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.

The Appeals Chamber considered whether persons hors de combat were within the term “civilian” in Article 5 of the Statute. It then considered whether a person hors de combat could be otherwise a victim of a crime under Article 5.

303. The second issue raised by the Prosecution is whether the condition under the chapeau of Article 5 of the Statute – that the attack be directed against a civilian population – also requires that all victims of each individual crime under Article 5 have civilian status, and in particular, whether the chapeau excludes persons hors de combat who are present within the civilian population from constituting victims of a crime against humanity. […]

The Appeals Chamber considered the Kunarac et al. Appeal Judgement, para 91, and said:

305. When dealing with the expression “directed against any civilian population”, the Tribunal has interpreted it as requiring “that the acts be undertaken on a widespread or systematic basis”.[1] [… On] the face of it, the requirement that the acts of an accused must be part of a widespread or systematic attack directed against any civilian population does not necessarily imply that the criminal acts within this attack must be committed against civilians only. The chapeau rather requires a showing that an attack was primarily directed against a civilian population, rather than “against a limited and randomly selected number of individuals.”[2]

The Appeals Chamber referred to relevant interpretative sources, including the Reports of the Secretary-General recommending the establishment of the Tribunal and of the Commission of Experts Established Pursuant to Security Council Resolution 780. It then concluded:

313. Under Article 5 of the Statute, a person hors de combat may thus be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population. Further, the Appeals Chamber is satisfied that the commission of crimes under Article 5 of the Statute against persons hors de combat attracted individual criminal responsibility under customary international law at the time of the commission of the offences. Therefore, the principle of nullum crimen sine lege is not violated.[3]

314. On the basis of the above, the Appeals Chamber finds that the Trial Chamber erred in finding that, under Article 5 of the Statute, persons hors de combat are excluded from the ambit of crimes against humanity when the crimes committed against them occur as part of a widespread or systematic attack against the civilian population. Provided this chapeau requirement is satisfied, a person hors de combat may be a victim of crimes against humanity.

Martić claimed that his actions were in response to persecution of the Serb population by the Croatian authorities.  Accordingly, he submitted defences of reciprocity or tu quoque; reprisal; and self-defence. 

Martić claimed reprisal in respect of the shelling of Zagreb.  The Appeals Chamber upheld the Trial Chamber’s finding that the two requirements for reprisal – (i) the actions in question were a valid measure of last resort and (ii) a formal warning had been given to the other side – were not met.

263. On the question of reprisals, the Trial Chamber first recalled that a belligerent reprisal is an otherwise unlawful act rendered lawful by the fact that it is made in response to a violation of international humanitarian law by another belligerent.[1] It stated that a reprisal is subject to strict conditions and is only to be used as an exceptional measure.[2] Moreover, the Trial Chamber held that, even if Croatian units had committed serious violations of international humanitarian law as alleged by Martić, two of the other conditions that justify a reprisal would not have been met. First, the shelling was not a measure of last resort, because peace negotiations were conducted during Operation Flash until 3 May 1995.[3] Second, the RSK authorities had not formally warned the Croatian authorities before shelling Zagreb.[4] As a result, the Trial Chamber held that the shelling of Zagreb was illegal because it was not shown that the conditions justifying a reprisal had been met.[5]

At paras. 265-267 the Appeals Chamber held that Martić had failed to show that the Trial Chamber erred in interpreting the evidence in relation to the two conditions.

The Appeals Chamber found that a statement admitted pursuant to Rule 92 bis may only be used as the sole basis for a conviction when the accused was provided a chance to cross-examine the witness in question.

FN486. [… The] Trial Chamber admitted this witness statement under Rule 92 bis of the Rules, without providing Martić the opportunity to cross-examine the witness in question.[1] As noted above, much of the findings in relation to the crimes in Cerovljani […] depend exclusively on this statement, with no corroboration. Thus, this evidence is pivotal to Martić’s responsibility and, lacking sufficient corroboration, Martić should have been granted the opportunity to cross-examine the witness in question.[2] The Appeals Chamber finds that the failure to accord Martić a right to cross-examine this witness constitutes a miscarriage of justice and accordingly his convictions for the crimes in Cerovljani would have been reversible on this ground, too.

The Trial Chamber found that the crimes of deportation and inhumane acts, as underlying acts of persecution, fell under the common purpose alleged (JCE1) and that all other charges were outside the common purpose. Accordingly, they were dealt with under JCE3 as a natural and foreseeable consequence of the common plan.

The Appeals Chamber upheld the application of the third category of JCE.

83. […] For a finding of responsibility under the third category of JCE, it is not sufficient that an accused created the conditions making the commission of a crime falling outside the common purpose possible; it is actually necessary that the occurrence of such crime was foreseeable to the accused and that he willingly took the risk that this crime might be committed. […]

84. Turning to Martić’s claim that the third category of JCE is controversial as it “lowers the mens rea required for commission of the principal crime without affording any formal diminution in the sentence imposed”,[1] the Appeals Chamber recalls that it has already found that “in practice, this approach may lead to some disparities, in that it offers no formal distinction between JCE members who make overwhelmingly large contributions and JCE members whose contributions, though significant, are not as great.”[2] It is up to the trier of fact to consider the level of contribution – as well as the category of JCE under which responsibility attaches – when assessing the appropriate sentence, which shall reflect not only the intrinsic gravity of the crime, but also the personal criminal conduct of the convicted person and take into account any other relevant circumstance. This argument thus stands to be rejected.