23. Furthermore, the Appeals Chamber does not agree with the United States that the necessity requirement under Rule 54bis stipulates that an applicant must make an additional showing that the requested materials in fact exist.[1] The necessity requirement obliges the applicant to show that the requested materials, if they are produced, are necessary for a fair determination of a matter at trial. Requiring an additional showing of actual existence would be unreasonable and could impinge upon the right to a fair trial given that these materials are State materials, often of a confidential nature. In many cases, it would be impossible for an applicant to prove the existence of these materials. All that is required is that an applicant make a reasonable effort before the Trial Chamber to demonstrate their existence. […]

After recalling that “the State from whom the documents are requested does not have locus standi to challenge their relevance” to a trial[1]  and that a State may not challenge whether, on the basis of the request, the Trial Chamber was able “to accurately determine the relevance of the documents sought”,[2] the Appeals Chamber held that “the same rule applies with regard to challenging the necessity of documents or information for a fair determination of the trial” (para. 21).[3]

At para. 6, the Appeals Chamber recalled the standard of review of decisions rendered pursuant to Rule 54bis of the Rules:

The Appeals Chamber recalls that Rule 54 and Rule 54bis allow a party in proceedings before the International Tribunal to request a Judge or a Trial Chamber to order a State to produce documents or information for the purposes of an investigation or the preparation or conduct of a trial. The Appeals Chamber considers that a Judge or Trial Chamber’s decision on a Rule 54bis request is a discretionary one.[1] Therefore, the Appeals Chamber will not conduct a de novo review of a Rule 54bis decision and the question before it is not whether it “agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[2] It must be demonstrated that the Trial Chamber has committed a “discernible error”[3] resulting in prejudice to a party. The Appeals Chamber will overturn a Trial Chamber’s exercise of its discretion only where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[4] The Appeals Chamber will also consider whether the Trial Chamber “has given weight to extraneous or irrelevant considerations or that it has failed to give weight or sufficient weight to relevant considerations [. . .]” in reaching its discretionary decision.[5]

11. Due to the apparent inconsistencies of the Rule 115 Motion with the formal requirements set out in Paragraph 7 of the Practice Direction on Formal Requirements for Appeals from Judgement (“Practice Direction”),[1] the Pre-Appeal Judge ordered the Appellant to “re-file, no later than 30 January 2006, appendices to the Rule 115 Motion which should be copies of the evidence that he is applying to present before the Appeals Chamber in strict accordance with the precise list of such evidence already contained in his Rule 115 Motion”.[2]

13. The Appeals Chamber accepts the documents annexed to the Corrigendum to Rule 115 Motion only inasmuch as they correspond to the pieces of evidence mentioned in the Rule 115 Motion itself but omitted from its annexes. Indeed, the Corrigendum to Rule 115 Motion cannot be used to widen the scope of the Rule 115 Motion.

18. The Appeals Chamber recalls that a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[3] For the sake of clarity and in light of the Appeals Chamber’s findings above,[4] the Appeals Chamber notes that not all of the materials referred to in the Rule 115 Motion and/or contained in the Annexes thereto can in fact be considered as meeting the formal requirements for submission of additional evidence to be considered for admission on appeal.

19. In particular, pursuant to Article 7 of the Practice Direction,[5] the following documents should fall out of the consideration by the Appeals Chamber since they were either not annexed to the Rule 115 Motion and not later submitted with the Corrigendum or were annexed to the Rule 115 Motion but not listed therein and the Rule 115 Motion thus contains no arguments as to their admissibility: […] While he admits that these two documents “fall within the generic description” contained in the Rule 115 Motion,[6] he persists that they “should be considered as evidence which may undermine the convictions”[7] but does not make any argument as to their admissibility in his Rule 115 Motion.[8] The Appellant re-filed these documents in his Corrigendum to the Rule 115 Motion despite a clear indication of the discrepancy between the contents of his Rule 115 Motion and Annexes thereto made to him by the Pre-Appeal Judge.[9] Therefore, the Appeals Chamber does not consider Annex 1 and Annex 2 as documents tendered as additional evidence on appeal.

21. Finally, the Appellant tenders a number of documents (all referred to in the Rule 115 Motion but not attached as Annexes),[10] which were in fact already admitted into evidence at trial and therefore do not constitute “additional evidence” to be admitted in this case. The Appeal Chamber notes that it is consequently not necessary to examine them in considering the Rule 115 Motion.[11]

22. As to the remainder of the material tendered as additional evidence on appeal, under Rule 115 (A) of the Rules, a motion to present additional evidence on appeal must be filed “not later than seventy-five days from the date of the judgement”, which in this case was 16 February 2004, “unless good cause is shown for further delay.”

