuant to Rule 92 quarter…(9 May 2013) at para. 29
3767
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Omnibus Motion for Admission of Evidence
Pursuant to Rule 92 quarter (26 October 2015) at para. 25
3768
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Omnibus Motion for Admission of Evidence
Pursuant to Rule 92 quarter (26 October 2015) at para. 58
3769
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Admission of Testimony of
Borivoje Jakovljevic Pursuant to Rule 92 quater (25 February 2014) at para. 7

614
 Witness who had recent heart surgery not shown to be unavailable where he had
been released for care and there was no showing that he was currently unable to
testify. 3770

refuses to testify

Failure of prosecution to prevail upon witnesses to testify voluntarily was

insufficient to show that the witnesses were unavailable. 3771

witness list

Rule 92 quater witnesses must be on the witness list filed pursuant to Rule 65 ter.
Trial Chamber refused to admit statements of deceased witnesses who had been dropped
from the witness list.3772

Rule 92 quinquies—persons subject to interference

(A) A Trial Chamber may admit the evidence of a person in the form of a written
statement or a transcript of evidence given by the person in proceedings before the
Tribunal, where the Trial Chamber is satisfied that:
(i) the person has failed to attend as a witness or, having attended, has not given
evidence at all or in a material respect;
(ii) the failure of the person to attend or to give evidence has been materially
influenced by improper interference, including threats, intimidation, injury,
bribery, or coercion;
(iii) where appropriate, reasonable efforts have been made pursuant to Rules 54 and
75 to secure the attendance of the person as a witness or, if in attendance, to secure
from the witness all material facts known to the witness; and
(iv) the interests of justice are best served by doing so.
(B) For the purposes of paragraph (A):
(i) An improper interference may relate inter alia to the physical, economic,
property, or other interests of the person or of another person;
(ii) the interests of justice include:
(a) the reliability of the statement or transcript, having regard to the circumstances
in which it was made and recorded;
(b) the apparent role of a party or someone acting on behalf of a party to the
proceedings in the improper interference; and
(c) whether the statement or transcript goes to proof of the acts and conduct of the
accused as charged in the indictment.
(iii) Evidence admitted under paragraph (A) may include evidence that goes to

3770
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Defence Omnibus Motion for Admission of Evidence
Pursuant to Rule 92 quarter (26 October 2015) at para. 42
3771
Prosecutor v Tolimir, No. IT-05-88/2-T, Partial Decision on Prosecution’s Rule 92 bis Motion for Five
Witnesses (27 August 2010) at para. 33
3772
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution’s Motion for Admission of Witness
Statements Pursuant to Rule 92 quater (19 April 2007) at para. 11

615
proof of the acts and conduct of the accused as charged in the indictment.
(C) The Trial Chamber may have regard to any relevant evidence, including
written evidence, for the purpose of applying this Rule.

Rule 92 quinques cannot be applied retroactively to cases pending at the time the
Rule was adopted in December 2009.3773

To be admissible, the witness’ reluctance to give evidence viva voce must be

genuine and the extent of his fears must be such that it justifies admitting his prior
testimony without cross-examination. 3774

The interference with the witness must be improper, such as through intimidation
or bribery. 3775

Prosecution failed to convince Trial Chamber that witness’ fears were genuine or
resulted from improper interference that materialy influenced his decision to refuse to
testify, and therefore his prior testimony in another case would not be admitted pursuant
to Rule 92 quinques.3776

Rule 93—evidence of consistent pattern of conduct

(A) Evidence of a consistent pattern of conduct relevant to serious violations of

international humanitarian law under the Statute may be admissible in the interests
of justice.
(B) Acts tending to show such a pattern of conduct shall be disclosed by the
Prosecutor to the defence pursuant to Rule 66.

Rule 93 allows for the admission of evidence of a consistent pattern of conduct

relevant to serious violations of international humanitarian law in the interests of justice.
Similarly, under the so-called principle of “similar fact evidence”, courts in England and
Wales, Australia and the United States admit evidence of crimes or wrongful acts
committed by the defendant other than those charged in the indictment, if the other
crimes are introduced to demonstrate a special knowledge, opportunity, or identification
of the defendant that would make it more likely that he committed the instant crime as
well. 3777

Prosecution is not at liberty to introduce similar fact evidence without proper

notice to the defendant. In this connection, the Appeals Chamber notes that Rule 93 of

3773
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution Motion to Admit the Prior
Evidence of Milan Tupajic pursuant to Rule 92 quinques (7 May 2012) at para. 15
3774
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution Motion to Admit the Prior
Evidence of Milan Tupajic pursuant to Rule 92 quinques (7 May 2012) at para. 17
3775
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution Motion to Admit the Prior
Evidence of Milan Tupajic pursuant to Rule 92 quinques (7 May 2012) at para. 17
3776
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Prosecution Motion to Admit the Prior
Evidence of Milan Tupajic pursuant to Rule 92 quinques (7 May 2012) at para. 18
3777
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 321

616
the Rules provides specifically that the Prosecution must disclose any evidence of a
consistent pattern of conduct to the defence pursuant to Rule 66. 3778

Rule 94—judicial notice

(A) A Trial Chamber shall not require proof of facts of common knowledge but
shall take judicial notice thereof.
(B) At the request of a party or proprio motu, a Trial Chamber, after hearing the
parties, may decide to take judicial notice of adjudicated facts or of the authenticity
of documentary evidence from other proceedings of the Tribunal relating to matters
at issue in the current proceedings.

acts and conduct of the accused

Judicial notice may not be taken of adjudicated facts relating to the acts, conduct,
and mental state of the accused. 3779

Judicial notice should not be taken of adjudicated facts relating to the acts,
conduct, and mental state of the accused. However, other facts bearing less directly on
the accused’s criminal responsibility are left to the Trial Chamber’s discretion. 3780

Judicial notice may be taken of adjudicated facts relating to the existence of a

joint criminal enterprise, the conduct of its members other than the accused, and facts
related to conduct of physical perpetrators of crimes for which the accused is alleged to
be criminally responsible. 3781

There is no reason why judicial notice could not be taken of adjudicated facts
providing evidence of the existence of crimes committed by others, even if such facts
were to serve as the basis for other evidence that the accused had notice of those
crimes. 3782

Evidence of the accused’s notice of crimes has to be produced separately from

judicial notice of their existence. 3783

3778
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 323
3779
Prosecutor v Mladic, No. It-09-92-AR73.1, Decision on Ratko Mladic’s Appeal from Trial Chamber
Decisions on Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November 2013) at para. 80
3780
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 620
3781
Prosecutor v Mladic, No. It-09-92-AR73.1, Decision on Ratko Mladic’s Appeal from Trial Chamber
Decisions on Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November 2013) at para. 81
3782
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Interlocutory Appeals Against Trial Chamber’s
Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catelogue of
Agreed Facts (26 June 2007) at para. 16
3783
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Interlocutory Appeals Against Trial Chamber’s
Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catelogue of
Agreed Facts (26 June 2007) at para. 17

617
 Evidence as to the goals of unnamed superiors went to the act and conduct of the
accused, who was alleged to be one of the superiors in the indictment.3784

Trial Chamber declined to take judicial notice of facts bearing upon the
responsibility of the accused relating to the objective and members of the joint criminal
enterprise, as well as facts relating to a fundamental issue raised in the indictment. 3785

Trial Chamber declined to take judicial notice of facts which relate to the
responsibility of the accused in that they refer to the goal or members of the alleged joint
criminal enterprise as well as persons whom the accused is alleged to be responsible for,
or are linked to a fundamental question raised in the indictment.3786

Judicial notice may be taken of a fact which relates to the responsibility of the
accused, provided that it does not go to the acts, conduct, or mental state of the
accused. 3787

Facts which relate to the conduct of subordinates or members of the joint criminal
enterprise may be judicially noticed. However, judicial notice should not be taken when
such facts are crucial to the case and when they concern people proximate to the
accused. 3788

alibi

Prosecution argument that alibi facts should not be judicially noticed because not
subject to the same burden of proof was rejected. Findings of fact regarding alibi may be
judicially noticed. 3789

appeal

A party seeking the taking of judicial notice of a fact or document on appeal must
also meet the requirements of Rule 115.3790

3784
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Second Motion for Judicial Notice of Facts
Relevant to the Sarajevo Crime Base (17 September 2008) at para. 21
3785
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Prosecution Motion to Take Judicial Notice of
Facts Under Rule 94(B) of the Rules of Procedure and Evidence (10 December 2007) at para. 13
3786
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motions to Take Judicial Notice of Facts
Concerning the Mrskic Case (8 February 2010) at para. 13
3787
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motions for Judicial Notice of
Adjudicated Facts of 14 and 23 June 2006 (7 September 2006) at para. 25
3788
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motions for Judicial Notice of
Adjudicated Facts of 14 and 23 June 2006 (7 September 2006) at para. 25
3789
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Sredoje Lukic’s Amended Motion for
Judicial Notice of Adjudicated Facts (12 November 2008) at para. 13
3790
Nikolic v Prosecutor, No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice (1 April
2005) at para. 17

618
 The Appeals Chamber will not consider the alleged error of the Trial Chamber in
refusing to take judicial notice of each fact, but returned the matter to the Trial Chamber
to consider the application of the test for judicial notice to each fact.3791

Although a case may be pending on appeal, judicial notice can be taken of facts
which are not the subject of the pending appeal. 3792

Judicial notice will only be taken of facts of facts which are clearly not the subject
of pending appeal or review proceedings or inextricably commingled with findings that
are being challenged by a party.3793

Facts from an appeal judgement may be judicially noticed. 3794

Only facts in a judgement, from which there has been no appeal, or as to which
any appellate proceedings have concluded, can truly be deemed “adjudicated facts”
within the meaning of Rule 94(B).3795

Where the fairness of the trial is challenged on appeal, the facts in the Trial
Chamber judgement cannot be judicially noticed until the appeal is final. 3796

Facts which are not challenged on appeal may be judicially noticed, even if the
fairness of the trial is challenged on appeal, and if the appeal is successful, the defence
can request that the facts be reconsidered. 3797

burden of persuasion

3791
Prosecutor v Milosevic, No. IT-02-54_AR73.5, Decision on the Prosecution’s Interlocutory Appeal
Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (28 October 2003) at pg. 3
3792
Prosecutor v Mladic, No. It-09-92-AR73.1, Decision on Ratko Mladic’s Appeal from Trial Chamber
Decisions on Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November 2013) at para. 92;
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of Facts and
Documents Relevant to the Zagreb Crime Base (2 September 2008) at para. 28; Prosecutor v Prlic et al,
No. IT-04-74-PT, Decision on Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (14
March 2006) at para. 15; Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motions for
Judicial Notice of Adjudicated Facts of 14 and 23 June 2006 (7 September 2006) at para. 24
3793
; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 43
3794
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motions for Judicial Notice of
Adjudicated Facts of 14 and 23 June 2006 (7 September 2006) at para. 24
3795
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on Motions by Drago Josipovic, Zoran
Kupreskic, and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial
Notice to be Taken Pursuant to Rule 94(B) (8 May 2001) at para. 6
3796
Prosecutor v Mladic, No. It-09-92-AR73.1, Decision on Ratko Mladic’s Appeal from Trial Chamber
Decisions on Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November 2013) at para. 96;
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Judicial Notice of Adjudicated
Facts and Joint Motion Concerning Agreed Facts (9 July 2007) at para. 14
3797
Prosecutor v Mladic, No. 09-92-PT, Second Decision on Judicial Notice of Adjudicated Facts (21
March 2012) at para. 33

619
 While the burden of producing evidence shifts to the accused when the Trial
Chamber judicially notices an adjudicated fact, the burden of persuasion on the
prosecution beyond a reasonable doubt always remains with the prosecution. 3798

Judicial notice does not shift the ultimate burden of proof, which remains with the
Prosecution rather it operates only to relieve the prosecution of its initial burden to
produce evidence on the point.3799

Adjudicated facts are merely presumptions which can be rebutted by the defence
during the trial and does not shift the burden of persuasion which remains with the
prosecution. 3800

By taking judicial notice of an adjudicated fact, a Chamber establishes a well-

founded presumption for the accuracy of the fact, which therefore does not have to be
proven again at the trial, but which, subject to that presumption, may be challenged at
that trial. 3801

The legal effect of taking judicial notice is only to relieve the prosecution of its
initial burden to produce evidence on a particular point. The defence may put the issue
into question by introducing reliable and credible evidence to the contrary. 3802

Neither taking judicial notice of adjudicated facts nor admitting written evidence
under Rule 92 bis shifts the burden of proof to the accused. Therefore, the cumulative
effect of taking judicial notice of a large number of adjudicated facts does not violate the
presumption of innocence. 3803

Evidence led at trial from a witness whose evidence is also the basis of
adjudicated facts will not be considered corroborated by the adjudicated facts. 3804

A party relying on an adjudicated fact does not have to produce further evidence

3798
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (26 September 2006) at para. 21; Prosecutor v Milosevic, No. IT-98-29/1-T, Decision
on Prosecution’s Motion for Judicial Notice of Adjudicated Facts (10 April 2007) at para. 29; Prosecutor v
Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1611
3799
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 24
3800
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of Facts
Relevant to the Srebrenica Crime Base (22 September 2008) at para. 21; Prosecutor v Popovic et al, No.
IT-05-88-A, Judgement (30 January 2015) at para. 620
3801
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 25
3802
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 25; Prosecutor v
Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion to Strike Sarajevo Shelling and Sniping
Incidents (27 January 2012) at para. 11
3803
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution’s Second Motion for Judicial
Notice of Adjudicated Facts (9 October 2009) at para. 53
3804
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Preclude Evidence or to
Withdraw Adjudicated Facts (31 March 2010) at para. 12

620
in proof of that fact, however, it may nonetheless seek to do so. The Trial Chamber has
the discretion to admit additional evidence. It was not error to admit evidence relevant to
the same facts as those established in the adjudicated facts. 3805

There is no basis for the contention that where a trial chamber is presented with
evidence upon which an adjudicated fact is based or evidence in excess of that evidence,
the trial chamber should ignore the adjudicated fact of which it has taken judicial notice,
and restrict itself to the evidence on the record in the case before it. 3806

Witness evidence should not be precluded simply because it overlaps with

adjudicated facts.3807

common knowledge

Rule 94(A) requires the Trial Chamber to take judicial notice of a fact of common
knowledge—general facts of history, general known geographical facts, the laws of
nature, and generally known facts within a tribunal’s territorial jurisdiction. The fact
must be one in which is not subject to reasonable dispute. Once a fact is judicially
noticed under Rule 94(A) it cannot be challenged. 3808

Rule 94(A) cannot be used to admit evidence. Taking judicial notice of a fact
under Rule 94(A) removes the need for evidence relating to that fact. 3809

Rule 94(A) is mandatory and does not provide the Trial Chamber with discretion
to refuse judicial notice once a fact is determined to be of common knowledge. 3810

It is for the prosecution to establish that the facts are not subject to reasonable
dispute, not for the accused to show that the facts are unsafe. 3811

The standard of notoriety is particularly rigorous.3812

3805
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 25
3806
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 26
3807
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion to Preclude Evidence or to
Withdraw Adjudicated Facts (31 March 2010) at para. 17
3808
Nikolic v Prosecutor, No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice (1 April
2005) at para. 10
3809
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion to Admit
Documentary Evidence (10 October 2006) at para. 14
3810
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Facts of Common Knowledge Pursuant to Rule 94(A) (26 September 2006) at para. 12
3811
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Prosecution Motion for Judicial Notice of Facts
of Common Knowledge and Admission of Documentary Evidence Pursuant to Rules 94(A) and 89(C) (3
February 2006) at pg. 6
3812
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts (10 April 2007) at para. 25

621
 Information contained in materials of the United Nations does not become a fact
of common knowledge simply because it was generated by a body of the United
Nations.3813

Military rules or regulations, particularly those classified as “secret” do not

qualify as facts capable of judicial notice. 3814

Newspaper articles, ICTR court records, and Croatian laws are not facts of
common knowledge which can be judicially noticed pursuant to Rule 94(A). 3815

The facts proposed for judicial notice must be sufficiently well-defined such that
the accuracy of their application to the described situation is not reasonably in doubt.3816

When a proposed fact has several elements, it is not sufficient that each element is
separately recognized as a fact of common knowledge. The totality of elements
constituting the proposed fact must be established to be of common knowledge. 3817

A fact must relate to the events charged in the indictment in order to be subject of
judicial notice.3818

Existence of plan by Bosnian Serb military and civilian leaders to ethnically

cleanse part of Bosnia was not established to be a fact of common knowledge and judicial
notice was refused. 3819

Convictions of subordinates of the accused would not be judicially noticed as

facts of common knowledge.3820

Judicial notice of state of armed conflict and existence of widespread and

systematic attacks over entire are of Bosnia denied as not facts of common
knowledge. 3821
3813
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Prosecution Motion for Judicial Notice of Facts
of Common Knowledge and Admission of Documentary Evidence Pursuant to Rules 94(A) and 89(C) (3
February 2006) at pg. 6
3814
Nikolic v Prosecutor, No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice (1 April
2005) at para. 34
3815
Prosecutor v Marijacic & Rebic, No. IT-95-14-R77.2, Decision on Prosecution Motion for Judicial
Notice and Admission of Evidence (13 January 2006) at page 3-4
3816
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Facts of Common Knowledge Pursuant to Rule 94(A) (26 September 2006) at para. 15
3817
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Facts of Common Knowledge Pursuant to Rule 94(A) (26 September 2006) at para. 17
3818
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motions for Judicial Notice of
Adjudicated Facts of 14 and 23 June 2006 (7 September 2006) at para. 22
3819
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Facts of Common Knowledge Pursuant to Rule 94(A) (26 September 2006) at para. 18
3820
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Motion for Judicial Notice of ICTY Convictions
(25 September 2008)
3821
Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Judicial Notice (14 December 2007) at paras. 20,
27

622
 concrete facts

Judicial notice would not be taken of fact that General Galic “gave the
impression” and that firing on civilians “was ordered by the chain of command”, despite
the lack of objection from the defence, as such facts were not sufficiently concrete. 3822

Judicial notice would not be taken of facts which used general terms such as “full
scope of plan” and “resources”. 3823

Judicial notice would not be taken of a finding that something “could have” been
determined as it is a supposition rather than a fact.3824

context

Trial Chamber refused to take judicial notice of facts which were divorced from
their context in the original judgement and hence misleading in the current
proceedings.3825

The Trial Chamber refused to take judicial notice of some facts which were not
sufficiently distinct, concrete, and clear in the original judgement. 3826

Trial Chamber refused to take judicial notice of facts which were not sufficiently
clear or definitive. 3827

Only when a Chamber has accepted evidence and made findings in accordance
with that evidence, as opposed to merely reciting evidence, can the facts be considered as
adjudicated facts. The burden is on the moving party.3828

corroboration

Where the adjudicated fact in the source judgement cited the same witness who
gave evidence in this case on the same point and this latter evidence was the only

3822
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Second Motion for Judicial Notice of Facts
Relevant to the Sarajevo Crime Base (17 September 2008) at para. 9
3823
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of Facts
Relevant to the Srebrenica Crime Base (22 September 2008) at para. 28
3824
Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion for Judicial Notice of Adjudicated
Facts (4 May 2010) at para. 15
3825
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Defence Request for Judicial Notice of
Adjudicated Facts (29 August 2007); Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Judicial Notice
(14 December 2007) at para. 40
3826
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts Concerning Sarajevo (26 June 2008) at paras. 18-19
3827
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Prosecution Motion to Take Judicial Notice of
Facts Under Rule 94(B) of the Rules of Procedure and Evidence (10 December 2007) at para. 14, 16
3828
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Partially Granting Motion of Mico
Stanisic for Judicial Notice of Adjudicated Facts (29 June 2011) at para. 5

623
evidence in this case on the point, other than the adjudicated fact, the Chamber did not
consider the adjudicated fact to corroborate the witness’s evidence in this case. 3829

credibility assessment

Facts which constitute a credibility assessment are not truly adjudicated facts and
would not be judicially noticed.3830

discretion

Trial Chambers should take a cautious approach in exercising its discretion to take
judicial notice of adjudicated facts in order to ensure the right of an accused to a fair
trial. 3831

The taking of judicial notice under Rule 94(B) is discretionary. It must be

demonstrated that the facts or documents sought to be judicially noticed are related to
matters at issue in the current proceedings. A fact judicially noticed under this section is
presumed to be established, but may be challenged at trial. 3832

The taking of judicial notice of adjudicated facts is within the discretion of the
Trial Chamber. The Trial Chamber retains discretion to refuse judicial notice of
adjudicated facts if the interests of justice, including the rights of the accused to a fair,
public, and expeditious trial so require. 3833

The fact that other Trial Chambers declined to take judicial notice of the same
adjudicated facts does not require that a Trial Chamber also declined to take judicial
notice. 3834

3829
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 31
3830
Prosecutor v Lukic & Lukic, No IT-98-32/1-T, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts (22 August 2008) at para. 28
3831
Prosecutor v Mladic, No. IT-09-92-AR73.1, Decision on Ratko Mladic’s Appeal Against the Trial
Chamber Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November
2013) at para. 24
3832
Nikolic v Prosecutor, No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice (1 April
2005) at para. 11; Prosecutor v Milosevic, No. IT-02-54_AR73.5, Decision on the Prosecution’s
Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for
Judicial Notice of Adjudicated Facts (28 October 2003) at pg. 4; Prosecutor v Prlic et al, No. IT-04-74-PT,
Decision on Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (14 March 2006) at
para. 9
3833
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on Judicial Notice of Adjudicated
Facts Following the Motion Submitted by Counsel for the Accused Hadzihasanovic and Kubura on 20
January 2005 (14 April 2005)
3834
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motions for Reconsideration of
Decisions on Judicial Notice of Adjudicated Facts (16 June 2010) at para. 15; Prosecutor v Karadzic, No.
IT-95-5/18-T, Decision on Accused’s Third Motion for Reconsideration of Decision on Judicial Notice of
Adjudicated Facts (14 September 2010) at para. 8

624
 Trial Chamber declined to take judicial notice of facts concerning crimes
committed under the accused’s predecessor which could be used to impute notice to the
accused. Shifting the burden to the accused to rebut these facts would not be consistent
with the rights of the accused under the Statute.3835

In exercising discretion, the Trial Chamber is mindful of the possibility that the
fact might sought to be rebutted by the defence, thus consuming time and resources and
frustrating the goal of judicial economy. 3836

The Trial Chamber, in exercising its discretion whether to take judicial notice,
decided to reject proposed facts that go to issues that are at the core of the prosecution’s
case against the accused; facts based upon subjective inferences, facts which are broad,
vague, tenditious, or conclusory, and facts which might go to the acts, conduct or mental
state of the accused, but this could not be discerned due to lack of specificity in the
original judgement.3837

The Trial Chamber, in exercising its discretion whether to take judicial notice,
considers whether the volume or type of evidence which the accused would have to
produce in rebuttal could place such a significant burden on him that it would jeopardize
his right to a fair trial. 3838

A proposed fact may go to the core of the prosecution case where it involves the
objective of the joint criminal enterprise or relates to the acts and conducts of persons for
whose criminal conduct the accused is allegedly responsible. 3839

The exercise of discretion to decline to take judicial notice of facts which go to

the core of the case is a new approach which the Trial Chamber is not obligated to
follow.3840

Having properly defined the criteria for facts going to the core of the case, and
deciding to exercise its discretion not to take judicial notice of core adjudicated facts, the
Chamber erred in taking judicial notice of one fact that goes to the core of the case
concerning the objectives of the Bosnian Serbs to forcibly remove civilians from

3835
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts (10 April 2007) at para. 32
3836
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (26 September 2006) at para.; ; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T,
Decision Granting in Part Prosecution’s Motions for Judicial Notice of Adjudicated Facts Pursuant to
Rule 94(B) (1 April 2010) at para.45
3837
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts and Documents (23 May 2013) at para. 13
3838
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 45
3839
; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 46
3840
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motions for Reconsideration of
Decisions on Judicial Notice of Adjudicated Facts (16 June 2010) at para. 20

625
Srebrenica.3841

However, considering that the adjudicated fact did not constitute the sole basis of
the findings in support of which it was cited, the Trial Chamber's decision to take judicial
notice of it did not occasion a miscarriage of justice. 3842

Facts which contain subjective inferences of the Trial Chamber would not be
judicially noticed. 3843

Trial Chamber declined to take judicial notice of a fact which the previous
Chamber found was not established due to the insufficiency of the evidence, since the
specific evidence under consideration is not the same from case to case.3844

Finding that “the Trial Chamber is not satisfied that the mortar was launched from
SRK territory is a factual finding which meets the requirements for judicial notice. 3845

disputed facts

The proposed facts must not be based upon an agreement of the parties.
However, where the judgement indicated the facts “were not disputed”, it did not rise to
the level of an agreement so as to preclude judicial notice.3846

There is no requirement that adjudicated facts be beyond reasonable dispute. a

trial chamber may exercise its discretionary power to determine whether to take judicial
notice of an adjudicated fact, even if the fact may have been less central to the charges in
the previous proceedings of the Tribunal than in the current proceedings, so long as the
adjudicated fact has been established by the Trial Chamber in the previous proceedings
on the basis of evidence. 3847

Trial Chamber declined to take judicial notice of facts which were

“disputable”.3848

Where it cannot be determined, by examining the citations in the original

judgement, that the fact was not based upon an agreement of the parties, the Chamber
must refrain from taking judicial notice of that fact.3849
3841
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 35
3842
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 36
3843
; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 47
3844
Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion for Judicial Notice of Adjudicated
Facts (4 May 2010) at para. 20
3845
Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion for Reconsideration of the Trial
Chamber’s Decision of 4 May 2010 Concerning Adjudicated Facts (15 October 2010) at para. 20
3846
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Second Motion for Judicial Notice of Facts
Relevant to the Sarajevo Crime Base (17 September 2008) at para. 16
3847
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 622
3848
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motions to Take Judicial Notice of Facts
Concerning the Mrskic Case (8 February 2010) at para. 15

626
 documents

A party must establish the relevance of the document which is the subject of
judicial notice in the same way it establishes the relevance of other evidence. There must
be more than a remote connection to the current proceedings and this connection must be
demonstrated by pointing to specific portions of the document.3850

Once judicial notice of a document is taken, the document is admitted for its
contents. It establishes a presumption of authenticity of the document. The ultimate
weight to be given to the document is up to the Trial Chamber. 3851

Judicial notice of intercepted conversations admitted in previous trial was taken,

relieving the prosecution of the burden of calling witnesses to establish the reliability of
these intercepts.3852

Judicial notice of documents relating to crime base evidence from Croatia was
taken where documents were admitted in other trial and were relevant to the present
case. 3853

Documentary evidence from another proceeding need not be “adjudicated” to

qualify for judicial notice. 3854

A Trial Chamber may take judicial notice pursuant to Rule 94(B) of documentary
evidence admitted in a prior proceeding. The moving party must show that (1) the
document was received in evidence in the prior proceeding; and (2) relates to the matters
in issue in the current proceeding.3855

Judicial notice cannot be taken of an entire judgement. The mere reference to part
of a judgement or document is insufficient to trigger the provisions of Rule 94(B). A
party must demonstrate exactly which part of the section is relevant to the current

3849
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 38
3850
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of
Srebrenica Intercepts with Confidential Annexes (1 September 2008) at para. 6
3851
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of
Srebrenica Intercepts with Confidential Annexes (1 September 2008) at para. 5
3852
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of
Srebrenica Intercepts with Confidential Annexes (1 September 2008)
3853
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of Facts
and Documents Relevant to the Zagreb Crime Base (2 September 2008)
3854
Nikolic v Prosecutor, No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice (1 April
2005) at para. 45
3855
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion to Admit
Documentary Evidence (10 October 2006) at para. 16; Prosecutor v Perisic, No. IT-04-81-PT, Decision on
Prosecution’s Motion for Judicial Notice of Srebrenica Intercepts with Confidential Annexes (1 September
2008) at para. 6

627
proceedings. Since a paragraph can contain more than one fact, the precise fact to be
judicially noticed and its relevance to an issue in the case must be specified. 3856

This Rule envisions permitting a Chamber to take judicial notice of discrete items
of evidence such as the testimony of a witness or a trial exhibit, not an entire
judgement.3857

Where an adjudicated fact from a judgement is based upon documentary

evidence, the limitation on judicial notice of the contents of a document do not apply, as
it might when taking judicial notice of a document which has simply been admitted in a
prior proceeding.3858

The taking of judicial notice of a document creates a presumption of the

authenticity and reliability of the document, subject to rebuttal by the other party. The
weight to be given to the content of the document is thereafter within the discretion of the
Chamber.3859

The standard for taking judicial notice of documents is the same for taking
judicial notice of adjudicated facts, including whether the facts, when taken together will
result in such a large number as to compromise the principle of a fair trial and whether
the facts are too broad, too tenditious, not sufficiently significant, too detailed, too
numerous, repetitive of other evidence already admitted before the Trial Chamber, or not
sufficiently relevant to the case. 3860

Judicial notice of documents admitted in other proceedings denied where the

Chamber preferred to understand their context by presenting them through witnesses or
from the bar table during the course of the trial. 3861

Judicial notice of authenticity of documents admitted in other cases denied where

party had not provided Chamber with transcript references to other cases to enable the

3856
Nikolic v Prosecutor, No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice (1 April
2005) at para. 47, 55
3857
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on Motions by Drago Josipovic, Zoran
Kupreskic, and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial
Notice to be Taken Pursuant to Rule 94(B) (8 May 2001) at para. 6
3858
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Prosecution’s Third Motion for Judicial Notice
of Adjudicated Facts (9 July 2009) at para. 14
3859
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Judicial Notice of
Documentary Evidence Related to Sarajevo Component (31 March 2010)
3860
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Admission of Documentary
Evidence Pursuant to Rule 94(B) (9 July 2007) at page 4
3861
Prosecutor v Delic, No. IT-04-83-PT, Decision on Prosecution Motion for Admission of Documentary
Evidence Pursuant to Rule 94(B) (9 July 2007) at page 5; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Prosecution’s Motion for Judicial Notice of Documentary Evidence Related to Sarajevo
Component (31 March 2010) at para. 12

628
Chamber to understand whether and how the authenticity had been discussed in those
cases. 3862

Judicial notice of intercepted conversations would not be taken absent proof that
the applicable intercept was sufficiently authenticated and found to be reliable in the prior
proceeding. 3863

The recording of an intercepted conversation is included within the term

“documentary evidence” and judicial notice may be taken of the authenticity of such
recordings. 3864

The December 2010 amendment to Rule 94(B) provides that only the authenticity
of a document admitted in prior proceedings may be judicially noticed. The fact that a
document was deemed relevant in another trial does not mean that it is automatically
relevant to the current proceedings. 3865

The December 2010 amendment to Rule 94(B) now only allows the taking of
judicial notice of the authenticity of an exhibit admitted in a prior proceeding. This
means that documentary evidence is no longer admitted into evidence as a result of
judicial notice. Rather, Rule 94(B) now creates a well-founded presumption for the
authenticity of the documentary evidence in question.3866

Judicial notice taken of authenticity of intercepted conversation as a result of its

having been admitted in previous trial. 3867

After creating a well-founded presumption for the authenticity of the exhibit by

the taking of judicial notice pursuant to Rule 94(B), a party must then tender the exhibit
either through a witness or a bar table motion. 3868

The requirements of taking judicial notice of adjudicated facts are not applicable
to the taking of judicial notice of documents.3869

3862
Prosecutor v Mladic, No. IT-09-92-T, Decision on Prosecution Motion to Admit Evidence from the Bar
Table: Foca Municipality (14 November 2013) at para. 5
3863
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Judicial Notice of
Documentary Evidence Related to Sarajevo Component (31 March 2010) at para. 11; Prosecutor v Mladic,
No. IT-09-92-T, Decision on Prosecution’s Bar Table Motion for the Admission of Intercepts: Srebrenica
Segment (2 May 2013) at para. 17
3864
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Judicial Notice of
Intercepts Related to the Sarajevo Component…(4 February 2011) at para. 17
3865
Prosecutor v Stanisic and Zupljanin, No. IT-08-91-T, Decision Granting in Part the Prosecution’s Bar
Table Motion… (1 February 2011) at para. 14
3866
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Judicial Notice of
Intercepts Related to the Sarajevo Component…(4 February 2011) at para. 12
3867
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of
Documents Previously Marked for Identification (6 November 2013) at para. 7
3868
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Judicial Notice of
Intercepts Related to the Sarajevo Component…(4 February 2011) at para. 15

629
 Whether a party objected or not to the admission of the said document in the
previous proceedings, or whether the decision to admit the exhibit was subject to appeal,
is irrelevant.3870

Due to limited added value of taking judicial notice of such proposed facts based
exclusively upon documents, compared to admitting the underlying document or parts
thereof into evidence, the Chamber declined to take judicial notice of facts based entirely
upon documents.3871

Judicial notice of facts from Rule 11 bis proceedings in the same case cannot be
taken. Rule 94(B) applies to decisions in other cases, not the same case. And the facts
must be the product of a trial, not a transfer proceeding. 3872

findings

Sometimes Chambers do not make an explicit finding on the evidence but instead
refer to the evidence given to the relevant witness. However, unless a contradiction is
expressly noted or evidence is excluded, this type of fact may be said to be a “factual
finding” for purpose of judicial notice. 3873

A trial chamber is not required, in determining whether to take judicial notice, to

examine the particular items of evidence from the previous case that constituted the basis
for the findings reflected in the proposed adjudicated facts. 3874

legal conclusions

While legal conclusions may be judicially noticed under Rule 94(A), findings or
characterizations of an essentially legal nature may not be judicially noticed as
adjudicated facts under Rule 94(B).3875

3869
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Judicial Notice of
Intercepts Related to the Sarajevo Component…(4 February 2011) at para. 16
3870
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Judicial Notice of
Intercepts Related to the Sarajevo Component…(4 February 2011) at para. 16
3871
Prosecutor v Mladic, No. IT-09-92-PT, First Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (28 February 2012) at para. 15
3872
Prosecutor v Lukic & Lukic, No IT-98-32/1-T, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts (22 August 2008) at para. 10
3873
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Three Accused’s Motions for Reconsideration of
Judical Notice of Adjudicated Facts (4 May 2012) at para. 10
3874
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 51
3875
Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Interlocutory Appeals Against Trial Chamber’s
Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catelogue of
Agreed Facts (26 June 2007) at para. 21; Prosecutor v Lukic & Lukic, No IT-98-32/1-T, Decision on
Prosecution’s Motion for Judicial Notice of Adjudicated Facts (22 August 2008) at para. 24

630
 A paragraph of a judgement which contains facts mixed with some legal
conclusions may be judicially noticed, but a paragraph which makes primarily legal
points will not be judicially noticed. 3876

Trial Chamber declined to take judicial notice of facts which contained legal
characterizations or subjective opinions.3877

Facts taken from “legal findings” section of judgement, or which include terms
such as “widespread or systematic shelling”, “not justified by military necessity”,
“attacks on civilians” or “legitimate military target” were primarily legal conclusions
which could not be judicially noticed. 3878

The term “widespread and systematic attack” was a legal conclusion and would
not be judicially noticed.3879

The term “ethnic cleansing” was used in a legal sense and therefore facts using
this term were not appropriate for judicial notice. 3880

Findings that crimes in municipalities of Bosnia in 1992 were not committed with
genocidal intent was a legal conclusion not suitable for judicial notice of adjudicated
facts.3881

A trial chamber is permitted to take judicial notice of facts that concern the
Prosecution's investigation. 3882

limitations

When the Chamber takes judicial notice of a Proposed Fact referring to a

document in which a certain issue was reported or stated, the Chamber does not take
judicial notice of the veracity of the facts stated in the document. The Chamber merely
takes judicial notice of the fact that a certain issue was reported or stated in the
document.3883

3876
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motions for Judicial Notice of
Adjudicated Facts of 14 and 23 June 2006 (7 September 2006) at para. 23
3877
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Prosecution Motion to Take Judicial Notice of
Facts Under Rule 94(B) of the Rules of Procedure and Evidence (10 December 2007) at para. 15;
Prosecutor v Stanisic, No. IT-04-79-PT, Decision on Judicial Notice (14 December 2007) at para. 42
3878
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts Concerning Sarajevo (26 June 2008) at para. 26
3879
Prosecutor v Mladic, No. IT-09-92-PT, First Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (28 February 2012) at para. 38
3880
; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 37, fn. 118
3881
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Judicial Notice of
Adjudicated Facts Relating to Count One (21 January 2014) at paras. 9-10
3882
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 52
3883
Prosecutor v Mladic, No. IT-09-92-PT, First Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (28 February 2012) at para. 13

631
 If a proposed fact indicates that a person or an entity said something,
the Chamber takes judicial notice of the fact that this person or entity made such a
statement and not of the truth of the content of the statement itself. 3884

purpose

Rule 94(B) aims to achieve judicial economy by avoiding the need for evidence in
chief to be presented in support of a fact already previously adjudicated, while ensuring
the right of the accused to a fair, public, and expeditious trial. 3885

While judicial economy is a desirable objective in the administration of justice it

must nonetheless be balanced against other important considerations in ensuring the
fairness of trials and compliance of the proceedings with the Rules of the Tribunal. 3886

rebuttal

An adjudicated fact can be rebutted by evidence elicited by the defence on cross

examination or in its case-in-chief. Once evidence is introduced to rebut an adjudicated
fact, the prosecution must introduce evidence in support of that fact and can no longer
rely on the presumption. Such evidence can be introduced in its own case or in its
rebuttal case. 3887

An adjudicated fact was rebutted where the Accused challenged an adjudicated

fact and presented credible evidence to rebut or bring into question the accuracy of the
adjudicated fact or where the evidence presented by the Prosecution on the point
addressed by the adjudicated fact was internally contradictory or inconsistent with the
adjudicated fact.3888

Orders to respect Geneva Conventions contradicted adjudicated facts that

civilians were to be specifically targeted and therefore the adjudicated facts would be
disregarded. 3889

Regardless of whether rebuttal evidence is led, it remains for the Chamber, during
its deliberations on the entire trial record, to weigh the adjudicated facts at issue against
the reliability and credibility of the challenging evidence presented by the opposing
side.3890

3884
Prosecutor v Mladic, No. IT-09-92-PT, First Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (28 February 2012) at para. 14
3885
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 23
3886
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 23
3887
Prosecutor v Mladic, No. IT-09-92-PT, Fourth Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts Concerning the Rebuttal Evidence Procedure (2 May 2012) at paras. 15, 19-20
3888
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 28
3889
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 4734
3890
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion to Present Rebuttal
Evidence (21 March 2014) at para. 19

632
 Where reliable evidence contradicted an adjudicated fact, be it presented by the
Accused or the Prosecution, the adjudicated fact was not used as the basis of a finding in
this case.3891

Evidence contradicting the adjudicated facts had to be unambiguous--evidence

suggesting mere possibilities does not reach that threshold. A contradiction can exist in
either presenting evidence on a specific alternative scenario, as opposed to a mere
suggestion of one or more possible alternative scenarios, or in the unambiguous
demonstration that the scenario as found in the adjudicated fact must reasonably be
excluded as true.3892

Evidence contradicting adjudicated facts does not automatically rebut the

adjudicated fact. The presumption of accuracy of the adjudicated fact is only rebutted by
‘reliable and credible’ contradictory evidence. In determining whether a piece of
evidence rebuts the presumption of accuracy, the Trial Chamber was mindful to limit its
analysis of the reliability only to that piece of evidence, without weighing it against any
evidence supporting the relevant adjudicated fact. To do otherwise would be tantamount
to prematurely reopening the evidentiary debate and thus undermine the very purpose of
adjudicated facts.3893

As facts themselves cannot be weighed against evidence, once an adjudicated

fact has been rebutted, the party who initially presented the adjudicated fact must be
allowed to submit evidence proving the fact at issue. This evidence will then be
weighed against the evidence presented to contradict the Adjudicated Fact. This restores
a situation in which the Trial Chamber weighs evidence and makes its own findings
regarding the issue addressed in the adjudicated fact.3894

The same piece of evidence can be assessed differently in different cases because
of other evidence on the record. The mechanism of Rule 94(B) of the Rules does not
allow a trial chamber to defer to the assessment of the evidence by another trial chamber
on the ground that it was fashioned to favour consistency and uniformity in the Tribunal’s
case-law. The Trial Chamber therefore has the obligation to assess the evidence and reach
its own conclusion3895

reformulation

A Trial Chamber may reformulate an adjudicated fact, but only minor

modifications or additions which do not alter the meaning of the original judgement from
which the proposed adjudicated fact originates are permissible. 3896
3891
Prosecutor v Karadzic, No. IT-95-5/18-T, Judgement (24 March 2016) at para. 30
3892
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5273
3893
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5274
3894
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5275
3895
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Judgement (4 December 2012) at para. 261
3896
Prosecutor v Mladic, No. It-09-92-AR73.1, Decision on Ratko Mladic’s Appeal from Trial Chamber
Decisions on Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November 2013) at para. 28

633
 Although a Chamber may take judicial notice of adjudicated facts proprio motu, it
may not substantively alter facts as proposed by a moving party or add new information
to the fact.3897

In accepting time references provided by the prosecution which are not supported
by a specific factual finding in the judgement, the Trial Chamber exceeded its
discretion. 3898

relevance

In order to be judicially noticed, a fact must be relevant. 3899

Although facts about past crimes would be judicially noticed, the prosecution
must prove that the accused had notice of these crimes by other evidence. 3900

Facts which are too broad to have probative value would not be judicially
noticed. 3901

requirements

To be admissible, the fact requested to be judicially noticed must meet the

following criteria: (1) it must be distinct and concrete; (2) it must represent factual
findings, not legal ones; (3) it must be adjudicated, not admitted; (4) it must be final and
not subject to pending appeals; (5) it must not attest, directly or indirectly, to the criminal
responsibility of the accused; and (6) the formulation proposed for admission must not
differ significantly from that in the former proceeding. 3902

The Trial Chamber will not admit any facts as adjudicated facts if (1) the finding
in the prior proceeding is subject to appeal or potentially subject to review; (2) it is not
sufficiently clear and concrete, such as being mixed with accessory facts that serve to

3897
Prosecutor v Mladic, No. It-09-92-AR73.1, Decision on Ratko Mladic’s Appeal from Trial Chamber
Decisions on Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November 2013) at paras.
32-33
3898
Prosecutor v Mladic, No. It-09-92-AR73.1, Decision on Ratko Mladic’s Appeal from Trial Chamber
Decisions on Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November 2013) at para. 72
3899
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Facts of Common Knowledge Pursuant to Rule 94(A) (26 September 2006) at para. 11
3900
Prosecutor v Perisic, No. IT-04-81-PT, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts Concerning Sarajevo (26 June 2008) at para. 24
3901
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part Prosecution’s Motions
for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at para. 29
3902
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Third and Fourth Prosecution Motions for
Judicial Notice of Adjudicated Facts (24 March 2005) at para. 14; Prosecutor v Hadzihasanovic & Kubura,
No. IT-01-47-T, Decision on Judicial Notice of Adjudicated Facts Following the Motion Submitted by
Counsel for the Accused Hadzihasanovic and Kubura on 20 January 2005 (14 April 2005)

634
obscure the principal fact; (3) it contains a legal characterization; or (4) goes, or
potentially goes, to the responsibility of the accused.3903

The consideration of judicial notice of adjudicated facts is a two-step process.

