13. […] While stating that States are under a duty to cooperate with the Tribunal at all stages of the procedure under Article 28 of the Statute, the Trial Chamber considered that in the present case, the Registrar had a specific authority to request a State’s cooperation based on his mandate to execute the Tribunal’s decision,[1] and that it could “not conclude that an order requesting the cooperation of Canada is necessary, [finding] on the contrary, that the Canadian Government ha[d] complied with its obligations, in its relations with the Registrar”.[2] The Appeals Chamber thus finds no contradiction in the Decision of the President and the Decision of the Trial Chamber in respect of Article 28 of the Statute.

15. […] The Appeals Chamber finds that the diplomatic initiatives of the Registrar in relation to relocation do not fall within the ambit of the obligation of States to cooperate with the Tribunal under Article 28 of the Statute. Such an obligation pertains solely to the “investigation and prosecution of persons accused of committing serious violations of international humanitarian law”,[3] and hence does not extend to the relocation of acquitted persons. The Appeals Chamber thus finds that, contrary to the President’s Decision and the Trial Chamber’s Decision which both considered requests for cooperation – by a Trial Chamber in the former case and the Registrar in the latter case – with regard to the question whether relocation of acquitted persons fall within the scope of Article 28 of the Statute, there is no legal duty under Article 28 of the Statute for States to cooperate in the relocation of acquitted persons.

19 […] While the Tribunal does not have the ability to direct any State to accept the Appellant on its territory or to fully investigate whether the Appellant’s life or liberty would be at risk should he be returned to Rwanda or to another African country, it has nonetheless a duty to ensure the welfare of the acquitted person, and to that extent, to enquire whether the Appellant’s life or liberty would be at risk upon relocation to a given country. In this regard, the Appeals Chamber notes that, notwithstanding the limitations on the capacity of the Tribunal to secure relocation for the Appellant, the Registrar is continuing his efforts to find a solution to the present situation.[1] As part of such efforts, the Appeals Chamber requests the Registrar to make enquiries with the Office of the United Nations High Commissioner for Refugees and solicit its assistance in relocating the Appellant.

25. As for the proposed testimony of former co-counsel Ms. Chrissa Loukas, the Appellant does not provide any material stemming from her personally relating to the issue of alleged ineffective assistance of former counsel Mr. Nicholas Stewart QC. Nor does the Appellant submit any other documentation from her on the basis of which the Appeals Chamber can determine the potential impact of her possible testimony on the verdict. Rather, the Appellant’s position appears to be that, since Ms. Chrissa Loukas is mentioned in Documents 1–3, she should be given an opportunity to testify on the issues therein.[1] In the Appeals Chamber’s view, this amounts to a fishing expedition and as such falls outside the ambit of Rule 115 of the Rules.[2] The Appellant’s request to call Ms. Chrissa Loukas under Rule 115 of the Rules is therefore dismissed.

26. […] However, these assertions do not clarify whether, and how, the admission of Mr. Alexander Zahar’s proposed testimony is in the interests of justice as being of substantial importance to the success of the appeal to the extent that its exclusion would lead to a miscarriage of justice. Indeed, the Appellant fails to provide any documentation stemming from Mr. Alexander Zahar himself on the basis of which the Appeals Chamber can determine his anticipated testimony’s potential impact on the verdict. The Appellant’s request to call Mr. Alexander Zahar as a witness under Rule 115 of the Rules is accordingly dismissed.

The Appeals Chamber recalled the criteria applicable to the admission of additional evidence on appeal (paras 3-7).

With respect to the working conditions for the Defence in Rwanda, the Appeals Chamber held:

21.    The Appeals Chamber notes that it is unclear how the mechanisms of monitoring and revocation under the Rules would constitute sufficient safeguards for the defence with regard to obtaining documents in a timely manner and visiting detainees. The Appeals Chamber further notes that Article 15 of the Transfer Law, while ensuring Defence Counsel and staff the right to enter and move freely within Rwanda and freedom from search, seizure, arrest or detention in the performance of their legal duties, is silent on the issues of obtaining documents from the Rwandan authorities or visiting detainees. Article 13(4) of the Transfer Law, on the other hand, does provide the right of the Accused to adequate time and facilities to prepare his defence, which could constitute the basis for seeking a remedy before the Rwandan courts. As the Trial Chamber did not make any specific finding that such issues could not be so remedied, however, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that defence teams have experienced impediments in obtaining documents from the Rwandan authorities and in meeting witnesses. The Appeals Chamber considers that these obstacles, whilst not sufficient in and of themselves to prevent referral of a case to Rwanda under Rule 11bis, do indicate that working conditions for the defence may be difficult in Rwanda, which in turn has a bearing on the fairness of the trial.

