[289] Parts 5 and 6 and rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.
In the order to perform its functions, the Appeals Chamber needs the same powers as the Pre-Trial and Trial Chambers, since it will review the decisions of these organs. Article 83(1) explicitly states that for the purposes of proceedings under articles 81 and 83, the Appeals Chamber shall have all the powers of the Trial Chamber. However, it does not state the powers of the Appeals Chamber in relation to article 82 appeals. Thus, there is a need clarify the Powers of the Appeals Chamber (Brady, 2004, pp. 243-244). Rule 140 does this by providing that parts 5 and 6 and rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber. This rule is similar to ICTY and ICTR rules 107.
   Several authors have noted that there is no explicit ICC provision which allows a pre-appeal judge as known from the ad hoc tribunals (ICTY RPE Rule 127(B), ICTR RPE Rule 198 bis, MICT RPE Rule 135). However, such a judge may be based on an analogous application of ICC Rule 132 bis via rule 149 (Ambos, 2016, p. 551, Staker and Eckelmans, 2016, p. 1980).

Doctrine
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 551.
2. Volker Nerlich, "Article 82", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1955.
3. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 582-583.
4. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 243-244.
5. Christopher Staker/Franziska Eckelmans, "Article 83", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1980.

Author:
Mark Klamberg

Updated:
30 August 2017

[290] 1. Subject to sub-rule 2, an appeal against a decision of conviction or acquittal under article 74, a sentence under article 76 or a reparation order under article 75 may be filed not later than 30 days from the date on which the party filing the appeal is notified of the decision, the sentence or the reparation order.

2. The Appeals Chamber may extend the time limit set out in sub-rule 1, for good cause, upon the application of the party seeking to file the appeal.

3. The appeal shall be filed with the Registrar.

4. If an appeal is not filed as set out in sub-rules 1 to 3, the decision, the sentence or the reparation order of the Trial Chamber shall become final.
Rules 150-153 cover appeals against the fundamental decisions of the Trial Chamber: a decision of conviction or acquittal under article 74, a sentence under article 76 or a reparation order under article 75. Rule 150 sets the procedure for such appeals in terms of time-limits (sub-rules 1 and 2), recepiant of the appeal: the Registrar (sub-rule 3) and the consequence if these requirements are not met, namely, the decision automatically becomes final (sub-rule 4).
   The possibility under sub-rule 2 to extend the time-limit requires "good cause". In Lubanga, the term "good cause" was defined as "valid reasons for non-compliance with the procedural obligations of a party to the litigation ... associated with a party's duties and obligations in the judicial process. A cause is good, if founded upon reasons associated with a person's capacity to conform to the applicable procedural rule or regulation or the directions of the Court. Incapability to do so must be for sound reasons, such as would objectively provide justification for the inability of a party to comply with his/her obligations." In Lubanga the question at hand was "whether counsel's illness and sequential temporary inability to represent the person under charge proficiently constitute a 'good cause'." (Lubanga, ICC A. Ch., Reasons for the "Decision of the Appeals Chamber on the request of counsel to Mr. Thomas Lubanga Dyilo for modification of the time limit pursuant to regulation 35 of the Regulations of the Court of 7 February 2007" issued on the 16 February 2007, ICC-01/04-01/06-834, 22 February 2007, para. 7, see also Ambos, p. 551)
   This rule is similar to ICTY and ICTR rules 108.

Cross-reference:
Regulation 35

Doctrine
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 550, 551.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 583-584.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 244-245.

Author:
Mark Klamberg

Updated:
30 August 2017

[291] 1. Upon the filing of an appeal under rule 150, the Registrar shall transmit the trial record to the Appeals Chamber.

2. The Registrar shall notify all parties who participated in the proceedings before the Trial Chamber that an appeal has been filed.
After the Registrar has received the appeal the Registrar shall pursuant to sub-rule 1 transmit the trial record to the Appeals Chambers. The Registrar shall also, pursuant to sub-rule 2 notify "all parties who participated in the proceedings before the Trial Chamber that an appeal has been filed".
   The rules does state that the other party (or parties) have the right to respond. However, the principle of equality of arms and general principles on procedural fairness would suggest that they have such a right (Brady, 2004, p. 246). Article 83(1) with rules 150-151 set out the the applicable procedural rules and powers.
   ICTY and ICTR rules 109 and 110 are the equivalent provisions to ICC rule 151.

