ICTY (Appeals Chamber): Prosecutor v. Delalić (&quot;Čelebići Case&quot;)*

Daryl A. Mundis

doi:10.1017/S0020782900011323

* Branislav A. Marić is Assistant Editor of Publications at the American Society of International Law. This abstract originally appeared in the Society's International Law In Brief, which is archived at <http://www.asil.org.>

* This document was reproduced and reformatted from the text appearing at the ICTY website (visited April 26, 2001) <http://www.un.org/icty>. Due to the substantial length of the original document and the ILM space limitations, the ILM Office decided to reproduce chapters I-IV, XI-XIII, and XV of the judgment. Please note that included table of contents only covers the chapters that are reproduced in this ILM issue.

1 Prosecutor v Zejnil Delalic] Zdravko Mucicalso known as “Pavo”, Hazim Delic, Esad Landzo also known as “Zenga”, Case No: IT-96-21-T, Trial Chamber, 16 Nov 1998 (“Trial Judgement”). (For a list of designations and abbreviations used in this Judgement, see Annex B).

2 Trial Judgement, para 721.

3 Trial Judgement, pp 424-428.

4 Trial Judgement, pp 441-443.

5 Trial Judgement, pp 429-434.

6 Trial Judgement, pp 443-446.

7 Trial Judgement, pp 290-394.

8 Trial Judgement, pp 447-449.

9 Hazim Delić's Ground 8, as set out in the Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000, reads: Whether the Trial Chamber erred in holding that the conflict in Bosnia-Herzegovina was an international armed conflict at the times relevant to this indictment. Counsel for Delić presented the arguments in relation to this ground of appeal on behalf of all appellants at the hearing.

10 Zdravko Mucić's Ground 5, as set out in Appellant Zdravko Mucić's Final Designation of His Grounds of Appeal, 31 May 2000, reads: Whether the Trial Chamber erred in holding that the conflict as described in this case in Bosnia-Herzegovina was an International Armed Conflict at the times relevant to this indictment.

11 Esad Landžo's Ground 5, as set out in the Landžo Brief, reads: The Trial Chamber erred in law and fact in finding that an international armed conflict existed with reference to the events alleged to have occurred at the Čelebići camp.

12 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v U.S.) (Merits), 1986 ICJ Reports 14 (“Nicaragua“).

13 In addition, Delić argues that the Prosecution included the allegation of international armed conflict in each count of the Indictment. Consequently in his view, all the counts should be dismissed, as this allegation has become an element of each offence charged. Moreover, it is argued that because the Prosecution relied on the allegation of an international conflict to invoke the Tribunal's jurisdiction, the Appeals Chamber should dismiss the entire indictment for lack of subject-matter jurisdiction. Delić Brief, paras 227-248.

14 Aleksovski Appeal Judgement, para 107.

15 Aleksovski Appeal Judgement, paras 108-110 (footnote omitted).

16 Although the appellants’ and the Prosecution's Briefs were filed prior to the issue of the Aleksovski Appeal Judgement, the appellants and the Prosecution were given an opportunity to present submissions on these issues at the hearing.

17 Tadi ć Appeal Judgement, para 87.

18 Ibid, para 97 (emphasis in original).

19 The other categories Idj on account of their actual behaviour within the structure of a State, regardless of the existence of State instructions, paras 141-144.

20 Tadi ćAppeal Judgement, para 131 (emphasis added).

21 Tadi ćAppeal Judgement, para 137.

22 Id (emphasis in original).

23 Tadi ćAppeal Judgement, para 116.

24 Ibid, para 117.

25 Ibid, para 121.

26 Ibid, para 123.

27 Ibid, paras 124, and 125-136.

28 Delić Reply, para 99; also adopted by Landžo.

29 At the appeal hearing counsel for Delić submitted that the Tribunal is bound by the ICJ's decisions because the ICJ is the “primary judicial organ of the organisation of the United Nations” (Appeal Transcript, p 375), and “essentially the Supreme Court of the United Nations” (ibid, p 376), whereas the Tribunal is “an organ of another principal organ, the Security Council” (ibid, p 375).

30 Appeal Transcript, p 379.

31 Appeal Transcript, p 379.

32 Appeal Transcript, p 380.

33 Appeal Transcript, p 380. The transcript records the Prosecution as referring to the decision as being made in the case of Anatole Nsengiyumva v Prosecutor. No date was provided for the decision but it appears that it was a reference to the Dissenting Opinion of Judge Shahabuddeen in Anatole Nsengiyumva v Prosecutor, Case No. ICTR-96-12-A, 3 June 1999. However, the intention appears to have been to refer to the Separate Opinion of Judge Shahabuddeen in Le Procureur v Laurent Semanza, ICTR, Case No ICTR-97-20-A, 31 May 2000.

34 Tadi ć Appeal Judgement, para 104 (emphasis removed).

35 Separate Opinion of Judge Shahabuddeen, appended to Decision, Le Procureur v Laurent Semanza, ICTR, Case No ICTR-97-20-A, App Ch, 31 May 2000, para 25.

36 Charter of the United Nations, Article 92.

37 Trial Judgement, para 229 (footnote omitted).

38 The same conclusion was reached by the Aleksovski Appeals Chamber, at para 134 of the Aleksovski Appeal Judgement.

39 The date commonly accepted as the reference in time is 19 May 1992. Tadi ćinsX Judgement, paras 569 and 571. Čelebi ći Trial Judgement, para 231.

40 Tadi ć Appeal Judgement, para 145.

41 Appeal Transcript, p 383.

42 Appeal Transcript, pp 383-384.

43 Id.

44 Trial Judgement, para 211. The Trial Chamber relied upon the ICRC Commentary (GCIV) to hold: “We are not here examining the Konjic municipality and the particular forces involved in the conflict in that area to determine whether it was international or internal. Rather, should the conflict in Bosnia and Herzegovina be international, the relevant norms of international humanitarian law apply throughout its territory until the general cessation of hostilities.“

45 Ibid, para 212.

46 Ibid, para 213.

47 Ibid, para 214.

48 Tadić Appeal Judgement, para 84.

49 Trial Judgement, para 215.

50 Ibid, para 224.

51 Ibid, para 227.

52 Ibid, para 230.

53 Ibid, para 231 (emphasis added).

54 Ibid, para 232 (footnote omitted and emphasis added).

55 Ibid, para 234.

56 Delić Brief, paras 214-220.

57 Prosecution Response, p 44.

58 See Tadi ć Appeal Judgement, para 125.

59 Aleksovski Appeal Judgement, para 145 (footnote omitted).

60 Trial Judgement, para 221.

61 Ibid, para 227.

62 Landžo also relies on the Tadić Jurisdiction Decision in support of his contention; Landžo Brief, p 45.

63 Trial Judgement, para 229.

64 Delić Brief, paras 208-213.

65 Tadi ć Appeal Judgement, para 154.

66 Tadi ć Appeal Judgement, para 140.

67 In the Delić Brief at p 85 it is argued “while the FRY may have supported the Bosnian Serbs and even given general guidance, (it) lacked sufficient control over (them) to impute the actions of the Bosnian Serbs to the FRY.” Delić also submits at p 99 that the Appeals Chamber “should conduct a de novo review of the Trial Chamber's holding, giving due weight to the historical facts as found by the Trial Chamber and recited in its judgement but determining the legal test itself.” At the same time, Delić accepts that, at p 86, “many of the factual findings of the Trial Chamber are not controversial”. Landžo submits that the evidence clearly shows that the conflict which resulted in the events at the Čelebići camp was not international, Landžo Brief pp 43-47.

68 Appeal Transcript, p 385.

69 Prosecution Response, p 46; Delić Brief, p 60; Lanžo Brief, pp 44-47.

70 Delalićs Ground of Contention 3, as set out in the Delalić Brief, reads: The Trial Chamber committed errors of both law and fact in its determination that the Čelebići detainees were persons protected by the Geneva Conventions of 1949. Mucić’s Ground 4, as set out in Appellant Zdravko Mucić’s Final Designation of His Grounds of Appeal, 31 May 2000, reads: Whether the Trial Chamber erred at [sic] holding that Bosnian citizens of Serbian ethnicity should be treated as non-nationals of the Republic of Bosnia and Herzegovina and were therefore protected persons as defined in Article 4 of the Geneva Convention IV. Delićs Ground 4, as set out in the Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000, reads: Whether the Trial Chamber erred in holding that Bosnian citizens of Serbian ethnicity should be treated as non-nationals of the Republic of Bosnia and Herzegovina and were therefore protected persons as defined in Article 4 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Landžo's Ground 6, as set out in the Landžo Brief, reads: The Trial Chamber erred in law by finding that the victims of the alleged crimes were “protected persons” for the purpose of the Geneva Conventions.

71 Emphasis added.

72 Tadić Appeal Judgement, para 164 (footnote omitted).

73 Tadić Appeal Judgement, para 165 (emphasis added). In this context, the Appeals Chamber referred to the situation of refugees and nationals of neutral States who do not enjoy diplomatic protection.

