1. I agree with the majority that trial on the genocide count was erroneously cut off by the Trial Chamber’s ruling, proprio motu, under Rule 98 bis , that there was insufficient evidence to sustain a conviction on that count . I believe the Appeals Chamber Judgement amply supports that conclusion and demonstrates that both an improper standard was used by the Trial Chamber and that use of the proper standard would have made it clear that a reasonable trier might have found Jelisic guilty of genocide beyond a reasonable doubt. However, in such circumstances , I cannot see that the Appeals Chamber has any choice but to remand the case to a Trial Chamber for further proceedings there. I cannot discern any authority in the Tribunal’s Statute or in the Rules of Procedure and Evidence for the Appeals Chamber, on its own, to decide that the genocide count should be rejected, even though there is sufficient evidence to support it.

2. This is not to say that I do not empathise with many of my colleagues’ motives for wishing to end the case now. The 40-year sentence the Trial Chamber pronounced for violations of the laws or customs of war and crimes against humanity , to which Jelisic entered a plea of guilty, is, in effect, a life sentence for a man of his age. That sentence has now been upheld by this Chamber. Further, the resources of the Tribunal are stretched thin and there may well be reason to prioritise cases involving allegations of State-planned and executed crimes, rather than individualistic or opportunistic crimes. Some learned commentators on genocide stress that the currency of this “crime of all crimes” should not be diminished by use in other than large scale state-sponsored campaigns to destroy minority groups , even if the detailed definition of genocide in our Statute would allow broader coverage.¹ In this case, the erratic pattern of Jelisic’s killings and his personality disturbances, make the precedential value of a genocide charge problematic. Finally, there is the reality that the members of the original Trial Chamber will no longer be available to conduct a new trial; a new panel would have to be designated to rehear evidence already taken and witnesses from afar put through the trauma of reliving their terrible experiences again.

3. Many of these factors, in my view, suggest that a reasonable Prosecutor might well choose to drop the genocide prosecution at this point. Thus, I would not order the accused to be retried under Rule 117(C). I would remand the case to the Trial Chamber so that the Prosecutor could, if she chose, move under Rule 73 to withdraw the genocide count in light of subsequent events. If she persisted , however, the charge would proceed to trial. For reasons discussed below, I do not believe the Appeals Chamber, either pursuant to the ICTY Statute (hereafter “Statute”) and Rules of Procedure and Evidence (hereafter “Rules”), or principles discerned from national jurisdictions, has the authority to “decline…to reverse the acquittal”² of an alleged crime as serious as genocide, after it has, itself, authoritatively decided that the trial was aborted by a mistaken acquittal under Rule 98 bis.

4. The Statute provides for an independent Prosecutor as one of three co-ordinate branches of the Tribunal. Article 16 says “[t]he Prosecutor shall act independently as a separate organ of the International Tribunal” and shall be “responsible for the investigation and prosecution of persons responsible for serious violations of international humanitarian law …”. Article 19 provides that when the Prosecutor has prepared an indictment, it shall be transmitted to a Judge of the Trial Chamber who “shall” confirm it if satisfied that a prima facie case has been established . The trial Judges are not given any power to reject the indictment because they do not think it is a wise use of the Tribunal’s resources or for any other reason other than the lack of a prima facie case. Nowhere in the Statute is any Chamber of the ICTY given authority to dismiss an indictment or any count therein because it disagrees with the wisdom of the Prosecutor’s decision to bring the case .

5. Furthermore, Article 25 of the Statute confines the Appeals Chamber’s function to hearing appeals based on two grounds:

1. An error on a question of law invalidating the decision; or

2. An error of fact which has occasioned a miscarriage of justice.

No mention is made of any power to veto a prosecution in the interests of justice , judicial economy or otherwise. To the contrary, pursuant to Rule 117(A), the appeals judgement shall be pronounced “on the basis of the record on appeal”, suggesting just the opposite.

6. My colleagues rely on Rule 117(C) which says that “[i]n appropriate circumstances the Appeals Chamber may order that the accused may be retried according to law” as conferring broad discretion on that Chamber to decide whether or not a retrial should be had in circumstances like these, where the Chamber has already ruled that the Trial Chamber committed serious errors of law in halting the trial . This Rule, in my view, is designed for a far more limited purpose: to make explicit the power virtually every appellate tribunal has, in both common law and civil law countries, to decide whether to reverse a conviction outright and let the prisoner go free (in cases where the evidence is not sufficient to convict) or to retry the prisoner (in cases where a procedural or other error has tainted the original proceedings but the evidence is sufficient to sustain a conviction). Such a rule is a wise and necessary supplement to the Statute’s laconic description of the Appeal Chamber’s power to “affirm, reverse, or revise” the decisions of the Trial Chamber.³ It merely provides for the garden-variety situation where the Appeals Chamber reverses the Trial Chamber and the choice of remedy is between vacating the conviction altogether or requiring a new trial. It does not seem to have relevance to the novel situation we have here where the appeal by the Prosecutor is from a Trial Chamber decision not to continue a trial and that appeal succeeds. Indeed, the Rule literally may not apply to this situation at all since this defendant on remand would not be retried; he was never fully tried to begin with due to the intervention of the Trial Chamber.