Cross-reference:
Article 81(4)
Regulation 35

Doctrine
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 363, 551.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 584-586.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 246-247.

Author:
Mark Klamberg

Updated:
30 August 2017

[292] 1. Any party who has filed an appeal may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed.

2. If the Prosecutor has filed an appeal on behalf of a convicted person in accordance with article 81, paragraph 1 (b), before filing any notice of discontinuance, the Prosecutor shall inform the convicted person that he or she intends to discontinue the appeal in order to give him or her the opportunity to continue the appeal proceedings.
Rule 152 concerns discontinuance of the appeal. There is no requirement that the party who files a notice of discontinuance of appeal gives reasons for discontinuing, during trhe negotiations there was a strong view against having such a requirement (Brady, 2004, p. 248). 
   Sub-rule 2 concerns cases where the Prosecutor has filed an appeal on behalf of a convicted person in accordance with article 81(1)(b). Sub-rule 2 ensures that the convicted person does not forfeit his or her right to appeal if the Prosecutor decided to discontinue an appeal that has been filed under article 81(1)(b).

Doctrine:
1. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 586-587.
2. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 247-249.

Author:
Mark Klamberg

Updated:
30 August 2017

[293] 1. The Appeals Chamber may confirm, reverse or amend a reparation order made under article 75.

2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraphs 4 and 5.
The Rome Statute is silent on the powers of the Appeals Chamber in relation to reparation orders. Rule 153 fills this gap.
   Sub-rule 1 which grants the Appeals Chamber powers to confirm, reverse or amend a reparation order mirrors article 83(2). The rule does not grant the Appeals Chamber the Power to call evidence in the context of reparation appeals. However, Brady argues that rule 149 could allow the Appeals Chamber to so (Brady, 2004, p. 249).
   Sub-rule 2 Points to article 83(4) and (5), namely that 1) the judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court; and 2) the Appeals Chamber may deliver its judgement in the absence of the person concerned.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 564, 568.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 587-588.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 249-250.

Author:
Mark Klamberg

Updated:
30 August 2017

[294] 1. An appeal may be filed under article 81, paragraph 3 (c) (ii), or article 82, paragraph 1 (a) or (b), not later than five days from the date upon which the party filing the appeal is notified of the decision.

2. An appeal may be filed under article 82, paragraph 1 (c), not later than two days from the date upon which the party filing the appeal is notified of the decision.

3. Rule 150, sub-rules 3 and 4, shall apply to appeals filed under sub-rules 1 and 2 of this rule.
Rule 154 concerns appeals that do not require leave of the Court, namely appeals under article 81(3)(c)(ii) and article 82(1)(a) or (b).  In relation to rule 150, rule 154 modifies the time limit for certain types of appeal (including appeals concerning jurisdiction and admissibility). However, the time-limit for appeals against a decision of conviction or acquittal or an reparations order remains 30 days.
   It should be noted that pursuant to article 82(3) and rule 156(5) an appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders.
   If an appeal is not filed within the time limit, the lower Chamber's decision becomes final pursuant to rule 154(4) which contains a reference to rule 150(3) and (4).

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 569.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 588-589.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 250-251.

Author:
Mark Klamberg

Updated:
30 August 2017

[295] 1. When a party wishes to appeal a decision under article 82, paragraph 1 (d), or article 82, paragraph 2, that party shall, within five days of being notified of that decision, make a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal.

2. The Chamber shall render a decision and shall notify all parties who participated in the proceedings that gave rise to the decision referred to in sub-rule 1.
Rule 155 sets out the procedure of appeal when leave of the either the Pre-Trial Chamber or the Trial Chamber is required. It provides that the party wishing to make appeal a decision under article 82, paragraph 1 (d), or article 82, paragraph 2, shall within five days of being notified of that decision, make a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal.
   In Kony et al., Decision on the Prosecutor's Motion for Clarification and Urgent Request for Clarification of the Time-limit Enshrined in Rule 155, 18 July 2005, PTC II rejected the Prosecutor's request for a variation of the time-limit prescribed in Rule 155 of the Rules for filing an application for leave to appeal. In Kony et al., Decision on Prosecutor's "Application to lift redactions from applications for Victims' Participation to be provided to the OTP" and on the Prosecution's further submissions supplementing such Application, and request for extension of time, 20 February 2007, PTC II dismissed the Prosecutor's request for an extension of the time-limit.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 569.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 589-590.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 251-252.