74 Tadić Appeal Judgement, para 168.

75 Aleksovski Appeal Judgement, para 151.

76 Appeal Transcript, p 426.

77 Appeal Transcript, pp 395-396. The appellants’ submission in respect of Aleksovski is similar.

78 Prosecution Response to Supplementary Brief, pp 8-9.

79 Tadić Appeal Judgement, para 167.

80 Appeal Transcript, p 401. Counsel for Delalić presented the arguments on behalf of all appellants.

81 Appeal Transcript, p 394.

82 Appeal Transcript, p 400.

83 Vienna Convention on the Law of Treaties, 23 May 1969,1155 United Nations Treaty Series 331 (“the Vienna Convention“).

84 Appeal Transcript, p 426.

85 Appeal Transcript, p 427

86 Appeal Transcript, p 429.

87 The ICJ in the Case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgement of 3 February 1994, ICJ Reports (1994), p 21 at para 41, held that Article 31 reflected customary international law. Its statement on the customary status of Article 31 was endorsed in the Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility), Judgement of 15 February 1995, ICJ Reports (1995), p 18 at para 33.

88 Tadić Appeal Judgement, para 166 (emphasis added).

89 Aleksovki Appeal Judgement, para 152 (emphasis added).

90 Delalić Brief, p 59. Delić Brief, p 23.

91 Tadić Appeal Judgement, para 168.

92 Appeal Transcript, p 408.

93 Appeal Transcript, p 409.

94 The Prosecution submits that the Trial Chamber did not act unreasonably in not giving due weight to the Defence arguments based on national legislation. Prosecution Response, p 36. Delalić Brief, pp 54-55.

95 Case Concerning Certain German Interests in Polish Upper Silesia, Merits, 25 May 1926, PICJ Reports, Series A, No 7, p 19. See also Opinion No 1 of the Arbitration Commission of the Peace Conference on Yugoslavia, 29 November 1991, which states that “the form of internal political organisation and the constitutional provisions are mere facts” (para 1 c).

96 Nottebohm Case (Liechtenstein v Guatemala), (Second Phase), Judgement of 6 April 1955, ICJ Reports 1955.

97 Nottebohm at pp 20-21.

98 Nottebohm at p21.

99 Appeal Transcript, pp 397-398.

100 Appeal Transcript p 415.

101 ICRC Commentary (GCIV), p 46.

102 See Tribunal's Second Annual Report, para 132; Third Annual Report, para 167 and Fourth Annual Report, para 183.

103 Appeal Transcript, pp 545-546.

104 Tadić Appeal Judgement, para 166.

105 Tadić Appeal Judgement, para 168.

106 Tadić Appeal Judgement, para 169.

107 Delalićs Reply, p 4.

108 Aleksovski Appeal Judgement, para 110.

109 Trial Judgement, para 274.

110 Trial Judgement, para 248.

111 Trial Judgement, para 258 (footnote omitted).

112 Trial Judgement, para 251.

113 Trial Judgement, para 253.

114 Trial Judgement, para 256.

115 Tria] Judgement, para 259.

116 Trial Judgement, para 262.

117 The Trial Chamber characterised its approach as “broad and principled” (para 275).

118 Trial Judgement, para 263.

119 See for instance: “In order to retain the relevance and effectiveness of the norms of the Geneva Conventions, it is necessary to adopt the approach here taken”, Trial Judgement, para 266.

120 Trial Judgement, para 264.

121 Prosecution Response, p 36

122 TrialJudgement, para 265.

123 Trial Judgement, para 259.

124 Delalić Brief, p 55. Delić Brief, pp 36-39. Landžo Brief, pp 62-64.

125 Trial Judgement, para 258.

126 Delalić in his Brief made reference to the proclamation of Serbian autonomous regions and the establishment of the Republika Sprska in 1992, pp 52-54.

127 Delić Brief, pp 48-49.

128 Delićs Issue 3 as set out in the Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000, reads: Whether Delić can be convicted of grave breaches of the Geneva Conventions of 12 August 1949 in that at the time of the acts alleged in the indictment the Republic of Bosnia and Herzegovina was not a party to the Geneva Conventions of 12 August 1949.

129 Delić Brief, pp 19-21. Appeal Transcript, pp 338-345.

130 Prosecution Response, pp 37-40.

131 Appeal Transcript pp 367-370.

132 17 ILM 1488. The Vienna Convention on Succession of States in Respect of Treaties was adopted on 22 August 1978 and entered into force on 6 November 1996. Bosnia and Herzegovina succeeded as a party to the Convention on 23 July 1993. Although the Convention was not in force at the time relevant to the issue at hand, the provisions of relevance to the issue before the Appeals Chamber codify rules of customary international law, as has been recognised by State. See, e.g., Declaration of Tanganyika, 1961, and the subsequent declarations made by new States since then (United Nations Legislative Series, ST/LEG/SER.B/14 p 177). The Appeals Chamber notes that the practice of international organisations (UN, ILO, ICRC) and States shows that there was a customary norm on succession de jure of States to general treaties, which applies automatically to human rights treaties.

133 Article 23(1) of the Vienna Convention.

134 Opinion 11, dated 16 July 1993, of the Arbitration Commission of the Peace Conference on Yugoslavia (Badinter Commission) concludes that following the official promulgation of the result of the referendum on independence on 6 March 1992, “6 March 1992 must be considered the date on which Bosnia and Herzegovina succeeded the Socialist Federal Republic of Yugoslavia”.

135 Swiss Federal Department of Foreign Affairs, Notification to the Governments of the State parties to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, 17 February 1993.

136 In relation to international human rights instruments, see UN Human Rights Commission resolutions 1993/23, 1994/16 and 1995/18; E/CN4/1995/80 p 4; Human Rights Committee General Comment 26(61) CCPR/C/21/Rev. 1/Add.8/Rev. 1. See also in relation to Bosnia and Herzegovina's succession to the ICCPR, Decision adopted by the Human Rights Committee on 7 October 1992 and discussion thereto, in Official Records of the Human Rights Committee 1992/93, Vol 1, p 15. See also Separate Opinion of Judge Weeramantry, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgement, ICJ Reports 1996.

137 In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgement, ICJ Reports 1996, the ICJ noted that Bosnia and Herzegovina “contended that the Genocide Convention falls within the category of instruments for the protection of human rights, and that consequently, the rule of automatic succession’ necessarily applies”, para 21.

138 As of Sept 2000,189 States are parties to the Geneva Conventions. Only two United Nations members are not party to them (Marshall and Nauru).

139 Article 158, para 4, of Geneva Convention IV provides that the denunciation of the Convention “shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience”. Further, Article 43 of the 1969 Vienna Convention on the Law of Treaties entitled “Obligations imposed by international law independently of a treaty” provides: “The invalidity, termination, or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation [… ] shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty”.

140 Secretary-General's Report, para 34.

141 Tadić Jurisdiction Decision, paras 79-85.

142 Delalic's Grounds of Contention as set out in his Brief read: “Whether the Security Council intended to incorporate common article 3 into Article 3 of the Statute” and “Whether Common Article 3 is customary international law in respect of its application to natural persons”. At the hearing, Delalićs counsel presented the arguments in relation to these grounds on behalf of all other appellants.

143 Mucid's Ground 6 reads: Whether at the time of the acts alleged in the indictment customary international law provided for individual criminal responsibility for violations of Common Article 3 of the Geneva Conventions (Appellant Zdravko Mucić’s Final Designation of his Grounds of Appeal, 31 May 2000, p 2). Mucić adopts the arguments of Delalić.

144 Delićs Grounds read: “Issue Number Five: Whether, at the time of the acts alleged in the indictment, customary international law provided for individual criminal responsibility for violations of Common Article 3“; “Issue Number Six: Whether the Security Council vested the Tribunal with jurisdiction to impose individual criminal sanctions for violations of common Article 3“; “Issue Number Seven: Whether Common Article 3 constitutes customary international law in international armed conflicts to the extent that it imposes criminal sanctions on individuals who violate its terms” (Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000, pp 2-3).

145 Delalić Brief, p 6. Delalić does not point to any specific issue.

146 Appeal Transcript p 320. “There is no indication that that issue was properly and fully briefed for that court […]. It was really only decided in an interlocutory fashion to guide the Trial Chamber in Tadi ć through the Tadi ćtna” (Appeal Transcript pp 321-322).

147 Aleksovki Appeal Judgement, para 108 (footnote omitted).

148 Appeal Transcript pp 323-24.

149 It is noted that the Appeals Chamber in Aleksovski did not draw any distinction between the authoritative nature of its interlocutory and final decisions.

150 Tadić'Jurisdiction Decision, para 89.

151 Ibid, para 91 (underlining in original).

152 Ibid, para 87

153 Ibid.

154 Ibid.

155 Ibid, para 88.

156 Ibid, para 90.

157 Ibid, para 92.

158 Ibid, para 89.

159 Ibid, para 94.

160 Ibid.

161 Tarić Jurisdiction Decision, paras 119-125.

162 Appeal Transcript p 319.

163 Appeal Transcript p 320.

164 See Delalić Brief, pp 8-20.

165 See for instance Ngeze and Nahimana v Prosecutor, ICTR Appeals Chamber, 5 Sept 2000, Joint Separate Opinion, Judge Vohrah and Judge Nieto-Navia, paras 12-17.

