1. See A. Carcano, ‘Requests for Review in the Practice of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, (2004) 17 LJIL 103, at 105–8.

2. See sections 2 and 3, infra. While the two Tribunals have different Appeals Chambers, these chambers share the same judges, and, at least with regard to decisions on motions for review, their jurisprudence is essentially the same.

3. Rutaganda v. Prosecutor, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, Case No. ICTR-96-03-R, A. Ch., 8 December 2006 (hereinafter Rutaganda Review Decision), para. 8; Prosecutor v. Blaškić, Decision on Prosecutor's Request for Review or Reconsideration (Public Redacted Version), Case No. IT-95–14-R, A. Ch., 23 November 2006, para. 7 (hereinafter Blaškić Review Decision). As discussed later, the Appeals Chambers have permitted waiver of the second and third requirements in certain circumstances. See notes 32–3, infra, and accompanying text.

4. Niyitegeka v. Prosecutor, Decision on Request for Review, Case No. ICTR-96-14-R, A. Ch., 30 June 2006, para. 6 (hereinafter First Niyitegeka Review Decision) (internal quotation marks omitted); Blaškić Review Decision, supra note 3, para. 14 (internal quotation marks omitted).

5. See section 3.2, infra.

6. Prosecutor v. Tadić, Decision on Appellant's Motion for the Extension of the Time-Limit and Admission of Additional Evidence, Case No. IT-94–1-A, A. Ch., 15 October 1998 (hereinafter First Tadić Review Decision).

7. Ibid., at para. 32. Rule 115 is discussed in more detail in section 2.1, infra.

8. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704, Art. 26, UN Doc. S/Res/827.Add.1 (1993) (hereinafter ICTY Statute). Art. 25 of the ICTR Statute is essentially equivalent. Given this equivalence, and given that the ICTY Statute pre-dates the ICTR Statute, I focus here only on the origins of the ICTY Statute.

9. See V. Morris and M. P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995), Vol. I, at 445–7 (identifying the Conference on Security and Co-operation in Europe as proposing a ‘decisive fact’; France as proposing a ‘new fact . . . that is likely to have a decisive influence on the judgement’; Italy as proposing ‘evidence unknown at the time of the judgement’ that is found to ‘justif[y] an acquittal or exclude[] the crime from [the Court's] jurisdiction’; the Organization of the Islamic Conference as proposing ‘newly discovered evidence [that] would probably alter the judgement’; Amnesty International as proposing ‘decisive new evidence’; the Russian Federation as proposing ‘circumstances [that] come to light after the judgement which could have a decisive influence on it’; the United States as proposing a ‘decisive fact unknown . . . when the judgement was given’; and the Netherlands as proposing ‘new facts or circumstances’). It is unclear whether these bodies put much thought into the difference between the terms ‘fact’ and ‘evidence’. For example, while the United States proposed the word ‘fact’ for the Statute, it later suggested that Art. 26 be implemented via a Rule of Procedure and Evidence that would provide for review upon ‘evidence [that] has come to light . . .that [is] credible and would probably have caused a different result on some or all of the charges or in the imposition of a substantially different sentence’. Ibid., Vol. II, at 556 (emphasis added).

10. See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704 (1993), para. 119. Perhaps the term was chosen to mirror that used in the Statute of the International Court of Justice (ICJ), which provides for review of judgments based upon the discovery of some ‘new fact’. Statute of the International Court of Justice, Art. 61, s. 2; see also s. 1 (speaking of ‘the discovery of some fact of such a nature as to be a decisive factor’). The ICJ has not addressed whether, in order to constitute a ‘new fact’, new decisive evidence must not relate to matters in issue in the original proceeding. See Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras), Application for Revision of the Judgment of 11 September 1992, 18 December 2003, [2003] ICJ Rep. 392, paras. 27, 31, 36, 59 (where the ICJ declined to address this issue although it was raised by the parties).

