9. The Appeals Chamber recalls that the International Tribunal, pursuant to Rule 77 of the Rules and in accordance with the International Tribunal’s consistent jurisprudence, possesses the inherent power to address conduct interfering with its administration of justice. The International Tribunal has both the subject matter and personal jurisdiction to prosecute contempt.

16. The Appeals Chamber stresses once again that time-limits in the Rules must be observed. Finality is an important component of any criminal trial. Parties cannot reopen the proceedings at will. As the ICTR Appeals Chamber held in The Prosecutor v. Kayishema and Ruzindana, rejecting the entire appeal lodged by the Prosecution in that case:

Procedural time-limits are to be respected, … they are indispensable to the proper functioning of the Tribunal and the fulfilment of its mission to do justice. Violations of these time-limits, unaccompanied by any showing of good cause, will not be tolerated.[1]

The Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115:

5. Rule 115 of the Rules provides a mechanism for admission of additional evidence on appeal where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial.[1] According to Rule 115(A) of the Rules, a motion for additional evidence shall clearly identify with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed. In addition, Rule 115(B) of the Rules provides that the additional evidence must not have been available at trial and must be relevant and credible. When determining the availability at trial, the Appeals Chamber will consider whether the party tendering the evidence has shown that it sought to make “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence […] before the Trial Chamber.” Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 115(B) of the Rules whether it could have been a decisive factor in reaching the decision at trial.

6. Furthermore, in accordance with established jurisprudence, where the proffered evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the Appeals Chamber may still allow it to be admitted on appeal provided the moving party can establish that its exclusion would amount to a miscarriage of justice.[3] That is, it must be demonstrated that had the additional evidence been adduced at trial, it would have had an impact on the verdict.[4]

The Appeals Chamber also noted, in footnote 24, that:

The Appeals Chamber notes that a party seeking the admission of additional evidence on appeal must provide to the Appeals Chamber the evidence sought to be admitted to allow it to determine whether the evidence meets the requirements of relevance and credibility. See Muvunyi Decision, para. 8; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Leave to Present Additional Evidence Pursuant to Rule 115, 5 May 2006, para. 18; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Hassan Ngeze’s Motion for Leave to Present Additional Evidence, 14 February 2005, p. 3. See also Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, “Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to Be Taken Pursuant to Rule 94(B)”, 8 May 2001, para. 5.

It therefore held that:

9. The affidavits that Kanyarukiga seeks to have admitted may be relevant to establishing that the witnesses’ fear about testifying is not simply subjective, but that there is evidence of actual interference by the Rwandan security services in the administration of justice, and thus that the Trial Chamber erred in finding that witnesses will not generally face risks if they testify. However, Kanyarukiga has not attached the affidavits to his Motion, nor has he described the content of these affidavits in sufficient detail which would allow the Appeals Chamber to assess whether they are relevant to demonstrating actual interference in the administration of justice, or whether they simply address the witnesses’ subjective fears, which would be relevant only in the sense of supporting the Trial Chamber’s findings rather than in showing that it erred. The Appeals Chamber also does not have enough information to assess the credibility of the affidavits.

The Appeals Chamber held that although Rwanda had been granted leave to appear as an amicus curiae during the referral proceedings, Rwanda proposed to make submissions on matters not covered by the amicus curiae brief it submitted during those proceedings. At page 3, the Appeals Chamber granted Rwanda’s request, on the following basis:

RECALLING that the Appeals Chamber granted Rwanda permission to file an amicus curiae brief in Munyakazi on the basis that Rwanda had a practical interest in the determination of the appeal, and that the Appeals Chamber would be assisted in the determination of the appeal by further amicus curiae submissions from Rwanda on issues relevant to the determination of the appeal;[1]

CONSIDERING that Rwanda also has a practical interest in the determination of the appeal in this case;

CONSIDERING that the issues identified by Rwanda in the Motion as matters about which it could provide further detail are relevant to the determination of the appeal and that the Appeals Chamber may therefore be assisted by further amicus curiae submissions from Rwanda;

20. An indictment lacking this precision is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, the principle that a defect in an indictment may be cured is not without limits. In this respect, the Appeals Chamber has previously emphasized:

[T]he “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[2]

While the Appeals Chamber has previously held that a pre-trial brief can, in certain circumstances, cure a defect in an indictment,[3] the circumstances presented in this instance are different. The Pre-Trial Brief and the annexed witness summaries do not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the Pre-Trial Brief and the annexed witness summaries expand the charges specifically pleaded in the Indictment by charging additional attacks involving ESO Camp soldiers, based on superior responsibility, other than the one specifically mentioned in paragraph 3.29 of the Indictment. This does not amount to clear and consistent notice adding specificity to a vague paragraph; rather it is a de facto amendment of the Indictment.

