1. The majority of the Appeals Chamber has decided to consider the appeal filed by the Prosecution in this case.[1] I respectfully disagree with that decision.
2. The grounds of appeal proposed by the Prosecution allege errors committed by the Trial Chamber in relation to issues which the Prosecution considers to be of fundamental importance to proceedings before the Tribunal.[2] The Prosecution accepts that its grounds of appeal do not fall within the precise terms of Article 24 of the Statute, primarily because the outcome of any decision rendered by the Appeals Chamber in relation thereto would have no impact on the verdict reached by the Trial Chamber.[3] However, it submits that "[t]he functioning of the Appeals Chamber is not restricted to a narrow area within the purview of Article 24 of the Statute"[4] and that accordingly, "the Appeals Chamber may consider matters strictly not falling within Article 24(1) ₣of the Statuteğ."[5] It maintains that:
As[the] Tribunal is at the early stage of development, it would be very interesting if the Appeals Chamber can entertain these appeals and come out with judgments that will help shape the future of appeals, the future of trials, both to Trial Chambers and the parties before the Tribunal.[6]
3. The majority of the Appeals Chamber considers that it possesses a discretionary power to entertain such appeals "si elle estime que leur résolution est de nature à contribuer substantiellement au développement de la jurisprudence du Tribunal" and, if the grounds of appeal in question "comportent un lien de connexité avec l’affaire considérée."[7] At the same time, the majority accepts that it has no "pouvoir consultatif" such as is possessed by the International Court of Justice.[8] I have no difficulty in accepting the latter proposition. In my view it is quite clear that the Appeals Chamber does not possess the power to give advisory opinions. However, I find it hard to reconcile this proposition with the former – how can the Appeals Chamber find that it has no "pouvoir consultatif" yet proceed to then consider questions which could be defined as requiring the use of such a power?
4. The "Statute of the International Tribunal for Rwanda" is in essence the governing legislation of the Tribunal. It therefore falls to be interpreted by its Chambers, both trial and appeals.[9] In this regard, the preamble to the Statute provides as follows:
As amended by the Security Council acting under Chapter VII of the Charter of the United Nations, the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 (hereinafter referred to as "The International Tribunal for Rwanda") shall function in accordance with the provisions of the present Statute.[10]
5. It is understood that the Statute should be interpreted in accordance with the general principles of interpretation as laid down in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.[11] This has already been recognized in several decisions and Judgments rendered by the Trial Chambers and Appeals Chamber for the ICTY[12] and indeed is acknowledged in this very Judgment. According to these rules, the text of a treaty (in this case, the Statute) must be presumed to be the authentic expression of the intent of the parties.[13] Consequently, the ‘interpreter’ cannot set aside the text of the document, with a view to consulting its ‘spirit,’ nor read into it "what [it] do[es] not, expressly or by implication contain."[14] As stated by the International Court of Justice:
[I]f the relevant words in their natural and ordinary meaning make sense in their context, that is an end of the matter. If, on the other hand, the words in their natural and ordinary meaning are ambiguous or lead to an unreasonable result, then, and then only, must the Court, by resort to other methods of interpretation, seek to ascertain what the parties really did mean when they used these words.[15]
6. In my view, the "natural and ordinary meaning" of Article 24 of the Statute is crystal clear:
1. Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:
(a) An error on a question of law invalidating the decision; or
(b) An error of fact which has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chamber.
7. Nothing on the face of this provision allows for the interpretation given in the Judgment by the majority of the Appeals Chamber. The terms of the provision are not ambiguous and nothing permits the Appeals Chamber to exercise its inherent discretion to hear appeals alleging errors of law which do not lead to the affirmation, reversal or revision of the decision taken by the Trial Chamber. That is to say, all grounds of appeal which do not strictly fit within the terms of Article 24 of the Statute cannot, and in my view should not, be entertained by the Appeals Chamber.
8. I do not dispute the principle that, particularly given the fact that this Tribunal is an ad hoc institution with a limited life, it would be useful for the Appeals Chamber in certain circumstances to give general ‘guidance’ with regard to the work of the Trial Chambers – this could potentially (and arguably most certainly would) contribute to the ongoing development of our jurisprudence. However, the power to do so does not exist. As Akayesu has submitted, by deciding to entertain the Prosecution appeal in this case, the Appeals Chamber is deciding to broaden the scope of the Statute.[16]
9. The views put forward by this Appeals Chamber on the Prosecution grounds of appeal in this case will clearly have an impact on cases either currently being tried or those due to be tried by the Tribunal.[17] The Prosecution recognizes this.[18] This is a slippery and dangerous path for the Appeals Chamber to take and I firmly believe that it should have been avoided.
10. Finally, I appreciate that the Appeals Chamber for the ICTY has in the past interpreted its competence under Article 25 of the Statute of the ICTY[19] in a broad way, invoking its inherent discretion.[20] In doing so, it has found that despite the fact that issues raised on appeal did not have any impact on the verdict in the case in hand, because they concerned questions of general significance to the jurisprudence of the Tribunal, they should nonetheless be considered. There are evident differences between those cases and the present, not least the fact that in the instant case, none of the questions raised in the Prosecution appeal fall within the terms of Article 24 of the Statute, whereas in those which were considered by the Appeals Chamber for the ICTY, certain other grounds of appeal did – as a whole, those appeals did allege errors of law or fact which would impact on the Trial Chamber’s Judgment, albeit certain questions were added for additional consideration by the Appeals Chamber.