First, the Trial Chamber must determine whether the fact fulfills the admissibility
requirements: (A) relevance; (B) distinct, concrete, and identifiable; (C) not differ from
the fact as formulated in the judgement; (D) not be unclear or misleading; (E) identified
with adequate precision; (F) not contain an essentially legal characterization; (G) not be
based on an agreement in the original proceeding; (H) not relate to the acts, conduct or
mental state of the accused; (I) not be subject to pending appeal or review. Second, for
each fact that fulfills these requirements, the Trial Chamber must determine whether in its
discretion, it should nonetheless withhold judicial notice, on the ground that judicially
noticing the fact in question would not serve the interests of justice. 3904

The requirements for judicial notice of adjudicated facts are: (1) the fact must be
distinct, concrete, and identifiable; (2) it must be relevant to the case; (3) it must not
include findings or characterizations that are of an essentially legal nature: (4) it must not
be based upon a plea agreement or upon facts voluntarily admitted in a previous case; (5)
it must not have been contested on appeal, or, if it has, the fact has been settled on appeal;
(6) it must not relate to the acts, conduct, or mental state of the accused; and (7) the
formulation proposed in the moving party’s motion for admission must not differ in any
significant way from the way the fact was expressed when adjudicated in the previous
proceeding. 3905

Trial chambers must first determine whether an adjudicated fact proposed for
judicial notice satisfies the admissibility criteria; and secondly, consider whether judicial
notice should be withheld, notwithstanding that all the admissibility criteria are met, on
the basis that it would serve the interests of justice. 3906

In order for fact to be clear, distinct, concrete, and identifiable, it must be taken
from one or more specific paragraphs of a trial or appeal judgement. The fact must be

3903
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Motion for Judicial Notice of Adjudicated Facts
Pursuant to Rule 94(B) (14 March 2006) at para. 12
3904
Prosecutor v Mladic, No. IT-09-92-AR73.1, Decision on Ratko Mladic’s Appeal Against the Trial
Chamber Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts (12 November
2013) at para. 25; Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial
Notice of Adjudicated Facts (26 September 2006) at paras. 4-14; Prosecutor v Lukic & Lukic, No IT-98-
32/1-T, Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts (22 August 2008) at
para. 20; Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on First Prosecution’s Motion for Judicial
Notice of Adjudicated Facts (5 June 2009) at para. 9; Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision
on Prosecution’s Motion for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (17 December
2009) at para. 8; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Granting in Part
Prosecution’s Motions for Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (1 April 2010) at
para. 24
3905
Prosecutor v Stanisic & Simatovic, No. IT-03-69-T, Decision on Prosecution Motion for Judicial
Notice of Adjudicated Facts (25 November 2009) at para. 27
3906
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at fn. 80

635
comprehensible on its own when taken out of the judgement and must have the same or
similar form as that contained in the judgement. 3907

Adjudicated facts do not have to be beyond reasonable dispute, as the taking of

judicial notice of such facts only creates a rebuttable presumption.3908

A request for judicial notice of a document must contain information pointing to

specific parts of each document and its relevance to matters in the current proceeding. 3909
The offering party must demonstrate the relevance of the document as if it were offering
it anew under Rule 89(C).3910

Ineffectiveness of cross examination is not a reason for refusing to take judicial

notice of adjudicated facts.3911

Judicial notice must be denied if a fact is inextricably commingled with other

facts not themselves fulfilling the requirement of judicial notice or accessory facts which
serve to obscure the principal fact.3912

Since the admission of an adjudicated fact only creates a presumption of its

accuracy, the admission may consume considerable time and resources thereby
frustrating the principle of judicial economy. 3913

The prosecution should keep its request for adjudicated facts to a manageable size
to avoid the severe risk of oppression of its requests on the defence, especially with
regard to detailed facts of minor incidents. 3914

Adjudicated facts must also be scrutinized for relevance before judicial notice can
be taken of them. 3915

3907
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motions for Judicial Notice of
Adjudicated Facts of 14 and 23 June 2006 (7 September 2006) at para. 21
3908
Prosecutor v Milosevic, No. IT-02-54_AR73.5, Decision on the Prosecution’s Interlocutory Appeal
Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (28 October 2003); Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Motion for
Judicial Notice of Adjudicated Facts Pursuant to Rule 94(B) (14 March 2006) at para. 10
3909
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion to Admit
Documentary Evidence (10 October 2006) at para. 16,18
3910
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Motion to Admit
Documentary Evidence (10 October 2006) at para. 30
3911
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Fourth Motion for Judicial Notice
of Adjudicated Facts (14 June 2010) at para. 19
3912
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (26 September 2006) at para. 16
3913
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Third and Fourth Prosecution Motions for
Judicial Notice of Adjudicated Facts (24 March 2005) at para. 16
3914
Prosecutor v Krajisnik, No. IT-00-39-T, Decision on Third and Fourth Prosecution Motions for
Judicial Notice of Adjudicated Facts (24 March 2005) at para. 22
3915
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Decision on Judicial Notice of Adjudicated
Facts Following the Motion Submitted by Counsel for the Accused Hadzihasanovic and Kubura on 20
January 2005 (14 April 2005); Prosecutor v Milosevic, No. IT-98-29/1-T, Decision on Interlocutory

636
 Judicial notice of adjudicated facts pertaining to regions or municipalities not
included in the indictment would not be taken on grounds of lack of relevance. 3916

Judicial notice should not be used to litter the record with matters that would not
be admitted otherwise. 3917

Judicial notice denied where accused expressed intention to elicit evidence

contradicting the documents to be noticed, thus undermining the judicial economy sought
by the rule.3918

Judicial notice of adjudicated facts does not infringe upon the presumption of
innocence because the defence is fully entitled to adduce evidence during the course of its
case to rebut the factual circumstances encapsulated in the adjudicated facts in
question. 3919

Facts which do not use the exact original language of the judgement will not be
judicially noticed. 3920

Facts which, although using the original language, are unclear or inadequate
would not be judicially noticed in the exercise of the Trial Chamber’s discretion. 3921

Facts would not be judicially noticed when it could not be determined with
certainty from the judgement whether the fact was refer to the acts and conduct of the
accused or is derived from facts which implicates the acts or conduct of the accused, or
groups of which he may have been a part.3922

Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated
Facts and Prosecution’s Catelogue of Agreed Facts (26 June 2007) at para. 13; Prosecutor v Delic, No. IT-
04-83-PT, Decision on Prosecution Motion for Admission of Documentary Evidence Pursuant to Rule
94(B) (9 July 2007) at page 4
3916
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Prosecution Motion to Take Judicial Notice of
Facts Under Rule 94(B) of the Rules of Procedure and Evidence (10 December 2007) at para.1 2
3917
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Motion for Judicial Notice of Adjudicated Facts
Pursuant to Rule 94(B) (14 March 2006) at para. 11
3918
Prosecutor v Seselj, No. IT-03-67-T, Decision on Prosecution Motions for Judicial Notice of
Documents Pursuant to Rule 94(B)
3919
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on Milan Lukic’s Request for Reconsideration
or of Certification to Appeal the Decision on Prosecution’s Motion for Notice of Adjudicated Facts (31
October 2008) at para. 14
3920
Prosecutor v Prlic et al, No. IT-04-74-PT, Decision on Motion for Judicial Notice of Adjudicated Facts
Pursuant to Rule 94(B) (14 March 2006) at para. 16
3921
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (26 September 2006) at para. 17
3922
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (26 September 2006) at para. 18 and fn. 62

637
 In exercising its discretion whether to take judicial notice, the Trial Chamber
should consider whether the adjudicated fact goes to the core of the case—thereby
placing a burden on the accused which might jeopardize his right to a fair trial. 3923

Facts which go to a highly contested issue, to the acts and conduct of a person for
whom the accused is alleged to be responsible, pertain to an objective of the joint
criminal enterprise, or relate to specific allegations against the accused go to the core of
the case. Judicial notice of such facts were declined in the exercise of the Chamber’s
discretion. 3924

timing

Motion for judicial notice of adjudicated facts filed after some of the accused had
rested their case denied on grounds that admission at that stage would be unfair, and
would not promote judicial economy. 3925

Rule 94 bis—testimony of expert witnesses

(A) The full statement and/or report of any expert witness to be called by a party
shall be disclosed within the time-limit prescribed by the Trial Chamber or by
the pre-trial Judge.
(B) Within thirty days of disclosure of the statement and/or report of the expert
witness, or such other time prescribed by the Trial Chamber or pre-trial Judge, the
opposing party shall file a notice indicating whether:
(i) it accepts the expert witness statement and/or report; or
(ii) it wishes to cross-examine the expert witness; and
(iii) it challenges the qualifications of the witness as an expert or the relevance of all
or parts of the statement and/or report and, if so, which parts.
(C) If the opposing party accepts the statement and/or report of the expert witness,
the statement and/or report may be admitted into evidence by the Trial Chamber
without calling the witness to testify in person.

accepted as expert

Former employee of Ministry of Internal Affairs had sufficient qualifications to

testify as defence expert on Ministry’s operation and functions. 3926

Prosecution military expert allowed to testify as his experience renders his

opinion useful to the Trial Chamber to understand and determine issues in dispute. 3927

3923
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts Pursuant to Rule 94(B) (17 December 2009) at para. 31
3924
Prosecutor v Tolimir, No. IT-05-88/2-PT, Decision on Prosecution’s Motion for Judicial Notice of
Adjudicated Facts Pursuant to Rule 94(B) (17 December 2009) at paras. 33-34
3925
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Prosecution Motion for Judicial Notice of
Adjudicated Facts (26 November 2009) at para. 26
3926
Prosecutor v Djordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Notice re Defence Expert
Witnesses Radomir Milasinovic, Aleksandar Pavic, and Zoran Stankovic (24 March 2010) at para. 12

638
 Prosecution military expert qualified to give expert testimony. 3928

Prosecution expert Patrick Treanor’s methodology not sufficiently deficient to

exclude his report. Separate opinion of Judge Maloto found that selection of documents
to be included in report was subjective and called reliability of report into question.3929

An expert opinion on whether a target was a legitimate military objective may

assist the Trial Chamber in making decisions on the criminal liability of the accused. 3930

Prosecution military expert qualified to give opinion evidence on functions and

operations of Bosnian Serb Army, even if his expertise was developed while working for
the prosecution.3931

Former employee of Macedonian Ministry of Interior and criminal law professor

was qualified to testify to the regulations and laws governing criminal investigations in
Macedonia. The fact that she did not work at the Ministry at the time of the events in
question does not disqualify her as an expert.3932

Witness was qualified as expert in social, cultural, political, and historical

background of the former Yugoslavia and would be allowed to testify about the Greater
Serbia ideology in the 19th and 20th Centuries.3933

Defence expert Kosta Cavoski was qualified to testify as expert on legal and
political history of former Yugoslavia, but portions of his report beyond his expertise
would be stricken. 3934

acts and conduct of the accused

An expert witness may comment on the acts and conduct of the accused. 3935

3927
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Rule 94 bis Notice Regarding
Prosecution Expert Witness Richard Butler (19 September 2007) at para. 25
3928
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Expert Status of Reynaud Theunens (12 February
2008) ; Prosecutor v Perisic, No. IT-04-81-T, Decision on Expert Reports by Richard Butler (4 March
2009) ; Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Motion to Disqualify Richard Phillips
as an Expert and bar the Prosecution from Presenting his Report (1 November 2012)
3929
Prosecutor v Perisic, No. IT-04-81-T, Decision on Admissibility of Expert Report of Patrick Treanor
(27 November 2008)
3930
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Part of the Gotovina Defence’s Rule 73
Motion in Limine (21 May 2008)
3931
Prosecutor v Popovic et al, No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal
Concerning the Status of Richard Butler as an Expert Witness (30 January 2008) at para. 29
3932
Prosecutor v Boskoski & Tarculovski, No, IT-04-82-T, Decision on Prosecution’s 94 bis Notice re
Expert Witness Slagjana Taseva (8 February 2008)
3933
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Qualifications of Expert Yves Tomic (15 January
2008)
3934
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Motion to Exclude the Expert
Report of Kosta Cavoski (5 April 2013) at paras. 14-15

639
 credibility

The expert is expected to testify with utmost objectivity and neutrality. 3936

The alleged bias of the expert witness and his relationship to the accused do not
effect the qualifications of the witness, but are matters going to the weight to be given to
his testimony. 3937

Concerns relating to the expert witness' independence and impartiality are a

matter of weight, not admissibility. 3938

The alleged connection of the expert, who assisted the prosecution in interviews,
and the prosecution team did not disqualify him from giving expert testimony, but were
matters which could be explored on cross-examination and would be considered when
weighing the evidence of the expert.3939

The mere fact that a witness was employed by the Office of the Prosecutor or paid
by a related agency does not disqualify him or her to be called and testify as an expert
witness.3940

3935
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Objection to Expert Testimony (17
November 2011) at T21523-24
3936
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Request to Disqualify Richard Butler as an
Expert and bar the Prosecution from Introducing his Reports (19 October 2012) at para. 9
3937
Prosecutor v Popovic et al, No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal
Concerning the Status of Richard Butler as an Expert Witness (30 January 2008) at para. 23; Prosecutor v
Milosevic, No. IT-02-54-T, Decision on Admissibility of Expert Report of Vasilije Krestic (7 December
2005) at para. 5; Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Defence Expert Witnesses (21
August 2007) at para. 8 Prosecutor v Popovic, No. IT-05-88-T, Second Decision Regarding the Evidence of
General Rupert Smith (11 October 2007) at pg. 4; Prosecutor v Seselj, No. IT-03-67-T, Decision on the
Expert Status of Reynaud Theunens (12 February 2008) at para. 30
3938
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 69
3939
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Motion to Exclude the
Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report (17 May 2007) at para. 12;
Prosecutor v Popovic et al, No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal
Concerning the Status of Richard Butler as an Expert Witness (30 January 2008) at para. 26; Prosecutor v
Perisic, No. IT-04-81-T, Decision on Defence Motion to Exclude the Expert Report of Morton Torkildsen
(30 October 2008) at para. 9; Prosecutor v Perisic, No. IT-04-81-T, Decision on Expert Reports by Richard
Butler (4 March 2009) at para. 19
3940
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 37;
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Admission of Expert Report of Robert Donia (15
February 2007) at para. 9; Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Rule 94 bis
Notice Regarding Prosecution Expert Witness Richard Butler (19 September 2007) at para. 27; Prosecutor
v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Prosecution’s Submission of the Expert Report of
Nina Tromp and Christiam Nielsen Pursuant to Rule 94 bis (18 March 2008) at para. 10; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para.69; Prosecutor v Prlic et al, No. IT-04-74-A,
Judgement (29 November 2017) at para. 208

640
 Evidence of Prosecution expert witness who described the accused as a ‘monster’
and expressed his desire that he ‘be apprehended by justice’ was deemed unreliable. 3941

definition

An expert witness is a person whom, by virtue of some specialized knowledge,

skill, or training can assist the trier of fact to understand or determine an issue in
dispute.3942

The purpose of expert testimony is to supply specialised knowledge that might

assist the trier of fact in understanding the evidence before it, and that in the ordinary
case an expert witness offers a view based on specialised knowledge regarding a
technical, scientific or otherwise discrete set of ideas or concepts that is expected to fall
outside the lay person’s ken. 3943

While a non-expert witness may be called to testify about the crimes with which
the accused is directly charged, an expert witness is intended to enlighten the judges on
specific issues of a technical nature.3944

exhibits

Selection of excerpts of documents which the prosecution intends to offer into

evidence would not be admitted as part of expert’s report.3945

Reports of expert witnesses are not admitted automatically once a decision is

made to allow the expert to testify, but may be considered for admission after the
examination of the witness. 3946

3941
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5286
3942
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 22;
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Admission of Expert Report of Robert Donia (15
February 2007) at para. 7; Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Defence Expert
Witnesses (21 August 2007) at para. 6; Prosecutor v Popovic, No. IT-05-88-T, Second Decision Regarding
the Evidence of General Rupert Smith (11 October 2007) at pg. 3; Prosecutor v Stanisic & Simatovic, No.
IT-03-69-PT, Decision on Prosecution’s Submission of the Expert Report of Nina Tromp and Christiam
Nielsen Pursuant to Rule 94 bis (18 March 2008) at para. 8; Prosecutor v Perisic, No. IT-04-81-T,
Decision on Defence Motion to Exclude the Expert Report of Morton Torkildsen (30 October 2008) at para.
8; Prosecutor v Perisic, No. IT-04-81-T, Decision on Expert Reports by Richard Butler (4 March 2009) at
para. 9
3943
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 375; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 196
3944
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Rule 94 bis Notice Regarding
Prosecution Expert Witness Richard Butler (19 September 2007) at para. 23
3945
Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion to Exclude the Expert Reports of
Robert Donia (30 October 2008) at para. 15; Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence
Motion to Exclude the Expert Reports of Mr. Patrick J. Treanor (27 October 2008) at para. 27
3946
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on Defence Rule 94 bis Notice Regarding
Prosecution Expert Witness Richard Butler (19 September 2007) at para. 31; Prosecutor v Popovic, No. IT-
05-88-T, Second Decision Regarding the Evidence of General Rupert Smith (11 October 2007) at pg. 4-5

641
 Exhibits to expert report would not be admitted unless referred to in court “rather
than buried in masses of documents which the Chamber is left to sort out and make sense
of.”3947

Rule 94 bis does not allow for admission of documents related to the expert
report, only the report itself. 3948

fact witness

Lawyer who served on missing persons commission and presented the results of
his investigation and that of the commission was a fact witness, and not an expert. 3949

Mixture of facts and conclusions did not justify exclusion of the expert’s
evidence, as they could be remedied by calling the witness for cross examination. 3950

first-hand knowledge

Firsthand knowledge is not required for an expert; indeed the expert will often not
have firsthand knowledge of the facts.3951

Witness' lack of working experience with the VRS did not disqualifying from
giving him expert testimony on the operations of the VRS since firsthand knowledge or
experience is not required for qualifying as an expert.3952

legal issues

Trial chambers have the discretion to bar the testimony of an expert witness called
to give evidence on legal matters.3953

There was no justification for the introduction of expert testimony as to issues of

international criminal law; the Trial Chamber was perfectly competent to pronounce on
such issues without the assistance of a legal expert. Expert testimony as to domestic

3947
Prosecutor v Gotovina et al, No. IT-05-90-T, Decision and Guidance with Regard to the Expert Report,
Addendum, and Testimony of Reynaud Theunens (17 November 2008) at para. 32
3948
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 47
3949
Prosecutor v Lukic & Lukic, No. IT-98-32/1-T, Decision on the Motion to Bar the Testimony and
Statement of Amir Masovic (12 November 2008) at para. 31
3950
Prosecutor v Perisic, No. IT-04-81-T, Decision on Expert Reports by Richard Butler (4 March 2009) at
para. 26
3951
Prosecutor v Popovic et al, No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal
Concerning the Status of Richard Butler as an Expert Witness (30 January 2008) at para. 27; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 1609
3952
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 70
3953
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 79

642
constitutional issues such as the legal obligations of the Crisis Staff would have been
within the Trial Chamber’s discretion to admit such testimony. 3954

Professor William Schabas, proposed to testify on whether events in Srebrenica

constituted genocide, rejected as expert witness as his testimony goes to a matter within
the competence of the Trial Chamber. 3955

Portions of the expert report dealing with legal conclusions or the roles of the
accused were scarce and their consideration could be confined by the Chamber to its
proper limits. Exclusion of the testimony was not required. 3956

notice

Given the absence of disclosure of the expert reports pursuant to Rule 94bis(A) of
the Rules through a filing, the accused was deprived of a formal disclosure notification
which would have given him the opportunity to object to the expert status of the reports.
In these circumstances, the Trial Chamber erred by considering that the prosecution's
notice of its intention to call the witness as an expert and to tender his reports as expert
reports in its Rule 65ter list sufficed. 3957

The fact that the accused referred to the witness as an expert during his cross-
examination and that the Trial Chamber referred to him as an expert without objection
carries little weight in the absence of a reasoned decision by the Trial Chamber during the
trial on the status of the witness. The Trial Chamber therefore erred in considering that
the accused implicitly accepted, and failed to object to, the witness' expert status during
the trial. 3958

However, although the Trial Chamber erred by classifying the witness’ reports as
expert reports, this error caused no prejudice to the accused or had any impact upon his
convictions. 3959

outside of expertise

Expert testimony on which side was responsible for the destruction of cultural
heritage sites went beyond the expertise of the witness and would not be considered.3960

3954
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 164
3955
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on the Admissibility of the Expert Report and
Proposed Expert Testimony of Professor Schabas (1 July 2008)
3956
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Motion to Exclude the
Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report (17 May 2007) at para. 14
3957
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 66
3958
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 67
3959
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 68
3960
Prosecutor v Seselj, No. IT-03-67-T, Decision on the Admission of Evidence Presented During the
Testimony of Andras Reidlmayer (14 April 2010) at para. 15

643
 Factual findings in expert report which were necessary for establishment of
factual foundation of crimes charged would be given minimal weight. This type of
evidence should be established through eye-witness testimony. 3961

Portions of expert testimony excluded when beyond the direct knowledge and
expertise of the witness.3962

An analysis of whether it was plausible from a military viewpoint that an officer

acted in the way described by a prosecution witness could have been dismissed as
straying beyond the purview of an expert witness and into the trial chamber’s firmly
established role of making factual findings, including assessments of the credibility of
witnesses.3963

Accused’s reliance on an expert witness to establish facts related to his habit of

wearing glasses, when the role of an expert is to provide specialised knowledge – be
it a skill or knowledge acquired through training – that may assist the fact finder to
understand the evidence presented, was plainly unhelpful to his case. 3964

Trial Chamber properly found that Butler’s testimony concerning Nikolic’s acts
and whereabouts, were factual matters for the Trial Chamber’s determination and not
issues falling within his expertise or upon which the Trial Chamber has need of expert
opinion.3965

peer review

Lack of peer review did not affect admissibility of the expert’s report. Cross
examination is an adequate substitute for peer review. 3966

rejected as expert

Defence expert witness on number of people killed in Srebrenica events rejected

and his report excluded where he had no qualifications in demograohic matters, used
flawed methodology, and lacked objectivity. 3967

Political analyist with Batchelor’s Degree not sufficiently qualified to testify as

expert on political and historical expert on Kosovo.3968

3961
Prosecutor v Perisic, No. IT-04-81-T, Decision on Expert Reports by Richard Butler (4 March 2009) at
para. 36
3962
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Objections Pursuant to Rule
94 bis to Expert Evidence of Radovan Radinovic (5 October 2007)
3963
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 375
3964
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 386
3965
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 953
3966
Prosecutor v Mladic, No. IT-09-92-T, Decision on Defence Request to Disqualify Richard Butler as an
Expert and bar the Prosecution from Introducing his Reports (19 October 2012) at para. 14
3967
Prosecutor v Tolimir, No. IT-05-88/2-T, Decision on Admission of Expert Report of Ratko Skrbic (22
March 2012) at paras. 37-39

644
 British general not qualified to give expert opinion on function and operation of
Bosnian Serb Army main staff, but may relate any factual observations he made during
his contact with them. 3969

For an expert witness to apply his expertise to the situation in Bosnia and
Herzegovina, that person must have specialized knowledge of the military aspects of the
conflict in Bosnia and Herzegovina in general and the situation in Central Bosnia in
particular. Defence military expert lacked this knowledge and therefore precluded from
testifying to these matters.3970

Serb general not qualified to give expert opinion on operation of Kosovo

Liberation Army and their cooperation with NATO. 3971

The acts and whereabouts of the accused are factual matters for the Trial
Chamber’s determination and not issues falling within expertise or upon which the Trial
Chamber has need of expert opinion. 3972

Testimony of handwriting expert excluded where probative value of evidence in

connection with case of accused was low.3973

Refusal to allow defence handwriting expert, expert on structure of Bosnian

police, constitutional law expert, demographics expert, and psychiatrist was within Trial
Chamber’s discretion.3974

relevance

The standard of relevance for expert reports is the same as for other evidence
pursuant to Rule 89(C).3975

Defence expert report and testimony about the history of Serbo-Croatian conflicts
deemed inadmissible as its content was not relevant to the issues of the trial. 3976

3968
Prosecutor v Djordjevic, No. IT-05-87/1-T, Decision on Prosecution’s Notice re Defence Expert
Witnesses Radomir Milasinovic, Aleksandar Pavic, and Zoran Stankovic (24 March 2010) at para. 21
3969
Prosecutor v Popovic, No. IT-05-88-T, Second Decision Regarding the Evidence of General Rupert
Smith (11 October 2007) at pg. 4
3970
Prosecutor v Delic, No. IT-04-83-T, Decision on Paul Cornish’s Status as an Expert (20 March 2008)
at para. 12
3971
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Prosecution Objection Pursuant to Rule 94
bis to Expert Evidence of Radovan Radinovic (5 October 2007) at para. 4
3972
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 1355
3973
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for Admission of Evidence
of Eight Experts Pursuant to Rules 92 bis and 92 bis (9 November 2009) at para. 21
3974
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at paras. 158, 161, 164, 168, 182
3975
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Admission of Expert Report of Robert Donia
(15 February 2007) at para. 10; Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on
Prosecution’s Submission of the Expert Report of Nina Tromp and Christiam Nielsen Pursuant to Rule 94
bis (18 March 2008) at para. 11

645
 reports

An expert witness may testify viva voce without his or her expert report being
tendered into evidence. 3977

Expert reports should be sufficiently clear, insofar as they describe and draw
conclusions, so as to render the tendering of underlying documentation unnecessary. 3978

requirements

The requirements for expert testimony are (1) the witness must be an “expert”; (2)
the expert report must meet minum standards of reliability; (3) the report must be relevant
to the case and of probative value; (4) the content of the report must fall within the
expertise of the expert and not infringe upon the province of the Trial Chamber. 3979

The factors considered in evaluating expert testimony are the competence of the
expert, the methodologies used, and the credibility of the findings made. 3980

The qualifications of an expert can be determined from the curriculum vitae,

scholarly articles, other publications, and any other information. 3981

responsibility of the accused

The expert witness should not offer his opinion on the criminal liability of the
accused. This is a matter which falls within the competence of the Trial Chamber. 3982

3976
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Admissibility of Expert Report of Vasilije Krestic
(7 December 2005) at para. 6
3977
Prosecutor v Mladic, No. IT-09-92-T, Second Decision on the Prosecution Submissions on the Expert
Statement of Prosecution Witness Teufika Ibrahimefendic Pursuant to Rule 92 bis (12 February 2013) at
para. 10
3978
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5282
3979
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Defence Expert Witnesses (21 August 2007) at
paras. 6-10; Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Prosecution’s Submission of
the Expert Report of Nina Tromp and Christiam Nielsen Pursuant to Rule 94 bis (18 March 2008) at para.
7; Prosecutor v Popovic et al, No. IT-05-88-T, Decision on the Admissibility of the Narratives of Expert
Witness Richard Butler (27 March 2008) at para. 9; Prosecutor v Perisic, No. IT-04-81-T, Decision on
Expert Reports by Richard Butler (4 March 2009) at para. 8; Prosecutor v Mladic, No. IT-09-92-T,
Decision on Defence Request to Disqualify Richard Butler as an Expert and bar the Prosecution from
Introducing his Reports (19 October 2012) at para. 7
3980
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 27
3981
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Admission of Expert Report of Robert Donia
(15 February 2007) at para. 7; Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Defence Expert
Witnesses (21 August 2007) at para. 6; Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on
Prosecution’s Submission of the Expert Report of Nina Tromp and Christiam Nielsen Pursuant to Rule 94
bis (18 March 2008) at para. 8; Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion to
Exclude the Expert Report of Morton Torkildsen (30 October 2008) at para. 8; Prosecutor v Perisic, No.
IT-04-81-T, Decision on Expert Reports by Richard Butler (4 March 2009) at para. 9

646
 Narratives of expert witness did not draw conclusions on the ultimate issue of
criminal liability of the accused and would not be excluded. 3983

The defence failed to demonstrate that the expert witness directly expressed his
opinion on any of the ultimate issues in the case and exclusion of his testimony was not
required on that basis.3984

Rule 92 ter

Expert reports may be admissible pursuant to Rule 92 ter.3985

timing

The time limits of Rule 94 bis are triggered by disclosure of the expert reports, not
any kind of formal notice. 3986

Motions seeking the exclusion of expert testimony are considered under Rule
89(C) and need not be filed within the time for filing of notices under Rule 94 bis.3987

translation

Rule 94 bis requires that the reports of the expert be provided in the language of
the accused, that the witness’ CV be provided, and that the witness’ area of expertise be
stated.3988

transparency of sources

3982
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Admission of Expert Report of Robert Donia
(15 February 2007) at para. 11; Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para.
29, fn. 35; Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Defence Expert Witnesses (21 August
2007) at para. 10; Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on Prosecution’s
Submission of the Expert Report of Nina Tromp and Christiam Nielsen Pursuant to Rule 94 bis (18 March
2008) at para. 12; Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion to Exclude the
Expert Report of Morton Torkildsen (30 October 2008) at para. 10; Prosecutor v Perisic, No. IT-04-81-T,
Decision on Expert Reports by Richard Butler (4 March 2009) at para. 10
3983
Prosecutor v Popovic et al, No. IT-05-88-T, Decision on the Admissibility of the Narratives of Expert
Witness Richard Butler (27 March 2008) at para. 19
3984
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Motion to Exclude the
Prosecution’s Proposed Evidence of Expert Burgess and his Report (17 May 2007) at para. 10
3985
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Objection to Admission of form of Expert
Testimony (15 June 2010) at T3742-43
3986
Prosecutor v Popovic et al, No. IT-05-88-T, Decision Regarding Prosecution’s Rule 94 bis Notice (6
March 2007) at para. 13
3987
Prosecutor v Boskoski & Tarkulovski, No. IT-04-82-T, Decision on Motion to Exclude the
Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report (17 May 2007) at para. 7
3988
Prosecutor v Perisic, No. IT-04-81-PT, Order on Defence Submissions Regarding Various Experts’
Reports Disclosed by the Prosecution Pursuant to Rule 94 bis (2 February 2007)

647
 An expert is expected to give his or her expert opinion in full transparency of the
established or assumed facts that he or she relies upon and of the methods used when
applying his or her knowledge, experience, or skills to form his or her expert opinion. 3989

The sources for the report must be clearly indicated and accessible in order to
allow the other party or the Trial Chamber to test or challenge the basis on which the
expert witness reached his or her conclusions. In the absence of clear reference to
accessible sources, the Trial Chamber will treat the matter as the witness’ personal
opinion rather than an expert opinion. 3990

The failure of the expert to list his sources can be remedied when the witness
testified. 3991

Defence expert who copied large portions of material in his report without
acknowledgement would be disqualified from appearing as an expert.3992

The Trial Chamber found that the defence expert’s reliance on anonymous
sources as either primary information or as corroboration rendered his report
unreliable.3993

There is no rule which precludes the filing of an expert report comprised of

excerpts from previous reports.3994

Trial Chamber experts

The requirements of Rule 94 bis apply to experts requested by the Trial

Chamber.3995

3989
Prosecutor v Martic, No. IT-95-11-T, Decision on Prosecution’s Motions for Admission of Transcripts
Pursuant to Rule 92 bis and of Expert Reports Pursuant to Rule 94 bis (13 January 2006) at para. 37;
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Disclosure of Expert Materials (27 August 2009)
at para. 10
3990
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Admission of Expert Report of Robert Donia
(15 February 2007) at para. 8; Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Defence Expert
Witnesses (21 August 2007) at para. 7; Prosecutor v Stanisic & Simatovic, No. IT-03-69-PT, Decision on
Prosecution’s Submission of the Expert Report of Nina Tromp and Christiam Nielsen Pursuant to Rule 94
bis (18 March 2008) at para. 9
3991
Prosecutor v Delic, No. IT-04-83-T, Decision on Paul Cornish’s Status as an Expert (20 March 2008)
at para. 14; Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion to Exclude the Expert
Report of Morton Torkildsen (30 October 2008) at para. 16; Prosecutor v Karadzic, No. IT-95-5/18-T,
Decision on Prosecution Motion to Exclude the Expert Report of Kosta Cavoski (5 April 2013) at para. 22
3992
Prosecutor v Milosevic, No. IT-98/29-1-T, Decision on Defence Expert Witnesses (21 August 2007) at
para. 23
3993
Prosecutor v Perisic, No. IT-04-81-T, Judgement (6 September 2011) at para. 1272
3994
Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Defence Request to Strike Expert Witness and
Associated Expert Report (27 September 2012) at para. 9
3995
Contempt proceedings against Dragan Jokic, No. IT-05-88-R77.1-A, Judgement on Allegations of
Contempt (25 June 2009) at para. 22

648
 Request to prohibit parties from calling experts and providing that any experts
should be called by the Trial Chamber at the end of the case rejected where not made
until four months after the trial commenced. However, the Trial Chamber would
determine on a witness by witness basis whether expert testimony was necessary. 3996

waiver

Failure to file a timely notice does not waive the right of the party to cross
examine the expert witness.3997

Rule 95—exclusion of certain evidence

No evidence shall be admissible if obtained by methods which cast substantial doubt

on its reliability or if its admission is antithetical to, and would seriously damage,
the integrity of the proceedings.

An accused has standing under Rule 95 to contest the admission of evidence

seized by the prosecution without the cooperation of local officials, allegedly in violation
of State sovereignty.3998 However, the accused failed to show how a search warrant
executed without the participation of local officials was antithetical to or would seriously
damage the proceedings or that substantial doubt was cast on the reliability of the
evidence.3999

It is not necessary for the Trial Chamber to allow voir dire by the prosecution
before deciding whether to admit defence evidence that the prosecution claims is
unreliable and should be excluded.4000

Defence witness who denied taking statements under duress or torture provided
sufficient reasons for not excluding the statements under Rule 95. 4001

Statement of witness would not be excluded because his lawyer failed to file
notice of appearance before the interview—such a defect did not rise to the level required
for Rule 95.4002

3996
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Ojdanic Motion to Preclude Parties from
Calling Expert Witnesses (16 November 2006)
3997
Prosecutor v Popovic et al, No. IT-05-88-T, Decision Regarding Prosecution’s Rule 94 bis Notice (6
March 2007) at para. 20
3998
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 238
3999
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 238
4000
Prosecutor v Milosevic, No. IT-02-54-T, Decision on Prosecution Motion for Voir Dire Proceeding (9
June 2005)
4001
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Admission of Documents in Connection with
Testimony of Defence Witness Dragan Jasovic (26 August 2005) at para. 16
4002
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Defence Objections to the Admissibility of
Witness 81’s Suspect Interview Under Rule 95 (8 July 2008)

649
 Even if recording of conversation with the accused violated domestic law, it
would not require exclusion of the recording under Rule 95. 4003

Statement of accused taken by military authorities under compulsion and without

counsel would not likely be admitted during the prosecution case, but the circumstances
were sufficiently reliable to allow the statements to be used for impeachment of
testimony of accused. Use of the statements for impeachment of other defence witnesses,
however, would not be sufficiently probative to be allowed. 4004

Testimony of accused as defence witness during previous ICTY trial could not be
admitted against him at his own trial where he was not advised that his statements could
be used against him in a subsequent proceeding. 4005

Rule 96—evidence in cases of sexual assault

In cases of sexual assault:

(i) no corroboration of the victim's testimony shall be required;
(ii) consent shall not be allowed as a defence if the victim
(a) has been subjected to or threatened with or has had reason to fear violence,
duress, detention or psychological oppression, or
(b) reasonably believed that if the victim did not submit, another might be so
subjected, threatened or put in fear;
(iii) before evidence of the victim's consent is admitted, the accused shall satisfy the
Trial Chamber in camera that the evidence is relevant and credible;
(iv) prior sexual conduct of the victim shall not be admitted in evidence.