166 Tarić Jurisdiction Decision, para 75.

167 Article 32 of the Vienna Convention on the Law of Treaties provides that the preparatory work of a treaty may be used as a supplementary means of interpretation to interpret the provisions of a treaty.

168 Tadić Jurisdiction Decision, para 87.

169 ICRC Commentary (GCIV), p 583.

170 The draft Statute of an International Criminal Court prepared by the ILC also followed this approach in its Article 20 entitled “Crimes within the jurisdiction of the Court”, which listed among the offences subject to the jurisdiction of the Court “serious violations of the laws and customs of war applicable in armed conflicts”, including both Geneva and Hague law. ILC Report 1994, p 70. See also the ILC Draft Code against the Peace and Security of Mankind adopted in 1996. The Commission stated in its Report that the expressions “war crimes”, “violations of laws and customs of war” and “violations of the rules of humanitarian law applicable in armed conflicts” are used in the report interchangeably. ILC Report 1996, p 113. Further, Article 20 entitled “War crimes” included violations of Hague law, as well as Geneva law under a common heading.

171 ICC Statute, Article 8.

172 Article 8 of the Statute sets out, in relation to the temporal jurisdiction of the Tribunal, the neutral date of 1 January 1991. Article 5 of the Statute, which, in relation to crimes against humanity, vests the Tribunal with the power to prosecute them in internal as well as international conflicts.

173 Trial Judgement, para 280.

174 Trial Judgement, para 297.

175 Trial Judgement, para 299.

176 Trial Judgement, para 301 (footnote omitted).

177 Tadić Jurisdiction Decision, para 97.

178 Nicaragua, para 218.

179 Nicaragua, para 218. The ICJ considers that the Geneva Conventions in general are customary international law. Paragraph 219 reads in relevant parts: “Because the minimum rules applicable to international and to non-international conflicts are identical, there is no need to address the question whether those actions must be looked at in the context of the rules which operate for one or for the other category of conflict”. In the Corfu Channel case, the ICJ regarded the provisions of the Hague Convention as a special application of a much more general principle of universal applicability. Its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ reiterated the principle that certain minimum rules are applicable regardless of the nature of the conflict: “It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and “elementary considerations of humanity” as the Court put it in its Judgement of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports (1996), para 79.

180 Tadić Jurisdiction Decision, para 102.

181 Common Article 3 provides: “The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention”.

182 Tadić Jurisdiction Decision, para 103. In this context, the Appeals Chamber specifically referred to the 1967 conflict in Yemen.

183 Tadić'Jurisdiction Decision, paras 110-112 referring to resolutions 2444 (1968) and 2675 (1970).

184 Delalić also submits that the ICJ findings are not based on state practice and opinio juris; Delalić Brief, pp 32-34.

185 Appeal Transcript, pp 350-51.

186 The rules of common Article 3 setting out standards of basic humanitarian protection were originally intended to serve as a general statement of the object of the Geneva Conventions as a whole. The ICRC Commentary (GC IV) provides that the wording of common Article 3 is largely based on general ideas contained in various draft preambles which were eventually omitted, pp 26-34.

187 This interpretation is supported by the Preamble of Additional Protocol II which provides that” in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience”. This statement is founded on the Martens clause, which was set out in the preamble of the 1899 and 1907 Hague Conventions.

188 ICRC Commentary (GC IV), p 44.

189 ICRC Commentary (GC IV), p 14.

190 ICRC Commentary (GC IV), p 26.

191 ICRC Commentary (GC IV), p 14.

192 Nicaragua, para 218.

193 ICRC Commentary (GC IV), p 38.

194 ICRC Commentary on the Additional Protocols, p 1340.

195 The Universal Declaration of Human Rights; International Covenant on Civil and Political Rights; European Convention on Human Rights; and Inter American Convention on Human Rights.

196 The UN Human Rights Commission is currently conducting a study to identify certain minimum humanitarian standards applicable at all times, which draw from both bodies of law. See UN documents E/C.N. 4/1998/87, E/C.N. 4/1999/92, E/C.N. 4/2000/94, and E/C.N. 4/2000/145.

197 Trial Judgement, para 314.

198 Tadić Jurisdiction Decision, para 128.

199 The Appeals Chamber further referred to the IMTs holding that crimes against international law are committed by individuals. Tadić Jurisdiction Decision, para 128.

200 Ibid, para 129.

201 Ibid, para 130.

202 Ibid, at para 130, referring to paras 106 and 125.

203 Ibid, para 131.

204 Ibid, para 132.

205 Ibid, para 133.

206 Ibid, para 135.

207 Ibid, para 136.

208 Delalić Brief, pp 20-40.

209 The appellants emphasise that violations of common Article 3 were thus not subjected to the universal jurisdiction provisions, Delalić Brief, p 28.

210 Delić Brief, p 80.

211 The appellants rely on the ICRC practice; Nicaragua; the conclusions of the UN Expert Commission; the ILC draft codes; comments made in the Security Council; the ICC Statute. In relation to Nicaragua, Delalić submits that the finding that common Article 3 constitute customary international law is dicta and therefore not an authoritative holding. It is also argued that the ICC Statute constitutes evidence that common Article 3 does not reflect customary law: Delalić Brief, pp 32-40.

212 The report stated that Article 4 “for the first time criminalizes common article 3 of the four Geneva Conventions”. Report of the Secretary-General pursuant to Paragraph 5 of Security Council resolution 955 (1994), S/1995/134,13 February 1995, para 12.

213 Appeal Transcript pp 351-352.

214 Appeal Transcript pp 355-356.

215 Appeal Transcript p 352

216 Tadić Jurisdiction Decision, para 128. The IMT prosecuted violations of Hague Convention IV and Geneva Convention of 1929 even though they did not provide for the punishment of their breaches.

217 As referred to in para 128 of 7Vjdi'c'Jurisdiction Decision.

218 Black's Law Dictionary, 6th ed (1990).

219 Article 1 common to the Geneva Conventions (“Common Article 1“).

220 Nicaragua, para 220.

221 ICRC Commentary (GCIV), p 594.

222 Ibid.

223 See for instance the United States War Crimes Act 1996 extended by the Expanded War Crimes Act of 1997 to include violations of common Article 3.

224 See for instance in Switzerland, Jugement en la cause Fulgence Niyonteze, Tribunal de division 2, 3 septembre 1999, and Tribunal militaire d'appel 1, 26 mai 2000.

225 The Appeals Chamber also notes that in human rights law the violation of rights which have reached the level of jus cogens, such as torture, may constitute international crimes.

226 Aleksovski Appeal Judgement, para 126.

227 Trial Judgement, para 307.

228 Trial Judgement, para 308.

229 Trial Judgement, para 309.

230 Ibid.

231 Ibid, para 310.

232 Ibid, para 311.

233 Ibid, para 312.

234 Ibid, para 313.

235 Mucić’s ground 9 reads: “Whether the Trial Chamber made the proper legal and factual determinations in convicting Mr Mucić of command responsibility pursuant to Article 7(3)”, Appellant Zdravko Mucić’s Final Designation of his Grounds of Appeal, 31 May 2000, at p 2. This document serves to clarify the previous documents setting out Mucić’s grounds.

236 While the appellant made some submissions in his Brief on matters of law, it is difficult to identify the precise errors that are alleged to have been committed by the Trial Chamber. Matters were not further clarified at the hearing. Counsel for the appellant however asked the Appeals Chamber to consider the issue of superior responsibility arising out of a de facto position of authority, Appeal Transcript, pp 253-254.

237 Particulars of the Grounds of Appeal of the Appellant Zdravko Mucić dated the 2nd July 1999, 26 July 1999, Registry p 1800. Mucić submits that the convictions entered by the Trial Chamber pursuant to Article 7(3) of the Statute are “nullified” as a result of its reasoning.

238 Mucić Brief, Section 3, p 1.

239 Mucić Brief, Section 3, p 7.

240 Mucić Brief, Section 3, p 6.

241 Mucić Brief, Section 3, p 18.

242 Appeal Transcript, p 252. When replying to the Prosecution, Mucić did not object to the Prosecution's submissions, Appeal Transcript, p 302, that he did not take issue with the Trial Chamber's legal finding that a person can be found liable under Article 7(3) on the basis of de facto authority, Appeal Transcript, pp 316-317.

243 Prosecution Response, section 10.

244 Trial Judgement, para 370 (emphasis added).

245 (Emphasis added).

246 Blaškić Judgement, para 302.

247 Aleksovski Appeal Judgement, para 76.

248 Trial Judgement, para 736.

249 Trial Judgement, paras 364-378.

250 Trial Judgement, paras 356-363.

251 By the end of 1992,119 States had ratified Additional Protocol I, International Review of the Red Cross (1993), No. 293, at p 182.

252 Trial Judgement, para 371.

253 Trial Judgement, paras 355-363. See also Secretary-General's Report, paras 55-56.

254 Blaškić Judgement, paras 300-301 referring to Celebići Trial Judgement, para 378.

255 Tadić Appeal Judgement, para 223, which states that the text of the ICC Statute “may be taken to express the legal position i.e., opinio juris” of those States that adopted the Statute, at the time it was adopted. Mucić’s reliance on the ICC Statute in support of his arguments is thus not helpful in relation to the determination of the law as it stood at the time of the offences alleged in the Indictment.

