58. [T]he Appeals Chamber recalls that, in principle, trial chambers enjoy considerable discretion in relation to the management of proceedings before them.[1] Such discretion is exercised in a plethora of circumstances, for instance, in relation to the joinder of cases, the scheduling of trials, the admission and evaluation of evidence, in deciding points of practice and procedure, including in assignment of counsel, in determining whether an accused should be granted provisional release, and in imposing a sentence.[2] The unprecedented nature of a procedure, which is neither expressly allowed for nor specifically prohibited in the Statute or the Rules, does not per se indicate that such procedure falls outside a trial chamber’s discretionary power.[3]

59. In the present case, relying on its discretion to manage the proceedings before it, the Trial Chamber decided to adopt “an alternative finding procedure that resembles a trial as closely as possible”.[4] The Trial Chamber explained that, in the course of this procedure: (i) Kabuga’s attendance would be unnecessary due to his lack of fitness to participate effectively in the trial coupled with the fact that the procedure will not result in a conviction;[5] and (ii) the Prosecution would retain the burden to prove beyond reasonable doubt both the actus reus and mens rea elements of each charge against Kabuga.[6] The Appeals Chamber considers that, although seemingly procedural in nature, the essential elements of the “alternative finding procedure”, as defined by the Trial Chamber, impact Kabuga’s substantive rights “in the sense of there being a legitimate expectation to be tried in a certain way in order to achieve the fundamental objective of a fair trial”.[7] The Appeals Chamber therefore considers that whether the Trial Chamber is vested with discretion to conduct such an “alternative finding procedure” in lieu of a trial is ultimately a question of statutory interpretation.[8]

60. The Appeals Chamber recalls that the Statute is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in light of its object and purpose.[9] Turning first to the terms of the Statute […].

61. The Appeals Chamber considers that a proper construction of the Statute, in accordance with the ordinary meaning to be given to the terms in their context, provides for the conduct of trials, without the possibility of conducting procedures that merely resemble trials in lieu of such trials.[10] This interpretation is also consistent with the object and purpose of the Statute as envisaged in United Nations Security Council Resolution 1966, in which the United Nations Security Council reaffirmed the need for the establishment of the Mechanism to carry out a number of essential functions of the ICTR, including “the trial of fugitives who are among the most senior leaders suspected of being most responsible for crimes”.[11]

62. The Appeals Chamber further recalls that the Statute and the Rules of the Mechanism reflect normative continuity with the statutes and rules of procedure and evidence of the ICTR and the ICTY.[12] In establishing the ICTR and adopting its statute, the United Nations Security Council appears to have intended to give the ICTR jurisdiction to prosecute persons responsible for serious violation of international humanitarian law through the conduct of trials.[13] […]

63. The Appeals Chamber echoes the Trial Chamber’s emphasis on the purpose for which the ICTR was established, which includes contributing to the process of national reconciliation in Rwanda and to the restoration and maintenance of peace.[14] Indeed, the United Nations Security Council unequivocally expressed its conviction in this regard when adopting the Statute of the ICTR (“ICTR Statute”), which is also reflected in the statements of various delegates at the meeting, who supported the establishment of the ad hoc tribunal as an instrument of national reconciliation.[15] Notwithstanding, a holistic reading of the relevant United Nations Security Council resolutions concerning the establishment of the ICTR and the Mechanism reflects that the framers intended to effect these goals through combating impunity by way of creating tribunals that would investigate, prosecute, and conduct proceedings, for the “sole purpose” of holding individuals criminally accountable for serious violations of international humanitarian law.[16] It is pertinent to recall in this regard that the fundamental mandate of the Mechanism to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law.[17]

68. […] [T]he Appeals Chamber finds that neither the Statute nor the jurisprudence of the Mechanism and its predecessor tribunals allow for the conduct of an “alternative finding procedure”, as defined by the Trial Chamber, in lieu of a trial. […] The Appeals Chamber observes that treaty provisions and state legislative practice, while of significance, are not necessarily determinative of the scope of the Mechanism’s jurisdiction. It is the Statute, as the constitutive instrument of the Mechanism, that defines the scope and limits of its mandate and can only be amended or derogated by means of a United Nations Security Council resolution.[1]

