Showing 2393 results (20 per page)

Notion(s) Filing Case
Decision Dismissing a Request - 13.04.2018 NIYITEGEKA Eliézer
(MICT-12-16-R)

Pages 1-2:

NOTING that Niyitegeka passed away on 28 March 2018, while serving his sentence in the Republic of Mali;[1]

RECALLING that the Mechanism continues the personal jurisdiction of the ICTR as set out in Article 5 of the Statute of the ICTR ("ICTR Statute");[2]

OBSERVING that Article 5 of the ICTR Statute stipulates that the ICTR "shall have jurisdiction over natural persons";

CONSIDERING that, when read in the context of the object and purpose of the ICTR Statute, "natural persons" is understood as limited to those who are alive;[3]

RECALLING that appeal proceedings before the ICTY and trial proceedings before the ICTY and the ICTR have been terminated following the death of the appellant or the accused for lack of personal jurisdiction;[4]

CONSIDERING that, to uphold principles of due process and fundamental fairness, the Mechanism's jurisdiction ratione personae, consistent with that of the ICTR and the ICTY, is limited to living persons;[5]

FINDING that, in light of. Niyitegeka's death, the Appeals Chamber no longer has jurisdiction to consider the Request;

[1] See Registrar’s Submission Pursuant to Rule 31(B), 6 April 2018 (confidential), para. 2, Annex A. See also The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Decision on the Enforcement of Sentence, 4 December 2008, p. 3. See also Request for Review, 27 June 2017 (confidential; French original filed on 7 June 2017), para. 1.

[2] Article 1 of the Statute of the Mechanism.

[3] See, mutatis mutandis, Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010 (Delić Decision of 29 June 2010"), para. 6 (interpreting "natural persons" in Article 6 of the Statute of the International Criminal Tribunal for the former Yugoslavia ("ICTY")).

[4] See Delić Decision of 29 June 2010, paras. 5, 6, 8, 16, n. 16 and references cited therein. See also Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Order Terminating Proceedings, 22 July 2016, p. 1; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision Relating to Registrar’s Submission Notifying the Demise of Accused Joseph Nzirorera, 12 August 2010, para. 2. Cf. Édouard Karemera et al. v. The Prosecutor, Case No. ICTR‑98‑44‑AR91.3, Decision on Joseph Nzirorera’s Appeal of Decision Not to Investigate Witnesses GAP and BDW for False Testimony, 26 August 2010, p. 1 (dismissing Joseph Nzirorera’s pending interlocutory appeal after his death for lack of jurisdiction).

[5] See supra n. 8. See also Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-A.R14, Decision on Appeal Against the Referral of Phénéas Munyarugarama's Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, paras. 5, 6.

Download full document
Notion(s) Filing Case
Appeal Judgement - 11.04.2018 ŠEŠELJ Vojislav
(MICT -16-99-A)

57.    […] The Appeals Chamber observes that, in the present case, the Trial Chamber did not explicitly set out the legal requirements applicable to the chapeau elements of crimes against humanity. However, contrary to the Prosecution’s submission, this per se does not amount to a failure by the Trial Chamber to provide a reasoned opinion. While, in practice, trial chambers usually state the law that they intend to apply, the duty to provide a reasoned opinion does not necessarily entail a formal requirement to set out the applicable law. Accordingly, while it would have been preferable for the Trial Chamber to explicitly set out the chapeau elements of crimes against humanity, the Prosecution fails to show that the Trial Chamber’s omission to do so amounts to an error of law.

See also para. 160.

Download full document
Notion(s) Filing Case
Appeal Judgement - 11.04.2018 ŠEŠELJ Vojislav
(MICT -16-99-A)

124.  The Appeals Chamber recalls that the actus reus of “instigating” implies prompting another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] […] The Trial Chamber, however, added an element – “that it should also be demonstrated that the instigator used different forms of persuasion such as threats, enticement or promises to the physical perpetrators of the crimes” – without citing any authoritative support for it.[3] The Appeals Chamber cannot exclude that proof of threats, enticement, or promises to physical perpetrators may have some relevance in assessing whether a particular conduct amounts to instigation. However, it is not a legal requirement, and the Trial Chamber erred in stating so. […]

[1] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3327; Ngirabatware Appeal Judgement, para. 162; Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27.