Author:
Mark Klamberg

Updated:
30 August 2017

[296] General comments
Although articles 81 and 82, rules 154 and 155 make a distinction between appeals require leave to appeal for certain types of appeal and not for others, the appeal is itself has a common procedure as set out in rule 156.
   Rule 156 has not incorporated any provisoon on hearings to fix procedural arrangements. Instead, rule 132 which provides for status Conferences can be used in order to determine necessary procedural arrangements (Brady, 2004, p. 253).

Author:
Mark Klamberg

Updated:
30 August 2017

[297] 1. As soon as an appeal has been filed under rule 154 or as soon as leave to appeal has been granted under rule 155, the Registrar shall transmit to the Appeals Chamber the record of the proceedings of the Chamber that made the decision that is the subject of the appeal.
Sub-rule 1 provides that as soon as an appeal has been filed under rule 154 or as soon as leave to appeal has been granted under rule 155, the Registrar shall transmit to the Appeals Chamber the record of the proceedings of the Chamber that made the decision that is the subject of the appeal.

Author:
Mark Klamberg

Updated:
30 August 2017

[298] 2. The Registrar shall give notice of the appeal to all parties who participated in the proceedings before the Chamber that gave the decision that is the subject of the appeal, unless they have already been notified by the Chamber under rule 155, sub-rule 2.
The Registrar shall pursuant to sub-rule 2 "give notice of the appeal to all parties who participated in the proceedings before the" lower Chamber "unless they have already been notified by the Chamber under rule 155, sub-rule 2".

Author:
Mark Klamberg

Updated:
30 August 2017

[299] 3. The appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing.

4. The appeal shall be heard as expeditiously as possible.
Sub-rule 3 provides that the appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing. In Ruto et al., Decision on the "Request for an Oral Hearing Pursuant to Rule 156(3)", 17 August 2011, para. 10, the Appeals Chamber stated that rule 156(3) "establishes as a norm that proceedings on appeal such as the present should be conducted by way of written submissions. The rule nonetheless also vests the Appeals Chamber with discretion to convene a hearing. However, for the Appeals Chamber to exercise its discretion and to depart from this norm it must be fiimished with cogent reasons that demonstrate why an oral hearing in lieu of, or in addition to, written submissions is necessary." The Appeals Chamber found that "Kenya has failed to provide cogent reasons that would persuade the Appeals Chamber to exercise its discretion and convene a hearing" (para. 11). The Appeals Chamber noted that the Request for an Oral Hearing was made at a late stage in the proceedings. In the view of the Appeals Chamber, the holding of an oral hearing at such a late stage in the proceedings would unduly affect the expeditious resolution of the appeal, another factor for the rejection ofthe Request for an Oral Hearing. (para. 13). See also Muthuara et al., Decision on the "Request for an Oral Hearing Pursuant to Rule 156(3)", 17 August 2011, paras. 10-11 and 13.

