The Appeals Chamber held that an accused who was present at the scene of a genocidal massacre, personally closely supervised it, and participated in it by separating those to be killed on the basis of ethnicity can be convicted of “committing” genocide through direct and physical perpetration even if he did not personally kill anyone himself:

59. In addition, by a differently composed majority, the Appeals Chamber holds, Judge Güney dissenting, that even if the killing of Mr. Murefu were to be set aside, the Trial Chamber’s conclusion that the Appellant “committed” genocide would still be valid. The Trial Chamber convicted the Appellant of “ordering” and “instigating” genocide on the basis of findings of fact detailing certain conduct that, in the view of the Appeals Chamber, should be characterized not just as “ordering” and “instigating” genocide, but also as “committing” genocide.

60. As the Trial Chamber observed, the term “committed” in Article 6(1) of the Statute has been held to refer “generally to the direct and physical perpetration of the crime by the offender himself.”[1] In the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.[2] Here, the accused was physically present at the scene of the Nyarubuye Parish massacre, which he “directed” and “played a leading role in conducting and, especially, supervising”.[3] It was he who personally directed the Tutsi and Hutu refugees to separate -- and that action, which is not adequately described by any other mode of Article 6(1) liability, was as much an integral part of the genocide as were the killings which it enabled.[4] Moreover, these findings of fact were based on allegations that were without question clearly pleaded in the Indictment.[5]

61. The Appeals Chamber is persuaded that in the circumstances of this case, the modes of liability used by the Trial Chamber to categorize this conduct -- “ordering” and “instigating” -- do not, taken alone, fully capture the Appellant’s criminal responsibility. The Appellant did not simply “order” or “plan” genocide from a distance and leave it to others to ensure that his orders and plans were carried out; nor did he merely “instigate” the killings. Rather, he was present at the crime scene to supervise and direct the massacre, and participated in it actively by separating the Tutsi refugees so that they could be killed. The Appeals Chamber finds by majority, Judge Güney dissenting, that this constitutes “committing” genocide.

In the present case, the Prosecution contended that the Appellant had waived his right to challenge on appeal any vagueness of the Indictment in respect of the murder of Mr. Murefu as he did not object at trial to the testimony concerning that event. At para. 51, the Appeals Chamber recalled its previous finding in Niyitegeka on whether and under which conditions an appellant can raise an indictment defect for the first time on appeal:

In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.” Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation. [...]

The importance of the accused's right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused's ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[1]

In the present case, the Appeals Chamber held the following:

54. Although the Niyitegeka Appeal Judgement referred to the accused’s obligation to interpose a timely objection to a pleading defect when evidence is introduced at trial, it did so in the context of deciding whether and under what conditions it was appropriate for an appellant to challenge such a defect for the first time on appeal. This case presents a different situation. The Appellant repeatedly brought the issue to the Trial Chamber’s attention in its briefing, and the Prosecution never suggested that he had waived his objection by not raising it earlier. And the Trial Chamber actually decided the issue, albeit in the context of murder alone and not genocide. In Ntakirutimana, the Appeals Chamber recognized that where the Trial Chamber has treated a challenge to an indictment as being adequately raised, the Appeals Chamber should not invoke the waiver doctrine.[2] In light of these circumstances, the Appeals Chamber holds that the Appellant did not waive his objection to the pleading defect. It therefore remains the Prosecution’s burden to prove that the Appellant’s defence was not materially impaired by the defect.

At para. 122, the Appeals Chamber recalled its previous finding that, even when the Prosecution quotes in full the provisions of Article 6(1) of the Statute in the Indictment, the Indictment can be sufficiently pleaded in other paragraphs of the indictment.[1]

The Appeals Chamber considered “the reference to aiding and abetting in the preamble to Count 4 [by repeating the language of Article 6(1)], taken in combination with the allegations of material facts sufficient to support a conviction under that mode of liability, was sufficient to put the Appellant on notice that he was charged with aiding and abetting”.[2]

The Prosecution argued that the Trial Chamber committed an error by failing to impose a sentence reflecting the gravity of the crimes and of the Appellant’s degree of criminal culpability, and submits that the Trial Chamber should have considered the Appellant as one of the most serious offenders, deserving the highest penalty available at the Tribunal (para. 200).

