1  Do the appellate instances in International Criminal Courts and Tribunals have competence to enter a conviction in lieu of an acquittal (Appeal: International Criminal Courts and Tribunals)? In international tribunals that permit the prosecution to appeal acquittals, this dilemma has conceptual and structural roots. Most international criminal tribunals have a two-tier system: first instance (trial) and second instance (appellate). There are no higher tribunals or courts above them within the meaning of Article 14(5) International Covenant on Civil and Political Rights (1966) (‘ICCPR’), Article 2(1) Protocol No. 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), or Article 8(2) American Convention on Human Rights (1969) (‘ACHR’). If the appellate instance in a two-tier international tribunal convicts a person following their acquittal at first instance, the person will not be able to have their conviction reviewed by any higher tribunal.

2  The two-tier system is found in the International Criminal Court (ICC), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), and the Extraordinary Chambers in the Courts of Cambodia (ECCC). Except for the ECCC, their statutory frameworks permit the Prosecutor to appeal acquittals. A notable exception among international criminal tribunals is the Kosovo Relocated Specialist Judicial Institution (‘KSC’) (Kosovo Specialist Chambers; Kosovo Specialist Prosecutor’s Office), which has a three-tier system. Its third-instance appellate proceedings are specifically designed to hear appeals against judgments of its second appellate instance if the second appellate instance has modified an acquittal and has instead entered a conviction. Here, the question whether it is permissible to enter a first-time conviction at the appellate stage has no practical significance.

3  There are three schools of thought regarding the issue of conviction on appeal in international criminal justice. First, the permissive theory postulates that the appellate instance can itself enter a conviction for the first time if the trial proceedings or judgment are flawed. Second, the relative theory suggests that appeals judges have the statutory power to enter a new conviction, but the decision should be carefully balanced against other competing interests. Finally, there is the prohibitive theory, where appeal judges are said to have no power to enter new convictions on appeal, irrespective of their findings. The ICTY and ICTR appeal judgments, in particular separate or concurring opinions (Separate Opinion: International Criminal Courts and Tribunals), bring to light the differing views and the legal complexities regarding this issue. Although there is no ICC jurisprudence on the issue at present, the ICC Appeals Chamber might elect to follow the median path in light of its own statutory framework and developments in other international tribunals (Appeals Chamber: International Criminal Courts and Tribunals).

4  Drafters of international human rights instruments have adopted different approaches on the issue of a fresh conviction on appeal. The ICCPR and Protocol No. 7 of the European Convention on Human Rights (‘ECHR’) both speak of the convicted person’s right to have their conviction or sentence ‘reviewed’. At the same time, ECHR Protocol No. 7 allows for exceptions, including a fresh conviction on appeal.

5  Pursuant to Article 14(5) ICCPR, ‘[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’. The Article does not mention the right to appeal in explicit terms, but it is widely understood to encompass this procedural stage. When this provision was drafted and adopted in 1966, it was designed for domestic jurisdictions, not modern International Criminal Courts and Tribunals. The succinct wording of the Article can be interpreted to mean that the prosecution cannot appeal acquittals, like in some common law jurisdictions. Alternatively, it can be interpreted to mean that there must be another higher tribunal above the second appellate instance that has entered a conviction for the first time, like in some civil law jurisdictions. The provision itself does not mention any exceptions, but a number of States Parties have made reservations to it, including Austria, Belgium, Denmark, France, Germany, Luxembourg, the Netherlands, and Norway.

6  The ECHR is conspicuously silent on the right to appeal in criminal matters. Instead, this right is found in ECHR Protocol No. 7, which states in Article 2(1) that ‘[e]veryone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal’. But it allows for certain exceptions. Article 2(2) clarifies that ‘[t]his right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal’. In other words, this provision would allow the second instance of a two-tier system to enter a conviction in place of an acquittal.

7  The wording of the corresponding provision in the ACHR further deviates from its counterparts in the ICCPR and the ECHR. Article 8(2)(h) ACHR states that an accused person has ‘the right to appeal the judgment to a higher court’. It is silent on the issue of a first-time conviction at the appellate stage. It specifically mentions the right of appeal to a higher court, but in contrast to the ICCPR and ECHR Protocol No. 7, speaks of ‘judgment’, not ‘conviction’. This simple linguistic choice changes the scope of the right in a manner that would make it possible for the prosecution to successfully appeal an acquittal in a two-tier system.