With regard to the issue of whether the Trial Chamber erred in finding that the Defence might face problems in obtaining witnesses residing inside Rwanda because they will be afraid to testify, the Appeals Chamber held:

26.    The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[1] There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent.[2] The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.[3] The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or even murder.[4] It therefore finds that the Trial Chamber did not err in concluding that Kanyarukiga might face problems in obtaining witnesses residing in Rwanda because they would be afraid to testify.

27.    The Appeals Chamber agrees with the Trial Chamber’s conclusion that the fact that the Rwandan witness protection service is administered by the Office of the Prosecutor General and that threats of harassment are reported to the police does not necessarily render it inadequate.[5] However, it finds that, based on the information before it,[6] the Trial Chamber did not err in finding that witnesses would be afraid to avail themselves of its services for these reasons.

The Appeals Chamber also considered whether the Trial Chamber erred in finding that the Defence will not be able to call witnesses residing outside Rwanda, to the extent and in the manner that will ensure a fair trial:[7]

31.    The Appeals Chamber finds that the Trial Chamber did not err in accepting Kanyarukiga’s assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal,[8] and is supported by information from HRW.[9] The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.[10] It therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, it was not satisfied that Kanyarukiga would be able to call witnesses residing outside Rwanda to the extent and in a manner which would ensure a fair trial if the case were transferred to Rwanda.

32.    With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber recalls its finding in Munyakazi that Rwanda has several mutual assistance agreements with states in the region and elsewhere in Africa, and that agreements have been negotiated with other states as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[11] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters that would make it difficult to secure the attendance of witnesses. Further, the Appeals Chamber reiterates that United Nations Security Council Resolution 1503, calling on all states to assist national jurisdictions where cases have been referred, provides a clear basis for requesting and obtaining cooperation.[12] The Trial Chamber took note of the Resolution, but concluded that it was not convinced that it would be in itself sufficient to ensure the availability of Defence witnesses.[13] Given the finding made above as to the likely difficulty that Kanyarukiga would face in bringing witnesses outside Rwanda to testify in view of the genuine fear they harbour, the Appeals Chamber agrees with the Trial Chamber.

33.    The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony,[14] and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[15]

34.    The Appeals Chamber finds that while the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters, the totality of circumstances indicate that the Trial Chamber was correct in concluding that Kanyarukiga would still face significant difficulties in securing the attendance of witnesses who reside outside Rwanda to the extent and in a manner which would jeopardize his right to a fair trial.

35.    The Appeals Chamber therefore finds that, in light of the above, the Trial Chamber did not err in holding, based on the information before it, that if the case were to be transferred to Rwanda, Kanyarukiga might face difficulties in obtaining witnesses residing within Rwanda because they would be afraid to testify, and that he would not be able to call witnesses residing outside Rwanda, to the extent and in a manner that would ensure a fair trial. The Appeals Chamber therefore dismisses this sub-ground of appeal.

In its “Decision on Appellant Momčilo Krajišnik’s Motion to Call Radovan Karadžić Pursuant to Rule 115” of 16 October 2008 (“Decision”), the Appeals Chamber ordered Krajišnik to file a “summary of facts” upon which Radovan Karadžić would testify in order to give the Prosecution “an adequate opportunity to prepare for its cross-examination of Mr. Karadžić” during the evidentiary hearing.[1] It further considered that the expeditiousness of these proceedings would be advanced by a clarification of the meaning of the “summary of facts” referred to in the Decision an held as follows:

p. 2: CONSIDERING that, in order to provide the Prosecution with an adequate opportunity to prepare its cross-examination of Radovan Karadžić at the Evidentiary Hearing, while the Appellant is not required to set out in the summary of the facts each and every detail of Radovan Karadžić’s anticipated testimony, the summary must precisely indicate the specific factual findings in the abovementioned paragraphs of the Trial Judgement on which Radovan Karadžić is expected to testify, and the main content of his anticipated testimony in relation to these factual findings;

HEREBY GRANTS the request for clarification in the Motion; and

ORDERS the Appellant to include the following information in his summary of the facts on which Radovan Karadžić will testify during the Evidentiary Hearing:

1. The specific factual findings in paragraphs 176-182, 188-189, 893, 987, 994, 1001-1005, 1013, 1078-1119, 1121, and 1123-1124 of the Trial Judgement on which Radovan Karadžić is expected to testify; and

2. The main content of Radovan Karadžić’s anticipated testimony in relation to those factual findings, in particular indicating the new facts and additional evidence Radovan Karadžić is anticipated to give which could have an impact on the verdict.

