Aleksovski - Judgement - Declaration of Judge David Hunt

X. DECLARATION OF JUDGE DAVID HUNT

1. I agree with the disposition of these appeals as stated in the Judgement of the Appeals Chamber, and I am content to join in the reasons given therein for all but one of the issues determined during the course of the appeals. The exception is the issue of judicial precedent within the Tribunal. So important is that issue , which is being determined for the first time in the Appeals Chamber, that I prefer to state my own reasons for the conclusion which has been expressed in the Judgement . I should emphasise that the differences between us lie in emphasis rather than in substance.

2. Previous judicial decisions do not, in general, play an important part in international law. They rate no higher than the teaching of highly qualified publicists, as subsidiary means for determining what the international law is upon any issue.¹ Not even the International Court of Justice regards itself as bound by its previous decisions .

3. This Tribunal is unique even in the sphere of international law.² This is so in many ways. It is the only international court which has its own appellate structure,³ so that issues arise not only in relation to the attitude which the Appeals Chamber should take towards its own previous decisions but also in relation to the attitude which the Trial Chambers should take towards the decisions of the Appeals Chamber and of the other Trial Chambers. Only the first of those issues arise for determination in the present appeal.

4. Another way in which the Tribunal is unique in the sphere of international law is that it is presently the only international criminal court, and, as such, it is necessarily subject to many of the same concerns that arise in relation to the criminal courts in domestic jurisdictions. There has always been recognised a special need for certainty in the criminal law. There is, however, a tension existing between that special need and another special need in the criminal law, the need for flexibility where adherence to a previous decision will create injustice. Both of these special needs apply equally to international criminal law as well.

5. A third matter of importance to consider in relation to the Tribunal is that, unlike in domestic systems, there is no legislative body readily able to fine-tune its Statute when a decision of the Appeals Chamber is subsequently seen to have produced an injustice. It is quite unrealistic to expect the Security Council of the United Nations to perform that task.

6. Finally, the Tribunal’s Statute is not a self-contained code of the nature adopted in the civil law systems, and (as in the common law systems) it requires constant interpretation for its continuing application.

7. In all these circumstances, how then is the Appeals Chamber to respond to the tension between the special needs of certainty and flexibility? In my respectful view, the answer to that question is not to be found in the practices of other international courts (which are necessarily not criminal courts) or in the doctrine of judicial precedent in the domestic courts where the situation in which those courts operate is quite different to that in which this Tribunal operates.

8. The need for certainty in the criminal law means that the Appeals Chamber should never disregard a previous decision simply because the members of the Appeals Chamber at that particular time do not personally agree with it. The Appeals Chamber should depart from its previous decisions only with caution. It is unwise to attempt an exhaustive tabulation of specific instances when it would be appropriate to do so . The appropriate test, in my view, is that a departure from a previous decision is justified only when the interests of justice require it. Some examples may be given which illustrate the application of that test. It would be appropriate to reconsider a previous decision where that decision has led to an injustice, or would lead to an injustice if its principle is applied in a subsequent case, or where a subsequent decision of the International Court of Justice, the European Court of Human Rights or a senior appellate court within a domestic jurisdiction has demonstrated an error of reasoning in the previous decision, or where, in the light of subsequent events, the previous decision can be seen to have been plainly wrong, or where the previous decision was given per incuriam.

9. I therefore agree with the Judgement where it says that the normal rule is that the Appeals Chamber follows its previous decisions and that a departure from them is the exception. The reference to a previous decision means the ratio decidendi of that decision, the precise principle upon which the decision depended. The ratio decidendi cannot be distinguished merely because the facts to which it is to be applied are different.

10. Although it is not necessary for the purposes of this appeal (and thus is not part of the ratio decidendi of the Judgement), I agree with the Judgement , largely for the reasons given, that a Trial Chamber is bound by the decisions of the Appeals Chamber directly in point, although it should be permitted at the same time to express a reasoned disagreement with that decision for the later consideration of the Appeals Chamber itself.

11. I also agree with the Judgement that a Trial Chamber is not bound by the decision of another Trial Chamber, although I believe that it should have respect for that decision and consider carefully whether it is appropriate to depart from it.

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

Dated this 24th day of March 2000,
At The Hague,
The Netherlands.

________________________
Judge David Hunt

1. Statute of the International Court of Justice, Article 38.1(d). Article 38 is generally regarded as a complete statement of the sources of law. See also Prosecutor v Kupreskic, Case No.: IT-95-16-T, Judgement, 14 Jan. 2000, para 540.
2. I equate the International Criminal Tribunal for Rwanda with this Tribunal for this purpose.
3. The Rwanda Tribunal has its own appellate structure, but the members of this Tribunal's Appeals Chamber are members also of the Rwanda Tribunal's Appeals Chamber.