Author:
Mark Klamberg

Updated:
30 August 2017

[300] 5. When filing the appeal, the party appealing may request that the appeal have suspensive effect in accordance with article 82, paragraph 3.
Sub-rule 5 supplements article 82(3) which provides that "[a]n appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request". Soem delegations argued during the negogtiations that the rule should provide guidelines as to when the Appeals Chamber should order that a pending appeal suspend a decision. At the end, it was decided that such guidelines should not be elaborated in the rules, instead it should be at the discretion of the Appeals Chamber (Brady, 2004, p. 254). In Lubanga, Decision on the request of Mr. Thomas Lubanga Dyilo for suspensive effect of his appeal against the oral decision of Trial Chamber I of 18 January 2008, 22 April 2008, para. 7, the Appeals Chamber conidered that "neither article 82 (3) of the Statute nor rule 156(5) of the Rules of Procedure and Evidence stipulate in which circumstances suspensive effect should be ordered" and determined that "this decision is left to the discretion of the Appeals Chamber. Therefore, when faced with a request for suspensive effect, the Appeals Chamber will consider the specific circumstances of the case and the factors it considers relevant for the exercise of its discretion under these circumstances." In the present case the Appeals Chambers asked "whether the implementation of the Impugned Decision would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to find in favour of the appellant", considered "that the implementation of the Impugned Decision would create such an irreversible situation" (para. 8) and thus the request for suspensive effect was rejected. The appeals Chamber made a similar ruling in Lubanga, Decision on the requests of the Prosecutor and the Defence for suspensive effect of the appeals against Trial Chamber I's Decision on Victim's Participation of 18 January 2008, 22 May 2008, para. 10.
      In Lubanga, Decision on the request of the Prosecutor for suspensive effect of his appeal against the "Decision on the release of Thomas Lubanga Dyilo, 7 July 2008, the Appeals Chamber granted the request for suspensive effect against the Decision on the release of Thomas Lubanga Dyilo, 2 July 2008. The Appeals Chamber reasoned that "[g]iven the fact that the decision on release was under appeal and that leave to appeal the stay of proceedings had been granted and in light of previous findings of the Pre-Trial and Trial Chambers that his detention is necessary to secure his presence at trial, the Appeals Chamber found that the release of Mr. Lubanga Dyilo at this point in time could potentially defeat the purpose of the present appeal as well as of the appeal that, in all likelihood, would be mounted against the Decision to Stay the Proceedings.", see Lubanga, Reasons for the decision on the request of the Prosecutor for suspensive effect of his appeal against the "Decision on the release of Thomas Lubanga Dyilo", 22 July 2008, para. 10

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 569.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 590-592.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 253-254.

Author:
Mark Klamberg

Updated:
30 August 2017

[297] Any party who has filed an appeal under rule 154 or who has obtained the leave of a Chamber to appeal a decision under rule 155 may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed.
Rule 157 sets out the prodceure for discontinuing an appeal brought under rule 154 or rule 155, i.e. "other decisions". This rule is consistent with the procedure for discontinuance of an appeal under rule 152.
   In Lubanga, Decision on Thomas Lubanga Dyilo's Brief Relative to Discontinuance of Appeal, 3 July 2006, the Appeals Chamber considered that a notice of discontinuance is neither subject to approval by nor acknowledgement from the Court. Discontinuance of an appeal subject to reservations is not foreseen in either the Statute or the Rules of Procedure and Evidence and that includes reservations relevant to the future conduct of the proceedings. As such the Appeals Chamber is not vested with discretion to sanction discontinuance of an appeal subject to conditions.  The Appeals Chamber found that in the instant case the Appellant's Brief did not constitute a notice of discontinuance under rule 157 of the Rules of Procedure and Evidence and decided that the Appellant's notice of discontinuance of the appeal subject to his retaining the right to challenge the admissibility of the case before the Court was invalid. In Lubanga, Decision on Thomas Lubanga Dyilo's Application for Referral to the pre-Trial Chamber/in the Alternative, Discontinuance of Appeal, 6 September 2006, the Appeals Chamber rejected the Appellant’s application for refferral to the Pre-Trial Chamber and deemed the appeal abandoned and dismissed.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 569.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 592.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 254-255.

Author:
Mark Klamberg

Updated:
30 August 2017

[298] 1. An Appeals Chamber which considers an appeal referred to in this section may confirm, reverse or amend the decision appealed.

2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraph 4.
The Rome Statute is silent on the powers of the Appeals Chamber in relation to appeal of certain "other decisions". Rule 158 fills this gap.
   Sub-rule 1 which grants the Appeals Chamber powers to confirm, reverse or amend an "other decision" mirrors article 83(2).  
   Sub-rule 2 Points to article 83(4), namely that the judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open Court;

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 569.
2. Helen J. Brady, "Appeal and Revision" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 592-593.
3. Helen J. Brady, "The Rules Procedure and Evidence on the Appeal", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 254-255.

Author:
Mark Klamberg

Updated:
30 August 2017

[291] General remarks:
Rules 159 to 161 give a concrete form to Article 84 ICC-Statute and hence the procedure of revision. This procedure consists of two steps: First, the application for revision and the Appeal Chamber’s decision on the consistency of the application with the conditions set out in article 84(1), which is dealt with in Rule 159. And second, if the application is meritorious, the actual decision on the substance of the matter of revision is taken by the Chamber, that the matter has been referred to by the Appeals Chamber, which is regulated in Rule 161. Rule 160 on the other hand contains strictly organisational measures, concerning the presence of the convicted during the hearing for determination on revision. Until now, there has not been a revision procedure before the ICC.

