19. The Appeals Chamber recalls that the protective measures in question were ordered in the Blaškić Review Proceedings.[1] Consequently, pursuant to Rule 75(G) of the Rules, the Appellant should bring any motion for variation of protective measures before the Blaškić Appeals Chamber. The Appeals Chamber in the present case has no jurisdiction to decide on the Appellant’s respective request and therefore finds that it should be dismissed.

35. Finally, with respect to the issue of placing documents on the EDS, the Appeals Chamber recalls that Rule 68(ii) allows the Prosecution to do so “without prejudice to paragraph (i)”. In this sense, the Practice Direction Establishing Restrictions on Dissemination of Material Disclosed to the Defence by the Prosecutor on the “Electronic Disclosure System”, provides that the EDS is a system created “[i]n connection with the discharge of disclosure obligations” but “does not affect the Prosecutions obligations to disclose material under the Rules”.[1] The Appeals Chamber of the International Criminal Tribunal for Rwanda has recently specified that the Prosecution’s obligation under this provision “extends beyond simply making available its entire evidence collection in a searchable format”, since it “cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession”.[2] The Appeals Chamber also found that the EDS does not make documents “reasonably accessible as a general matter”, nor does it allow to assume that the Defence knows about all material included therein, to the extent that the Prosecution could be relieved of its Rule 68 obligation.[3] The Appeals Chamber also notes that the EDS database does not allow an accused on one case to access materials disclosed by the Prosecution to an accused in another case.[4] It has thus been suggested that the Prosecution should either “separate[] a special file for Rule 68 material or draw[] the attention of the Defence to such material in writing and permanently update[] the special file or the written notice”.[5]

15. The Appeals Chamber notes that Rules 66(C) and 68(iv) expressly provide for ex parte filing of documents in possession of the Prosecution, “the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State”. Under these circumstances, the Prosecution is required to provide the Chamber seized with such applications (and the Chamber only) with the information that is sought to be kept confidential and ex parte. Various other provisions of the Rules allow for ex parte proceedings by implication.[1] Given the variety of circumstances which may give rise to the need for ex parte status, the Appeals Chamber agrees that it is “neither possible nor appropriate to define the circumstances in which such [proceedings] are appropriate by any limiting definition”[2].

16. As a preliminary matter, with respect to the Appellant’s request for guidelines concerning review of access to ex parte materials,[3] the Appeals Chamber considers that it is not appropriate for it to promulgate a practice that would be applicable in all cases. The endorsement by the Appeals Chamber of a practice in one appeal is always given in the light of the circumstances of the given appeal.[4] In general, the Appeals Chamber has no powers of legislation. Moreover, the current jurisprudence of the Appeals Chamber on access to ex parte material is consistent and clear.[5] Therefore, the Appeals Chamber declines to consider the Appellant’s proposal any further.

20. With regard to the rest of the ex parte filings in this case,[6] the Appeals Chamber notes that these documents are part of the Trial Record certified for the purposes of the present appeal and are indexed […] with their respective translations and transmission sheets. The Appeals Chamber further notes that, while the Appellant has not been put on notice of the respective filings, he could identify their existence by reviewing page indexes of the documents available to him and identifying the ones missing, which he has not done for the purposes of his Request for Access. In its current submissions, the Prosecution has not expressed its position as to further maintaining the ex parte status of these specific filings and is directed to do so, within ten days of the date of the present decision, in order to assist the Appeals Chamber in its decision on the Appellant’s request to the documents listed above.[7] In the event that the Prosecution does not oppose the lifting of the ex parte status of all or some of these documents, it is invited to identify any Rule 70 material among them, as well as to apply for redactions where necessary.

At paras 16-18, the ICTR Appeals Chamber recalled the ICTY Appeals Chamber case-law that a case can only be referred to another jurisdiction under Rule 11bis when the crimes charged can be prosecuted in those jurisdiction as a “serious violation of international humanitarian law” as the ICTY and ICTR Statutes envisage:

16. […] The Appeals Chamber recalls that the basis of the Tribunal’s authority to refer its cases to national jurisdictions flows from Article 8 of the Statute, as affirmed in Security Council resolutions.[1] Article 8 specifies that the Tribunal has concurrent jurisdiction with national authorities to prosecute “serious violations of international humanitarian law”. In other words, this provision delimits the Tribunal’s authority, allowing it only to refer cases where the state will charge and convict for those international crimes listed in its Statute.

17. The Appeals Chamber agrees with the Prosecution that the concept of a “case” is broader than any given charge in an indictment and that the authorities in the referralState need not necessarily proceed under their laws against each act or crime mentioned in the Indictment in the same manner that the Prosecution would before this Tribunal.[2] In addition, the Appeals Chamber appreciates fully that Norway’s proposed prosecution of Mr. Bagaragaza, even under the general provisions of its criminal code, intends to take due account of and treat with due gravity the alleged genocidal nature of the acts underlying his present indictment. However, in the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the “ordinary crime” of homicide. That the legal qualification matters for referrals under the Tribunal’s Statute and Rules is reflected inter alia in Article 9 reflecting the Tribunal’s principle of non bis in idem.[3] According to this statutory provision, the Tribunal may still try a person who has been tried before a national court for “acts constituting serious violations of international humanitarian law” if the acts for which he or she was tried were “categorized as an ordinary crime”. Furthermore, the protected legal values are different. The penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.

18. The Appeals Chamber recognizes that this decision may have a practical impact on Mr. Bagaragaza’s situation who, according to the Prosecution’s submissions to the President of the Tribunal, faces security risks if detained in the UNDF in Arusha. It also notes that it may limit future referrals to similar jurisdictions which could assist the Tribunal in the completion of its mandate. However, the Appeals Chamber cannot sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law. This is particularly so when the accused has been charged with genocide, an offence that -- unlike murder -- is designed to protect a “national, ethnical, racial or religious group, as such”.