8  Domestic jurisdictions approach the issue of a fresh conviction on appeal in a different fashion, but some common trends can be observed. In common law jurisdictions, such as the United Kingdom and the United States, the prosecution may not appeal an acquittal. Limited exceptions are permitted in the United Kingdom. In the United States, the Supreme Court has interpreted the double jeopardy clause of the Fifth Amendment to mean that the prosecution cannot appeal against a verdict, whether on a question of law or fact (Prosecutor v Tadić (Declaration of Judge Nieto-Navia) (1999) para. 3). In Canada, the prosecution may appeal an acquittal, but it is limited to a significant error of law.

9  In civil law jurisdictions, such as France, Germany, Belgium, and Ukraine, the prosecution may appeal acquittals. The question of ne bis in idem does not arise because trial proceedings are not considered final if one of the parties has lodged an appeal. But in these systems, there are other procedural safeguards for the accused. According to the principle of prohibition on reformatio in peius, an appellant shall not be placed in a worse position as a result of the appeal. This principle is reflected in Article 83(2) Rome Statute of the International Criminal Court (‘ICC Statute’). However, while it protects the appellant against negative consequences of their own appeal or appeal on their behalf, it does not protect them if the Prosecutor appeals.

10  As stated above, the ICC, ICTY, ICTR, SCSL, STL, and ECCC all have a two-tier structure. The Trial Chamber in these courts conduct the first instance proceedings. The Appeals Chambers (in the ECCC, the Supreme Court Chamber) represent the highest instance responsible for the appellate proceedings. Meanwhile, where they exist, the Pre-Trial Chambers (Pre-Trial Chamber) are responsible for preliminary issues in preparation for trial. As a three-tier system, the KSC consists of a Trial Panel, a Court of Appeals Panel, and a Supreme Court Panel.

11  The Statutes of the ICTY, ICTR, SCSL, and STL include near-identical language allowing the Prosecutor to appeal the Trial Chamber’s decisions and empowering the Appeals Chamber to ‘affirm, reverse or revise’ such decisions (e.g. Art. 25(2) ICTY Statute). These provisions do not explicitly empower the Appeals Chamber to enter a new conviction at the appellate stage, but they are broad enough to include this power.

12  In relation to appellate proceedings, the SCSL Statute and STL Statute mirror the language of their precursors, the ICTY and ICTR Statutes. In fact, Article 20(3) SCSL Statute states in no uncertain terms that ‘the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the former Yugoslavia and for Rwanda’. According to Article 25(1) ICTY Statute, Article 24(1) ICTR Statute, and Article 26(1) STL Statute, the Appeals Chamber in these tribunals shall hear appeals from persons convicted by the Trial Chamber or from the Prosecutor on two grounds: an error on a question of law invalidating the decision, or an error of fact that has occasioned a miscarriage of justice. In addition to these grounds, Article 20(1) SCSL Statute empowers the Appeals Chamber to hear appeals on a procedural error.

13  Article 25(2) ICTY Statute and Article 24(2) ICTR Statute provide that the ‘Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers’. Similarly, pursuant to Article 20(2) SCSL Statute and Article 26(2) STL Statute, ‘[t]he Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chamber’. In addition, Rule 117(c) ICTY Rules of Procedure and Evidence (‘RPE’) provides that in ‘appropriate circumstances the Appeals Chamber may order that the accused be retried according to law’. Rule 118(c) ICTR RPE encapsulates a similar power to order a retrial.

14  The ICC Statute departs from the framing of the powers of the Appeals Chamber at the ICTY and the ICTR. It also includes a more detailed set of provisions on appellate proceedings, which adds clarity and helps resolve ambiguities in relation to appellate powers that periodically resurfaced in the ICTY and ICTR cases, which will be discussed below.

15  Importantly, for the purposes of appellate proceedings under Articles 81 and 83 ICC Statute, the ICC Appeals Chamber has all the powers of the ICC Trial Chamber. If the ICC Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may (a) reverse or amend the decision or sentence, or (b) order a new trial before a different Trial Chamber. For these purposes, the ICC Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue (Art. 83 ICC Statute).

16  Where the decision or sentence has been appealed only by the person convicted, or the ICC Prosecutor on that person’s behalf, it cannot be amended to his or her detriment. As mentioned above, this is an expression of the civil law principle prohibiting reformatio in peius. However, the ICC Appeals Chamber can enter a guilty verdict when the appeal is brought by the Prosecutor under Article 81(1)(a) ICC Statute. The same procedure applies in equal measure to cases concerning core international crimes under Article 5 ICC Statute and offences against the administration of justice under Article 70 ICC Statute.