The purpose of rule 96(i), which provides that no corroboration of a victim’s

testimony shall be required in cases of sexual assault, is not to create a ‘presumption of
reliability’ with respect to the testimony of such victims. Rather, the purpose is simply to
affirm that contrary to the position taken in some domestic jurisdictions, the testimony of
victims of sexual assault is not, as a general rule, less reliable than the testimony of any
other witness. 4006

Rule 97—lawyer-client privilege

All communications between lawyer and client shall be regarded as privileged, and

4003
Prosecutor v Haraqija & Morina, No. IT-04-84-R77.4A, Judgement (23 July 2009) at para. 28;
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-T, Decision Denying the Stanisic Motion for Exclusion of
Recorded Transcripts (6 December 2009) at para. 21; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision
on Accused’s Motion to Exclude Intercepted Conversations (30 September 2010); Prosecutor v Karadzic,
No. IT-95-5/18-T, Decision on Accused’s Motion for Reconsideration of Chamber’s Decision on Motion to
Exclude Intercepted Conversations (18 April 2012)
4004
Prosecutor v Mrskic et al, No. IT-95-13/1-T, Decision Concerning the Use of Statements Given by the
Accused (9 October 2006)
4005
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on the Admission into Evidence of Slobodan
Praljak’s Evidence in the Case of Natelic and Martinovic (5 September 2007)
4006
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 505.

650
consequently not subject to disclosure at trial, unless:
(i) the client consents to such disclosure; or
(ii) the client has voluntarily disclosed the content of the communication to a third
party, and that third party then gives evidence of that disclosure.

Temporary restraining order issued to prevent government of Croatia from

examining the contents of computer seized from defence team which allegedly contained
privileged information pending further consideration of the issue. 4007

Rule 97 protects the contents of privileged communications between lawyer and

client from being available to any outside party without the client’s consent or voluntary
disclosure to a third party.4008

A government’s seizure of materials from the defence team has the potential for
violating Rule 97, depending on the procedure applied to the seized materials. 4009

After the defence has identified seized materials which it claims are covered by
Rule 97 or Rule 70, the President shall select an independent body to determine whether
the materials are in fact covered by those rules. 4010

Rule 98—production of additional evidence

A Trial Chamber may order either party to produce additional evidence. It may
proprio motu summon witnesses and order their attendance.

The Trial Chamber has complete discretion as to whether it will name a particular
person as a court witness and that the parties have no right to insist upon a particular
person be named as a court witness. 4011

The Trial Chamber’s right to call additional witnesses after the parties have rested
also includes the power to admit exhibits. 4012

However, the parties must be given adequate time and facilities to develop its
strategies with respect to the admitted exhibits. Pre-trial disclosure of the exhibits is not
necessarily sufficient.4013

4007
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Temporary Restraining Orders
Directed to the Republic of Croatia and Reasons for the Chamber’s Order of 11 December 2009 (18
December 2009) at para. 17
4008
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders
Directed to the Republic of Croatia (12 March 2010) at para. 37
4009
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders
Directed to the Republic of Croatia (12 March 2010) at para. 37
4010
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders
Directed to the Republic of Croatia (12 March 2010) at para. 44
4011
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 170
4012
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 115
4013
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 117

651
 Rule 98 has been primarily used to obtain evidence for trial, not for a party’s use
in trial preparation. Trial Chamber declined to order prosecution under Rule 98 to obtain
testimony of its witnesses in national courts, but encouraged the prosecution to notify the
defence when it had learned of prior testimony of one of its witnesses in national courts
so that the defence could obtain the testimony. 4014

A party has no standing to move the Trial Chamber to summon persons as

chamber witnesses. It is squarely within the discretion of the Chamber to decide what
steps it considers appropriate to obtain the attendance of chamber witnesses. Although
Chamber issued order compelling cooperation of Serbia to produce one witness, it was
not obligated to issue a similar order to the United States or Russia to produce other
witnesses it had indicated it wished to hear.4015

There is no per se right of a party to interview a chamber witness before he

testifies and the Chamber exercised its disrection by refusing to allow such an
interview.4016

Trial Chamber proprio motu ordered the Registrar to appoint expert to determine
authenticity of tapes offered by defence. 4017

Trial Chamber declined to call Lord Owen as a Chamber witness, as requested by

the prosecution, noting that the impartiality of international negotiators was not affected
by which side of a criminal case called them as a witness. 4018

Trial Chamber has the power to admit an exhibit proprio motu. However, given
lack of opportunity for the accused to challenge the document, the Trial Chamber
reconsidered its decision and decided not to admit the document.4019

Rule 98 bis—judgement of acquittal

At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and
after hearing the oral submissions of the parties, enter a judgement of acquittal on
any count if there is no evidence capable of supporting a conviction.

4014
Prosecutor v. Karadzic, No. IT-95-5/18-T, Decision on the Accused’s Motion for Order to Obtain
Witness Statements and Testimony from National Courts (12 January 2011) at paras. 10-12
4015
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Sainovic Defence Motion for Trial
Chamber to Summon Christopher Hill and Boris Mayorski (3 July 2008)
4016
Prosecutor v Milutinovic et al, No. IT-05-87-T, Decision on Defence Request to Interview Aleksandar
Dimitrijevic Prior to his Testimony (1 July 2008) at para. 4
4017
Prosecutor v Prlic et al, No. IT-04-74-T, Order for the Production of Additional Evidence and for the
Appointment of an Expert Witness for the Chamber (9 September 2008)
4018
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Motion Requesting Lord David Owen to
Testify as a Court Witness (13 July 2009)
4019
Prosecutor v Perisic, No. IT-04-81-T, Decision on Defence Motion for Reconsideration of Document
Admitted Proprio Motu (28 February 2011)

652
 appeal

An appeal of a denial of a motion for judgement of acquittal requires certification

by the Trial Chamber.4020

Prosecution may appeal granting of judgement of acquittal without seeking

certification since it constitutes a final judgement on that count.4021

Standard of review on appeal of decision on motion for judgement of acquittal is

whether the Trial Chamber committed an error of law invalidating its decision. 4022

A Trial Chamber’s error in deciding a Rule 98 bis application is cognizable in a

final appeal from the judgement as an accused’s right to a fair trial is infringed if he is
erroneously required to answer the prosecution’s case. 4023

Appeals Chamber would not exercise its discretion not to reverse judgement of
acquittal where trial on the remaining counts was ongoing and the accused had not pled
guilty to other offenses. 4024

credibility

A Trial Chamber is required to assume that the prosecution’s evidence is entitled

to credence unless incapable of belief and to take the evidence at its highest. It cannot
pick and choose among parts of that evidence in reaching its conclusion. 4025

Prosecution evidence shall be presumed credible and reliable at the Rule 98 bis
stage unless a witness is so lacking in credibility or reliability that no reasonable Trial
Chamber could find him or her credible or reliable.4026

oral hearing

Rule 98 bis must be read on the basis that it includes a right of the parties to be
heard in accordance with the judicial character of the Trial Chamber. Failure to hear a
party against whom the Trial Chamber is provisionally inclined is not consistent with the
requirement to hold a fair trial . For example the Trial Chamber may benefit in substantial

4020
Prosecutor v Krajisnik, No. IT-00-39-AR98bis.1, Decision on Appeal of Rule 98 bis Decision (4
October 2005)
4021
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Prosecution Request for Certification to Appeal
Judgement of Acquittal Pursuant to Rule 98 bis (13 July 2012) at para. 10
4022
Prosecutor v Karadzic, No. IT-95-5/18-AR73.9, Decision on Appeal of Denial of Motion for
Judgement of Acquittal for Hostage Taking (11 December 2012) at para. 6
4023
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 51
4024
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 114
4025
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 21
4026
Prosecutor v Mladic, No. IT-09-92-AR73.4, Decision on Defence Interlocutory Appeal from the Trial
Chamber Rule 98 bis Decision (24 July 2014) at para. 20

653
ways from the analysis of the evidence by the prosecution and from its arguments on the
applicable law. 4027

Defence not required to give prosecution advance notice of issues to be raised

during oral motion for judgement of acquittal. 4028

paragraphs

Motion for No Case to Answer on one shelling incident was premature when filed
after the Sarajevo component of the case was completed, but before the prosecution had
rested its case, since the prosecution would not be precluded from offering additional
evidence of any of the case’s components before it rested its case. 4029

Trial Chamber would not exercise its power under Rule 54 bis to order the
prosecution to withdraw paragraphs or scheduled incidents for which it had not led
evidence, as such an order would frustrate the purpose of amending Rule 98 bis so that
only counts can be challenged at the end of the prosecution’s case. However, the Trial
Chamber noted the prosecution’s willingness to review its evidence and bring any
unproven allegations to the Chamber’s attention. 4030

standard

The legal test applied to determine whether there is a case to answer following the
close of the Prosecution case at trial is whether there is evidence upon which, if accepted,
a reasonable tribunal of fact could be satisfied beyond reasonable doubt of the guilt of the
accused on the particular charge in question. 4031

Presenting an alternative interpretation of the evidence, rather than showing that

no reasonable trier of fact could have found, taking the evidence at its highest, that the
crimes of genocide had been committed and that the accused had genocidal intent, was
insufficient to overturn the Trial Chamber’s decision denying a motion for judgement of
acquittal. 4032

“The evidence is insufficient to sustain a conviction” means a case in which, in

the opinion of the Trial Chamber, the prosecution evidence, if believed, is insufficient for

4027
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 27.
4028
Prosecutor v Hadzic, No. IT-04-75-T, Decision on Prosecution Motion for Advance Notice of Issues to
be Raised at Rule 98 bis Hearing (4 December 2013)
4029
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for No Case to Answer:
Shelling Incident G9 (13 May 2011) at para. 3
4030
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Accused’s Motion for Order to Withdraw
Unproven Allegations (23 May 2012) at paras. 3-4
4031
. Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Judgement (11 July 2013) at para. 21
4032
Prosecutor v Mladic, No. IT-09-92-AR73.4, Decision on Defence Interlocutory Appeal from the Trial
Chamber Rule 98 bis Decision (24 July 2014) at paras. 12.13.18

654
any reasonable trier of fact to find that guilt has been proved beyond reasonable
doubt.4033

It would be an error of law not to consider evidence favorable to the accused

elicited during the prosecution’s case when deciding a motion for judgement of
acquittal. 4034

Rule 98 ter—judgement

(A) The judgement shall be pronounced in public, on a date of which notice shall
have been given to the parties and counsel and at which they shall be entitled to be
present, subject to the provisions of Rule 102 (B).
(B) If the Trial Chamber finds the accused guilty of a crime and concludes from the
evidence that unlawful taking of property by the accused was associated with it, it
shall make a specific finding to that effect in its judgement. The Trial Chamber may
order restitution as provided in Rule 105.
(C) The judgement shall be rendered by a majority of the Judges. It shall be
accompanied or followed as soon as possible by a reasoned opinion in writing, to
which separate or dissenting opinions may be appended.
(D) A copy of the judgement and of the Judges’ opinions in a language which the
accused understands shall as soon as possible be served on the accused if in custody.
Copies thereof in that language and in the language in which they were delivered
shall also as soon as possible be provided to counsel for the
accused.

Rule 99—status of the acquitted person

(A) Subject to paragraph (B), in the case of an acquittal or the upholding of a

challenge to jurisdiction, the accused shall be released immediately.
(B) If, at the time the judgement is pronounced, the Prosecutor advises the Trial
Chamber in open court of the Prosecutor’s intention to file notice of appeal
pursuant to Rule 108, the Trial Chamber may, on application in that behalf by the
Prosecutor and upon hearing the parties, in its discretion, issue an order for the
continued detention of the accused, pending the determination of the appeal.

Rule 100—sentencing procedure on a guilty plea

(A) If the Trial Chamber convicts the accused on a guilty plea, the Prosecutor and
the defence may submit any relevant information that may assist the Trial Chamber
in determining an appropriate sentence.
(B) The sentence shall be pronounced in a judgement in public and in the presence
of the convicted person, subject to Rule 102 (B).

4033
Prosecutor v. Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 37.
4034
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 55

655
Rule 101—penalties
(A) A convicted person may be sentenced to imprisonment for a term up to and
including the remainder of the convicted person’s life.
(B) In determining the sentence, the Trial Chamber shall take into account the
factors mentioned in Article 24, paragraph 2, of the Statute, as well as such
factors as:
(i) any aggravating circumstances;
(ii) any mitigating circumstances including the substantial cooperation with the
Prosecutor by the convicted person before or after conviction;
(iii) the general practice regarding prison sentences in the courts of the former
Yugoslavia;
(iv) the extent to which any penalty imposed by a court of any State on the
convicted person for the same act has already been served, as referred to in Article
10, paragraph 3, of the Statute.
(C) Credit shall be given to the convicted person for the period, if any, during
which the convicted person was detained in custody pending surrender to the
Tribunal or pending trial or appeal.

aggravating circumstances

in general

Aggravating circumstances identified in the jurisprudence have included the

abuse of the convicted person’s superior position of leadership, the duration of the
criminal conduct, the active and direct criminal participation under Article 7(1) of the
Statute if linked to a high-ranking position of command, the active participation of a
superior in the criminal acts of subordinates in the context of Article 7(3) of the Statute,
premeditation and motive, the enthusiasm with which a crime was committed, a
discriminatory state of mind where discrimination is not an element of the offence, the
vulnerability of the victims—women, young, elderly, confined or wounded persons, the
number of the victims, their status, and the effect of the crimes upon them, the systemic
nature of the crime, the intimidation of witnesses, and the circumstances of the crimes
generally4035

alcohol and drug use

In contexts where violence is the norm and weapons are carried, intentionally
consuming drugs or alcohol constitutes an aggravating rather than a mitigating factor. 4036

burden of proof

Aggravating factors must be proved beyond a reasonable doubt. Mitigating

factors must be proven by a preponderance of the evidence. 4037

4035
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2139
4036
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 706

656
 Aggravating factors must be proved beyond reasonable doubt. The Trial Chamber
notes that if a particular circumstance has been included as an element of the offence
under consideration, it will not also be regarded as an aggravating factor. 4038

A Trial Chamber can only take into account aggravating circumstances directly
related to the crimes in question and the perpetrators thereof, which the prosecution has
included in the indictment and proven beyond a reasonable doubt.4039

co-operation

Covering up the crimes and absconding from justice are not aggravating factors,
but may be considered when determining if the accused’s character may be considered a
mitigating factor.4040

Obstructing justice may be considered as an aggravating circumstance .4041

The timing of an accused’s guilty plea cannot be an aggravating factor at

sentencing.4042

The exercise by an accused of his right to remain silent may not constitute an
aggravating circumstance. 4043

counsel

The conduct of counsel for the accused must not be taken into account in deciding
the sentence to be imposed.4044

double counting

Factors which a Trial Chamber takes into account as aspects of the gravity of the
crime cannot additionally be taken into account as separate aggravating circumstances
and vice versa.4045

4037
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 763; Prosecutor v
Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 592
4038
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 840;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1089;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 413; Prosecutor v Galic, No. IT-
98-29-A, Judgement (30 November 2006) at para. 408
4039
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 2069
4040
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 134-35
4041
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2046
4042
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 126
4043
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 693; Prosecutor
v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2139
4044
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 262
4045
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 106;
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 58;

657
 A factor considered by a trial chamber as an element of a crime cannot also be
considered as an aggravating circumstance as this would amount to impermissible
double-counting.4046

The factors forming the basis of criminal responsibility may also be considered in
the assessment of the gravity of the offence. 4047

Vulnerability of the victims and discriminatory intent were taken into

consideration when determining the gravity of the offence, and could not serve as an
aggravating factor.4048

The gravity of the offence includes the scale and brutality of the offences, their
impact among the victims and their families, and the extent of long-term physical,
psychological, and emotional suffering of the survivors and therefore these cannot also be
considered as aggravating factors.4049

The Trial Chamber erred in taking the role of the accused into account in both the
gravity of the offense and as an aggravating factor.4050

The Trial Chamber erred in double counting the accused’s status of a commander
as an element of Article 7(3) and as an aggravating factor.4051

The abuse of a position of authority cannot be taken into consideration both in

connection with the gravity of the offence and as an aggravating factor. 4052

Whereas the mode of liability of ordering requires that the person giving the order
has a position of authority, the abuse of such authority may still be considered an
aggravating factor in sentencing.4053

Abuse of authority--understood as the commission of crimes in a particular

position of authority - may be considered either as part of the gravity analysis or as an
aggravating factor, provided that the same facts are not considered twice. 4054

Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2019; Prosecutor v
Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3251
4046
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3251
4047
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3251
4048
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 500; Prosecutor v. Limaj et
al., No. IT-03-66-A, Judgement (27 September 2007) at para. 140
4049
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 729
4050
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 62
4051
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 610, 626;
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 320
4052
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 108; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2026
4053
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 302
4054
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3271

658
 The abuse of superior position was counted twice – when considering the gravity
of the crimes and aggravating circumstances. 4055

A position of superiority and the abuse of such position are distinct issues. Only
the latter qualifies as an aggravating factor in sentencing. Since the Trial Chamber
considered the accused's abuse of his power, rather than his position of· authority, as an
aggravating factor, it did not violate the double counting prohibition. 4056

Relying on different aspects of the same fact is not permissible. In weighing a

fact, either as an aspect of the gravity of the crime or as an aggravating circumstance, the
Trial Chamber is required to consider and account all of its aspects and implications on
the sentence in order to ensure that no doublecounting occurs. Facts can only be taken
into consideration once – either as factors relevant to the gravity of the crimes or as
aggravating circumstances.4057

Where an accused pleads guilty to multiple counts, an element of one crime can
be used as an aggravating factor for another crime. 4058

indictment

There is no requirement that the prosecution plead aggravating factors in an

indictment.4059

mens rea

Discriminatory intent can be used as an aggravating factor for the war crime of
murder, but not persecution.4060

Voluntariness or willingness of the accused’s participation in the crimes is not an

aggravating circumstance. 4061

The fact that the accused enjoyed committing the criminal acts can be considered
as part of the depravity of the crimes—an aggravating factor.4062 The gravity of the
beatings can also be taken into account as an aggravating factor.4063

4055
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 307
4056
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 643; Prosecutor v Stanisic
& Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at paras. 1114, 1155
4057
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 309
4058
Prosecutor v Zelenovic, No. IT-96-23/2-S, Sentencing Judgement (4 April 2007) at para. 41
4059
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 142
4060
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 172, 173; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2032
4061
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.849
4062
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 30
4063
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 40;
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 34

659
 The Prosecution has failed to show that the accused’s mere use of derogatory
language should be considered as an aggravating factor.4064

The meticulous planning of the crime may be considered an aggravating

factor.4065

A long phase of planning and preparation can be an aggravating factor. However,

the use in aggravation, of findings concerning events that are temporally outside the
scope of the Indictment, without providing a reasoned opinion as to why doing so would
be appropriate in the circumstances of the case, is unfair. 4066

nexus to offence

Only circumstances directly related to the commission of the offence may be

regarded as aggravating. 4067

offence circumstances

Additional torching of houses after the attack may be considered an aggravating

4068
factor.

Verbal abuse can be taken into account as an aggravating factor by Trial

Chambers.4069

The long period of time over which the offences were committed was an
aggravating factor.4070

offender circumstances

The educational background of the Accused is not an aggravating factor.4071

Intelligence and good education may be considered as possible aggravating

4072
factors.

The Trial Chamber committed a discernible error in identifying the professional

background of the accused as a doctor as an aggravating factor.4073

4064
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2032
4065
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 113
4066
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 423
4067
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 731
4068
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 120
4069
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 161
4070
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 499; Prosecutor v Popovic et
al, No. IT-05-88-A, Judgement (30 January 2015) at paras. 2038,2040; Prosecutor v Stanisic & Zupljanin,
No. IT-08-91-A, Judgement (30 June 2016) at para. 1119
4071
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.846
4072
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1123

660
 Abuse of superior authority may be an aggravating circumstance. 4074

The abuse of superior authority as an aggravating circumstance is to be

distinguished from a superior position per se which generally does not constitute an
aggravating factor.4075

A high rank does not in and of itself merit a higher sentence. However, a person
who abuses or wrongly exercises power deserves a harsher sentence. 4076

A position of authority does not in and of itself attract a higher sentence. 4077

Where the role of the accused was a limited one, his position of authority is not an
aggravating circumstance. 4078

victims

Where the scale of the crimes committed is reflected in the crimes for which each
accused has been convicted, the number of victims will not be considered an aggravating
factor.4079

The vulnerability of the victims, such as women, children and elderly, as well as
captured and wounded men is an aggravating factor as is the suffering of the survivors
and their families.4080 The disarming of villagers in advance, and promising them safety,
making them particularly defenceless, could also be considered as an aggravating
factor.4081

The youth of the victims can be an aggravating factor.4082

Even if the mental suffering of the survivors constitutes an element of the crime
of inhumane acts, the Trial Chamber was entitled to take the long term effect of the
trauma into account as an aggravating factor.4083

4073
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 416; Prosecutor v Simic, No.
IT-95-9-A, Judgement (28 November 2006) at para. 274
4074
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3264
4075
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3270
4076
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 80;
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 106; Prosecutor v
Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at paras. 939-40
4077
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 320
4078
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.848;
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 67
4079
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 841
4080
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 844-45;
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 119
4081
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 125
4082
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 31; Prosecutor
v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para.733

661
 weight

Even when the conditions are met for taking into account aggravating
circumstances, the Trial Chamber has the discretionary power to attach only limited
weight to those circumstances. 4084

concurrent sentences

A newly imposed sentence cannot run concurrently with a sentence that has
already expired.4085

credit for time served

When an accused has been provisionally released, no credit will be given for the
time spent on provisional release. 4086

Home confinement and reporting conditions imposed on the accused while on

provisional release fall short of being tantamount to detention in custody, and the accused
are not entitled to credit for the time spent on provisional release towards their
sentence. 4087

cumulative convictions

chapeau element

Convictions based upon the same conduct for charges brought under Articles 3
and 5 of the Statute are permissibly cumulative as each Article contains materially
distinct elements in the chapeau requirements.4088 The same is true for charges brought
under Article 2 and Article 5.4089

For the purposes of applying the test, the legal elements of the crime include the
chapeau requirements of the particular crime. 4090

4083
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 167
4084
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 2069
4085
Prosecutor v Seselj, No. IT-03-67-R77.3-A, Judgement (28 November 2012) at para. 23
4086
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3335
4087
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3336
4088
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 800;
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 562; Prosecutor v.
Jelisic, No. IT-95-10-A. Judgement (5 July 2001) at para. 82; Prosecutor v Galic, No. IT-98-29-A,
Judgement (30 November 2006) at para. 165; Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on
Several Motions Challenging Jurisdiction (19 March 2007) at para. 28
4089
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 562
4090
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 356

662
 It is permissible to convict for a murder under Article 3 of the Statute and
persecution by way of murder under Article 5 of the Statute as each of them has a
materially distinct element from the other.4091

Cumulative convictions for inhuman treatment under Article 2 and cruel treatment
under Article 3 not allowed.4092

Cumulative convictions for wanton destruction of property under Articles 2 and 3

not allowed.4093

conspiracy

Cumularive convictions for genocide and conspiracy to commit genocide should

be entered.4094

Conspiracy to commit genocide is not a mode of liability but an inchoate crime,

constituted as soon as there is an agreement among the conspirators to act for the purpose
of committing genocide. By contrast, JCE is a form of "committing" that requires the
actual commission of the crime. A person can thus be convicted of both conspiracy to
commit genocide and commission of genocide by virtue of participation in a joint
criminal enterprise. 4095

discretion

A Trial Chamber does not have discretion to decline to enter cumulative

convictions for crimes with materially distinct elements. 4096

A trial chamber is bound to enter convictions for all distinct crimes which have
been proven in order to fully reflect the criminality of the convicted person. 4097

In the interests of fairness, balanced with considerations of public interest and the
administration of justice, and taking into account the nature of the offences and the
circumstances of the case at hand, the Appeals Chamber finds it appropriate to refrain
from entering new convictions on appeal for persecution based on the same underlying
conduct as other crimes against humanity. 4098

modes of liability

4091
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 145
4092
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 4, para. 1260
4093
Prosecutor v Prlic et al, No. IT-04-74-T, Judgement (29 May 2013) at vol. 4, para. 1264
4094
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 538; Prosecutor v
Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 621
4095
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 590
4096
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 324
4097
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 399
4098
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1096

663
 Where both Article 7(1) and Article 7(3) responsibility are proven, a Trial
Chamber should enter a conviction on the basis of Article 7(1) only and consider the
accused’s superior position as an aggravating factor in sentencing. 4099

Responsibility for ordering fully encompassed the accused’s criminal conduct and
thus did not warrant a conviction for planning the same crimes. 4100
Concurrent convictions for individual and superior responsibility in relation to the
same counts based on the same facts constitutes a legal error.4101

Trial Chamber erred in entering convictions for aiding and abetting and JCE
where same conduct formed the basis for both forms of liability. 4102

An accused may not be convicted for the same criminal incident under multiple
forms of JCE.4103

materially distinct element

Multiple convictions entered under different statutory provisions, but based on the
same conduct, are permissible only if each statutory provision has a materially distinct
element not contained within the other. An element is materially distinct from another if
it requires proof of a fact not required by the other element. Where this test is not met,
only the conviction under the more specific provision will be entered. The more specific
offence subsumes the less specific one, because the commission of the former necessarily
entails the commission of the latter.4104

The Appeals Chamber will permit multiple convictions only in cases where the
same act or transaction clearly violates two distinct provisions of the Statute and where
each statutory provision requires proof of an additional fact which the other does not. 4105

An element is materially distinct from another if it requires proof of a fact

not required by the other. Where this test is not met, the Chamber must decide in
relation to which offence it will enter a conviction. 4106

When the evidence supports convictions under multiple counts for the same
underlying acts, the test does not permit the Trial Chamber discretion to enter one or
4099
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para. 34;
Prosecutor v. Blaskic, No.:IT-95-14-A, Judgement (29 July 2004) at para. 91; Prosecutor v Oric, No. IT-
03-68-T, Judgement (30 June 2006) at para. 343; Prosecutor v Brdjanin, No. 99-36-T, Judgement (1
September 2004) at para 285; Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at
para. 1806
4100
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 274
4101
Prosecutor v Jokic, No. IT-01-42/1-A, Judgement on Sentencing Appeal (30 August 2005) at para. 24
4102
Prosecutor v Dordevic, No. IT-05-87/1-A, Judgement (27 January 2014) at para. 833
4103
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 55
4104
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at paras 412 – 413; Prosecutor v
Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 218
4105
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 173
4106
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para 387

664
more of the appropriate convictions, unless the two crimes do not possess materially
distinct elements.4107

It is the legal elements of the offence, not the acts or omissions giving rise to the
offence, which is considered when determining the issue of cumulative convictions. 4108

The permissibility of cumulative convictions for the crimes of genocide and

extermination is well established in the jurisprudence of the Appeals Chamber on the
basis that each crime contains a materially distinct element not contained in the other.4109

Convictions for both genocide and murder as a violation of the laws or customs of
war may be entered as both contain a materially distinct element not contained in the
other.4110

The crimes of devastation not justified by military necessity, unlawful attacks on

civilian objects, and destriction of cultural property each have a distinct element and
cumulative convictions are required.4111

The offence of unlawful attacks against civilians and the crime of terror have
different elements, thus allowing cumulative convictions. 4112

persecution

Convictions for murder under Article 5 and for persecutions based on the
underlying act of murder when both convictions are based on the same acts, are in
principle permissible. 4113 Similarly, convictions for other inhumane acts under Article 5
and for persecutions based on the same underlying acts are also in principle
permissible. 4114

Convictions for murder and inhumane acts as impermissibly cumulative with the
conviction for persecution where the persecution was accomplished through murder and
inhumane acts.4115

4107
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 358
4108
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1033
4109
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 610
4110
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 617
4111
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 332
4112
Prosecutor v Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 39
4113
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 810;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1041;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 359; Prosecutor v Stanisic &
Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1089
4114
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 810;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1042;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 362
4115
Prosecutor v Krstic, No. IT-98-33-A, Judgement (19 April 2004) at para. 231

665
 Cumulative convictions are permissible for the crimes of deportation as a crime
against humanity under Article 5(d) of the Statute and persecutions as a crime against
humanity under Article 5(h) of the Statute.4116

Cumulative convictions for forcible transfer as an act of persecution and as an

"other inhumane act" are permitted.4117

prohibited

Conviction for wilful killing under Article 2 subsumes conviction for murder
under Article 3.4118

Convictions for cruel treatment are consumed within the conviction for torture
when based upon the same conduct.4119

Where it is attempted to charge rape as an outrage upon personal dignity, the rape
is only evidence of the outrage; the substantial crime is not rape but the outrage
occasioned by the rape. This leaves open the argument that an outrage upon personal
dignity is substantially included in torture, with the consequence that convictions for both
may not be possible. 4120
Cumulative convictions for torture and other inhumane acts based upon the same
conduct cannot be entered as other inhumane acts does not have an element materially
distinct from torture.4121
Murder as a crime against humanity does not contain a materially distinct element
from extermination as a crime against humanity. Thus a conviction for murder should not
be entered when the accused is convicted of extermination. 4122

Devastation not justified by military necessity, unlawful attacks on civilian

objects, and destruction or wilful damage of cultural property on a theoretical basis,
contain “materially” distinct elements from each other. However, in the interests of
justice, a conviction will only be ordered in respect to willful damage of cultural
property. 4123
victims

Convictions for murder and inhumane acts are not cumulative where they relate to
distinct victims.4124

4116
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 360
4117
Prosecutor v Tolimir, No. IT-05-88/2-A, Judgement (8 April 2015) at para. 606
4118
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1038
4119
Prosecutor v Limaj et al, No. IT-03-66-T, Judgement (30 November 2005) at para. 719; Prosecutor v
Haradinaj et al, No. IT-01-74-T, Judgement (2 April 2008) at para. 480
4120
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 190
4121
Prosecutor v Martic, No. IT-95-11-T, Judgement (12 June 2007) at para. 477
4122
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1804
4123
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 452-54
4124
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 167

666
 former Yugoslavia sentencing practices

Although both the Statute as well as the Rules provide that a Chamber shall take
into account the general practice regarding prison sentences in the courts of the former
Yugoslavia, trial chambers are not bound by such national practice. The Tribunal
is thus not prevented from imposing a greater or lesser sentence than would have been
imposed under the legal regime of the former Yugoslavia. 4125

Although it must consider sentencing practices in the former Yugoslavia, the

Tribunal is not bound by such practice. Rather, the Tribunal should refer to this practice
as an aid in determining an appropriate sentence. 4126 Article 142 of the SFRY Criminal
Code permits a range of sentence from five years as a minimum to the maximum penalty
of death for violations of international law in times of war or armed conflict. 4127

Although a Trial Chamber should ‘have recourse to’ and should ‘take into
account’ the general practice regarding prison sentences in the courts of the former
Yugoslavia, this does not oblige the Trial Chambers to conform to that practice; it only
obliges the Trial Chambers to take account of that practice. 4128

Trial chambers are required to take into consideration the general practice
regarding prison sentences in the courts of the former Yugoslavia although they are not
bound by it.4129

The punishment provided in the law of the former Yugoslavia for murder, rape,
and grievous bodily harm do not reflect the seriousness of crimes against humanity, and
is thus not an adequate basis for determining the punishment to be imposed for this
category of crimes.4130

A sentence imposed in excess of the maximum sentence available under domestic

law in the former Yugoslavia at the time the offences were committed does not
necessarily violate the principles of legality and nulla poena sine lege.4131

Paragraph 21 of the Instructions on the Application of International Laws of War

in the Armed Forces of SRFY, read together with Article 24(1) of the SFRY Criminal
Code, appear to allow for a commander who failed to act to prevent or punish a crime to
be sentenced as if he had committed the crime himself. 4132

4125
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2087
4126
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 827;
Prosecutor v Jokic, No. IT-01-42/1-A, Judgement on Sentencing Appeal (30 August 2005) at para. 38;
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para 418
4127
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 830
4128
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 813.
4129
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3354
4130
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5207
4131
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 816 – 817.
4132
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 475

667
 Trial Chambers are not obliged to consider each and every applicable provision of
the laws of the former Yugoslavia.4133

Automatic application of the sentencing practices of the former Yugoslavia is not

binding upon the Trial Chambers in determining sentences. 4134

While some guidance may be found in sentencing practices other than those of the
former Yugoslavia when determining the appropriate sentence, such practices should not
be given undue weight.4135

The Trial Chamber did not err in seeking guidance by a review of the sentencing
practices of other countries.4136

gravity of the offence

In sentencing, a Trial Chamber must start from the position that “the gravity of
the offence is the primary consideration in imposing sentence 4137

The determination of the gravity of the crime requires a consideration of the

particular circumstances of the case, as well as the form and degree of the participation of
the accused in the crime. 4138

The “gravity of the offence” takes into consideration the crimes for which each
accused has been convicted, the underlying criminal conduct generally, the specific role
played by the accused in the commission of the crime, and the impact of the crimes on
the victims. 4139

Galić’s crimes were characterized by exceptional brutality and cruelty, his

participation was systematic, prolonged and premeditated and he abused his senior
position of VRS Corps commander. The sentence imposed on Galić by the Trial Chamber
falls outside the range of sentences available to it in the circumstances of this case. The
sentence of only 20 years was so unreasonable and plainly unjust, in that it
underestimated the gravity of Galić’s criminal conduct, that it is able to infer that the
Trial Chamber failed to exercise its discretion properly. Life sentence imposed. 4140

4133
Prosecutor v Jokic, No. IT-01-42/1-A, Judgement on Sentencing Appeal (30 August 2005) at para. 37
4134
Prosecutor v Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 349
4135
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3346
4136
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 76
4137
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 731; Prosecutor v
Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 442
4138
Prosecutor v. Kupreskic, No. IT-95-16-T, Judgement (14 January 2000) at para 852; Prosecutor v.
Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 731.
4139
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 833
4140
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 455; Prosecutor v Prlic
et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3238

668
 The gravity of the suboridnates’ crimes are an essential consideration in
sentencing a person found guilty of superior responsibility for those crimes. 4141

In assessing the gravity of a crime in the context of a conviction under Article

7(3), the Trial Chamber must take into account: (1) the gravity of the underlying crime
committed by the convicted person's subordinate; and (2) the gravity of the convicted
person's own conduct in failing to prevent or punish the underlying crimes. 4142

The complete absence of any reference to his criminal responsibility as a superior

is a sufficient indication that the Trial Chamber failed to take into account this aspect of
his conduct in determining the accused’s sentence. 4143

War crimes are not inherently less serious than crimes against humanity. 4144

There is no hierarchy of the crimes within the jurisdiction of the Tribunal. A

sentence of life imprisonment can be imposed in cases other than genocide. 4145

There is no distinction in law between crimes against humanity and war crimes
that would require, in respect of the same acts, that the former be sentenced more harshly
than the latter.4146

Where the crimes for which an accused is held responsible are particularly grave,
the imposition of a life sentence does not constitute a form of inhumane treatment but, in
accordance with proper sentencing practice common to many countries, reflects a specific
level of criminality. 4147

It is up to the trier of fact to consider the level of contribution – as well as the

category of JCE under which responsibility attaches – when assessing the appropriate
sentence, which shall reflect not only the intrinsic gravity of the crime, but also the
personal criminal conduct of the convicted person and take into account any other
relevant circumstance. 4148

The jurisprudence does not support the assertion that the commission of crimes
through the third category of joint criminal enterprise generally entails lesser culpability
than the commission of crimes through the first category of joint criminal enterprise. 4149

4141
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 313
4142
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3238
4143
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3239
4144
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 459
4145
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para, 375
4146
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 247; Prosecutor v
Kunarac et al, No. IT-96-23&23/1, Judgement (12 June 2002) at para. 171
4147
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 395
4148
Prosecutor v Martic, No. IT-95-11-A, Judgement (8 October 2008) at para. 84
4149
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1146

669
 Factors to be considered when assessing the gravity of the offence include, inter
alia, the legal nature of the offence committed; the discriminatory nature of the crime
where this is not considered as an element of the crime for the purposes of a conviction;
the scale and brutality of the crime; the vulnerability of the victims and the consequences,
effect or impact of the crime upon the victims and their relatives….[A] sentence must
reflect the inherent gravity or the totality of the criminal conduct of an accused, giving
due consideration to the particular circumstances of the case and to the form and degree
of the participation of the accused. 4150

There is no hierarchy of crimes within the jurisdiction of the International

Tribunal. The Trial Chamber’s duty remains to tailor the penalty to fit the individual
circumstances of the accused and the gravity of the crime so that the accused are
punished solely on the basis of their wrongdoings” and not on the basis of abstract
distinctions among crimes.”4151

The fact that findings as to the conduct of the accused were not repeated in the
sentencing analysis does not, by itself, indicate that they were not considered for
sentencing. Therefore, there was no reason to set aside the sentence as requested by the
Prosecution. 4152

lex mitior

The principle of lex mitior is understood to mean that, if the law relevant to the
offence of the accused has been amended, the less severe law should be applied . It is an
inherent element of this principle that the relevant law must be binding upon the court.
Accused persons can only benefit from the more lenient sentence if the law is binding,
since they only have a protected legal position when the sentencing range must be applied
to them. The principle of lex mitior is thus only applicable if a law that binds the
International Tribunal is subsequently changed to a more favourable law by which the
International Tribunal is also obliged to abide. 4153

The principle of lex mitior applies at the ICTY and if its Statute is ever amended
concerning sentencing powers, the more lenient penalties would have to apply. 4154

life sentence

Neither Article 7 nor Article 10 of the ICCPR prohibits life imprisonment. 4155

Mitigating circumstances do not preclude the imposition of life imprisonment. 4156

4150
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at para. 400
4151
Prosecutor v Mrksic & Sljivancanin, No. IT-95-13/1-A, Judgement (5 May 2009) at paras. 375, 415
4152
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3233
4153
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 81
4154
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 96
4155
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1965
4156
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2083

670
 In July 1995 when the crimes at issue took place, Rule 101(A) of the Rules was
already in force, clearly constituting notice of a maximum custodial sentence of life
imprisonment for the crimes falling within the jurisdiction of the Tribunal. 4157

minimum terms

Recommending a minimum term of imprisonment to be served by an accused has

occurred only rarely in cases before the Tribunal. Trial Chamber declined to do so. 4158

mitigating circumstances

in general

The acknowledgement and application of mitigating circumstances does not

diminish the gravity of the crime.4159

Mitigating factors have included (1) cooperation with the prosecution; (2) guilty
plea; (3) remorse; (4) voluntary surrender; (5) good character with no prior convictions;
(6) comportment in detention; (7) personal and family circumstances; (8) character of the
accused subsequent to the conflict; (9) duress and indirect participation; (10) diminished
mental responsibility; (11) age; and (12) assistance to detainees and victims. 4160

The following circumstances have been identified as mitigating factors:

co-operation with the Prosecution, the admission of guilt or a guilty plea, the expression
of sincere remorse, sympathy, compassion or sorrow for the victims of the crimes,
voluntary surrender, good behaviour while in detention, the personal and family
circumstances of the convicted person, the post-conflict conduct of the convicted person,
the duress under which he acted, indirect or limited participation in the commission of the
crime, diminished mental responsibility, age, assistance to victims, fully complying with
certain obligations, such as the terms and conditions of provisional release, and
preventing others from committing crimes. 4161

Appeal proceedings are not the appropriate forum to raise mitigating

circumstances for the first time. A Trial Chamber cannot be faulted for failing to consider
as mitigating circumstances elements which the accused did not properly identify. 4162

alcohol or drug abuse

4157
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2089
4158
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 94
4159
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5194
4160
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 43
4161
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2140
4162
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3310

671
 A state of intoxication can only constitute a mitigating circumstance if it is forced
or coerced, an intentionally procured diminished mental state cannot result in a mitigated
sentence. 4163
assistance to victims

If a commander in charge of, as in this case, a prison-camp or detention facility,

takes steps to alleviate the suffering of those detained, depending on the degree and level
of this action, it may be that the seriousness of the overall offences can be mitigated. This
would, however, depend on the circumstances of the case and the degree of assistance
given. 4164