26. The Prosecution’s contention that the variances between the Indictment and the evidence at trial are minor or that any resulting defect was cured fails to address the fundamental problem with paragraph 3.29 of the Indictment and the related conviction: the paragraph is not vague; it specifically alleges a different event and form of criminal conduct from the one for which Muvunyi was convicted by the Trial Chamber. The differences in the dates as well as the nature of the attack (abductions from the hospital and killings elsewhere versus separations and killings at the hospital), in addition to Muvunyi’s alleged role, underscore this point. Paragraph 3.29 of the Indictment, therefore, did not properly inform Muvunyi of the material facts for the crime for which he was ultimately convicted.

155. The Prosecution’s contention that any defect in the Indictment was cured by the Schedule of Particulars and the summaries of anticipated testimony annexed to its Pre-Trial Brief fails to address the fundamental problem with Count 5 of the Indictment: the count is not vague; it is narrowly tailored and charges the crime of other inhumane acts as a crime against humanity based on one specific event which is described in paragraph 3.44 of the Indictment. By adding paragraph 3.47 of the Indictment as support for Count 5 in the Schedule of Particulars, the Prosecution essentially amended the Indictment and expanded the charge of other inhumane acts as a crime against humanity from a single event alleged in paragraph 3.44 where ESO Camp soldiers allegedly prevented wounded refugees from going to the Butare University Hospital to acts of cruel treatment by ESO and Ngoma Camp soldiers during every event alleged in the Indictment as pleaded in paragraph 3.47.

156. As noted above, the Indictment does not list paragraph 3.47 in support of any count. The Appeals Chamber has previously observed in this case that the Prosecution’s failure to expressly state that a paragraph in the Indictment supports a particular count in the Indictment is indicative that the allegation is not charged as a crime.[4] The Appeals Chamber therefore considers that the mistreatment underlying Muvunyi’s conviction for other inhumane acts as a crime against humanity was not charged in his Indictment. The omission of a count or charge from an indictment cannot be cured by the provision of timely, clear, and consistent information.[5]

The Appeals Chamber ordered a retrial for one count of direct and public incitement to commit genocide:

148. These aggregate errors in addressing the apparently inconsistent testimony of Witnesses YAI, CCP, and MO78 prevent the Appeals Chamber from determining whether the Trial Chamber assessed the entire evidence on this point exhaustively and properly. In such circumstances, the Appeals Chamber is forced to conclude that Muvunyi’s conviction for direct and public incitement to commit genocide on the basis of his alleged speech at the GikoreTradeCenter is not safe and, accordingly, quashes it. The Appeals Chamber further finds that the present situation gives rise to appropriate circumstances for retrial pursuant to Rule 118(C) of the Rules, limited to the allegations considered under this ground of appeal. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. In the present situation, the Appeals Chamber is well aware that Muvunyi has already spent over eight years in the Tribunal’s custody. At the same time, the alleged offence is of the utmost gravity and interests of justice would not be well served if retrial were not ordered to allow the trier of fact the opportunity to fully assess the entirety of the relevant evidence and provide a reasoned opinion. 