256 In relation to State responsibility see ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports, 1971, p 16 at para 118.

257 At the hearing, Mucić referred with approval to the Aleksovski Judgement's finding that” [A]nyone, including a civilian may be held responsible, pursuant to Article 7(3) of the Statute, if it is proved that the individual had effective authority over the perpetrators of the crimes. This authority can be inferred from the accused's ability to give them orders and to punish them in the event of violations.” Appeal Transcript, p 238, referring to para 70 of the Aleksovski Appeal Judgement, quoting para 103 of the Aleksovski Judgement.

258 Trial Judgement, paras 377-378 (emphasis added; footnote omitted). In relation to the case of Delalić, the Trial Chamber further held that a de facto position of authority may be sufficient for a finding of criminal responsibility, “provided the exercise of de facto authority is accompanied by the trappings of the exercise of de jure authority. By this, the Trial Chamber means the perpetrator of the underlying offence must be the subordinate of the person of higher rank and under his direct or indirect control.” Trial Judgement, para 646. The Appeals Chamber does not understand this as a reference to any need for a formal appointment.

259 The Appeals Chamber thus agrees with the Prosecution that reliance on de facto control to establish superior responsibility does not amount to a form of strict liability.

260 Appeal Transcript, p 236.

261 Appeal Transcript, pp 236-237. Counsel for the appellant referred to the testimony of a number of witnesses in support of his contention.

262 Appeal Transcript, p 314.

263 Prosecution Response, Section 10, pp 61-63.

264 Tadić Appeal Judgement, para 64. See also Aleksovski Appeal Judgement, para 63.

265 Furundžija Appeal Judgement, paras 38 and 40.

266 Trial Judgement, para 767.

267 Ibid.

268 See also paras 434 and 435 infra.

269 Trial Judgement, para 731.

270 Appeal Transcript, pp 239-241.

271 Appeal Transcript pp 242-249.

272 Trial Judgement, para 736.

273 Ibid, para 741.

274 Ibid, para 737.

275 Ibid, para 740.

276 Ibid, para 743.

277 Ibid, para 746.

278 Ibid, para 747.

279 Ibid, para 748.

280 Ibid, paras 765-66.

281 Ibid, para 764.

282 Ibid, para 745.

283 Ibid, para 754.

284 Ibid, para 754.

285 Ibid, para 748.

286 Ibid, para 762.

287 Ibid, para 748.

288 Ibid, para 807.

289 Ibid, para 737.

290 Ibid, para 747.

291 Ibid, para 761.

292 Particulars of the Grounds of Appeal of the Appellant Zdravko Mucid dated the 2nd July 1999,26 July 1999, Registry page 1799. This document serves to clarify section 3 of the Mucić Brief.

293 Particulars of the Grounds of Appeal of the Appellant Zdravko Mucić dated the 2nd July 1999, 26 July 1999, Registry page 1799.

294 Trial Judgement, para 743.

295 Ground one: “The Trial Chamber erred in paragraphs 379-393 when it defined the mental element ‘knew or had reasons to know’ for the purposes of Superior Responsibility“; Ground two: “The Trial Chamber's finding that Zejnil Delalić did not exercise superior responsibility“; Ground five: “The Trial Chamber erred when it decided in paragraphs 776-810 that Hazim Delić was not a ‘superior’ in the Celebidi Prison Camp for the purposes of ascribing criminal responsibility to him under Article 7(3) of the Statute”.

296 Prosecution Brief, para 2.7.

297 Delalić Response, p 155. Appeal Transcript, p 257.

298 Delalić Response, p 156.

299 Prosecution Reply, para 2.3.

300 Ibid, para 2.5.

301 Ibid, para 2.6.

302 Delić Response, para 212.

303 Prosecution Reply, para 2.3; Appeal Transcript pp 147-148.

304 Trial Judgement, para 393.

305 See Tadid Appeal Judgement, paras 247 and 281.

306 Secretary-General's Report, para 34.

307 Trial Judgement, para 383.

308 Prosecution Brief, para 2.7; Appeal Transcript p 121.

309 Appeal Transcript, p 121.

310 Delalić Response, p 157.

311 Delić Response, para 215.

312 Secretary-General's Report, para 34.

313 Law Reports of Trials of War Criminals, Vol IV, p 35.

314 Ibid,p 19.

315 Ibid,p 94.

316 Ibid,p 94.

317 Ibid,p 95.

318 The Trial Chamber held that “the jurisprudence from the period immediately following the Second World War affirmed the existence of a duty of commanders to remain informed about the activities of their subordinates.” Trial Judgement, para 388.

319 United States v Wilhelm list, Vol XI, TWC, 1230.

320 Ibid, p 1271, cited in Trial Judgement, para 389.

321 Ibid (emphasis added).

322 Untied States v Wilhelm List et al, Vol XI, TWC, at pp 1271-1272.

323 Trial Judgement, para 389.

324 United States v Oswald Pohl et al., TWC, Vol. V, p 1055.

325 Ibid.

326 TWC, Vol XIV, Appendix B, p 1136.

327 TWC, Vol XIV, Appendix B, p 1136-37.

328 Emphasis added.

329 Law Reports of Trials of War Criminals, Vol IV, p 94.

330 Emphasis added.

331 Trial Judgement, para 392. The two commentaries on Additional Protocol I appear to agree that the French text, which is broader, should be preferred. See Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Michael Bothe, Karl Joseph Partsch, Waldemar A Solf, (Martinus Nijhoff: The Hague 1982), pp 525-526; ICRC Commentary para 3545.

332 Trial Judgement, para 342.

333 ILC Report, pp 34 ff.

334 Ibid, pp 37-38 (emphasis added).

335 Ibid, p 38. Article 28(a) of the ICC Statute provides for the responsibility of a military commander or a person effectively acting as a military commander. To establish the responsibility, proof is required that the commander or person “either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”.

336 Trial Judgement, para 389, where the trial of Admiral Toyoda was cited. Also, the Tokyo Trial Judgement, International Military Tribunal for the Far East (29 April 1946-12 November 1948), Vol.1, p 30, cited in the Prosecution Brief, para 2.9.

337 The Trial Chamber, in particular, correctly observed to the effect that an overly broad “should have known” standard was rejected at the conference which adopted Additional Protocol I. Trial Judgement, para 391.

338 Ibid, para 393.

339 See Prosecution argument in Prosecution Brief, paras 2.15-2.19. Reference is made to Article 31 of the Vienna Convention on the Law of Treaties of 1969.

340 ICRC Commentary (Additional Protocol I), para 3545.

341 Trial Judgement, para 383.

342 Prosecution Brief, para 2.11.

343 Trial Judgement, para 393.

344 Prosecution Brief, para 3.6.

345 Ibid, para 3.6.

346 Ibid, paras 3.17,3.22.

347 Ibid, para 3.27.

348 Appeal Transcript, p 163; Prosecution Brief, para 3.36.

349 Prosecution Brief, para 3.60.

350 Ibid, para 3.66.

351 Counts 13,14,33,35,38,39,44,45,46,47 and 48. Ibid, para 3.79.

352 Appeal Transcript, p 165; See also Appeal Transcript at pp 156-158, noting the decisions in the Tadić Appeal Judgement and Aleksovski Appeal Judgement dealing with the Appeals Chambers powers to intervene on factual matters.

353 Appeal Transcript, p 166.

354 Prosecution Brief, para 3.80.

355 Ibid, para 3.80: “In the alternative, should the Appeals Chamber determine that the facts as found by the Trial Chamber are not of themselves sufficient to support a reversal of the acquittals of Delalić, the Prosecution submits that it should be granted leave by the Appeals Chamber to present additional evidence that was wrongly excluded by the Trial Chamber.” Cf para 3.84:“[…] the Prosecution now seeks an appellate remedy against these decisions of the Trial Chamber [not to admit the evidence]”.

356 Prosecution Reply, para 3.16; para 3.23; Appeal Transcript p 16: “The issue is an issue of error of law. The issue is whether or not the Trial Chamber applied the correct test for the admission of fresh or rebuttal evidence. If they applied the incorrect test and it's an error of law, then the Trial Chamber erred” and at p 171, where the Prosecution agreed that their submission was “[…] that there was an error of law, the documents which are attached to the submissions will demonstrate that it was an error of law which caused harm to the Prosecution's case, and therefore, you want a new trial.“

357 Appeal Transcript, pp 30-97.

358 Delalić Response, pp 119,122.

359 Delalić Response, pp 9-10.

360 Delalić Response, p 129.

361 Prosecution Brief, para 3.6.

362 Trial Judgement, para 378, cited in Prosecution Brief at para 3.2.

363 Trial Judgement, para 646, cited in Prosecution Brief at para 3.3.

364 Trial Judgement, para 354, quoting from the ICRC Commentary (Additional Protocols), para 3544.

365 Trial Judgement, para 371.

366 The Prosecution submitted that the Trial Chamber “appeared to focus on the necessity of a chain of command. It appeared to focus on the necessity of that there has to be a command structure …” and referred to ”… the Trial Chamber's reliance on the need for a chain of command, and specifically some — what appears to be some direct link or direct chain of command …”, Appeal Transcript, pp 152 and 153.