69. The Appeals Chamber is further not persuaded by the Prosecution’s argument that the “alternative finding procedure” falls within the Mechanism’s inherent powers to issue such rulings as necessary to exercise its express jurisdiction.[2] As recalled above, the Statute, as the constitutive instrument of the Mechanism, defines the scope and limits of the Mechanism’s substantive jurisdiction as set out in Articles 1 to 7 of the ICTR Statute.[3] As with the statutes of its predecessor tribunals, the Appeals Chamber recognizes that the Statute of the Mechanism “is not and does not purport to be […] a meticulously detailed code providing explicitly for every possible scenario and every solution, thereto” and that it sets out in general terms the jurisdictional framework within which the Mechanism has been mandated to operate.[4] Included in this framework is the inherent jurisdiction to ensure that its exercise of judicial functions is safeguarded.[5] In this regard, it has been indeed recognized that judges are not limited strictly and narrowly to the text of the Rules in carrying out their mandateand have the inherent authority to render orders that are reasonably related to the task before them and that derives automatically from the exercise of the judicial function.[6]

70. The Appeals Chamber notes that, in support of its submission, the Prosecution points to the authority of the Mechanism’s predecessor tribunals in adjudicating joint criminal enterprise liability and allegations of contempt, despite the fact that the two notions were not expressly prescribed in their respective statutes and/or rules of procedure and evidence.[7] The Appeals Chamber recalls, however, that the authority to exercise jurisdiction over joint criminal enterprise liability falls within the ICTR’s substantive jurisdiction, prescribed under Article 6(1) of the ICTR Statute, to hold individuals criminally responsible for “committing” crimes referred to in Articles 2 to 4 of the ICTR Statute.[8] As for the authority to exercise jurisdiction over allegations of contempt, the Appeals Chamber recalls that the inherent jurisdiction of the ad hoc tribunals in this respect is derived from their judicial function to ensure that the exercise of jurisdiction, which was expressly given to them by their respective statutes, was not frustrated and that their basic judicial functions were safeguarded.[9]

71. As explained above, the Statute does not expressly give the Mechanism jurisdiction to conduct proceedings other than trial, appellate, and review proceedings.[10] In accordance with the principle ubi lex voluit dixit, had the drafters of the Statute intended to vest the Mechanism with the power to conduct proceedings similar to trials, they would have expressly provided for it. The Appeals Chamber considers that, in the case of an international criminal tribunal, this is not a power that can be regarded as inherent to its function.[11]

77.  The Appeals Chamber recalls that the ICTR was established as a measure contributing to the process of national reconciliation in Rwanda and to the restoration and maintenance of peace. Appeals Chamber jurisprudence also reflects that there is indeed strong public interest to conduct proceedings against persons accused of serious international crimes, including genocide and crimes against humanity. Notwithstanding, the Appeals Chamber is mindful that the essential interests of the international community to prosecute individuals charged with serious violations of international humanitarian law must be balanced with the fundamental rights of the accused. This balance must be achieved within the scope of the Mechanism’s mandate.

Page 2

NOTING that – given the urgency of the matter, the imminence of the judgement on the appeals, and in order to not prejudice Stanišić – the substance of the Prosecution response, filed on 30 May 2023, was not considered and the present decision is being issued without awaiting Stanišić’s reply;

15.       With respect to the Trial Chamber’s assessment of Stanišić’s mens rea for joint criminal enterprise liability, the Appeals Chamber notes that the Trial Chamber found that it was not established that Stanišić shared the intent to further the common criminal purpose of the joint criminal enterprise.[1] The proposed additional evidence is, in material respects, cumulative of evidence the Trial Chamber considered in assessing Stanišić’s mens rea as it pertained to the joint criminal enterprise.[2] […] Stanišić does not demonstrate that the Book Excerpts would have compelled a different finding, and he has not demonstrated that, in view of the Prosecution’s appeal seeking to establish his mens rea for joint criminal enterprise liability, the exclusion of the proposed additional evidence would result in a miscarriage of justice in view of the evidence already on the record.[3]

11. […] The Appeals Chamber further recalls that the applicable standard for determining whether an accused is fit to stand trial is that of “meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings”.It is the accused, claiming to be unfit to stand trial, who bears the burden of so proving by a preponderance of the evidence.

