158. The Appeals Chamber considers that Hartmann appears to submit that, had the Trial Chamber enforced a “strong” presumption in favour of unrestricted publicity, it would have ruled in her favour and permitted her to disclose confidential information pursuant to her freedom of expression rights. The Appeals Chamber considers that there is no merit in Hartmann’s submission. There is no strong presumption of unrestricted publicity for matters a Chamber has ruled are not to be disclosed to the public. This was made clear in the Jović case, in which it was held that:

The effect of a closed session order is to exclude the public, including members of the press, from the proceedings and to prevent them from coming into possession of the protected information being discussed therein. In such cases, the presumption of public proceedings under Article 20(4) of the Statute does not apply. [1]

159. At the heart of Hartmann’s submission is the alleged inconsistency of the Trial Judgement with freedom of expression principles recognised by the ECHR. The Appeals Chamber is not bound by the findings of regional or international courts and as such is not bound by ECtHR jurisprudence.[2]

160. The Appeals Chamber notes that Article 21 of the Statute of the Tribunal mirrors the provisions of Article 14 of the ICCPR.[3] The ICCPR and its commentaries are thus among the most persuasive sources in delineating the applicable protections for freedom of expression in the context of the Tribunal’s proceedings.[4] The Human Rights Committee of the United Nations (“Human Rights Committee”) has interpreted Article 14(1) of the ICCPR to require that courts’ judgements be made public, with “certain strictly defined exceptions.”[5] The Appeals Chamber notes that, although Article 19(2) of the ICCPR states that “[e]veryone shall have the right to freedom of expression,” Article 19(3) recognises that

The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The travaux préparatoires of the ICCPR indicate that the “protection of […] public order” in Article 19(3) was intended to include the prohibition of the procurement and dissemination of confidential information.[7] In respect of whether the restriction to an individual’s freedom of expression is “necessary” to achieve its aim, the Human Rights Committee has considered whether the action taken was proportionate to the sought-after aim.[8]

161. Based upon the foregoing, therefore, in order to legitimately restrict Hartmann’s freedom of expression under Article 19 of the ICCPR, the restriction must have been provided by law and proportionately necessary to protect against the dissemination of confidential information.[9] The two Appeal Decisions in the case of Prosecutor v. Slobodan Milošević contained restrictions on the freedom of expression that were “provided by law” because they were filed confidentially under protective measures granted pursuant to Rule 54 bis of the Rules. Furthermore, restricting Hartmann’s freedom of expression in this manner was both proportionate and necessary because it protected the “public order” by guarding against the dissemination of confidential information. These restrictions were therefore within the ambit of Article 19(3) of the ICCPR.

162. In this regard, the Appeals Chamber observes that the Trial Chamber found that the effect of Hartmann’s disclosure of confidential information decreased the likelihood that states would cooperate with the Tribunal in the future, thereby undermining its ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law.[10] The Trial Chamber further found that prosecuting an individual for contempt under these circumstances was proportionate to the effect her actions had on the Tribunal’s ability to administer international criminal justice.[11] The Appeals Chamber is therefore of the view that the Trial Chamber was correct to conclude that Rule 54 bis of the Rules permits the Tribunal to impose confidentiality in an effort to secure the cooperation of sovereign states.[12] In light of the foregoing, the Appeals Chamber is satisfied that the Trial Chamber adequately took into account all relevant considerations to ensure that its Judgement was rendered in conformity with international law.[13]

163. Hartmann also relies on an Appeals Chamber decision in Brđanin to support her argument that the Trial Chamber erred by failing to consider the public’s right to receive information disclosed by Hartmann in evaluating the proportionality of the interference with her freedom of expression.[14] In the instant case, however, the Appeals Chamber considers that the Trial Chamber did explicitly consider the public’s right to receive information. In evaluating the proportionality of the interference with Hartmann’s freedom of expression, it considered certain factors that were:

salient in weighing the public interests involved: namely, the public interest in receiving the information and the protection of confidential information to facilitate the administration of international criminal justice, which is also in the public interest, indeed, on an international scale.

164. Finally, the Appeals Chamber considers ARTICLE 19’s discussion of national legal standards regarding freedom of expression.[16] While ARTICLE 19 sets out different ways in which domestic jurisdictions address freedom of expression in the context of contempt of court, it cites no jurisprudence to support the position that contempt proceedings for disclosing confidential information in violation of a court order impermissibly restrict an individual’s freedom of expression.