Preparatory works:
During the preparatory work concerning Rules 159-161 much more detailed proposals were made than the ones that were finally adopted (Proposal submitted by Australia, PCNICC/1999/DP.1, 26 January 1999; Proposal submitted by France, PCNICC/1999/WGRPE/DP.13, 19 July 1999; Proposal submitted by Australia and France, PCNICC/1999/WGRPE/DP.32, 3 August 1999). However, in the end the priority was given to options, which were drafted rather vaguely and left the concrete decision on how to deal with the matters in question to the power of the Appeals Chamber. All in all, the Rules were not a big issue during the drafting of the Rules of Procedure and Evidence, because the main controversies had already been settled in Article 84 of the Statute.
   Originally Rule 160 was not included at all in the rules on revision and was only proposed quite late in the drafting process (See Rule 1.15 in Document PCNICC/2000/L.1/Rev.1/Add.1 (10 April 2000)

Authors:
Wenke Brückner, Julia Dornbusch

Updated:
27 February 2017

[291] 1. An application for revision provided for in article 84, paragraph 1, shall be in writing and shall set out the grounds on which the revision is sought. It shall as far as possible be accompanied by supporting material.
Rule 159(1) contains specifications on the application for revision. The applicant is supposed to submit supporting material together with his/her application, a regulation suggesting that the applicant bears the burden of proof for satisfying the Appeals Chamber that the requirements of Article 84(1) are met [Staker/Nerlich, 2016, p. 1986-1997, para. 14].

Preparatory works:
Concerning the requirement of supporting material the wording “as far as possible” constitutes a compromise: Some delegates held the view that an application without supporting material should be inadmissible. Similarly, a previous French proposal demanded the submitting of supporting material in a mandatory manner (PCNICC/1999/WGRPE/DP.13 (19 July 1999)); but as this requirement might prove to be difficult – especially for the convicted, e.g. when he is serving sentence in a distant country, – the drafters opted for the “as far as possible” rule [Bitti/Fernàndez de Gurmendi, 2001, p. 596-603, 599].

Cross-reference:
Article 84(1)
Regulation 66

Authors:
Wenke Brückner, Julia Dornbusch

Updated:
27 February 2017

[291] 2. The determination on whether the application is meritorious shall be taken by a majority of the judges of the Appeals Chamber and shall be supported by reasons in writing.
The sole definite requirement set out in Rule 159(2) is a majority decision of the judges. While an original proposal set out this first step of the revision procedure in more detail and asked for the holding of a hearing, this is not necessary according to the final Rule. However, holding a hearing in order to arrive at a decision is still possible, as determining the procedure on how the Chamber should arrive at a decision is left completely to the Appeals Chamber itself [Bitti/Fernàndez de Gurmendi, 2001, p. 596-603, 600].
   While it had also been suggested that the Presidency should have the power to decide on the merits of an application for revision, this Rule settles the issue giving this power to the Appeals Chamber. Hence, there might be situations where the Appeals Chamber decides on a revision in a case where the same Appeals Chamber has also issued the final judgment [Bitti/Fernàndez de Gurmendi, 2001, p. 596-603, 589; Boas et al., 2013, p. 939-1014, 985].

Doctrine:
1. Gilbert Bitti/Silvia A. Fernàndez de Gurmendi, “Revision of Conviction or Sentence”, in Roy Lee et al. (Eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, p. 596-603.
2. Christopher Staker/Volker Nerlich, “Article 84 Revision of conviction or sentence” in Otto Triffterer/Kai Ambos (Eds.), Rome Statute of the International Criminal Court, A Commentary, Beck, München 2016, p. 1986-1997, para. 1-30.

Authors:
Wenke Brückner, Julia Dornbusch

Updated:
27 February 2017

[292] 1. For the conduct of the hearing provided for in rule 161, the relevant Chamber shall issue its order sufficiently in advance to enable the transfer of the sentenced person to the seat of the Court, as appropriate.
Rule 160 and 161 determine that the convicted person has to be present during the hearing for the decision on revision – a requirement that does not follow explicitly from Article 84. Consequently, it follows that the convicted does not have to be present during the first step of the revision procedure, namely, the decision on the application on revision by the Appeals Chamber [Staker/Nerlich, 2016, p. 1986-1997, para. 26].
   Otherwise Rule 160 is purely technical and sets out organisational measures concerning the transfer of the convicted to the seat of the Court for the hearing. The order of the transfer is issued by the Chamber in charge for the decision (according to Article 84 ICC-Statute either the original Trial Chamber, another Trial Chamber or the Appeals Chamber) and has to be made sufficiently in advance so as to actually enable the State to organise the transfer.