11. See Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. IT/32 (1994) (hereinafter ICTY, Rules of Procedure and Evidence) and Rev. 39 (2006). Rules 120 to 123 of the ICTR are essentially identical to Rules 119 to 122 of the ICTY and thus will not be discussed separately. For the same reason, Rule 115 of the ICTR Rules will not be discussed separately from Rule 115 of the ICTY Rules.

12. ICTY, Rules of Procedure and Evidence, supra note 11, Rule 119.

13. Ibid., Rule 120.

14. Ibid., Rule 122.

15. ICTY Statute, supra note 8, Art. 26.

16. ICTY, Rules of Procedure and Evidence, supra note 11, Rule 119.

17. Ibid., Rule 115. As discussed in section 3.1, infra, this language was amended in 2002.

18. First Tadić Review Decision, supra note 6, para. 51.

19. Ibid., at para. 38.

20. Ibid., at para. 24.

21. Ibid., at para. 32.

22. Ibid.

23. Ibid., at para. 30. Although this language (and, indeed, the language of Rule 119) would suggest that a party seeking review while appeal of the trial judgment is pending should bring the motion for review to the trial chamber rather than to the Appeals Chamber, the Appeals Chamber has subsequently held that a party seeking review while an appeal is pending should lodge the request with the Appeals Chamber. That Chamber will then determine ‘whether it can deal with the motion for review itself or whether it is necessary to refer the case back to’ a trial chamber. Prosecutor v. Tadić, Decision on Motion for Review, Case No. IT-94–1-R, A. Ch., 30 July 2002, para. 22 (hereinafter Second Tadić Review Decision).

24. First Tadić Review Decision, supra note 6, para. 32.

25. Ibid., at para. 36.

26. There is also no apparent reason why the original trial chamber would do a better job dealing with ‘new facts’ while the Appeals Chamber would be better qualified to consider ‘additional evidence’. To the contrary, since the trial chamber already has knowledge of the facts that were at issue before it, it might be better equipped than the Appeals Chamber to consider how ‘additional evidence’ as to these facts could have affected its ultimate findings.

27. See, e.g., House v. Bell, 126 S.Ct. 2064, 2076 (2006) (stating that the US standard for reviewing otherwise defaulted claims is whether ‘in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt’ (internal quotation marks omitted)). This formulation goes to the material effect of the new evidence and not to whether this evidence does or does not relate to facts at issue in the original trial. See also Criminal Appeal Act 1995, § 13 (authorizing the Criminal Case Review Commission in the United Kingdom to refer closed criminal cases for review if there is a ‘real possibility’ of a different result ‘because of an argument, or evidence, not raised in the [original] proceedings’); German Code of Criminal Procedure, § 359 (providing for reopening of criminal cases where, among other possible reasons, ‘new facts or evidence were produced, which, independently or in connection with the evidence previously taken, tend to support the defendant's acquittal’).

28. Such an approach would enable a Chamber to consider whether new evidence suggests that factual findings made with regard to contested facts in the earlier proceeding were erroneous. As discussed in section 4, infra, this approach would be consistent with the approach taken in the Rome Statute. It would also provide what the International Law Commission recognized as the ‘necessary guarantee against the possibility of factual error relating to material not available to the accused and therefore not brought to the attention of the Court at the time of the initial trial or any appeal’. International Law Commission, Report of the Working Group on a Draft Statute for an International Criminal Court, A/CN.4/L.491/Rev.2/Add.3, 18 July 1994, Draft Commentary to Article 50.