[2] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3327; Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, paras. 480, 660; Kordić and Čerkez Appeal Judgement, para. 27.

[3] Trial Judgement, para. 295. 

Download full document
Notion(s) Filing Case
Appeal Judgement - 11.04.2018 ŠEŠELJ Vojislav
(MICT -16-99-A)

159.  The Appeals Chamber recalls that persecution as a crime against humanity under Article 5(h) of the ICTY Statute is an act or omission which: (i) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion, or politics (mens rea).[1] In assessing whether speech may constitute an underlying act of persecution, the ICTR Appeals Chamber in the Nahimana et al. case held that “speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security of the members of the targeted group and therefore constitutes ‘actual discrimination’”.[2] It further held that the context in which the underlying act of persecution takes place is particularly important for the purpose of assessing its gravity.[3]

[…]

163.  […] The Appeals Chamber also considers that Šešelj’s speech denigrated the Croatians of Hrtkovci on the basis of their ethnicity, in violation of their right to respect for dignity as human beings. In the Appeals Chamber’s view, Šešelj’s speech rises to a level of gravity amounting to the actus reus of persecution as a crime against humanity. […].

[1] See, e.g., Nahimana et al. Appeal Judgement, para. 985; Kvočka Appeal Judgement, para. 320; Blaškić Appeal Judgement, para. 131.

[2] Nahimana et al. Appeal Judgement, para. 986, referring to Article 3 of the Universal Declaration of Human Rights.

[3] Nahimana et al. Appeal Judgement, paras. 987, 988.

Download full document
ICTY Statute Article 5(h)
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

9.       […] As to the nexus, […] Given the relatively low threshold for establishing this criterion,[1] […]

[1] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Georges A.N. Rutaganda's Appeal Against Decision on Request for Closed Session Testimony and Sealed Exhibits, 22 April 2009, para. 23 ("The Appeals Chamber emphasises that a requesting party is not required to establish a 'significant' overlap between the cases – be it factual, geographic or temporal – in order to demonstrate a legitimate forensic purpose.")

Download full document
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

15. […] while not bound by the jurisprudence of the ICTR or the ICTY, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTR or the ICTY Appeals Chambers and depart from them only for cogent reasons in the interests of justice.

Download full document
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

Footnote 50:

[…] See also Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 11 (“If the material proffered consists of additional evidence relating to a fact which was in issue or considered in the original proceedings, this does not constitute a ‘new fact’ [...], and the review procedure is not available.”) (Emphasis in original).

Download full document
IRMCT Rule Rule 146
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

23.     The Appeals Chamber recalls that an indictment simply contains allegations of facts with which an accused is charged and the Appeals Chamber of the ICTR has found it to have "no evidentiary value" in the context of review proceedings.[1] This conclusion is particularly persuasive when considering the broad discretion the Prosecution has in selecting information and crimes to be included in indictments[2] and the fact that Rugambarara's amended indictment was drafted with the intention of securing a plea agreement. Similarly, the facts relied upon to convict Rugambarara were also agreed to by the parties[3] and "such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than one applied in instances where the Prosecution must prove facts upon which convictions are based beyond reasonable doubt."[4] Given the particular context in which the Rugambarara Plea Documents were created, the Appeals Chamber finds that they do not constitute new information of an "evidentiary nature" that would support a basis for review of Semenza's convictions.[5]

See also paragraph 28.

[1] Francois Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012, para. 30.

[2] See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-04-A, Judgement, 23 November 2001 (original French version filed on 1 June 2001), para. 94 and references cited therein.

[3] See Rugambarara Sentencing Judgement, paras. 4, 5, 8.

[4] Theoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva's Motion for Judicial Notice, 29 October 20 10, para. 11 (emphasis in original).

[5] Semenza's attempt to establish a new fact on the basis of the Rugambarara Plea Documents could also be dismissed because the issues raised by them were at issue in Semenza's underlying proceedings. Specifically, although WitnessVA provided evidence that Rugambarara went to Musha church with Semanza and was present during the attack, including the torture and killing of Rusanganwa, the Trial Chamber did not rely on this aspect of Witness VA's evidence. Trial Judgement, paras. 168, 169, 196, 197, 206, 211, 213. Furthermore, Defence Witness MTP testified that she did not see Rugambarara, whom she knew, during the Musha Church Attack. Trial Judgement, para. 192. Consequently, the Rugambarara Plea Documents fail to present new information that was not among the factors the Trial Chamber could have taken into account in reaching its verdict and, therefore, do not support the existence of a new fact.

