Current developments at the ad hoc international criminal tribunals?

Journal of International Criminal Justice

Volumn 6, Issue 3, 2008, Pages 569-607

  Brady, Helen ^a   Goy, Barbara ^b  

^a Office of the Prosecutor (OTP)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 49449098412     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqn035     Document Type: Article

References (276)

1. Judges Erik Møse, presiding, Sergei Alekseevich Egorov and Florence Rita Arrey.
2. Judgment and Sentence, Karera (ICTR-01-74-T), Trial Chamber, 7 December 2007 (hereinafter: Karera Trial Judgment). The Trial Chamber convicted François Karera, the former Prefect of Kigali-Rural prefecture under Art. 6(1) ICTRSt. for genocide, extermination and murder as crimes against humanity and acquitted him on the alternative count of complicity in genocide. The events related to the killing of Tutsis in the Ntarama and Nyamirabo sectors and Rushashi commune. The accused was sentenced to life imprisonment.
3. Karera Trial Judgment, supra note 2, 5§43, referring to Judgment, Gacumbitsi (ICTR-2001-64-A), Appeals Chamber, 7 July 2006, §§59-61.
4. Judges Fausto Pocar, presiding, Mehmet Güney, Liu Daqun, Theodor Meron and Wolfgang Schomburg.
5. Judgment, Simba (ICTR-01-76-A), Appeals Chamber, 27 November 2007 (hereinafter: Simba Appeal Judgment). Aloys Simba was a member of the Rwandan parliament from 1989 to 1993. The Trial Chamber found him guilty of genocide and extermination for his participation in a joint criminal enterprise to kill Tutsi civilians at two crime sites, Murambi Technical School and Kaduha Parish, and sentenced him to 25 years' imprisonment. Simba appealed his convictions and sentence. The Prosecution appealed his acquittal for the Cyanika Parish massacre and his sentence, asking that a life sentence be imposed. The Appeals Chamber dismissed both appeals. Simba Appeal Judgment, 2§60.
6. Ibid., 2§66.
7. Judgment, Mrkšić et al. (IT-95-13/1-T), Trial Chamber, 27 September 2007 (hereinafter: Mrkšić et al. Trial Judgment), 4§07. Mile Mrkšić was the commander of the second Operational Group in Vukovar, Veselin Šljvančanin was the Security Organ and Miroslav Radić was the captain of the third company of the Guards Motorised Brigade. The Trial Chamber convicted Mrkšić of aiding and abetting the torture and cruel treatment of approximately 200 detainees held at the Ovčara farm on 19 November 1991, following their evacuation from the Vukovar hospital. He was also convicted of aiding and abetting the murder of 194 of these detainees later that evening. He was sentenced to 20 years' imprisonment. The Trial Chamber convicted Šljvančanin of aiding and abetting the torture of the 200 detainees, but acquitted him of the murder of 194 of them. He was sentenced to 5 years' imprisonment. These convictions were for violations of the laws and customs of war, the Trial Chamber having acquitted all accused of crimes against humanity. Radić was acquitted of all counts under both Art. 7(1) and 7(3) ICTYSt.
8. Judges Kevin Parker, presiding, Christine Van Den Wyngaert and Krister Thelin.
9. Judges Patrick Robinson, presiding, Antoine Kesia-Mbe Mindua and Frederik Harhoff.
10. Judgment, Dragomir Milošević (IT-98-29/1-T), Trial Chamber, 12 December 2007 (hereinafter: D. Milošević Trial Judgment). The Trial Chamber found Dragomir Milošević, a former Bosnian Serb Army general who took over command of the Sarajevo Romanija Corps (SRK) of the Bosnian Serb Army from Stanislav Galić, guilty of crimes between August 1994 and November 1995 during the siege of Sarajevo. He was found guilty of planning and ordering terror, a violation of the laws and customs of war, two counts of murder, a crime against humanity, and two counts of inhumane acts, a crime against humanity. Due to the conviction for terror, the Chamber dismissed two counts of unlawful attacks against civilians, a violation of the laws and customs of war. The Trial Chamber found that the crimes were very serious, pointing out that the civilian population was trapped inside the confrontation lines. It sentenced Dragomir Milošević to 33 years' imprisonment.
11. D. Milošević Trial Judgment, supra note 10, 8§83, quoting Judgment, Galić (IT-98-29-A), Appeals Chamber, 30 November 2006 (hereinafter: Galić Appeal Judgment), footnote 320.