29. In chronological order, these are Barayagwiza v. Prosecutor, Decision (Prosecutor's Request for Review or Reconsideration), Case No. ICTR-97–19-AR72, A. Ch., 31 March 2000 (hereinafter Barayagwiza Review Decision); Akayesu v. Prosecutor, Arrêt (Requête aux fins de Renvoi de l'Affaire devant la Chambre de Première Instance I), Case No. ICTR-96–4-A, A. Ch., 16 May 2001 (hereinafter Akayesu Review Decision); Prosecutor v. Delić (‘Čelebići’), Decision on Motion for Review, Case No. IT-96–21-R-R119, A. Ch., 25 April 2002 (hereinafter Čelebići Review Decision); Prosecutor v. Jelisić, Decision on Motion for Review, Case No. IT-95–10-R, A. Ch., 2 May 2002 (hereinafter Jelisić Review Decision); Second Tadić Review Decision, supra note 23; Prosecutor v. Josipović, Decision on Motion for Review, Case No. IT-95–16-R2, A. Ch., 7 March 2003 (hereinafter First Josipović Review Decision); Prosecutor v. Josipović, Decision on Motion for Review, Case No. IT-95–16-R.3, A. Ch., 2 April 2004 (hereinafter Second Josipović Review Decision); First Niyitegeka Review Decision, supra note 4; Prosecutor v. Žigić, Decision on Zoran Žigić's Request for Review under Rule 119, Case No. IT-98–30/1-R.2, A. Ch., 25 August 2006 (hereinafter Žigić Review Decision); Prosecutor v. Radić, Decision on Defence Request for Review (Public Redacted Version), Case No. IT-98–30/1-R.1, A. Ch., 31 October 2006 (hereinafter Radić Review Decision); Blaškić Review Decision, supra note 3; Rutaganda Review Decision, supra note 3; Prosecutor v. Simba, Decision on Aloys Simba's Requests for Suspension of Appeal Proceedings and Review, Case No. ICTR-01–76-A, A. Ch., 9 January 2007 (hereinafter Simba Review Decision); Niyitegeka v. Prosecutor, Decision on Request for Review, Case No. ICTR-96–14-R, A. Ch., 6 March 2007 (hereinafter Second Niyitegeka Review Decision). There have also been several Appeals Chambers decisions that dismiss motions for review for other reasons, such as the absence of a final judgment, which this article does not further address. See, e.g., Barayagwiza v. Prosecutor, Decision on Review and/or Reconsideration, Case No. ICTR-97–19-AR72, A. Ch., 14 September 2000. For a discussion of two of these cases, see Carcano, supra note 1, at 116–17.

30. The Appeals Chamber found that this earlier decision constituted a ‘final judgement’ for purposes of Art. 25 of the ICTR Statute and Rule 120, since it had terminated all proceedings in the case. Barayagwiza Review Decision, supra note 29, paras. 49–50.

31. Ibid., at para. 41.

32. Ibid., at para. 65.

33. Ibid., at para. 66. A standard of ‘would’ have altered the earlier decision is clearly much harder to satisfy than a standard of ‘could’ have altered the earlier decision.

34. Ibid. The Statute requires that the new fact ‘was not known at the time of the proceedings’, while Rule 119 requires that the new fact ‘was not known to the moving party at the time of the proceedings’ (emphasis added). In finding that Rule 119 was the sole source of the requirement that the moving party not know of the new fact at the time of the original proceedings, the Appeals Chamber must have read the Statute as permitting the fact to be known to the moving party but not known to some other entity (such as the chamber) at the time of the original proceedings. This is certainly not the only plausible reading of the Statute. See also W. A. Schabas, ‘International Decisions: Barayagwiza v. Prosecutor’, (2000) 94 AJIL 563, at 567–8 (observing that the Barayagwiza Review Decision overlooked the Statute's requirement of a ‘discovery’ of a new fact).

35. Barayagwiza Review Decision, supra note 29, para. 42. Barayagwiza thus officially imported the Tadić standard into the ICTR.

36. See ibid., at paras. 54, 57, 61.

37. Barayagwiza v. Prosecutor, Decision, Case No. ICTR-97–19-AR72, A.Ch., 3 November 1999, paras. 24, 59.

38. Barayagwiza Review Decision, supra note 29, paras. 58–59.

39. Ibid., at para. 47 (Judge Shahabuddeen, Separate Opinion).

40. Ibid.

41. Ibid.

42. See, e.g., A. Sridhar, ‘The International Criminal Tribunal for the Former Yugoslavia's Response to the Problem of Transnational Abduction’, (2006) 42 Stanford Journal of International Law 343, at 362–3; Schabas, supra note 34, at 568, 571.