The fact that the troops under the accused’s command repeatedly breached the
Anti-sniping Agreement and violated temporary ceasefires and the Geneva Conventions
did not preclude a reasonable Trial Chamber from considering that “the negotiation and
signing of the Antisniping Agreement” and the “orders the accused issued not to shoot
civilians and to abide by the Geneva Conventions” were mitigating circumstances. The
Anti-sniping Agreement “was implemented to some extent” and the accused’s orders
were followed by his subordinates, both of which tend to show that the accused’s acts in
favour of humanitarian law might actually have had some positive effects. 4165

The accused’s decision to open the corridor, which objectively saved thousands of
lives, could be considered a mitigating factor, even absent a benevolent motive. 4166

Accused’s sporadic benevolent acts were not considered as a mitigating

circumstance where he had the power to assist the victimised population on a wide
scale.4167

burden of proof

Some of the factors that have been considered in mitigation of sentence by the
Tribunal are: voluntary surrender, good character, family circumstances, and remorse.
Mitigating factors need to be established on the balance of probabilities, and not beyond
reasonable doubt.4168

contempt

4163
Prosecutor v Kvocka et al, No. IT-98-30/1-T, Judgement (2 November 2001) at para. 706
4164
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 775.
4165
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 317
4166
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2076
4167
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5198
4168
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.850;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1053;
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 43;
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 42; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 2078

672
 In sentencing witness for contempt, the fact that the accused was not present
during hearing at which witness refused to testify was not a mitigating factor. 4169

Sentence of 12 months imprisonment, with 8 months suspended, was warranted

for defence investigator who participated in a scheme to procure false testimony where
the accused was acting at the direction of others, was inexperienced, young, and had no
prior record, and where continued detention would be in conditions of almost solitary
confinement as the only woman in the detention unit.4170

cooperation

The Appeals Chamber acknowledges the obligation that Rule 101(B)(ii) of the
Rules imposes upon Chambers to take account of the substantial cooperation with the
Prosecution before or after conviction, in the determination of sentence. However,
pursuant to its previous finding in the Kupreskic case, the Appeals Chamber finds that the
circumstances in the present case do not demand its intervention in the interests of
justice. 4171

Appearing for two interviews with the Prosecutor and voluntarily surrendering to
the Tribunal is a mitigating factor.4172

Voluntary surrender is a mitigating circumstance. 4173

A commitment to cooperate with the prosecution, although not yet fulfilled, may
constitute a mitigating circumstance. 4174

In appropriate cases, co-operation between conviction and appeal could be a

factor that the Appeals Chamber too may consider in order to reduce sentence. This will
of course depend on the circumstances of each case and the degree of co-operation
rendered.4175

The Trial Chamber committed an error when it declined to consider Zigic’s

voluntary surrender to the Tribunal a mitigating factor. However, given the fact that Zigic
was in prison at the time of his surrender, the Appeals Chamber does not consider that
significant weight should be given to this mitigating circumstance. 4176
4169
Prosecutor v Milosevic, No. IT-01-54-T, Decision on Interlocutory Appeal of Kosta Bulatovic
Contempy Proceedinsgs (29 August 2005) at para. 59
4170
Prosecutor v Rasic, No. IT-98-32/1-R77.2, Written Reasons for Oral Sentencing Judgement (6 March
2012)
4171
Prosecutor v Jokic, No. IT-01-42/1-A, Judgement on Sentencing Appeal (30 August 2005) at para. 88
4172
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 344; Prosecutor v
Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 472; Prosecutor v Kordic & Cerkez, No.
IT-65-14/2-A, Judgement (17 December 2004) at para.1090; Prosecutor v Bralo, No. IT-95-17-S,
Sentencing Judgement (7 December 2005) at para. 61
4173
Prosecutor v Haradinaj et al, No. IT-01-74-T, Judgement (2 April 2008) at para. 495
4174
Prosecutor v Zelenovic, No. IT-96-23/2-S, Sentencing Judgement (4 April 2007) at para. 52
4175
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 463
4176
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 713

673
 If an accused, who was arrested before having the opportunity to surrender
voluntarily, shows a willingness to have done so, this mere willingness may, depending
on the circumstances of the case, be taken into account in mitigation of the sentence.
However, where there is no indication of such willingness to surrender voluntarily, Trial
Chambers correctly exercise their discretion in not taking into account such a factor in
mitigation of sentence. To do so would involve the Trial Chamber in speculation as to
whether or not the accused would in fact have surrendered voluntarily. 4177

Actions of an accused in custody to facilitate his transfer to the Tribunal, while

not equivalent to voluntary surrender, are entitled to some weight as a mitigating
factor.4178

An Accused’s voluntary surrender to the Tribunal may properly be taken into

account as a mitigating circumstance, even if he may well be considered to be under an
obligation to surrender.4179

Cooperation with the prosecution is a mitigating circumstance. The evaluation of

the accused’s cooperation depends both on the quantity and quality of the information he
provides. 4180

Providing new information heard for the first time before the Tribunal is
particularly valuable. This would include information on new perpetrators or
identification of new mass graves.4181

Use by the prosecution in other cases of the information provided by the accused
is a significant indication of the value of the information.4182

While the prosecution is in a position to accurately assess the cooperation of an

accused, it is for the Trial Chamber to evaluate that cooperation to determine what weight
to give it as a mitigating circumstance.4183

If the Trial Chamber disagrees with the prosecution’s assessment of the

cooperation of the accused, it must provide sufficient reasons for not following the
prosecution’s assessment.4184

4177
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 426
4178
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 601
4179
Prosecutor v. Mrkši et al.,No. IT-95-13/1-T, Judgement (27 September 2007) at para 698
4180
Prosecutor v Bralo, No. IT-95-17-A, Judgement (2 April 2007) at para. 51; Prosecutor v Rajic, No. IT-
95-12S, Sentencing Judgement (8 May 2006) at para. 158
4181
Prosecutor v Bralo, No. IT-95-17-A, Judgement (2 April 2007) at para. 52
4182
Prosecutor v Bralo, No. IT-95-17-A, Judgement (2 April 2007) at para. 52
4183
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 91
4184
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 96;
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 749

674
 Providing an interview to the prosecution, willingness to self-surrender, and
agreeing to some facts at the trial are evidence of some cooperation and constitute a
mitigating factor.4185

An accused’s cooperation with the prosecution does not have to be substantial in

order to be a mitigating circumstance. 4186

The Trial Chamber did not err in concluding that the cooperation of the accused
had not been beyond the scope envisioned by the plea agreement and therefore not
warranting of extra mitigating credit. 4187

good behavior

The accused’s extraordinarily good behavior when detained at the UNDU shows
good rehabilitative prospects and is a mitigating factor.4188 However, post-sentencing
conduct at the UNDU is not admissible in the Appeals Chamber’s review of the
sentence. 4189

Good behaviour in detention has been considered in mitigation although it does

not weigh significantly in favour of mitigation. 4190

good character

Good character and family circumstances are mitigating factors, albeit of limited
weight.4191

The good character of a person is often accorded little weight in the determination
of the sentence.4192

Character of an accused before the crimes were committed is generally not a

factor to be taken into consideration in mitigation of the sentence. 4193 However, the fact
that the accused did not have a prior criminal record is a mitigating circumstance. 4194

4185
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 750
4186
Prosecutor v Bralo, No. IT-95-17-A, Judgement (2 April 2007) at para. 51; Prosecutor v Zelenovic, No.
IT-96-23/2-A, Judgement on Sentencing Appeal (31 October 2007) at para.24
4187
Prosecutor v Zelenovic, No. IT-96-23/2-A, Judgement on Sentencing Appeal (31 October 2007) at para.
25
4188
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1091;
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 82; Prosecutor v
Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 2078
4189
Prosecutor v Jelesic, No. IT-95-10-A, Decision on Request to Admit Additional Evidence (15
November 2000)
4190
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5194
4191
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 162
4192
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5199
4193
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para.853
4194
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1090

675
 Family circumstances, such as the fact that the accused is the guardian of his teen-
age son, is a mitigating circumstance, although not given undue weight. 4195 The
accused’s age (71) and poor health, as well as the poor health of his spouse, are
mitigating factors.4196

Family circumstances of the accused being the father of four children were
considered mitigating circumstances. 4197

Respect towards all people, regardless of their nationality, ethnicity or religion, is

the demeanour expected of any individual and does not constitute a factor to be
considered in mitigation of sentence. 4198

The activities of the accused in the work of de-mining are a mitigating

circumstance.4199

Character letters submitted in connection with provisional release application

were considered by the Trial Chamber, but were too general to support a finding of the
accused’s good character as a mitigating circumstance. 4200

The Trial Chamber did not err in refusing to give effect to the accused prior good
character as a factor in mitigation. 4201 Given the gravity of the crimes for which the
accused was convicted, it is unlikely that evidence of good character prior to or following
the events in question would have a significant impact on the sentence. 4202

guilty plea

The avoidance of a lengthy trial can be considered as an element of the mitigating

effect of a guilty plea. 4203 The International Tribunal’s completion strategy is not a factor
to be taken into account at sentencing. 4204

A guilty plea is an important step in the offender’s process of rehabilitation and

may also, in connection with an appropriate sentence, have a healing effect on the
community. 4205 It is a mitigating factor.4206

4195
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 855;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1090
4196
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 469
4197
Prosecutor v Haradinaj et al, No. IT-01-74-T, Judgement (2 April 2008) at para. 495
4198
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 429
4199
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Judgement (9 May 2007) at para. 328
4200
Prosecutor v Haradinaj et al, No. IT-01-74-T, Judgement (2 April 2008) at para. 495
4201
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 51
4202
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 406
4203
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 52;
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 79
4204
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 79,
fn 200
4205
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 71

676
 A Trial Chamber is not required to specifically mention the extent of the
mitigating value it afford to a guilty plea. Upon a finding that mitigating circumstances
existed, a decision of the weight to be accorded thereto is within the discretion of the
Trial Chamber.4207

health

Ill-health of the convicted person is to be considered as a mitigating factor only in

exceptional cases. 4208

The deterioration of the health of the accused after sentencing justified an

additional six month reduction in his sentence. 4209

Trial Chamber erred in denying prosecution access to medical reports of the

accused which it relied upon at sentencing.4210

Where accused’s general health condition was stable, his physical condition did
not warrant consideration as a mitigating circumstance. 4211

innocence

A possibility of innocence can never be a factor in sentencing. 4212

lack of training

Trial Chamber did not err in considering commander’s lack of training as a

mitigating factor.4213

mental condition

Diminished responsibility requires proof that the accused is suffering from an

abnormality of mind which has substantially impaired his mental responsibility for his
acts or omissions. The abnormality of mind must have arisen from a condition of arrested
or retarded development of the mind, or inherent causes induced by disease or injury. It is

4206
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 145; Prosecutor v
Zelenovic, No. IT-96-23/2-S, Sentencing Judgement (4 April 2007) at para. 46
4207
Prosecutor v Zelenovic, No. IT-96-23/2-A, Judgement on Sentencing Appeal (31 October 2007) at para.
18
4208
Prosecutor v Popovic et al, No. IT-05-88-T, Judgement and Sentence (10 June 2010) at para. 2140;
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3315
4209
Prosecutor v Strugar, No. IT-01-42-A, Judgement (17 July 2008) at para. 392
4210
Prosecutor v Rasic, No. IT-98-32/1-R77.2-A, Judgement (16 November 2012) at para. 38
4211
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5203
4212
Prosecutor v Furundzija, No. IT-95-17/1-A, Judgement (21 July 2000) at para. 253
4213
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-A, Judgement (22 April 2008) at para. 333

677
an essential requirement of the defence of diminished responsibility that the accused’s
abnormality of mind should substantially impair his ability to control his actions. 4214

Where grief from death of the accused’s daughter did not rise to the level of
diminished mental capacity, it would not be considered as a mitigating circumstance. 4215

nexus to offence

Mitigating circumstances may be taken into account regardless of whether they

have a direct nexus with the crimes in question. 4216

nondiscrimination

Acts of nondiscrimination, in the midst of ongoing fighting, merits consideration

are a mitigating circumstance where the accused is convicted of crimes carrying an
element of discriminatory intent.4217

The Trial Chamber erred in holding that only post-conflict conduct which
alleviates the suffering of the victims should be considered as a mitigating circumstance.
The Trial Chamber should have considered the accused’s attempts to further peace,
although it would not have changed the sentence imposed. 4218

offender circumstances

The difficult circumstances faced by the accused as a Muslim commander in

Srebrenica is the pivotal mitigating factor in determining his sentence. 4219

The chaotic context of a conflict cannot be taken into account in mitigation. 4220

Trial Chamber erred in relying on accused’s false confession of crimes to

prosecution where such lies were cured when the accused subsequently told the truth. 4221

Execution of manifestly illegal orders cannot in any circumstance be justified,

regardless of devotion to service or “military ethos”. A reasonable trier of fact could have
given no weight to this factor as a mitigating circumstance. 4222

4214
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 578. This seems to be
the definition finally accepted by the AC, however it is not entirely clear.
4215
Prosecutor v Mladic, No. IT-09-92-T, Judgement (22 November 2017) at para. 5201
4216
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 2069
4217
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 854
4218
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 59
4219
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 767
4220
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Judgement (30 June 2016) at para. 1166
4221
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 107
4222
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2061

678
 Where reports authored by accused represent the sole instance where a senior
member of the VRS, in writing, challenged the Superior Command about the murder
operation, the writing of those reports can be considered a mitigating factor.4223

remorse

A sincere expression of regret may constitute a mitigating circumstance, even in

the absence of any admission of participation in a crime. 4224

Voluntary surrender, a guilty plea, steps taken to atone for one’s crimes, and
genuine remorse are significant mitigating factors.4225

Expression of sympathy to the victims by defence counsel during the trial is a

mitigating factor even if the accused made no statement.4226

The expression of remorse covered only a fraction of the crimes for which the
accused was convicted. As such, it was within the Trial Chamber’s discretion not to
consider the accused’s remorse as a mitigating circumstance. 4227

Real and sincere remorse is a mitigating factor.4228

role in the offence

The Trial Chamber need not consider what the accused did not do—such as did
not order or plan the crimes—but should sentence him for what he did. 4229

The commission of a crime together with other persons in most cases will not be
considered less serious than the commission of a crime on one’s own. 4230

Duress and superior orders are separate, but related, concepts and either may
count in mitigation of sentence. 4231 However, where any orders given to the accused to
kill civilians and destroy homes would have been manifestly unlawful, they have no
mitigatory value in the determination of sentence in the present case.4232

4223
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2078
4224
Prosecutor v Strugar, No. IT-01-42-T, Judgement (31 January 2005) at para. 470; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 2063
4225
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 72
4226
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 752
4227
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 715
4228
Prosecutor v Rajic, No. IT-95-12S, Sentencing Judgement (8 May 2006) at para. 150; Prosecutor v
Zelenovic, No. IT-96-23/2-S, Sentencing Judgement (4 April 2007) at para. 51
4229
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 56
4230
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 703
4231
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 53
4232
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 56

679
 The Trial Chamber erred in considering twice in mitigation the accused’s
subordinate role4233

tensions in the area

Tensions that existed in the region at the relevant time can in no way act in
mitigation of the sentence to be imposed upon the accused for his commission of serious,
violent crimes.4234

The chaotic context of a conflict, or the fact that many citizens committed crimes,
is not a mitigating factor.4235

Fact that house of accused was attacked during conflict was not a mitigating
factor in sentence.4236

violation of rights

Alleged agreement to resign in exchange for promise of non-prosecution could be

considered for the purposes of sentence.4237

In order to have a remedy for violation of his rights, the violation must be
attributable to the Tribunal. Violation of rights in connection with his arrest by a State on
a warrant issued by the Tribunal is not grounds for a remedy, such as reduction of
sentence. 4238

waiver of appearance

Agreeing that the Trial Chamber could proceed in his absence when he was ill
during trial is not a mitigating factor. To the extent that the accused had health problems
that merited recesses, he was free to raise them. 4239

mode of liability

Aiding and abetting is a form of responsibility which generally warrants a lower

sentence than is appropriate to responsibility as a co-perpetrator.4240

4233
Prosecutor v. Limaj et al., No. IT-03-66-A, Judgement (27 September 2007) at para. 143
4234
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 52
4235
Prosecutor v Blaskic, No. IT-95-14-A, Judgement (29 July 2004) at para. 711; Prosecutor v Bralo, No.
IT-95-17-A, Judgement (2 April 2007) at para. 13
4236
Prosecutor v Bralo, No. IT-95-17-A, Judgement (2 April 2007) at para. 18
4237
Prosecutor v Karadzic, No. IT-95-5/18-AR73.4, Decision on Karadzic’s Appeal from Trial Chamber’s
Decision on Alleged Holbrooke Agreement (12 October 2009) at para. 55
4238
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on the Accused’s Motion for Remedy for Violation
of Rights in Connection with Arrest (31 August 2009) at para. 6
4239
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 630
4240
Prosecutor v Vasiljevic, No. IT-98-32-A, Judgement (25 Feb 2004) at para. 182

680
 An accused found guilty of command responsibility is generally entitled to a
lesser sentence than one found guilty of individual responsibility. 4241

As a practical matter, the seriousness of a superior’s conduct in failing to prevent

or punish crimes must be measured to some degree by the nature of the crimes to which
this failure relates. A failure to prevent or punish murder or torture committed by a
subordinate must be regarded as being of greater gravity than a failure to prevent or
punish an act of plunder, for example. 4242

The seriousness of what is done by a participant in a joint criminal enterprise who

was not the principal offender is significantly greater than what is done by one who
merely aids and abets the principal offender. 4243

The fact that an accused is found guilty as an “indirect co-perpetrator” does not in
itself entitle him to a lower sentence. 4244

Because a person found responsible as a superior has been convicted of failure to

prevent or punish the crime, and not of the crime of the subordinate, greater flexibility in
sentencing is warranted.4245

Recognition of the importance of a superior’s duty to enforce the rules of

international humanitarian law does not automatically require a sentence above a certain
threshold; rather, a trial chamber is required to consider this together with other
considerations of the gravity of the offences, the accused’s personal conduct, the general
practice regarding prison sentences in the courts of the former Yugoslavia, and any
aggravating or mitigating circumstances in arriving at a sentencing determination. 4246

While the mode of liability of ordering necessarily entails that the person giving
the order has a position of authority, the level of authority may still play a role in
sentencing as it is not an element of the mode of liability of “ordering” that an accused is
high in the chain of command and thus wields a high level of authority. 4247

sentencing of other accused

Sentences of like individuals in like cases should be comparable and, in this

regard, the Appeals Chamber “does not discount the assistance that may be drawn from
previous decisions rendered”. Indeed, the Appeals Chamber has observed that a sentence
may be considered “capricious or excessive if it is out of reasonable proportion with a
line of sentences passed in similar circumstances for the same offences”. However, while

4241
Prosecutor v Hadzihasanovic & Kubura, No. IT-01-47-T, Judgement (15 March 2006) at para. 2076
4242
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 732; Prosecutor v
Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1991
4243
Prosecutor v Krnojelac, No. IT-97-25, Judgement (17 September 2003) at para. 73
4244
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para, 380
4245
Prosecutor v Oric, No. IT-03-68-T, Judgement (30 June 2006) at para. 724
4246
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1997
4247
Prosecutor v Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 412

681
comparison with other sentences may be of assistance, such assistance is often
limited.4248

The principle of proportionality by no means encompasses proportionality

between one’s sentence and the sentence of other accused. Comparison with other
sentences is of limited value. 4249

The Trial Chamber is obliged to tailor the penalty to fit the individual
circumstances of the accused and the gravity of the crime with due regard for the entirety
of the case, which may justify different sentences in similar cases.4250

A previous decision on sentence may indeed provide guidance if it relates to the

same offence and was committed in substantially similar circumstances. Such guidance
may be limited by the Trial Chamber’s obligation to consider the gravity of the crime and
the individual circumstances of the accused. 4251

Where a sentence does not differ substantially from that of another case, the
Appeals Chamber will not exercise its discretion to compare the two cases. 4252

Public confidence in the integrity of the administration of criminal justice

depends, at least in part, in consistency of punishment. This means that as the
jurisprudence of the Tribunal reaches the stage where a range or pattern of sentences
imposed in relation to similar offences and circumstances emerges, a Trial Chamber
would be obliged to consider that pattern. Whilst the Trial Chamber will not be bound by
that pattern, it must at least consider it, in order to ensure that the sentence it imposes
does not produce an unjustified disparity which may erode public confidence in the
integrity of the Tribunal’s administration of criminal justice. 4253

Where a sentence is out of reasonable proportion to sentences imposed in similar

cases, it may be thought to be capricious or excessive. 4254

A trial chamber is under no obligation to expressly compare the case of one

accused to that of another. However, a disparity between sentences rendered in similar
cases may be considered capricious or excessive, hence warranting the intervention of the
Appeals Chamber, if it is out of reasonable proportion with a line of sentences passed in
similar circumstances for the same offences. 4255

4248
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Judgement (28 February 2005) at para. 681
4249
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 23;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1064
4250
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3341
4251
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 38;
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para, 381; Prosecutor v Natelic &
Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 615
4252
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 33
4253
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 757.
4254
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 39
4255
Prosecutor v Prlic et al, No. IT-04-74-A, Judgement (29 November 2017) at para. 3340

682
 It remains that a disparity out of reasonable proportion between an impugned
sentence and another sentence rendered in a like case may give rise to an inference that
the Trial Chamber failed to exercise its discretion properly in applying the law on
sentencing.4256

The Appeals Chamber will not compare the sentence of the accused with that of a
person whose sentence has not yet been reviewed on appeal.4257

When the Trial Chamber determines that the level of participation in the
commission of the crime and the mitigating factors are different, it is justified in
imposing different sentences.4258

Trial Chamber erred in failing to make individual assessment of the circumstances

of the accused and the gravity of the crimes when imposing sentence in multiple accused
case. 4259

Although sentences received by subordinates may be a factor to be considered

when determining the sentence of a commander, this should not derogate from the Trial
Chamber’s primary responsibility concerning sentencing to tailor the penalties to fit the
individual circumstances of the accused. 4260

sentencing purposes

The purposes of punishment recognised under the jurisprudence of the Tribunal

are retribution, deterrence and rehabilitation. 4261

General deterrence is the presumption that punishment will also have the effect of
discouraging others, including commanders, from committing the same kind of crime
under statute.4262

Individual deterrence aims at the effect upon the sentence upon an accused, which
should be adequate to dishearten him from re-offending.4263

Individual deterrence is not a mitigating factor; it instead is a sentencing factor

which, when relevant, is considered in imposing a penalty to enhance, but not to reduce, a

4256
Prosecutor v. Milosevic, No. IT-98-29/1-A, Judgement (12 November 2009) at para. 327
4257
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 51;
Prosecutor v Natelic & Martinovic, No. IT-98-34-A, Judgement (3 May 2006) at para. 617
4258
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 47
4259
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 1839
4260
Prosecutor v Popovic et al, No. IT-05-88-A, Judgement (30 January 2015) at para. 1998
4261
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 817;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1073
4262
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 823;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1078
4263
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1077

683
sentence. A finding that individual deterrence does not apply cannot therefore prejudice
an accused.4264

A Trial Chamber should not give “undue prominence” to deterrence in its overall
assessment of an appropriate sentence. 4265

Rehabilitation may take place through the trial process through reflection – and
hearing the victims testify – and can inspire tolerance and understanding of “the other”,
thereby reducing the risk of recidivism. Reconciliation and peace would thereby be
promoted. However, the rehabilitative purpose of sentencing will not be given undue
prominence in determining the sentence.4266

Retribution is the expression of condemnation and outrage of the international

community at such grave violations of, and disregard for, fundamental human rights at a
time that people may be at their most vulnerable, namely during armed conflict. It is also
recognition of the harm and suffering caused to the victims. 4267

Retribution as a purpose of punishment includes the concept that whatever

sentence is imposed on a convicted person amounts to an expression of condemnation by
the international community at the horrific nature of the crimes committed, and must
therefore be proportionate to his specific conduct.4268

standard of review

A Trial Chamber’s decision may be disturbed on appeal if it either erred in the

weighing process involved in the exercise of its discretion by taking into account what it
ought not to have, or erred by failing to take into account what it ought to have taken into
account.4269

Trial Chambers are vested with a broad discretion in determining an appropriate

sentence, due to their obligation to individualise the penalties to fit the circumstances of
the accused and the gravity of the crime. As a general rule, the Appeals Chamber will not
revise a sentence unless the Trial Chamber has committed a “discernible error” in
exercising its discretion or has failed to follow the applicable law. It is for the Appellant
to demonstrate how the Trial Chamber ventured outside its discretionary framework in
imposing his sentence.4270

4264
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 47
4265
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 22
4266
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 824;
Prosecutor v Kordic & Cerkez, No. IT-65-14/2-A, Judgement (17 December 2004) at para.1079
4267
Prosecutor v Blagojevic & Jokic, No. IT-02-60-T, Judgement (17 January 2005) at para. 818
4268
Prosecutor v Bralo, No. IT-95-17-S, Sentencing Judgement (7 December 2005) at para. 22
4269
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 9
4270
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 725; Prosecutor v Jokic,
No. IT-01-42/1-A, Judgement on Sentencing Appeal (30 August 2005) at para. 8; Prosecutor v Nikolic, No.
IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 8

684
 The Appeals Chamber will not consider mitigating circumstances which were not
presented to the Trial Chamber in the first instance.4271

The trial chamber erred in his exercise of discretion in imposing sentence. That
error consisted of giving insufficient weight to the gravity of the conduct of the Appellant
and failing to treat his position as commander as an aggravating feature in relation to his
responsibility under Article 7(1) of the Statute. The sentence imposed by the Trial
Chamber was manifestly inadequate.4272

The Trial Chamber erred in determining a sentence by taking into account the
time the accused would actually serve in prison. 4273

Translation error of defence counsel’s remarks led to error in the sentencing

judgement and required revision of the sentence. 4274

By imposing a minimum sentence of 20 years, the Trial Chamber acted ultra vires
in imposing a review obligation on the Host State and therefore committed a discernible
error.4275

Where a sentence is successfully appealed on the basis of being either manifestly

excessive or manifestly inadequate, it is open to the Appeals Chamber to consider and
substitute its own sentence without remitting the matter to the Trial Chamber. 4276

suspension of sentence

A Trial Chamber has the power to suspend the execution of all or part of a
sentence. Such power is operative at the time of imposition of sentence and not
thereafter, when the rules governing pardon and commutation apply. 4277

Rule 102—status of the convicted person

(A) The sentence shall begin to run from the day it is pronounced. However, as soon
as notice of appeal is given, the enforcement of the judgement shall thereupon be
stayed until the decision on the appeal has been delivered, the convicted person
meanwhile remaining in detention, as provided in Rule 64.
(B) If, by a previous decision of the Trial Chamber, the convicted person has been
released, or is for any other reason at liberty, and is not present when the judgement
is pronounced, the Trial Chamber shall issue a warrant for the convicted person’s

4271
Prosecutor v Babic, No. IT-03-72-A, Judgement on Sentencing Appeal (18 July 2005) at para. 62;
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 150
4272
Prosecutor v Aleskosvski, No IT-95-14/1-T, Judgement (24 March 2000) at para. 187; Prosecutor v
Galic, No. IT-98-29-A, Judgement (30 November 2006) at para. 455
4273
Prosecutor v Nikolic, No. IT-94-2-A, Judgement on Sentencing Appeal (4 February 2005) at para. 97
4274
Prosecutor v Nikolic, No. IT-02-60/1-A, Judgement on Sentencing Appeal (8 March 2006) at para. 72
4275
Prosecutor v Stakic, No. IT-97-24-A, Judgement (22 March 2006) at para. 393
4276
Prosecutor v. Delalic, No. IT-96-21-A, Judgement (20 February 2001) at para 851.
4277
Prosecutor v Rasic, No. IT-98-32/1-R77.2-A, Judgement (16 November 2012) at para. 17

685
arrest. On arrest, the convicted person shall be notified of the conviction and
sentence, and the procedure provided in Rule 103 shall be
followed.

Rule 103—place of imprisonment

(A) Imprisonment shall be served in a State designated by the President of the

Tribunal from a list of States which have indicated their willingness to accept
convicted persons
(B) Transfer of the convicted person to that State shall be effected as soon as
possible after the time-limit for appeal has elapsed.
(C) Pending the finalisation of arrangements for his or her transfer to the State
where his or her sentence will be served, the convicted person shall remain in the
custody of the Tribunal.

Rule 104—supervision of imprisonment

All sentences of imprisonment shall be supervised by the Tribunal or a body

designated by it.

Rule 105—restitution of property

(A) After a judgement of conviction containing a specific finding as provided in

Rule 98 ter (B), the Trial Chamber shall, at the request of the Prosecutor, or may,
proprio motu, hold a special hearing to determine the matter of the restitution of the
property or the proceeds thereof, and may in the meantime order such provisional
measures for the preservation and protection of the property or proceeds as it
considers appropriate.
(B) The determination may extend to such property or its proceeds, even in the
hands of third parties not otherwise connected with the crime of which the convicted
person has been found guilty.
(C) Such third parties shall be summoned before the Trial Chamber and be given
an opportunity to justify their claim to the property or its proceeds.
(D) Should the Trial Chamber be able to determine the rightful owner on the
balance of probabilities, it shall order the restitution either of the property or the
proceeds or make such other order as it may deem appropriate.
(E) Should the Trial Chamber not be able to determine ownership, it shall notify the
competent national authorities and request them so to determine.
(F) Upon notice from the national authorities that an affirmative determination has
been made, the Trial Chamber shall order the restitution either of the property
or the proceeds or make such other order as it may deem appropriate.
(G) The Registrar shall transmit to the competent national authorities any
summonses, orders and requests issued by a Trial Chamber pursuant to paragraphs
(C), (D), (E) and (F).

686
Rule 106—compensation to victims

(A) The Registrar shall transmit to the competent authorities of the States
concerned the judgement finding the accused guilty of a crime which has caused
injury to a victim.
(B) Pursuant to the relevant national legislation, a victim or persons claiming
through the victim may bring an action in a national court or other competent
body to obtain compensation.
(C) For the purposes of a claim made under paragraph (B) the judgement of the
Tribunal shall be final and binding as to the criminal responsibility of the
convicted person for such injury.

Rule 107—general provision

The rules of procedure and evidence that govern proceedings in the Trial Chambers
shall apply mutatis mutandis to proceedings in the Appeals Chamber.

Rule 108—notice of appeal

A party seeking to appeal a judgement shall, not more than thirty days from
the date on which the judgement was pronounced, file a notice of appeal, setting
forth the grounds. The Appellant should also identify the order, decision or ruling
challenged with specific reference to the date of its filing, and/or the transcript page,
and indicate the substance of the alleged errors and the relief sought. The Appeals
Chamber may, on good cause being shown by motion, authorise a variation of the
grounds of appeal.

scope

Rule 108 applies only to appeals after final judgement. 4278

variation of grounds of appeal

A motion to vary the grounds of appeal should be submitted as soon as possible

after identifying the new alleged error or after discovering any other basis for seeking a
variation of the notice of appeal. 4279

The following factors, among others, are considered in determining whether good
cause exists for varying the grounds of appeal: (1) the variation is minor and it does not
affect the content of the notice of appeal; (2) the opposing party would not be prejudiced

4278
Prosecutor v Nikolic, No. IT-94-2-AR72, Decision on Notice of Appeal (9 January 2003)
4279
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Dragoljub Ojdanic’s Second Motion to
Amend his Notice of Appeal (4 December 2009) at para. 5

687
by the variation or has not objected to it; (3) the variation would bring the notice of
appeal in conformity with the appellant’s brief. 4280

In certain exceptional cases, where failure to include new or amended grounds of

appeal resulted from counsel’s negligence or inadvertence, a variation can be allowed
without a showing of good cause.4281

The variation sought without good cause must be of substantial importance to the
success of the appeal such as to fail to include it would lead to a miscarriage of
justice. 4282

Amendment to notice of appeal allowed to appeal mens rea issue for aiding and
abetting when intervening decision of US court held that ICTY standard for mens rea was
not in conformance with customary international law. Although counsel should have
raised the issue even before the US decision, the failure to do so should not deprive the
accused of having this important issue determined on appeal. 4283

An appellant seeking to argue matters not contained in his notice of appeal must
move to amend that notice. Otherwise, the arguments will not be considered. However,
where the appellant reserved his right to raise additional issues and the prosecution was
not prejudiced, the Appeals Chamber would consider an issue not included in the notice
of appeal. 4284

Amendments to the notice of appeal will be granted only (1) upon a showing of
good cause; (2) if they remedy previous counsel’s negligence or inadvertence and are of
substantial importance to the success of the appeal; or (3) if they otherwise correct
ambiguity or error made by the previous counsel and do not unduly delay the
proceedings.4285

Addition of ground of appeal relating to impact on fair trial rights of Judge’s letter
evidencing appearance of bias was granted in the unique circumstances of the case where
the letter was published after the notice of appeal and where the addition of the issue
would not substantially delay the appeal or prejudice the prosecution. 4286

4280
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Dragoljub Ojdanic’s Second Motion to
Amend his Notice of Appeal (4 December 2009) at para. 6
4281
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Dragoljub Ojdanic’s Second Motion to
Amend his Notice of Appeal (4 December 2009) at para. 7
4282
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Dragoljub Ojdanic’s Second Motion to
Amend his Notice of Appeal (4 December 2009) at para. 7
4283
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Dragoljub Ojdanic’s Second Motion to
Amend his Notice of Appeal (4 December 2009) at para. 17
4284
Prosecutor v Deronjic, No. IT-02-61-A, Judgement on Sentencing Appeal (20 July 2005) at para. 102
4285
Prosecutor v. Blagojevic & Jokic, No. IT-02-60-A, Decision on Motion of Dragan Jokic for Leave to
File Third Amended Notice of Appeal and Amended Appellate Brief (26 June 2006) at para. 11
4286
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Motion Seeking Leave
to Amend Notice of Appeal (14 April 2014) at para. 23; Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A,
Decision on Zupljanin’s Second Request to Amend his Notice of Appeal and Supplement his Appeal Brief
(14 April 2014) at para. 17

688
 Revisions to the appeal brief will be permitted only (1) as necessary to reflect the
amendments to the notice of appeal; or (2) as necessary to correct ambiguity or error in
the previous counsel’s filings, without unduly delaying the proceedings. 4287

Change of counsel constituted good cause to vary grounds of appeal. 4288

Rule 108 bis—State request for review

(A) A State directly affected by an interlocutory decision of a Trial Chamber may,

within fifteen days from the date of the decision, file a request for review of the
decision by the Appeals Chamber if that decision concerns issues of general
importance relating to the powers of the Tribunal.
(B) The party upon whose motion the Trial Chamber issued the impugned decision
shall be heard by the Appeals Chamber. The other party may be heard if the
Appeals Chamber considers that the interests of justice so require.
(C) The Appeals Chamber may at any stage suspend the execution of the impugned
decision.
(D) Rule 116 bis shall apply mutatis mutandis.

Rule 108 bis does not apply to decisions of a confirming Judge, rather than a Trial
Chamber.4289

Rule 108 bis review is available to a State which can show that it is directly
affected by an interlocutory decision of a Trial Chamber and that the issue is of general
importance relating to the power of the International Tribunal. 4290

The State’s legal rights are not affected by an order to an arrest an accused person.
Rule 108 bis applies to a State’s legal rights, not its political ones. 4291

The State’s legal rights are not affected by a decision denying provisional release
of an accused who had the guarantee of that State and therefore a State cannot appeal the
denial of provisional release under Rule 108 bis.4292

4287
Prosecutor v. Blagojevic & Jokic, No. IT-02-60-A, Decision on Motion of Dragan Jokic for Leave to
File Third Amended Notice of Appeal and Amended Appellate Brief (26 June 2006) at para. 11
4288
Prosecutor v Boskoski & Tarculovski, No. IT-04-82-A, Decision on Tarkulovski’s Motion for Leave to
Present Appellate Arguments in Order Different from that Presented in Notice of Appeal…(26 March 2009)
at para. 25
4289
Prosecutor v Bobetko, No. IT-02-62-AR54 bis, Decision on Challenge by Croatia to Decision and
Orders of Confirming Judge (29 November 2002) at para. 9
4290
Prosecutor v Blaskic, No. IT-95-14-AR108bis, Decision on the Notice of State Request for Review of
Order on the Motion of the Prosecutor for the Issuance of a Binding Order on the Republic of Croatia for
the Production of Documents and Request for Stay of Trial Chamber’s Order of 30 January 1998 (26
February 1998)
4291
Prosecutor v Bobetko, No. IT-02-62-AR54 bis, Decision on Challenge by Croatia to Decision and
Orders of Confirming Judge (29 November 2002) at para. 11
4292
Prosecutor v Gotovina et al, No. IT-06-90-AR108 bis.2, Decision on Croatia’s Request for Review of
the Trial Chamber’s Decision on Provisional Release (17 January 2008)

689
 Denial of request to appear as amicus curiae did not directly affect the State’s
legal rights and therefore State could not use Rule 108 bis to appeal that decision.4293

Request for review of order to disclose wiretap interceptions was admissible as it

directly affected an important issue of the State and was of general importance to the
jurisprudence of the Tribunal. 4294

Rule 109—record on appeal

The record on appeal shall consist of the trial record, as certified by the Registrar.

Rule 110—copies of record

The Registrar shall make a sufficient number of copies of the record on appeal
for the use of the Judges of the Appeals Chamber and of the parties.

Rule 111—appellant’s brief

(A) An Appellant’s brief setting out all the arguments and authorities shall be filed
within seventy-five days of filing of the notice of appeal pursuant to Rule 108.
Where limited to sentencing, an Appellant’s brief shall be filed within thirty
days of filing of the notice of appeal pursuant to Rule 108.
(B) Where the Prosecutor is the Appellant, the Prosecutor shall make a declaration
in the Appellant’s brief that disclosure has been completed with respect to the
material available to the Prosecutor at the time of filing the brief.

disclosure

Prosecution was required to file certification under Rule 111(B) that it had
complied with its disclosure obligations in appeal from judgement of acquittal under Rule
98 bis. Its failure to do so required that it file a corrigendum to its brief. 4295

Rule 112—respondent’s brief

(A) A Respondent’s brief of argument and authorities shall be field within forty
days of filing of the Appellant’s brief. Where limited to sentencing, a Respondent’s
brief shall be filed within thirty days of filing of the Appellant’s brief.
(B) Where the Prosecutor is the Respondent, the Prosecutor shall make a

4293
Prosecutor v Gotovina et al, No. IT-06-90-AR108bis.1, Decision on Prosecution Motion to Strike
Request for Review Pursuant to Rule 108 bis (13 December 2006); Prosecutor v Prlic et al. No. IT-04-74-
AR108bis.1, Decision on Prosecution Motion to Strike Request for Review Pursuant to Rule 108 bis (13
December 2006)
4294
Prosecutor v Milutinovic et al, No. IT-05-87-AR108bis.2, Decision on Request of United States of
America for Review (12 May 2006) at para. 10
4295
Prosecutor v Karadzic, No. IT-95-5/18-AR98bis.1, Decision on Motion to Strike Prosecution’s Brief (9
November 2012)

690
declaration in the Respondent’s brief that disclosure had been completed with
respect to the material available to the Prosecutor at the time of filing the brief.

Failure to provide a book of authorities did not require a sanction or remedy

where the citations to te authorities were sufficiently clear.4296

Rule 113—brief in reply

An Appellant may file a brief in reply within fifteen days of filing of the
Respondent’s brief. Where limited to sentencing, a brief in reply shall be filed
within ten days of filing of the Respondent’s brief.

supplemental authorities

After the filing of the reply brief, a party may file supplementary authorities to
bring its briefs up to date provided that the issue has already been raised by the party’s
briefs and the supplemental authorities only became available after the filing of the
briefs.4297

Rule 114—date of hearing

After the expiry of the time-limits for filing the briefs provided for in Rules 111, 112
and 113, the Appeals Chamber shall set the date for the hearing and the Registrar
shall notify the parties.

