P. 5: CONSIDERING that parties may use and/or formally present skeleton arguments, slides or schedules to the Appeals Chamber in support of their oral arguments, provided that they contain no new arguments on the merits of the case and that the opposing party does not object; [1]

CONSIDERING, however, that the Appeals Chamber is not in a position to decide whether the use of the documents referred to by the Appellant shall be allowed, since they were not presented with the Motion; […]

At paras 19-22, the Appeals Chamber recalls the criteria of admissibility of additional evidence on appeal under Rule 115, inter alia, the time limit, the unavailability at trial, the relevance, the credibility and the impact on the verdict:

19. Rule 115 of the Rules provides for a corrective measure on appeal, and its purpose is to deal “with the situation 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 this provision, for additional evidence to be admissible on appeal, the following requirements must be met. First, the motion to present additional evidence should be filed “not later than thirty days from the date for filing of the brief in reply, unless good cause or, after the appeal hearing, cogent reasons are shown for further delay”.[2] Second, the Appeals Chamber must find “that the additional evidence was not available at trial and is relevant and credible.” When determining the availability at trial, the Appeals Chamber is mindful of the following principles:

[T]he party in question must show 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.” In this connection, Counsel is expected to apprise the Trial Chamber of all the difficulties he or she encounters in obtaining the evidence in question, including any problems of intimidation, and his or her inability to locate certain witnesses. The obligation to apprise the Trial Chamber constitutes not only a first step in exercising due diligence but also a means of self-protection in that non-cooperation of the prospective witness is recorded contemporaneously.[3]

With regards to relevance, the Appeals Chamber will consider whether the proposed evidence sought to be admitted relates to a material issue. As to credibility, the Appeals Chamber will only refuse to admit evidence at this stage if “it is devoid of any probative value in relation to a decision pursuant to Rule 115”[4], without prejudice to a determination of the weight to be afforded.[5]

20. Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine whether the evidence “could have been a decisive factor in reaching the decision at trial.”[6] To satisfy this, the evidence must be such that it could have had an impact on the verdict, i.e. it could have shown that a conviction was unsafe.[7] Accordingly, the additional evidence must be directed at a specific finding of fact related to a conviction or to the sentence.

21. Although Rule 115 of the Rules does not explicitly provide for this, the Appeals Chamber has considered that, where the evidence is relevant and credible, but was available at trial, or could have been discovered through the exercise of due diligence, the additional evidence may still be admitted if the moving party establishes that the exclusion of the additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would have had an impact on the verdict.[8]

22. Finally, the Appeals Chamber recalls that, whether the evidence was available at trial or not, the additional evidence must always be assessed in the context of the evidence presented at trial, and not in isolation.[9]

34. The fact that there had been a meeting held at Samvura’s house on the morning of 7 April 1994 involving the Appellant and distribution of arms is not in itself decisive for the Trial Chamber’s conclusion as to the Appellant’s responsibility for killings of the Tutsi civilians in Gisenyi. In fact, the Trial Chamber concluded that there was no evidence that the Appellant was present during the killings of 7 April 1994 and that, on that morning, the Appellant ordered the Interahamwe to kill the Tutsi and to prepare graves in Commune Rouge. Consequently, the principal issue is whether, should the Trial Chamber have had the benefit of hearing the testimony of Witness ABC1, it would have disbelieved Witness EB with respect to the events that took place on the morning of 7 April 1994. In the presence of contradictory accounts of the two witnesses, the Trial Chamber would have had to determine which of the accounts was reliable and, in light of evidence provided by Witness ABC1 in the Bagosora et al. case and the fact that [REDACTED], the Appeals Chamber is not satisfied that a reasonable trier of fact would have found this witness credible to the detriment of the account provided by Witness EB. Moreover, Witness ABC1 in the Bagosora et al. case only testified to the fact that the Appellant was not at [Samvura’s] house that morning and that there was no meeting there. The mere fact that [Witness ABC1] did not witness or hear him ordering the killings does not mean that this could not have occurred.The Appeals Chamber notes to this extent that Witness EB testified that the Appellant ordered the killing through a loudspeaker from his vehicle and not during the meeting at Samvura’s house.Consequently, and in light of the findings above concerning Witnesses AHI and AGX, the Appeals Chamber is not satisfied that the exclusion of the proffered additional evidence would amount to a miscarriage of justice inasmuch as, had it been adduced at trial, it would not have had an impact on the verdict.

11. The Appeals Chamber recalls that the Prosecution has a positive and continuous obligation[1] under Rule 68 of the Rules to, “as soon as practicable, disclose to the Defence any material which in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. Determining what material is subject to disclosure under Rule 68 falls within the Prosecution’s discretion and its initial assessment of such exculpatory material must be done in good faith.[2] However, Rule 68(a) does not impose an obligation on the Prosecution to search for material which it does not have knowledge of, nor does it entitle the Defence to embark on a “fishing expedition”.[3] Indeed, when an accused requests a Chamber to order the production of material, the accused’s request “has to be sufficiently specific as to the nature of the evidence sought and its being in the possession of the addressee of the request”.[4] At the same time, such request is not required to be “as specific as to precisely identify which documents should be disclosed”.[5] […]

At para. 16, ICTR Appeals Chamber held:

There is a significant difference between the taking of a judicial notice of a fact of genocide and the determination that an accused is individually criminally responsible for the crime of genocide. The former gives a factual context to the allegations of the crime of genocide. The latter requires a finding of whether the elements of the crimes of genocide, such as actus reus and mens rea, exist in order to ascertain whether an accused is responsible for the crime.” Consequently, the taking of judicial notice of genocide does not, in itself, go to the alleged conduct or acts of the Applicants as charged in the indictment.[1]

      At paras 24-26, the Appeals Chamber recalled its previous finding that a Trial Chamber has no    discretion to order that a fact of common knowledge be proved at trial:

That the Trial Chamber has no discretion to rule that a fact of common knowledge must be proved through evidence at trial. This determination was based on an interpretation of Rule 94(A) of the Rules. Such discretion only exists for matters of judicial notice which fall within the ambit of Rule 94(B) of the Rules, that is, adjudicated facts or documentary evidence from other proceedings of the Tribunal.

At para. 27, The Appeals Chamber emphasised:

The practice of judicial notice must not be allowed to circumvent the presumption of    innocence and the defendant’s right to a fair trial. Thus, it is always necessary for Trial  Chambers to take a careful consideration of the procedural rights of the accused.

Consequently, it reiterated that judicially noticed facts do not relieve the Prosecution of its burden of proof.

At para. 6, the Appeals Chamber recalled its standard for reconsideration:

The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power if a clear error of reasoning has been demonstrated or if it is necessary to prevent an injustice.[1]

The Appeals Chamber held the following:

412. While the mode of liability of ordering necessarily entails that the person giving the order has a position of authority,[1] the level of authority may still play a role in sentencing as it is not an element of the mode of liability of “ordering” that an accused is high in the chain of command and thus wields a high level of authority.[2] […]

At paras 81-84, the Appeals Chamber clarified its position in that respect. It concluded:

85. […] while binding conventional law that prohibits conduct and provides for individual criminal responsibility could provide the basis for the International Tribunal’s jurisdiction, in practice the International Tribunal always ascertains that the treaty provision in question is also declaratory of custom.

The Appeals Chamber found that “the fact that a decision on disqualification cannot be appealed at trial does not necessarily mean that the impartiality of a Judge cannot be considered in an appeal from a judgement.” (para. 31).