43. Akayesu Review Decision, supra note 29. It is unclear from this brief decision whether Akayesu offered specific evidence to support his claim or simply made a generalized assertion.

44. Čelebići Review Decision, supra note 29, para. 13.

45. Jelisić Review Decision, supra note 29, at 3.

46. Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. IT/32/Rev.24 (2002), Rule 115. Rule 115 of the ICTR Rules was similarly amended in May 2003.

47. As noted earlier, the Appeals Chamber had already found that the unavailability requirement of Rule 115 was equivalent to the unknown-and-undiscoverable-through-due-diligence requirement of Rule 119. See note 25, supra, and accompanying text.

48. This might be because, in practice, the Appeals Chambers consider that ‘additional evidence’ is a broad category encompassing both ‘new facts’ and other evidence. If that is the case, however, then it is contrary to Tadić, which appeared to treat ‘new facts’ and ‘additional evidence’ as separate, non-overlapping categories. See note 23, supra, and accompanying text.

49. See, e.g., Prosecutor v. Naletilić & Martinović, Decision on Naletilić's Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, Case No. IT-98–34-A, A. Ch., 7 July 2005, paras. 11–15 (failing to discuss the meaning of ‘additional evidence’ or how it compares with ‘new facts’ in setting out the legal standard); Prosecutor v. Nikolić, Decision on Motion to Admit Additional Evidence (Public Redacted Version), Case No. IT-02–60/1-A, A. Ch., 9 December 2004, paras. 19–25 (same); Prosecutor v. Kvočka et al., Decision on Appellants’ Motions to Admit Additional Evidence Pursuant to Rule 115, Case No. IT-98–30/1-A, A. Ch., 16 February 2004. p. 4 (same).

50. See Prosecutor v. Tadić, Appeal Judgement on Allegations of Contempt against Prior Counsel Milan Vujin, Case No. IT-94–1-A-AR77, A. Ch., 27 February 2001.

51. Carcano has expressed concern that the Jelisić Review Decision's requirement that ‘new facts’ be of an ‘evidentiary’ nature might prevent review proceedings brought based upon subsequent evidence of bias or misconduct by a judge. Carcano, supra note 1, at 110. The broad approach taken in the Second Tadić Review Decision to what is ‘evidentiary’ material suggests a partial answer to this concern. If attorney misconduct can be deemed a new fact of an evidentiary nature, then surely judicial misconduct could be also.

52. Second Tadić Review Decision, supra note 23, para. 47.

53. Ibid.

54. See ibid.

55. First Josipović Review Decision, supra note 29, paras. 19–20.

56. See ibid., at paras. 30, 38.

57. See Second Josipović Review Decision, supra note 29.

58. Prosecutor v. Mucić et al. (‘Čelebići’), Judgement on Sentence Appeal, Case No. IT-96–21-A bis, A. Ch., 8 April 2003, paras. 49–53.

59. Prosecutor v. Žigić, Decision on Zoran Žigić's ‘Motion for Reconsideration of Appeals Chamber Judgement IT-98–30/1-A Delivered on 28 February 2005, Case No. IT-98–30/1-A’, A. Ch., 26 June 2006, para. 9 (hereinafter Žigić Reconsideration Decision). The ICTR Appeals Chamber has reached the same conclusion. Rutaganda Review Decision, supra note 3, para. 6.

