DECLARATION OF JUDGE SHAHABUDDEEN

1.         I agree with the judgement and would like to support it on one point. This is whether the Appeals Chamber is competent to pronounce on certain propositions of law made by the Trial Chamber where the pronouncement (whichever way it goes) will not affect the result reached by the latter.  The request that the Appeals Chamber should pronounce on the propositions was made in an appeal brought by the prosecution.  Counsel for Mr Akayesu ("the defence") objects to the competence of the Appeals Chamber to do so. He submits that a pronouncement would amount to the rendering of an advisory opinion, and argues that in countries in which an appellate court can do so the jurisdiction of the court is based on a distinct grant of legislative authority.

2.         For present purposes, I would propose a distinction between appealable grounds and non-appealable issues. An appealable ground is an "error on a question of law invalidating the decision" within the meaning of Article 24(1) (a) of the Statute, this being the relevant provision in this case. A non-appealable issue may well raise an error on a question of law, but the error is not one which invalidates the decision. If the Trial Chamber committed an error in stating a proposition of law but the error did not affect the result of the decision, the error does not invalidate the decision; such an error is not an appealable ground.

3.         The prosecution’s notice of appeal originally included both appealable grounds and non-appealable issues. Subsequently, the former were abandoned, leaving only the latter on record. The question is whether the notice of appeal thereupon fell to be wholly disregarded.

4.         In so far as a notice of appeal is based on non-appealable issues, there is no appeal before the Appeals Chamber. So, in relation to such issues, even if the Appeals Chamber agrees that a proposition of law in the impugned judgement was erroneous, there is no appeal which the Chamber may allow. Nevertheless, Tadic[1] is authority for the view that in such a case, although the Appeals Chamber cannot proceed as if it were allowing an appeal, it may take notice of the erroneous proposition of law and state its own view as to what is the correct proposition.

5.         In that case, reference was made to a challenged proposition of law in the judgement of the Trial Chamber (relating to production of witness statements), the correction of which would not affect the result reached by the latter. As recalled in today’s judgement, the ICTY Appeals Chamber said:

The Appeals Chamber has no power under Article 25 of the Statute to pass, one way or another, on the decision of the Trial Chamber as if the decision was itself under appeal. But the point of law which is involved is one of importance and worthy of an expression of opinion by the Appeals Chamber.[2]

6.         The ICTY Appeals Chamber proceeded to deal with the matter on this basis. It may be thought that the concurrence of the parties in that case that the point merited a pronouncement detracts from the persuasive authority of the decision. In my view, however, the decision is sufficiently supported by principle to justify this Appeals Chamber in following it.

7.         On another point in the same case (concerning crimes against humanity), the ICTY Appeals Chamber did likewise.  Paragraph (8) of the disposition read:

FINDS that the Trial Chamber erred in finding that all crimes against humanity require discriminatory intent and HOLDS that such intent is an indispensable legal ingredient of the offence only with regard to those crimes for which it is expressly required, that is, for the types of persecution crimes mentioned in Article 5(h) of the Tribunal’s Statute

8.         Thus, the ICTY Appeals Chamber found that the proposition of the Trial Chamber was erroneous, and it made an appropriate correction; yet it did not say that any appeal was being allowed on the point. This was because the correction did not affect the result reached by the Trial Chamber[3]; the error of law was not one "invalidating the decision" within the meaning of Article 25(1) (a) of the Statute of the ICTY. Consequently, there was no appeal to be allowed. But this did not prevent correction of the proposition of law concerned.

9.         However, in Tadic the prosecution’s notice of appeal had appealable grounds in addition to non-appealable issues. Here, the prosecution’s notice of appeal, in the form in which it finally had to be addressed, raised only non-appealable issues. So, at this stage, the prosecution had no valid appeal before the Appeals Chamber. In such a situation, the prosecution could be heard by the Appeals Chamber only if the latter had advisory jurisdiction; but this of course it had not. The conclusion that, because of the non-existence of this kind of jurisdiction, the Appeals Chamber could not pronounce is therefore attractive.

10.       However, there is another point of view which suggests that, in such a case, the Appeals Chamber may act, and act within the appellate process, though not deciding an appeal stricto sensu. This view turns on whether the invalidity of the prosecution’s notice of appeal left the Appeals Chamber with anything to do in the case. If the prosecution had no valid appeal before the Appeals Chamber, the defence had one, and the prosecution was a party to it. Could the Appeals Chamber, in the course of the defence case, take notice of the questioned propositions of law in the impugned judgement and correct them on the same basis as that which was adopted in Tadic? It appears to me that nothing prevented the Appeals Chamber from so doing.

