150. As set out above, the Trial Chamber did not make explicit findings sufficient, on their face, to enter convictions against Markač based on the two alternate modes of liability deemed relevant by the Appeals Chamber.[1] In the absence of such findings, and considering the circumstances of this case, including the full context of the arguments presented by the parties at trial and on appeal, the Appeals Chamber, Judge Agius dissenting, declines to analyse the Trial Chamber’s remaining findings and evidence on the record in order to determine whether Markač’s actions were sufficient to satisfy the elements of alternate modes of liability. To undertake such an investigation in this case would require the Appeals Chamber to engage in excessive fact finding and weighing of evidence and, in so doing, would risk substantially compromising Markač’s fair trial rights.

151. More specifically, the Appeals Chamber recalls that JCE and unlawful artillery attacks have been the central issues in the parties’ arguments since the beginning of this case. The Prosecution’s Pre-Trial[2] and Final Trial[3] Briefs consistently focus on the existence of unlawful attacks and a JCE.[4] On appeal, the Prosecution devoted a single footnote to alternate modes of liability in each of its response briefs[5] and referred to the matter only briefly during oral arguments.[6]

152. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, also notes that JCE and unlawful artillery attacks underpin all of the material findings of the Trial Judgement. Indeed, the Trial Chamber emphasised its focus on JCE by explicitly declining to enter findings on the Appellants’ culpability under alternate modes of liability pled in the Indictment.[7] The Trial Chamber underscored its dependence on unlawful artillery attacks by relying on these attacks as a prism through which to interpret the Appellants’ other relevant actions, explicitly stating that it was considering the Appellants’ actions “[i]n light” of its finding that they had ordered unlawful artillery attacks.[8] More broadly, the Trial Chamber repeatedly recalled the existence of unlawful attacks in framing its discussion of Markač’s liability.[9]

153. In these circumstances, any attempt by the Appeals Chamber to derive inferences required for convictions under alternate modes of liability would require disentangling the Trial Chamber’s findings from its erroneous reliance on unlawful artillery attacks, assessing the persuasiveness of this evidence, and then determining whether Markač’s guilt was proved beyond reasonable doubt in relation to the elements of a different mode of liability. Such a broad-based approach to factual findings on appeal risks transforming the appeals process into a second trial. 

154. The Appeals Chamber observes that in the context of this case, drawing the inferences needed to enter convictions based on alternate modes of liability would also substantially undermine Markač’s fair trial rights, as he would not be afforded the opportunity to challenge evidence relied on by the Appeals Chamber to enter additional convictions. The Appeals Chamber notes that Markač was provided the opportunity to discuss whether the Trial Chamber’s findings implicate alternate forms of liability.[10] However the scope of this additional briefing did not extend to challenging evidence presented to the Trial Chamber.[11] Even if the Appeals Chamber had exceptionally authorised Markač to challenge evidence not related to his convictions, the very large scale of potentially relevant evidence on the record would render any submissions by Markač voluminous and speculative. In addition, Markač would almost certainly have been left uncertain about the scope of the case against him on appeal.[12]

48. The Appeals Chamber is also not persuaded that the Trial Chamber’s assessment of the accuracy of the HV’s weaponry and its application of these findings to each identifiable impact site involved information which should have been pled in the Indictment. The Trial Chamber’s approach to assessing the evidence is not a material fact of the crimes charged.[1] It was also not incumbent on the Trial Chamber to make findings on relevant evidence during the course of the trial or to put any such findings to various witnesses for comment.

61. […] The Appeals Chamber finds that there was a need for an evidentiary basis for the Trial Chamber’s conclusions, particularly because these conclusions relate to a highly technical subject: the margin of error of artillery weapons in particular conditions. However, the Trial Chamber adopted a margin of error that was not linked to any evidence it received; this constituted an error on the part of the Trial Chamber. The Trial Chamber also provided no explanation as to the basis for the margin of error it adopted; this amounted to a failure to provide a reasoned opinion, another error. […]

64. The Appeals Chamber recalls that the Trial Chamber considered a number of factors in assessing whether particular shells were aimed at targets that offered a definite military advantage,[1] including the broad spread of individual artillery impact sites and the number of projectiles falling far from identified artillery targets.[2] However, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, finds that the distance between a given impact site and one of the artillery targets identified by the Trial Chamber was the cornerstone and the organising principle of the Trial Chamber’s Impact Analysis.[3] In each of the Four Towns, the Trial Chamber found at least one target which the HV could have believed possessed military advantage.[4] With no exceptions, it concluded that impact sites within 200 metres of such targets were evidence of a lawful attack, and impact sites beyond 200 metres from such targets were evidence of an indiscriminate attack.[5] The Appeals Chamber recalls that it has found that the Trial Chamber failed to provide a reasoned opinion in deriving the 200 Metre Standard,[6] a core component of its Impact Analysis.[7] In view of this legal error, the Appeals Chamber will consider de novo the remaining evidence on the record to determine whether the conclusions of the Impact Analysis are still valid.[8]

259. The Appeals Chamber observes that this is the first time that it has been called upon to adjudicate the issue of whether an accused can be convicted both of genocide and conspiracy to commit genocide. The Appeals Chamber recalls that convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other.

260. The Appeals Chamber recalls that genocide and conspiracy to commit genocide are distinct crimes under Articles 2(3)(a) and 2(3)(b) of the Statute. As the Trial Chamber correctly observed, the crime of genocide has a materially distinct actus reus from the crime of conspiracy to commit genocide and both crimes are based on different underlying conduct. The crime of genocide requires the commission of one of the enumerated acts in Article 2(2) of the Statute, while the crime of conspiracy to commit genocide requires the act of entering into an agreement to commit genocide.The Appeals Chamber finds that the Trial Chamber did not err in concluding that the crimes are distinct and that the conduct underlying each crime is not the same.