Download full document
IRMCT Rule Rule 146
Notion(s) Filing Case
Decision on a Request for Access and Review - 09.04.2018 SEMANZA Laurent
(MICT-13-36-R)

30.     […] the Appeals Chamber does not consider any lack of reference to Semanza's activities in a brief statement taken during a separate trial involving a different accused constitutes a new fact for the purposes of review.[1] As previously recalled by the ICTR Appeals Chamber, "to suggest that if something were true a witness would have included it in a statement [...] is obviously speculative".[2]

[1] Rutaganda Decision of 8 December 2006 [Georges Anderson Nderubumwe Rutaganda·v. The Prosecutor, Case No. ICTR. 96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and. Clarification, 8 December 2006], para. 13.

[2] Rutaganda Decision of 8 December 2006, para. 13, quoting Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 176.

Download full document
IRMCT Rule Rule 146
Notion(s) Filing Case
Decision on Further Extension of Time to File a Notice of Appeal - 09.03.2018 MLADIĆ Ratko
(MICT-13-56-A)

Page 2:

RECALLING that the filing of a notice of appeal marks the commencement of the appeal proceedings in a case, and, since the time limits for the filing of subsequent briefs are calculated from the date on which the notice of appeal is filed, any delay at such an early stage will affect subsequent filings;[1]

RECALLING FURTHER that parties may have the opportunity, after the filing of the notice of appeal, to request variation of their grounds of appeal provided that they show good cause under Rule 133 of the Rules;[2]

[1] See, e.g., Pauline Nyiramasuhuko et al. v. The Prosecutor, Case No. ICTR-98-42-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 25 July 2011, para. 5 and references cited therein.

[2] See also Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Decision on Motions for Extension of Time to File Notices of Appeal, 23 March 2009, p. 3.

Download full document
IRMCT Rule Rule 133
Notion(s) Filing Case
Decision on Additional Evidence on Appeal - 02.03.2018 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 3-4:

 7.          Rule 142 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) provides for the admission of additional evidence on appeal. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant must also show that the additional evidence is relevant to a material issue at trial and is credible. [2] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine, in accordance with Rule 142(C) of the Rules, whether it could have been a decisive factor in reaching the verdict.[3] Where the Appeals Chamber finds that the evidence was available at trial, it may still be admissible pursuant to Rule 142(C) of the Rules. However, in such a case, the applicant must demonstrate that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the verdict.[4]

8.          In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s verdict.[5] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[6]

[1] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24. See also Prosecutor v. Jean Uwinkindi, MICT-12-24-AR14.1, Decision on Requests for Admission of Additional Evidence on Appeal, 22 September 2016 (“Uwinkindi Decision of 22 September 2016”), para. 5.

[2] Ngirabatware Decision of 21 November 2014, para. 25. See also Uwinkindi Decision of 22 September 2016, para. 5. Evidence is relevant if it relates to findings material to the conviction or sentence, in the sense that those findings were crucial or instrumental to the conviction or sentence, and is credible if it appears to be reasonably capable of belief or reliance. Ngirabatware Decision of 21 November 2014, para. 25.

[3] Ngirabatware Decision of 21 November 2014, para. 26. Cf. Uwinkindi Decision of 22 September 2016, para. 5.

[4] Ngirabatware Decision of 21 November 2014. para. 27. Cf. Uwinkindi Decision of 22 September 2016, para. 6.

[5] Ngirabatware Decision of 21 November 2014, para. 28. Cf. Uwinkindi Decision of 22 September 2016, para. 7.

[6] Ngirabatware Decision of 21 November 2014, para. 28. See also Uwinkindi Decision of 22 September 2016, para. 7. 