Doctrine:
Christopher Staker/Volker Nerlich, “Article 84 Revision of conviction or sentence” in Otto Triffterer/Kai Ambos (Eds.), Rome Statute of the International Criminal Court, A Commentary, Beck, München 2016, p. 1986-1997, para. 1-30.

Author:
Wenke Brückner, Julia Dornbusch

Updated:
27 February 2017

[293] 1. On a date which it shall determine and shall communicate to the applicant and to all those having received notification under rule 159, sub-rule 3, the relevant Chamber shall hold a hearing to determine whether the conviction or sentence should be revised.
Rule 161 concerns the determination of the revision in substance by the relevant chamber. Apart from the requirement to hold a hearing in Rule 161(1), there are no further indications on how the Appeals Chamber appoints the “relevant” Chamber and how this Chamber shall arrive to a conclusion, except for a reference to Article 83(4). Thus, the ICC Rules of Procedure and Evidence are different from the equivalent rules of the ICTY and ICTR giving further clarification on the subject.

Author:
Wenke Brückner, Julia Dornbusch

Updated:
27 February 2017

[293] 2. For the conduct of the hearing, the relevant Chamber shall exercise, mutatis mutandis, all the powers of the Trial Chamber pursuant to Part 6 and the rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers.
The Chambers function at this stage is to decide ‘whether the judgment should be revised’: the significant question for the revision proceedings is therefore, if the grounds for revision affect the conviction or the sentence of the judgment in question. Accordingly, although Rule 161(2) empowers the Chamber with powers of the Trial Chamber and Pre-Trial Chamber – consistently with rule 149 concerning the proceedings in the Appeals Chamber –, it does not follow that the Chamber should always conduct a complete retrial [Staker/Nerlich, 2016, p. 1986-1997, para. 28; Brady, 2001, p. 575-596, 583.]. However, in certain cases, where the trial proceedings were entirely affected by the grounds for revision an actual retrial would be necessary. This retrial would then have to be conducted through the proceedings of revision, as the Chamber does not have the power to order a retrial [Staker/Nerlich, 2016, p. 1986-1997, para. 28].

Cross-reference:
Rule 149

Author:
Wenke Brückner, Julia Dornbusch

Updated:
27 February 2017

[293] 3. The determination on revision shall be governed by the applicable provisions of article 83, paragraph 4.
Rule 161(3) refers to Article 83(4), thus referring to a majority decision of judges, which has to be delivered in open court, stating the reasons on which the decision is based. Furthermore, there is the possibility for separate or dissenting opinions. However, it remains unclear, if the decision on revision might be subject to appeal. It is suggested, that the reference to article 83(4) ICC-Statute equates the decision on revision with a final judgment of the Appeals Chamber – even if it might ultimately be made by the Trial Chamber – hence excluding the possibility of an appeal. Such an interpretation can be justified by the exceptional character of the revision proceedings [Staker/Nerlich in Otto Triffterer/Kai Ambos (Eds.), Article 84, para. 30]. On the other hand, scholars hold the differing view, that the decision on revision is open to appeal, as every decision that might be taken by a Trial Chamber, has to be subject to appeal (Boas et al. in Göran Sluiter, 2013, p. 939-1014, 986).

Cross-reference:
Article 83(4) ICC-Statute

Doctrine:
1. G. Boas et al., “Appeals, Reviews, and Reconsideration” in Göran Sluiter et al (Eds.), International Criminal Procedure, Principles and Rules, Oxford University Press, Oxford 2013, p. 939-1014.
2. Christopher Staker/Volker Nerlich, “Article 84 Revision of conviction or sentence” in Otto Triffterer/Kai Ambos (Eds.), Rome Statute of the International Criminal Court, A Commentary, Beck, München 2016, p. 1986-1997, para. 1-30.
3. Helen Brady, “Appeal”, in Roy Lee et al. (Eds.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, p. 575-596.

Author:
Wenke Brückner, Julia Dornbusch

Updated:
27 February 2017