17  The question of entering a fresh conviction on appeal without the further right to appeal would not arise in the ECCC or KSC proceedings. Pursuant to Rule 104(4) ECCC Internal Rules (2022), the Supreme Court Chamber of the ECCC ‘may only modify the TC’s findings but not the disposition in case of a successful prosecution appeal against an acquittal’ (Vasiliev (2020) 729).

18  Although Article 46(3) Law on KSC and KSPO (‘KSC Law’) states that ‘[t]he Court of Appeals Panel may affirm, reverse or revise Judgments by the Trial Panel and take any other appropriate action’, comparable to the ICTY, ICTR, and ICC Statutes, there is one fundamental difference. The KSC was established as a three-tier system, with third-instance appellate proceedings. Article 47(1) KSC Law empowers a Supreme Court Panel of the KSC to hear appeals against Judgment of a Court of Appeals Panel if the Court of Appeals Panel has modified an acquittal and has instead entered a conviction or when the criminal sanction of life-long imprisonment has been imposed by either the Trial Panel or the Court of Appeal Panel.

19  No further remedies are available to the convicted person following appeal since there are no higher tribunals above the Appeals Chamber at the ICTY, ICTR, STL, SCSL, and ICC. In certain limited circumstances, review proceedings are the sole available recourse following appeal proceedings in the two-tier tribunals. Arguably, this is an extraordinary procedure, not a remedy as such. Thus, review proceedings in international criminal tribunals are not synonymous with the right of a convicted person to have their conviction and sentence reviewed by a higher tribunal within the meaning of Article 14(5) ICCPR. Besides, the available remedies for alleged errors in appeals judgments do not include reconsideration.

20  Pursuant to Article 26 ICTY Statute and Article 25 ICTR Statute, where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit an application to the Appeals Chamber for review of the Judgment. Article 21(1) SCSL Statute and Article 27(1) STL Statute contain comparable provisions (Revision of Judgment: International Criminal Courts and Tribunals). If the Appeals Chamber at the SCSL or the STL determines that the application is meritorious, it may either reconvene the Trial Chamber or retain jurisdiction over the matter.

21  Pursuant to Article 84(1) ICC Statute, the convicted person or, after death, spouses, children, parents, or one person alive at the time of the accused’s death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person’s behalf, may apply to the Appeals Chamber to revise the final Judgment of conviction or sentence if one of the following conditions are satisfied (Revision of Conviction or Sentence: International Criminal Court (ICC)). First, new evidence has been discovered that (i) was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making the application, and (ii) is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict. Second, it has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged, or falsified (Assessment of Evidence: International Criminal Courts and Tribunals). Third, one or more of the judges who participated in the conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge from office under Article 46 ICC Statute (Ethical Standards for International Judges).

22  If the ICC Appeals Chamber determines that the application for revision of conviction or sentence is meritorious, it may reconvene the original Trial Chamber, constitute a new Trial Chamber or retain jurisdiction over the matter and determine whether the Judgment should be revised (Art. 84(2) ICC Statute).

23  To date, the ICC has produced no jurisprudence on the issue of a new conviction at the appellate stage. Meanwhile, the pertinent ICTY and ICTR jurisprudence has never fully resolved the issue, revealing fundamental disagreements between different judges and chambers. Three main theories can be distinguished in the law and practice of international criminal tribunals regarding conviction on appeal: permissive, relative, and prohibitive.

24  The permissive theory postulates that the appellate instance can for the first time enter a conviction if the trial judgment or proceedings that resulted in acquittal are flawed. At the ICTY and ICTR, the Appeals Chamber entered new convictions at the appellate stage in cases including Prosecutor v Tadić (1999) (‘Tadić’), Rutaganda v Prosecutor (2003) (‘Rutaganda’), Semanza v Prosecutor (2005) (‘Semanza’), Gacumbitsi v Prosecutor (2006) (‘Gacumbitsi’), Gatete v Prosecutor (2012) (‘Gatete’), and Prosecutor v Mrkšić and Šljivančanin (2009) (‘Mrkšić and Šljivančanin’).

25  In the Tadić case, the ICTY Appeals Chamber interpreted Article 25 ICTY Statute as permitting it to reverse an acquittal and to enter a new conviction at the appellate stage (Tadić (Appeal Judgment) paras 170–71, 235–37). The defence in that case did not challenge the Appeals Chamber’s competence to enter new convictions following the Prosecution’s appeal. The majority of the judges did not expressly address the issue of whether the Appeals Chamber was competent to do so. Judge Nieto-Navia raised a related issue in his declaration, examining the Prosecutor’s right to appeal an acquittal through the prism of the principle of ne bis in idem, better known in the common law jurisdictions as double jeopardy. Having considered these concepts, he ultimately found that the Prosecutor’s appeals against acquittals are permissible under Article 25 ICTY Statute. In conclusion, however, he invited the Appeals Chamber to ‘analyse, at the sentencing stage, whether a successful Prosecution appeal should put the person in a worse position than that at the end of trial’, referring to reformatio in peius (Tadić (Declaration of Judge Nieto-Navia) paras 1–11).