The Appeals Chamber found that the Motion was filed in a timely manner because the cogent reasons requirement for filing the Motion later than authorised by Rule 115(A) of the Rules was fulfilled given that the potential evidence of Mr. Karadžić was unavailable to the Appellant until 20 August 2008, and he filed his Motion on 15 September 2008, which is within the time limit set out in the Order on Motion to Interview Radovan Karadžić. (para. 14 and fn. 42).

The Appeals Chamber considered whether the Trial Chamber erred in law by holding that Rwanda’s penalty structure, and, in particular, the possibility of life imprisonment in solitary confinement, did not accord with internationally recognized standards and with the requirements of international law. The Appeals Chamber considered, in particular, whether the Trial Chamber erred in relying on the Abolition of Death Penalty Law, rather than the Transfer Law. The Appeals Chamber held:

19. The Appeals Chamber considers that it is not up to the Trial Chamber to determine how these laws could be interpreted or which law could be applied by Rwandan courts in transfer cases. For the reasons provided above, the Appeals Chamber is of the view that it would be possible for courts in Rwanda to interpret the relevant laws either to hold that life imprisonment with special provisions is applicable to transfer cases, or to hold that life imprisonment without special provisions is the maximum punishment. 

20. Since there is genuine ambiguity about which punishment provision would apply to transfer cases, and since, therefore, the possibility exists that Rwandan courts might hold that a penalty of life imprisonment in isolation would apply to such cases, pursuant to the Abolition of Death Penalty Law, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that the current penalty structure in Rwanda is not adequate for the purposes of transfer under Rule 11bisof the Rules. 

The Appeals Chamber considered whether the Trial Chamber had erred in concluding that Rwanda does not respect the independence of the judiciary and that the composition of the High Court of Rwanda does not accord with the right to be tried by an independent tribunal and the right to a fair trial.  The Appeals Chamber held:

26. While the Appeals Chamber shares the Trial Chamber’s concern about the fact that politically sensitive cases, such as genocide cases, will be tried by a single judge, it is nonetheless not persuaded that the composition of the High Court by a single judge is as such incompatible with Munyakazi’s right to a fair trial. The Appeals Chamber recalls that international legal instruments, including human rights conventions, do not require that a trial or appeal be heard by a specific number of judges to be fair and independent.[1] The Appeals Chamber also notes that the Opinion of the Consultative Council of European Judges, which the Trial Chamber cites in support of its finding,[2] is recommendatory only.[3] There is also no evidence on the record in this case that single judge trials in Rwanda, which commenced with judicial reforms in 2004, have been more susceptible to outside interference or pressure, particularly from the Rwandan Government, than previous trials involving panels of judges.

27. The Appeals Chamber also finds that the Trial Chamber erred in considering that Munyakazi’s right to a fair trial would be further compromised as a result of the limited review powers of the Supreme Court. Article 16 of the Transfer Law provides that appeals may be heard on an error on a question of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. This is not an unusual standard of review in appellate proceedings; it is in fact the applicable standard before this Tribunal.[4] There was also no information before the Trial Chamber that would allow it to conclude that the Supreme Court could not re-examine witnesses or make its own findings of fact.

29. Further, the Appeals Chamber finds that the Trial Chamber erred in considering that there was a serious risk of government interference with the judiciary in Rwanda. The Trial Chamber primarily based its conclusion on Rwanda’s reaction to Jean-Bosco Barayagwiza’s successful appeal concerning the violation of his rights, and the reactions of the Rwandan government to certain indictments issued in Spain and France.[5] However, the Appeals Chamber recalls that the Barayagwiza Decision was issued nine years ago. It notes that the Tribunal has since acquitted five persons, and that Rwanda has not suspended its cooperation with the Tribunal as a result of these acquittals. The Appeals Chamber also observes that the Trial Chamber did not take into account the continued cooperation of the Rwandan government with the Tribunal.[6] The Appeals Chamber also considers that the reaction of the Rwandan government to foreign indictments does not necessarily indicate how Rwanda would react to rulings by its own courts, and thus does not constitute a sufficient reason to find that there is a significant risk of interference by the government in transfer cases before the Rwandan High Court and Supreme Court.