367 See Trial Judgement, para 648.

368 Appeal Transcript, pp 116-118.

369 Trial Judgement, para 648.

370 Trial Judgement, para 647, cited in the Prosecution Brief at para 3.4.

371 Trial Judgement, para 354.

372 Trial Judgement, paras 354,371 and 647, referring to para 3544 of the ICRC Commentary (Additional Protocols). Article 86(2) provides: “The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.“

373 ICRC Commentary (Additional Protocols), para 3544.

374 It has been elsewhere accepted in the jurisprudence of the Tribunal that, where there is no effective control, there is no superior responsibility: Aleksovski Trial Judgement, para 108 (HVO soldiers with arms forced their way into the prison without the guards being able to stop them) and para 111 (no finding was made on any existence of control by Aleksovski over the HVO soldiers).

375 Prosecution Brief para 3.7; Appeal Transcript p 115.

376 Prosecution Brief, para 3.15 (emphasis added).

377 Appeal Transcript, p 119.

378 The Hostage case, TWC, Vol. XI, p 1260.

379 Trial Judgement, para 649.

380 Prosecution Brief, para 3.20.

381 Trial Judgement, paras 368-369; Appeal Transcript, p 117, Tokyo War Crimes Trial, The International Military Tribunal for the Par East, Judgement, Official Transcript reprinted in R John Pritchard and Sonia Magbanna Zaide (eds.) The Toyko War Crimes Trial, Vol. 20 (1981).

382 J, Pritchard et al (eds), The Tokyo War Crimes Trial (Garland Publishing Inc, New York and London, 1981)Google Scholar (complete transcripts), vol 20 (Judgement and Annexes), pp 49,772.

383 United States v Wilhelm von Leeb et al, TWC, Vol. XI, pp 513-514, quoted in the Trial Judgement, para 367.

384 Appeal Transcript, p 117; Prosecution Brief, para 3.16.

385 The Tokyo Judgment, The International Military Tribunal for the Far East, 29 April 1946-12 November 1948, Vol I, (ed B V A R61ing and C F Rüter, 1977, APA University Press, Amsterdam) pp 447-448.

386 Trial Judgement, para 376.

387 The Government Commissioner of the General Tribunal of the Military Government for the French Zone of Occupation in Germany v Directors of the Roechling Enterprises, XIV Trials of War Criminals Before the Nuremberg Military Tribunals, p 1061(“Roechling case“) at pp 1092-3.

388 Roechling case, judgement on appeal at p 1136.

389 Trial Judgement, para 376.

390 The Prosecution does not cite the relevant parts of the judgement on which it relies but refers to the Trial Chamber's references to the case. Prosecution Brief para 3.17. See also Appeal Transcript at p 117. The Trial Chamber was, as is apparent from the reference in footnote 404 of the Trial Judgement, referring to the accused von Gemmingen-Hornberg.

391 Roechling Case, judgement on appeal, p 1136; See also p 1140. The Superior Military Government Court also referred specifically to the fact that the chief of the works police (Werkschutz) was an SS officer called Rassner who was appointed by the accused von Gemmingen-Hornberg: p 1135.

392 Trial Judgement, para 376.

393 United States v Oswald Pohl et al, TWC, Vol. V, p 958. Relied on in the Prosecution Brief at 3.14 and 3.20.

394 Ibid,pp 1052-1053.

395 Prosecution Brief, para 3.14, citing the Pohl case as referred to in the Trial Judgement, para 374.

396 United States v Oswald Pohl et al, Vol V, TWC, p 958 (emphasis added).

397 Prosecution v Kayishema and Ruzindana, Case No ICTR-95-1-T, Judgement, 21 May 1999.

398 Prosecution Brief, para 3.18.

399 Prosecutor v Kayishema and Ruzindana, Case No ICTR-95-1-T, Judgement, 21 May 1999, para 220.

400 Trial Judgement, para 375.

401 Prosecution Brief, para 3.33; Appeal Transcript pp 158 and 166.

402 Appeal Transcript, p 164: after referring to various facts found by the Trial Chamber, it was submitted that: “As a result of this specific position and someone who is granted authority by the higher command, it is the Prosecution's position that those facts demonstrate he had control.“

403 Tadić Appeal Judgement, para 64; Aleksovski Appeal Judgement, para 63; Furundžija Appeal Judgement, para 37 and infra paras 434-436.

404 Prosecution Brief, para 3.80.

405 Appeal Transcript, p 168.

406 Prosecution's Notification of Witnesses Anticipated to Testify in Rebuttal, 22 July 1998, (“Notification“), 5th unnumbered page.

407 Trial Transcript, pp 14934-14974.

408 Trial Transcript, pp 14943,14972,14975.

409 Order on the Prosecution's Notification of Witnesses Anticipated to Testify in Rebuttal, 30 July 1998, p 2.

410 Notification, 4th and 5th unnumbered pages. It was put by the Prosecution on appeal that one item of documentary evidence would also more specifically rebut defence evidence as to the reliability of Prosecution Exhibit 214, a document signed by the President of the Konjic State Commission for the Exchange of War Prisoners which was described as “indicating] that the overseeing and guarding of the prisoners had been taken over by the Tactical Group”, as the new document in question was an authenticated copy of the document. See Prosecution Brief, para 3.81(2)(c) and fn 160.

411 Notification, 6* unnumbered page. There were originally two categories of documents in relation to which the Prosecution sought Professor Stegnar's testimony. The Prosecution only appeals against the decision not to admit one of these categories (the new documents). Prosecution Brief, para 3.81(4) and fn 162.

412 Decision on the Prosecution's Alternative Request to Reopen the Prosecution's Case, 19 August 1998, (“Decision on Request to Reopen“), para 23.

413 Prosecutor v Tadić Case No IT-94-1, Trial Transcript, 29 May 1998: p 3676, Judge McDonald refusing the admission in rebuttal of those parts of testimony which were “evidence that [the Prosecutor] could have adduced during [her] case in chief. Our concern is that this not be a practice of offering additional evidence that you would have an opportunity to offer on the case in chief.” Prosecutor v Furundžija, Case No IT-95-17/2, Confidential Decision on Prosecutor's Motion in Respect of Rebuttal Witness and Witness Protection Issued Pertaining to Disclosure and Testimony by the Witness, 19 June 1998. The right of rebuttal is “to be used to challenge Defence evidence that could not have reasonably been foreseen, and that it would be a misuse of this right to permit it to be used to adduce evidence that should properly have been proved as part of the Prosecution case against an accused”. (Nothing referred to here from that decision is confidential material). In Prosecutor v Kordic, Case No IT-95-14/2, Transcript 18 Oct 2000. The Trial Chamber endorsed the practice of the Trial Chambers in Čelebići and Furunžija of limiting rebuttal evidence strictly to matters arising in the defence case which were not already covered in the Prosecution case. It described the relevant standard to be the “only highly probative evidence on a significant issue in response to Defence evidence and not merely reinforcing the Prosecution case in chief will be permitted.” See p 26647.

414 Decision on Request to Reopen, para 23.

415 Prosecution Brief, para 3.104.

416 Trial Transcript, p 14936.

417 Trial Transcript, p 14938.

418 Notification, para A, 4* unnumbered page.

419 Ibid.

420 Decision on Request to Reopen, para 23.

421 Prosecution Brief, para 3.94.

422 Prosecution Brief, para 3.83.

423 Trial Transcript, 4 Aug 1998, pp 15518-15520.

424 Decision on Request to Reopen.

425 Decision on Prosecutor's Applications for Leave to Appeal the Order of 30 July 1998 and Decision of 4 August 1998 of Trial Chamber II Quater, Case No. IT-96-21-AR73.6 and AR73.7, 29 Aug 1998.

426 Decision on Request to Reopen, para 26.

427 Decision on Request to Reopen, para 27.

428 Decision on Request to Reopen, para 29-30.

429 Decision on Request to Reopen, para 36.

430 Decision on Request to Reopen, para 34.

431 Decision on Request to Reopen, para 37.

432 Prosecution Brief, para 3.98.

433 Prosecution Brief, paras 3.110-3.113.

434 Decision on Request to Reopen, para 29.

435 Prosecution Brief, para 3.111.

436 Trial Transcript, 24 July 1998, pp 14946-14949; 14968-14971.

437 Decision on Request to Reopen, para 28.

438 Prosecution Brief, para 3.109.

439 Request to Reopen, para 28.

440 Request to Reopen, para 27.

441 Request to Reopen, para 28.

442 Request to Reopen, para 29-31.

443 Code of Criminal Procedure, Costa Rica, Article 355, unofficial Prosecution translation, Prosecution Brief, para 3.88.

444 Code of Criminal Procedure (Strafprozefiordnung) Article 244(2), unofficial Prosecution translation, Prosecution Brief, para 3.88.