7. Needless to say, the Rules cannot confer power on the Chambers greater than that provided by the Statute, unless it is power recognised universally as essential to the functioning of a court of law.⁴ I cannot agree with my colleagues that “national case law gives discretion to a court to rule that there should be no retrial” in circumstances like this.⁵ The American cases cited by the majority in support of this proposition, deal with what is known as the “concurrent sentence doctrine.” Pursuant to this doctrine, “where a defendant received concurrent sentences on each of several counts of an indictment and the appellate court finds no error in the conviction on any one count carrying a sentence at least equal to the others, the validity of the convictions on the remaining counts will not be reviewed.”⁶ Instead, the appellate court may, in its discretion, choose to vacate the disputed conviction(s) without considering the merits of the challenge. This discretion is grounded on the notion that scarce appellate judicial resources should not be squandered unnecessarily in determining difficult legal questions that will not affect the overall sentence imposed upon the defendant.

8. The American cases applying the concurrent sentences doctrine, nonetheless , acknowledge that the government is the primary arbiter of whether it is in the public interest to pursue a particular conviction or not. In Lindsey, the Court of Appeals specifically noted that the government did not oppose its decision to vacate the disputed conviction without considering the merits.⁷ The American cases also recognise that the concurrent sentences discretion should not be exercised where it would “impair any need of the government”.⁸ To ensure the interests of the government are not impaired, the procedure adopted by the appellate courts is to vacate the judgement of conviction on the challenged count, but to leave the jury verdict itself intact.⁹ If the government subsequently determines the interests of justice so require, the conviction can be reactivated, and subjected to appellate review. Therefore, the effect of this doctrine is simply to work a suspension of sentence.

9. In contrast to the concurrent sentences cases, it cannot be maintained that a decision by the Appeals Chamber not to order a retrial in this case could not affect the sentence ultimately imposed upon the accused. Although the sentence of 40 years imprisonment for crimes against humanity and violations of the laws or customs of war determined by the Trial Chamber is substantial, it might have been even more substantial had the accused also been convicted of genocide. Further , in this case, the Prosecutor has specifically requested that the Appeals Chamber order a new trial on the genocide count before a differently constituted Trial Chamber .¹⁰

10. The only other authorities cited by my colleagues in support of the proposition that the Appeals Chamber may, in its discretion, halt the proceedings in the interests of judicial economy, are two English cases. In Barking the Court held that the trial court erred in finding there was no case for the defendant to answer on a charge of inflicting grievous bodily harm and in failing to allow the prosecution to make a submission on this matter.¹¹ However, noting that the prosecution did not ask for the trial to be remitted for further hearing, the court saw no reason to make such a ruling. In Cosier,¹² applying Barking, the Court found the Trial Court erred in failing to hear the Prosecution prior to deciding that the defendant had no case to answer on a charge of assaulting a police officer in the execution of his duty. The Court held that, given the passage of two years since the offence occurred and the further delay likely in obtaining a new trial date, it would be unfair to order a retrial . However, the Court cited no authority in support of this proposition, nor does the Judgement reveal the attitude of the Prosecution to the question of retrial. I am also mindful that the offence concerned was of a far less serious nature than genocide. In addition, unlike some domestic jurisdictions,¹³ our Rules allow for prosecution and defence appeals from trial judgements, including acquittals rendered under Rule 98 bis. Presumably then, they must envisage new trials, with their attendant problems of delay and repetition when acquittals are overturned on appeal.

11. In sum, I do not find that national jurisprudence reveals any generally recognised inherent power in appellate bodies to prevent the prosecution of a crime in the interests of judicial economy, or that such a power is essential to a court of law’s functioning.

12. The discovery of a power in the Appeals Chamber to refuse to allow the Prosecutor discretion whether to proceed with a trial mistakenly cut off midway has serious implications for the relationship between the Prosecutor and the Judges . Had the Trial Chamber in this case proceeded correctly, the trial would have continued to its natural end. The majority has not suggested the Trial Chamber could simply have said “enough” because it did not think the genocide trial was worthy in terms of allocation of Tribunal resources.