30. The only other information referred to by the Trial Chamber in support of its findings relating to the independence of the Rwandan judiciary was the 2007 United States State Department Report cited by the ICDAA in its amicus curiae brief.[7] However, this report states only in very general terms that there are constraints on judicial independence, and “that government officials had sometimes attempted to influence individual cases, primarily in gacaca cases”.[8] The Trial Chamber did not cite any other information supporting its findings relating to the independence of the judiciary, and, notably, did not refer to any information demonstrating actual interference by the Rwandan government in any cases before the Rwandan courts. Moreover, other evidence submitted by the amicus curiae during the referral proceedings concerning interference with the judiciary primarily involved gacaca cases, rather than the High Court or Supreme Court, which will adjudicate the transfer cases, and failed to mention any specific incidents of judicial interference.[9] The Appeals Chamber therefore finds that, based on the record before it, no reasonable Trial Chamber would have concluded that there was sufficient risk of government interference with the Rwandan judiciary to warrant denying the Prosecution’s request to transfer Munyakazi to Rwanda.

The Appeals Chamber also considered whether the Trial Chamber erred in concluding that Munyakazi’s fair trial right relating to the attendance of witnesses cannot be guaranteed in Rwanda at present.  The Appeals Chamber found with respect to witnesses within Rwanda that:

37.  The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[10] The Trial Chamber noted with particular concern the submission from HRW that at least eight genocide survivors were murdered in 2007, including persons who had, or intended, to testify in genocide trials.[11] There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent.[12] The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.[13] The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or being killed. It therefore finds that the Trial Chamber did not err in concluding that it was unlikely that Defence witnesses would feel secure enough to testify in a transferred case.

38. The Trial Chamber further held that there were concerns with respect to the witness protection program in Rwanda.[14] The Appeals Chamber notes that no judicial system can guarantee absolute witness protection.[15] However, it is not persuaded that the Trial Chamber erred in finding that Rwanda’s witness protection service currently lacks resources, and is understaffed. The Appeals Chamber agrees with the Prosecution that the fact that the witness protection service is presently administered by the Office of the Prosecutor General and that threats of harassment are reported to the police does not necessarily render the service inadequate. However, it finds that, based on the information before it, the Trial Chamber did not err in finding that witnesses would be afraid to avail themselves of its services for this reason.[16]

The Appeals Chamber found with respect to witnesses outside Rwanda:

40. The Appeals Chamber finds that the Trial Chamber did not err in accepting Munyakazi’s assertion that most of its witnesses reside outside Rwanda, as this is usual for cases before the Tribunal, and is supported by information from HRW.[17] The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.[18] It therefore finds that the Trial Chamber did not err in concluding, based on information before it, that despite the protections available in Rwandan law, many witnesses residing abroad would fear intimidation and threats.

41. With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber notes that Rwanda has several mutual assistance agreements with states in the region and elsewhere in Africa, and that agreements have been arranged with other states as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[19] Further, the Appeals Chamber notes that United Nations Security Council Resolution 1503, calling on all states to assist national jurisdictions where cases have been transferred, provides a clear basis for requesting and obtaining cooperation.[20] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to secure the attendance or evidence of witnesses from abroad, or the cooperation of other states.

42. The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, it is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony, and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[21]

43. Considering the totality of the circumstances, although the Appeals Chamber finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to secure the attendance or evidence of witnesses from abroad, or the cooperation of other states, it dismisses this sub-ground of appeal.

The Appeals Chamber therefore held that:

45. [...] the Trial Chamber did not err in concluding that Munyakazi’s right to obtain the attendance of, and to examine, Defence witnesses under the same conditions as witnesses called by the Prosecution, cannot be guaranteed at this time in Rwanda. The Appeals Chamber therefore dismisses this ground of appeal.

5. The Trial Chamber has the discretion to decide whether to refer a case to a national jurisdiction and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.[1] As the Appeals Chamber has previously stated:

An appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

These provisions were reiterated verbatim in two subsequent decisions – The Prosecutor v. Gaspard Kanyarugika, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5 and The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-E11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5.