IN THE APPEALS CHAMBER

Before:
Judge David Hunt, Presiding
Judge Fouad Riad
Judge Rafael Nieto-Navia
Judge Mohamed Bennouna
Judge Fausto Pocar

Registrar:
Mr Hans Holthuis

Order of:
1 February 2001

PROSECUTOR

v

Zejnil DELALIC, Zdravko MUCIC (aka "PAVO"), Hazim DELIC
and Esad LANDZO (aka "ZENGA")

 ___________________________________________________

DECISION ON HAZIM DELIC’S MOTION
FOR LEAVE TO FILE SECOND SUPPLEMENTARY BRIEF

___________________________________________________

Counsel for the Office of the Prosecutor:

Mr Upawansa Yapa
Mr Norman Farrell
Mr Roeland Bos

Counsel for the Defence:

Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Ms Cynthia Sinatra and Mr Peter Murphy for Esad Landžo

 

1.    On 24 January 2001, the Appeals Chamber issued a Scheduling Order in which it announced that the judgment on appeal in these proceedings would be delivered on 20 February 2001.1 The hearing of oral argument in relation to the appeal had concluded on 8 June 2000.

2. Six days after the Scheduling Order, on 30 January 2001, counsel for Hazim Delic filed a motion for leave to file a supplementary brief in relation to the appeal ("Motion"). The proposed supplementary brief ("Supplementary Brief") was included with the Motion.2 The Supplementary Brief discusses an article from the International Review of the Red Cross, which is annexed to it.3 The article is a critical scholarly analysis of the judgment of the Appeals Chamber of this Tribunal in The Prosecutor v Tadic.4 The Motion notes that the article discusses three issues – "the legal standard used to determine if a conflict is an international armed conflict", the "interpretation of international humanitarian law" and "the definition of ‘protected persons’ for purposes of Article 4 of the Geneva Convention Relative to Civilians" – which it states are relevant to the current appeal.5

3. The Appeals Chamber accepts that these issues, and the conclusions of the Appeals Chamber in relation to these issues in the Tadic Appeal Judgment, are relevant to grounds of appeal filed by Delic and the other accused.6 These grounds of appeal and the issues they raise have already been the subject of extensive written and oral submissions made by Delic and the other accused, in their briefs and in the hearing of oral argument on the appeal held from 5 to 8 June 2000. The Supplementary Brief refers to the analysis of the issues in the article as supporting or "echo[ing]"7 arguments he has already made in these submissions.

4. As is evident from the Scheduling Order issued by the Appeals Chamber, the judgment on the appeals in these proceedings is in the stages of finalisation. Only an important new issue of substance or compelling new information relating to one of the grounds of appeal could justify the grant of leave to file further supplementary submissions at this extraordinarily late stage.

5. After considering the material supplied, it is clear to the Appeals Chamber that the submissions in the Supplementary Brief add nothing of substance at all to the submissions which have already been made. This is effectively acknowledged by Delic in his Motion:

The supplemental brief makes no new arguments but simply shows that the arguments made by Delic and his co-defendants are similar to those made by scholars in the ICRC International Review and why the Appeals Chamber should give weight to this scholarly article in deciding the issues before it.8

6. The fact that the views of two authors expressed in an academic forum may support submissions already made by Delic is not a new matter of substance. Reference to such scholarly writing, although in no way binding on the Appeals Chamber, may in general be of assistance in its consideration of the issues before it. However it is not new information of sufficiently compelling importance to justify the admission of an additional brief at this extraordinarily late stage in the appellate proceedings. There is no unfairness to Delic in refusing leave at this time to admit submissions based on a piece of academic writing which was published in late September last year, and which in any case has been available to the Appeals Chamber from public sources.

7. The Appeals Chamber therefore refuses leave to file the Supplementary Brief and dismisses the Motion.

 

Done in English and French, the English version being authoritative.

Done this 1st day of February 2001
At The Hague,
The Netherlands.

______________________________
Judge David Hunt
Presiding Judge

[Seal of the Tribunal]

1. Scheduling Order, 24 Jan 2001 ("Scheduling Order").
2. Appellant-Cross Appellee Hazim Delic’s Motion for Leave to File Second Supplemental Brief and Supplemental Brief, 29 Jan 2001.
3. Marco Sassi and Laura M Olsen, "The judgment of the ICTY Appeals Chamber on the merits in the Tadic case”, International Review of the Red Cross No 839, p 733-769; published on website of the International Committee of the Red Cross (www.icrc.org) with a publication date of 30 Sept 2000. The introductory paragraph article makes clear that the views expressed are exclusively the views of the authors. The article is therefore not to be considered as expressing the views of the International Committee of the Red Cross on the Geneva Conventions.
4. The Prosecutor v Tadic, Case No IT-94-1-A, Judgment, 15 July 1999 ("Tadic Appeal Judgment").
5. Motion, pars 1(b) and 1(c).
6. Delic’s eighth ground of appeal is “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.” Zdravko Mucic and Esad Landžo raise the same issue in their respective fifth grounds of appeal. Delic’s fourth ground of appeal is “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 Geneva Convention IV”. Zdravko Mucic and Esad Landžo raise the same issue in their fourth and sixth grounds of appeal respectively, and Zejnil Delalic raises the issue in his third ground of contention.
7. Supplementary Brief, par 10.
8. Motion, par 1(c).