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. […]

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

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).

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]

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]

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.

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] 

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;

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;

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] […]