26  In Rutaganda, the accused was convicted on appeal of murder as a violation of Common Article 3 of the Geneva Conventions I–IV (1949), Judge Pocar dissenting. In their separate opinion, Judges Meron and Jorda urged the ICTR Appeals Chamber to thoroughly examine the issue of entering new convictions at appellate level which, given the legal framework of the ICTY and ICTR, could no longer be appealed. The judges cautioned that ‘the absence of any possible appeal, apart from remitting the issue to a trial chamber could violate the principle of fundamental fairness recognized both in international law and in many national legal system’ (Rutaganda (Separate Opinion of Judges Meron and Jorda) para. 1). At the same time, the judges noted that the underlying criminal conduct in that case was already covered by the Trial Chamber’s earlier convictions and the new convictions did not attract a heavier penalty. Thus, they did not engage with the issue further (at 1). Judge Shahabuddeen appended his separate opinion, where he concluded that ‘[t]he combined effect of the two limbs of article 24 is that the Appeals Chamber may substitute a conviction for an acquittal and may do so either on fact or on law or on both’. In other words, as he concluded, ‘notwithstanding the absence of such a [further] right of appeal, the Appeals Chamber is competent to make a conviction’ (Rutaganda (Separate Opinion of Judge Shahabuddeen) paras 4 and 40).

27  In Semanza, the Appeals Chamber, Judge Pocar dissenting, reversed the acquittals and entered new convictions for genocide, for ordering extermination as a crime against humanity, and for serious violations of Common Article 3 of the 1949 Geneva Conventions and of the Geneva Conventions Additional Protocol II (1977). It also increased the sentence to a total term of 35 years, including 25 years for genocide, subject to a reduction for violations of Semanza’s ‘fundamental pre-trial rights’ (Semanza (Appeals Judgment) 126). Judges Shahabuddeen and Güney appended a separate opinion on the competence of the Appeals Chamber to enter a conviction in place of an acquittal. Referring to Judge Shahabuddeen’s separate opinion in Rutaganda, the judges reiterated that ‘the Appeals Chamber has competence under Article 24(2) of the Statute to substitute a conviction for an acquittal’ (Semanza (Separate Opinion of Judge Shahabuddeen and Judge Güney) para. 6).

28  In the Gacumbitsi case, the ICTR Trial Chamber did not enter a conviction for aiding and abetting murder, but according to the Appeals Chamber, made findings of fact sufficient to support such a conviction. Based on these factual findings, the ICTR Appeals Chamber entered a new conviction for aiding and abetting murder (Gacumbitsi (Appeal Judgment) para. 124).

29  In Gatete, the Prosecutor successfully requested the ICTR Appeals Chamber to enter a conviction for conspiracy to commit genocide. Gatete replied that entering a new conviction on appeal would deny him the right to have his conviction reviewed by a higher tribunal. In reaching that decision, the Appeals Chamber recalled that it was ‘established jurisprudence’ that a new conviction may be entered at the appellate stage (Gatete (Appeal Judgment) para. 265), with Judge Pocar dissenting. The Appeals Chamber cited the Gacumbitsi and Rutaganda Appeal Judgments in support of its conclusion.

30  In Mrkšić and Šljivančanin, the Appeals Chamber quashed Šljivančanin’s acquittal, Judge Vaz dissenting, and found, Judge Pocar and Judge Vaz dissenting, him guilty of aiding and abetting the murder of 194 individuals. It also quashed his sentence of five years’ imprisonment imposed by the Trial Chamber and imposed by majority, Judge Pocar and Judge Vaz dissenting, a sentence of 17 years (Mrkšić and Šljivančanin (Appeal Judgment) para. 170). It did not discuss its competence to enter a conviction on appeal. During subsequent review proceedings, as discussed below, the ICTY Appeals Chamber vacated Šljivančanin’s conviction on appeal for aiding and abetting murder as a violation of the laws or customs of war.