12. D. Milošević Trial Judgment, supra note 10, 8§86.
13. Ibid., 8§85 quoting Prosecution Closing arguments, 9 October 2007, T. 9468.
14. D. Milošević Trial Judgment, supra note 10, quoting Prosecution Closing arguments, 9 October 2007, T. 9472.
15. D. Milošević Trial Judgment, supra note 10, 8§88.
16. Ibid., 8§78.
17. Ibid.
18. Ibid., quoting Galić Appeal Judgment, supra note 11, 1§04 and Judgment, Galić (IT-98-29-T), Trial Chamber, 5 December 2003, 1§33.
19. D. Milošević Trial Judgment, supra note 10, 9§92.
20. Ibid., 8§80.
21. Ibid., 8§81.
22. Ibid.
23. Ibid., 9§13.
24. Ibid., 8§82.
25. See also §§953 and 1007.
26. Mrkšić et al. Trial Judgment, supra note 7, 5§17.
27. Ibid., §§449-464, 484.
28. Ibid., _sect;§451-453, 461.
29. Ibid., 4§54, referring to Judgment, Martić (IT-95-11-T), Trial Chamber, 12 June 2007.
30. Mrkšić Trial Judgment, supra note 7, 4§58.
31. Ibid., 4§60.
32. Ibid., 4§63.
33. Ibid., 4§64.
34. D. Milošević Trial Judgment, supra note 10, 9§24.
35. Ibid., 9§27.
36. Ibid.
37. Judgment, Limaj et al. (IT-03-66-A), Appeals Chamber, 27 September 2007 (hereinafter: Limaj et al. Appeal Judgment), 1§04.
38. Fatmir Limaj, Isak Musliu and Haradin Bala were Kosovo Liberation Army (KLA) members charged with crimes of torture, cruel treatment and murder committed in the Lapušnik prison camp in Kosovo in June and July 1992. Limaj and Musliu, KLA commanders, were acquitted by the Trial Chamber on all counts under Art. 7(1) and 7(3) ICTYSt. Bala was convicted for personally committing or aiding and abetting several instances of torture and mistreatment against detainees in the camp, maintaining the deplorable conditions in the camp and murdering nine of them. The Prosecution appealed the acquittals rendered against Limaj and Musliu and the Trial Chamber's JCE findings against all three accused. It also appealed Bala's 13 year sentence. Bala appealed his convictions and sentence. The Appeals Chamber dismissed Bala's appeals. The Appeals Chamber dismissed the Prosecution's appeals, with Judge Schomburg dissenting in relation to the Prosecution's appeal against Musliu.
39. Judges Fausto Pocar, presiding, Mohamed Shahabuddeen, Andrésia Vaz, Theodor Meron and Wolfgang Schomburg.
40. Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, 1§16.
41. Judgment, Vasiljević (IT-98-32-A), Appeals Chamber, 25 February 2004, §§130, 142.
42. Judgment, Krstić (IT-98-33-A), Appeals Chamber, 19 April 2004, 1§43.
43. Judgment, Stakić (IT-97-24-A), Appeals Chamber, 22 March 2006, 6§9.
44. Judgment, Brdanin (IT-99-36-A), Appeals Chamber, 3 April 2007, 4§30.
45. Simba Appeal Judgment, supra note 5, 2§96.
46. See also 3§04.
47. D. Milošević Trial Judgment, supra note 10, 9§75.
48. Ibid., 9§77.
49. Ibid., 9§76, 977.
50. Ibid., 9§79.
51. Judges Mehmet Güney, presiding, Mohamed Shahabuddeen, Andrésia Vaz, Theodor Meron and Wolfgang Schomburg.
52. Judgment, Halilović (IT-01-48-A), Appeals Chamber, 16 October 2007 (hereinafter: Halilović Appeal Judgment). The Appeals Chamber confirmed the acquittal of Sefer Halilović, former Deputy Commander and Chief of the Main Staff of the Army of the Republic of Bosnia and Herzegovina. The Prosecution had appealed the acquittal under Article 7(3) ICTYSt. for killings committed in Grabovica in September 1993. The Chamber held that the Prosecution had failed to show that no reasonable trier of fact could have concluded that Halilović did not have effective control over the perpetrators.
53. Halilović Appeal Judgment, supra note 49, 5§9. 54 Ibid.
54. Ibid.
55. Ibid.
56. Ibid. 1§82.
57. Halilović Appeal Judgment, supra note 49, 1§82 quoting Judgment. Halilović (IT-01-48-T), Trial Chamber, 16 November 2005, 9§7.