The Appeals Chamber held that it was an abuse of discretion for the Trial Chamber to issue a sentence of only thirty years under the circumstances of the case:

205. The Appeals Chamber is, as noted above, fully cognizant of the margin of discretion to which Trial Chambers are entitled in sentencing. This discretion is not, however, unlimited. It is the Appeals Chamber’s prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal. This is such a case. The Appeals Chamber concludes that in light of the massive nature of the crimes and the Appellant’s leading role in them, as well as the relative insignificance of the purported mitigating factors, the Trial Chamber ventured outside its scope of discretion by imposing a sentence of only thirty years’ imprisonment. The Appeals Chamber therefore upholds this sub-ground of the Prosecution’s appeal.

Based on this and other errors, it quashed the sentence and entered a life sentence.

See paras 200-206.

The Appeals Chamber recalled that no formal superior-subordinate relationship is required for ordering under Article 6(1). It then held that all what is required is authority to order:

182. Thus, after finding that no formal superior-subordinate relationship existed, the Trial Chamber proceeded to consider whether, under the circumstances of the case, the Appellant’s statements nevertheless were perceived as orders. This is in accordance with the most recent judgements of the Appeals Chamber. In the Semanza Appeal Judgement, the Appeals Chamber explained:

As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of “ordering” is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order.[1]

The Appeals Chamber notes that this element of “ordering” is distinct from that required for liability under Article 6(3) of the Statute, which does require a superior-subordinate relationship (albeit not a formal one but rather one characterized by effective control).[2] Ordering requires no such relationship -- it requires merely authority to order, a more subjective criterion that depends on the circumstances and the perceptions of the listener. (emphasis added).

In its Oral Decision of 8 May 2006, the Trial Chamber adopted three principles concerning cross-examination guidelines for the six accused in this case. They included 1) the total time limit of cross-examination by the Defence shall not in principle exceed the Prosecution’s direct-examination and if Defence cannot agree the time will be allocated equally, 2) the Defence will rotate their order of cross-examining witnesses, and 3) the allocation of time for cross-examination will be altered if a witness’s testimony goes to the responsibility of one of the accused.[1]

In their interlocutory Appeal, the Appellants submit that the Trial Chamber abused its discretion by committing the following:

(a) severely restricting the fundamental right of the Accused to cross-examine the witnesses against them;

(b) applying rigid time-constraints in preference to using less restrictive methods of control;

(c) effectively requiring the Accused to exercise the right of cross-examination as a group rather than individually, regardless of conflicts of interest, and to bargain with each other for time to cross-examine;

(d) preventing Defence Counsel from affording effective assistance of counsel to the Accused; and

(e) failing to exercise judicial independence by subjugating the fight of the Accused to a fair trial to the political and economic pressures imposed upon the Trial Chamber by the UN Security Council through the Completion Strategy.[2]

The Prosecution submitted that the Trial Chamber decision was rather “a practical and flexible guideline that ensures a fair and expeditious trial, discourages unfocused and irrelevant cross-examination, and facilitates the scheduling of witnesses who must travel internationally to testify before the International Tribunal”.[3]

The Appeals Chamber noted that each of the Defence teams had 1/6 of the time allocated to Prosecution (unless another agreement was reached),[4] and the Trial Chamber could allocate the time differently depending on whether a witness’ testimony spoke directly to the culpability of the one of the accused.[5] Additionally, the Appeals Chamber referred to the Tribunal’s established practice of avoiding “rigid time limits”[6] for cross-examination, “in particular, since the Trial Chamber reserves its power to modify the time allowed for cross-examination as necessary and allows the Appellants to adjust the specified time allocation by agreement among themselves.”[7]

Therefore, the Appeals Chamber found that the Trial Chamber was “sufficiently flexible”[8] in preserving the Defendant’s right to cross-examination as stated in the Statute, while also balancing the needs and right to a fair trial of each individual defendant.

The Appeals Chamber held (Decision, p. 3):

[…] in interlocutory appeals dealing with trial management rulings, the Appeals Chamber shall afford deference to the Trial Chamber’s discretion[1] and the examination by the Appeals Chamber shall be limited to establishing whether the Trial Chamber has fallen into error or has abused its discretionary power;[2]

Para. 42: when the Appeals Chamber directs a subsequently assigned Defence counsel to file additional submissions to a request for review previously filed pro se by a convicted person, the said submissions shall be limited to issues raised by the convicted person in the initial pro se request. Any issue raised for the first time in the additional submissions is deemed to be out of the scope of the Appeals Chamber’s order and the merit thereof shall not be considered.