With respect to the exercise of the applicant’s and counsel’s duty to act with due diligence in relation to the availability of evidence at trial, the Appeals Chamber recalled:

 5. For additional evidence to be admissible under Rule 115 of the Rules it must satisfy the following requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant’s duty to act with reasonable diligence includes making “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.”[2] With respect to the exercise of counsel’s due diligence during trial the Appeals Chamber recalls its finding in Tadić that

[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence. The determination which the Chamber has to make, except in cases where there is evidence of gross negligence, is whether the evidence was available at the time of trial. Subject to that exception, counsel’s decision not to call evidence at trial does not serve to make it unavailable.[3]

The Applicant argued that a number of documents he sought to be admitted on appeal were not tendered into evidence at trial due to oversight by his former Counsel. When considering whether these documents were unavailable to the Applicant at trial, the Appeals Chamber first analysed documents which could demonstrate Counsel’s incompetence to conduct the defence:

12. With respect to the alleged unavailability at trial of the statements in document 69-K-0005, the Appeals Chamber recalls that a defence counsel has the duty to act with reasonable diligence to bring evidence on behalf of an accused before the Trial Chamber.[4] The information contained in the four statements could be considered as having been available at trial, because it could have been gathered with reasonable diligence.[5] However, failure of Counsel to exercise due diligence in order to obtain documents which could demonstrate his own incompetence to conduct the defence should not be to the detriment of the Appellant.[6] Moreover, whether or not the Appellant himself had a duty to act with reasonable diligence to make the Trial Chamber aware of the information contained in the four statements, the Appeals Chamber considers that in his oral request for self-representation at trial, the Appellant stated that his Defence team was unable to assist him because of the conditions prevailing at the time, adding that if the Trial Chamber wished that he provide more detailed explanations, he would gladly do so.[7] However, he was never requested to do so. In light of these circumstances, the Appeals Chamber finds that the information contained in the four statements was unavailable to the Appellant at trial. Consequently, they can be admitted if they are relevant, credible and could have had an impact on the verdict had they been considered at trial.

        […]

18. In addition, it appears that the Trial Chamber was never fully informed of the Appellant’s complaints regarding his former Counsel. […]

19. The Appeals Chamber considers that, as a general principle, an accused’s right to a fair trial is infringed when counsel admittedly does not understand the case of his client and fails to prepare a proper defence strategy. […]

 The Appeals Chamber then analysed the documents which were not aimed at proving the alleged incompetence of Counsel to conduct the defence:

21. As previously noted, the Appellant argues in relation to a number of documents that his former Counsel failed to tender them as evidence at trial, although for many of them the Appellant told him to do so.[8] The Appeals Chamber will only consider these documents as being unavailable at trial where the Appellant can show gross negligence of Counsel.[9]

22. The Appeals Chamber considers that […].it does not necessarily follow that former Counsel acted with gross negligence in all the respects now alleged. Indeed, “[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence”.[10] Moreover, the Appellant does not substantiate his assertion that the documents at issue were unavailable at trial beyond bare assertions that former Counsel failed to tender them. Therefore, he fails to sufficiently demonstrate that these documents were unavailable at trial. As such, the other admissibility criteria being met, they will only be admitted if the Appellant can show that they would have affected the verdict.

The Appeals Chamber found that a statement made by Radovan Karadžić and given to one of the Applicant’s investigators lacked credibility for the purposes of Rule 115:

108. With respect to the statement’s credibility, the Appeals Chamber notes that according to the Appellant, “it was impossible to get in direct contact with Mr Karadžić”.[1] Apart from this reference, the Appellant provides no further information as to the circumstances under which this document was produced and how it was communicated to him. As a result, the Appeals Chamber finds that 33-K-0088 is still of dubious credibility. The Appeals Chamber notes that it is yet unknown whether Radovan Karadžić will provide evidence in relation to the credibility of his alleged statement. Therefore, the Appeals Chamber dismisses the request to have the statement admitted at this juncture. This is, however, without prejudice to any renewed request to admit it in the context of a potential motion under Rule 115 of the Rules relating to evidence by Radovan Karadžić.[2]

16. The Appeals Chamber considers that in finding that it did not have sufficient elements “to determine” whether Vučič committed contempt of the Tribunal, based on the conclusions of the amicus curiae that the mental element of contempt had not been “establish[ed]” and that it would have to be “proven” that Vučič had effective knowledge that [redacted] was a protected witness, the Trial Chamber required a final finding of contempt. The Appeals Chamber recalls, however, that the “sufficient grounds” standard under Rule 77(D) of the Rules requires the Trial Chamber only to establish whether the evidence before it gives rise to a prima facie case of contempt of the Tribunal and not to make a final finding on whether contempt has been committed.[1] The Appeals Chamber accordingly finds that the Trial Chamber applied an incorrect legal standard when considering the Prosecution Request, which amounts to a discernible error.