Download full document
IRMCT Rule Rule 142
Notion(s) Filing Case
Decision on Additional Evidence on Appeal - 02.03.2018 KARADŽIĆ Radovan
(MICT-13-55-A)

Page 5:

 12. […] While there may be situations where a party may attempt to use Rule 142 of the Rules for the purpose of remedying tactical errors or oversights at trial, the Appeals Chamber considers that, in this instance, the heightened standard for admission sufficiently protects the interests of justice.

[1] Specifically, the Appeals Chamber recalls that the heightened standard for admitting additional evidence on appeal that was available at trial “seeks to ensure the finality of judgements and the application of maximum effort by counsel at trial to obtain and present the relevant evidence, while at the same time, it does not permit a factually erroneous conviction to stand, thereby safeguarding an equally important interest of accuracy in judgements.” Galić Decision of 30 June 2005 [Prosecutor v. Stanilav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber, 30 June 2005], para. 15 (internal quotations omitted).

Download full document
Notion(s) Filing Case
Decision on Additional Evidence on Appeal - 02.03.2018 KARADŽIĆ Radovan
(MICT-13-55-A)

Footnote 42:

As concerns the Supplement [Supplement to Motion to Admit Additional Evidence, 2 December 2017] filed by Karadžić, the Appeals Chamber recalls that a party is to seek leave to file supplemental authorities. See Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on Prosecution’s “Notice of Supplemental Authority”, 14 May 2007, p. 2. Furthermore, the Appeals Chamber finds that the Supplement, which concerns factual determinations based on a separate record reviewed by a separate trial chamber of the ICTY, does not present supplemental legal authority that would assist in the adjudication of the Motion.

Download full document
Notion(s) Filing Case
Decision on Karadzic's Request to Participate in the Appeal Hearing - 28.02.2018 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 1-2:

RECALLING that Article 19(4)(d) of the Statute of the Mechanism provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who is represented by counsel to self-representation;

[…]

RECALLING that assigned counsel “shall be responsible for all aspects of defence of [...] accused before the Mechanism”;[2]

CONSIDERING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;

[…]

FINDING that it is in the interests of justice to grant Karadžić the right of audience before the Appeals Chamber to present arguments related to the Appeal Grounds;

CONSIDERING that this finding is without prejudice to the opportunity which will be afforded to Karadžić to make a brief personal address to the Appeals Chamber at the end of the hearing of the appeals;

[1] See Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order for Appeals Hearing and Decision on Hassan Ngeze’s Motion of 24 January 2006, 16 November 2006, p. 3. See also Slobodan Milošević v. Prosecutor, Case No. IT-02-54AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, para. 11.

[2] Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012, Article 16(B).

[3] See, e.g., Prosecutor v. Vlastimir Đorđević, Case No. IT-0587/1-A, Transcript (“T.”) 13 May 2013 pp. 53, 54 (granting right of audience to a legal assistant); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, T. 20 March 2017 p. 116 (granting right of audience to legal consultants assigned pursuant to Rule 45 of the Rules of Procedure and Evidence of the ICTY).

Download full document
IRMCT Statute Article 19(4) Other instruments MICT Directive on the Assignment of Defence Counsel: Article 16(B)
Notion(s) Filing Case
Decision on Access to Confidential Materials in Cases - 27.02.2018 NIYITEGEKA Eliézer
(MICT-12-16-R86G.1)

5.       […] a party is entitled to seek material from any source, including from another case before the ICTR or the International Criminal Tribunal for the former Yugoslavia, to assist in the preparation of its case.[1] Where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose must be demonstrated.[2] Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought.[3] Further, the requesting party must establish that this material is likely to assist its case materially, or that there is at least a good chance that it would. [4] 

[1] See, e.g., Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Decision on Stanislav Galić’s Further Motion for Access to Confidential Materials in the Karadžić Case, 4 August 2016 (“Karadžić Decision of 4 August 2016”), para. 11 and references contained therein.

[2] See, e.g., Karadžić Decision of 4 August 2016, para. 11 and references contained therein.

[3] See, e.g., Karadžić Decision of 4 August 2016, para. 11 and references contained therein.

[4] See, e.g., Karadžić Decision of 4 August 2016, para. 11 and references contained therein. 

