At paras 64 to 73, the Appeals Chamber addressed the issue whether an accused can raise on appeal a different alibi than the one raised at trial.

At trial, the Appellant had argued that his alibi placed him in Gitarama at the relevant time, an argument which was not upheld by the Trial Chamber. On appeal, the Appellant relied on documents admitted pursuant to Rule 115 of the Rules, arguing that he was in Kigali on the dates these documents were signed. The Appeals Chamber held:

66. The first issue is whether an Appellant is permitted to raise a new alibi on appeal. Pursuant to Rule 67(A)(ii)(a), the Prosecution has to be provided with notice of an alibi argument as early as practicable and prior to the commencement of trial. While Rule 67(B) states that failure to provide such notice “shall not limit the right of the accused” to rely on an alibi defence, the jurisprudence permits a Trial Chamber to consider the failure to provide the requisite notice in its assessment of the alibi.[1] The same legal principle applies in a situation where an alibi is raised for the first time on appeal. Rule 67 provides that the Defence can still raise an alibi even if no prior notice is provided; however, if for example the Appellant could have been reasonably expected to raise the new alibi during trial, the Appeals Chamber can take particular note of the failure to provide timely notice to the Prosecution in its assessment of the alibi. This does not contradict the finding of the ICTY Appeals Chamber that an “accused, generally, cannot raise a defence for the first time on appeal”.[2] The Appeals Chamber recalls

that an alibi “does not constitute a defence in its proper sense”. In general, a defence comprises grounds excluding criminal responsibility although the accused has fulfilled the legal elements of a criminal offence. An alibi, however, is nothing more than the denial of the accused’s presence during the commission of a criminal act.[3]

At paras 138 and 139, the Appeals Chamber held that

[t]here is only one genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994 and that resulted in the killings of hundreds of thousands of Tutsi. In sentencing, acts in furtherance of this one genocide and attributable to the accused can be taken into account. The Appeals Chamber notes that while the genocide in Rwanda cost the lives of hundreds of thousands of people, the Appellant’s individual criminal responsibility has to be measured according to his own contributions and the killings resulting therefrom, taking into account his own position. 

The Trial Chamber had found that the Appellant encouraged attackers to kill Tutsi women married to Hutu men without convicting the Appellant on this basis because it found that there was insufficient evidence to establish that his conduct directly and substantially contributed to the killing of these Tutsi women, or their children.[1] However, the Trial Chamber considered that the Appellant’s encouragement of the killing of Tutsi women who were married to Hutu could be considered as an aggravating factor.[2] The Appeals Chamber found in para. 141 that “[t]here was no contradiction in the Trial Chamber’s findings in this respect”. In the present case, the question of further aggravation of the sentence of life imprisonment needed not to be addressed.

The Appeals Chamber dismissed the Appellant’s motion seeking a postponement of the appeal hearing due to the assignment of a new Co-Counsel, considering that:

Pp. 4-5: CONSIDERING that pursuant to Article 15 of the Directive on the Assignment of Defence Counsel (“Directive”), the Lead Counsel “shall deal with all stages of procedure” and “has primary responsibility for the Defence”, while the Co-Counsel may intervene “under the authority of Lead Counsel”;

CONSIDERING that the Appellant’s Lead Counsel was put on notice of the date of the Appeals Hearing on 16 November 2006, and […] he has not to date informed the Appeals Chamber of any justified unavailability for the Appeals Hearing;

RECALLING that the Letter of Assignment was offered to the current Co-Counsel by the DCDMS on the understanding that this would not result in any delay of the appellate proceedings;

CONSIDERING that the Lead Counsel, who, in the absence of any assistance from the former Co-Counsel, has had ample time to prepare for the Appeals Hearing in the present case,[1] and is in a position to brief the current Co-Counsel as to matters that may require his assistance during the Appeals Hearing;

CONSIDERING that, in light of the fact that the current Co-Counsel is a qualified lawyer, the Appellant’s argument that the verbal undertaking of the current Co-Counsel is of no significance to the latter’s ability to prepare for the Appeals Hearing is a mere assertion;[2]

CONSIDERING, therefore, that the Appellant has not shown that any postponement of the Appeals Hearing as scheduled by the Scheduling Order is required in the interests of justice.

6. The Appeals Chamber reiterates that an appeal pursuant to Article 24 of the Statute the Tribunal is not a trial de novo.[1] Rule 115 of the Rules specifically governs the admission of additional evidence on appeal, as well as rebuttal material, where the particular circumstances in the case so require. However, no provision is made under Rule 115 for seeking admission of rejoinder evidence to rebuttal material. Moreover, the Appeals Chamber does not consider that Rule 85(A) of the Rules, which specifically governs the presentation of evidence at trial, can be directly transposed to the presentation of additional evidence on appeal, which is covered by the provisions of Rule 115. While Rule 89(B) read in conjunction with Rule 107 of the Rules[2] generally stipulates that the Appeals Chamber, in cases not specifically provided for under the section of the Rules on evidence, “shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”, it does not require that the Appeals Chamber allow for the admission of rejoinder evidence in Rule 115 proceedings. Thus, nothing in the Rules explicitly entitles parties to seek admission of rejoinder evidence on appeal and the Appeals Chamber will only allow admission of such evidence where the particular circumstances of the case so require for a fair determination of the matter before it.