8. To establish circumstances warranting a review pursuant to Rule 119, the moving party must demonstrate that there is a new fact, that that new fact was not known to the moving party at the time of the original proceedings, that lack of discovery of that new fact was not the result of lack of due diligence by the moving party and that the new fact could have been a decisive factor in reaching the original decision.[1]

50. […] Despite the fact that the Notice of Appeal clearly did not conform to the criteria established for such filings under the provisions of Rule 108 and the Practice Direction,[1] the Appeals Chamber accepted that Notice of Appeal as validly filed in the particular circumstances of the case. The Appeals Chamber was mindful of significant delays and multiple previous filings in this case, as well as of the fact that the Prosecution had not opposed the filing in question. […] The Notice of Appeal and the Appellant’s Brief, having been filed simultaneously, allow for the Prosecution to sufficiently understand the Appellant’s grounds of appeal and thus, the Appeals Chamber considered that it was in the interests of judicial economy to accept the deficient Notice of Appeal.[2]

51. The Appeals Chamber also wishes to emphasize that it strongly disagrees with the Appellant’s claim that his full notice of appeal “could only be completed once the Appeals Brief itself was in its final form”.[3] This assertion goes against the logical order of the appeal procedure before the Tribunal, where a notice of appeal is filed shortly after the impugned judgement, while the Appellant’s brief is to be filed within seventy-five days after the notice of appeal. […]

52. […] The Appeals Chamber further finds that the newly submitted notice of appeal does not fully conform to the provisions of Rule 108 and the Practice Direction in the sense that, for most Grounds, it still fails to identify with precision the nature of alleged errors, any references to the challenged findings or the relief sought. In addition, in the Annexed Notice of Appeal, the Appellant adds, in certain Grounds, some elements that were specified in the Appellant’s Brief under different grounds,[4] which might be even more confusing. It would thus not be in the interests of justice to allow for these amendments, and the denial thereof will not result in a miscarriage of justice for the Appellant.

14. Finally, the Appeals Chamber notes that it is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[1]

54. 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”.[1] Consequently, while the Appeals Chamber is cognizant of the lateness of such filing, there was no need for the Appellant to seize it with a Motion in this respect.

55. Having reviewed the proposed corrections, the Appeals Chamber notes that most of the submitted amendments indeed correct grammatical or typing errors, or inaccurate references. While corrections 5, 11, 15, 29, 54, 65, 66, 76 seem to go slightly beyond clerical corrections, the Appeals Chamber considers that they, while usefully providing clarifications to the respective sentences, do not amount to any substantial changes of the Appellant’s Brief and can thus be equally permitted.

9. Pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in the notice of appeal. Such motions should be submitted “as soon as possible after identifying the new alleged error”[1] of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking a variation to the notice of appeal. Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the 'good cause’ requirement of Rule 108 is satisfied”.[2]

13. In sum, variations to the notice of appeal will only be allowed (i) for good cause reasons within the meaning of Rule 108, as defined by the above-discussed principles; (ii) if they remedy the counsel’s negligence or inadvertence and are of substantial importance to the success of the appeal; or (iii) if they otherwise correct ambiguity or error made by counsel and do not unduly delay the appeal proceedings, as, for example, in the case of minor and non-substantive modifications. With respect to the revisions to the appeal brief (or, in the alternative, supplemental briefing), they will be permitted only (i) as necessary to reflect the amendments to the notice of appeal; or (ii) as necessary to correct ambiguity or error in the counsel’s filings, without unduly delaying the appeal proceedings.[3]

21. As a preliminary matter, the Appeals Chamber notes that the Appellant seeks to have his Notice of Appeal modified only as a consequence of including the newly submitted grounds of appeal into his Appellant’s Brief. Rule 108 of the Rules clearly applies to seeking a variation of the notice of appeal and, where leave is granted to amend the notice of appeal, the appellant may be granted leave to amend the appeals brief to reflect the amendment to the notice of appeal. Nevertheless, the Appeals Chamber will consider the Motion of 6 March 2006 as requesting the variation of grounds of appeal contained in both the Notice of Appeal and the Appellant’s Brief simultaneously. Since the variations of the Appellant’s Notice of Appeal sought by his Motion of 5 July 2006 are of a broader scope than the newly submitted grounds of appeal, the Appeals Chamber will address the former in a separate section of the present decision.[4]

At paras 21-32, the Appeals Chamber recalled its previous case-law regarding the necessary elements of an indictment. It confirmed that, in exceptional cases, defects in an indictment can be “cured” if the Prosecution provides the accused with timely, clear and consistent information (para. 28). In an obiter dictum, the Appeals Chamber expressed concern about the extent to which the Prosecution tried to rely on this jurisprudence in the present case, and stressed that this jurisprudence applies only in a limited number of cases (para. 114):

114.    The Appeals Chamber wishes to express its concern regarding the Prosecution’s approach in the present case. The Appeals Chamber recalls that the indictment is the primary accusatory instrument and must plead the Prosecution case with sufficient detail. Although the Appeals Chamber allows that defects in an indictment may be “remedied” under certain circumstances, it emphasizes that this should be limited to exceptional cases. In the present case, the Appeals Chamber is disturbed by the extent to which the Prosecution seeks to rely on this exception. Even if the Prosecution had succeeded in arguing that the defects in the Indictments were remedied in each individual instance, the Appeals Chamber would still have to consider whether the overall effect of the numerous defects would not have rendered the trial unfair in itself.