31  Other international tribunals have also reversed acquittals and entered convictions in lieu thereof at the appellate stage. The SCSL Appeals Chamber overturned the Trial Chamber’s acquittal of the accused in relation to crimes against humanity in the Fofana and Kondewa case. The Appeals Chamber’s majority found him guilty on five counts and increased his sentence to a total term of 15 years.

32  The ICTY and ICTR Appeals Chambers have also entered fresh convictions on the basis of alternative modes of liability. The Appeals Chamber in Prosecutor v Milošević, 2009, having been satisfied that the Trial Chamber made the findings necessary to establish the accused’s responsibility, entered a conviction on the basis of an alternative mode of liability (128, paras 275–82). It also substituted one mode of liability for another on appeal in Rukundo v Prosecutor (2010) (Appeal Judgment, paras 37, 39–115, 169–218, 269–70). Although pertinent, the question of a conviction being subject to review by a higher tribunal was not raised in those cases.

33  The ICTY adopted a more relative approach in cases including Prosecutor v Aleksovski (2000) (‘Aleksovski’), Prosecutor v Stanišić and Župljanin (2016) (‘Stanišić and Župljanin’), Prosecutor v Krstić (2004) (‘Krstić’), and Prosecutor v Šainović et al (2014) (‘Šainović et al’). According to the relative theory, appeals judges have the power to enter a new conviction, but it should be carefully balanced against other competing interests. This necessarily calls for a case-by-case assessment. In principle, given that the trial chambers hear and examine evidence during trial proceedings, appellate chambers tend to give greater deference to their factual findings. As Judge Shahabudeen put it in his separate opinion in Tadić, ‘[a]ssessment of facts is primarily a matter for the Trial Chamber’ (Tadić (Separate Opinion of Judge Shahabudeen) para. 29).

34  In Aleksovski, the Prosecutor appealed the Trial Chamber’s acquittal on two counts asking the Appeals Chamber to reverse it. Although the Appeals Chamber found that the Trial Chamber applied the wrong test for determining the nature of the armed conflict and the status of protected persons within the meaning of Article 2 ICTY Statute, it declined to reverse the verdict of acquittal for respective counts (Aleksovski (Appeal Judgment) paras 153–54, 192). The Appeals Chamber decided both against remitting the case to the Trial Chamber for re-examination and against making its own determination of the facts, concluding that ‘neither course would serve a useful purpose’ because the material acts underlying the charges under appeal were the same as those charges for which the appellant had been convicted (Aleksovski (Appeal Judgment) para. 153). Nonetheless, having found that the Trial Chamber had erred in its exercise of discretion concerning sentencing, the Appeals Chamber itself increased the sentence instead of remitting the issue to the Trial Chamber (Aleksovski (Appeal Judgment) para. 192).

35  In Stanišić and Župljanin, the Appeals Chamber refrained from entering new convictions on appeal in the interests of fairness to the convicted persons, balanced with considerations of public interest and the administration of justice, and taking into account the nature of the offences and the circumstances of the case at hand (Stanišić and Župljanin (Judgment) para. 1096). It did so despite finding that the Trial Chamber erred in law when it failed to enter convictions for the crimes of murder, torture, deportation, and other inhumane acts (forcible transfer) as crimes against humanity (Stanišić and Župljanin (Judgment) para. 1095).

36  In the Krstić Appeal Judgment, the Appeals Chamber corrected certain legal errors in the Trial Chamber’s judgment but stopped short of entering convictions on the basis of new findings (Krstić (Judgment) paras 144, 227, 229). Having resolved that the Trial Chamber had incorrectly disallowed Krstić’s convictions as a participant in extermination and persecution, it found that his level of responsibility was that of an aider and abettor in extermination and persecution as crimes against humanity (Krstić (Appeal Judgment) para 87). Judge Shahabudeen observed in his dissenting opinion that ‘without discussion, the Appeals Chamber has not recorded corresponding convictions, an omission not reconcilable with controlling jurisprudence’ (Krstić (Partial Dissenting Opinion of Judge Shahabudeen) para. 77).

37  In Šainović et al, the Appeals Chamber concluded that the Trial Chamber erred in failing to find Šainović, Lukić, and Pavković liable for committing, through their participation in a joint criminal enterprise, persecution, through sexual assaults, as a crime against humanity. Notwithstanding this, the Appeals Chamber, Judge Ramaroson dissenting, declined to enter new convictions on appeal in relation to the sexual assaults in question in the circumstances of that case (Šainović et al (Judgment) paras 1604, 1766, fn 5269). In support of this, the Appeals Chamber cited appeal judgments in Aleksovski, Krstić, Prosecutor v Jelisić (2001) (‘Jelisić’), Prosecutor v Stakić (2006), and Prosecutor v Naletilić and Martinović (2006). In Prosecutor v Đorđević (2014) the Appeals Chamber by majority took the opposite view concerning the Trial Chamber’s comparable error, granting the Prosecutor’s appeal and reversing the acquittals.