The Appeals Chamber granted the Appeal in part and remanded the Impugned Decision to consider whether sufficient grounds existed to proceed against Vučič for contempt in light of the correct legal standard.

326. The Trial Chamber defined the crime of devastation not justified by military necessity (Count 4) as follows: (a) destruction or damage of property on a large scale; (b) the destruction or damage was not justified by military necessity; and (c) the perpetrator acted with the intent to destroy or damage the property or in the knowledge that such destruction or damage was a probable consequence of his acts.[1] The Trial Chamber further determined that the elements of the crime of unlawful attacks on civilian objects (Count 5) were: (a) an attack directed against civilian objects; (b) causing damage to the civilian objects; and (c) conducted with the intent of making the civilian objects the object of the attack.[2] Finally, regarding the crime of destruction of, or willful damage to cultural property (Count 6), the Trial Chamber ruled that an act fulfills the elements of this crime if (a) it has caused damage or destruction to property which constitutes the cultural or spiritual heritage of peoples; (b) the damaged or destroyed property was not used for military purposes at the time when the acts of hostility directed against these objects took place; and (c) the act was carried out with the intent to damage or destroy the property in question.[3] The Appeals Chamber notes that the Trial Chamber’s definitions of the elements of the crimes are not contested by either of the Parties.[4]

[…]

328. The Appeals Chamber holds that the Trial Chamber’s application of the Čelebići test is correct. First, the Appeals Chamber finds that the definition of the crime of unlawful attacks on civilian objects (Count 5) contains a materially distinct element not present in either the crime of devastation not justified by military necessity (Count 4) or the crime of destruction of, or willful damage to cultural property (Count 6): the requirement of proof of an attack directed against civilian objects.[5] Although the commission of the latter two crimes may, as suggested by Strugar, imply an attack, this is not a legal element of either crime, which is the proper focus of the Čelebići test on cumulation.[6] Therefore, the Trial Chamber rightly concluded that Count 5 contains a materially distinct element not present in the two other Counts.

329. Second, the Appeals Chamber agrees with the Trial Judgement that Count 6 is the only one to contain the element that the damage or destruction must have been carried out against property which constitutes the cultural or spiritual heritage of peoples. In this regard, the Trial Chamber followed the approach taken in previous cases, that

[t]he offence of destruction or willful damage to institutions dedicated to religion overlaps to a certain extent with the offence of unlawful attacks on civilian objects except that the object of the offence of destruction or willful damage to institutions dedicated to religion is more specific.[7]

Whereas cultural property is certainly civilian in nature,[8] not every civilian object can qualify as cultural property. Therefore, the Trial Chamber rightly concluded that Count 6 contains a materially distinct element not present in the two other Counts.

330. Third, the Trial Chamber stated that the non-justification by military necessity is only an element of the crime of devastation not justified by military necessity (Count 4). The Appeals Chamber agrees that, in line with previous jurisprudence,[9] the element of the non-justification by military necessity present in the crime of devastation not justified by military necessity (Count 4) is indeed not present in the crime of attack against civilian objects (Count 5). The Appeals Chamber also agrees that military necessity is not an element of the crime of destruction of, or damage to cultural property (Count 6). While the latter’s requirement that the cultural property must not have been used for military purposes may be an element indicating that an object does not make an effective contribution to military action in the sense of Article 52(2) of Additional Protocol I, it does not cover the other aspect of military necessity, namely the definite military advantage that must be offered by the destruction of a military objective. Therefore, the Trial Chamber rightly concluded that military necessity was a materially distinct element distinguishing Count 4 from Counts 5 and 6.

331. Finally, the Appeals Chamber agrees with the Trial Chamber’s finding that Count 4 was the only one requiring proof that the devastation must have occurred on a large scale.

332. In light of the above, the Appeals Chamber finds that the Trial Chamber correctly concluded that the offences charged under Counts 4, 5 and 6 each contain materially distinct elements from one another, but erred in failing to enter cumulative convictions for Counts 4, 5 and 6 of the Indictment against Strugar. The Appeals Chamber revises the Trial Judgement accordingly and enters a conviction under Counts 4 and 5 respectively.