58. Halilović Appeal Judgment, supra note 49, 1§82.
59. Ibid., 2§04.
60. Ibid.
61. Ibid., 2§07.
62. Ibid., 6§2.
63. Ibid., 6§4.
64. Judges Andrésia Vaz, presiding, Karin Hökborg and Gberdao Gustave Kam.
65. Judgment, Seromba (ICTR-2001-66-I), Trial Chamber, 13 December 2006 (hereinafter: Seromba Trial Judgment). The Trial Chamber found the former priest of Nyange Parish, Kivumu commune, Athanase Seromba, guilty of aiding and abetting genocide and extermination as a crime against humanity. It dismissed the alternative count of complicity in genocide and acquitted him of conspiracy to commit genocide. It sentenced the accused to a single term of 15 years' imprisonment. The Chamber found that Seromba aided and abetted the perpetrators to demolish the parish church in which Tutsis had sought refuge, resulting in the death of more than 1,500. Seromba Trial Judgment, 3§20.
66. Karera Trial Judgment, supra note 2, 5§72.
67. Simba Appeal Judgment, supra note 5, 3§36. See however Partially Dissenting Opinion of Judge Schomburg.
68. Judges Asoka de Silva, presiding, Taghrid Hikmet and Seon Ki Park.
69. Sentencing Judgment, Rugambarara (ICTR-00-59-T), Trial Chamber, 16 November 2007 (hereinafter: Rugambarara Sentencing Judgment). The Trial Chamber sentenced the former bourgmestre of Bicumbi commune in the Kigali-Rural Prefecture, Juvénal Rugambarara, to 11 years' imprisonment. Rugambarara pleaded guilty to one count of extermination, a crime against humanity, under Art. 6(3) ICTRSt., for having failed to take the necessary and reasonable steps to ensure the punishment of his subordinates for the crimes they committed between 7 and 20 April 1994. The crimes involved the deaths of thousands of Tutsi civilians in Mwulire, Mabare and Nawe secteurs, Bicumbi commune.
70. Rugambarara Sentencing Judgment, supra note 67, 2§0.
71. Seromba Trial Judgment, supra note 63, 4§03.
72. Ibid.
73. Judges Dennis C. M. Byron, presiding, Gberdao Gustave Kam and Vagn Joensen.
74. Judgment and Sentence, GAA (ICTR-07-90-R77-I), Trial Chamber, 4 December 2007 (hereinafter: GAA, Judgment and Sentence). In the first case of contempt before the ICTR, former witness with the pseudonym GAA was sentenced by the Trial Chamber to nine months' imprisonment after pleading guilty to false testimony under solemn declaration and contempt of the Tribunal. GAA was found to have given false testimony in the appeal against conviction and sentence of Jean de Dieu Kamuhanda, recanting the testimony he gave before the Trial Chamber. According to GAA, his false testimony was induced by an investigator in the Defense team of Kamuhanda.
75. GAA Judgment and Sentence, supra note 72, 1§1 in the context of contempt and false testimony. The Trial Chamber noted with disapproval that no indictment was issued against the person who, according to GAA, induced him to give false testimony.
76. Simba Appeal Judgment, supra note 5, 2§84.
77. Rugambarara Sentencing Judgment, supra note 67, 2§6.
78. Seromba Trial Judgment, supra note 63, 3§90. Seromba 'took no concrete action whatsoever to earn the trust of those persons who believed that they were safe by seeking refuge at Nyange parish.'
79. Simba Appeal Judgment, supra note 5, 3§20.
80. Ibid., Partially Dissenting Opinion of Judge Liu Daqun, §§1-5.
81. Karera Trial Judgment, supra note 2, 5§80.
82. Ibid.
83. Seromba Trial Judgment, supra note 63, 3§99.
84. Mrkšić et al. Trial Judgment, supra note 7, 7§00.
85. Judgment on Sentencing Appeal, Zelenović (IT-96-23/2-A), Appeals Chamber, 31 October 2007 (hereinafter: Zelenović Sentencing Appeal Judgment). Dragan Zelenović was a policeman in Foča in Bosnia during the war. He pleaded guilty to sexually abusing victims in detention facilities over several months. He was found guilty of personally committing nine rapes, eight of which were qualified as both torture and rape. He was also found guilty of two instances of rape through co-perpetratorship, one of which was qualified as both torture and rape, and one instance of torture and rape through aiding and abetting. Four of the instances of sexual abuse were gang rapes, committed together with three or more other perpetrators. In one instance he participated as aider and abettor in the rape of a victim by at least 10 soldiers. This incident was so violent that the victim lost consciousness. He was sentenced to 15 years' imprisonment. He appealed his sentence. The Appeals Chamber dismissed his appeal.