445 Decision on Request to Reopen, para 27.

446 Prosecution Brief, para 3.107.

447 Decision on Request to Reopen, para 37.

448 Prosecution Brief, para 3.120.

449 Decision on Request to Reopen, para 32, referred to in Prosecution Brief at para 3.115,3.121.

450 Decision on Request to Reopen, para 32.

451 Ibid, para 32.

452 Prosecution Brief, para 3.101.

453 Prosecution Brief, para 3.126

454 Trial Transcript, p 14971 (emphasis added).

455 Response of the Defendant Delalić Opposing the Prosecution's Alternative Request to Open the Prosecution's Case, 31 July 1998, pp 1; 10,11. At p 10 the response states: “the Trial Chamber should consider whether it is in the interests of justice to permit the Prosecution to adduce the evidence at this late stage and whether to allow it would breach the Defendant's right to a fair trial as set out in Articles 20 and 21 of the Statute.“

456 Prosecution Brief, para 3.127.

457 Decision on Request to Reopen, para 36.

458 Request to Reopen, para 70.

459 Decision on Request to Reopen, para 37.

460 Prosecution Brief, para 6.1.

461 Ibid, para 6.7.

462 Ibid, para 6.16.

463 Ibid, para 6.12.

464 Ibid, para 6.18.

465 Ibid, para 6.23.

466 Prosecution Brief, para 6.10; Prosecution Reply, para 6.2.

467 Prosecution Reply, para 6.5.

468 Ibid, para 6.11.

469 Delić Response, para 239.

470 Ibid, para 247.

471 Trial Judgement, paras 739 and 1268.

472 Trial Judgement, para 800.

473 Ibid, para 806.

474 Ibid, para 809 (emphasis added).

475 Trial Judgement, paras 646-647.

476 Prosecution Brief, para 6.7.

477 In any event, concepts of accessory criminal liability such as aiding and abetting will potentially apply to persons of moral or personal authority who, by failing to act in such scenarios, have the effect in the circumstances of encouraging the commission of offences. See Furundsžja Trial Judgement at para 209; Aleksovski Judgement, para 62.

478 Trial Judgement, paras 796 and 810.

479 Trial Judgement, paras 371 and 646.

480 Trial Judgement, para 378.

481 Prosecution Brief para 6.16; Prosecution Reply, para 6.13.

482 See infra paras 434-436.

483 Aleksovski Appeal Judgement, para 74.

484 Appeal Transcript, p 198.

485 Prosecution Brief, paras 6.12-6.15.

486 A matter also relied on by the Prosecution as evidence of authority: Prosecution Brief, para 6.11; Appeal Transcript, pp 193-194.

487 Appeal Transcript at pp 193-194.

488 Trial Judgement, para 803, referred to in Prosecution Brief at para 6.11(3) and Appeal Transcript at p 194.

489 Trial Judgement, para 806.

490 Ibid, paras 804 and 805.

491 Emphasis added.

492 Appeal Transcript, p 194.

493 Trial Judgement, para 809.

494 Appeal Transcript, p 194, referring to evidence cited at para 801 of Trial Judgement.

495 Trial Judgement, para 802. This was acknowledged by the Prosecution: Appeal Transcript, p 194.

496 Ibid, para 806.

497 Prosecution Brief, para 6.18. (Emphasis added).

1036 Landžo Brief, Ground of Appeal 4, pp 1-2.

1037 Notice to the Chamber Related to Landžo's Issue on the Presiding Judge Sleeping During Trial, 17 Feb 2000. Leave was granted to add this ground of appeal by the order on Appellants Hazim Delić and Zdravko Mucić’s 'Notice’ Related to Appellant Esad Landžo's Fourth Ground of Appeal, 30 Mar 2000.

1038 Transcript of Pre-Appeal Conference, 12 May 2000, pp 29,43.

1039 Landžo Supplementary Brief, p 1.

1040 Appellant Zdravko Mucić’s Final Designation of his Grounds of Appeal, 31 May 2000; Appellant-Cross-Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000, p 4.

1041 Order, 12 Feb 1999, p 3.

1042 Order on the Second Motion to Preserve and Provide Evidence, 15 June 1999; Order on Esad Landžo's Motion (1) to Vary in Part Order on Motion to Preserve and Provide Evidence, (2) to be Permitted to Prepare and Present Further Evidence, and (3) that the Appeals Chamber Take Judicial Notice of Certain Facts, and on his Second Motion for Expedited Consideration of the Above Motion, 4 Oct 1999, pp 3-5.

1043 Order on Motion of the Appellant, Esad Landžo, for Permission to Obtain and Adduce Further Evidence on Appeal, 7 Dec 1999, p 5; Order in Relation to Witnesses on Appeal, 19 May 2000, pp 2-3; Order on Motion of Appellant, Esad Landžo, to Admit Evidence on Appeal, and for Taking of Judicial Notice, 31 May 2000, pp 2-4 and 8-9.

1044 Motion for Permission to Allow Expert Witness to View Extracts Tapes and to Admit Expert Opinion as to Sleep Disorders (Landžo's Fourth Ground of Appeal), 27 Apr 2000, paras 3-4.

1045 Prosecution Response to Esad Landžo's Motion for Permission to Allow Expert Witness to View Extracts Tapes and to Admit Expert Opinion as to Sleep Disorders, and Prosecution Motion for Clarification, 3 May 2000.

1046 Order on Motion for Permission to Allow Expert Witness to View Extracts Tapes and to Admit Expert Opinion as to Sleep Disorders, 9 May 2000, pp 4-6.

1047 Landžo Supplementary Brief, p 3.

1048 Ibid, p 4.

1049 Ibid, p 4

1050 Ibid, p 5.

1051 Ibid, p 2.

1052 Cases relating to jurors alleged to have been asleep during a trial are included in the present consideration.

1053 Landžo Supplementary Brief, pp 7-8; Prosecution Response to Landžo Supplementary Brief, para 3.3.

1054 R v Caley [1997] WCBJ 1714 (British Columbia Supreme Court), at para 25 (to grant relief on the basis of the inattention of the judge there must be “clear and overwhelming evidence“); Sanborn v Commonwealth 975 SW 2d 905 (1998), at 911 (Supreme Court of Kentucky); Commonwealth v Keaton, 36 Mass App Ct 81 (1994), at 87; Bundesgerichtshof, Vol 11, p 74, Judgement of 22 November 1957 (German Federal Supreme Court of Justice); Bundesverwaltungsgericht, Judgement of Supreme Administrative Court, 24 Jan 1986 at para 12; [1986] Neue Juristiche Wochenschrift 2721, at 2721; Illinois v McCmven 97 111 App 3d 1075 (1981) (Appellate Court of Illinois), at 1076; People v Thurmond 175 Cal App 3d 865 (1985) (Court of Appeal, 2d District), at 874; Commonwealth Bank of Australia v Falzon [1998] VSCA 79, para 10 (Supreme Court of Victoria, Court of Appeal).

1055 Landžo Supplementary Brief, p 7.

1056 R v Moringiello [1997] Crim LR 902; R v Edworthy [1961] Crim LR 325; R v Tancred 14 April 1997, Court of Appeal (Criminal Division); Kozlowski v City of Chicago 13 111 App 513 (the fact that a juror fell asleep during proceedings, absent an affirmative showing of prejudice to the complainant, is not a ground for a new trial); State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio) (must be a showing of “material prejudice“).

1057 Sejstituted as provided. Article 338 (1) may be violated where a judge or lay assessor is asleep or otherwise “absent”.

1058 Bundesverwaltungsgericht (Supreme Administrative Court) Judgement of 24 January 1986, [1986] Neue Juristiche Wochenschrift 2721, at 2721; Bundesgerichtshof (Federal Supreme Court of Justice) Vol 2, p 14, Judgement of 23 November 1951.

1059 State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio); United States of America v White and Keno 589 F 2d 1283 (1979) (Court of Appeals, 5* Circuit), at 1289.

1060 Ferman v Estwing Manufacturing Company, 31 111 App 3d 229, at 233.

1061 See, e.g., Espinoza v The State of Texas, Tex App Lexis 5343, Judgement of 21 July 1999.

1062 Stathooles v Mount Isa Mines Ltd [1991] 2QdR 106 (Queensland Court of Appeal), at 113.

1063 The Chicago City Railway Company v John Anderson 193 111 9 (1901), at 13.

1064 Bundesgerichtshof (Federal Supreme Court of Justice) Vol 11 p 74, 22 November 1957, at 77: “There are numerous matters of behaviour and other circumstances by which a judge may give the impression to participants, especially to a defendant who is a layman in law, that he did not pay attention to a part of the events of the proceedings. Such an impression can even be made by actions to which the judge is legally obliged [sic]”.

1065 It was adopted at the Twenty-first Plenary Session, 15-17 Nov 1999, (Revision 17 of the Rules) and entered into force on 7 Dec 1999. The words “or for reasons of authorised Tribunal business” were inserted by Revision 19 of the Rules, with effect from 19 Jan 2001.

1066 Landžo Supplementary Brief, p 7.

1067 Trial Judgement, paras 1181-1185. See para 593 above.

1068 Javor v United States of America, 724 F 2d 831 (1981) (Court of Appeals, 9th Circuit); Tippins v Walkerll F 3d 682 (1996) (Court of Appeals, 2d Circuit).

1069 Tippins v Walker, cited above, at 685 and 689.

1070 Landžo Supplementary Brief, p 15.

1071 Appeal Transcript, p 691.

1072 Landžo Supplementary Brief, p 14.

1073 Appeal Transcript, p 692.

1074 [1981] Crim LR 179, cited in Landžo Supplementary Brief, pp 9-10.