38  The ICTY addressed the associated issue of judicial discretion to order a retrial in Jelisić. In that case, the Appeals Chamber by majority, Judge Pocar dissenting, allowed certain aspects of the Prosecutor’s appeal. However, the Appeals Chamber by majority, Judge Shahabuddeen and Judge Wald dissenting, considered that, in the circumstances of that case, it was not appropriate to order that the case be retried, and declined to reverse the acquittal (Jelisić (Appeal Judgment) para. 77). The Appeals Chamber agreed that the choice of remedy lay within its discretion, given the wording of Article 25 ICTY Statute and Rule 117(c) ICTY Rules of Procedure and Evidence. That discretion must ‘be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest’. Such determination must be made on a case-by-case basis (Jelisić (Appeal Judgment) para. 73).

39  The third theory, expressed in the dissenting opinions of Judge Pocar in the cases of Galić, Rutaganda, Semanza, Gatete, and Mrkšić and Šljivančanin, states that the Appeals Chamber has no power to enter a conviction in lieu of acquittal at the appellate stage.

40  In Rutaganda, Judge Pocar agreed with the conclusion of the majority that the Trial Chamber had erred in failing to find a nexus between the crimes and the armed conflict. However, he dissented from the majority’s decision to reverse acquittals and to enter new convictions on appeal. He stated that where the rights of the accused are concerned, in case of doubt as to whether a particular right exists, such a doubt must operate in favour of the accused. He concluded that in the circumstances of that case, it would have been inappropriate to remit the case for retrial and the acquittals should not have been overturned.

41  In Semanza, Judge Pocar dissented that the ICTR Appeals Chamber had competence to remedy errors of the Trial Chamber by ‘subsequently entering new or more serious convictions on appeal’ (Semanza (Dissenting Opinion of Judge Pocar) para. 1) because it violated the accused’s fundamental right to an appeal under Article 14(5) ICCPR. In his opinion, the Appeals Chamber had two options. First, as in Delalić et al, the Appeals Chamber could have identified errors, quashed certain convictions entered at trial, and remitted the case to a Trial Chamber for further proceedings. Second, as in the Krstić case, rather than enter new convictions, the Appeals Chamber could have pronounced the Trial Chamber’s findings to be erroneous and noted in the disposition that the Trial Chamber incorrectly disallowed convictions. He concluded that ‘reversal of acquittals and entry of new convictions or reversal of convictions and entry of more serious convictions on appeal cannot be in conformity with the fundamental right to an appeal under Article 14(5) of the ICCPR’ (Semanza (Dissenting Opinion of Judge Pocar) para. 4).

42  The dissenting opinion of Judge Pocar in the Galić case primarily concerns the Appeals Chamber’s powers in relation to sentencing. It also touches on the related issue of convicting on appeal. Judge Pocar agreed with the majority that the Trial Chamber committed a discernible error in the exercise of its discretion in sentencing, but disagreed that the Appeals Chamber may itself correct such an error by revising and increasing the sentence. Referring to his dissents in Rutaganda and Semanza, Judge Pocar reiterated that the Appeals Chamber was bound to uphold the right to appeal under international law per Article 14(5) ICCPR. In his opinion, the only avenue available to the Appeals Chamber was to quash the Trial Chamber’s defective sentence and remit the issue back to the Trial Chamber under Rule 118(c) ICTY Rules of Procedure and Evidence for a redetermination of the sentence consistent with the Appeals Chamber’s decision (Galić (Dissenting Opinion of Judge Pocar) paras 1–3).

43  In his dissenting opinion in Gatete, Judge Pocar once again disagreed with the majority’s decision to enter a new conviction on appeal. Having first agreed with the majority’s conclusion that the Trial Chamber committed an error in failing to find Gatete guilty of conspiracy to commit genocide, he reaffirmed his earlier position that the Appeals Chamber had no power to remedy an error of the Trial Chamber by subsequently entering a new conviction on appeal. Judge Pocar then concluded that the new conviction imposed on Gatete denied him the right to review by a higher tribunal under Article 14(5) ICCPR. Judge Pocar opined that there was no ‘established jurisprudence’ on the issue, except separate or dissenting opinions (Gatete (Partially Dissenting Opinion of Judge Pocar) para. 3).