13. Now, solely because of the fortuitous circumstance of an erroneous use of Rule 98 bis by which the Trial Chamber stopped the trial in mid-course , the Appeals Chamber asserts such a power. But if such a power can be exerted in this case, why would it not be equally valid in others where there was no guilty plea or conviction on other counts? At least one of the reasons given by the majority for justifying its termination of the genocide prosecution must also give pause in view of its effect on other parts of the Tribunal’s jurisprudence. As the majority point out in paragraph 74 of the Judgement, Jelisic entered a guilty plea to counts alleging crimes against humanity and violations of the laws or customs of war based on the same murders that formed the core of the genocide prosecution. The majority reasons that, primarily, it is the special intent “to destroy a group, in whole or in part” that distinguishes genocide from other crimes against humanity and that , since the content of that special intent has been clarified in this Judgement, there is no need for a new trial. This approach seems, as a matter of principle , to run counter to the rationale that has been laid down by this Tribunal in its decisions on cumulative convictions. In the Delalic case, the Appeals Chamber , in formulating a rule for determining when cumulative convictions are permissible , said that, in cases where the Trial Chamber is required to choose between two offences that do not have mutually distinct elements, it must select the offence that is more specifically defined. In the words of the Appeals Chamber, “if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision.”¹⁴ Accordingly, when faced with a choice between offences under Article 2 and Article 3 of the Statute, a Chamber must opt for Article 2 offences on the basis that they require a materially distinct element, namely that the victim was a “protected person ”, in accordance with the 1949 Geneva Conventions.¹⁵ Moreover, some commentators have expressed the view that the chapeau elements of the crimes under the Statute establish a hierarchy of “seriousness” among the crimes .¹⁶ Indisputably, genocide is at the apex of this hierarchy.¹⁷ Thus , the view that there is no additional public interest in determining a genocide charge simply because the underlying killings have already been dealt with as crimes against humanity and violations of the laws or customs of war may be problematic in the development of international criminal law.

14. In sum, although there may indeed be strong reasons, apart from the legal sufficiency of the evidence, why a Prosecutor might choose not to proceed with a retrial, I do not believe it falls within the judicial function to veto a retrial on “practical” or “policy” grounds. Any such decision based on “judicial economy” inevitably reflects judges’ views as to which cases are “worthy” and which are not. That, however, is the job of the Prosecutor who must calibrate legal and policy considerations in making her choices on how to utilise limited resources. To recognise a parallel power in judges to accept or reject cases on extra-legal grounds invites challenges to their impartiality as exclusively definers and interpreters of the law. I fear the Appeals Chamber is entering into strange and uncharted terrain today by announcing a power to declare that prosecution of a crime as serious as genocide may not go forward because of extra-record considerations.

15. To reiterate, I would not order a retrial, but I would remit the case to a Trial Chamber (designated by the President) for the Prosecutor to choose her course of action in light of the developments that have occurred since the original indictment was issued in 1995 and the actions taken by the Appeals Chamber in this case. For these reasons, I respectfully desist from the declination to reverse the acquittal on the genocide count and the denial of a remand.

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

_______________
Patricia M. Wald
Dated this fifth day of July 2001

At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - See e.g. W. Schabas, Genocide in International Law (2000) at 9.
2 - Majority Judgement at para 77.
3 - Statute, Article 25(2).
4 - See e.g. Prosecutor v Tadic, Case No.: IT-94-1-A-R77, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, paras. 12-29.
5 - Majority Judgement at para 73.
6 - W. LaFave & H. Israel, Criminal Procedure (2nd ed., 1992) at 1157-1158.
7 - United States v Lindsey, 47 F.3d 440, 310 U.S. App. D.C. 300 (1995) at 306.
8 - E.g. United States v Hooper, 432 F.2d 604, 139 U.S. App. D.C. 171 (1970) at 173; Lindsey, ibid, at 306.
9 - E.g. Hooper, ibid at 173 FN8; United States v Butera, 677 F.2d 1376 (11th Cir. 1982) at 1385; United States v Cardona, 650 F.2d 54 (5th Cir. 1981) at 57; United States v Dorsey, 865 F.2d 1275, 275 U.S. App. D.C.176 (1989) at 181 FN4.
10 - Prosecution’s Appeal Brief, 14 July 2000, para 5.1.
11 - R v Barking and Dagenham Justices, (1995( Crim LR 953.
12 - R v Cosier, Q.B.D., 5 April 2000.
13 - E.g. in the US Federal system, no appeal may be taken by the prosecution from the grant of a judgement of acquittal made after trial has begun but before it has been completed and a final verdict rendered. See 18 U.S.C. Section 3731; Rule 29, F.R. Cr P. The rationale for this rule is to avoid infringing the principle of double jeopardy.
14 - Prosecutor v Delalic et al, Case No.: IT-96-21-A, Judgement, 20 February 2001 (hereafter Delalic), para 413. The Trial Chamber in the Kunarac case subsequently adopted this approach. See Prosecutor v Kunarac et al, Case Nos.: IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001, para 549-550.
15 - Delalic, para 423.
16 - A. Danner, “Constructing a Hierarchy of Crimes in International Criminal Law Sentencing”, 87(3) Virginia Law Review (2001), 101 at 170.
17 - Prosecutor v Musema, Case No.: ICTR-96-13-T, Judgement and Sentence, at para 981; Prosecutor v Rutaganda, Case No.: ICTR-96-3-T, Judgement and Sentence, at para 451; Prosecutor v Kayishema et al, Case No.: ICTR-95-1-T, Sentence, at para 9.