86. Judges Liu Daqun, presiding, Mohamed Shahabuddeen, Mehmet Güney, Andrésia Vaz and Wolfgang Schomburg.
87. Zelenović Sentencing Appeal Judgment, supra note 83, 1§6.
88. Ibid., 1§8.
89. Ibid., 2§4.
90. Limaj et al. Appeal Judgment, supra note 36, 1§44, applying it to the double-counting error in relation to Bala's subordinate role.
91. Judges Dennis C.M. Byron, presiding, Gberdao Gustave Kam and Vagn Joensen.
92. Decision on Joseph Nzirorera's Motion for Stay of Proceedings while He Is Unfit to Attend Trial or Certification to Appeal - Art. 20 of the Statute, Rule 73(B) of the Rules of Procedure and Evidence, Karemera et al. (ICTR-98-44-T), Trial Chamber, 11 July 2007.
93. Judges Fausto Pocar, presiding, Mohamed Shahabuddeen, Liu Daqun, Theodor Meron and Wolfgang Schomburg.
94. Decision on Nzirorera's Interlocutory Appeal concerning His Right to Be Present at Trial, Karemera et al. (ICTR-98-44-AR73.10), Appeals Chamber, 5 October 2007 (hereinafter: Karemera Appeal Decision on Right to Be Present), 1§5.
95. Ibid., 1§1.
96. Ibid., quoting Decision on Interlocutory Appeal, Zigiranyirazo (ICTR-2001-73-AR73), 30 October 2006, 1§4.
97. Karemera Appeal Decision on Right to Be Present, supra note 92, 1§5.
98. Ibid.
99. Ibid., §§16, 17. The Trial Chamber (Judges Dennis C. M. Byron, presiding, Gberdao Gustave Kam and Vagn Joensen) found no prejudice was suffered and denied the request to have the proceedings declared null and void and to recall the witness, Decision on Appeals Chamber Remand on the Right of the Accused to Be Present at Trial, Karemera et al. (ICTR-98-44-T), 28 November 2007.
100. Simba Appeal Judgment, supra note 5, 4§1.
101. Limaj et al. Appeal Judgment, supra note 36, 2§1.
102. Ibid. Declaration of Judge Shahabuddeen 2§.
103. Limaj et al. Appeal Judgment, supra note 36, Partially Dissenting and Separate Opinion and Declaration of Judge Schomburg, 1§5.
104. Simba Appeal Judgment, supra note 5, 7§7.
105. Halilović Appeal Judgment, supra note 49, 1§38.
106. Ibid.
107. Simba Appeal Judgment, supra note 5, 8§2.
108. Karera Trial Judgment, supra note 2, 1§5.
109. Ibid.
110. Decision on Defence Motion to Reject Prosecution's Final Pre-Trial Brief of 2 April 2007, Stanišić & Simatović (IT-03-69-PT), Trial Chamber, 17 July 2007 (hereinafter: Stanišić & Simatović Prosecution Pre-Trial Brief Decision).
111. Judges Patrick Robinson, presiding, Krister Thelin and Frank Höpfel.
112. Stanišić & Simatović Prosecution Pre-Trial Brief Decision, supra note 108, §§18-19.
113. Rule 43 ICTY RPE: 'Whenever the Prosecutor questions a suspect, the questioning shall be audiorecorded or video-recorded, in accordance with the following procedure: ...'
114. Halilović Appeal Judgment, supra note 49, §§38-40.
115. Ibid., 3§9.
116. Ibid., 3§8.
117. Halilović Appeal Judgment, supra note 49, Separate Opinion of Judge Meron, 2§.
118. Ibid., 5§.
119. Halilović Appeal Judgment, supra note 49, Separate Opinion of Judge Schomburg, 8§. He concurred with Judge Meron that the reasoning in the Judgment solely based on Rule 89(D) is insufficient, rather Rule 89(D) could only be seen together with Rules 42 and 43 ICTY RPE, 1§.
120. Halilović Appeal Judgment, supra note 49, Separate Opinion of Judge Meron, 6§.
121. Halilović Appeal Judgment, supra note 49, Separate Opinion of Judge Schomburg, 7§.
122. Halilović Appeal Judgment, supra note 49, Declaration of Judge Shahabuddeen, 9§.
123. Ibid., 1§4.
124. Ibid., 9§.
125. Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić's Questioning into Evidence, Prlić et al. (IT-04-74-AR73.6), Appeals Chamber, 23 November 2007 (hereinafter: Prlić et al. Decision on Admission of Interview of One Accused against Co-accused).