98. The Appeals Chamber considers that, in order to convict Hartmann, the Trial Chamber had to conclude that publishing the confidential information in the Book and Article in violation of a court order was done “knowingly and wilfully”.[1] The Trial Chamber convicted Hartmann in part based upon its finding that “the Chamber is satisfied beyond reasonable doubt that the Accused had knowledge at the time of publication of her Book and the Article that her disclosure was in violation of an order of the Tribunal”.[2] The Appeals Chamber is of the view the Trial Chamber, having made this finding, was under no obligation to also make a finding on whether Hartmann’s actions were “more than negligent”. In the present case, the only criterion that the Trial Chamber had to explicitly consider to establish contempt under Rule 77 of the Rules was whether Hartmann knowingly and wilfully interfered with the Tribunal’s administration of justice.

127. The Appeals Chamber recalls that it is settled jurisprudence that “the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber. Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent”.[3] Insofar as Hartmann contends that the Nobilo Appeal Judgement set out a different standard,[4] she is mistaken; any ambiguity in its analysis of the mens rea required to enter a conviction for contempt has been definitively addressed by later Appeals Chamber judgements.[5]

128. The Trial Chamber set out the mens rea required to enter a conviction for contempt under Rule 77(A)(ii) of the Rules as follows:

The mens rea required [....] is the disclosure of particular information in knowing violation of a Chamber’s order. Generally, it 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.[6]

The Appeals Chamber considers that the Trial Chamber’s analysis of the mens rea required to enter a conviction for contempt was consistent with Appeals Chamber precedent. It correctly found that this precedent does not require the Prosecution to prove specific intent to interfere with the administration of justice in order to secure a conviction under Rule 77(A)(ii) of the Rules.

108. It also follows from the above that the issue of whether there was a real risk to the administration of justice was not a jurisdictional matter. The Appeals Chamber is therefore of the view that the Trial Chamber did not err by refusing to treat this issue as such during the trial.

24. Haradinaj is mistaken in his contention that the Impugned Decision’s finding that the Prosecution may seek the admission of evidence beyond that of the two witnesses who were the focus of the Appeal Judgement undermines principles of law geared to “securing certainty and finality in criminal litigation”.[1] The Muvunyi Decision held that “a retrial […] inherently includes the possibility of hearing evidence that was not presented during the initial proceedings” and underscored that the scope of a retrial is determined “by the Appeals Chamber in a particular instance.”[2] Thus the Appeals Chamber is able to set out the appropriate parameters of a retrial, taking into account the specific context of each case, including whether the retrial follows conviction or acquittal, as well as relevant principles of law.

26. The Appeals Chamber underscores that whether a retrial follows acquittal or conviction is not necessarily insignificant. However the context of each retrial is unique, and the impact of a previous conviction or acquittal can only be addressed by taking into account this individual context. Any potential for undue prejudice to a defendant in a retrial following an acquittal should be addressed through both the Appeals Chamber’s careful delineation of a retrial’s parameters and the Trial Chamber’s continuing duty to apply fair trial principles.[1] In this context, the Appeals Chamber directs the Trial Chamber, when determining the admissibility of evidence in the retrial, to be particularly mindful of any potential prejudice that the admission of new evidence may cause to the fair trial rights of the Accused. Where the Prosecution seeks to introduce evidence that was excluded in prior proceedings, the Trial Chamber should explicitly consider whether re-litigation of this same issue in the retrial would be unduly prejudicial. If such is the case, the evidence must be excluded.

564. Although neither Party raised the issue, the Appeals Chamber notes that the Trial Chamber’s language in rendering its convictions against Renzaho may give the impression that it entered double convictions under Articles 6(1) and 6(3) of the Statute. The Appeals Chamber recalls that it is inappropriate to convict an accused for a specific count under both Article 6(1) and Article 6(3) of the Statute.[1] When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both provisions and the accused could be found liable under both, the Trial Chamber should enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance in sentencing.[2]

565. The Trial Chamber found Renzaho guilty of genocide under Article 6(1) of the Statute for aiding and abetting as well as ordering the killing of Tutsis at roadblocks throughout Kigali from April to July 1994; for aiding and abetting and ordering killings at CELA on 22 April 1994; and for his orders in relation to crimes committed at Sainte Famille on 17 June 1994.[3] The Trial Chamber also found Renzaho “liable” as a superior for these crimes,[4] indicating that it would take this liability into account in sentencing.[5]

566. The Trial Chamber also found Renzaho guilty of murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 6(1) of the Statute for ordering the killing of at least 17 Tutsi men at Sainte Famille church on 17 June 1994.[6] The Trial Chamber found Renzaho “liable” as a superior for these murders as well.[7] The Trial Chamber indicated that it would take Renzaho’s liability as a superior into account in sentencing.[8]

