25. With respect to availability of the proffered evidence at trial, the Appeals Chamber is not satisfied that the Appellant was unable to obtain it in spite of the exercise of due diligence. As, the Prosecution points out, the declassifying process of U.S. documents started in 1998 and many unclassified documents were accessible on the National Security Archive webpage in 2001.[1] The Appeals Chamber finds that the Appellant’s reply to this argument, that the Prosecution failed to prove that the documents were declassified before his trial,[2] is misguided; it is for the Appellant to show that the documents were available to him only recently. On the contrary, the Appellant’s own arguments seem to suggest that the documents were accessible earlier than 2003: the compilation of documents which the Appellant received is the result of research carried out between 1994 and 2003.[3]

26. In addition, the Appeals Chamber notes that both messages in their relevant parts refer to conversations between the Appellant and Ambassador Rawson.[4] […] Given the Appellant’s contacts with Ambassador Rawson, the Appellant could have attempted to contact Ambassador Rawson, either to learn about his reports to the U.S. government in 1994 as a reliable and independent source of political information on Rwanda, or with the objective to adduce his live testimony about the Appellant’s role in the CDR at trial.

27. Regarding the letter signed by Théoneste Nahimana, the Appellant’s submissions show that he was aware of the existence of this letter at trial. The Appeals Chamber also notes that the report by Ambassador Rawson dated 28 March 1994 suggests that the Appellant was at least involved in the drafting of the letter signed by Théoneste Nahimana, as he was informed about his content before it was signed and took suggestions from Ambassador Rawson as to its content.[5] Furthermore, it was the Appellant himself who gave a copy of this letter to Ambassador Rawson in 1994.[6] The Appeals Chamber notes that a number of CDR documents were adduced at trial on behalf of the Appellant.[7] The Appellant has thus not shown that the letter was unavailable to him at trial or that he had made efforts to obtain a copy thereof in the exercise of due diligence.

28. In light of the above, while the Appeals Chamber finds that the proffered evidence is prima facie relevant and credible, it will admit it as additional evidence on appeal only if it concludes that its exclusion would result in a miscarriage of justice, i.e. it would have had an impact on the verdict if it had been adduced at trial. The Appeals Chamber notes that the Appellant only suggests the proffered evidence could have been a decisive factor for the Trial Chamber’s finding with respect to the Appellant’s position in the CDR.[8]

40. […] The Appeals Chamber recalls that the party adducing additional evidence must establish that the said evidence was not available at trial in any form whatsoever.[9] As in the Second Rule 115 Motion, the Appellant again merely asserts that the documents “have been declassified only recently” without giving any further details about the declassification process or any earlier attempts to access the material.[10] As the Prosecution points out, unclassified U.S. documents were available during the Appellant’s trial, and the possibility to access classified documents through a Freedom of Information Act application also existed.[11] Further, the Appellant has not shown that he tried to contact Ambassador Rawson to adduce his live testimony at trial. Finally, the Appeals Chamber notes that the Appellant acknowledges that other evidence concerning the date of the demonstration, the most important point of the documents proffered as additional evidence, was available to him.[12]

14. [T]he Appeals Chamber notes that the Appellant filed the separate Corrigendum Motion to correct a clerical error in his Reply to the First Rule 115 Motion.[1] The Appeals Chamber recalls that “a party may, without requesting leave from the Appeals Chamber, file a corrigendum to their previously filed brief or motion whenever a minor or clerical error in said brief or motion is subsequently discovered and where correction of the error is necessary in order to provide clarification”.[2] Although it was unnecessary for the Appellant to file a motion to this extent, the Appeals Chamber finds that the submitted amendment indeed corrects an obvious clerical error and does not amount to any substantial change of the Appellant’s Reply to the First Rule 115 Motion. Therefore, the Appeals Chamber finds that the Appellant’s Reply to the First Rule 115 Motion should be read in accordance with the amendments proposed by the Corrigendum Motion and allowed by the present decision.

34. [T]he Appeals Chamber recalls that “material will fall within the ambit of Rule 68 if it tends to suggest the innocence or mitigate the guilt of the accused, or affects the credibility of Prosecution evidence”.[1] The determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement made by and under the responsibility of the Prosecution.[2] Therefore, as noted previously, the Appeals Chamber will not intervene in the exercise of the Prosecution’s discretion, unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[3] […]

P. 3: NOTING that in the Motion, the Appellant provides reasons in support of his argument that the Appeals Hearing should be scheduled for a later date than provided in the Scheduling Order including, inter alia, his intention to file a new motion under Rule 115 of the Tribunal’s Rules of Procedure and Evidence (“Rules”) as well to invite the Bar Counsel of England and Wales Human Rights Committee to attend and observe the Appeals Hearing;[1]

CONSIDERING that under Rule 115(A) of the Rules, the parties may file motions for admission of additional evidence on appeal after the appeal hearing, provided that cogent reasons are shown for such a delay;

CONSIDERING that a party’s intention to invite a third-party observer to the appeals hearing and the availability of that third-party on certain dates are not factors that the Appeals Chamber is required to take into consideration when setting the date for an appeals hearing;

CONSIDERING that since the Appeals Chamber’s Decision of 23 November 2006[2] upheld the President’s decision to refuse the withdrawal of the Appellant’s Co-Counsel, the arguments in the Motion in relation to the absence of the Co-Counsel[3] are moot;

CONSIDERING that in light of the amendments to the Rules, which entered into force on 10 November 2006, the Appellant’s arguments with respect to logistical problems in relation to the preparation of the Appeal Books on or before 18 December 2006[4] are moot, since the Rules no longer place such an obligation on the parties;[5]

FINDING therefore that the Appellant has failed to establish good cause for the Appeals Chamber delaying the Appeals Hearing as set in the Scheduling Order […]

P. 4: RECALLING that the parties are to focus their oral arguments on the grounds of appeal raised in their briefs[1] and that the appeals hearing is not the occasion for presenting new arguments on the merits of the case;

RECALLING further that, during the hearing of an appeal, the parties are expected “to prepare themselves in such a way as not simply to recount what has been set out in their written submission, but to confine their oral arguments to elaborating on points relevant to this appeal that they wish to bring to the Appeals Chamber’s attention”;[2]

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]