Paras 12, 16, 21, 25, 30, 36: the Appeals Chamber after having recalled the cumulative nature of the criteria for review in para. 7, as previously set out in Josipović,[1] and having concluded that none of the alleged issues met the first criterion of “new fact” within the meaning of Article 25 of the Statute and Rule 120 of the Rules of the Tribunal, ruled that it was not obliged to examine them further. This determination conforms to previous approaches adopted by the Appeals Chamber, halting the analysis at the first criterion upon concluding that no “new fact” is presented.[2]

Nevertheless, the Appeals Chamber proceeded to consider whether, assuming the proffered material could be characterised as a “new fact”, it could have been a decisive factor in reaching the original decision.[3] The approach of the Appeals Chamber in this case, as in previous cases, was to consider the fourth criterion of “decisive factor” after finding that the first criterion is not met.[4] The Appeals Chamber adopted this approach out of an abundance of caution and not because the requirement of a “new fact” can be waived to avoid a miscarriage of justice.

In the present case, the Prosecution argued that it could discharge its Rule 68 disclosure obligations through the EDS. The Appeals Chamber dismissed the Prosecution’s appeal, holding that the EDS does not discharge the Prosecution of its positive obligation to disclose exculpatory material in its possession. The full reasoning is provided below (paras 8-16):

8. The Prosecution argues that the Trial Chamber erred as a matter of law in finding that it cannot discharge its disclosure obligations under Rule 68 by making the Prosecution evidence collection and other relevant materials accessible to the Defence through the EDS.[1] In identifying the Trial Chamber’s alleged legal error, the Prosecution contends that the Trial Chamber failed to appreciate the searchable format of the EDS.[2] However, in the very same passage upon which the Prosecution relies in support of this proposition, the Trial Chamber clearly expressed that the EDS, “allows the Defence to do its searches for exculpatory material.”[3] Consequently, the Appeals Chamber cannot agree that the Trial Chamber failed to appreciate this aspect of the EDS. Rather, in the view of the Appeals Chamber, the Prosecution appears to take issue with the Trial Chamber’s finding that the Prosecution has a “positive obligation” to disclose Rule 68 material “in its possession” to individual accused.[4] The Appeals Chamber, however, can identify no legal error on the part of the Trial Chamber in holding that the Prosecution has a positive obligation to disclose exculpatory material in its possession.

9. The Prosecution’s obligation to disclose exculpatory material is essential to a fair trial.[5] The Appeals Chamber has always interpreted this obligation broadly.[6] The positive nature of this obligation and its significance stem from the Prosecution’s duty to investigate, which the Appeals Chamber has explained runs conterminously with its duty to prosecute.[7] In particular, the Appeals Chamber recalls that one of the purposes of the Prosecution’s investigative function is “to assist the Tribunal to arrive at the truth and to do justice for the international community, victims, and the accused.”[8] The responsibility for disclosing exculpatory material rests on the Prosecution alone, and the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement, falling within the Prosecution’s responsibility.[9] In other words, the Prosecution has a distinct obligation to participate in the process of administering justice by disclosing to the Defence, as required by Rule 68(A), material which it actually knows “may suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecution evidence”. This responsibility is crucial to the analysis.

10. Bearing these principles in mind, the Prosecution must actively review the material in its possession for exculpatory material[10] and, at the very least, inform the accused of its existence.[11] In the view of the Appeals Chamber, the Prosecution’s Rule 68 obligation to disclose extends beyond simply making available its entire evidence collection in a searchable format. A search engine cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession. As such, the Appeals Chamber can identify no legal error on the part of the Trial Chamber in finding that the EDS, as described by the Prosecution, fails to fulfill these important and expansive obligations.