1075 [1981] Crim LR 179.

1076 In other cases in which counsel for a party gave evidence that they had formed the opinion that the trial judge was sleeping, this was dealt with by the review court as being one part of the relevant evidence on the issue, rather than as proof that, because one observer had formed the opinion, that the judge was sleeping, justice was not being seen to be done. See, e.g., R v Langham and Langham [1972] Crim LR 457 (Court of Appeal, Criminal Division); Stathooles v Mount Isa Mines Ltd [1997] 2 Qd R 106, at 110 (Queensland Court of Appeal).

1077 Kraska v Switzerland, Case No 90/1991/342/415, Judgement of 19 April 1993, para 32.

1078 See, e.g., R v Langham and Langham [1972] Crim LR 457 (Court of Appeal, Criminal Division): “The complaint that the judge appeared to be asleep which if true was a matter which the court would certainly deplore but was not a sufficient ground for saying that justice was not seen to be done”. See also R v George, 12 June 1984, Court of Appeal (Criminal Division), where it is said that the appearance of sleep “[…] proves no basis for an appeal unless it can be shown that the learned judge may have been asleep or at any rate that his conduct during the trial had a bearing on the outcome of the trial”.

1079 Prosecution Response toLandžo Supplementary Brief, para 1.5.

1080 Furundžija Appeal Judgement, para 174: “[The Appellant] could have raised the matter, if he considered it relevant, before the Trial Chamber, either pre-trial or during trial. On that basis, the Appeals Chamber could find that the Appellant has waived his right to raise the matter now and could dismiss his ground of appeal”. Tadić Appeal Judgement, para 55: In the context of a complaint on appeal that the Defence had not been able to call witnesses essential to the Defence case, the Appeals Chamber stated: “The obligation is on the complaining party to bring the difficulties to the attention of the Trial Chamber forthwith 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, as the Defence seeks to do in this case”. See also Prosecutor v Aleksovski, IT-95-14/1-AR73, Decision on Prosecutor's Appeal on Admissibility of Evidence, 16 Feb 1999, par 20: “[…] no such complaint was made to the Trial Chamber [… ] and it should not be permitted to be made for the first time on appeal”.

1081 Chicago City Railway Company v Anderson 193 111 9 (1901) (Supreme Court of Illinois), at 12-13; Stathooles v Mount Isa Mines Ltd [1997] 2 Qd R 106, at 113; R v Grant [1964] SASR 331, at 338; R v Moringiello [1997] Crim LR 902; R v Tancred 14 Apr 1997, Court of Appeal (Criminal Division).

1082 Affidavit of Cynthia McMurrey Sinatra, sworn 25 Sept 1999, p 2, filed with Motion of Appellant, Esad Landžo , for Permission to Obtain and Adduce Further Evidence on Appeal, 27 Sept 1999 (“Motion to Obtain Evidence“), which is Exhibit C to Landžo Supplementary Brief.

1083 Affidavit of Cynthia McMurrey Sinatra, sworn 20 Apr 2000, p 1, annexure to Appellant Esad Landžo 's List of Witnesses on Appeal, Submission of Witness Statements and Motion for Issuance of Subpoena Ad Testificandum, 15 May 2000 (“Affidavit of 20 April 2000“).

1084 Affidavit of 20 April 2000, pp 1-2. The document in fact entitled “Resignation Under Protest” is described in the affidavit as a Motion for Withdrawal.

1085 Ibid, pp 1-2.

1086 Motion to Obtain Evidence, p 6.

1087 Landžo Supplementary Brief, p 17.

1088 A letter written byLandžo to President Cassese concerning Judge Karibi-White's conduct was treated by him as an application under Rule IS (“Disqualification of Judges“), and it was communicated to the judge and then referred to the Bureau, which requested the judge to state his views on the matter. All this was disclosed to Landžo : Letter dated 3 Sept 1997, annexed to Motion to Obtain Evidence.

1089 Appeal Transcript, p 641.

1090 Stathooles v Mt Isa Mines Ltd [1997] Qd R 106 at 113.

1091 Request of Appellant, Esad Landžo , for Information Regarding Certain Portions of the Extracts Tape Produced for Consideration by Appeals Chamber, 7 Apr 2000. The allegations were refuted by the Pre-Appeal Judge in his Decision on Request by EsadLandžo for Information Regarding Extracts Tape, 20 Apr 2000, at pp 3-4.

1092 Order on Motion of the Appellant, Esad Landžo , for Permission to Obtain and Adduce Evidence on Appeal, 7 Dec 1999, pp 4-6.

1093 Ibid,pp5-6.

1094 Prosecution Response to the Motion of Esad Landžo to Admit Evidence on Appeal and for Taking of Judicial Notice, 29 May 2000, para 10.

1095 Order on Motion of Appellant, Esad Landžo , to Admit Evidence on Appeal, and for Taking of Judicial Notice”, 31 May 2000 (“Order on Evidence on Appeal“), p 4.

1096 Exhibit B toLandžo Supplementary Brief.

1097 (Draft) Esad Landžo 's Motion for Mistrial, 26 Aug 1997 (“Draft Motion for Mistrial“); (Draft) Cynthia McMurrey's Resignation Under Protest, 26 Aug 1997; Exhibit C to Motion to Obtain Evidence.

1098 Draft Motion for Mistrial, pp 3-4. The same is true of the letter written byLandžo to President Cassese (see footnote 1089). Reference is made to Judge Karibi-Whyte's “arrogant behaviour towards my defence counsel”, whose conduct had been “subject to constant humiliation” and that she appeared to have been singled out for unfair treatment. This reference to the judge falling asleep is referred to only briefly and as a secondary concern.

1099 Exhibit B toLandžo Supplementary Brief.

1100 Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000, p 2.

1101 Appellant Zdravko Mucić’s Final Designation of his Grounds of Appeal, p 1.

1102 Landžo Brief, p 2.

1103 Statute of the Tribunal, Article 13.4.

1104 Security Council Resolution S/RES/1126, 27 Aug 1997 (“Resolution 1126“).

1105 Motion on Judicial Independence, 25 May 1998, p 1.

1106 Decision of the Bureau on Motion for Judicial Independence, 4 Sept 1998 (“Bureau Decision“), p 4. The four accused, apparently in ignorance of that referral, subsequently filed a request for a hearing of their joint motion or, alternatively, a request that the Presiding Judge refer the matter to the Bureau. This application was disposed of informally (Trial Transcript, pp 14930-14933).

1107 Bureau Decision, p 11. Rule 15(A) provides: “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”.

1108 Bureau Decision, p 11.

1109 Ibid, p 6.

1110 It was suggested during the hearing of the appeal that this was because the Bureau Decision of Sept 1998 “was not rendered until after the trial had been concluded” (Appeal Transcript, p 724). That is not so. The final submissions concluded on 15 October 1998 (Trial Transcript, p 16372), and Judgement in the trial was delivered on 16 November 1998.

1111 This was the form of Article 13(1) of the Statute at the relevant time. It has since been amended by Security Council Resolution 1329, 30 Nov 2000, so that the opening sentence commences: “The permanent and ad litem judges shall be persons of high moral character [… ]”.

1112 Constitution of the Republic of Costa Rica (“Constitution“), Article 156. The Constitution was adopted in 1949. The parties (the Prosecution and Landžo, representing all three convicted appellants) have agreed upon an accurate English language translation of the Constitution (which is written in the Spanish language) as it was in force between 17 Nov 1997 (the date upon which Judge Odio Benito's original term expired) and 16 Nov 1998 (the date upon which the Judgement was delivered): Agreement Between the Prosecution and Appellant, Esad Landžo, Regarding the Constitution of Costa Rica, 28 Jul 2000, para 7. Article 156 provides: “The Supreme Court of Justice is the highest court of the judicial branch […]”.

1113 Prosecution Response, para 13.42.

1114 Prosecution Supplementary Brief, para 4.

1115 General Assembly Document A/47/1006,1 Sept 1993, p 57.

1116 According to Judge Odio Benito's curriculum vitae which accompanied her nomination for election in 1997, she did not resign as Minister of Justice until 1994: General Assembly Document A/51/878,22 Apr 1997, p 58.

1117 ICTY 1994 Year Book, p 201.

1118 Constitution, Article 9.

1119 Ibid, Title IX.

1120 Ibid, Title X.

1121 Ibid, Title XI.

1122 Ibid, Article 108.

1123 Ibid, Article 109.

1124 Ibid, Article 131.

1125 Ibid, Article 132.

1126 Ibid, Article 159. The Article defines the legal qualification as: “Holder of a lawyer's degree issued or legally recognised in Costa Rica, and must have engaged in the profession for at least ten years, except in the case of judicial [officials] with not less than five years of judicial experience”. (The Spanish translator retained by the Tribunal's Conference and Languages Section prefers the word “officers” to “officials“).

1127 Ibid, Article 160.

1128 The Spanish translator retained by the Tribunal's Conference and Languages Section prefers the phrase “post, publicly elected” to “charge, elective”.