60. Ibid., at para. 7.

61. Ibid., at para. 8 (Declaration of Judge Shahabuddeen).

62. Prosecutor v. Niyitegeka, Judgement and Sentence, Case No. ICTR-96–14-T, T. Ch. I, 16 May 2003, paras. 214, 311.

63. First Niyitegeka Review Decision, supra note 4, para. 34.

64. Ibid., at para. 4 (Declaration of Judge Shahabuddeen).

65. Ibid.

66. See Žigić Review Decision, supra note 29.

67. Radić Review Decision, supra note 29, paras. 20, 22.

68. By contrast, in many of the earlier decisions where the Appeals Chambers had held that new information did not amount to ‘new facts’, the Chambers nonetheless went out of their way to conclude that in any event the new information could not have affected the judgments. See, e.g., First Josipović Review Decision, supra note 29, paras. 23–25 (finding that the new information related to Josipović's alibi could not have affected the judgment in any event); First Niyitegeka Review Decision, supra note 4, paras. 13–14 (finding that the new information related to Niyitegeka's alibi for 22 June 1994 could not have affected the original judgment in any event).

69. Radić Review Decision, supra note 29, para. 6 (Judge Shahabuddeen, Separate Opinion).

70. See generally Blaškić Review Decision, supra note 29. With regard to the sixth piece of evidence, the Appeals Chamber held that it was simply not relevant to the prosecution's argument and thus did not address whether it constituted a ‘new fact’. Ibid., at para. 32.

71. Ibid., at paras. 41–42.

72. Rutaganda Review Decision, supra note 3.

73. Simba Review Decision, supra note 29, paras. 17–18. Once again, the Appeals Chamber did not consider whether this new information might have affected the original verdict.

74. Second Niyitegeka Review Decision, supra note 29.

75. Ibid. (Declaration of Judge Shahabuddeen).

76. Ibid. (Judge Meron, Separate Opinion).

77. Although in theory this harmonization would make motions for review as easy to bring as motions for additional evidence, in practice the effect would likely be different. The further away a party is from the time of trial, the less likely it is that the party will satisfy the due diligence requirement (since more time will have passed during which the party could have acted). If the due diligence requirement is not satisfied, then the party must succeed under the stricter standard of showing that the new evidence ‘would’ have affected the verdict (as opposed to ‘could’ have affected the verdict). See note 33, supra, and accompanying text. Thus motions for review, which generally are brought after more time has passed from the trial than motions for the admission of additional evidence, are more likely in practice to trigger this stricter standard. This practical difference is a positive one in the light of the social value placed upon the finality of judgments. If most motions for review of judgments will only be granted where the new information ‘would’ have affected the verdict, then only powerful new information will trigger this standard (and thus judgments will rarely if ever be reopened).

78. Žigić Reconsideration Decision, supra note 59, para. 9. In particular, a separate reconsideration power might allow the Tribunal to revisit questions of law. However, given the quite conscious distinction between ‘facts’ and ‘law’ drawn in the Statute, it seems likely that the drafters did not intend such a power. See Arts. 25–26. A similar point would apply with regard to the ICTR and Arts. 24–25.

79. Another possible fix – one available to the Security Council rather than to the Appeals Chamber – would be amendment of the Statutes of the Tribunals. Such amendment could bring Art. 26 of the ICTY Statute and Art. 25 of the ICTR Statute into conformity with the review provision in the Rome Statute, discussed infra, an approach that would make clear that the focus is on ‘new evidence’ and would also tighten the materiality standard from ‘could’ have affected the verdict to ‘would . . . likely’ have affected the verdict). The likelihood of such an amendment, however, seems far too remote to make it a practically feasible suggestion.

80. There is also the possibility that pardons could be given pursuant to Art. 28 of the ICTY Statute and Art. 27 of the ICTR Statute in cases where evidence that does not amount to a ‘new fact’ under the current jurisprudence nonetheless decisively undermines the convictions. The existence of this possibility, however, does not undermine the need to revisit the existing jurisprudence. Not only do pardons fall short of the exonerations due if convictions were truly entered in error, but they are also acts of discretion and their availability under the Statutes depends on the convicted persons’ eligibility for pardons according to the applicable law of the states in which they are serving their sentences.

81. Carcano, supra note 1, at 118.

82. 1998 Rome Statute of the International Criminal Court, (1998) 37 ILM 1002, at 1050.