148
9.
From the foregoing, I must conclude that there is no general principle of law that
would prohibit Prosecution appeals against acquittals. Therefore, it is unnecessary to
analyse whether Article 25 is consistent with non bis in idem.
10.
It seems to me that this conclusion is buttressed by the fact that the rationale
which underpins the common law’s vigorous approach is absent in the context of
prosecutions before the International Tribunal. The impetus for the special weight given
to acquittals is the desire to prevent the government, with its vast superior resources,
from abusing its power to prosecute accused persons by re-prosecuting them until it
manages to obtain convictions.8 In the International Tribunal, while the Prosecution
prosecutes on behalf of the international community, it is not supported by a
governmental apparatus with abundant resources. Like the Defence, it too must rely on
the co-operation of external entities. Moreover, Articles 20(1) and 21(4) guarantee to
each party equality of arms.
11.
I accept that Prosecution appeals against acquittals conform to the requirements
of Article 25. However, I think that the Appeals Chamber should 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 (“reformatio in pejus”).
12.
With respect to the fourth ground of cross-appeal, on the question of whether
there exists a crime against humanity where the accused acted out of purely personal
motives, I join in the reasoning and conclusion offered by my learned colleague, Judge
Shahabuddeen, in his separate opinion. I would add only the following to elaborate my
own position. The reason that a crime against humanity under Article 5 cannot be
committed for purely personal motives completely unrelated to the attack on a civilian
population is that, being a crime under international law, there must be a proximate
connection between the underlying act(s) and the surrounding armed conflict.
An
unlawful act perpetrated in the context of an armed conflict, but unrelated to the
hostilities, is a common crime under national law. The fact that such a crime was
committed in the context of an armed conflict does not render it subject to international
humanitarian law.
13.
On the question of whether the Prosecution has a right to the production of
Defence witness statements, constituting the fifth ground of cross-appeal, I agree with
8
See Green v. United States, supra note 2.
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