11. The Prosecution’s reasoning includes the following two steps. First, it argues that paragraphs (A) and (B) of Rule 68 establish two distinct disclosure obligations covering different categories of materials: paragraph (A) applies to materials that the Prosecution actually knows may be exculpatory, while paragraph (B) applies more broadly to all “collections of relevant material”, whether or not the Prosecution knows that they may be exculpatory. Second, it argues that when the Prosecution provides the defence with an electronic collection of relevant materials in satisfaction of its obligation under paragraph (B), that also satisfies its obligations under paragraph (A) with respect to any materials governed by paragraph (A) that may be found somewhere within the collection. The Appeals Chamber notes that while the first step of the Prosecution’s argument appears to embrace a rather broad interpretation of the Prosecution’s disclosure obligations, the second step would have the effect of curtailing them by making it unnecessary for the Prosecution to draw the attention of the Defence to the particular material that it actually knows may be exculpatory.

12. The Appeals Chamber observes several flaws in the Prosecution’s reasoning. The Prosecution’s obligation to disclose to the defence material that may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence is set forth in Rule 68(A).[12] It is only Rule 68(A) that articulates which material is subject to disclosure under this rule and which obliges the Prosecution to disclose it. Rule 68(B) does not establish a distinct disclosure obligation.[13] Rather, it simply provides for a possible modality of conveying exculpatory material to the defence, in an electronic format, after the Prosecution identifies it as “relevant material” which is subject to disclosure under Rule 68. This is supported by the plain language of sub-paragraph B of Rule 68 and by its drafting history, which focused on the technical feasibility of providing to the defence electronic versions of documents subject to Rule 68 disclosure.[14]

13. Thus, disclosure under Rule 68(B) is merely the digital equivalent of disclosure under Rule 68(A), consisting of the same material in searchable electronic form. For these reasons, for the Prosecution to seek to satisfy its Rule 68 obligations merely by granting the Defence access to an electronic database containing tens of thousands of documents, only a few of which it knows to be potentially exculpatory, is the equivalent of the Prosecution seeking to satisfy those obligations by giving the Defence a key to a storage closet containing the same tens of thousands of documents in paper form. In both cases, the Prosecution has for all intents and purposes buried the exculpatory materials, at least unless it notifies the Defence of the existence of such materials and provides a means by which the Defence can be reasonably expected to find them. Rule 68(B) was not intended to facilitate this kind of evasion of the Prosecution’s disclosure obligations. Indeed, its text makes clear that it is in no way intended to dilute or circumvent Rule 68(A)’s requirements: it states that it is “without prejudice to paragraph (A)”.[15]

14. The Prosecution’s second principal argument on appeal is that, by creating the EDS and by making it searchable, its collection is now “reasonably accessible” to the defence, which is a recognized exception to its obligation to disclose.[16] By way of illustration, the Prosecution refers to Appeals Chamber jurisprudence indicating that transcripts of open session testimony are not subject to disclosure as they are “reasonably accessible”.[17] Mr. Nzirorera disputes this claim, emphasizing the difficulty of identifying exculpatory material given the redacted nature of the documents on the EDS.[18] The Prosecution counters that Mr. Nzirorera’s complaints are belied by his possession of material, which it surmises came from the EDS, thereby demonstrating its proper functioning.[19] The Appeals Chamber observes that it is not clear from the record how Mr. Nzirorera obtained the material he used to demonstrate that the Prosecution was in breach of its disclosure obligations.

15. The Appeals Chamber agrees that the Prosecution may be relieved of its Rule 68 obligation if the existence of the relevant exculpatory material is known to the Defence and if it is reasonably accessible through the exercise of due diligence.[20] On the basis of the record before it, however, the Appeals Chamber cannot find that the EDS makes documents reasonably accessible as a general matter, nor that the Defence can be assumed to know about all materials included in it. The determination whether given exculpatory information is reasonably accessible, and whether its existence is known to the Defence requires a careful examination of the relevant circumstances.[21] This is true for material on the EDS – especially given that, as Mr. Nzirorera notes, it may be difficult to recognize material as exculpatory if it is only available in redacted form – just as it is true for material not found on this system. The Appeals Chamber has not been asked to decide here whether the Prosecution satisfied its disclosure obligation with respect to any particular piece of information. The Appeals Chamber cautions the Prosecution, however, that just because it has placed a particular piece of material on the EDS, it has not necessarily made that piece of material “reasonably accessible” to any given accused. It might be helpful if the Prosecution either separates a special file for Rule 68 material or draws the attention of the Defence to such material in writing and permanently updates the special file or the written notice.