On the basis of its review of multiple relevant sources,[1] the Appeals Chamber concluded:

107. It clearly emerges from the aforementioned concurring instruments and jurisprudence that, however firmly the right of the accused to be tried in his presence may be established in international law, that did not, on 23 October 2000, preclude the beneficiary of such right from refusing to exercise it.[2] Insofar as it is the accused himself who chooses not to exercise his right to be present, such waiver cannot be assimilated to a violation by a judicial forum of the right of the accused to be present at trial. Such right is clearly aimed at protecting the accused from any outside interference which would prevent him from effectively participating in his own trial; it cannot be violated when the accused has voluntarily chosen to waive it.

109. Pursuant to the foregoing case-law, the Appeals Chamber concludes that waiver by an accused of his right to be present at trial must be free and unequivocal (though it can be express or tacit) and done with full knowledge.[3] In this latter respect, the Appeals Chamber finds that the accused must have had prior notification as to the place and date of the trial, as well as of the charges against him or her. The accused must also be informed of his/her right to be present at trial and be informed that his or her presence is required at trial. The Appeals Chamber finds further that, where an accused who is in the custody of the Tribunal decides voluntarily not to be present at trial, it is in the interests of justice to assign him or her Counsel in order, in particular, to guarantee the effective exercise of the other rights enshrined in Article 20 of the Statute.[4] Moreover, Rule 82 bis of the Rules, which allows the Trial Chamber to adjust the proceedings where an accused has refused beforehand to be present during his or her trial, also imposes such conditions.[5]

116. In light of the foregoing, the Appeals Chamber finds that Appellant Barayagwiza freely, explicitly and unequivocally expressed his waiver of the right to be present during his trial hearings, after he had been duly informed by the Trial Chamber of the place and date of the trial, of the charges laid against him, of his right to be present at those hearings, and that his presence was required. At this stage of the analysis, the Appeals Chamber cannot determine any error in the finding reached by the Trial Chamber in regard to the Appellant’s refusal to attend trial. As to whether his interests were represented by counsel, the Appeals Chamber will now address this question, and accordingly reserves its overall finding on his third ground of appeal until the end of that analysis.

The factors that a Trial Chamber is obliged to take into account in sentencing a defendant are set out in Article 23 of the Statute and in Rule 101 of the Rules. They are:

(1) the general practice regarding prison sentences in the courts of Rwanda. However, Trial Chambers are not obliged to conform to that practice but need only to take account of it;[1]

(2) the gravity of the offences (i.e. the gravity of the crimes of which the accused has been convicted, and the form or degree of responsibility for these crimes). It is well established that this is the primary consideration in sentencing;[2]

(3) the individual circumstances of the accused, including aggravating and mitigating circumstances. Aggravating circumstances must be proved by the Prosecutor beyond reasonable doubt;[3] the accused bears the burden of establishing mitigating factors based on the most probable hypothesis (or according to the term of art used in certain jurisdictions, “on a balance of probabilities”).[4] While the Trial Chamber is legally required to take into account any mitigating circumstances, what constitutes a mitigating circumstance and the weight to be accorded thereto is a matter for the Trial Chamber to determine in the exercise of its discretion.[5] In particular, the existence of mitigating circumstances does not automatically imply a reduction of sentence or preclude the imposition of a sentence of life imprisonment;[6]

(4) the extent to which any sentence imposed on the defendant by a court of any State for the same act has already been served.

The Appeals Chamber further recalls that credit shall be given for any period of detention of the defendant prior to final judgement.[7]

1057. […] Secondly, the Appeals Chamber is of the opinion that, in view of the gravity of the crimes in respect of which the Tribunal has jurisdiction, the two main purposes of sentencing are retribution and deterrence; the purpose of rehabilitation should not be given undue weight.[1] […]

1063. The Appeals Chamber recalls that, while the Trial Chamber must take account of the general practice regarding sentences in the Rwandan courts,[1] it is well established in the jurisprudence that the Trial Chamber is not bound by that practice.[2] The Trial Chamber is therefore “entitled to impose a greater or lesser sentence than that which would have been imposed by the Rwandan courts”.[3]

736. The vagueness of the Judgement, in itself an error on the part of the Trial Chamber,[1] compels the Appeals Chamber to examine the broadcasts between 1 January and 6 April 1994 referred to in the Judgement in order to determine whether one or more of them directly incited the commission of genocide. As recalled in the Introduction,[2] when the Trial Chamber errs in law, the Appeals Chamber must determine whether it is itself satisfied beyond reasonable doubt in regard to the disputed finding before it can affirm it on appeal.

770. However, the Appeals Chamber notes that the Trial Chamber did not clearly identify all the extracts from Kangura which, in its view, directly and publicly incited genocide, confining itself to mentioning only extracts from Kangura published before 1 January 1994 to support its findings.[3] […] Moreover, as explained previously,[4] the lack of particulars concerning the acts constituting direct and public incitement to commit genocide represented an error, and obliges the Appeals Chamber to examine the 1994 issues of Kangura mentioned in the Judgement in order to determine, beyond reasonable doubt, whether one or more of them constituted direct and public incitement to commit genocide.