Rule 115—additional evidence

(A) A party may apply by motion to present additional evidence before the
Appeals Chamber. Such motion shall clearly identify with precision the specific
finding of fact made by the Trial Chamber to which the additional evidence is
directed, and must be served on the other party and filed with the Registrar not
later than thirty days from the date for filing of the brief in reply, unless good cause
or, after the appeal hearing, cogent reasons are shown for a delay. Rebuttal material
may be presented by any party affected by the motion. Parties are permitted to file
supplemental briefs on the impact of the additional evidence within fifteen days of
the expiry of the time limit set for the filing of rebuttal material, if no such material
is filed, or if rebuttal material is filed, within fifteen days of the decision on the
admissibility of that material.
(B) 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

4296
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 103
4297
Prosecutor v Oric, No. IT-03-68-A, Decision on Prosecution’s Notice of Supplemental Authority (14
May 2007); Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Decision on Prosecution’s Request for
Leave to File Supplemental Authority (15 November 2013)

691
along with that already on the record to arrive at a final judgement in accordance
with Rule 117.
(C) The Appeals Chamber may decide the motion prior to the appeal, or at the time
of the hearing on appeal. It may decide the motion with or without an oral hearing.
(D) If several defendants are parties to the appeal, the additional evidence admitted
on behalf of any one of them will be considered with respect to all of them, where
relevant.

credibility

A determination that evidence would be credible under Rule 115 does not mean
that witness statements containing inconsistencies will be necessarily excluded. What is
important is that it appears to be capable of belief or reliance. 4298

The most appropriate course was to apply a relatively low threshold for credibility
in admitting additional evidence, with the issue of its weight being decided at a later
stage. However, the Appeals Chamber acknowledged there were instances where
credibility had to be determined by hearing witnesses in open court where they could be
subjected to cross-examination4299

Testimony given under oath at a subsequent ICTY trial was prima facie credible
for purposes of admission under Rule 115. 4300

delay in filing motion

The Appeals Chamber will not grant an extension of time in which to file a Rule
115 motion. Rather it will assess whether there was good cause for the delay after the
motion is filed.4301

In order for a motion filed outside the 75 day deadline to be considered as validly
filed, it must be demonstrated that the applicant was not able to comply with the time
limit and submitted the motion as soon as possible after becoming aware of the new
evidence.4302

4298
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on the Motions of Appellants Vlatko Kupreskic,
Drago Josipovic, Zoran Kupreskic, and Mirjan Kupreskic to Admit Additional Evidence (26 February
2001) at para. 28
4299
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 63
4300
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Third and Fifth Motions
for Admission of Additional Evidence on Appeal Pursuant to Rule 115 (23 May 2014) at para. 28
4301
Prosecutor v Galic, No. IT-98-29-A, Decision on Defence Motion Regarding New Evidence (14 July
2006) at para. 4
4302
Prosecutor v Natelic and Martinovic,, No. It-98-34-A, Decision on Natelic’s Amended Second Rule 115
Motion and Third Rule 115 Motion to Present Additional Evidence (7 July 2005) at para. 10; Prosecutor v
Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Second Motion Seeking Admission of
Additional Evidence Pursuant to Rule 115 (11 February 2015) at para. 17

692
 Failure to explain delay between time material sought to be admitted was obtained
and time motion was filed required that motion be denied. 4303

Good cause not shown where information from Sarajevo could have been
obtained earlier and the motion was not filed as soon as possible after the information,
and its translation became available. 4304

Accused failed to provide cogent reasons for seven month delay in filing motion
to admit new evidence from the time the evidence became publicly available and
therefore motion to admit evidence on appeal was denied. 4305

Accused failed to provide good cause for not filing motion earlier where material
was disclosed one year before the motion filed. However, motion based on material
which became available one month before motion filed was properly considered as
timely. 4306

An applicant's litigation strategy does not relieve the applicant of his/her

obligation under Rule 115 of the Rules to seek admission of additional evidence on
appeal "as soon as possible" after becoming aware of the existence of the evidence in
question. 4307

Rule 115 motion was untimely where counsel delayed in filing motion for seven
months after testimony was available to him while waiting for correction of transcripts
and resolution of other interlocutory issues in the appeal. 4308

The occupation of defence counsel with other matters may justify a delay in
exceptional circumstances. However, when accepting assignment as Lead Counsel, a
defence counsel is under an obligation to give absolute priority to observe the time limits
forseen in the Rules. 4309

evidence not available at trial

In order to have additional evidence admitted on appeal, the moving party is

required to establish that the evidence itself was not available at trial in any form, and

4303
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Sixth Motion for
Admission of Evidence on Appeal Pursuant to Rule 115 (22 July 2014) at p. 3
4304
Prosecutor v Natelic and Martinovic,, No. It-98-34-A, Decision on Natelic’s Amended Second Rule 115
Motion and Third Rule 115 Motion to Present Additional Evidence (7 July 2005) at para. 23
4305
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Eighth Motion Pursuant to
Rule 115 (29 April 2014) at p. 2
4306
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Third and Fifth Motions
for Admission of Additional Evidence on Appeal Pursuant to Rule 115 (23 May 2014) at paras. 20-21
4307
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Second Motion
Seeking Admission of Additional Evidence Pursuant to Rule 115 (11 February 2015) at para. 21
4308
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Second Motion
Seeking Admission of Additional Evidence Pursuant to Rule 115 (11 February 2015) at para. 22
4309
Prosecutor v Natelic and Martinovic,, No. It-98-34-A, Decision on Natelic’s Amended Second Rule 115
Motion and Third Rule 115 Motion to Present Additional Evidence (7 July 2005) at para. 24

693
could not have been discovered through the exercise of due diligence. The party must
show that it made use of all mechanisms of protection and compulsion available under
the Statute and the Rules to bring the evidence before the Trial Chamber. 4310

However, the Appeals Chamber has inherent power to admit evidence that was
available at trial if its exclusion would lead to a miscarriage of justice. 4311

An exception to the requirement unavailability of the evidence at trial exists

where it can be shown the counsel was grossly negligent at trial. 4312

The public nature of a document can have a bearing on the unavailability at

trial. 4313

The due diligence requirement will be waived if it is shown that the failure to
produce the evidence at trial was the result of counsel’s gross negligence. A mere
mistake does not constitute gross negligence. Tactical decisions not to obtain the
evidence do not constitute gross negligence. 4314

Where the prosecution makes a person a prosecution witness, then decides not to
call that person as a witness, leaving the defence little time to enable the defence to make
arrangements to call the witness in its case, evidence subsequently learned from that
witness was “not available” at trial. 4315

Documents were not available at trial through the exercise of due diligence where
the prosecution announced its intention to rely on evidence of 1998 events relatively late

4310
Prosecutor v Galic, No. IT-98-29-A, Decision on Defence Second Motion for Admission of Additional
Evidence Pursuant to Rule 115 (21 March 2005) at para. 9; Prosecutor v Galic, No. IT-98-29-A Decision
on First and Third Rule 115 Defence Motions to Present Additional Evidence before the Appeals Chamber
(30 June 2005) at para 13; Prosecutor v Natelic and Martinovic,, No. It-98-34-A, Decision on Natelic’s
Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence (7 July
2005) at para. 11; Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion
to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115 (16 November 2005) at
para. 8; Prosecutor v Nikolic, No. IT-02-60-1/A, Decision on Motion to Admit Additional Evidence (9
December 2004) at para. 21
4311
Prosecutor v Jelesic, No. IT-95-10-A, Decision on Motion to Admit Additional Evidence (15 November
2000)
4312
Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit
Additional Evidence Before the Appeals Chamber Pursuant to Rule 115 (16 November 2005) at para. 9;
Prosecutor v Krajisnik, No. IT-00-39-A, Decision on Momcilio Krajisnik’s Motion to Present Additional
Evidence (20 August 2008) at para. 21
4313
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Request to Present
Additional Evidence Under Rule 115 (3 March 2006) at para. 16
4314
Prosecutor v Nikolic, No. IT-02-60-1/A, Decision on Motion to Admit Additional Evidence (9
December 2004) at para. 40
4315
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on the Motions of Appellants Vlatko Kupreskic,
Drago Josipovic, Zoran Kupreskic, and Mirjan Kupreskic to Admit Additional Evidence (26 February
2001) at para. 55

694
in the pre-trial phase and therefore it is plausible that the defence did not have sufficient
time to obtain them during the trial. 4316

Letter from UNMIK that it has no information that accused was a danger to
witnesses, and university document concerning the accused could have had an effect on
Trial Chamber’s provisional release decision and was admitted on appeal. 4317

A document discovered after the case is submitted to the Trial Chamber for
judgement is nevertheless available at trial and should be addressed by a motion to
reopen one’s case. Therefore, for purposes of Rule 115, the document is considered as
having been available at trial. 4318

Where archives became available to the parties after the conclusion of the trial,
the documents sought to be admitted on appeal were not available through the use of due
diligence.4319

Where appointment book was disclosed near the end of the trial and revealed the
existence of a meeting between President Karadzic and General Milovanovic at the
relevant time, the defence did not exercise due diligence to learn the content of that
meeting by moving to recall General Milovanovic and therefore the subsequent
disclosure of his notes of that meeting was not evidence unavailable at trial. 4320

Information contained in statement was discoverable with due diligence at trial

where identical information was contained in material which had been disclosed prior to
trial. 4321

There is a strong presumption that counsel at trial acted with due diligence. Gross
negligence must be shown in fact and its prejudice to the interests of justice shown—that
is, that the evidence would have changed the outcome of the trial. 4322

4316
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Nebojsa Pavkovic’s Motion to Admit
Additional Evidence (12 February 2010) at para. 23
4317
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Request to Present
Additional Evidence Under Rule 115 (3 March 2006) at paras. 28, 39
4318
Prosecutor v Blagojevic & Jokic, No. IT-02-60-A, Decision on Appellant Vidoje Blagojevic’s Motion
for Additional Evidence Pursuant to Rule 115(21 July 2005) at para. 10; Prosecutor v Popovic et al, No.
IT-05-88-A, Decision on Vujadin Popovic’s Motion for Admission of Additional Evidence on Appeal
Pursuant to Rule 115 (20 October 2011) at para. 36
4319
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on the Motions of Appellants Vlatko Kupreskic,
Drago Josipovic, Zoran Kupreskic, and Mirjan Kupreskic to Admit Additional Evidence (26 February
2001) at para. 61
4320
Prosecutor v Popovic et al. No. IT-05-88-A, Decision on Radivoje Miletic’s First and Second Motions
for Admission of Additional Evidence on Appeal Pursuant to Rule 115 (15 April 2013) at para. 32
4321
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Valentin Coric’s Motion for Admission of
Additional Evidence on Appeal pursuant to Rule 115 (20 April 2016) at para. 13
4322
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on the Admission of Additional Evidence
Following Hearing of 30 March 2001 (11 April 2001) at paras. 23-34

695
 impact on the trial

Evidence which was not available at trial or through the exercise of due diligence
will be admitted if relevant to a material issue, is credible, and could have had an impact
on the verdict. Evidence that was or could have been available at trial will only be
admitted if it would have affected the verdict.4323

The more appropriate standard for the admission of additional evidence under
Rule 115 on appeal is whether that evidence “could” have had an impact on the verdict,
rather than whether it “would probably ” have done so.4324

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 appeal
proceedings. 4325

The evidence must be such that, in the case of a request by a defendant, when
considered in context of the evidence given at trial, it could show the conviction was
unsafe. 4326

An applicant must identify each ground of appeal to which the additional

evidence relates and clearly describe the relationship of the evidence to the respective
ground of appeal, identify with precision the ruling of the Trial Chamber to which the
additional evidence relates, and demonstrate the impact of the additional evidence on the
Trial Chamber’s ruling.4327

Rule 115 motion denied where accused failed to identify with precision the
factual finding of the Trial Chamber to which the new evidence related. Reference to
grounds of appeal does not suffice. 4328

The matters sought to be admitted could not have affected the Trial Chamber’s
judgement.4329

4323
Prosecutor v Galic, No. IT-98-29-A, Decision on Defence Second Motion for Admission of Additional
Evidence Pursuant to Rule 115 (21 March 2005) at para. 14; Prosecutor v Natelic and Martinovic,, No. It-
98-34-A, Decision on Natelic’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present
Additional Evidence (7 July 2005) at para. 12-13; Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision
on the Admission of Additional Evidence Following Hearing of 30 March 2001 (11 April 2001) at para. 6
4324
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 68
4325
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 76
4326
Prosecutor v Galic, No. IT-98-29-A Decision on First and Third Rule 115 Defence Motions to Present
Additional Evidence before the Appeals Chamber (30 June 2005) at para 14
4327
Prosecutor v Natelic and Martinovic,, No. It-98-34-A, Decision on Natelic’s Amended Second Rule 115
Motion and Third Rule 115 Motion to Present Additional Evidence (7 July 2005) at para. 15; Prosecutor v
Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence
Before the Appeals Chamber Pursuant to Rule 115 (16 November 2005) at para. 10
4328
Prosecutor v Galic, No. IT-98-29-A Decision on Defence Motion to Present Additional Evidence (28
August 2006)

696
 Testimony of accused at subsequent trial could not have affected the verdict in his
own trial where it was not substantially different than his interview with the prosecution
which had been admitted at his trial. 4330

Letter written by judge of Trial Chamber after appeal was filed concerning his
understanding of the JCE doctrine could have had an impact on the verdict by allowing
the accused to seek to disqualify him for appearance of bias and therefore was admissible
pursuant to Rule 115.4331

Statement of witness who recanted his identification of the accused at an

execution not admitted where it was not crucial to Trial Chamber’s finding that he
participated in JCE for genocide. 4332

Documents and expert reports which bore on the issue of whether shells landing
further away than 200 meters from a military object were indiscriminate should have
been produced at trial as the issue was reasonably forseeable to the defence and would
not have affected the judgement in any event. Therefore, they will not be admitted on
appeal as additional evidence. 4333

Testimony of witness who was present at scene of execution and did not see the
accused did not fatally undermine finding that accused participated in the executions, or
the credibility of the witness who placed him there, such as to find that the verdict of the
Trial Chamber would have been different. Therefore the evidence is not admissible
pursuant to Rule 115.4334

4329
Prosecutor v Natelic and Martinovic,, No. It-98-34-A, Decision on Natelic’s Amended Second Rule 115
Motion and Third Rule 115 Motion to Present Additional Evidence (7 July 2005) at para. 42,46,59;
Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit
Additional Evidence Before the Appeals Chamber Pursuant to Rule 115 (16 November 2005); Prosecutor v
Milosevic, No. IT-98-29/1-A, Decision on Dragomir Milosevic’s Third Motion to Present Additional
Evidence (8 September 2009) at para. 20; Prosecutor v Popovic et al. No. IT-05-88-A, Decision on
Radivoje Miletic’s First and Second Motions for Admission of Additional Evidence on Appeal Pursuant to
Rule 115 (15 April 2013) at para. 36
4330
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Second Motion
Seeking Admission of Additional Evidence Pursuant to Rule 115 (11 February 2015) at para. 24
4331
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Motion Seeking
Admission of Additional Evidence Pursuant to Rule 115 (14 April 2014) at paras. 22-23
4332
Prosecutor v Popovic et al, No. IT-02-88-A, Decision on Drago Nikolic’s First Motion for Admission
of Additional Evidence on Appeal (19 November 2013) at p. 5; Prosecutor v Popovic et al, No. IT-02-88-A,
Decision on Drago Nikolic’s Fourth Motion for Admission of Additional Evidence on Appeal… (3
September 2014) at p. 3
4333
Prosecutor v Gotovina & Markac, No. IT-06-90-A, Decision on Ante Gotovina’s and Mladen Markac’s
Motions for Admission of Additional Evidence on Appeal (2 October 2012) at paras. 41, 44
4334
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Third and Fifth Motions
for Admission of Additional Evidence on Appeal Pursuant to Rule 115 (23 May 2014) at paras. 32-33

697
 Alleged new evidence would not have affected the verdict where it did not affect
the issue of the accused’s knowledge and acceptance of mistreatment of detainees and
where finding on accused’s participation in the JCE was also based upon other events. 4335

If the new evidence does not relate to findings material to the conviction or
sentence, in the sense that those findings were crucial or instrumental to the conviction or
sentence, then the new evidence is not capable of demonstrating that a miscarriage of
justice had been occasioned, and thus will not be admitted.4336

obligation to raise before Trial Chamber

The Rule 115 moving party’s duty to act with due diligence includes making
appropriate use of all mechanisms of protection and compulsion available under the
Statute and the Rules to bring evidence on behalf of an accused before the Trial
Chamber. The applicant is therefore expected to apprise the Trial Chamber of all the
difficulties he encounters in obtaining the evidence in question. 4337

Counsel must bring any difficulties in relation to obtaining evidence, including

those arising from intimidation or inability to locate a witness, to the attention of the Trial
Chamber. The party must also seek relief from the Trial Chamber to compel an
uncooperative prospective witness to cooperate.4338

The defence cannot fail to produce evidence because they assume that the Trial
Chamber will reject the evidence of a prosecution witness. The defence must make its
best case in the first instance. If it fails to do so, the additional evidence will not be
admitted pursuant to Rule 115.4339

Where defence counsel are gathering evidence in support of an accused’s defence,

either at a pre-trial stage or during the course of a trial, and are aware of a potential
witness and decide not to approach that person, for whatever reason, whether because
counsel believe that the potential witness will not cooperate, or the witness may be

4335
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Valentin Coric’s Motion for Admission of
Additional Evidence on Appeal pursuant to Rule 115 (20 April 2016) at paras. 21-22
4336
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 62
4337
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Third and Fifth Motions
for Admission of Additional Evidence on Appeal Pursuant to Rule 115 (23 May 2014) at para. 7
4338
Prosecutor v Galic, No. IT-98-29-A Decision on First and Third Rule 115 Defence Motions to Present
Additional Evidence before the Appeals Chamber (30 June 2005) at para 13; Prosecutor v Nikolic, No. IT-
02-60-1/A, Decision on Motion to Admit Additional Evidence (9 December 2004) at para. 21
4339
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on the Admission of Additional Evidence
Following Hearing of 30 March 2001 (11 April 2001) at para. 12; Prosecutor v Kupreskic et al, No. IT-95-
16-A, Decision on Motions by Drago Josipovic, Zoran Kupreskic, and Vlatko Kupreskic to Admit
Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B) (8
May 2001) at para. 10

698
placed in an invidious position, when the accused is subsequently convicted by the Trial
Chamber, the defence cannot claim that the witness was “not available” at trial within the
meaning of Rule 115, or ask for that witness to be called at the appellate stage.4340

procedure

Rule 117 instructs the Appeals Chamber to pronounce judgement on the basis of
the record on appeal along with any additional evidence it has received. This suggests
that, even if the decision to admit the evidence is made at the same time as the main
appeal, a two-step process is nonetheless envisioned in which new evidence, once
admitted, will then be assessed as to its effect upon the appeal as a whole. 4341

Where the Appeals Chamber determined that evidence should be admitted

pursuant to Rule 115, an evidentiary hearing was ordered to provide the opposing party
with the opportunity for cross-examination. 4342

Appeals Chamber may exercise its discretion as to whether to decide upon the
admissibility of additional evidence under Rule 115 during the pre-appeal phase of the
proceedings or, alternatively, at the same time as the appeal hearing. 4343

provisional release appeals

Rule 115 applies to appeals from decisions on provisional release.4344 In such

cases, the reply to such a motion is due within four days as provided by the practice
direction.4345

rebuttal material

Rebuttal material is admissible if it directly affects the substance of the additional

evidence admitted by the Appeals Chamber. 4346
4340
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on Motions by Drago Josipovic, Zoran
Kupreskic, and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial
Notice to be Taken Pursuant to Rule 94(B) (8 May 2001) at para. 10
4341
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 71
4342
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on the Admission of Additional Evidence
Following Hearing of 30 March 2001 (11 April 2001) at para. 31
4343
Prosecutor v Kupreskic et al, No. IT-95-16-A, Judgement (23 October 2001) at para. 76
4344
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR65.1, Decision on Prosecution’s Application
Under Rule 115 to Present Additional Evidence in its Appeal Against Provisional Release (11 November
2004) at para. 7; Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Motion for Clarification
of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings and
for an Extension of Time (22 November 2005); Prosecutor v Haradinaj et al, No. IT-04-84-AR65.2,
Decision on Lahi Brahimaj’s Request to Present Additional Evidence Under Rule 115 (3 March 2006) at
para. 9
4345
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.1, Decision on Motion for Clarification of the
Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings and for an
Extension of Time (22 November 2005)
4346
Prosecutor v Haradinaj et al, No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Request to Present
Additional Evidence Under Rule 115 (3 March 2006) at para. 44

699
 Rebuttal material has a different standard of admissibility than Rule 115 material.
When deciding on its admission, the Chamber will look only to whether it affects the
substance of the additional evidence, and will not consider issues concerning the
reliability and weight to be afforded to the material.4347

referral pursuant to Rule 11bis

Rule 115 is available on appeal from a decision to refer a case to national

authorities pursuant to Rule 11 bis.4348

replies

A party need not seek leave to reply to a response filed under this rule. 4349

sentencing

Where the appellant can demonstrate, upon the trial record, that the Trial
Chamber has made an appealable error, the admission of further evidence relating to the
appropriate sentence is within the discretion of the Appeals Chamber. The exercise of
that discretion is dependent mainly upon the nature of the error demonstrated. 4350

Where the nature of the error demonstrated is such that the Appeals Chamber is
replacing the sentence with another which, in its view, the Trial Chamber should have
imposed, further evidence will ordinarily not be admitted.4351

Where the nature of the error is such that it may be cured only by additional
sentences to be imposed (or a new single sentence to cover additional convictions), the
provisions of Rule 101(B) may apply to permit further relevant evidence to be adduced
where that evidence is not already before the Appeals Chamber. 4352

subpoenas

Where the appellant seeks the issuance of a subpoena to a prospective witness to

be interviewed in anticipation of tendering that person’s evidence on appeal pursuant to
Rule 115, the legitimate forensic purpose to be established is that there is a reasonable
basis for the belief that the prospective witness will be able to give information which
will materially assist him in relation to clearly identified issues arising in his appeal, that

4347
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Prosecution Motion to Admit Rebuttal
Material (11 June 2014) at para. 12
4348
Prosecutor v Mejakic et al, No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit
Additional Evidence Before the Appeals Chamber Pursuant to Rule 115 (16 November 2005) at para. 6
4349
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vujadin Popovic’s Sixth Motion for
Admission of Evidence on Appeal Pursuant to Rule 115 (22 July 2014) at fn. 3
4350
Prosecutor v Mucic et al, No. IT-96-21-Abis, Judgment on Sentence Appeal (8 April 2003) at para 11.
4351
Prosecutor v Mucic et al, No. IT-96-21-Abis, Judgment on Sentence Appeal (8 April 2003) at para 12.
4352
Prosecutor v Mucic et al, No. IT-96-21-Abis, Judgment on Sentence Appeal (8 April 2003) at para 14.

700
the defence has been unable to obtain the cooperation of the witness, and that it is at least
reasonably likely that an order would produce the degree of cooperation needed for the
defence to interview the witness. 4353

The Appeals Chamber has the inherent power to summon witnesses to give
evidence in Appeals proceedings. 4354

testimony in subsequent trials

A witness’ testimony in a subsequent trial will be deemed available to the accused

in the prior trial unless it contains information the witness learned after the prior trial.
However, inconsistencies between the testimony at the two trials would meet the criteria
of Rule 115 in that they were not available at the prior trial, provided it can be shown that
the inconsistency could or would have affected the verdict. 4355

The testimony of an appellant in another case, being sought to be tendered in his

own case on appeal, merely constitutes the appellant’s own version of events, which he
had the opportunity to present at the trial against him for the trial chamber to consider,
and as such does not qualify as additional evidence on appeal. 4356

Accused’s compelled testimony in subsequent trial not unavailable to him at his

own trial, where he elected not to testify, since the evidence was always within his
personal knowledge. 4357

Rule 116 bis—expedited appeals procedure

(A) An appeal under Rule 72 or Rule 73 or appeal from a decision rendered under
Rule 11 bis, Rule 54 bis, Rule 65, Rule 73 bis (E), Rule 77 or Rule 91 shall be heard
expeditiously on the basis of the original record of the Trial Chamber. Appeals may
be determined entirely on the basis of written briefs.
(B) Rules 109 to 114 shall not apply to such appeals.
(C) The Presiding Judge, after consulting the members of the Appeals Chamber,
may decide not to apply Rule 117 (D).

Rule 117—judgement on appeal

(A) The Appeals Chamber shall pronounce judgement on the basis of the record

4353
Prosecutor v Krstic, No. IT-98-33-A, Decision on Application for Subpoenas (1 July 2003) at para. 17
4354
Prosecutor v Kupreskic et al, No. IT-95-16-A, Decision on Motions by Drago Josipovic, Zoran
Kupreskic, and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial
Notice to be Taken Pursuant to Rule 94(B) (8 May 2001) at para. 5
4355
Prosecutor v Mrskic & Slivancanin, No. IT-95-13/1-A, Decision on Mile Mrskic’s Second Rule 115
Application (13 February 2009) at para. 15
4356
Prosecutor v Popovic et al, No. IT-05-88-A, Decision on Vijadin Popovic’s Seventh Motion for
Admission of Additional Evidence on Appeal pursuant to Ruke 115 (4 December 2014) at p. 2
4357
Prosecutor v Stanisic & Zupljanin, No. IT-08-91-A, Decision on Mico Stanisic’s Second Motion
Seeking Admission of Additional Evidence Pursuant to Rule 115 (11 February 2015) at para. 23

701
on appeal together with such additional evidence as has been presented to it.
(B) The judgement shall be rendered by a majority of the Judges. It shall be
accompanied or followed as soon as possible by a reasoned opinion in writing, to
which separate or dissenting opinions may be appended.
(C) In appropriate circumstances the Appeals Chamber may order that the accused
be retried according to law.
(D) The judgement shall be pronounced in public, on a date of which notice shall
have been given to the parties and counsel and at which they shall be entitled to be
present.

retrial

Retrial ordered where findings of Trial Chamber were not adequate for Appeals
Chamber to exercise its own judgement as to the guilt of the accused. 4358

Decisions regarding the admission of evidence made in the course of his first trial
are not binding on the Trial Chamber conducting a retrial. The different contexts in which
the two trials are held mean that evidentiary decisions proper in one case may not be
proper in the other.4359

Any failure to apply for admission of evidence under Rule 115 of the Rules
during an appeal does not exclude the admission of that evidence in a subsequent
retrial. 4360

Whether a retrial follows acquittal or conviction is not necessarily insignificant.

However the context of each retrial is unique, and the impact of a previous conviction or
acquittal can only be addressed by taking into account this individual context. Any
potential for undue prejudice to a defendant in a retrial following an acquittal should be
addressed through both the Appeals Chamber's careful delineation of a retrial's
parameters and the Trial Chamber's continuing duty to apply fair trial principles. When
determining the admissibility of evidence in the retrial, the Trial Chamber should be
particularly mindful of any potential prejudice that the admission of new evidence may
cause to the fair trial rights of the Accused. Where the Prosecution seeks to introduce
evidence that was excluded in prior proceedings, the Trial Chamber should explicitly
consider whether re-litigation of this same issue in the retrial would be unduly
prejudicial. If such is the case, the evidence must be excluded. 4361

Since the Trial Chamber may not make findings with respect to Haradinaj's

4358
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Judgement (9 December 2015) at para. 127
4359
Prosecutor v Haradinaj et al, No. IT-04-84bis.AR73.1, Decision on Haradinaj’s Appeal on Scope of
Partial Retrial (31 May 2011) at para. 25
4360
Prosecutor v Haradinaj et al, No. IT-04-84bis.AR73.1, Decision on Haradinaj’s Appeal on Scope of
Partial Retrial (31 May 2011) at para. 25
4361
Prosecutor v Haradinaj et al, No. IT-04-84bis.AR73.1, Decision on Haradinaj’s Appeal on Scope of
Partial Retrial (31 May 2011) at para. 26

702
responsibility beyond those in the six counts alleged, consideration of the broader JCE in
the context of the partial retrial does not place him in potential double jeopardy or
otherwise affect his fundamental rights and interests .4362

Since the Trial Chamber cannot make findings with respect to criminal
responsibility beyond that alleged in the six counts which are the subject of the retrial,
the inclusion of general allegations, some of which the accused was acquitted of, in the
"Statement of Facts" of the Operative Indictment does not expose the accused to any
additional charges or render the retrial unfair per se.4363

Rule 118—status of accused following appeal

(A) A sentence pronounced by the Appeals Chamber shall be enforced

immediately.
(B) Where the accused is not present when the judgement is due to be delivered,
either as having been acquitted on all charges or as a result of an order issued
pursuant to Rule 65, or for any other reason, the Appeals Chamber may deliver its
judgement in the absence of the accused and shall, unless it pronounces an acquittal,
order the arrest or surrender of the accused to the Tribunal.

Rule 119—request for review

(A) Where a new fact has been discovered which was not known to the moving
party at the time of the proceedings before a Trial Chamber or the Appeals
Chamber, and could not have been discovered through the exercise of due diligence,
the defence or, within one year after the final judgement has been pronounced, the
Prosecutor, may make a motion to that Chamber for review of the judgement. If, at
the time of the request for review, any of the Judges who constituted the original
Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge
or Judges in their place.
(B) Any brief in response to a request for review shall be filed within forty days of
the filing of the request.
(C) Any brief in reply shall be filed within fifteen days after the filing of the
response.

assignment of counsel

To be assigned counsel at the Tribunal’s expense for review proceedings requires

the Appeals Chamber to authorise the review or to deem it necessary in order to ensure
the fairness of the proceedings.4364

4362
Prosecutor v Haradinaj et al, No. IT-04-84bis.AR73.1, Decision on Haradinaj’s Appeal on Scope of
Partial Retrial (31 May 2011) at para. 32
4363
Prosecutor v Haradinaj et al, No. IT-04-84bis.AR73.1, Decision on Haradinaj’s Appeal on Scope of
Partial Retrial (31 May 2011) at para. 39
4364
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Appointment of Counsel to
Dragomir Milosevic (6 January 2012) at para. 8

703
 Counsel assigned to investigate potential grounds for review granted access to
confidential evidence and confidential filings related to that evidence, but not other
confidential filings. 4365

deceased persons

The next of kin of a deceased convicted person has no standing to seek review of
the judgement.4366

disclosure issues

Where no review petition is pending, Appeals Chamber has no jurisdiction to

decide on motion for disclosure. Instead, a Trial Chamber must be appointed pursuant to
Rule 75.4367

final judgement

Review is only available with respect to final judgement. If the Appeals Chamber
rendered the final judgement in the instant case, then only the Appeal Judgement can be
reviewed. 4368

Review does not extend to decisions reached during ongoing proceedings in the
case prior to the rendering of a final decision in the case. 4369

miscarriage of justice

In wholly exceptional circumstances, where the impact of a new fact on the

decision would be such that to ignore it would lead to a miscarriage of justice, the
Chambers may review their decision even though the new fact was known to the moving
party, or was discoverable by it through the exercise of due diligence.4370

Although information from witness to conversation was available to accused’s

counsel, to ignore the information on review would lead to a miscarriage of justice. 4371

4365
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Motion Seeking Variation of Protective
Measures Pursuant to Rule 75(G) (16 July 2012) at para. 14
4366
Prosecutor v Delic, No. IT-04-83-R.1, Decision on Defence Motion for Review (17 December 2013)
4367
Prosecutor v Milosevic, No. IT-98-29/1-A, Decision on Motion for Reconsideration (12 July 2012)
4368
Prosecutor v.Josipovic, No. IT-95-16-R2, Decision on Second Motion for Review (7 March 2003) at
para. 15
4369
Prosecutor v Blaskic, No. IT-95-14-R, Decision on Prosecutor’s Request for Review or
Reconsideration (23 November 2006) at para. 23
4370
Prosecutor v.Josipovic, No. IT-95-16-R2, Decision on Second Motion for Review (7 March 2003) at
para. 13; Prosecutor v Blagojevic, No. IT-02-60-R, Decision on Vidoje Blagojevic’s Request for Review
(15 July 2008) at para. 4; Prosecutor v Sljivancanin, No. IT-95-13/1-R.1, Decision with Respect to Veselin
Sljivancanin’s Request for Review (14 July 2010) at p. 3
4371
Prosecutor v Sljivancanin, No. IT-95-13/1-R.1, Decision with Respect to Veselin Sljivancanin’s
Request for Review (14 July 2010) at pp. 3-4

704
 new fact

A party seeking review must satisfy four criteria; (1) there must be a new fact; (2)
this new fact must not have been known to the moving party at the time of the
proceedings before a Trial Chamber or the Appeals Chamber; (3) the lack of discovery of
the new fact must not have been through the lack of due diligence on the part of the
moving party; and (4) the new fact, if proved, could have been a decisive factor in
reaching the original decision;4372

What is relevant in evaluating an application for review is not whether the new
fact existed but whether the deciding body and the moving party knew about the fact or
not in arriving at its decision. 4373

New fact was considered proved when testimony of witness to that fact was
deemed to be credible. Review granted and conviction vacated.4374

There is a difference between a “new fact” under Rule 119 and “additional
evidence” under Rule 115. Additional evidence pertains to a matter which was in issue at
the trial, while a new fact involves evidence of a fact which was not in issue at the
trial. 4375

The process for determining whether there is a “new fact” is first for the party to
define its “new fact”. The Chamber then reviews the prior decisions and determines
whether the previously litigated facts include the purported “new fact”. If it does, review
is not available. 4376

Review proceedings are not an opportunity to relitigate unsuccessful appeals or

requests.4377

The fact that the same events were the subject of prosecution evidence in another
case and that a witness who testified may have refused to testify in another trial do not
constitute “new facts” within the meaning of Rule 119.4378

4372
Prosecutor v Josipovic, No. IT-95-16-R3, Decision on Motion for Review (2 April 2004); Prosecutor
v.Josipovic, No. IT-95-16-R2, Decision on Second Motion for Review (7 March 2003) at para. 12;
Prosecutor v.Tadic,. No. IT-94-1-R, Decision on Motion for Review (30 July 2002) at para. 20; Prosecutor
v Sljivancanin, No. IT-95-13/1-R.1, Decision with Respect to Veselin Sljivancanin’s Request for Review (14
July 2010) at p. 3
4373
Prosecutor v Sljivancanin, No. IT-95-13/1-R.1, Decision with Respect to Veselin Sljivancanin’s
Request for Review (14 July 2010) at p. 3
4374
Prosecutor v Sljivancanin, No. IT-95-13/1-R.1, Review Judgement (8 December 2010) at paras. 31-32
4375
Prosecutor v Radic, No. IT-98-30/1-R1, Decision on Defence Request for Review (31 October 2006) at
para. 22
4376
Prosecutor v Blaskic, No. IT-95-14-R, Decision on Prosecutor’s Request for Review or
Reconsideration (23 November 2006) at para. 17
4377
Prosecutor v Blagojevic, No. IT-02-60-R, Decision on Vidoje Blagojevic’s Request for Review (15 July
2008) at para. 7

705
 Since the credibility of the witness was at issue in the trial, new information
calling his credibility into question did not constitute a “new fact”. 4379

New facts refer to new evidentiary information supporting a fact that was not in
issue or not considered in the original proceedings. 4380

Rule 120—preliminary examination

If a majority of Judges of the Chamber constituted pursuant to Rule 119 agree that
the new fact, if proved, could have been a decisive factor in reaching a decision, the
Chamber shall review the judgement, and pronounce a further judgement after
hearing the parties.

Review hearing ordered at which each party may introduce evidence rebutting or
supporting the “new fact”.4381

Rule 121—appeals

The judgement of a Trial Chamber on review may be appealed in accordance

with the provisions of Part Seven.

Rule 122—return of case to Trial Chamber

If the judgement to be reviewed is under appeal at the time the motion for review is
filed, the Appeals Chamber may return the case to the Trial Chamber for
disposition of the motion.

Rule 123—notification by States

If, according to the law of the State of imprisonment, a convicted person is eligible
for pardon or commutation of sentence, the State shall, in accordance with Article
28 of the Statute, notify the Tribunal of such eligibility.