44  The ICTY Appeals Chamber interpreted the right of review under Article 26 ICTY Statute as ‘excluding issues of law’ (Prosecutor v Delalić et al (Judgment of Sentence Appeal) (2003) para. 51, citing Jelisić and Tadić). In Šljivančanin, the ICTY Appeals Chamber granted review of the Appeal Judgment and vacated Šljivančanin’s conviction on appeal for aiding and abetting murder as a violation of the laws or customs of war in light of a new fact adduced by Šljivančanin. It also quashed his sentence of 17 years’ imprisonment imposed by the Trial Chamber and imposed a new sentence of ten years.

45  The ICTY and ICTR Appeals Chamber had no powers to reconsider final Judgments. In the case of Prosecutor v Žigić (2006) the ICTY Appeals Chamber held that reconsideration of a final Judgment is not consistent with the ICTY Statute, which provides for the right of appeal and the right of review, but not for a second right of appeal through reconsideration. It also considered that the existing appeal and review proceedings under the ICTY Statute provide for sufficient guarantees of due process for the parties (Žigić (Decision on Zoran Žigić’s ‘Motion for Reconsideration of Appeals Chamber Judgment’) para. 9). In Prosecutor v Blaškić (2006) the Appeals Chamber reaffirmed that it does not have inherent power to reconsider the appeals Judgment (Blaškić (Decision on Prosecutor’s Request for Review or Reconsideration) para. 80). The Appeals Chamber in Prosecutor v Nahimana (2010), citing its previous decisions, also stated that it had no power to reconsider its final judgments as the ICTR Statute only provides ‘for a right of appeal and a right of review but not for a second right of appeal by the avenue of reconsideration of a final Judgment’ (Nahimana (Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgment) para. 6).

46  A plain reading of the text of the ICTY, ICTR, SCSL, STL, and ICC Statutes suggests that entering a fresh conviction on appeal is permissible. Although drafters of human rights instruments have adopted different approaches concerning fresh conviction on appeal, there is an apparent conflict with Article 14(5) ICCPR, which states that ‘[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’. There are no higher courts above the Appeals Chambers of the ICTY, ICTR, SCSL, STL, and ICC. Vasiliev observed that the main rationale for retaining a three-tier system, such as in the context of the KSC, is to safeguard the right of appeal against a second-instance judgment reversing an acquittal and entering a new conviction on appeal (Vasiliev, 2020, 729).

47  The judicial record of the ICTY and ICTR does not definitively settle the issue, ranging from reluctant acceptance to a cautious embrace of these far-reaching powers. The appeals proceedings in these tribunals, however, have been limited to an examination and correction of specific errors alleged by the parties, and not a complete re-examination of the entire case on questions of law and fact, like in some domestic jurisdictions. Although there is currently no ICC jurisprudence on the issue, the ICC Appeals Chamber might elect to follow the relative approach in light of its own statutory framework and developments in other international tribunals. Meanwhile, the fundamental variation in theories about the nature of trial, appellate, and cassation proceedings between civil and common law systems makes it difficult to distil ‘general principles of law’ on the basis of national laws of legal systems of the world applicable in this situation (Art. 21(1)(c) ICC Statute; General Principles of International Procedural Law). Differences in domestic and human rights approaches, coupled with a unique procedural design of international criminal tribunals, have once fuelled judicial disagreement on this issue during appellate proceedings in the ICTY and ICTR.

48  Assuming that conviction at the appellate stage is permissible under the legal framework and considering that it limits the right of the convicted person to have their conviction reviewed by a higher tribunal, several considerations should be borne in mind. In international courts and tribunals with a two-tier system, like the ICC, in case of a successful appeal against acquittal on the basis of factual or procedural errors, it may be appropriate to remit the case to the Trial Chamber for retrial. As discussed above, the Appeals Chamber in Delalić et al identified errors, quashed certain convictions entered at trial, remitted the case to a Trial Chamber for further proceedings. In such cases, however, there is and a real risk of proceedings lasting excessive periods of time, contrary to the accused’s right to an expeditious trial. This and other factors must be balanced when deciding on the most appropriate avenue. In any event, this remedy does not eliminate the possibility of a new acquittal on retrial by the Trial Chamber.

49  In the event of legal errors, it may be advisable in some cases to correct the misguided legal findings, but more appropriate to refrain from entering fresh convictions on appeal. In some other cases, it may be appropriate to enter a conviction on appeal, taking into account all the circumstances of an individual case. Ultimately, the choice of the most appropriate remedy remains the prerogative of the appellate instance dealing with the specific facts of the case at hand. As the Jelisić Appeals Chamber put it, that discretion must be exercised on proper judicial grounds, ‘balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest’ (para. 73). Such determination can only be made on a case-by-case basis.