126. Judges Fausto Pocar, presiding, Mehmet Güney, Andrésia Vaz, Theodor Meron and Wolfgang Schomburg.
127. Prlić et al. Decision on Admission of Interview of One Accused against Co-accused, supra note 123, 3§8.
128. Ibid., 5§5.
129. Ibid., 6§1, 62.
130. Ibid., 5§9.
131. Decision on Appeals against Decision Admitting Material Relating to Boročanin's Questioning, Popović et al. (IT-05-88-AR73.1), Appeals Chamber, 14 December 2007 (hereinafter: Popović et al. Appeal Decision on Admission of Borovčanin's Questioning).
132. Judges Fausto Pocar, presiding, Mehmet Güney, Andrésia Vaz, Theodor Meron and Wolfgang Schomburg.
133. Popović et al. Appeal Decision on Admission of Borovčanin's Questioning, supra note 129, 4§6.
134. Ibid., 4§8.
135. Ibid., 5§0.
136. Judges Dennis C. M. Byron, presiding, Gberdao Gustave Kam and Vagn Joensen.
137. Decision on the Prosecution Motion for Admission into Evidence of Post-Arrest Interviews with Joseph Nzirorera and Mathieu Ngirumpatse, Rules 89 (C) and 95 of the Rules of Procedure and Evidence, Karemera et al. (ICTR-98-44-T), Trial Chamber, 2 November 2007, §§45 and 46.
138. Limaj et al. Appeal Judgment, supra note 36, 2§28.
139. Simba Appeal Judgment, supra note 5, 2§0.
140. Decision on Defence Rule 94bis Notice regarding Prosecution Expert Witness Richard Butler, Popović et al. (IT-05-88-T), Trial Chamber, 19 September 2007 (hereinafter: Popović et al. Prosecution Expert Witness Decision).
141. Judges Carmel Agius, presiding, O-Gon Kwon, Kimberley Prost and Ole Bjørn Støle (reserve judge).
142. Popović et al. Prosecution Expert Witness Decision, supra note 138, 2§6.
143. Ibid., 2§7.
144. Decision on Pavković First Motion for Admission of Documents from Bar Table, Milutinović et al. (IT-05-87-T), Trial Chamber, 30 August 2007 (hereinafter: Milutinović et al. Admission of Documents from Bar Table Decision).
145. Judges Iain Bonomy, presiding, Ali Nawaz Chowhan, Tsvetana Kamenova and Janet Nosworthy (reserve judge).
146. Milutinović et al. Admission of Documents from Bar Table Decision, supra note 142, 3§.
147. Simba Appeal Judgment, supra note 5, 1§03.
148. Ibid., 1§32.
149. Limaj et al. Appeal Judgment, supra note 36, §§75, 78.
150. Judges Asoka de Silva, presiding, Taghrid Hikmet and Seon Ki Park.
151. Decision on Nzuwonemeye's Motion for Reconsideration of the Chamber's Oral Decision Dated 11 May 2007 Regarding Admission of Exhibits P.132 and P.135, Ndindiliyimana et al. (ICTR-00-56-T), Trial Chamber, 25 July 2007 (hereinafter: Ndindiliyimana et al. Reconsideration Decision).
152. Ibid., 7§.
153. Ibid.
154. Ibid. referring to Judgment and Sentence, Nahimana et al. (ICTR-99-52-T), Trial Chamber, 3 December 2003, §549.
155. Decision on Judicial Notice, Mićo Stanišić (IT-04-79-PT), Trial Chamber, 14 December 2007 (hereinafter: M. Stanišić Judicial Notice Decision).
156. Judges Kevin Parker, presiding, Christine Van DenWyngaert and Krister Thelin.
157. M. Stanišić Judicial Notice Decision, supra note 153, §12.
158. Ibid., §34.
159. Ibid., §46.
160. Ndindiliyimana et al. Reconsideration Decision supra note 149, §6.
161. Ibid.
162. Limaj et al. Appeal Judgment, supra note 36, §203 (footnote omitted).
163. Simba Appeal Judgment, supra note 5, §31.
164. Ibid., §32.
165. Judges Dennis C. M. Byron, presiding, Gberdao Gustave Kam and Vagn Joensen.
166. Rule 66(B) ICTR RPE: 'At the request of the Defence, the Prosecutor shall, subject to Sub-Rule (C), permit the Defence to inspect any books, documents, photographs and tangible objects in his 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.'