Rule 124—determination by the President

The President shall, upon such notice, determine, in consultation with the members
of the Bureau and any permanent Judges of the sentencing Chamber who remain

4378
Prosecutor v Blagojevic, No. IT-02-60-R, Decision on Vidoje Blagojevic’s Request for Review (15 July
2008) at para. 9
4379
Naletilic v Prosecutor, No. IT-98-34-R, Decision on Mladen Naletilic’s Request for Review (19 March
2009) at para. 25
4380
Naletilic v Prosecutor, No. IT-98-34-R, Decision on Mladen Naletilic’s Request for Review (19 March
2009) at para. 31; Prosecutor v Sljivancanin, No. IT-95-13/1-R.1, Decision with Respect to Veselin
Sljivancanin’s Request for Review (14 July 2010) at p. 3
4381
Prosecutor v Sljivancanin, No. IT-95-13/1-R.1, Decision with Respect to Veselin Sljivancanin’s
Request for Review (14 July 2010) at p. 4

706
Judges of the Tribunal, whether pardon or commutation is appropriate.

Rule 125—pardon or commutation

In determining whether pardon or commutation is appropriate, the President shall

take into account, inter alia, the gravity of the crime or crimes for which the
prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner's
demonstration of rehabilitation, as well as any substantial cooperation of the
prisoner with the Prosecutor.

early release

Where accused had served 2/3 of his sentence, had behaved well in prison, and
local authorities recommended his release, commutation of sentence would be
granted.4382

Accused who had served more than 4/5 of his sentence ordered released after
sentencing and before appeal. 4383

Accused ordered release after having served less than 2/3 of his sentence since
good behavior credits earned under Spanish law could be added to the time he already
served. 4384

Where accused had served 2/3 of his sentence, had behaved well in prison, and
although not expressing remorse, had agreed to deportation to Serbia, commutation of
sentence would be granted.4385

4382
Prosecutor v Landzo, No. IT-96-21-ES, Order of the President on Commutation of Sentence (13 April
2006); Prosecutor v Delic, No. IT-96-21-ES, Decision on Hazim Delic’s Motion for Commutation of
Sentence (24 June 2008); Prosecutor v Jokic, No. IT-01-42/1-ES, Decision of the President on Request for
Early Release (1 September 2008); Prosecutor v Banovic, No. IT-02-65/1-ES, Decision of the President on
Commutation of Sentence (3 September 2008); Prosecutor v Plavsic, No. IT-00-39 & 40/1-ES, Decision of
the President on the Application for Pardon or Commutation of Sentence of Mrs. Biljana Plavsic (14
September 2009); Prosecutor v Sikirica, No. IT-95-8-ES, Decision of President on Early Release of Dusko
Sikirica (21 June 2010); Prosecutor v Rajic, No. IT-95-12-ES, Decision of President on Early Release of
Ivica Rakic (22 August 2011); Prosecutor v Martinovic, No. IT-98-34-ES, Decision of the President on
Early Release of Vinko Martinovic (16 December 2011); Prosecutor v Natelic, No. IT-98-34-ES, Decision
of the President on Early Release of Mladen Natelic (26 March 2013); Prosecutor v Tarculovski, No. IT-
04-82-ES, Decision of President on Early Release of Johan Tarculovski (8 April 2003); Prosecutor v
Krajisnik, No. IT-00-39-ES, Decision of the President on the Early Release of Momcilo Krajisnik (2 July
2013); Prosecutor v Kovac, No. IT-96-23-ES, Decision of the President on Early Release of Radomir
Kovac (3 July 2013); Prosecutor v Ojdanic No. IT-05-87-ES.1, Decision of the President on Early Release
of Dragoljub Ojdanic (29 August 2013); Prosecutor v Mrdja, No. IT-02-59-ES, Decision of the President
on Early Release of Darko Mrdja (12 November 2013); Prosecutor v Nikolic, No. IT-94-2-ES, Decision of
the President on Early Release of Dragan Nikolic (12 November 2013)
4383
Prosecutor v Gvero, No. IT-05-88-ES, Decision of President on Early Release of Milan Gvero (28 June
2010)
4384
Prosecutor v Kupreskic et al, No. IT-95-16-ES, Decision of the President on the Application for
Pardon and Commutation of Sentence of Vladimir Santic (9 February 2009) at para. 8

707
 The practice of the States in which Tribunal prisoners serve their sentence is to
release a convicted person after service of 2/3 of his sentence. Fairness dictates that this
be applied to persons serving their sentenced at the UNDU.4386

Convict ordered release after serving 2/3 of sentence, even though he was not
eligible for release under Italian law.4387

Convict ordered release after serving 2/3 of his sentence, even though he had been
found in contempt of the Tribunal for refusing to testify at an ICTY trial. 4388

Person convicted of contempt and sentenced to 2 months in prison was eligible

for release after 2/3, but release was denied due to the severity of the offence. 4389

Convict who was eligible for release before serving 2/3 of his sentence, would not
be released. The majority of jurisdictions in which Tribunal convicts are serving their
sentences require that 2/3 of the sentence be served prior to release. 4390

Release 8 months before 2/3 of sentence granted where defendant had provided
exceptionally substantial cooperation with the prosecution. 4391

Despite Macedonian, UK, and Belgian law providing for release after serving ½
of one’s sentence, accused would not be released until serving 2/3. 4392

4385
Prosecutor v Tadic, No. IT-94-1-ES, Decision of the President on the Application for Pardon and
Commutation of Sentence of Dusko Tadic (17 July 2008); Prosecutor v Vasilijevic, No. IT-98-32-ES,
Decision of President on Application for Pardon and Commutation of Sentence of Mitar Vasiljevic (12
March 2010)
4386
Prosecutor v Strugar, No. IT-01-42-ES, Decision of the President on the Application for Pardon or
Commutation of Sentence for Pavle Strugar (16 January 2009) at para. 9
4387
Prosecutor v Krnojelac, No. IT-97-25-ES, Decision of the President on the Application for Pardon or
Commutation of Sentence of Milorad Krnojelac (9 July 2009)
4388
Prosecutor v Dragan Jokic, No. IT-02-60-ES, Decision of the President on the Application for Pardon
or Commutation of Sentence of Drajan Jokic (13 January 2010)
4389
Prosecutor v Kabashi, No. IT-04-84.R77.1-ES, Decision of President on Early Release of Shefqet
Kabashi (28 September 2011) at para. 20
4390
Prosecutor v Radic, No.IT-98-30/1-ES, Decision of President on Application for Pardon and
Commutation of Sentence of Mlado Radic (23 April 2010); Prosecutor v Kordic, No. IT-95-14/2-ES,
Decision of President on Application for Pardon and Commutation of Sentence of Dario Kordic (13 May
2010); Prosecutor v Zelenovic, No. IT-96-23/2-ES, Decision of President on Application for Pardon or
Commutation of Sentence of Dragan Zelenovic (10 June 2010); Prosecutor v Krajisnik, No. IT-00-39-ES,
Decision of President on Early Release of Momcilo Krajisnik (26 July 2010); Prosecutor v Zigic, No. IT-
98-30/1-ES, Decision of President on Early Release of Zoran Zigic (8 November 2010); Prosecutor v
Rajic, No. IT-95-12-ES, Decision of the President on Early Release of Ivaca Rajic (31 January 2011);
Prosecutor v Mrdja, No. IT-02-59-ES, Decision of President on Early Release of Darko Mrdja (1 February
2011); Prosecutor v Zelenovic, No. IT-96-23/2-ES, Decision of President on Early Release of Dragan
Zelenovic (30 November 2012); Prosecutor v Mrskic, No. IT-95-13/1-ES.2, Decision of the President on
the Early Release of Mile Mrskic (13 December 2013) at para. 20
4391
Prosecutor v Obrenovic, No. IT-02-60/2-ES, Decision of President on Early Release of Dragan
Obrenovic (21 September 2011) at para. 28

708
 Due to high gravity of Srebrenica related crimes, convict would not be released
after serving 2/3 of his sentence, but instead released after serving ¾ of his sentence. 4393

Due to lack of remorse and high gravity of crimes in which the convict personally
killed 9 people, convict would be released after serving 6 months more than 2/3 of his
sentence. 4394

Due to lack of integration in prison and high gravity of crimes, convict from
Omarska camp would be released after serving ¾, rather than 2/3 of his sentence. 4395

MICT, and not ICTY, has jurisdiction over early release of ICTY prisoners after 1
July 2013.4396

sentencing remissions

A convict serving his sentence in France may benefit from the French law on
sentencing remissions, in the discretion of the President. The criteria of Rule 125 is
applied when determining whether to grant such remissions. In this case, the high gravity
of the crimes and limited degree of rehabilitation of the convict required that
recognizition of the sentencing remissions be denied. 4397

Remission credits against sentence under Italian law would be provisionally

recognized by the President, without prejudice to the ultimate decision whether to release
convict prior to the expiration of 2/3 of his sentence imposed by the Tribunal. 4398

Sentence remissions are generally regarded as a tool of prisoner management in

domestic systems. If the Tribunal did not recognize any sentence remissions to which a
detainee is entitled under national law, it would result in discriminatory treatment of

4392
Prosecutor v Tarculovski, No. IT-04-82-ES, Decision on Early Release of Johan Tarculovski (23 June
2011) at para. 13; Prosecutor v Krajisnik, No. IT-00-39-ES, Decision of President on Early Release of
Momcilo Krajisnik (11 July 2011); Prosecutor v Zelenovic, No. IT-96-23/2-ES, Decision of President on
Early Release of Dragan Zelenovic (21 October 2011); Prosecutor v Krajisnik, No. IT-00-39-ES, Decision
of the President on Early Release of Momcilo Krajisnik (8 November 2012);
4393
Prosecutor v Blagojevic, No. IT-02-60-ES, Decision of the President on Early Release of Vidoje
Blagojevic (3 February 2012) at para. 25
4394
Prosecutor v Bala, No. 03-66-ES, Decision of the President on Early Release of Haradin Bala (28 Juen
2012) at para. 39
4395
Prosecutor v Radic, No. 98-30/1-ES, Decision of the President on Early Release of Mlado Radic (13
February 2012) at para. 30
4396
Prosecutor v Pandurevic, No. IT-05-88-A, Decision on Motion for Early Release (2 February 2015)
4397
Prosecutor v Bala, No. 03-66-ES, Decision on Application of Haradin Bala for Sentence Remission (15
October 2010) at paras. 15,28; Prosecutor v Stakic, No. IT-97-24-ES, Decision of President on Early
Release of Milomir Stakic (15 July 2011) at para. 38
4398
Prosecutor v Jelisic, No. IT-95-10-ES, Decision of the President on Sentence Remission for Goran
Jelisic (28 May 2013) at para. 34

709
Tribunal prisoners vis-à-vis other prisoners in the same prisons and would, in addition,
render more difficult their management by prison authorities. 4399

Rule 126—general provisions

(A) Where the time prescribed by or under these Rules for the doing of any act is
to run as from the occurrence of an event, that time shall begin to run as from the
date of the event.
(B) Where the Rules, or the practice Directions and Directives issued under the
Rules, prescribe that the time for the doing of any act is to run from the filing of a
relevant document, that time shall begin to run as from the date of the distribution
of the document.
(C) Should the last day of a time prescribed by a Rule or directed by a Chamber
fall upon a day when the Registry of the Tribunal does not accept documents for
filing it shall be considered as falling on the first day thereafter when the Registry
does accept documents for filing.

Time for response to motion begins to run the day after the motion is filed. 4400

Time for response or reply is calculated from the time a motion is filed, not when
it is received by a party.4401

So long as a pleading is electronically filed before midnight of the day it is due, it

will be considered timely, notwithstanding it being filed after the business hours of the
Registry. 4402

Rule 126 bis—time for filing responses to motions

Unless otherwise ordered by a Chamber either generally or in the particular case, a

response, if any, to a motion filed by a party shall be filed within fourteen days of
the filing of the motion. A reply to the response, if any, shall be filed within seven
days of the filing of the response, with the leave of the relevant Chamber.

Trial Chamber did not err in imposing three day time limit for seeking leave to
reply to a response to a motion. 4403

4399
Prosecutor v Jelisic, No. IT-95-10-ES, Decision of the President on Sentence Remission for Goran
Jelisic (28 May 2013) at para. 20
4400
Prosecutor v Popovic et al, No. IT-05-88-T, Decision Regarding Evidence of General Rupert Smith
and the Calculation of Time Limits Under Rule 126 (30 March 2007) at p. 3
4401
Prosecutor v Gotovina et al, No. IT-06-90-AR65.1, Decision on Ante Gotovina’s Appeal Against
Denial of Provisional Release (17 January 2008) at para. 22
4402
Prosecutor v Stanisic & Simatovic, No. IT-03-69-AR65.4, Decision on Prosecution Appeal of Decision
on Provisional Release and Motions to Present Additional Evidence Pursuant to Rule 115 (26 June 2008)
at para. 40
4403
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 146

710
Rule 127—variation of time limits

(A) Save as provided by paragraph (C), a Trial Chamber or Pre-Trial Judge may,
on good cause being shown by motion,
(i) enlarge or reduce any time prescribed by or under these Rules;
(ii) recognize as validly done any act done after the expiration of a time so
prescribed on such terms, if any, as is thought just and whether or not that time has
already expired.
(B) In relation to any step falling to be taken in connection with an appeal, the
Appeals Chamber or Pre-Appeal Judge may exercise the like power as is conferred
by paragraph (A) and in like manner and subject to the same conditions as are
therein set out.
(C) This Rule shall not apply to the times prescribed in Rules 40 bis and 90 bis.

Erroneous assumption by counsel that he had 7, rather than 4, days to file reply
brief is not good cause justifying an extension of time. 4404

Admission of documents from the bar table denied when prosecution filed its
motion after the deadline for the filing of evidence-related motions. 4405

Neither the Rules nor the practice of the Tribunal provide a party with a right to
respond to a reply, although leave will usually be granted to file a further response where
the reply raises a new issue.4406

Need for coordination of joint response in multiple accused case constituted good
cause for accepting a late filing as validly done. 4407

4404
Prosecutor v Krajisnik, No. IT-00-39AR73.1, Decision on Interlocutory Appeal of Decision on Second
Defence Motion for Adjournment (25 April 2005) at para. 6
4405
Prosecution v Karadzic, No. IT-95-5/18-T, Decision on Prosecution’s Motion for the Admission of Two
Intercepts from the Bar Table (23 May 2012) at para. 8
4406
Prosecutor v Milutinovic et al, No. IT-99-37-AR65, Decision on Provisional Release (30 October
2002) at para.5
4407
Prosecutor v Popovic et al, No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal
Concerning the Status of Richard Butler as an Expert Witness (30 January 2008) at para. 8

711
Directive on Assignment of Defence Counsel

Article 1—purpose and entry into force

(A) In accordance with Rule 45 of the Rules, the Registrar establishes this Directive
to codify the Tribunal’s system of assignment of counsel. The Tribunal’s system of
assignment of counsel seeks to provide legal assistance to indigent suspects or
accused in the most efficient, economical and equitable manner in order to
safeguard the rights afforded to suspects and accused under the Statute and Rules.
This Directive establishes objective criteria to be used in the Registrar’s
determination of the eligibility of a suspect or accused for assignment of counsel and
codifies the modalities of payment of assigned counsel and their support staff.
(B) This Directive shall enter into force on the first day of August nineteen hundred
and ninety four (1 August 1994).

Article 2—definitions

Association of counsel: an association of defence counsel practicing before the

Tribunal recognised by the Registrar in accordance with Rule 44(A)(iii) of the
Rules;
Accused: a person against whom one or more counts in an indictment have been
confirmed in accordance with Rule 47 of the Rules;
Code of Conduct: the Code of Professional Conduct for Defence Counsel Appearing
Before the International Tribunal as promulgated by the Registrar on 12 June 1997
as amended;
Counsel: a person representing or eligible to represent a suspect or accused
pursuant to Rules 44, 45 and 45 bis of the Rules;
Defence team: Counsel assigned by the Registrar to represent a suspect or accused
and other persons assigned or approved by the Registrar to assist counsel in this
task;
Directive: Directive No. 1/94 on the Assignment of Defence Counsel as amended;
President: the President of the Tribunal elected pursuant to Article 14 of the
Statute;
Prosecutor the Prosecutor of the Tribunal appointed pursuant to Article 16 of the
Statute;
Registrar: the Registrar of the Tribunal appointed pursuant to Article 17 of the
Statute;
Rules: the Rules of Procedure and Evidence adopted by the Tribunal on 11
February 1994, and as subsequently amended;
Stage of procedure: each of the stages of procedure laid down in the Rules in which
a suspect or accused may be involved (investigation, pre-trial proceedings, trial
proceedings, appellate proceedings, and review proceedings);
Statute: the Statute of the Tribunal adopted by the Security Council under
Resolution 827 (1993) of 25 May 1993, as subsequently amended;
Suspect: a person concerning whom the Prosecutor possesses reliable information

712
which tends to show that the person may have committed a crime over which the
Tribunal has jurisdiction;
Tribunal: the 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.
In this Directive, the masculine shall include the feminine and the singular the
plural, and vice versa. All references in this Directive to suspects or accused shall
also be understood to apply to any persons detained on the authority of the
Tribunal.

The Directive on Assignment of Counsel does not apply to self-represented accused.4408

Article 3—authentic texts

The English and French texts of the Directive shall be equally authentic. In case of
discrepancy, the version which is more consonant with the spirit of the Statute,
Rules and the Directive shall prevail.

Article 4—amendment of the directive

(A) Proposals for amendments to the Directive may be made by a Judge, the
Registrar, an association of counsel, or the Advisory Panel. Such proposals shall be
directed to the Registrar. Amendments shall be promulgated by the Registrar
following the approval of the permanent Judges, as provided for in the Rules.
(B) Without prejudice to the rights of the accused in any pending case, an
amendment of the Directive shall enter into force seven days after the day of issue of
an official Tribunal document containing the amendment.

Article 5—right to counsel

Without prejudice to the right of a suspect or an accused to conduct his own

defence:
(i) a suspect who is to be questioned by the Prosecutor during an investigation;
(ii) an accused upon whom personal service of the indictment has been effected; and
(iii) any person detained on the authority of the Tribunal, including any person
detained in accordance with Rule 90 bis;
shall have the right to be assisted by counsel.

Neither the Rules nor the Directive invest a convicted and detained person with
the right to ongoing legal representation following the completion of appeal
proceedings.4409

4408
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Radovan Karadzic’s Appeal from Decision on
Motion to Vacate Appointment of Richard Harvey (12 February 2010) at para. 28
4409
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Appointment of Counsel to
Dragomir Milosevic (6 January 2012) at para. 8

713
 While potential witnesses are not entitled to legal representation per se, Article
5(iii) of the Directive does provide that any person detained on the authority of the
Tribunal, including any person detained in accordance with Rule 90 bis of the Rules, is
entitled to legal counsel. This would include persons who are present at the seat of the
Tribunal in order to give evidence and detained under the authority of the Tribunal for
such purpose. Accordingly, if and when a convicted and detained witness is required to
appear as a witness before the Tribunal, and transferred pursuant to Rule 90 bis,he would
have the right to be assisted by Tribunal-funded counsel. 4410

The assignment of counsel to a witness can be ordered by the Chamber to protect

this witness’s rights in connection with incriminating testimony under Rule 90(E) of the
Rules.4411

Counsel would not be assigned to convicted and detained person serving his
sentence in another State for the purpose of defence interview to determine whether he
should be called as a defence witness. 4412

Counsel would be assigned to non-detained witness on exceptional basis where

witness had been interviewed as a suspect by the prosecution on several occasions and
had been assigned counsel when called as a witness in another ICTY case. 4413

Counsel assigned to non-detained witness on exceptional basis where the witness’

expected testimony my touch upon issues which could expose him to the risk of self-
incrimination. 4414

Trial Chamber has no jurisdiction over an application of defence witness Milan

Martic for review of Registrar’s decision not to assign his trial counsel to represent him
in his capacity as a witness. This is a matter for the President.4415

Article 6—right to assigned counsel

(A) A suspect or accused who lacks the means to remunerate counsel shall have the
right to have counsel assigned to him and paid for by the Tribunal in accordance
with this Directive. The Registrar shall inform a suspect or accused in a language
which he understands of his rights and duties pursuant to this Directive.

4410
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Appointment of Counsel to
Dragomir Milosevic (6 January 2012) at para. 10
4411
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Appointment of Counsel to
Dragomir Milosevic (6 January 2012) at para. 10
4412
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Motion for Appointment of Counsel to
Dragomir Milosevic (6 January 2012) at para. 11
4413
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Motion for Appointment of Counsel to
Tomislav Kovac (29 October 2013) at T42429
4414
Prosecutor v Mladic, No. IT-09-92-T, Order to the Registrar to Appoint or Assign Counsel to Vidoje
Blagojevic (10 March 2015)
4415
Prosecutor v Karadzic, No. IT-95-5/18-T, Oral Decision on Request for Review of Registrar Decision
Not to Assign Trial Counsel (22 March 2013) at T35851-52

714
(B) A suspect or accused lacks the means to remunerate counsel if he does not have
the means which would enable him to cover the costs of his defence as determined
by the Registrar in accordance with Section VII of this Directive.
(C) For an accused who has the means to partially remunerate counsel, the Tribunal
shall pay that portion of his defence costs which the accused does not have sufficient
means to cover, as determined in accordance with the Registry Policy for
Determining the Extent to which an Accused is able to Remunerate Counsel.

Article 7—request for assignment of counsel

(A) Subject to the provisions of Article 18, a suspect or accused who wishes to have
counsel assigned to him shall make a request to the Registrar on the form provided
by the Registrar. The request shall be lodged with the Registrar, or transmitted to
him, by the suspect or accused himself or by a person authorised by him to do so on
his behalf.
(B) A suspect or accused requesting the assignment of counsel is required to make a
declaration of his means on the form provided by the Registrar.
(C) A declaration must, to the extent possible, be certified by an appropriate
authority, either that of the place where the suspect or accused resides or is found or
that of any other place that the Registrar considers appropriate in the
circumstances.
(D) The declaration must include an attestation by the suspect or accused that the
information contained therein is true and complete to the best of his knowledge.
(E) To ensure that the provisions of Article 8 are met, a suspect or accused must
update his declaration of means at any time a change relevant to his declaration of
means occurs.

The accused is required to provide information to the Registry of his indigent

status before funds can be disbursed on his behalf. 4416

Where an accused refused to provide information as to his financial condition, he

could nevertheless be provided with 50% of the legal aid provided to indigent accused,
subject to later recovery, where the Registrar had the means to determine if the accused
had any assets with which to find his own defence. 4417

Article 8—burden of proof

(A) A suspect or accused who requests the assignment of counsel must produce
evidence establishing that he is unable to remunerate counsel.
(B) Where the Registrar has opened an inquiry into the means of a suspect or
accused pursuant to Article 9, the suspect or accused shall provide or facilitate the

4416
Prosecutor v Seselj, No. IT-03-67-T, Decision on Financing of Accused’s Defence (23 April 2009) at
para. 23
4417
Prosecutor v Seselj, No. IT-03-67-R33B, Decision on the Registry Submissions Pursuant to Rule 33(B)
Regarding the Trial Chamber’s Decision on Financing of Defence Rendered on 8 April 2011 (17 May
2011) at paras. 26-28

715
production of information required to establish his ability to remunerate counsel.
(C) Where a suspect or accused fails to comply with his obligations under Articles
8(A) and (B) to the extent that the Registrar is unable to properly assess the suspect
or accused’s ability to remunerate counsel, the Registrar may deny the request for
the assignment of counsel after warning the suspect or accused and giving him an
opportunity to respond.

Where accused failed to fully cooperate in disclosing his assets, and Registrar was
unable to establish that the assets of the accused were capable of liquidation such that he
could fund his defence, and where the commencement of the defence case was imminent,
the Trial Chamber ordered that the accused be given legal aid at a rate of 50% to which
he might otherwise be entitled. 4418

The burden of proof is on the applicant to demonstrate his inability to pay the cost
of his defence. Once the applicant has provided information on his inability, the burden
shifts to the Registrar to show that the accused has the means to pay for the costs of his
defence. The standard of proof is a balance of probabilities. 4419

The more serious the matter asserted and the more serious the consequences
flowing from a particular finding, the more difficult it would be to satisfy the relevant
tribunal that what is asserted is more probably true than not.4420

The burden of proof is on the applicant to demonstrate his inability to remunerate

counsel. Once the applicant has provided information regarding his inability to
remunerate counsel, the burden of proof shifts to the Registrar to prove otherwise, based
on the balance of probabilities. 4421

The burden was on the accused to: (i) provide evidence that a property constitutes
marital property; (ii) provide updated information on the value of the properties; and (iii)
demonstrate that his wife's pension does not constitute disposable means. The Registry
was then required to determine whether the relevant information given by the accused
was more probably true than not.4422

Trial Chamber did not reverse the burden of proof when upholding determination
of Registrar rejecting appellant’s claims about the property, but not relying on evidence
to the contrary.4423

4418
Prosecutor v Seselj, No. IT-03-67-T, Decision on Financing of Defence (2 November 2010) at para. 27
4419
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 35
4420
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 35
4421
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 12
4422
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 13
4423
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 14

716
Article 9—authority to gather information

(A) For the purpose of establishing whether the suspect or accused is able to
remunerate counsel, the Registrar may inquire into his means, request the gathering
of any information, hear the suspect or accused, consider any representation, or
request the production of any document likely to verify the request.
(B) In exercising his authority under Article 9(A), the Registrar may request any
relevant information at any time, including after counsel has been assigned, from
any person who appears to be able to supply such information.

Article 10—means of suspects and accused

(A) The Registrar shall determine whether and to what extent the suspect or
accused is able to remunerate counsel by taking into account means of all kinds of
which the suspect or accused has direct or indirect enjoyment or freely disposes,
including but not limited to direct income, bank accounts, real or personal property,
pensions, and stocks, bonds, or other assets held, but excluding any family or social
benefits to which he may be entitled. In assessing such means, account shall
also be taken of the means of the spouse of a suspect or accused, as well as those of
persons with whom he habitually resides, provided that it is reasonable to take such
means into account.
(B) For the purpose of determining whether the suspect or accused has an
ownership interest in any property, the Registrar may consider the apparent
lifestyle of a suspect or accused, and his enjoyment of that or other property, and
whether or not he derives income from it.

accounting

Registrar was required to provide accused with itemized account he was expected
to re-emburse when finding that the accused was required to re-emburse the Tribunal for
his legal aid.4424

assignment of interest

The Tribunal is not a creditor and does not enter into agreements for the transfer
of real or personal property with persons indicted by the Tribunal. The offer of the
accused to assign his property interest to the Registrar was therefore not an available
option and that it was not unreasonable for the Registrar to have disregarded it. 4425

debts

4424
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 33
4425
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 33

717
 Any personal debts on behalf of an accused and members of his household are
included as an offset in the calculation of his disposable means, reducing the total
contribution to the cost of his defence. 4426

Since the majority of the accused’s assets were located in Bosnia, the Registrar
correctly limited his consideration to the legal framework governing the enforceability of
foreign judgements to Bosnia, notwithstanding that the funds would have to be paid to
defence team members in The Netherlands. 4427

Even if the foreign judgements were enforceable in the Netherlands, in the

absence of evidence that recognition of the foreign judgements in the Netherlands had
been sought, the Registrar's decision to exclude the foreign judgements as liabilities was
not unreasonable. 4428

Accused failed to substantiate the existence of debts which would prevent him
from contributing to his defence. 4429

delay

Registrar’s delay in deciding that accused had the ability to remunderate counsel
was not undue where the accused frustrated the Registrar’s ability to investigate his
means.4430

disposable property

Where Registry was unable to inform the Chamber that the property of the
accused was available for immediate liquidation, accused cannot be said not to qualify for
legal aid.4431

Interest in family home was readily disposable where accused failed to

substantiate difficulties in selling or mortgaging the home. 4432

exchange rate

4426
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 29
4427
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at paras. 29-30
4428
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 30
4429
Prosecutor v Tolimir, No. IT-05-88-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the
Decision of Trial Chamber II on the Registrar’s Decision on Legal Aid (12 November 2009) at para. 28
4430
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at paras. 36-37
4431
Prosecutor v Seselj, No. IT-03-67-T, Decision on Financing of Defence (2 November 2010) at para. 23
4432
Prosecutor v Tolimir, No. IT-05-88-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the
Decision of Trial Chamber II on the Registrar’s Decision on Legal Aid (12 November 2009) at para. 25

718
 It was proper to apply the standard exchange rate as of the time of the Registrar’s
decision.4433

family home

Regsitrar properly concluded that only E7,000 was credited to accused for value
of a home for two persons in Bosnia without regard to whether a home could be
purchased for E7000, as this was the result of the application of Registrar’s policy
formula. 4434

pension

Accused failed to substantiate that part of his pension was an invalidity benefit
which should not be included in his means. 4435

Registrar properly calculated living expenses by determining the average

expenses of a two person household in the country of the accused’s residence. 4436

spouse’s property

The equity in marital property jointly owned by an accused and his spouse is to be
considered when calculating an accused's disposable means. 4437

Whether assets constitute joint marital property is to be determined in accordance

with the marital property regime of the State in which the accused and his spouse were
wed or reside. 4438

The Registrar was entitled to ignore the provisions of the Farnily Law of the RS
that concerned the division of property and liabilities owed by a spouse to a creditor,
rather than the determination of whether the assets constitute joint marital property.
Those provisions were irrelevant in determining whether assets constitute marital
propertyaccording to the marital property regime of RS. 4439

4433
Prosecutor v Tolimir, No. IT-05-88-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the
Decision of Trial Chamber II on the Registrar’s Decision on Legal Aid (12 November 2009) at para. 46
4434
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 20
4435
Prosecutor v Tolimir, No. IT-05-88-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the
Decision of Trial Chamber II on the Registrar’s Decision on Legal Aid (12 November 2009) at para. 31
4436
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 80
4437
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 24
4438
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 24
4439
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 25

719
 It is not acceptable that the resources of the accused’s close family members be
included for the financing of his defence in lieu of being used for their daily expenses and
all of the costs related to their basic needs. 4440

Registrar properly considered wife’s salary in accused’s disposable means.4441

Registrar did not err in including entire value of jointly owned family home in
calculation of means, rather than the ½ interest of the accused. 4442

Lack of consent of the Accused's spouse to the dissolution of marital property is

not a basis upon which the Accused can avoid his obligation to contribute towards his
defence. 4443

transfer of property

Registrar did not err in including accused’s equity in his family home beyond that
reasonably needed for his family in his disposable means, and in disregarding the transfer
of the accused’s interest in that property after his arrest.4444

A visible transfer of assets into the hands of someone the accused considers
immune from the Registry’s claims, and for no consideration, falls well within the
meaning of concealing. 4445

A transfer for no consideration may be considered to be concealment. 4446

The value of property found to have been concealed may be included in the
calculation of the accused’s means to remunerate counsel, even if he no longer owns the
property. 4447

withdrawal of counsel

4440
Prosecutor v Seselj, No. IT-03-67-T, Decision on Financing of Defence (2 November 2010) at para.
21(4)
4441
Prosecutor v Tolimir, No. IT-05-88-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the
Decision of Trial Chamber II on the Registrar’s Decision on Legal Aid (12 November 2009) at para. 34
4442
Prosecutor v Tolimir, No. IT-05-88-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the
Decision of Trial Chamber II on the Registrar’s Decision on Legal Aid (12 November 2009) at para. 24
4443
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 26
4444
Prosecutor v Tolimir, No. IT-05-88-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the
Decision of Trial Chamber II on the Registrar’s Decision on Legal Aid (12 November 2009) at paras. 22-
23
4445
Prosecutor v Prlic et al., No. IT-04-74-T, Decision on…Motion for Review of… Decision…Related to
the Contribution of the Accused to the Costs of his Defence (8 May 2013) at para. 16
4446
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 68
4447
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 68

720
 Withdrawal of counsel on appeal was not contrary to the interests of justice where
it had been determined that the accused had the means to fund his appeal. 4448

Article 11—decision by the Registrar

(A) After examining the declaration of means referred to in Article 7 and any
information obtained pursuant to Article 9, and having informed the suspect or
accused of his findings with respect to those means, the Registrar shall determine
whether and to what extent the suspect or accused is able to remunerate counsel,
and shall decide, providing reasons for his decision:
(i) without prejudice to Article 19, to assign counsel from the list drawn up in
accordance with Rule 45(B) of the Rules and Article 14; or
(ii) without prejudice to Article 19, that the suspect or accused disposes of means to
partially remunerate counsel and to assign counsel, in which case the decision shall
indicate which costs shall be borne by the Tribunal; or
(iii) not to grant the request for assignment of counsel.
(B) In the interests of justice, to ensure that the right to counsel is not affected while
the Registrar examines the declaration of means referred to in Article 7 and the
information obtained pursuant to Article 9, the Registrar may temporarily assign
counsel to a suspect or an accused for a period not exceeding 120 days.
(C) If a suspect or an accused:
(i) requests the assignment of counsel but does not comply with the requirements set
out above within a reasonable time; or
(ii) fails to obtain or to request the assignment of counsel; or
(iii) fails to elect in writing that he intends to conduct his own defence;
the Registrar may nevertheless, in the interests of justice, and without prejudice to
Article 19, assign him counsel from the list drawn up in accordance with Rule 45(B)
of the Rules.
(D) Where the Registrar decides to assign counsel in accordance with this Article,
the Registrar shall:
(i) assign the counsel selected by the suspect or accused from the list drawn up in
accordance with Rule 45(B), provided that there is no impediment to the assignment
of that counsel; or
(ii) if the suspect or accused fails to select a counsel from the list drawn up in
accordance with Rule 45(B) or if the Registrar determines that there is an
impediment to the assignment of the counsel selected, assign other counsel from that
list after hearing the suspect or accused.

Article 11 and its provisions allowing an accused to choose counsel does not
apply to counsel imposed by the Trial Chamber on a self-represented accused. 4449

4448
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 38
4449
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 29; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on

721
 Under Article 11(D), an accused must be provided with the list of counsel before
the Registrar can select a counsel for him. 4450

Since the accused continued to receive funds covering the costs of his defence
throughout the duration of the inquiry, he did not suffer any prejudice as a result of the
substantial amount of time the Registrar took in issuing the Registrar's Decision. 4451

Article 12—notification of decision

The Registrar shall notify the suspect or accused of his decision, and shall also notify
the counsel so assigned and the association of counsel of which he is a member.

Article 13—remedy against the Registrar’s decision

(A) The suspect whose request for assignment of counsel has been denied may,
within fifteen days from the date upon which he is notified of the decision, file a
motion before the President for review of that decision. The President may either
confirm the Registrar’s decision or rule that a counsel should be assigned.
(B) The accused whose request for assignment of counsel has been denied or who
has been found to have sufficient means to remunerate counsel in part, may within
fifteen days from the date upon which he is notified of that decision, file a motion to
the Chamber before which he is due to appear for review of the Registrar’s decision.
The Chamber may:
(i) confirm the Registrar’s decision; or
(ii) quash the Registrar’s decision and rule that counsel be assigned; or
(iii) direct the Registrar to reconsider the extent to which the accused is able to
remunerate counsel.

The administrative decision by the Registrar with respect to legal aid will be
quashed if the Registrar has failed to comply with the legal requirements of the Directive;
if the Registrar has failed to observe any basic rules of natural justice or to act with
procedural fairness towards the person affected by the decision, or if he has taken into
account irrelevant material or failed to take into account relevant material, or if he has
reached a conclusion which no sensible person who has properly applied his mind to the
issue could have reached. 4452

The accused bears the onus of persuasion. He must persuade the Chamber
conducting the review (a) that an error of the nature described has occurred, and (b) that

Radovan Karadzic’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey (12
February 2010) at para. 29
4450
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 31
4451
Prosecutor v Karadzic, No. IT-95-5/18-AR73.13, Decision on Appeal from Decision on Indigence (25
July 2014) at para. 37
4452
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw
Legal Aid from Zoran Zigic (7 February 2003) at para. 13

722
such error has significantly affected the Registrar’s decision to his detriment. If the
accused fails to persuade the Chamber of either of these matters, the Registrar’s decision
will be confirmed. 4453

Registrar was entitled to withdraw legal aid from accused where it was
demonstrated that he had income from fee-splitting with his attorneys which he could use
to pay the cost of his appeal. 4454

The Trial Chamber, and not the President, has the authority to review decisions by
the Registrar on denial of legal aid which impacts on the rights of the accused to a fair
trial. 4455

Trial Chamber has authority to review decision of Registrar where the matter goes
to the fairness of the trial, including adequate facilities for self-represented accused.4456

A Trial Chamber has jurisdiction to examine the decisions of the Registry on

issues of self-representation in light of its inherent power and duty to ensure the fair and
expeditious management of the proceedings. 4457

A Trial Chamber may intervene in a matter which is within the primary

competence of the Registry when that matter goes to the fairness of the trial and where
the power to review a decision of the Registrar is not specifically conferred upon the
President.4458

Decision of Trial Chamber in review of Registrar’s decision may also be reviewed

by the Appeals Chamber upon a grant of certification.4459

Trial Chamber had jurisdiction to issue order that accused receive public funds for
the conduct of his defence since the issue impacts the right of the accused to a fair and
expeditious trial. 4460

4453
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw
Legal Aid from Zoran Zigic (7 February 2003) at para. 14
4454
Prosecutor v Kvocka et al, No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw
Legal Aid from Zoran Zigic (7 February 2003)
4455
Prosecutor v Seselj, No. IT-03-67-PT, Decision on Appeals Against Decisions of the Registrar of 4
January 2007 and 9 February 2007 (26 April 2007)
4456
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused Motion for Adequate Facilities and
Equality of Arms: Legal Associates (28 January 2009) at para. 12; Prosecutor v Karadzic, No. IT-95-05/18-
PT, Decision on Accused Motion for Service of Documents (20 April 2009) at para. 3
4457
Prosecutor v Seselj, No. IT-03-67-T, Decision on Financing of Accused’s Defence (23 April 2009) at
para. 21
4458
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 21
4459
Prosecutor v Karadzic, No. IT-95-5/18-PT, Decision on Interlocutory Appeal of the Trial Chamber’s
Decision on Adequate Facilities (7 May 2009) at para. 9; Prosecutor v Tolimir, No. IT-05-88-AR73.2,
Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s
Decision on Legal Aid (12 November 2009) at para. 7

723
 President has authority to review decision of Registrar declining to assign counsel
of choice to detained witness. However, counsel who was not admitted to Rule 45 list
would not be assigned.4461

Accused person does not have standing in complaint of witness against denial of
assignment of counsel. 4462

President would not consider additional material submitted to Registrar after

decision on means to remunerate counsel where Registrar had given accused the
opportunity to provide such information prior to the decision. 4463

Article 14—qualifications and standing of counsel

(A) Any person may be assigned as counsel to a suspect or accused if the Registrar is
satisfied that he is admitted to the list of counsel envisaged in Rule 45(B) of the
Rules. A person is eligible for admission to the list if:
(i) he is admitted to the practice of law in a State, or is a university professor of law;
(ii) he has written and oral proficiency in one of the two working languages of the
Tribunal;
(iii) he possesses established competence in criminal law and/or international
criminal law/international humanitarian law/ international human rights law;
(iv) he possesses at least seven years of relevant experience, whether as a judge,
prosecutor, attorney or in some other capacity, in criminal proceedings;
(v) he has not been found guilty or otherwise disciplined in relevant disciplinary
proceedings against him in a national or international forum, including proceedings
pursuant to the Code of Conduct, unless the Registrar deems that, in the
circumstances, it would be disproportionate to exclude such counsel;
(vi) he has not been found guilty in relevant criminal proceedings;
(vii) he has not engaged in conduct whether in pursuit of his profession or otherwise
which is dishonest or otherwise discreditable to counsel, prejudicial to the
administration of justice, or likely to diminish public confidence in the International
Tribunal or the administration of justice, or otherwise bring the International
Tribunal into disrepute;
(viii) he has not provided false or misleading information in relation to his
qualifications and fitness to practice and has not failed to provide relevant
information;
(ix) he has indicated his availability and willingness to be assigned as counsel by the

4460
Prosecutor v Seselj, No. IT-03-67-R33B, Decision on the Registry Submissions Pursuant to Rule 33(B)
Regarding the Trial Chamber’s Decision on Financing of Defence Rendered on 8 April 2011 (17 May
2011) at paras. 20-21
4461
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision of the President on the Complaint of Milan Martic
Concerning the Appointment of Counsel (8 April 2013) at p. 3
4462
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision of the President on the Complaint of Milan Martic
Concerning the Appointment of Counsel (8 April 2013) at p. 3
4463
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 31

724
Registrar to any suspect or accused who lacks the means to remunerate counsel,
under the terms set out in this Directive; and
(x) he is a member in good standing of an association of counsel practising at the
Tribunal.
(B) Any person may be assigned as duty counsel to an accused for the purposes of
the initial appearance if the Registrar is satisfied that he is admitted to the list of
counsel envisaged in Rule 45
(C) of the Rules. A person is eligible for admission to that list if:
(i) he fulfils all the requirements of Article 14(A); and
(ii) he has informed the Registrar that he is readily available for assignment to an
accused for the purposes of the initial appearance in accordance with Rule 62 of the
Rules.
(C) A person who does not have written and oral proficiency in either of the two
working languages of the Tribunal but who speaks a language spoken in the
territory over which the Tribunal has jurisdiction, and who fulfils all other
requirements set out in Article 14(A), may be admitted to the list envisaged in Rule
45(B) of the Rules, if the Registrar deems it justified. Such person can be assigned
only as co-counsel in accordance with Article 16(D).
(D) The Registrar may, after giving counsel a warning and an opportunity to
respond, remove the name of counsel from the lists referred to in Rules 45(B) and
(C) of the Rules:
(i) upon a decision by a Chamber under Rule 46(A)(i) of the Rules, after consulting
with the Chamber; or
(ii) where counsel has been found to be in contempt pursuant to Rule 77 of the
Rules, after consulting with the Chamber; or
(iii) where counsel has been found guilty of a disciplinary offense under the Code of
Conduct, after consulting with the Chamber; or
(iv) where the Registrar has determined that counsel has provided false information
in relation to his or her qualifications to be admitted to the list, or has failed to
provide relevant information.
Counsel may seek review of the Registrar’s decision before the President within
fifteen days from the date upon which he is notified of that decision.
(E) The Registrar shall remove the name of counsel from the lists referred to in
Rules 45(B) and (C) of the Rules:
(i) upon a decision by a Chamber under Rule 46 (A)(ii) of the Rules;
(ii) upon a final decision of the Disciplinary Panel or Disciplinary Board that
counsel is banned from practicing before the Tribunal pursuant to Article 47(C)(vi)
of the Code of Conduct;
(iii) where counsel no longer satisfies the requirements of Article 14(A).
(F) The Registrar may deny a request for the assignment of a counsel where a
procedure pursuant to Rule 77 of the Rules or Part Three of the Code of Conduct
has been initiated against that counsel.
Counsel may seek review of the Registrar’s decision before the President within
fifteen days from the date upon which he is notified of that decision.
(G) A counsel admitted to the lists referred to in Rules 45(B) and (C) of the Rules
shall:

725
(i) confirm his continued availability to be assigned to indigent suspects or accused
every two years from the date of his admission to the list; and
(ii) immediately advise the Registrar if he is no longer available to represent a
suspect or accused for a period of more than 6 months.
If counsel fails to confirm his availability, the Registrar may, after giving notice to
counsel, remove his name from the list.

conflict of interest

A conflict of interest between an attorney and a client arises in any situation

where, by reason of certain circumstances, representation by such an attorney prejudices,
or could prejudice, the interests of the client and the wider interests of justice. 4464

Safeguarding the interests of justice requires the prevention of potential conflicts

of interest before they arise. This may include ordering the withdrawal of counsel. 4465

Where a Chamber can reasonably expect that due to a conflict of interest, a

counsel may be reluctant to pursue a line of defence, to adduce certain items in evidence,
or to plead certain mitigating factors at the sentencing stage in order to avoid prejudicing
another client, it can no longer presume that counsel has fulfilled his or her professional
obligations under the Code of Conduct and has the power and duty to intervene in order
to guarantee or restore the integrity of the proceedings without delay. 4466

For a conflict of interest to exist, there need not be substantial overlap between
the two matters of dual representation. What is prohibited is the representation that will,
or may reasonably be expected to, adversely affect the representation of either client. 4467

Former Croatian Minister of Justice had conflict of interest where it was likely he
would be called as a witness by the co-accused.4468 Where he refused to resign, Trial
Chamber refused him audience and ordered accused to obtain new counsel. 4469

4464
Prosecutor v Gotovina et al, No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal
Against Trial Chamber Decision on Conflict of Interest of Attorneys Cedo Prodanovic and Jadranka
Slokovic (29 June 2007) at para. 16
4465
Prosecutor v Gotovina et al, No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal
Against Trial Chamber Decision on Conflict of Interest of Attorneys Cedo Prodanovic and Jadranka
Slokovic (29 June 2007) at para. 16
4466
Prosecutor v Gotovina et al, No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal
Against Trial Chamber Decision on Conflict of Interest of Attorneys Cedo Prodanovic and Jadranka
Slokovic (29 June 2007) at para. 23
4467
Prosecutor v Gotovina et al, No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal
Against Trial Chamber Decision on Conflict of Interest of Attorneys Cedo Prodanovic and Jadranka
Slokovic (29 June 2007) at para. 24
4468
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Conflict of Interest of Attorney Miroslav
Separovic (27 February 2007)
4469
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Finding of Misconduct of Attorney
Miroslav Separovic (6 March 2007)

726
 Waiver of conflict of interest by accused was not determinative where
administration of justice would be adversely affected by representation of counsel with
conflict of interest.4470

Conflict of interest between counsel’s representation of co-accused’s subordinate

who might be a witness in the case, and the accused, could not be waived and required
that counsel withdraw from representing the accused. 4471

Consent by the clients is not conclusive of their being no conflict of interest. This
does not relieve the Trial Chamber of its obligation to maintain the integrity of the
proceedings.4472

Counsel required to withdraw from dual representation of accused and client

being prosecuted in a different jurisdiction, even where they received no confidential
information from the other client. 4473

Since a duty of loyalty also extends to a former client, withdrawal of counsel in

one of the two cases would not remove the conflict of interest.4474

Trial Chamber has authority to determine on its own whether conflict of interest
existed as a result of defence counsel’s former employment with OTP. Registry ordered
to furnish Trial Chamber and parties with reasons for its decision to appoint defence
counsel. 4475

Article 15—professional certification

(A) An applicant for admission to the lists envisaged in Rules 45(B) and (C) of the
Rules shall supply the Registrar with:
(i) a certificate of professional qualification issued by the competent professional or
governing body, including a certificate of current practice and good standing;
(ii) for applicants whose native language is not English or French, a certificate from
a language institute or other evidence of proficiency in English or French. The
Registrar may also require such applicants to demonstrate their language ability by

4470
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Finding of Misconduct of Attorney
Miroslav Separovic (6 March 2007) at p. 4
4471
Prosecutor v Gotovina et al, No. IT-06-90-PT, Decision on Conflict of Interest of Attorneys Cedo
Prodanovic and Jadranka Slokovic (5 April 2007)
4472
Prosecutor v Gotovina et al, No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal
Against Trial Chamber Decision on Conflict of Interest of Attorneys Cedo Prodanovic and Jadranka
Slokovic (29 June 2007) at para. 35
4473
Prosecutor v Gotovina et al, No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal
Against Trial Chamber Decision on Conflict of Interest of Attorneys Cedo Prodanovic and Jadranka
Slokovic (29 June 2007)
4474
Prosecutor v Gotovina et al, No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal
Against Trial Chamber Decision on Conflict of Interest of Attorneys Cedo Prodanovic and Jadranka
Slokovic (29 June 2007) at para. 48
4475
Prosecutor v Gotovina et al, No. IT-06-90-PT, Order to the Registrar Regarding Gregory Kehoe’s
Appointment as Defence Counsel for Ante Gotovina (25 June 2007)

727
means of a language proficiency test;
(iii) a resume which evidences established competence in criminal law and/or
international criminal law/international humanitarian law/international human
rights law and a minimum of seven years of relevant experience in criminal
proceedings;
(iv) the names and addresses of two referees, who practice in the fields of criminal
law, international humanitarian law, international human rights law or
international criminal law, and who are in a position to advise the Registrar as to
the professional competence of the applicants in these fields;
(v) certification that the applicant has not been found guilty in any criminal
proceeding or to indicate the acts for which he has been found guilty;
(vi) certification that the applicant has not been found guilty in any disciplinary
proceedings or to indicate the acts for which he has been found guilty; and
(vii) any other documentation that the Registrar may deem necessary.
(B) The Registrar may refer an applicant for admission to the lists referred to in
Rules 45(B) and (C) of the Rules to a panel composed of senior legal officers in
chambers, and/or counsel on the Rule 45(B) list who possess a minimum of 15 years
experience in criminal proceedings, to interview the applicant and to make a
recommendation to the Registrar on his application.
(C) An applicant who has been denied admission to the lists or who has been
removed from the lists pursuant to Article 14(E)(iii) may seek review of the
Registrar’s decision before the President within fifteen days from the date upon
which he is notified of that decision.