Yulia Nuzban

International Criminal Tribunal for the Former Yugoslavia

• Prosecutor v Aleksovski (Appeal Judgment) (24 March 2000) IT-95-14/1-A.

• Prosecutor v Blaškić (Decision on Prosecutor’s Request for Review or Reconsideration) (23 November 2006) IT-95-14-R.

• Prosecutor v Delalić et al (Judgment on Sentence Appeal) (8 April 2003) IT-96-21-Abis.

• Prosecutor v Đorđević (Appeal Judgment) (27 January 2014) IT-05-87/1-A.

• Prosecutor v Dragomir Milošević (Appeal Judgment) (12 November 2009) IT-98-29/1-A.

• Prosecutor v Galić (Appeal Judgment) (30 November 2006) IT-98-29-A.

• Prosecutor v Galić (Appeal Judgment) (Dissenting Opinion of Judge Pocar) (30 November 2006) IT-98-29-A.

• Prosecutor v Jelisić (Appeal Judgment) (5 July 2001) IT-95-10-A.

• Prosecutor v Krstić (Appeal Judgment) (19 April 2004) IT-98-33-A.

• Prosecutor v Krstić (Appeal Judgment) (Partial Dissenting Opinion of Judge Shahabudeen) (19 April 2004) IT-98-33-A.

• Prosecutor v Mrkšić and Šljivančanin (Appeal Judgment) (5 May 2009) IT-95-13/1-A.

• Prosecutor v Mrkšić and Šljivančanin (Decision on Motion on Behalf of Veselin Šljivančanin Seeking Reconsideration of the Judgment Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy) (8 December 2009) IT-95-13/l-A.

• Prosecutor v Šainović et al (Appeal Judgment) (23 January 2014) IT-05-87-A.

• Prosecutor v Šljivančanin (Review Judgment) (8 December 2010) IT-95-13/l-R.1).

• Prosecutor v Stanišić and Župljanin (Appeal Judgment) (30 June 2016) IT-08-91-A.

• Prosecutor v Tadić (Appeal Judgment) (15 July 1999) IT-94-1-A.

• Prosecutor v Tadić (Appeal Judgment) (Declaration of Judge Nieto-Navia) (15 July 1999) IT-94-1-A.

• Prosecutor v Tadić (Appeal Judgment) (Separate Opinion of Judge Shahabuddeen) (15 July 1999) IT-94-1-A.

• Prosecutor v Žigić (Decision on Zoran Žigić’s ‘Motion for Reconsideration of Appeals Chamber Judgment IT-98-30/1-A Delivered on 28 February 2005) (26 June 2006) IT-98-30/1-A.

International Criminal Tribunal for Rwanda

• Gacumbitsi v Prosecutor (Appeal Judgment) (7 July 2006) ICTR-2001-64-A.

• Gatete v Prosecutor (Appeal Judgment) (9 October 2012) ICTR-00-61-A.

• Gatete v Prosecutor (Appeal Judgment) (Partially Dissenting Opinion of Judge Pocar) (9 October 2012) ICTR-00-61-A.

• Nahimana v Prosecutor (Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgment) (30 June 2010) ICTR-99-52B-R.

• Rukundo v Prosecutor (Appeal Judgment) (20 October 2010) ICTR-2001-70-A.

• Rutaganda v Prosecutor (Appeal Judgment) (26 May 2003) ICTR-96-3-A.

• Rutaganda v Prosecutor (Appeal Judgment) (Separate Opinion of Judges Meron and Jorda) (26 May 2003) ICTR-96-3-A.

• Rutaganda v Prosecutor (Appeal Judgment) (Separate Opinion of Judge Shahabuddeen) (26 May 2003) ICTR-96-3-A.

• Semanza v Prosecutor (Appeals Judgment) (20 May 2005) ICTR-97-20-A.

• Semanza v Prosecutor (Appeal Judgment) (Dissenting Opinion of Judge Pocar) (20 May 2005) ICTR-97-20-A.

• Semanza v Prosecutor (Appeal Judgment) (Separate Opinion of Judge Shahabuddeen and Judge Güney) (20 May 2005) ICTR-97-20-A.

Special Court for Sierra Leone

• Prosecutor v Fofana and Kondewa (Appeal Judgment) (28 May 2008) SCSL-04-14-A.