167. Decision on Joseph Nzirorera's Motion for Inspection of Statements of Pierre Celestin Mbonankira - Rule 66 (B) of the Rules of Procedure and Evidence, Karemera et al. (ICTR-98-44-T), Trial Chamber, 20 September 2007, §12.
168. Ibid.
169. Ibid., §17.
170. Judges Dennis C. M. Byron, presiding, Gberdao Gustave Kam and Vagn Joensen.
171. Rule 67(C) ICTR RPE: 'If the Defence makes a request pursuant to Rule 66 (B), the Prosecutor shall in turn be entitled to inspect any books, documents, photographs and tangible objects, which are within the custody or control of the Defence and which it intends to use as evidence at the trial.'
172. Decision on Prosecution Cross-Motion for Enforcement of Reciprocal Disclosure - Rule 67 of the Rules of Procedure and Evidence, Karemera et al. (ICTR-98-44-T), Trial Chamber, 21 September 2007, (hereinafter: Karemera et al. Decision on Reciprocal Disclosure), §8.
173. Limaj et al. Appeal Judgment, supra note 36, §63.
174. Simba Appeal Judgment, supra note 5, §184.
175. Karemera et al. Decision on Reciprocal Disclosure, supra note 170, §16.
176. Ibid.
177. Simba Appeal Judgment, supra note 5, §16.
178. Halilović Appeal Judgment, supra note 49, §120.
179. Ibid.
180. Limaj et al. Appeal Judgment, supra note 36, §13.
181. Ibid.
182. Limaj et al. Appeal Judgment, supra note 36, Partially Dissenting and Separate Opinion and Declaration of Judge Schomburg, § 3.
183. Ibid., §4.
184. Ibid., §5.
185. Decision on Krajišnik Request and Prosecution Motion, pi Krajišnik (IT-00-39-A), Appeals Chamber, 11 September 2007 (hereinafter: Krajišnik Decision on Modalities of Self-Representation on Appeal).
186. Judges Fausto Pocar, presiding, Mohamed Shahabuddeen, Mehmet Güney, Andrésia Vaz and Theodor Meron.
187. Krajišnik Decision on Modalities of Self-Representation on Appeal, supra note 183, 3§3.
188. Ibid., §34.
189. Ibid., §§ 35, 36.
190. Ibid., §41.
191. Ibid., §42.
192. Ibid., §44.
193. Judges Inés M.Weinberg de Roca, presiding, Lee Gacuiga Muthoga and Robert Fremr.
194. Decision on the Amicus Curiae Request of the Defence of Gaspard Kanyarukiga - Rule 74 of the Rules of Procedure and Evidence, Fulgence Kayishema (ICTR-2005-87-I), Trial Chamber, 14 September 2007, §6.
195. Ibid.
196. Ibid., §2.
197. The Defence argued that if the case of Fulgence Kayishema, who is still at large, were to be transferred to Rwanda, it was likely that Kanyarukiga, an accused before the ICTR, would be prosecuted in absentia as the co-author or accomplice of Kayishema, contrary to Art. 14-5 of the ICCPR and Art. 20-4(d) ICTRSt., ibid.
198. Decision on the Motion by ADAD (The Organization of ICTR Defence Counsel) for Leave to Appear as Amicus Curiae - Rules 11bis and 74 of the Rules of Procedure and Evidence, Fulgence Kayishema (ICTR-2001-67-I),Trial Chamber, 13 December 2007, §17.
199. Ibid. See also Decision on the Motion by ADAD (Organization of ICTR Defence Counsel) for Leave to Appear as Amicus Curiae, Rules 11bis and 74 of the Rules of Procedure and Evidence, Munyakazi (ICTR-1997-36-I),Trial Chamber, 13 December 2007.
200. Judges Khalida Rachid Khan, presiding, Asoka de Silva and Emile Francis Short.
201. Decision on Requests by the Republic of Rwanda, the Kigali Bar Association, the ICDAA and ADAD for Leave to Appear and Make Submissions as Amici Curiae, Hategekimana (ICTR-00-55B-I),Trial Chamber, 4 December 2007, x6 and p.3.
202. Ibid., §7. See also Decision on the Request of the Republic of Rwanda for Leave to Appear as Amicus Curiae - Rule 74 of the Rules of Procedure and Evidence, Kanyarukiga (ICTR-2002-78-I), Trial Chamber, 9 November 2007 and Decision on the Request of the Republic of Rwanda for Leave to Appear as Amicus Curiae - Rule 74 of the Rules of Procedure and Evidence, Fulgence Kayishema (ICTR-2005-87-I),Trial Chamber, 14 September 2007.