567. In addition, the Trial Chamber found Renzaho guilty of murder as a crime against humanity under Article 6(1) of the Statute for aiding and abetting and ordering the killing of Charles, Wilson, and Déglote Rwanga, who had been removed from CELA on 22 April 1994.[9] The Trial Chamber likewise found Renzaho “guilty” as a superior based on Article 6(3) of Statute, for the killing of Charles, Wilson, and Déglote Rwanga as well as the other mostly Tutsi men removed from CELA on that date.[10] The Trial Chamber indicated in connection with these crimes that it would take Renzaho’s liability as a superior into account in sentencing. [11]

568. While it is clear that the Trial Chamber considered Renzaho’s superior position as an aggravating circumstance,[12] the Appeals Chamber considers that the Trial Chamber should have refrained from using language which is suggestive of double convictions based on both Articles 6(1) and 6(3) of the Statute. Nevertheless, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts where it found him to be “liable” as a superior. Likewise, and despite the unfortunate use of the term “guilty” when finding Renzaho liable as a superior for murder as a crime against humanity for the killings of Charles, Wilson, and Déglote Rwanga, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts.[13]

120. To support its contention that “post-indictment communications” provided Renzaho with clear, consistent, and timely notice, the Prosecution relies on its Pre-Trial Brief and two written statements disclosed in February 2005.[1] However, these documents were filed before the Second Amended Indictment came into force on 16 February 2006.[2]

121. Renzaho contends that the Prosecution Pre-Trial Brief cannot cure a defect in the Indictment, relying on the Karera Appeal Judgement.[3] The Appeals Chamber recalls that in the Karera case, the pre-trial brief, which was filed seven days before the amended indictment, was found to be incapable of curing a particular defect therein relating to a murder charge because, among other things, it was unclear which version of the indictment the pre-trial brief was referring to,[4] creating further confusion.[5]

122. In the present case, the Appeals Chamber notes that the proposed Second Amended Indictment was attached to the Motion to Amend filed on 19 October 2005.[6] On 31 October 2005, the Prosecution filed its Pre-Trial Brief, specifying that “references to the ‘Indictment’ herein are to the proposed Second Amended Indictment”.[7] Further, the Prosecution Pre-Trial Brief and the attached summaries of anticipated witness testimony were clear about which paragraphs of the proposed Second Amended Indictment they referred to.[8] Once the Trial Chamber accepted the Second Amended Indictment on 16 February 2006, nearly one year before the commencement of Renzaho’s trial,[9] its link to the Prosecution Pre-Trial Brief was consolidated. Since there were no subsequent amendments to the Indictment or the Prosecution Pre-Trial Brief, the Appeals Chamber considers that the Prosecution Pre-Trial Brief in this case is capable of curing defects in the Indictment.

123. Turning to whether the Prosecution’s communications in fact cured the defect in the Indictment [in relation to the material facts which must be pleaded in an indictment charging superior responsibility pursuant to Article 6(3) of the Statute], the Appeals Chamber notes that the Prosecution Pre-Trial Brief emphasized that the receipt of reports of rapes from Renzaho’s subordinates constituted his reason to know about the rapes.[10] Although the Prosecution Pre-Trial Brief also noted Renzaho’s encouragement of rapes, it did so in respect of only two of the relevant Counts.[11] The Appeals Chamber further considers that this new element of the Prosecution’s case was not highlighted in a manner sufficient to give clear notice to Renzaho that his encouragement now formed the basis for his criminal liability as a superior.[12] The Prosecution Pre-Trial Brief notably failed to clarify that the Prosecution was relying on Renzaho’s acts of encouragement to infer his mens rea. Absent any indication that Renzaho’s encouragement was the basis for his reason to know about particular rapes, it is difficult to conclude that the Defence would have understood that this material fact was the key element of the Prosecution’s case.

124. Moreover, the Prosecution Pre-Trial Brief did not provide consistent notice that Renzaho’s encouragement of rapes constituted his reason to know, as conceded by the Prosecution on appeal.[13] While the summaries of Witnesses AWO’s and AWN’s anticipated testimony annexed to the Prosecution Pre-Trial Brief describe the circumstances of their rapes and those of Witness AWN’s sister in detail, Witness AWN’s summary attributed Renzaho’s statement encouraging rapes to another individual.[14] It was only during her testimony that Witness AWN clarified that it was Renzaho who made the statement.[15] The Prosecution Pre-Trial Brief and the summary of Witness AWN’s anticipated testimony therefore did not provide the “unambiguous information” required to cure a defect in the Indictment.[16] While the summary of Witness AWO’s anticipated evidence did allege that Renzaho stated that Tutsi women were food for the soldiers,[17] given the ambiguity contained in the Prosecution Pre-Trial Brief concerning the import of Renzaho’s encouragement, the Appeals Chamber finds this one witness statement insufficient to cure the defect in the Indictment.[18]