Article 16—basic principles

(A) A suspect or accused shall be entitled to have one counsel assigned to him.
Where suspects or accused are jointly charged or tried pursuant to the same
indictment, each shall be entitled to have a separate counsel assigned.
(B) The counsel assigned to represent a suspect or accused shall be referred to as the
lead counsel and shall be responsible for all aspects of the defence of the suspect or
accused before the Tribunal. Subject to Article 16 (C), the lead counsel shall sign all
documents submitted to the Tribunal.
(C) In the interests of justice and at the request of lead counsel, the Registrar may
assign a second counsel to assist with the defence of the suspect or accused. This
counsel shall be called the cocounsel. Acting under the authority of lead counsel, the
co-counsel may deal with all stages of the proceedings and all matters arising out of
the defence of the suspect or accused. The co-counsel may also be authorised, in
writing, to sign documents on behalf of the lead counsel.
(D) At the request of the lead counsel and where the interests of justice so require,
the Registrar may assign a co-counsel who does not speak either of the two working
languages of the Tribunal but who speaks the native language of the suspect or
accused. The Registrar may impose such conditions as deemed appropriate.
(E) At the request of the lead counsel, the Registrar may assign other persons such
as legal assistants, consultants, investigators and interpreters, as required, to
provide support to counsel. Only persons assigned or approved by the Registrar

728
may assist counsel with the defence of the suspect or accused. The lead counsel and
the persons assisting him shall be referred to as the defence team. The lead counsel
is responsible for selecting and supervising all defence team members, including
co-counsel.
(F) Members of the family or close friends of suspects, accused and counsel are not
eligible for assignment under the Directive as counsel, expert, legal assistant,
investigator, translator or interpreter, unless the Registrar determines that the
assignment is in the interests of justice.
(G) No counsel shall be assigned to more than one suspect or accused at a time,
unless:
(i) each accused has received independent legal advice from the Registrar and both
have consented in writing and
(ii) the Registrar is satisfied that there is no potential or actual conflict of interest or
a scheduling conflict, and that the assignment would not otherwise prejudice the
defence of either accused, or the integrity of the proceedings.
(H) Counsel assigned pursuant to Rule 62 of the Rules shall only represent the
accused for the purpose of the accused entering a plea, unless the Registrar, in
accordance with Article 25(B), deems it appropriate for the duty counsel to perform
work which exceeds the mandate of duty counsel but is required to protect the
rights of the accused until permanent counsel is assigned by the Registrar or
retained by the accused, or the accused elects in writing to conduct his own defence
pursuant to Rule 45(F) of the Rules.
(I) Lead counsel shall keep a complete and accurate case file of all documentation
related to the case and of all work performed by the defence team during the
representation of the suspect or accused. Subject to his obligations under the Code
of Conduct, lead counsel shall retain the case file for five years after the completion
of proceedings relating to the suspect or accused before the Tribunal.

co-counsel

The decision to appoint a co-counsel is to be made by Lead Counsel, subject to

approval by the Registrar. The Trial Chamber did not err in sustaining the appointment
of a co-counsel against the wishes of the accused. 4476

Registrar did not abuse discretion in refusing to appoint a second co-counsel and
refusing DSA for legal consultant who was fully participating in trial proceedings. 4477

Trial Chamber did not err in refusing to adjourn trial during absence of lead
counsel and requiring co-counsel to act in his absence. 4478

4476
Prosecutor v Blagojevic, No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal
by Vidoje Blagojevic to Replace his Defence Team (7 November 2003) at para. 21
4477
Prosecutor v Mladic, No. IT-09-92-T, Decision on Ratko Mladic’s Request for Review of OLAD
Decision on Additional Co-Counsel (30 September 2013) at paras. 21-22
4478
Prosecutor v Sainovic et al, No. IT-05-87-A, Judgement (23 January 2014) at para. 86

729
 simultaneous representation

Article 16(G)’s requirement that both accused consent to simultaneous

representation by a single counsel was not applicable to counsel imposed upon a self-
represented accused. 4479

Article 17—counsel-client privilege

(A) Notwithstanding counsel-client privilege as defined in Article 13(A)

“Confidentiality” of the Code of Conduct, the Registrar may, if he determines that
reasonable cause exists, require assigned counsel to provide information and
documentation, including that which is otherwise privileged or confidential, as may
be reasonably necessary for the Registrar to determine whether work for which
Tribunal legal aid funds have been claimed or paid, has been performed. For this
purpose, counsel shall allow the Registrar or the legal and investigative staff of the
Office for Legal Aid and Detention Matters to examine, on a strictly confidential
basis, any part of the case file, in accordance with Article 17(B). Disclosure of
privileged or confidential information or documentation under this article does not
negate or constitute waiver of counsel-client privilege.
(B) Counsel-client privilege shall extend to the Registrar or the legal and
investigative staff of the Office for Legal Aid and Detention Matters, in respect of
information or documentation obtained under Article 17(A).
(C) The general prohibition on the disclosure of privileged or confidential
information and documentation under Articles 17(A) and (B) shall not apply to the
Registrar or the legal andinvestigative staff of the Office for Legal Aid and
Detention Matters, where:
(i) the Registrar initiates a disciplinary proceeding against counsel under Part III of
the Code of Conduct in connection with Tribunal legal aid funds which have been
claimed or paid, and to which the claimant or payee was not entitled;
(ii) the Registrar initiates proceedings in a national jurisdiction in connection with
the administration of the Tribunal’s legal aid system, including the
misappropriation of Tribunal legal aid funds; or
(iii) disclosure is essential to establish a claim for recovery of funds from a person to
whom legal aid was granted in accordance with Article 11.

Article 18—counsel away from the seat of the Tribunal

(A) Away from the seat of the Tribunal, in a case of such urgency that the procedure
established in Article 7 cannot be followed, a suspect who, during the investigation,
requests assignment of counsel, may indicate the name of a counsel whose name
does not appear on the list envisaged in Rule 45(B) of the Rules, but who may be
assigned in accordance with this Directive.

4479
Prosecutor v Karadzic, No. IT-95-05/18-T, Decision on Accused’s Motion to Vacate the Appointment
of Richard Harvey (23 December 2009) at para. 33; Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on
Radovan Karadzic’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey (12
February 2010) at para. 29

730
(B) Where the suspect requesting assignment of counsel is unable to provide the
name of a counsel in accordance with Article 18(A), the Prosecutor, or a person
authorised by her or acting under her direction, shall obtain the name of a counsel
who may be assigned in accordance with the provisions of this Directive, and may
contact the local bar association for this purpose.
(C) In the situations envisaged in Articles 18(A) and (B), the procedure for
assignment of counsel as set out in this Directive shall apply mutatis mutandis but
shall be accelerated where necessary.

Article 19—ability to remunerate counsel

(A) Where counsel has been assigned, the Registrar may withdraw the assignment
of counsel if information is obtained which establishes that the suspect or accused
has sufficient means to remunerate counsel. In such cases, the Registrar may
recover the cost of providing counsel in accordance with Rule 45(E) of the Rules.
(B) Where counsel has been assigned, the Registrar may modify his decision on the
extent to which the suspect or accused is able to remunerate counsel if it is
established that the means of the suspect or accused:
(i) have changed since the Registrar issued his decision on the extent to which the
suspect or accused is able to remunerate counsel; or
(ii) were not fully disclosed, or were otherwise not known to the Registrar, as of the
date he issued his decision.
(C) The Registrar’s decision shall be reasoned and notified to the suspect or accused
and to the counsel assigned, and shall take effect from the date of notification.
(D) The provisions of Article 13 shall apply mutatis mutandis where a suspect or
accused seeks a review of a decision made pursuant to Articles 19(A) or (B).

The only power a Trial Chamber has on application to review the Registrar’s
decision on the appointment or withdrawal of counsel is to stay the trial pending review
of the Registrar’s decision by the President.4480

President stayed the Registrar’s order withdrawing counsel pending an appeal on

the issue of whether the accused could afford to pay the costs of his defence. 4481

Registrar did not act unreasonably in terminating legal aid during trial upon final
determination that accused had the means to remunerate his defence team, rather than
spreading the amount of the accused’s contribution over the appeal phase. 4482

4480
Prosecutor v Blagojevic, No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal
by Vidoje Blagojevic to Replace his Defence Team (7 November 2003) at para. 7
4481
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Slobodan Praljak’s Motion for Review of the
Registrar’s Decision on Means (28 August 2013) at para. 5
4482
Prosecutor v Karadzic, No. IT-95-5/18-T, President’s Decision on Request for Review of Registrar’s
Decision (8 October 2014) at para. 17

731
 Registrar did not err in failing to reach agreement with accused as to manner of
reduction in legal aid where amount of accused’s contribution exceeded amount of
remaining funds to be allocated by legal aid program. 4483

Article 20—withdrawal and suspension of assignment

(A) In the interests of justice, the Registrar may:

(i) at the request of the accused, or his counsel, withdraw the assignment of counsel;
(ii) at the request of lead counsel, withdraw the assignment of co-counsel.
Where a request for withdrawal has been denied, the person making the request
may seek the President’s review of the Registrar’s decision within fifteen days from
the date upon which he is notified of that decision.
(B) The Registrar may suspend the assignment of counsel for a reasonable and
limited time after consulting with the Chamber if:
(i) a disciplinary procedure under Part Three of the Code of Conduct has been
initiated against that counsel; or
(ii) contempt proceedings have been initiated against that counsel pursuant to Rule
77 of the Rules.
The counsel may seek the President’s review of a decision to suspend within fifteen
days from the date upon which he is notified of that decision.
(C) The Registrar shall withdraw the assignment of counsel:
(i) upon a decision of a Chamber under Rule 46(A)(ii); or
(ii) where counsel no-longer satisfies the requirements of Article 14(A); or
(iii) where counsel has been found to be in contempt pursuant to Rule 77 of the
Rules, unless the Chamber rules that the assignment should continue.
Where the assignment of counsel has been withdrawn pursuant to Article 20(C)(ii),
counsel may seek review of the Registar’s decision before the President within
fifteen days from the date upon which he is notified of that decision.
(D) In such cases, the withdrawal or suspension shall be notified to the accused, to
the counsel concerned, to the association of counsel of which he is a member, and to
his professional or governing body.
(E) Where the assignment of counsel is suspended, the Registrar shall immediately
assign replacement counsel to the suspect or accused. Where the assignment of
counsel is withdrawn, the Registrar may, subject to Article 21, assign a replacement
counsel. Where the assignment of counsel is withdrawn pursuant to Article 20(C),
the Registrar shall assign a replacement counsel.

Co-counsel has standing under this section to request his own withdrawal. 4484

Article 21—duties of counsel upon withdrawal

4483
Prosecutor v Karadzic, No. IT-95-5/18-T, President’s Decision on Request for Review of Registrar’s
Decision (8 October 2014) at para. 18
4484
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Urgent Request for Review of the Registry’s
Decision of 2 April 2015 and for a Decision on the Appellant’s Request of 15 January 2015 (7 May 2015)
at para. 12

732
(A) Assigned counsel shall continue to act until:
(i) a replacement counsel has been assigned by the Registrar; or
(ii) a replacement counsel has been retained by the suspect or accused pursuant to
Rule 44 of the Rules; or
(iii) the suspect or accused has elected in writing to conduct his own defence
pursuant to Rule 45(F) of the Rules and his election has been accepted by the
Chamber.
(B) In the interests of justice, the Registrar may instruct the previously assigned
counsel to continue to act or to assist the replacement counsel where one has been
retained or assigned, for a period not exceeding 30 days from the date upon which
replacement counsel is assigned or retained. During this period, the costs necessarily
and reasonably incurred by both assigned counsel shall be met by the Tribunal.

Article 22—payment pro rata temporis

Where an assigned counsel is replaced by another assigned counsel, he and his

replacement shall be remunerated pro rata temporis.

Article 23—responsibility for remuneration and expenses

(A) Where counsel has been assigned, the costs of legal representation of the suspect
or accused necessarily and reasonably incurred shall be met by the Tribunal in
accordance with the Statute, the Rules, this Directive and related policies and
subject to the budgetary provisions, rules, regulations, and practice set by the
United Nations. All costs are subject to prior authorisation by the Registrar.
If authorisation was not obtained, the Registrar may refuse to meet the costs.
(B) The Tribunal shall meet the following costs in so far as those costs are
reasonable and necessary in the circumstances to ensure that the rights of the
suspect or accused enshrined in Article 21 of the
Statute are upheld:
(i) the remuneration of assigned counsel and assigned members of the defence team;
(ii) expenses related to the production of evidence for the defence and the
ascertainment of facts;
(iii) expenses related to temporary consultancy on specific questions;
(iv) expenses related to the production of expert reports, which are paid at the rates
established in Annex I;
(v) expenses related to the accommodation and transportation of witnesses testifying
in court in accordance with the Directive on Allowances for Witnesses and Expert
Witnesses; and
(vi) expenses related to travel, travel taxes and similar duties.
(C) General office costs which include but are not limited to costs for telephone and
mail or express mail, photocopies, books and journals, lease of office space,
purchase of office equipment, office supplies and secretarial support, are included in
the remuneration of counsel. Where assigned counsel satisfies the Registrar that the
costs of international shipping of case related material exceeds ordinary office costs
and is reasonable and necessary, the Registrar shall meet those costs.

733
(D) The Registrar shall pay the costs referred to in Article 23(B) upon approval of a
statement of fees or expenses from lead counsel. The statement of fees or expenses
must be made out in accordance with the guidelines established by the Registrar
and, unless otherwise provided for, must be presented to the Registrar within 120
days from the last day of the month during which work was performed or the
expense was incurred.

complexity

The factors to take into consideration in determining the complexity of the case
include (1) the number and nature of counts in the indictment; (2) the possible
amendments of the indictment; (3) the nature of preliminary motions and challenges to
the Tribunal’s jurisdiction, (4) the number of accused joined in the same case; (5) the
number of witnesses and documents involved; (6) the geographical territory covered in
the indictment; (7) the previous ranking of the accused within the military or political
hierarchy; and (8) the legal issues expected to arise in the course of the trial. 4485

Registrar erred in refusing to consider increase in number of prosecution

witnesses as justifying an increase in the complexity level of the case. 4486

Registrar did not err in finding that single accused case did not require more
resources for a defence team than a multiple accused case. 4487

Registrar did not err in concluding that the scope of disclosure material or
geographical scope of the case did not warrant upgrading of complexity level of the
case. 4488

pre-trial

The Registrar erred in not considering the duration of the pre-trial period in
rejecting a request for additional funds, but the duration alone does not justify
overturning the Registrar’s determination. 4489

Registrar’s decision as to level of complexity of the case for legal aid purposes
may be reviewed by the Trial Chamber in light of the effect upon the fairness of the
trial. 4490

4485
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision on Defence Request for Review of the
Registrar’s Decision on the Level of the Case (3 March 2005) at page 3
4486
Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Second Urgent Request for Review of OLAD
Decision on Pre-Trial Funding (26 September 2012) at para. 19
4487
Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Second Urgent Request for Review of OLAD
Decision on Pre-Trial Funding (26 September 2012) at para. 15
4488
Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Second Urgent Request for Review of OLAD
Decision on Pre-Trial Funding (26 September 2012) at paras. 16-17
4489
Prosecutor v Milutinovic et al, No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for
Additional Funds (13 November 2003) at para. 25

734
 Registrar was unreasonable in failing to consider that volume of prosecution
disclosures, timing of disclosures relative to the start of the trial, and relevance of the
disclosures to the case were extraordinary circumstances requiring additional
remuneration.4491

Registrar was unreasonable in allocating 4500 hours to defence team of self-

represented accused where 7500 hours was considered necessary for support staff of
represented accused persons. 4492

procedural fairness

Procedural fairness demands that the Registrar identify the other cases which it
used to compare to the case at hand when denying additional remuneration.4493

Where Registrar only identified other cases which it used to compare to the case
at hand in its Response to the appeal from its decision, its decision would be reversed and
remanded for it to provide the information in its decision at first instance. 4494

After Registry disclosed the cases which it had used to compare to the current
case, its decision not to increase the complexity level of the case was found to be
reasonable.4495

standard of review

It must be shown that the Registrar (1) failed to comply with the requirements of
the Directive; (2) failed to observe any basis rules of natural justice; (3) took into account
irrelevant material or failed to consider relevant material; or (4) reached a conclusion that
no sensible person could reach.4496

trial

4490
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision on Defence Request for Review of the
Registrar’s Decision on the Level of the Case (3 March 2005) at page 3
4491
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appeal of OLAD Decision in Relation to
Additional Pre-Trial Funds (17 December 2009) at para. 23
4492
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appeal of OLAD Decision in Relation to
Additional Pre-Trial Funds (17 December 2009) at para. 29
4493
Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Request for Review of Decision on Pre-Trial
Funding (17 August 2012) at para. 17; Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Third Request
for Review of OLAD Decision on Pre-Trial Funding (18 December 2012) at para. 20
4494
Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Request for Review of Decision on Pre-Trial
Funding (17 August 2012) at para. 19
4495
Prosecutor v Hadzic, No. IT-04-75-PT, Decision on Third Request for Review of OLAD Decision on
Pre-Trial Funding (18 December 2012) at para. 24
4496
Prosecutor v Mrksic et al, No. IT-95-13/1-PT, Decision on Defence Request for Review of the
Registrar’s Decision on the Level of the Case (3 March 2005) at page 3

735
 Registar erred in concluding that volume of Rule 66(B) material was irrelevant to
funding decision. The fact that the requests of the accused under Rule 66(B) result in the
production of a large volume of material does not offer a reasonable basis for the
Registrar to conclude that the accused should not be afforded sufficient resources to deal
with it.4497

Decision of President allocating 750 hours per month to self-represented

accused’s defence team was reconsidered and an additional 270 hours per month was
awarded based upon the complexity of the case. 4498

unforeseen circumstances

Registrar did not err in refusing to reconsider level of funding for defence team on
basis other than unforeseen circumstances. Although unforeseen circumstances is not the
only factor that may be considered when reconsidering the level of funding, the failure to
demonstrate unforeseen circumstances may justify denial of reconsideration. 4499

The test for allocation of defence team funding is objective, rather than subjective.
Therefore the fact that the accused foresaw the need for additional funds is not
determinative.4500

Article 24—remuneration of assigned counsel

(A) From 1 December 2004, during pre-trial proceedings, assigned counsel and
assigned members of the defence team shall be remunerated in accordance with the
Defence Counsel Pre-Trial Legal Aid Policy. In cases where pre-trial proceedings
commenced before 1 December 2004, assigned counsel and assigned members of the
defence team shall continue to be remunerated on the basis of a maximum allotment
of working hours paid at a fixed hourly rate as established in Annex I to this
Directive, for the work reasonable and necessary for the preparation of the defence
case for trial.
(B) During trial proceedings, assigned counsel and assigned members of the defence
team shall be remunerated in accordance with the Defence Counsel Trial Legal Aid
Policy.
(C) During appellate proceedings, assigned counsel and assigned members of the
defence team shall be remunerated on the basis of a maximum allotment of working
hours paid at a fixed hourly rate as established in Annex I to this Directive, for the
work reasonable and necessary to the preparation and presentation of the defence
case.

4497
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Decision on Defence
Team Funding (31 January 2012) at para. 31
4498
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Decision on Defence
Team Funding (31 January 2012) at para. 40
4499
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Decision on Defence
Team Funding (31 January 2012) at para. 23
4500
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Decision on Defence
Team Funding (31 January 2012) at para. 25

736
(D) Without prejudice to Article 6(C), assigned counsel and assigned defence team
members who receive remuneration from the Tribunal shall not accept
remuneration for the assignment from any other source.

awaiting judgement

It was unreasonable for the Registrar to refuse to remunerate legal advisor to self-
represented accused for time spent reviewing material from ongoing related case where
the charges in the related case were identical, the defence had been given access to the
related case by that Chamber, and the history of disclosure violations by the
Prosecution. 4501

It was unreasonable for the Registrar to refuse to remunerate legal advisor to slef-
represented accused for preparation of post-trial motions to reopen defence case in the
absence of an order from the Chamber to withhold payment under Rule 73. 4502

Registrar was unreasonable in conditioning remuneration for work on post-trial

motions on whether motion was successful. 4503

Remuneration for work on post-trial motions cannot be contingent on success of

motion or whether motion was filed at all. 4504

It was reasonable for legal advisor to self-represented accused to review

information which became available after the trial and examine its potential relevance to
the defence. The Registrar was unreasonable when failing to remunerate legal advisor for
this work.4505

It was unreasonable for Registrar to refuse to remunerate legal advisor to self-

represented accused for time spent responding to requests for information from Registry
and Prosecution in the post-trial period. The legal advisor was required to perform such
tasks in order to serve the best interests of the accused. 4506

It was unreasonable for Registrar to refuse to remunerate legal advisor to self-

represented accused for work done to seek reclassification of confidential material to

4501
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at paras. 27-29
4502
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 33
4503
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 36
4504
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 36
4505
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 36
4506
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 39

737
public and vice versa. 4507

Registrar was unreasonable in refusing to remunerate legal advisor to self-

represented accused during post-trial period on the grounds that the work should have
been performed during the trial. 4508

Registrar was unreasonable in refusing to remunerate legal advisor to self-

represented accused for reviewing pleadings in the case during post-trial period, but
properly denied remuneration for reading pleadings in other cases. 4509

Assistance of legal advisor for accused to correspond with the news media was
not necessary and therefore it was not error for the Registrar to deny remuneration for
time spent on those tasks.4510

It was reasonable for the Registrar to refuse to remunerate legal advisor to self-
represented accused for time spent requesting approvals for post-trial work from
OLAD.4511

appeal

Registrar failed to act with procedural fairness when denying remuneration of 50

hours to defence team to consider whether to file a cross-appeal after the prosecution
appealed the accused’s acquittal.4512

The scope, volume, and nature of additional disclosures during the appeal phase
were were not such as to warrant an allocation of additional hours for the appeal. 4513

It was unreasonable to conclude that 7,500 pages of disclosure during the appeal
phase was foreseeable and therefore the Registrar’s rejection of additional hours to
review this disclosure was reversed.4514

Defence failed to establish that the time between preparation of the briefs and the

4507
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 40
4508
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 41
4509
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 44
4510
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 45
4511
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 47
4512
Prosecutor v Stanisic & Simatovic, No. IT-03-69-A, Decision on Request for Review of OLAD Decision
on Remuneration for the Appeal Phase (20 August 2014) at para. 17
4513
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Prlic’s Request for Review of the Registrar’s
Decision on Remuneration for Additional Funds in the Appeals Phase (26 April 2016) at para. 19
4514
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Request for Review of OLAD Decisions on
Appeal Phase Remuneration (25 May 2010) at para. 31

738
appeal hearing was so long as to necessitate unforeseeable supplementary preparation and
thus a supplemental remuneration. 4515

The need to discuss the trial judgement with one’s client during the appeal phase,
prepare for final arguments and discuss the appeals judgement after it is rendered are
tasks typical of all appeals before the Tribunal and therefore do not warrant an increase in
allocation of funds on appeal. 4516

The need to discuss the trial judgement with one’s client once it has been
translated into a language the client understands is a foreseeable task and did not warrant
an increase in the appeal phase remuneration for counsel. 4517

Responding to the Trial Chamber judgement, liasing with the defendant,

rectifying self-made errors in the notice of appeal, and preparing for the oral appeal
hearing were not unforeseen and therefore the Registrar did not abuse his discretion in
refusing additional remuneration for these tasks. 4518

Where defence counsel accepted to work on the appeal under the remuneration
system in place, he could not complain that he had been required to work “without
pay”. 4519

Article 25—remuneration of duty counsel

(A) Duty counsel assigned pursuant to Rule 62 of the Rules shall be remunerated at
a fixed rate of €1,688 in accordance with the Defence Counsel Pre-Trial Legal Aid
Policy.
(B) Where exceptionally, the circumstances of the case require work to be
performed which exceeds the mandate of duty counsel, the duty counsel shall obtain
authorisation from the Registrar prior to performing such work. Where
authorisation is granted, the Registrar shall remunerate duty counsel for such
additional work at the rates established in Annex I to this Directive.

Article 26—travel expenses

(A) Subject to prior authorisation by the Registrar, travel expenses of assigned

counsel and where applicable, assigned members of the defence team shall be met in
accordance with the Registry Defence Travel and Daily Subsistence Allowance

4515
Prosecutor v Lukic & Lukic, No. IT-98-32/1-A, Decision on Request for Review of OLAD Decision
Denying Additional Funding (22 November 2011) at para. 11
4516
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Request for Review of OLAD Decisions on
Appeal Phase Remuneration (25 May 2010) at para. 27
4517
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Request for Review of Registry
Determination on Appeal Phase Remuneration (23 February 2011) at para. 25
4518
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Prlic’s Request for Review of the Registrar’s
Decision on Remuneration for Additional Funds in the Appeals Phase (26 April 2016) at para. 20
4519
Prosecutor v Sainovic et al, No. IT-05-87-A, Decision on Request for Review of OLAD Decisions on
Appeal Phase Remuneration (25 May 2010) at para. 29

739
Policy.
(B) Travel expenses of assigned counsel and where applicable, assigned members of
the defence team who do not usually reside in the territory of the host country or in
the country where the particular stage of the procedure is being conducted, shall be
met by the Registrar on the basis of one economy class standard fixed-date round
trip air ticket or one first class train ticket by the shortest route to and from the
country where the procedure is being conducted and within the limits set out
in the Registry Defence Travel and Daily Subsistence Allowance Policy.
(C) Travel expenses of assigned counsel and where applicable, assigned members of
the defence team who usually reside in the territory of the host country but not in
the town where they are acting, shall be met by the Registrar on the basis of either
first class public transportation tickets or fixed rates as established by the United
Nations Schedule of Rates of Reimbursement for Travel by Private Motor Vehicle
applicable to different groups of Countries and Territories, per kilometre
travelled on the outward and return journeys by the shortest route, within the limits
set out in the Registry Defence Travel and Daily Subsistence Allowance Policy.
(D) All travel authorisation requests and amendments thereof shall be submitted to
the Registrar at least seven days before the proposed travel unless it can be
demonstrated that circumstances beyond the control of the defence team prevented
the traveler from complying with this requirement. The Registrar may refuse to
cover additional costs associated with a failure to comply with this requirement.
Where such a failure causes the Tribunal to incur additional costs, the Registrar
may deduct those costs from payments otherwise due to the traveller.

Article 27—daily subsistence allowance

(A) Subject to prior authorisation by the Registrar, daily subsistence allowance for
assigned counsel and where applicable, assigned members of the defence team, shall
be paid by the Registrar in accordance with the Registry Defence Travel and Daily
Subsistence Allowance Policy.
(B) Daily subsistence allowance paid to assigned counsel and where applicable,
assigned members of the defence team shall be calculated on the basis of fixed rates
as established by the United Nations Schedule of Daily Subsistence Allowance Rates
applied to the number of days of work. Neither assigned counsel, nor assigned
members of the defence team shall be entitled to daily subsistence allowance while
staying at their place of residence.
(C) Daily subsistence allowance shall be paid in accordance with the United Nations
rules and regulations on the basis of the current rates applicable in the country
where assigned counsel, or where applicable, assigned members of the defence team,
are acting.
(D) In accordance with United Nations regulations, the applicable rate shall be
lowered by twenty-five percent when assigned counsel or where applicable, assigned
members of the defence team have spent more than 60 days in total from the date of
their assignment, in a country in which they are acting.
(E) Where appropriate in the circumstances, the Registrar may provisionally pay
daily subsistence allowances in advance.

740
Article 28—translation and interpretation costs

(A) The Tribunal shall provide translation and interpretation services or meet the
cost of such services as reasonably necessary to protect the rights of a suspect or
accused enshrined in Article 21 of the Statute.
(B) The Registry Translation Services Policy sets out the type of documents
translated and the interpretation services provided by the Tribunal to the suspect or
accused and his defence team.
(C) Translation and interpretation services other than those provided by the
Tribunal in accordance with the Registry Translation Services Policy shall be
organised by the defence team. The cost ofthese services shall be met by the
resources allocated to the defence team in accordance with Article 24.

Article 29—adoption and amendment of policies

The policies referred to in Articles 24, 26, 27, and 28 shall not be adopted or
amended by the Registrar without prior consultation with the associations of
counsel.

Article 30—responsibility for payments

All sums payable to assigned counsel and assigned members of a defence team
under the provisions of this Directive shall be paid by the Financial Officer of the
Registry.

Article 31—settlement of disputes over payment

(A) Where a dispute arises over remuneration or reimbursement of expenses and

where the sum involved is less than €1,000, an aggrieved party may request the
Head of the Registry’s Office of Legal Aid and Detention Matters to review and
decide upon the matter.
(B) Where a dispute arises over remuneration or reimbursement of expenses and
where the sum involved is between €1,000 and €4,999, an aggrieved party may
request the Registrar to review the matter. The Registrar shall decide on the matter
personally or assign the Deputy Registrar to do so on his behalf. Before reaching his
decision, the Registrar or Deputy Registrar shall invite submissions from the
aggrieved party and the respondent and may consult with the President if
necessary. The decision of the Registrar or Deputy Registrar shall be final and
binding upon the parties. The review procedure envisaged in this article applies also
where an aggrieved party demonstrates that individual claims involving amounts
less than €1,000 are part of the same dispute as they relate to the same or similar
subject matter.
(C) Where the dispute involves a sum greater than €4,999, an aggrieved party may
file a request for review with the Registrar, who shall refer the matter to the
President for his determination. Before making a determination the President shall
request submissions from the aggrieved party and the respondent. The President’s

741
determination shall be final and binding upon the parties.
(D) Requests for review of decisions of the Registrar on the extent to which an
accused is able to remunerate counsel shall be brought before the Chamber seised of
the case in accordance with Article 13(B).

Judicial economy was best served by President’s consideration of request for

review, even though it had not been made to Registrar for submission to President as
required by Article 31(D).4520

Registrar erred in denying reconsideration of his decision to reduce funding of

defence teams during period of preparation of closing briefs without consulting with the
President.4521

Registrar’s denial of assignment of investigators without adequate explanation

violated right of accused to procedural fairness and required remand of decision to
Registrar.4522

Administrative decisions are not pronouncement of Delphic oracles and should be

comprehensible on their face.4523

Sufficient explanation of the rationales underlying administrative decisions is

crucial to assuring that the Tribunal both acts and is seen to act in a fair manner, guides
parties in their interactions with the Tribunal, and permits focused applications for
review. 4524

Registrar should exercise particular caution before attempting to determine the

inner functioning of individual defence teams, and the role that specific team members
may play therein, especially with respect to ancillary employees such as investigators.4525

Decision by Registrar to terminate legal aid payments after Appeals Chamber

upheld decision that accused had to contribute to the cost of his defence was not a matter
concerning the “extent” to which the accused was able to remunerate counsel within the

4520
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Appeal of OLAD Decision in Relation to
Additional Pre-Trial Funds (17 December 2009) at para. 19
4521
Prosecutor v Prlic et al, No. IT-04-74-T, Decision on Joint Motion…Regarding Reconsideration of the
Registry Decision of 9 November 2010 (16 December 2010) at pp. 5-6
4522
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Request for Review of Registrar Decision
and for Summary Reversal (7 May 2012) at para. 9
4523
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Request for Review of Registrar Decision
and for Summary Reversal (7 May 2012) at para. 10
4524
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Request for Review of Registrar Decision
and for Summary Reversal (7 May 2012) at para. 11
4525
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on the Request for Review of Registrar Decision
and for Summary Reversal (7 May 2012) at para. 12

742
meaning of Article 31(D) and jurisdiction to review the decision lay with the President
and not the Trial Chamber.4526

Counsel was not entitled to disclosure of the results of consultations between the
Registrar and Appeals Chamber concerning request for increase in allocation for appeals
phase.4527

Registrar’s claim that legal advisor to self-represented accused had no standing to

seek review from the President of Registrar’s remuneration decision was moot where the
request for review was also signed by the accused.4528

Article 32—advisory panel

(A) An Advisory Panel shall be set up consisting of two persons chosen by the
President in consultation with the Registrar and the association(s) of counsel of
which they are members from the list referred to in Rule 45(B) of the Rules who
have appeared before the Tribunal, two persons proposed by the International Bar
Association, two persons proposed by the Union Internationale des Avocats, and the
President of the Nederlandse Orde van Advokaten or his representative. Each
member of the Advisory Panel must have a minimum of ten years legal experience.
(B) The President of the Advisory Panel will be the President of the Nederlandse
Orde van Advokaten or his representative. The membership of the Advisory Panel
shall come up for appointment every two years on the anniversary date of the entry
into force of this Directive.

Article 33—role and function of the advisory panel

(A) The role of the Advisory Panel is to provide advice to the President of the
Tribunal, the Registrar and the associations of counsel, including but not limited to:
(i) Those Rules of Procedure and Evidence which affect the rights of suspects and
accused and the work of defence counsel before the Tribunal;
(ii) The Directive on the Assignment of Defence Counsel;
(iii) The Code of Conduct; and
(iv) The policies and practice directions of the Tribunal.
(B) The Advisory Panel may be consulted as and when necessary by the President of
the Tribunal, the Registrar of the Tribunal, and the Presidents of the associations of
counsel on matters referred to in Article 33(A).
(C) The Advisory Panel may also on its own initiative address the President of the
Tribunal, the Registrar or the Presidents of the associations of counsel on the
matters referred to in Article 33(A).
4526
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar Decision (5
September 2014) at para. 16; Prosecutor v Karadzic, No. IT-95-5/18-T, President’s Decision on Request
for Review of Registrar’s Decision (8 October 2014) at para. 14
4527
Prosecutor v Prlic et al, No. IT-04-74-A, Decision on Prlic’s Request for Review of the Registrar’s
Decision on Remuneration for Additional Funds in the Appeals Phase (26 April 2016) at para. 18
4528
Prosecutor v Karadzic, No. IT-95-5/18-T, Decision on Request for Review of Registrar’s Decision on
Remuneration for October 2014-January 2015 (12 October 2015) at para. 23

743
(D) The Advisory Panel shall meet at least once per year, and as often as the Chair
of the Advisory Panel deems necessary. Upon the invitation of the Advisory Panel,
the President of the Tribunal, the Registrar, or the Presidents of the associations of
counsel, or their representatives, may attend the meetings of the Advisory Panel.