203. Judges Inés M.Weinberg de Roca, presiding, Lee Gacuiga Muthoga and Robert Fremr.
204. Decision on the Application by the Kigali Bar Association for Leave to Appear as Amicus Curiae - Rules11bis and 74 of the Rules of Procedure and Evidence, Munyakazi (ICTR-1997-36-I), Trial Chamber, 6 December 2007.
205. Ibid., §9.
206. Judges Alphons Orie, presiding, Christine Van DenWyngaert and Bakone Justice Moloto.
207. Decision on Ivan Čermak's and Mladen Markač's Joint Motion to Resolve Conflict of Interest regarding Attorney Gregory Kehoe, Gotovina et al. (IT-06-90-PT),Trial Chamber,29 November 2007 (hereinafter: Gotovina Conflict of Interest Decision).
208. Ibid., at 8.
209. In Order to the Prosecution Concerning the Alleged Conflict of Interest of Attorney Gregory Kehoe, Gotovina et al. (IT-06-90-PT), 25 July 2007, the Trial Chamber had ordered the Prosecution to provide it with all information relating to Gregory Kehoe's participation, and all materials which the Prosecution reviewed upon the Registrar's request. In Decision on Motion for Clarification, Reconsideration or Certification to Appeal, Gotovina et al. (IT-06-90-PT), 18 September 2007, the Trial Chamber dismissed the Prosecution's request to clarify, reconsider or certify for appeal its order in so far as it had requested the Prosecution to provide internal work product of the OTP. The Trial Chamber held at x11 that there is no rule 'which would limit the access of a Trial Chamber to internal documents of the Prosecution when there is an interest at stake which is of greater importance than that which underlies the internal work product privilege . . .. [T]here is nothing in the Statute or the Rules which, as a matter of principle, would prevent the Trial Chamber from receiving materials, even confidential materials, in order to be able to carry out its duties under the Statute to ensure fairness and integrity of the proceedings.'
210. Gotovina Conflict of Interest Decision, at 9, 10.
211. Decision on Johan Tarčulovski's Interlocutory Appeal on Provisional Release, Boškoski & Tarčulovski (IT-04-82-AR65.4), Appeals Chamber, 27 July 2007 (hereinafter: Tarčulovski Provisional Release Appeal Decision).
212. Judges Liu Daqun, presiding, Mehmet Güney, Andrésia Vaz, Theodor Meron and Wolfgang Schomburg.
213. Tarčulovski Provisional Release Appeal Decision, §14.
214. Judges Fausto Pocar, presiding, Mohamed Shahabuddeen, Liu Daqun, Theodor Meron and Wolfgang Schomburg.
215. Decision on Appeal against Decision on Appropriate Remedy, Rwamakuba (ICTR-98-44C-A), Appeals Chamber, 13 September 2007 (hereinafter: Rwamakuba Remedy Appeal Decision), §§ 23, 32.
216. Ibid., §10.
217. Ibid.
218. Ibid.
219. Ibid., §10. Art. 14(6) ICCPR: 'When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.'
220. Rwamakuba Remedy Appeal Decision, supra note 213, §15.
221. Ibid., §16.
222. Ibid.
223. Decision on Appropriate Remedy, Rwamakuba (ICTR-98-44C-T), Trial Chamber, 31 January 2007.
224. Rwamakuba Remedy Appeal Decision, supra note 213, §23.
225. Ibid., §§ 26, 30.
226. Ibid., §24 referring to Decision, Semanza (ICTR-97-20-A), Appeals Chamber, 31 May 2000, at 34 and Decision (Prosecutor's Request for Review or Reconsideration), Barayagwiza (ICTR-97-19-AR72), Appeals Chamber, 31 March 2000, §75.
227. Rwamakuba Remedy Appeal Decision, supra note 213, §25. Art. 2(3) of the ICCPR states: 'Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.'
228. Rwamakuba Remedy Appeal Decision, supra note 213, §26.
229. Ibid., §30.
230. Ibid., §27.
231. Ibid., §28.
232. Ibid., §30.
233. Ibid., §32, emphasis omitted.
234. Ibid., Partly Dissenting Opinion of Judge Shahabuddeen, §2.
235. Ibid., §3.
236. Ibid., §4.
237. Ibid., §5.
238. Ibid.
239. GAA Judgment and Sentence, supra note 72, §10.
240. Ibid.
241. Judges Fausto Pocar, presiding, Mohamed Shahabuddeen, Liu Daqun, Theodor Meron and Wolfgang Schomburg.
242. Decision on Joseph Nzirorera's Appeal from Denial of a Request for Designation of a Trial Chamber to Consider Referral to a National Jurisdiction, Karemera et al. (ICTR-98-44-AR11bis), Appeals Chamber, 3 July 2007, §9.