261. […T]he Appeals Chamber considers that a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person. Accordingly, the Appeals Chamber finds, Judge Agius dissenting, that by convicting Gatete only of genocide while he was also found criminally responsible for conspiracy to commit genocide, the Trial Chamber failed to hold him responsible for the totality of his criminal conduct, which included entering into the unlawful agreement to commit genocide.

262. […] The Appeals Chamber recalls that criminalising conspiracy to commit genocide, as an inchoate crime, aims to prevent the commission of genocide. However, the Appeals Chamber considers that another reason for criminalising conspiracy to commit genocide is to punish the collaboration of a group of individuals resolved to commit genocide. The danger represented by such collaboration itself justifies the incrimination of acts of conspiracy, irrespective of whether the substantive crime of genocide has been committed. Thus, the Appeals Chamber finds, Judge Agius dissenting, that the inchoate nature of the crime of conspiracy does not obviate the need to enter a conviction for this crime when genocide has also been committed by the accused, since the crime of genocide does not punish the agreement to commit genocide.

263. Finally, the Trial Chamber inferred from the evidence establishing that Gatete participated in a joint criminal enterprise that he also entered into an agreement to commit genocide. On this basis, it found that entering a conviction for the crime of genocide would render a conviction for conspiracy redundant. The Appeals Chamber recalls that conspiracy to commit genocide is a crime under the Statute, while joint criminal enterprise is a form of criminal responsibility. The Appeals Chamber considers, Judge Agius dissenting, that a comparison of the evidence underpinning these two elements is irrelevant when deciding whether convictions can be entered for both crimes of genocide and conspiracy to commit genocide, as the issue of cumulative convictions arises only between crimes.

125. The Appeals Chamber recalls that two testimonies corroborate one another when one prima facie credible testimony is compatible with the other prima facie credible testimony regarding the same fact or a sequence of linked facts. It is not necessary that both testimonies be identical in all aspects or describe the same fact in the same way.

126. The Appeals Chamber finds that it was reasonable for the Trial Chamber to find thematic consistencies between the accounts of Witnesses BBP, BVS, and BBJ, “in particular, that Gatete came to the parish prior to 11 April, spoke to gendarmes, who witnesses recalled had guarded the parish, and also spoke to the two priests at the parish.”[3] The Appeals Chamber is of the view that it was not necessary that all witnesses described the same visit by Gatete and corroborated each other in this respect for the Trial Chamber to find that Gatete had come to the parish prior to 11 April 1994. That the witnesses may have described different visits does not undermine the conclusion that their accounts were compatible on the fact that Gatete was seen at the parish before 11 April 1994.

205. […T]he Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others. It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.

54. The Appeals Chamber recalls that the Trial Chamber has the discretion to decide whether a site visit is necessary or relevant in the assessment of evidence.[1] As such, the Appeals Chamber considers that the determination of the itinerary is also within the discretion of the Trial Chamber.

23. The Appeals Chamber considers that the Trial Chamber erred in finding that the length of Gatete’s pre-trial detention was not undue, given that it explicitly noted that the conduct of the Prosecution and the relevant authorities resulted in instances of pre-trial delay that could not be explained or justified.[1] By identifying such instances of pre-trial delay, the Appeals Chamber considers that the Trial Chamber itself ipso facto recognised that the conduct of the Prosecution and the relevant authorities unduly prolonged Gatete’s pre-trial detention. The Trial Chamber’s subsequent conclusion that “the delay was not undue” is thus incompatible with its prior acknowledgement that there were various pre-trial delays that could not be explained or justified. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in its assessment of the delays occasioned by the conduct of the Prosecution and the relevant authorities.

286. The Appeals Chamber recalls that any violation of a person’s rights entails the provision of an effective remedy pursuant to Article 2(3)(a) of the International Covenant on Civil and Political Rights of 1966. It is satisfied that a term of years, being by its nature a reduced sentence from that of life imprisonment, is the appropriate remedy for the violation of Gatete’s rights. In determining an appropriate remedy, the Appeals Chamber recalls its finding that Gatete has failed to demonstrate that he was prejudiced in either the preparation or the presentation of his case.

287. Having considered the gravity of the crimes for which Gatete’s convictions have been upheld and taking into account the violation of his rights, the Appeals Chamber sets aside Gatete’s sentence of life imprisonment and concludes that his sentence should be reduced to a term of 40 years’ imprisonment.

154. The Appeals Chamber recalls that, while a witness’s status as an accomplice does not render his or her evidence unreliable per se,[1] a trial chamber must exercise appropriate caution in assessing his or her evidence.[2]

14.     An appellant “may” file a reply within four days of the filing of the response.[1] […]

15.     […] Moreover, the Appeals Chamber considers that striking the Reply Brief does not run counter to the interests of justice in the same manner as striking the Appeal Brief would in this case.[2] In this context, the Appeals Chamber considers that a reply is an optional filing and finds that it is not necessary to the consideration of this appeal. In view of the foregoing, the Appeals Chamber grants the Motion to Strike and shall not consider the Reply Brief.

16.     The Appeals Chamber emphasises that procedural time-limits are to be respected as they are indispensable to the proper functioning of the Mechanism.[3] Violations of time-limits, unaccompanied by any showing of good cause, will not be tolerated.[4] The Appeals Chamber warns Duty Counsel that failure to respect filing deadlines may result in a determination that Duty Counsel is ineligible to represent an accused or suspect before the Mechanism.[5]