11. In any event, without discussing further the exercise of the Appeals Chamber’s discretion in the former cases, my view is that we are obliged to and should return to a strict interpretation of our governing legislation. Consequently, the Appeals Chamber should only consider appeals which allege an error of law that invalidates the trial judgment or an error of fact that occasioned a miscarriage of justice.
Done in both English and French, the English text being authoritative.
_______________________________
Rafael Nieto-Navia
Dated 1 June 2001
At Arusha
Republic of Tanzania
[Seal of the Tribunal]
[1] Appeals Judgement, para. 28: "…la Chambre d’appel traitera donc les quatre motifs d’appel soulevés par le Procureur."
[2] The Prosecution submits that "these grounds of appeal raise matters of general significance to the Tribunal’s jurisprudence and practice…" Prosecution Brief, Para. 1.17. See also, T(A), 2 November 2000, pp. 22 – 26: "as regards all the questions which form the grounds of appeal, we believe they are of general importance for the jurisprudence of this Tribunal and for the developments and the clarification of international criminal law."
[3] It submits: "the Prosecution acknowledges that the errors do not in and of themselves invalidate the decision of the Trial Chamber so as to expressly fall within the ambit of Article 24(1) of the Statute." Prosecution Brief, para. 1.17.
[4] Prosecution Reply, para. 2.6.
[5] Ibid.
[6] T(A), 1 November 2000, p. 244.
[7] Appeals Judgement paras. 23 and 24 .
[8] Appeals Judgement, para. 23: "La Chambre d’appel rappelle que l’examen de questions d’intérêt général ne vise pas à créer une nouvelle voie de recours ou un éventuel pouvoir consultatif." Article 65 of the Statute of the International Court of Justice provides as follows: "1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. 2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question."
[9] Resolution 955 (1994), which ordered the establishment of the Tribunal, provides in sub-section (1) as follows: "1.Decides hereby, having received the request of the Government of Rwanda (S/1994/1115), to establish an international tribunal for the sole purpose of prosecuting persons responsible for genocide and other serious violations of International Humanitarian Law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994 and to this end to adopt the Statute of the International Criminal Tribunal for Rwanda annexed hereto" (emphasis added).
[10] Emphasis added. The words, "₣hğaving been established" were replaced with ""₣ağs amended," following the amendment of the Statute by the Security Council in Resolution1165 (1998).
[11] Vienna Convention on the Law of Treaties (1969), U.N. Doc. A/CONF.39/27. The Vienna Convention contains general rules of interpretation, applicable not only to treaties but, mutatis mutandis, to international instruments in general. The Tribunal is guided by the principles which may be drawn from Article 31(1) of the Convention: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose."
[12] See, e.g., Decision on the Prosecutor’s motion requesting protective measures for victims and witnesses, Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, 10 August 1995, paras. 18 et seq., Judgment, Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, 16 November 1998, paras. 158 et seq; Decision on appeal regarding the admission into evidence of seven affidavits and one formal statement, Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2 – AR73.6, 18 September 2000, para. 22.
[13] International Law Commission, 1966 Report on the Law of Treaties, Vol,. II, ILC Yearbook, 1966, p. 220. The ICTR Statute does not have "parties" strictu sensu. The text should be interpreted to be the expression of the intention of the UN Security Council.
[14] Ibid. p.221. During the Vienna Conference the US delegate Mr. Myres S. McDougal presented a proposal with the intention of widening the ILC draft rules (A/CONF.39/C.1/L.156) which he considered to be too restrictive (A/CONF.39/11, 31st session 19 April 1968, para. 38). The British delegate Mr. I. M. Sinclar brilliantly refuted Mr. McDougal (Ib. 33rd session 22 April 1968, paras. 2 et seq.). At the end, the US proposal was rejected in the Plenary Commission by 66 votes, 8 in favour and 10 abstentions (A/CONF.39/11/Add. 2, Report of the Plenary Commission, para. 271).
[15] Competence of the General Assembly for the Admission of a State to the United Nations, I.C.J. Reports (1950), p.8.
[16] Akayesu’s Response, para. 9.
[17] As also put forward by Akayesu: Akayesu Response, paras. 11-13.
[18] Prosecution Reply, paras. 2.10-2.14. In paragraph 2.14, the Prosecution submits "that the purpose of ₣legal provisions in certain national jurisdictionsğ is to provide a mechanism for straightening legal issues, which will have an impact on the future practice, where appeal does not ordinarily lie as of right." See also, T(A), 1 November 2000, p. 244.
[19] Which reflects Article 24 of the Statute of the ICTR.
[20] See, Judgement, Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, 15 July 1999, paras. 247, 281 and 315. Judgement, Prosecutor v.Zlatko Aleksovski, Case No. IT-95-14/A, 24 March 2000, para. 113. as noted in this Appeals Judgement.