243. Ibid., §10.
244. Ibid.
245. Judges Dennis Byron, presiding, Erik Møse and Lee Gacuiga Muthoga.
246. Decision on the Prosecutor's Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11bis (F) & (G), Bagaragaza (ICTR-2005-86-11bis , Trial Chamber, 17 August 2007 (hereinafter: Bagaragaza Revocation Decision).
247. Ibid., §3.
248. Ibid., §11, referring to Decision on Rule 11bis Appeal, Bagaragaza (ICTR-05-86-AR11bis), Appeals Chamber, 30 August 2006, §§ 9, 16, 17.
249. Bagaragaza Revocation Decision, supra note 244, §11.
250. Decision on Milan Lukić's Appeal Regarding Referral, Lukić & Lukić (IT-98-32/1-AR11bis.1), Appeals Chamber,11 July 2007 (hereinafter: Lukić Referral Appeal Decision). Milan Lukić and Sredoje Lukić, members of the paramilitary unit theWhite Eagles, are charged with committing atrocities against Bosnian Muslims in Visegrad municipality from 1992 to 1994. This includes two occasions where they are alleged to have forced Bosnian civilians into houses and set the houses on fire (resulting in around 135 deaths).
251. Judges Theodor Meron, presiding, Mohamed Shahabuddeen, Mehmet Güney, Liu Daqun and Andrésia Vaz.
252. Lukić Referral Appeal Decision, supra note 248, §22.
253. Ibid., §26.
254. Judges Alphons Orie, presiding, O-Gon Kwon and Kevin Parker.
255. Decision on Prosecutor's Request pursuant to Rule 11bis (F) with regard to Sredoje Lukić and Incorporated Decision Vacating Scheduling Order, Lukić & Lukić (IT-98-32/1-PT , Referral Bench, 20 July 2007.
256. Judges Alphons Orie, presiding, Kevin Parker and O-Gon Kwon.
257. Decision on Motion for Referral of Case pursuant to Rule 11bis, Delić (IT-04e-83-PT), Referral Bench, 9 July 2007.
258. Ibid., §24.
259. Order on Defence Motion to Disqualify Judge Wolfgang Schomburg from Sitting on Appeal, Martić (IT-95-11-A), Judge Kevin Parker,Vice-President, 23 October 2007.
260. Report to the Vice-President pursuant to Rule 15(B)(ii) concerning Defence Motion to Disqualify Judge Wolfgang Schomburg from Sitting on Appeal, Martić (IT-95-11-A), 19 October 2007.
261. Ibid., at 3.
262. Ibid., at 4.
263. http://www.un.org/icty/legaldoc-e/basic/rpe/IT32_rev40.htm (visited 5 April 2008).
264. Assessment and Report of Judge Fausto Pocar, President of the International Tribunal for the Former Yugoslavia, provided to the Security Council pursuant to paragraph 6 of Council Resolution 1534 (2004), x25.
265. SC Res. 1774 (2007), 14 September 2007.
266. SC Res. 1775 (2007), 14 September 2007.
267. SC Res. 1786 (2007), 28 November 2007.
268. ICTY: 1 August 2006 to 31 July 2007 (A-62/172-S/2007/469); ICTR: 1 July 2006 to 30 June 2007 (A/62/284-S/2007/502).
269. The report for the ICTY can be found at http://www.un.org/icty/ publications-e/assessments/documents/2007-663eng.pdf.; the report for the ICTR and be found at http://www.69.94.11.53/ENGLISH/completionstrat/ s-2007-676e.pdf (visited 5 April 2008).
270. Statement by Judge Fausto Pocar, President, International Criminal Tribunal for the former Yugoslavia to the Security Council 10 December 2007.
271. Statement by Carla Del Ponte, Prosecutor, International Criminal
272. Address to the UN Security Council, six-month Report on the Completion Strategy, The Iternational Criminal Tribunal for Rwanda, Judge Dennis Byron, President, 10 December 2007.
273. Statement by Justice Hassan B. Jallow, Prosecutor of the ICTR, to the UN Security Council 10th December 2007.
274. ICTY Press Release, 2 July 2007.
275. ICTY Press Release, 7 August 2007 and ICTY Press Release, 19 December 2007.
276. ICTY Press Release, 26 September 2007.