12. The non-exhaustive list of capacities to be evaluated when assessing an accused’s fitness to stand trial include the ability to: (i) plead; (ii) understand the nature of the charges; (iii) understand the course of the proceedings; (iv) understand the details of the evidence; (v) instruct counsel; (vi) understand the consequences of the proceedings; and (vii) testify. What is required for an accused to be deemed fit to stand trial is an overall capacity allowing for a meaningful participation in the trial, provided that he is duly represented by counsel.

[…]

20. […] [M]edical diagnoses alone, no matter how numerous, do not suffice to assess an accused’s competency to stand trial.

27. The Appeals Chamber recalls that prior consistent statements cannot be used to bolster a witness’s credibility, except to rebut a charge of recent fabrication of testimony.[1]

65. […] [C]onsidering that “time served” is not among the penalties provided in the Statute and the Rules that may be imposed on a person found guilty of contempt, the Appeals Chamber finds that, by sentencing Fatuma to “time served”, the Single Judge did not impose a permissible sentence. It was incumbent on the Single Judge, when electing to impose a sentence of imprisonment, to first determine the term of imprisonment and then, in accordance with Rule 125(C) of the Rules, give credit for the time that Fatuma had spent in detention in the custody of the Mechanism pending trial. Accordingly, the Appeals Chamber finds, proprio motu, that by not determining a specific term of imprisonment, the Single Judge committed an error in failing to follow the applicable law. […]

84. The Appeals Chamber recalls that the mens rea for a violation under Rule 90(A)(ii) of the Rules is the knowledge that the disclosure in question is in violation of an order of a Chamber or a Single Judge.[1] No demonstration of a “specific intent to interfere with the administration of justice” is required in this respect.[2] The ICTY Appeals Chamber in the Hartmann case accepted the Trial Chamber’s interpretation that:

[I]t is sufficient to establish that the conduct which constituted the violation was deliberate and not accidental. This may be inferred from circumstantial evidence. Where it is established that an accused had knowledge of the existence of a Court order, a finding of intent to violate the order will almost necessarily follow. Wilful blindness to the existence of the order, or reckless indifference to the consequences of the act by which the order is violated may satisfy the mental element. Mere negligence in failing to ascertain whether an order had been made is insufficient.[3]

104. The Appeals Chamber recalls that, pursuant to Rule 104(C) of the Rules, if the single judge finds an accused guilty on one or more of the charges contained in an indictment, he shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently. Neither the Statute nor the Rules vest in the single judge the power to order that a sentence for contempt be served concurrently with a previous sentence imposed on the same accused in separate proceedings under a different indictment before the ICTY, the ICTR, or the Mechanism.

105. In addition, the Appeals Chamber is not persuaded by Ngirabatware’s submission that, similar to the authority to suspend a sentence, the authority to impose a concurrent sentence is part of the single judge’s inherent power to determine the appropriate sentence.[1] The ICTY Appeals Chamber has previously recognized that the decision to suspend a sentence for contempt forms an integral part of a trial chamber’s judicial discretion in the determination of the sentence.[2] However, the power to suspend a sentence for contempt in a single proceeding is distinguishable from the power to order that a sentence for contempt run concurrently with another sentence imposed on the accused in separate proceedings by different judges, concerning unrelated charges under different indictments. The differences are such that the Appeals Chamber cannot accept that the authority to impose a concurrent sentence for contempt is part of the inherent power of the Single Judge in the circumstances of this case.