1129 A Professor of Administrative Law in the Master and Doctoral Program of the Institute of Education and Research of Universidad Autónoma de Centra América.

1130 Constitutional Court, Decision N 2621-95, quoted in Mr Batalla's opinion at pp 2-3.

1131 Opinion, pp 3-4.

1132 [Mr Batalla's footnote] The Judge and the Magistrate are the only officials that may administer justice.

1133 [Mr Batalla's footnote] Constitutional Court, Decision N 2883-96.

1134 The emphasis has been added.

1135 An expert opinion by Francisco Villalobos Brenes (a member of the Bar of Costa Rica and Adjunct Professor in the Faculty of Law of the University of Costa Rica) was also tendered. None of the interpretative resources relied upon by Mr Brenes suggest a contrary interpretation of Article 161. Indeed, he expressly concludes (at para SC) that Article 161 is one of various rules which specifically prohibit the possibility of a person exercising the judicial function at the same time as holding a post in the Executive or Legislative Branches (the emphasis has been added).

1136 Prosecution Supplementary Brief, para 4.

1137 Ibid, paras 6-9.

1138 Ibid, paras 10-12.

1139 Ibid, paras 13-16.

1140 Statute, Article 23.

1141 Prosecution Supplementary Brief, para 19.

1142 Counsel for the Prosecution told the Appeals Chamber that the judges had a “qualified qualification” (Appeal Transcript, p 714). The meaning of that phrase was not explained.

1143 Letter of 18 June 1997, annexed to Document A/51/958 S/1997/605.

1144 Letter of 1 Aug 1997, annexed to Document A/51/958 S/1997/605.

1145 “Endorses the recommendation of the Secretary-General that Judges Karibi-Whyte, Odio Benito and Jan, once replaced as members of the Tribunal, finish the Čelebići case which they have begun before expiry of their terms of office […]”.

1146 Landžo Reply, para 6.18 (which incorporates the arguments in the Motion on Judicial Independence, 25 May 1998); Mucić Brief, para 3.

1147 Agreement Between the Prosecution and Appellant, Esad Landžo , Regarding Evidence for the Purposes of the Appeal, 19 May 2000 (“Agreement on Evidence“), p 1.

1148 Landžo Reply, para 6.13; Agreement on Evidence, p 1, and annexed extract from the official gazette.

1149 The Prosecution denied, however, that the events reported constituted the exercise by Judge Odio Benito of executive functions: Agreement on Evidence, p 2; Prosecution Response, para 13.45.

1150 “President Elect of Costa Rica Condemns the Assassination of Bishop Gerardi”, 28 Apr 1998, translation filed by counsel for Landžo , 5 June 2000.

1151 “Denunciation of Deficient Labor Conditions in Banana Packing Plants”, 1 June 1998.

1152 Appeal Transcript, p 721.

1153 Ibid, p 654. The submissions made by the appellants in relation to Judge Odio Benito and her position as Vice-President did not always make a clear distinction between the first and second of these issues. This particular submission was described as being relevant to her qualification under Article 13 (the first issue), but the Appeals Chamber regards it as logically more relevant to her disqualification under Rule 15(A) (the second issue), and it has considered the submission upon that basis.

1154 Appeal Transcript, p 672.

1155 Ibid, p 681.

1156 Furundžija Appeal Judgement, para 189.

1157 Mucić Brief, para 7;Landžo Reply, para 6.18.

1158 Furundžija Appeal Judgement, para 189.

1159 Furundžija Appeal Judgement, para 189.

1160 Ibid, para 190.

1161 Rule 14 of the Rules.

1162 Letter from His Excellency Miguel Angel Rodriguez E, President-Elect of the Republic of Costa Rica, to the President of the Tribunal, 9 Mar 1998.

1163 Letter from His Excellency Miguel Angel Rodriguez E, President of the Republic of Costa Rica, to the President of the Tribunal, 7 July 1998.

1164 Bureau Decision, p 3.

1165 Appeal Transcript, p 653. The Prosecution relied on the Bureau Decision and the facts found therein: Prosecution Response, para 13.45. The Appeals Chamber has not dealt with this matter as an appeal from the decision of the Bureau. The question whether a judge should have been disqualified from hearing a case is relevant to the fairness of the trial: Prosecutor v Furundžija, IT-95-17/1, Decision on Post-Trial Application by Anto Furundžija to the Bureau of the Tribunal for the Disqualification of Presiding Judge Mumba, Motion to Vacate Conviction and Sentence, and Motion for a New Trial, 11 Mar 1999, p 2; and it is therefore a valid ground of appeal from a conviction. The Furundžija Appeal Judgement proceeded upon the basis that this was a valid ground.

1166 Agreement on Evidence, para 1.

1167 Counsel for Landžo appeared to acknowledge the weaknesses in this material when he stated “I don't place much weight on those [two newspaper reports]“: Appeal Transcript, p 673.

1168 Article 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him.“

1169 Article 14 provides, in part: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, every person shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.“

1170 Tadić Jurisdiction Decision, para 45; Barayagwiza v The Prosecutor, ICTR-97-19-AR72, Decision (On Prosecutor's Request for Review or Reconsideration), 31 Mar 2000, Declaration of Judge Rafael Nieto-Navia (“Barayagwiza Declaration“), paras 10-14.

1171 Barayagwiza Declaration, para 9.

1172 Charter of the United Nations, Article 23(1).

1173 Ibid, Article 27(3).

1174 Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000, p 2.

1175 Appellant Zdravko Mucić’s Final Designation of His Grounds of Appeal, 31 May 2000, p 2

1176 Landžo Brief.pl.

1177 General Assembly Resolution 36/151 of 16 December 1981.

1178 Agreement on Evidence, para 1.

1179 Landžo Brief, p 26:“[…] it is at least possible, and in reality very likely, that Judge Odio-Benito had an actual partiality against Appellant Landžo”.

1180 Appeal Transcript, p 685: “We do not for a moment suggest that there is evidence that Judge Odio Benito displayed actual bias towards Landžo or the other appellants”.

1181 Delić Brief paras 48 and 57; Landžo Brief, pp 35-36; Appeal Transcript, pp 645-646.

1182 See supra para 683.

1183 Furundžija Appeal Judgement, para 203.

1184 Landžo Brief, p 26. See also Mucić Brief, para 5, p 5:“[…] it can reasonably be assumed that, by agreeing to be a trustee of the fund, Judge Odio Benito was sympathetic to its objectives and thus hostile to acts of torture and to those who were, or alleged to have been, engaged in those acts”.

1185 Supra, para 683, see also Furundžija Appeal Judgement, paras 196-197.

1186 Prosecutor v Brdanin and Talić, Case No. IT-99-36-PT, Decision on Application by Momir Talić for the Disqualification and Withdrawal of a Judge, 18 May 2000, para 17.

1187 Appeal Transcript, p 686.

1188 Article 13.

1189 General Assembly documents A/47/1006,1 Sept 1993, p 58; A/51/878, p 59.

1190 Furundžija Appeal Judgement, para 205.

1191 Appeal Transcript, pp 687-689.

1192 R v Bow Street Metropolitan Stipendiary Magistrate and Others; Ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 (“Pinochet Decision“).

1193 Appeal Transcript p 684.

1194 Landžo Brief, p 34.

1195 The Appeals Chamber stresses that it does not intend in any way to depart from the principles expressed in the Furundžija Appeal Judgement on this issue.

1196 Pinochet Decision, p 281.

1197 Pinochet Decision, p 285 (Lord Goff of Chieveley); p 288 (Lord Nolan and Lord Hope of Craighead), p 291 (Lord Hutton).

1198 Pinochet Decision, p 284.

1199 Pinochet Decision, p 284. See also Lord Goff of Chieveley at p 286: “[…] we have to consider Lord Hoffmann [… ] as a person who is, as a director and chairperson of AICL, closely connected with AI which is, or must be treated as, a party to the proceedings”.

1200 Landžo Brief, p 34; Landžo Reply, para 6.26.

1201 Pinochet Decision, p 284.

1202 Furundžija Appeal Judgement, par 197.

1203 Per Mason J, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (High Court of Australia), adopted unanimously by the High Court of Australia in Re Polites; Ex parte Hoyts Corporation Pty lid (1991) 65 ALJR 444 at 448; cited in the Furundžija Appeal Judgement at para 197.

1204 The Appeals Chamber has already observed in the Furundžija Appeal Judgement that because of the numerous public sources of information about the qualifications and associations of Judges of the Tribunal, such information is freely available to the partiesFurundžijaAppeal Judgement, para 173.

1205 Yearbookj of Torture Fund was also in the Yearbook for 1997 (p 28) which was published after the conclusion of the Čelebići trial.

1206 General Assembly documents A/47/1006,1 Sept 1993, p 58; A/51/878, p 59. See above para 702

1460 Designated “Issue Number Nine” and “Issue Number Ten” in Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000.

1461 Designated “Issue Number 21 (Additional Issue Number Two)” in Appellant-Cross Appellee Hazim Delićs Designation of the Issues on Appeal, 17 May 2000.

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ICTY (Appeals Chamber): Prosecutor v. Delalić ("Čelebići Case")*

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ICTY (Appeals Chamber): Prosecutor v. Delalić ("Čelebići Case")*

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