Download full document
Notion(s) Filing Case
Decision on Defence Counsel's Motion to Withdraw - 19.12.2017 NGIRABATWARE Augustin
(MICT-12-12-R)

Pages 1-2:

BEING SEISED of a motion filed on 30 November 2017, in which Robinson seeks to withdraw as counsel for Ngirabatware, citing regulations governing professional conduct of defence counsel related to discontinuation of representation and conflict of interest;[1]

 […]

NOTING that, pursuant to Rule 43(G) of the Rules, under exceptional circumstances, at the request of assigned counsel, the Appeals Chamber may instruct the Registrar to replace the counsel upon good cause being shown and after being satisfied that the request is not designed to delay the proceedings;

CONSIDERING that the information contained in Annex A to the Motion demonstrates the existence of exceptional circumstances, which constitute good cause for the replacement of Robinson as counsel for Ngirabatware;

[1] Defence Counsel’s Motion to Withdraw, 30 November 2017 (with confidential Annex A) (“Motion”), paras. 1, 2, referring to Articles 9(B) and 14(D) of the Code of Professional Conduct for Defence Counsel Appearing Before the Mechanism (MICT/6, 14 November 2012); Annex A, paras. 8-15.

Download full document
IRMCT Rule Rule 43(G) Other instruments Article 9(B) and Article 14(D) of the Code of Professional Conduct for Defence Counsel Appearing Before the Mechanism
Notion(s) Filing Case
Decision on Assignment of Standby Counsel for the Appeal Hearing - 11.10.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Page 2

CONSIDERING that Šešelj’s refusal to respond to the Order indicates that he maintains his previously stated position not to participate in any way in the appeal hearing;

CONSIDERING that Šešelj’s position not to participate in the appeal hearing rises to the level of a disruption of the proceedings that would warrant the restriction of his right to self-representation;

CONSIDERING that, pursuant to Rules 46 and 131 of the Rules, the assignment of standby counsel is warranted in the interests of justice to ensure the protection of Šešelj’s rights at the appeal hearing;

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, paras. 20, 21; Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision of 1 November 2004”), para. 13.

Download full document
IRMCT Statute Article 19(4)(d) IRMCT Rule Rule 46:
Rule 131
Notion(s) Filing Case
Decision on Assignment of Standby Counsel for the Appeal Hearing - 11.10.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Page 2

CONSIDERING that standby counsel shall have access to the inter partes record of the appeal proceedings in order to prepare for the hearing;

Download full document
Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

12.     […] Requiring Kamuhanda to appeal an interim order before being able to demonstrate any prejudice resulting from that order would necessarily inhibit his ability to appeal the discretionary determination at issue and would result in a needless expenditure of judicial resources.[1]

[1] In order to successfully challenge a discretionary decision, an applicant must demonstrate that the Single Judge committed a discernible error resulting in prejudice to the applicant. See infra para. 11. 

Download full document
Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu
(MICT-13-33)

14.     The Appeals Chamber recalls the generally accepted principle that the interpretation and implementation of protective measures should be the least restrictive necessary to provide for the protection of victims or witnesses.[1]

15.     […] the Appeals Chamber observes that the contested language releases the Mechanism and the WISP from accountability for any moral or material prejudice the witness might suffer whether he or she consents to the interview or does not and, therefore, prima facie, it neither encourages nor discourages a witness from consenting to an interview.[2] In addition, Kamuhanda’s contention that the impugned provision necessarily discouraged the witness from agreeing to an interview is not supported by Witness GEK’s explanation for not consenting to the interview. Witness GEK declined the request for the interview not because of the contested language, having to express an understanding that the witness could not hold the Mechanism responsible for his or her decision, but rather because of fears for safety.[3] […]

[1] The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 19.

[2] Registrar’s Submission [Registrar’s Submission Pursuant to Order of 8 June 2017, 21 June 2017 (confidential)], Annex, RP. 2/1554bis (“I fully understand the meaning and implications of my personal decision and therefore commit myself, through this document, not to hold WISP and the Mechanism in general accountable for any moral and material prejudice which I might suffer from my decision as to whether to participate in such an interview.”) (Emphasis added).

[3] See Registrar’s Submission, Annex, RP. 1/1554bis (“I fear for my safety because even when I appeared before the Tribunal previously, I did so as a protected witness. If they want to interview me, I am prepared to meet with them in court. In all other respects, my response is no.”).

Download full document
IRMCT Rule Rule 86