11.       As is indicated in paragraph 17 of today’s judgement, the jurisprudence suggests that this Appeals Chamber has power to raise issues arising from the record proprio motu and to rule on them after affording an opportunity to the parties to be heard. In the Tadic Decision on Jurisdiction, the defence, having raised an argument in a Trial Chamber concerning an element of a crime against humanity under Article 5 of the ICTY Statute, did not pursue the argument on appeal. That did not stop the ICTY Appeals Chamber from dealing with the point. It said, "Although before the Appeals Chamber the Appellant has forgone this argument ..., in view of the importance of the matter this Chamber deems it fitting to comment briefly on the scope of Article 5"[4].

12.       Accordingly, if, in the course of hearing the appeal by the defence, the attention of the Appeals Chamber is attracted to certain propositions of law contained in the impugned decision, it is difficult to see why that power cannot be exercised. There are good reasons why it should be in this case.

13.       A pronouncement will not be made in vacuo. The issues concerned appear on the face of the decision which is being reviewed. They were the subject of actual holdings by the Trial Chamber. If those holdings were erroneous but remain uncorrected on the record, they will inevitably carry some weight in the future conduct of cases before the Tribunal, more particularly as they will be the only pronouncements on manifestly important points available in the jurisprudence of the Tribunal. Nor is it correct to overlook the fact that, as today’s judgement points out, on the one hand, the Tribunal is a temporary body, and, on the other, its mandate relates to matters of consequence to the international community. Those two facts are in turn to be viewed in the light of the circumstance that the open-ended facilities for settling the jurisprudence which are available to permanent judicial bodies have no counterpart in the case of the Tribunal.

14.       These considerations do not of course warrant a departure from the essentials of the judicial process, but it is not impossible to make a reconciliation.  Not at any rate, where, as here, both parties have presented argument or at least have had full opportunity to do so. Even if the result of the impugned judgement will not be affected, I would think that Mr Akayesu is a person with sufficient interest to participate in the hearing of a matter concerning him.

15.       If it is said that this approach cannot be accommodated within the framework of Article 24 of the Statute, it may be answered that the foregoing factors have to be borne in mind in evaluating the intent of the Security Council in adopting the Statute of the Tribunal and in providing for a right of appeal in that provision. No doubt, there are models which go in the direction of a strict view being taken of the scope of that provision. But each instrument has to be interpreted in accordance with the factors peculiar to it. Here, I think that, in the light of the considerations mentioned, the provision, as handed down by the legislator, was intended to be construed in accordance with other jurisprudence which enables an appellate court, in some circumstances, to pass on issues arising in an appeal even if the issues do not affect the outcome of the impugned decision. The relevant principles have been variously formulated. They were put thus:

Appellate courts determine only matters actually before them on appeal, and no others, and will not give opinions on controversies or declare principles of law which cannot have any practical effect in settling the rights of the litigants.  They consider only those questions that are necessary for the decision of the case and do not attempt further "to lay down 'a rule of guidance or precedent to the bench and bar of the state.'"  Questions not directly involved in an appeal, or not necessary or relevant to, or material in, the final determination of the cause, will not be considered or decided by an appellate court, unless, it has been held, they are affected with a public interest or are of moment to the profession, or unless some useful result will follow decision.[5]

16.       So the door is shut, but not quite. Gratuitous meddling is of course not allowed. And the importance of the matter may not by itself suffice to justify intervention. To draw on another area of jurisprudence, there must be "the additional ingredient of social cost in leaving the matter undecided".[6] And, as the judgement of the Appeals Chamber emphasises, there has to be a close connection between the appealable grounds and the non-appealable issues.   But, provided these desiderata are satisfied, there is a limited discretion for an appellate court to pronounce on issues even if the pronouncement does not affect the result reached by the lower court.

17.      As recognised above, in so far as a party is seeking to rely on non-appealable issues, there is no appeal falling for determination. But in this case, as is apparent from the disposition, the Appeals Chamber has neither allowed nor dismissed the prosecution’s appeal; though it naturally refers to the grounds presented in the prosecution’s appeal, its decision falls to be regarded as an expression of opinion on the questions of law thereby raised. In effect, the Appeals Chamber treated the appeal by the prosecution as merely the vehicle for raising those questions of law, and not as an appellate process which required judicial determination.

18.       In sum, the competence of the Appeals Chamber to pass on legal issues raised on the record but not affecting the outcome reached in the impugned decision is a matter of discretion; the discretion has to be cautiously exercised; but the discretion exists. When it is properly exercised, the Appeals Chamber is acting within the normal appellate process; it is not engaging in the exercise of an advisory jurisdiction. I respectfully agree with the Appeals Chamber that this is a proper case for exercising the discretion.          

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Mohamed Shahabuddeen

Dated 1 June 2001

At Arusha

Republic of Tanzania