25. The Appeals Chamber considers that the Appellant has failed to show good cause for the late filing of his Rule 115 Motion. […]

26. Even if the Appeals Chamber were to count the seventy-five days period from the date on which the Appellant claims that the current Defence team was complete (13 June 2005), such that the deadline for filing the Rule 115 Motion would have been 27 August 2005, the Rule 115 Motion would still have been filed 123 days late. The Appeals Chamber reiterates that “a Counsel, when accepting assignment as Lead Counsel in a case before the Tribunal, is under an obligation to give absolute priority to observe the time limits as foreseen in the Rules.”[1] The Appeals Chamber is not convinced by the Appellant’s argument that the Defence team could not file a timely motion for admission of additional evidence under Rule 115 because it had to focus on preparation of the Amended Notice of Appeal and Amended Appellant’s Brief. The Appeals Chamber recalls that the Appellant was granted generous extensions of time for filing these submissions as early as May 2005, such that both were accepted as timely filed on 12 October 2005. The additional time allowed for preparing the Amended Notice of Appeal and Amended Appellant’s Brief should have allowed for the Appellant to work with his Defence team to prepare a timely motion pursuant to Rule 115. 

8. The Appeals Chamber considers that the Appellant’s request for clarification is in fact a motion for reconsideration of the Decision of 23 January 2006 and finds that none of the arguments raised by the Appellant establish cause for reconsideration.[1] […]

footnote 19: The Appeals Chamber has an inherent discretionary power to reconsider its own previous interlocutory decisions if the existence of a clear error of reasoning has been demonstrated or if it is necessary in order to prevent an injustice. […] No such error or injustice has been shown here.

Paras 102-103: on the basis of the same rationale allowing for cumulative charging, charges brought in the alternative are also permissible. This is nevertheless only a general rule: depending on the circumstances of the case, alternative charging may still be deemed impermissible. 

Paras 109-122: relying on the Tadić Jurisdiction Decision, the Appeals Chamber recalled in para. 112 that the “international armed conflict” element has been incorporated into Article 2 of the Statute. It found that, if certain conduct becomes a crime under the Statute only if it occurs in an international armed conflict, then the existence of such a conflict is not only a jurisdictional element, but also a substantive element of the crime. Relying on the Kordić and Čerkez Appeal Judgement, para. 311, but more importantly on the principle of individual guilt which requires that an accused can only be convicted for a crime if his mens rea comprises the actus reus of the crime (paras 113-114), the Appeals Chamber found that the Prosecution needs to prove the accused’s knowledge of the facts pertinent to/establishing the internationality of the armed conflict (paras 116, 121). However, it is of course not required that the accused correctly subsume these facts into a particular legal characterisation. 

Para. 27, lines 4-8: the Prosecution’s Rule 65ter witness list may in some cases serve to cure a defective indictment.

Para. 27, lines 8-9: law developed to state that not only the mere service of witness statements, but also of potential exhibits, does not suffice to inform the accused of material facts that the Prosecution intends to prove at trial.

Background: the Prosecution disclosed to the Defence a judgement of a Rwandan court that implicated a Prosecution witness right before that witness testified. The Defence requested that the Trial Chamber stay the proceedings. In the present interlocutory appeal, the Appellant (Defence) argued that the Trial Chamber erred as a matter of law by failing to provide him with adequate time and facilities to prepare his defence in violation of his rights under Article 20(4)(b) of the Statute.

The Appeals Chamber recalled the standard of review with regard to adjournment and found that the Trial Chamber did not abuse its discretion in finding that, in the circumstances of the case, no prejudice resulted from the late disclosures. The Appeals Chamber held that a Trial Chamber can “control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights”.

See paras 7-8:

7. The Prosecution’s obligation to disclose potentially exculpatory material is essential to a fair trial.[1] However, not every violation of this important obligation implicates a violation of an accused’s fair trial rights, warranting a remedy.[2] If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves.[3] The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case.[4]

8. Mr. Nzirorera raised the issue of his need for investigations arising from the late disclosure before the Trial Chamber.[5] In the Impugned Decision, the Trial Chamber expressly considered the impact of the late disclosure on Mr. Nzirorera’s ability to prepare for Witness UB’s testimony and determined that the late disclosure would not interfere with an effective cross-examination.[6] Furthermore, the Trial Chamber noted that it would provide appropriate additional relief on a case-by-case basis and indicated that it might be appropriate to recall the witness if further investigations warranted additional cross-examination.[7] In the present circumstances, the Appeals Chamber cannot say that the Trial Chamber abused its discretion in declining to stay the proceedings. The Appeals Chamber considers that in long and complicated cases, it is necessary for a Trial Chamber to exercise its discretion to control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights.[8]