UNITED NATIONS Case No.: IT-96-21-A Date: 20 February ... - ICTY

7. The Prosecution submits that these grounds of appeal should be dismissed. It submits
that the correct legal test for determining whether an armed conflict is international was set
forth by the Appeals Chamber in the Tadi} Appeal Judgement, which rejected the “effective
control” test in relation to acts of armed forces or paramilitary units. Relying upon the
Aleksovski Appeal Judgement, the Prosecution contends that the Appeals Chamber should
follow its previous decision.
8. As noted by the Prosecution, the issue of the correct legal test for determining whether
an armed conflict is international was addressed by the Appeals Chamber in the Tadi} Appeal
Judgement. In the Aleksovski Appeal Judgement, the Appeals Chamber found that “in the
interests of certainty and predictability, the Appeals Chamber should follow its previous
decisions, but should be free to depart from them for cogent reasons in the interests of justice”. 14
Elaborating on this principle, the Chamber held:
Instances of situations where cogent reasons in the interests of justice require a departure from
a previous decision include cases where the previous decision has been decided on the basis
of a wrong legal principle or cases where a previous decision has been given per incuriam,
that is a judicial decision that has been “wrongly decided, usually because the judge or judges
were ill-informed about the applicable law.”
It is necessary to stress that the normal rule is that previous decisions are to be followed, and
departure from them is the exception. The Appeals Chamber will only depart from a previous
decision after the most careful consideration has been given to it, both as to the law, including
the authorities cited, and the facts.
What is followed in previous decisions is the legal principle (ratio decidendi), and the
obligation to follow that principle only applies in similar cases, or substantially similar cases.
This means less that the facts are similar or substantially similar, than that the question raised
by the facts in the subsequent case is the same as the question decided by the legal principle in
the previous decision. There is no obligation to follow previous decisions which may be
distinguished for one reason or another from the case before the court. 15
In light of this finding, the Aleksovski Appeals Chamber followed the legal test set out in the
Tadic Appeal Judgement in relation to internationality.
9. Against this background, the Appeals Chamber will turn to the question of the
applicable law for determining whether an armed conflict is international.
1. What is the Applicable Law?
10. The Appeals Chamber now turns to a consideration of the Tadi} Appeal Judgement, and
to the relevant submissions of the parties in this regard, in order to determine whether, applying
14 Aleksovski Appeal Judgement, para 107.
15 Aleksovski Appeal Judgement, paras 108-110 (footnote omitted).
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Case No.: IT-96-21-A 20 February 2001