An Introduction To The International Criminal Court - Institute for ...

160 introduction to the international criminal court
considerable delays in the proceedings. For that reason, such appeals do not
normally suspend the ordinary trial proceedings.
Where the Appeals Chamber grants the appeal on a point of law or fact
that materially influenced the decision, or because of unfairness at the trial
proceedings affecting the reliability of the decision or sentence, it may reverse
or amend the decision or sentence, or order a new trial before a different
Trial Chamber. It may vary a sentence if it finds it is ‘disproportionate to the
crime’. In a defence appeal, the Appeals Chamber cannot modify a decision to
the detriment of the convicted person, for example by increasing a sentence
beyond that imposed at trial or by adding convictions under additional
counts. It is possible for the Appeals Chamber to remand a factual issue
back to the original Trial Chamber. The Appeals Chamber can also call
evidence itself in order to determine an issue. 94
Like the judgment and sentence, an appeal is settled by a majority of
the judges. Members of the Appeals Chamber may register their dissent,
and if the experience of the ad hoc tribunals is any guide, dissenting judgments
will be frequent and they will be long. Some delegations at the Rome
Conference believed that appeal decisions should be unanimous. But, here
again, the practice of the ad hoc tribunals provided a compelling model.
Delegates pointed to the Erdemovic decision of the Appeals Chamber of the
International Criminal Tribunal for the Former Yugoslavia, where the court
split three to two. 95 But it was the dissenting judgments penned by Judges
Cassese and Stephen that ultimately prevailed, because their conclusions
were incorporated into the Rome Statute.
It is also possible to seek revision of a conviction or sentence. Revision
involves intervention at the appellate level that does not call into question
findings of the Trial Chamber. It is based on the discovery of new evidence,
the discovery that decisive evidence at trial was false, forged or falsified, or
a realisation that a judge of the Trial Chamber participating in the trial was
guilty of serious misconduct or breach of duty sufficient to justify removal
from the bench. 96 When it grants review, the Trial Chamber may reconvene
the original Trial Chamber, constitute a new Trial Chamber or dispose of
the matter itself.
94 On standards to be used in admitting new evidence upon appeal, see Barayagwiza v. Prosecutor
(Case No. ICTR-97-19-AR72), Decision, 3 November 1999. The ICTR Appeals Chamber’s
standard seems to be extraordinarily broad.
95 Prosecutor v. Erdemovic (Case No. IT-96-22-A), Appeal Judgment, 7 October 1997.
96 Rome Statute, Art. 84.