744
Code of Professional Conduct for Defence Counsel

Article 1—definitions

(A) In this Code, unless the context otherwise requires, the following terms shall
mean:
Code: The Code of Professional Conduct for Counsel Appearing Before the
International Tribunal in force;
Directive: The Directive on Assignment of Defence Counsel (IT/73) adopted on 1
August 1994, as subsequently amended;
Rules: The Rules of Procedure and Evidence of the Tribunal adopted on 11
February 1994, as subsequently amended;
Statute: The Statute of the Tribunal adopted by Security Council resolution 827 of
25 May 1993, as subsequently amended;
Tribunal: The 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, established by Security Council
resolution 827 of 25 May 1993.
***
Advisory Panel: Body established to assist the President and the Registrar in all
matters relating to defence counsel under Rule 44 (D) of the Rules;
Association of Counsel: An association recognised by the Registrar in accordance
with Rule 44 of the Rules;
Client: An accused, suspect, detainee, witness or other person who has engaged
counsel or has been assigned counsel by the Registry;
Counsel: Any person who is or has been engaged by a client and has filed a power of
attorney with the Registrar; who is or has been assigned by the Registrar to
represent a client; or who is in communication with a prospective client;
Firm: Persons belonging to a private firm, a legal department of an organisation or
a legal services organisation;
Parties: The Prosecution and the Defence;
Team: Counsel, co-counsel, legal and non-legal associates and other persons who
perform services for counsel for the purpose of representing a client before the
Tribunal.
(B) Any term not defined in this Code has the same meaning given to it by the
Statute or by the Rules.
(C) General provisions of this Code should not be read or applied in a restrictive
way by reason of any particular or illustrative provisions.
(D) In this Code, the masculine shall include the feminine and the singular the
plural, and vice versa.

Article 2—entry into force

This Code shall enter into force on 12 June 1997.

745
Article 3—basic principles

This Code is based, in particular, on the fundamental principles that:

(i) clients have the right to legal assistance of their own choosing;
(ii) as legal practitioners, counsel shall maintain high standards of professional
conduct;
(iii) the role of counsel as advocates in the administration of justice requires them
to act honestly, independently, fairly, skilfully, diligently, efficiently and
courageously;
(iv) counsel have a duty of loyalty to their clients consistent with their duty to the
Tribunal to act with independence in the administration of justice;
(v) counsel shall take all necessary steps to ensure that their actions do not bring
proceedings before the Tribunal into disrepute; and
(vi) counsel may be subject to disciplinary proceedings and should be informed of
the circumstances under which such proceedings may take place and his rights
and obligations in those proceedings.

Statement by counsel implying that Tribunal had demonized Serbia constituted

misconduct for which a public reprimand was warranted. 4529

Discipline for making a statement disparaging of the Tribunal did not violate the
right to free expression of the lawyer. 4530

There is no greater duty upon lawyers assigned by the Tribunal to represent an

indigent accused than upon those who are privately retained to refrain from public
criticism of the Tribunal. 4531

Article 4—conflicts

If there is any inconsistency between this Code and any other codes of practice and
ethics governing counsel, the terms of this Code prevail in respect of counsel’s
conduct before the Tribunal.

Article 5—authentic texts

The English and French texts of this Code shall be equally authentic. In case of
discrepancy, the version that is more consonant with the spirit of the Statute, the
Rules, the Directive and this Code shall prevail.

4529
In Re Toma Fila, No. IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board (8 July 2013) at
para. 84
4530
In Re Toma Fila, No. IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board (8 July 2013) at
para. 87
4531
In Re Toma Fila, No. IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board (8 July 2013) at
para. 89

746
Article 6—amendments

(A) Under the supervision of the President, amendments shall be promulgated by

the Registrar after consultation with the permanent Judges, the Association of
Counsel and the Advisory Panel.
(B) An amendment shall enter into force seven days after the date of issue of an
official Tribunal document containing the amendment, but shall not operate to
prejudice the rights of counsel or clients in any pending case.

Article 7—purpose

The purpose of this Part is to provide for standards of conduct for counsel in the
interests of the fair and proper administration of justice.

Article 8—scope of representation

(A) Counsel shall advise and represent a client until counsel’s representation is
terminated by the client or withdrawn by the Registrar.
(B) When representing a client, counsel shall:
(i) abide by the client’s decisions concerning the objectives of representation;
(ii) consult with the client about the means by which those objectives are to be
pursued, but is not bound by the client’s decision; and
(iii) seek or accept only those instructions which emanate from the client and which
are not given as the result of an inducement from any person, organisation or
State.
(C) Counsel shall not advise or assist a client to engage in conduct which counsel
knows is criminal or fraudulent, in breach of the Statute, the Rules, this Code or
any other applicable law and, where counsel has been assigned to the client, the
Directive. However, counsel may discuss the legal consequences of any proposed
course of conduct with a client and may advise or assist a client in good faith to
determine the validity, scope or meaning of the applicable law.

The accused does not have a right to be consulted on each and every action taken
by defence counsel in his case.4532 The lawyer is obligated to consult with the accused,
but is not bound to carry out the views of the accused about what is best for his
defence. 4533

Article 9—termination of representation

(A) Counsel shall not represent a client if:

(i) representation will result in conduct which is criminal, fraudulent or a violation
of the Statute, the Rules, this Code or any other applicable law;

4532
Prosecutor v Blagojevic, No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal
by Vidoje Blagojevic to Replace his Defence Team (7 November 2003) at para. 26
4533
Prosecutor v Blagojevic, No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal
by Vidoje Blagojevic to Replace his Defence Team (7 November 2003) at para. 27

747
(ii) counsel’s physical or mental condition materially impairs counsel’s ability to
represent the client; or
(iii) counsel’s representation is terminated by the client or withdrawn by the
Registrar.
(B) Counsel may terminate or request, if applicable subject to the provisions of the
Directive, withdrawal of his representation of a client if such termination or
withdrawal can be accomplished without material adverse effect on the interests of
the client, or if:
(i) the client has used counsel’s services to perpetrate a crime or fraud, or persists
in a course of action involving counsel’s services that counsel reasonably
believes is criminal or fraudulent;
(ii) the client insists upon pursuing an objective that counsel considers repugnant
or imprudent;
(iii) the client fails to substantially fulfil an obligation to counsel regarding
counsel’s services and has been given reasonable warning that counsel will
terminate or request withdrawal of his representation unless the obligation is
fulfilled; or
(iv) other good cause for termination or withdrawal exists.
(C) Subject to leave from the Chamber, if representation by counsel is to be
terminated or withdrawn, counsel shall not do so until a replacement counsel is
engaged by the client or assigned by the Registrar, or the client has notified the
Registrar in writing of his intention to conduct his own defence.
(D) Upon termination or withdrawal of representation, counsel shall take steps to
the extent reasonably practicable to protect the client’s interests, such as giving
sufficient notice to the client, surrendering papers and property to which the client
or the Tribunal is entitled and refunding any advance payment of fee that has not
been earned.

Where the accused unjustifiably resists legal representation from assigned

counsel, counsel’s professional obligations to continue to represent the accused
remain. 4534

Counsel who accepted the assignment, aware of the system of renumeration of

assigned counsel, could not withdraw under the belief that they were not given adequate
resources to defend the accused.4535

Article 10—competence, integrity, and independence

In the course of providing representation to a client, counsel shall:

(i) act with competence, skill, care, honesty and loyalty;
(ii) exercise independent professional judgement and render open and honest
advice;

4534
Prosecutor v Blagojevic, No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal
by Vidoje Blagojevic to Replace his Defence Team (7 November 2003) at para. 54
4535
Prosecutor v Milutinovic et al, No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for
Additional Funds (13 November 2003) at para. 22

748
(iii) never be influenced in the matter of his representation;
(iv) preserve their own integrity and that of the legal profession as a whole;
(v) never permit their independence, integrity and standards to be compromised by
external pressures.

Article 11—diligence

Counsel shall represent a client diligently and promptly in order to protect the
client’s best interests. Unless the representation is terminated or withdrawn, counsel
shall carry through to conclusion all matters undertaken for a client within the
scope of his legal representation.

Article 12—communication
Counsel shall keep a client informed about the status of a matter before the
Tribunal in which the client is an interested party and must promptly comply with
all reasonable requests for information.

Article 13—confidentiality

(A) Whether or not counsel continues to represent a client, counsel shall preserve
the confidentiality of the client's affairs and shall not reveal to any other person,
other than to members of his team who need such information for the performance
of their duties, information which has been entrusted to him in confidence or use
such information to the client's detriment or to his own or another client's
advantage.
(B) Notwithstanding paragraph (A), counsel may reveal information which has been
entrusted to him in confidence under the following circumstances:
(i) when the client has been fully consulted and knowingly consents; or
(ii) when the client has voluntarily disclosed the content of the communication to a
third party, and that third party then gives evidence of that disclosure; or
(iii) when essential to establish a claim or defence on behalf of counsel in a
controversy between counsel and the client, to establish a defence to a criminal
or disciplinary charge or other claim formally instituted against counsel based
upon conduct in which the client was involved, or to respond to allegations in
any proceeding concerning counsel’s representation of the client; or
(iv) for counsel assigned by the Registrar pursuant to the Directive, when necessary
to comply with that counsel’s obligations under Article 17 of the Directive; or
(C) to prevent an act which counsel reasonably believes:
(i) is, or may be, criminal within the territory in which it may occur or under the
Statute or the Rules; and
(ii) may result in death or substantial bodily harm to any person unless the
information is disclosed.

Article 14—conflict of interest

(A) Counsel owes a duty of loyalty to a client. Counsel also has a duty to the

749
Tribunal to act with independence in the interests of justice and shall put those
interests before his own interests or those of any other person, organisation or State.
(B) Counsel shall exercise all care to ensure that no conflict of interest arises.
(C) Counsel shall not represent a client in connection with a matter in which counsel
participated personally and substantially as an official or staff member of the
Tribunal or in any other capacity, unless the Registrar determines, after
consultation with the parties and taking account the views of the Chamber, that
there is no real possibility shown that a conflict between the former and present
assignment exists.
(D) Counsel or his firm shall not represent a client with respect to a matter if:
(i) such representation will be, or may reasonably be expected to be, adversely
affected by representation of another client;
(ii) representation of another client will be, or may reasonably be expected to be,
adversely affected by such representation;
(iii) the matter is the same or substantially related to another matter in which
counsel or his firm had formerly represented another client (“former client”),
and the interests of the client are materially adverse to the interests of the
former client; or
(iv) counsel’s professional judgement on behalf of the client will be, or may
reasonably be expected to be, adversely affected by:
(1) counsel’s responsibilities to, or interests in, a third party; or
(2) to counsel’s own financial, business, property or personal interests.
(E) Where a conflict of interest does arise, counsel shall:
(i) promptly and fully inform each potentially affected present and former client
of the nature and extent of the conflict; and
(ii) either:
(1) take all steps necessary to remove the conflict; or
(2) obtain the full and informed consent of all potentially affected present
and former clients to continue the representation unless such consent is
likely to irreversibly prejudice the administration of justice.

Where both accused were charged with the same criminal acts and are linked by a
relatively close superior-subordinate relationship at the relevant time, it would be a
conflict of interest for the same counsel who represented one accused to subsequently
represent the other,4536 or to simultaneously represent both in different trials. 4537

The Trial Chamber has the inherent power to review the decision of the Registrar
concerning conflict of interest.4538

4536
Prosecutor v Delic, No. IT-04-83-PT, Decision on Motion Seeking Review of the Registry Decision
Stating that Mr. Stephane Bourgeon Cannot be Assigned to Represent Rasim Delic (10 May 2005)
4537
Prosecutor v Prlic et al, No. IT-04-74-AR73.1, Decision on Appeal of Bruno Stojic Against Trial
Chamber’s Decision on Request for Appointment of Counsel (24 November 1994) ; Prosecutor v Mejakic
et al, No. IT-02-75-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest
Regarding Attorney Jovan Simic (6 October 2004) at para. 7
4538
Prosecutor v Mejakic et al, No. IT-02-75-AR73.1, Decision on Appeal by the Prosecution to Resolve
Conflict of Interest Regarding Attorney Jovan Simic (6 October 2004) at para. 7

750
 A conflict of interest between an attorney and a client arises in any situation
where, by reason on certain circumstances, representation by such an attorney prejudices,
or could prejudice the interests of the client or the wider interests of justice. 4539

Registrar acted unreasonably when it refused assignment of legal associate to the

accused who had worked on related case on the grounds that self-represented accused had
no lead counsel who could police potential breaches of duty of loyalty and
confidentiality. 4540

Conflict of interest existed where counsel, as former Minister of Justice,

contended that the Ministry was not responsible for the military courts, whereas it may be
in interests of his client, a General, to contend otherwise. 4541

Conflict of interest in former prosecutor working as defence counsel extends to

when a prosecutor has worked in the same case, but not working in part on the same
factual basis. 4542

While position in Office of the Prosecutor may have afforded counsel insight into
the functioning of the Office of the Prosecutor and investigations ongoing at the time,
including information about the factual background of the present case, the attorney did
not obtain any undue advantage that would impact on the fairness of the proceedings. 4543

Client’s consent is not a remedy for conflict of interest where administration of

justice would be prejudiced by continued representation by counsel. One of the limits of
the accused’s choice of counsel is a conflict of interest.4544

Article 15—sexual relations with clients

Counsel shall not:

(i) require or demand sexual relations with a client as a condition of professional
representation;

4539
Prosecutor v Gotovina et al, No. IT-06-90-AR73.1, Decision on Miroslav Saparovic’s Interlocutory
Appeal Against Trial Chamber Decisions on Conflict of Interest and Finding of Misconduct (4 May 2007)
at para. 23
4540
Prosecutor v Karadzic, No. IT-95-05/18-PT, Decision on Accused Request for Judicial Review of the
Registry Decision on the Assignment of Mr. Marko Sladojevic as Legal Associate (20 April 2009) at
para.15
4541
Prosecutor v Gotovina et al, No. IT-06-90-AR73.1, Decision on Miroslav Saparovic’s Interlocutory
Appeal Against Trial Chamber Decisions on Conflict of Interest and Finding of Misconduct (4 May 2007)
at para. 24
4542
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s and Mladen Markac’s Joint
Motion to Resolve Conflict of Interest Regarding Attorney Gregory Kehoe (29 November 2007) at page 8
4543
Prosecutor v Gotovina et al, No. IT-06-90-T, Decision on Ivan Cermak’s and Mladen Markac’s Joint
Motion to Resolve Conflict of Interest Regarding Attorney Gregory Kehoe (29 November 2007) at pages 9-
10
4544
Prosecutor v Gotovina et al, No. IT-06-90-AR73.1, Decision on Miroslav Saparovic’s Interlocutory
Appeal Against Trial Chamber Decisions on Conflict of Interest and Finding of Misconduct (4 May 2007)
at paras. 32, 37

751
(ii) employ coercion, intimidation or undue influence in sexual relations with a
client; or
(iii) represent or continue to represent a client with whom counsel has or had sexual
relations if such sexual relations may reasonably be expected to result in violations
of this Code.

Article 16—client under a disability

When a client’s ability to make adequately considered decisions in connection with

his representation is affected because of a mental disability, his status as a minor or
any other reason, counsel shall:
(i) inform the Judge or Chamber hearing the matter, if any, of the client’s mental
disability or status as a minor; and
(ii) take such steps as are necessary to ensure the adequate legal representation of
that client.

Article 17—consultations with clients at liberty

(A) Counsel shall not consult with a client on provisional release or at liberty at the
client’s place of residence.
(B) Notwithstanding paragraph (A), counsel may exceptionally consult with a client
at his residence if illness, physical disability or other constraints restrict the client’s
mobility and preferably in the presence of an independent person.

Article 18—fee splitting

(A) Fee-splitting arrangements, including but not limited to financial arrangements,

between assigned counsel and their clients, relatives and/or agents of their clients
are prohibited by the Tribunal.
(B) Where assigned counsel are being requested, induced or encouraged by their
clients to enter into fee-splitting arrangements, they shall advise their clients on the
prohibition of such practice and shall report the incident to the Registrar forthwith.
(C) Counsel shall inform the Registrar of any alleged fee-splitting arrangement by
any member of his or any other defence team.
(D) Following receipt of information regarding possible fee-splitting arrangements
between assigned counsel and their clients, the Registrar shall investigate such
information in order to determine whether it is substantiated.
(E) Where assigned counsel is found to have engaged in a practice of fee-splitting or
to have entered into a fee-splitting arrangement with his client, the Registrar shall
consider taking action in accordance with the Directive.
(F) Where the Registrar has granted leave, counsel may provide their clients with
equipment and materials necessary for the preparation of their defence.

Article 19—fees and compensation

(A) Counsel, other than counsel assigned by the Registrar, shall provide to a client,

752
in writing and before counsel is engaged to represent a client, a statement of costs of
representation, including:
(i) the basis for calculating the costs;
(ii) the billing arrangements; and
(iii) the client’s right to receive a bill of costs.
(B) Counsel, other than counsel assigned by the Registrar, shall not accept
compensation for representing a client from a source other than that client unless:
(i) that client consents in writing after being fully informed by counsel of the
source and any other information relevant to the interests of the client; and
(ii) there is no interference with counsel’s independence of professional judgement
nor with the client-counsel relationship.
(C) Counsel, if assigned by the Registrar, shall not accept compensation for
representing a client except as provided for under the Directive.

Article 20—rules of the Tribunal

Counsel shall at all times comply with the Statute, the Rules, this Code or any other
applicable law including such rulings as to conduct and procedure as may be issued
by the Tribunal in its proceedings. Counsel shall at all times have due regard to the
fair conduct of proceedings.

Article 21—discriminatory conduct

Counsel shall not engage directly or indirectly in discriminatory conduct in relation

to any other person because of race, colour, ethnic or national origin, nationality,
citizenship, sex, sexual orientation, marital status, disability, religion or political
persuasion.

Article 22—communication with Chambers

Unless permitted by the Rules, this Code or the Judge or Chamber hearing the
matter, counsel shall not:
(i) make contact with a Judge or Chamber in relation to the merits of a particular
case, except within the proper context of the proceedings in the case; or
(ii) submit exhibits, notes or documents to a Judge or Chamber without
transmitting them through the Registry, except in an emergency or when at the
same time transmitted to the Registry.

Article 23—candour toward the Tribunal

(A) Counsel shall be personally responsible toward the Tribunal for the conduct and
presentation of a client’s case.
(B) Counsel shall not knowingly:
(i) make an incorrect statement of material fact or law to the Tribunal; or
(ii) offer evidence which counsel knows to be incorrect.
(C) Notwithstanding paragraph (B)(i), counsel will not have made an incorrect

753
statement of material fact or law to another party to the proceedings or to the
Tribunal simply by failing to correct an error on any matter stated to counsel or to
the Tribunal during proceedings.
(D) Counsel shall take all necessary steps to correct an incorrect statement of
material fact or law by counsel in proceedings before the Tribunal as soon as
possible after counsel becomes aware that the statement was incorrect.
(E) Counsel may refuse to offer evidence if counsel makes a reasoned determination
that the material in question is irrelevant or lacks probative value.

Article 24—integrity of evidence

Counsel shall at all times maintain the integrity of evidence, whether in written, oral
or any other form, which is or may be submitted to the Tribunal.

Article 25—meritorious proceedings and claims

Counsel shall not bring or defend a proceeding or action unless there is a basis for
doing so that is not frivolous. It shall not be considered frivolous for counsel to
defend a proceeding so as to require that every element of the case be established.

Article 26—counsel as witness

Counsel shall not act as an advocate in a proceeding in which counsel is likely to be

a necessary witness except where:
(i) the testimony relates to an uncontested issue;
(ii) the testimony relates to the nature and value of legal services rendered in the
case; or
(iii) substantial hardship would be caused to the client if that counsel does not so
act.

Former Minister of Justice properly disqualified as counsel to accused where

coaccused and Trial Chamber had not ruled out possibility of calling him as a witness. 4545

Article 27—persons participating in the proceedings

(A) Counsel shall demonstrate respect, integrity and courtesy for officials and staff
members of the Tribunal and for all persons who facilitate and participate in the
proceedings.
(B) Counsel shall not seek to influence or communicate with a Judge, official, or
staff member of the Tribunal by means prohibited by the Statute, the Rules, this
Code or any other applicable law.
(C) Counsel shall recognise the representatives of the parties as professional
colleagues and shall act fairly, honestly and courteously towards them.

4545
Prosecutor v Gotovina et al, No. IT-06-90-AR73.1, Decision on Miroslav Saparovic’s Interlocutory
Appeal Against Trial Chamber Decisions on Conflict of Interest and Finding of Misconduct (4 May 2007)
at para. 18

754
(D) Counsel shall not communicate with the client of another counsel without the
authorisation of that client’s counsel unless permitted under the Rules, this Code or
any other applicable law.

Article 28—victims and witnesses

(A) Counsel shall not use any means that have no substantial purpose other than to
embarrass, delay or burden victims and witnesses, or use coercive or other methods
of obtaining evidence that violate the Statute, the Rules or this Code.
(B) Counsel shall not make any payments in monies or assets to witnesses or
potential witnesses for the purpose of unduly influencing or inducing such witnesses
or potential witnesses.

Article 29—unrepresented persons

(A) Counsel communicating, on behalf of a client, with a person who is not

represented by counsel (“unrepresented person”), shall not:
(i) knowingly mislead the unrepresented person, to the prejudice of that person,
concerning the identity and interests of counsel’s client;
(ii) coerce, harass or threaten the unrepresented person or his relatives;
(iii) state or imply that counsel is disinterested;
(iv) make other statements prohibited by applicable law;
(v) fail to disclose information required by applicable law; or
(vi) give advice to the unrepresented person, except to retain counsel and in relation
to matters specified under paragraph (B), if the interests of that person are or
may reasonably be expected to be in conflict with the interests of his client.
(B) Whether or not a conflict exists or may exist with the interests of counsel’s
client, counsel shall inform the unrepresented person of:
(i) the role counsel plays in the matter;
(ii) the person’s right to counsel under the Rules; and
(iii) the nature of legal representation in general.

Article 30—prospective clients

Counsel shall not:

(i) contact a prospective client, his relatives or acquaintances directly or
indirectly;
(ii) solicit work from a prospective client, if:
(1) the prospective client, his relatives or acquaintances have made known to
counsel a desire not to be solicited by counsel; or
(2) the solicitation involves behaviour such as fraud, undue influence, coercion,
duress or harassment; or
(iii) make false, misleading or deceptive communications to a prospective client,
his relatives or acquaintances about the counsel or another counsel’s services.

755
Article 31—referral fees

(A) Counsel shall not demand or accept from another counsel or any other person a
fee, commission or any other compensation for referring or recommending the
counsel to a client.
(B) Counsel shall not pay any person a fee, commission or any other compensation
as a consideration for referring a client to the counsel.

Article 32—responsibilities of supervising counsel

(A) Counsel having direct supervisory authority over another counsel in his team
shall make reasonable efforts to ensure that the other counsel adheres to this Code.
(B) Counsel shall be responsible for another counsel’s violation of this Code if:
(i) counsel orders, or with knowledge of the specific conduct, approves the
conduct involved; or
(ii) counsel has direct supervisory authority over the other counsel, and knew or
had reason to know of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.

Article 33—responsibilities of subordinate counsel

(A) Counsel is bound by this Code notwithstanding that counsel acted at the
direction of another counsel.
(B) Counsel reasonably acting in accordance with a supervisory counsel’s
reasonable resolution of an arguable question of professional duty shall not be
considered to have violated this Article.

Article 34—responsibility for other team members

(A) Counsel having direct supervisory authority over other members of his team
shall make reasonable efforts to ensure that such members’ conduct is compatible
with the professional obligations of counsel.
(B) Counsel shall be responsible for the conduct of other members of his team who
provide services for counsel that would be a violation of this Code if engaged by
counsel if:
(i) counsel orders or, with knowledge of the specific conduct, approves the
conduct involved; or
(ii) counsel has direct supervisory authority over the team member, and knows of
the conduct at a time when its consequences can be avoided or mitigated but fails to
take reasonable remedial action.

Article 35—misconduct

It shall be professional misconduct for counsel, inter alia, to:

(i) violate or attempt to violate the Statute, the Rules, this Code or any other
applicable law, or to knowingly assist or induce another person to do so, or to

756
do so through the acts of another person;
(ii) commit a criminal act which reflects adversely on counsel’s honesty,
trustworthiness or fitness as counsel;
(iii) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(iv) engage in conduct which is prejudicial to the proper administration of justice
before the Tribunal; or
(v) provide inaccurate information or fail to disclose information regarding
counsel’s qualifications to practice before the Tribunal as set out in the Rules
and, where counsel has been assigned to a client, the Directive.

Material delay in disclosing discipline in national jurisdiction violated the Code of

Professional Conduct regardless of fact that sanction had not yet been determined. 4546

A counsel may be guilty of failing to disclose that he was no longer a member of

the bar even if no prejudice is shown. 4547

There is no liability under this section for continuing to represent clients after no
longer meeting the qualifications under the Rules. 4548

Non-disclosure of appointment as Legal Advisor to Deputy Prime Minister of

Serbia was not a grave violation of the code of conduct.4549

Article 36—reporting misconduct

In accordance with the disciplinary regime set out in Part Three of this Code,
counsel shall inform the Disciplinary Panel if counsel knows that another counsel
has breached this Code or has otherwise engaged in professional misconduct.

Article 37—purpose

The purposes of this Part are:

(A) to protect clients and other individuals, and particularly witnesses from counsel
who have not discharged, will not discharge or are unlikely to discharge their
professional responsibilities and to provide every person the right to submit a
complaint about the conduct of counsel;
(B) to ensure compliance by individual counsel with the necessary standards of
professionalism, competence, diligence and honesty and to maintain at a
significantly high level the ethics and practice of the legal system operated by the
Tribunal; and

4546
In Re Brashich, No. IT-39-A, Decision in the Appeal by the Registrar to the Disciplinary Board (22
March 2007) at para. 29
4547
In Re Toma Fila, No. IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board (8 July 2013) at
para. 32
4548
In Re Toma Fila, No. IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board (8 July 2013) at
para. 26
4549
In Re Toma Fila, No. IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board (8 July 2013) at
para. 46

757
(C) to guarantee that procedural fairness is applied to any disciplinary proceedings
taken against counsel.

Article 38—inherent powers of the Tribunal

This Part shall not affect the inherent powers of the Tribunal to deal with conduct
which interferes with the administration of justice under the Statute, the Rules or
any other applicable law.

Article 39—filings, decisions, and orders

Unless otherwise provided in this disciplinary regime, all filings, decisions and
orders in relation to the disciplinary regime shall be submitted in confidence to, or
transmitted by, the Registry in a working language of the Tribunal. The Registry
shall maintain all records for the purposes of this disciplinary regime.

Article 40—disciplinary panel

(A) A Disciplinary Panel shall deal with all matters relating to counsel ethics. The
Panel shall consist of:
(i) a member of the Association of Counsel to be appointed in accordance with the
Association’s statute;
(ii) a member of the Advisory Panel having practised at the Tribunal to be
appointed by the President of the Advisory Panel;
(iii) the Registrar of the Tribunal, or a senior Registry legal official designated by
him.
(B) The members of the Panel shall select at its first meeting a counsel chairperson
from amongst its members. The chairperson shall be appointed for a term of two
years.
(C) Except as otherwise provided by this Code, the Panel may determine its own
procedure for the filing of briefs and presentation of argument.
(D) Complaints concerning the conduct of a counsel or a member of his team
relating to matters before the Tribunal and specified in Article 35 shall be submitted
to the Chairperson of the Panel in accordance with Article 39. Where the Panel
itself has reasonable grounds to suspect that counsel or a member of his team has
engaged in such conduct, it may commence, proprio motu, an investigation into the
matter.

Article 41—submission of complaints

(A) Complaints may be submitted by a client, a party to proceedings before the

Tribunal, or any other person, organisation or State whose rights or interests could
be substantially affected by an alleged misconduct.
(B) The complaint, which shall be in writing and submitted in accordance with
Article 39, shall identify the complainant and the counsel against whom the
complaint is made, and describe in sufficient detail the alleged misconduct of the

758
counsel.
(C) The complaint shall be submitted within twelve months after the alleged
misconduct is brought to the attention of the complainant or within twelve months
after the complainant should have reasonably known about the existence or
occurrence of the alleged misconduct. The Disciplinary Panel may pursue
complaints after these deadlines if the matter is of general importance for the
Tribunal or in the interests of justice in a pending case.

Article 42—summary dismissal of complaints

In consultation with the Duty Judge of the Tribunal, the Disciplinary Panel may
dismiss a complaint if it is vexatious, misconceived, frivolous, lacking in substance
or out of time.

Article 43—withdrawal of complaints

(A) By notice in writing served on the Chairperson of the Disciplinary Panel, a

complaint may be withdrawn by the complainant in writing. The withdrawal of a
complaint does not impact upon the Panel’s competencies under Article 40 (D) to
investigate the matter raised in the complaint.
(B) The withdrawal of the complaint does not prevent a further complaint being
made under this Part by the same or any other complainant, with respect to the
subject matter of the withdrawn complaint; or action being taken on any other
complaint made with respect to that matter.

Article 44—investigation of alleged misconduct

(A) The Disciplinary Panel shall conduct, as soon as possible, an investigation into
the alleged misconduct specified in Article 35, provided that a complaint is not
summarily dismissed.
(B) In the investigation of the conduct, the Panel:
(i) shall send particulars of the conduct to the respective counsel or team member
(“respondent”) in a language he understands, and invite him to submit a written
explanation in response to the complaint;
(ii) may order, by notice served in writing, the respondent to:
(1) produce, at any time and place specified in the notice, any books,
documents, papers, accounts or records that are in his possession or
under his control and that relate to the subject-matter of the complaint; or
(2) otherwise assist in, or co-operate with, the investigation of the complaint
in a specified manner.
(C) The Disciplinary Panel may inspect any book, document, paper, account or
record produced in accordance with paragraph (B)(ii)(1) and may retain it for such
period as it deems necessary for the purposes of the investigation. For the purpose
of investigating an alleged misconduct of counsel involving allegations of fee-
sharing, the Panel may request the Registrar to provide information on his related
inquiries into the financial status of an accused, if any.

759
(D) Any respondent who, without reasonable justification or excuse, refuses or fails
to comply with any order or requirement of the Disciplinary Panel under this
Article may be fined by the Disciplinary Panel with a penalty of up to 10,000 €.

Article 45—interim suspension from practice

(A) At any time after a complaint against a respondent has been filed or the
Disciplinary Panel has commenced an investigation proprio motu, if there are
reasonable grounds to conclude that the alleged misconduct is likely to cause
immediate and irreparable harm to the interests of justice, a party to the
proceedings, a witness, the respondent’s client or any other prospective client, the
Panel may, without prior notice to the respondent, issue a reasoned order that the
respondent be suspended from practicing before the Tribunal until the charge has
been heard and disposed of.
(B) If counsel is representing a suspect or accused while the Disciplinary Panel
considers an order for suspension, the Panel must obtain approval from the
Presiding Judge of the Chamber in front of which counsel appears before issuing an
order.
(C) The respondent, or his client, may at any time apply to the President of the
Tribunal for the revocation of the order. The President of the Tribunal shall review
such application within seven days after it has been received and may grant or
refuse the application as he deems fit.

Article 46—charges against counsel

(A) The Disciplinary Panel shall inquire into each particularised allegation, and if
there are reasonable grounds that the counsel has committed misconduct, formulate
charges against counsel.
(B) The Disciplinary Panel may order, if it is in the interests of justice, the joinder
of:
(i) more than one charge against the same respondent; or
(ii) a charge against one or more respondents if all the charges are founded on the
same, or closely related, acts or omissions.
(C) During the course of the inquiry, the respondent shall be provided the
opportunity to file a reply to the allegation in the charge in accordance with the
rules of the Disciplinary Panel.
(D) If there are any material issues of fact raised in the pleadings or if the
respondent requests the opportunity to be heard in mitigation, the Disciplinary
Panel shall hold a hearing in public at the seat of the Tribunal unless it decides,
proprio motu or upon application by the respondent, to exclude the public.
(E) During the hearing the respondent shall have the right to be represented by
counsel, to examine evidence submitted by the complainant or gathered by the
Disciplinary Panel, cross-examine witnesses and to present evidence. The
complainant, if any, shall be permitted to address the Disciplinary Panel concerning
the respondent’s alleged misconduct and its effect on him.
(F) The Disciplinary Panel may admit any evidence which is relevant or which has

760
probative value, whether oral or written, whether direct or hearsay and whether or
not the same would be admissible in a court of law.
(G) Every witness appearing before the Disciplinary Panel shall, before giving
evidence, make the solemn declaration as set out in the Rules. The provisions of the
Rules relating to false testimony under solemn declaration shall apply, mutatis
mutandis, to witnesses appearing before the Disciplinary Panel.

Article 47—findings and sanctions

(A) The findings of the Disciplinary Panel on each charge shall be rendered, in
consultation with the Duty Judge of the Tribunal, by the majority of its members
and shall be accompanied by a reasoned opinion in writing, to which separate or
dissenting opinions may be appended.
(B) The Disciplinary Panel may conclude its proceedings without a finding of
misconduct, or dismiss any charge. The Panel may suspend or dismiss a complaint,
before, during or after the investigation of the complaint, if it is in the interests of
justice to do so or it fails to find reasonable grounds to conclude that the respondent
committed the alleged misconduct.
(C) A respondent against whom a charge of professional misconduct has been found
proved beyond a reasonable doubt may be sentenced by the Disciplinary Panel to
be, either alternatively or cumulatively:
(i) admonished by the Disciplinary Panel;
(ii) given advice by the Disciplinary Panel as to his future conduct;
(iii) publicly reprimanded by the Disciplinary Panel;
(iv) ordered to pay a fine of up to 50,000 € to the Tribunal;
(v) suspended from practising before the Tribunal for an appropriate fixed period
of time not exceeding two years;
(vi) banned from practising before the Tribunal.
(D) In addition to any of the sanctions imposed under Article 47 (C), where the
Disciplinary Panel finds, beyond a reasonable doubt that the respondent’s
misconduct has resulted in:
(i) the loss or misuse of the Tribunals’ legal aid funds, or that additional legal aid
funds must be expended as a result of such misconduct; or
(ii) where the complainant is a privately paying client, a financial loss on the part
of the client
the Disciplinary Panel may order the respondent to make monetary restitution by
reimbursing the Tribunal, or the privately paying client, in whole or in part such
expended funds or fees paid. In determining the amount to be reimbursed, the
Disciplinary Panel shall have regard to the amount of compensation for services
actually rendered by the respondent that the Panel considers reasonable for the
respondent to retain.
(E) In determining the sentence imposed, the Disciplinary Panel must take into
account any mitigating factors it considers relevant, including, inter alia, the fact
that the respondent was acting pursuant to a provision of another code of practice
and ethics which governs his conduct and that provision is inconsistent with this
Code. A sentence must be proportionate in view of the misconduct.

761
(F) The decision of the Disciplinary Panel shall be notified in writing to the
complainant, if any, and to the respondent in a language the respondent
understands.
(G) A copy of the decision shall be communicated to the Association of Counsel as
well as the professional body regulating the conduct of the respondent in his State of
admission, or to the governing body of the university where counsel is a law
professor.
(H) The Registry shall take such action as may be required to enforce the sentence.

There is no provision for requiring counsel to make restitution for amounts earned
after he should have notified the registry of his suspension. 4550 Fine of $10,000
imposed.4551

Article 48—Appeal to the Disciplinary Board

(A) In cases where one or more charges of professional misconduct have been
proved, the respondent may file an appeal with the Disciplinary Board within
fourteen days of notification of the decision of the Disciplinary Panel.
(B) In cases where the Disciplinary Panel has decided that a charge has not been
proved, the Registrar may file an appeal with the Disciplinary Board within
fourteen days of notification of the decision to the respondent.
(C) The Disciplinary Board may hear appeals filed by the respondent or the
Registrar after the fourteen day deadline if the matter is of general importance for
the Tribunal or in the interests of justice in a pending case.
(D) The Disciplinary Board shall consist of:
(i) three Judges to be appointed by the President of the Tribunal;
(ii) two members of the Association of Counsel, to be appointed for a two year
period, and in accordance with the Association’s statute. No member of the
Disciplinary Panel shall be a member of the Disciplinary Board at the same
time.
(E) No Judge who sat as a member of the Chamber before which the respondent
appeared shall be eligible to sit as a member of the Disciplinary Board on the
hearing or determination of any charge against the respondent for professional
misconduct.
(F) The members of the Disciplinary Board shall, at its first meeting, select a
chairperson from amongst their number.
(G) Except as otherwise provided by this Code, the Disciplinary Board may
determine its own procedure for the filing of briefs and presentation of argument.
During its review, however, the Disciplinary Board shall not receive or consider any
evidence that was not presented to the Disciplinary Panel, unless it considers that
the interests of justice so require.
(H) The Disciplinary Board may dismiss an appeal if it is vexatious, misconceived,

4550
In Re Brashich, No. IT-39-A, Decision in the Appeal by the Registrar to the Disciplinary Board (22
March 2007) at para. 43
4551
In Re Brashich, No. IT-39-A, Decision in the Appeal by the Registrar to the Disciplinary Board (22
March 2007) at para. 51

762
frivolous, lacking in substance or out of time.
(I) Any respondent who, without reasonable justification or excuse, refuses or fails
to comply with any order or requirement of the Disciplinary Board under this
Article may be fined by the Board with a penalty of up to 10,000 €.
(J) The Disciplinary Board may confirm, reverse or modify the decision on appeal.
(K) In any case in which the respondent has given notice of appeal to the
Disciplinary Board, the actions set out in Article 47 paragraph (G) shall be deferred
until the appeal has been disposed of by the Disciplinary Board with or without a
hearing. The Board may at any time after it was seized order a measure in
accordance with Article 45 (A). Article 45 (B) does not apply.
(L) The decision of the Disciplinary Board is final, and shall in particular not be
subject to any remedy before the President or a Chamber of the Tribunal.

Proof of misconduct before the disciplinary board must be beyond a reasonable

4552
doubt.

Disciplinary Board reviews findings of the disciplinary panel under the same
standard of review as that employed by the Appeals Chamber. 4553

Article 49—costs

(A) If a respondent is sentenced by the Disciplinary Panel, and an appeal is not filed,
or by the Disciplinary Board, the respondent shall bear the costs of the procedure.
These costs consist of necessary and reasonable travel costs of the Panel or Board
members in accordance with the Tribunal’s practice for travel of defence counsel, if
any, and an office expenses lump sum of up to 1,000 € to be determined by the
Disciplinary Panel or Board.
(B) If a proceeding or complaint is dismissed by the Disciplinary Panel, and an
appeal is not filed, or by the Disciplinary Board, the Tribunal bears the costs of the
proceedings, unless the Panel or Board decides, on the basis of reasonable cause,
that the respondent should bear up to fifty percent of the costs.
(C) All costs shall be paid to the Registrar.

Article 50—non bis in idem

Once a proceeding or complaint has been finally adjudicated by:

(i) the Disciplinary Panel, and an appeal has not been filed to the Disciplinary
Board within fourteen days of notification, save as provided by Article 48 (C);
or
(ii) the Disciplinary Board,
no further action shall be taken by the Disciplinary Panel or Disciplinary Board
against the respondent with respect to the subject matter of the proceeding or

4552
In Re Brashich, No. IT-39-A, Decision in the Appeal by the Registrar to the Disciplinary Board (22
March 2007) at para. 19
4553
In Re Toma Fila, No. IT-13-93-Misc.1, Decision on Appeals to the Disciplinary Board (8 July 2013) at
para. 14

763
complaint.

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