7. In the present case, the Appeals Chamber recalls that the substance of the additional evidence admitted by the Appeals Chamber relates to Witness EB’s purported wish to recant his testimony provided at trial, notably with respect to the Appellant’s participation in the killings in Gisenyi on 7 – 9 April 1994.[3] The material admitted in rebuttal is anticipated to directly relate to the substance of the additional evidence, in particular with respect to the Prosecution’s investigation into the circumstances of the purported recantation of Witness EB’s trial testimony.[4] In light of the documentary material already admitted in this appeal, the Appeals Chamber is not convinced that the anticipated testimony of the three witnesses referred to by the Appellant would make a material difference to his case, that it would be helpful in assessing the rebuttal material, or that it is necessary for a fair determination of the issue of Witness EB’s purported recantation.[5]

9. While it is true that, save for Rule 115(A) allowing parties to file supplemental briefs on the impact of the additional evidence admitted by the Appeals Chamber, no specific provision of the Rules explicitly regulates the possibility for the parties to supplement their briefs on appeal, it has been recognised in the jurisprudence that an appellant may supplement his or her brief, pursuant to Rule 127(A)(ii) and (B) of the Rules, by filing the said supplement with sufficient reasons constituting good cause for the Appeals Chamber to recognize it as validly filed.[1] In particular, the appellant must show that the proposed supplemental submissions are relevant to his grounds of appeal[2] and add substantial new information to the submissions which have already been made.[3]The new information at stake must be of sufficiently compelling importance to justify the admission of a supplemental brief at the stage where the briefing on appeal is completed.[4]

The Appeals Chamber considered whether there was discernible error in the Trial Chamber’s conclusion that the progress of the trial constituted changed circumstances that made flight risk more likely than it had been at the pre-trial stage (where the Defendants were granted release).  It held in paragraph 15:

The Trial Chamber is the body best positioned to assess whether circumstances at trial have materially affected the possibility that accused will not return from provisional release.  The Appeals Chamber finds it reasonable for the Trial Chamber to have concluded that the Defendants’ incentives to flee increased over the course of a trial as they heard first-hand the evidence against them.[1]  This is not to say this is the only reasonable conclusion.  In some cases, the incentives to flee might decrease over time;[2] in other cases, these incentives might stay the same; and in still other cases these incentives might not shift enough to affect materially the approach taken in earlier provisional release decisions regarding the same accused.   These are matters that are best assessed by the Trial Chamber that is hearing the case, and the Appeals Chamber will not reverse the Trial Chamber’s considered judgement or decision absent a discernible error.  Here, while the Trial Chamber could have done a more complete job in explaining how the proceedings thus far have increased the Defendants’ incentives to flee, it provided enough reasoning to justify its conclusion.

The Appeals Chamber discussed for the first time whether Rule 65 applies to provisional release requests made during the course of a trial or instead only to pre-trial and pre-appeal provisional release requests.  In paragraphs 9-10, it rejected the Trial Chamber’s conclusion that Rule 65 applied only to pre-trial (and pre-appeal) proceedings:

Moreover, the Appeals Chamber disagrees with the Trial Chamber’s conclusion that the language “will appear for trial” in Rule 65(B) “ma[kes] it clear that the application of the Rule is confined to the provisional release of an accused whose trial has not yet begun”.[1]  First, the language of the Rule does not read “will appear for the beginning of trial” but rather reads “will appear for trial” – language which could refer to any stage of the trial.  Second, the purpose behind Rule 65(B) is best fulfilled if its language is read broadly.  Its goal of permitting provisional release only if the Trial Chamber is satisfied that the accused will return and will do no harm is not logically limited to the pre-trial stage.  Rather, this goal is equally important at other stages of the proceedings, as Rule 65(I) demonstrates in identifying the same criteria for the pre-appeal stage.  Finally, the Appeals Chamber notes that the practice of Trial Chambers in the past supports the view that Rule 65(B) is best read as applying to all provisional release applications before the Trial Chamber.[2]

Accordingly, the Appeals Chamber holds that Rule 65 applies to provisional release issues arising during the course of trial, just as it applies during pre-trial and pre-appeal proceedings.

7. Rule 115(A) of the Rules provides that rebuttal material may be presented by any party affected by a motion to present additional evidence before the Appeals Chamber. The Appeals Chamber recalls that rebuttal material is admissible if it directly affects the substance of the additional evidence admitted by the Appeals Chamber[1] and, as such, has a different test of admissibility from additional evidence under Rule 115 of the Rules.[2] […]

14. The Appeals Chamber reiterates that Rule 66(B) applies to appellate proceedings and that, consequently, the Prosecution, on request of the Defence, “has to permit the inspection of any material which is capable of being admitted on appeal or which may lead to the discovery of material which is capable of being admitted on appeal”.[1] In this respect, the Appeals Chamber recalls that “purely inculpatory material is not necessarily immaterial for the preparation of the Defence”[2] and that the Prosecution shall provide the Defence with access to any documents that are material to the preparation of the Defence, with the exception of Rule 70 material and, if necessary, request from the Appeals Chamber permission to withhold any information provided by these sources under Rule 66(C) of the Rules.[3] […]