625. […] The test for effective control is not the possession of de jure authority, but rather the material ability to prevent or punish the proven offences. Possession of de jure authority may obviously imply such material ability, but it is neither necessary nor sufficient to prove effective control. […]

484. The Appeals Chamber recalls that, for the liability of an accused to be established under Article 6(3) of the Statute, the Prosecutor has to show that: (1) a crime over which the Tribunal has jurisdiction was committed; (2) the accused was a de jure or de facto superior of the perpetrator of the crime and had effective control over this subordinate (i.e., he had the material ability to prevent or punish commission of the crime by his subordinate); (3) the accused knew or had reason to know that the crime was going to be committed or had been committed; and (4) the accused did not take necessary and reasonable measures to prevent or punish the commission of the crime by a subordinate.[1]

865. [I]t is not necessary for the accused to have had the same intent as the perpetrator of the criminal act; it must be shown that the accused “knew or had reason to know that the subordinate was about to commit such act or had done so”.[2] Furthermore, it is not necessary for the Appellant’s subordinates to have killed Tutsi civilians: the only requirement is for the Appellant’s subordinates to have committed a criminal act provided for in the Statute, such as direct and public incitement to commit genocide. 

605. […] Moreover, the Appeals Chamber recalls that, contrary to what the Appellant seems to assert,[1] the case-law of the ad hoc Tribunals affirms that there is no requirement that the de jure or de facto control exercised by a civilian superior must be of the same nature as that exercised by a military commander in order to incur superior responsibility: every civilian superior exercising effective control over his subordinates, that is, having the material ability to prevent or punish the subordinates’ criminal conduct, can be held responsible under Article 6(3) of the Statute.[2] The Appeals Chamber further considers it worth recalling that “it is appropriate to assess on a case-by-case basis the power of authority actually devolved upon the Accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof”.[3]

194. The Appeals Chamber recalls that statements made by witnesses in court are presumed to be credible at the time they are made; the fact that the statements are taken under oath and that witnesses can be cross-examined constitute at that stage satisfactory indicia of reliability.[1] However, the Trial Chamber has full discretionary power in assessing the appropriate weight and credibility to be accorded to the testimony of a witness.[2] This assessment is based on a number of factors, including the witness’s demeanour in court, his role in the events in question, the plausibility and clarity of his testimony, whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence, any prior examples of false testimony, any motivation to lie, and the witness’s responses during cross-examination. Appellant Barayagwiza is therefore wrong in invoking the principle of the presumption of innocence in order to contend that it was for the Prosecutor to establish that its witnesses were credible.[3]

949. The Appeals Chamber recalls that the jurisprudence of the Tribunal does not require the corroboration of the testimony of a sole witness,[4] and that the trial Judges are in the best position to assess the credibility of a witness and the reliability of the evidence adduced.[5]

72. The Appeals Chamber recalls that Rule 15(B) of the Rules of 26 June 2000 provided:

Any party may apply to the Presiding Judge of a Chamber for the disqualification of a Judge of that Chamber from a case upon the above grounds. After the Presiding Judge has conferred with the Judge in question, the Bureau, if necessary, shall determine the matter. If the Bureau upholds the application, the President shall assign another Judge to sit in place of the disqualified Judge.[1] 

This provision does not specify under what circumstances the question of recusal of a Judge is to be referred to the Bureau. The Appeals Chamber takes the view that the need to do so may arise under various circumstances.

73. First, the Appeals Chamber would point out that, under the principle that the same person cannot be both judge and party, the President of the Chamber cannot rule on a request for recusal if he or she is directly affected by such request.[2] However, Judge Pillay was in the position of both judge and party, as she had to rule on her own recusal following the submission of Appellant Barayagwiza’s request. Faced with such a situation, she should have referred the issue to the Bureau.

74. Secondly, the Appeals Chamber recalls that it is necessary to refer the issue to the Bureau if, after consultation with the judge concerned, the President of the Chamber finds that it is not necessary to recuse that judge, but that decision is challenged.[3] Therefore, since Judge Pillay’s decision to reject the request for recusal of Judge Møse was challenged by Barayagwiza (as evidenced by his Appeal of 18 September 2000), the issue should have been referred to the Bureau.

75. However, […] [h]aving found that the impartiality of Judges Pillay and Møse could not be impugned by reason of their visit to Rwanda, the Appeals Chamber considers that the procedural irregularities committed by the Trial Chamber in ruling on the motion for disqualification of Judges Pillay and Møse were not, in themselves, sufficient to create in the mind of a reasonable observer, properly informed, an appearance of bias, or to rebut the presumption of impartiality of those Judges. The appeal on this point is accordingly dismissed.