In footnote 7, the Appeal Chamber held that

[…] In paragraphs 11 and 12 of his Notice of Appeal, Muvunyi alleges that his sentence was not in accordance with established practice and further requests the Appeals Chamber to reduce his sentence in light of any findings which are set aside as not supported by facts or law. Muvunyi does not develop this argument in his Appeal Brief. Instead, he addresses this point in his Respondent’s brief. There, Muvunyi submits that his crime is less egregious than several cases in which the Tribunal has imposed a sentence at or below 15 years of imprisonment and that a sentence of time served adequately serves the ends of justice. See Muvunyi Response Brief, paras. 13-40. Generally, arguments made in support of the Notice of Appeal should be developed in the Appeal Brief. That said, this does not prevent the Appeals Chamber from considering arguments of substantial importance to the appeal developed elsewhere if their exclusion would lead to a miscarriage of justice. See, e.g., Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007, para. 15. In this case, however, Muvunyi’s submissions do not demonstrate any error in his sentence for the same reasons given in relation to the Prosecution’s challenge to the Trial Chamber’s comparative sentencing approach. See infra para. 72.

26. The Trial Chamber also noted the demeanour of the witnesses when confronted with the suggestion that Nteziryayo was not in fact the prefect in May 1994, which, in the Trial Chamber’s view, indicated that “they were confronted with an incorrect recollection rather than a lie.”[1] The assessment of the demeanour of witnesses in considering their credibility is one of the fundamental functions of a Trial Chamber to which the Appeals Chamber must accord considerable deference.[2] The Appeals Chamber has previously noted that it “is loathe to disturb such credibility assessments on review”.[3] The Appeals Chamber further recalls that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.[4] The Appeals Chamber, Judges Liu and Meron dissenting, is not convinced that it was unreasonable for the Trial Chamber, in the circumstances noted above, to have rejected the portion of the witnesses’ accounts relating to Nteziryayo’s position during the meeting as prefect. Consequently, Muvunyi has not shown that the Trial Chamber’s findings are wholly erroneous or that no reasonable trier of fact could have concluded that the meeting described by the Prosecution witnesses occurred in May 1994.[5]

125. […] The Appeals Chamber recalls that a defect in the Indictment, not cured by timely, clear, and consistent notice, constitutes a prejudice to the accused.[1] The defect may only be deemed harmless through a demonstration that the accused’s ability to prepare his or her defence was not materially impaired.[2] When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his or her ability to prepare his or her defence was materially impaired.[3] When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his or her defence was not materially impaired. The Appeals Chamber therefore turns to consider this issue.

126. In the pre-trial stage, Renzaho challenged the Indictment on the basis of vagueness, a challenge that was dismissed by the Trial Chamber.[4] Although Renzaho did not object to Witnesses AWO’s and AWN’s evidence that he encouraged rapes upon the filing of the Prosecution Pre-Trial Brief or at the time of their testimony, the Appeals Chamber considers that Renzaho’s confusion regarding the import of this evidence, discussed below, reasonably explains his failure to object. Further, in his Closing Brief, Renzaho renewed his challenge to the Indictment on the basis that it failed to plead the material facts necessary to establish his superior responsibility.[5] Renzaho also contended that the charges alleging his responsibility for sexual violence were impermissibly vague, and noted that the evidence that he made encouraging statements about rapes was not included in the Indictment.[6] The Appeals Chamber therefore finds that Renzaho raised an adequate objection to the failure to properly plead his reason to know.[7] Consequently, the Prosecution has the burden of establishing that Renzaho’s defence was not materially impaired by the defect in the Indictment.[8]

127. The Appeals Chamber finds that the Prosecution has not met its burden. It notes that, when Witness AWN testified that it was Renzaho who encouraged rapes, rather than another individual, the Defence did not object to the introduction of the new material fact. At the Appeal Hearing, the Defence indicated that it failed to do so because it “did not make the link at that time”[9] and suffered prejudice from the introduction of this new material fact because it did not understand that this evidence was relevant to the charge under Article 6(3) of the Statute.[10] The strategy adopted at trial by the Defence and in particular the cross-examination of Witnesses AWO and AWN convinces the Appeals Chamber that Renzaho understood that he was to defend himself against knowledge of rapes through receipt of reports as pleaded in the Indictment.[11] He was therefore prejudiced by the Prosecution’s failure to cure the defect in the Indictment through adequate notice.

128. The Appeals Chamber also notes with concern that the relevant paragraphs of the Indictment are extremely broad, and fail to specify the dates and locations of the meetings at which Renzaho encouraged the rapes; the dates and locations of the rapes; and the names of the victims. The provision of these material facts only in post-indictment documents impacts upon the ability of the accused to know the case he or she has to meet and to prepare his or her defence,[12] and is particularly troubling when the Prosecution was in a position to include them in the Indictment.[13]