262. The Appeals Chamber recalls that the ICTY Appeals Chamber has affirmed that the Prosecution has the obligation to determine whether evidence is exculpatory under Rule 68.[1] This Appeals Chamber follows that position and considers that in order to allege a breach of Rule 68, the Defence must first establish that the evidence was in the possession of the Prosecution, and then must present a prima facie case which would make probable the exculpatory nature of the materials sought.[2] If the Defence satisfies the Tribunal that the Prosecution has failed to comply with its Rule 68 obligations, then the Tribunal must examine whether the Defence has been prejudiced by that failure before considering whether a remedy is appropriate.[3]

263. The Appeals Chamber finds that in the present case, the Appellant has failed to demonstrate that the Trial Chamber erred in finding that the Prosecution was not in possession of any prior statements the detained witnesses may have given to the Rwandan authorities. The Appellant rather appears to argue that since the detained witnesses were called by the Prosecution, it was the Prosecution’s duty to obtain the statements. The Appeals Chamber does not accept such an extension of the scope of Rule 68.

36. There is nothing in the Rules to suggest that different dates must be set for each party to file its closing brief.  […] [T]he purpose of a closing brief […] is not to respond to the other party’s closing brief, but to express its own position regarding the charges set out in indictment and the evidence led in the case. The practice generally followed at the ICTR and the ICTY is for both parties to file their closing brief at the same time.  […]

269. […] Contrary to the submissions of the Appellant, the Prosecution did not have to prove the existence of a high-level policy against the Tutsi: although the existence of a policy or plan may be useful to establish that the attack was directed against a civilian population and that it was widespread and systematic, it is not an independent legal element.[1]

369. […] Simultaneous convictions are permissible for war crimes, crimes against humanity and complicity to commit genocide as each has a materially distinct element. The Appellant’s conviction for complicity to commit genocide was based on his aiding and abetting principal perpetrators who killed Tutsi because of their ethnicity.[1] As noted earlier, the mens rea for complicity in genocide, for those forms of complicity amounting to aiding and abetting, is knowledge of the specific intent of the perpetrator(s).[2] The Appellant’s convictions for crimes against humanity necessitated proof of a widespread or systematic attack against a civilian population, whereas convictions for war crimes require that the offences charged be closely related to the armed conflict. In the Trial Chamber’s opinion, this nexus was clearly established.[3]

See also para. 368.

189. […] [I]t was proper for the Chamber to apply Rule 89 of the Rules, which is the general provision that governs the admission of evidence at trial, providing at paragraph (C) that “a Chamber may admit any relevant evidence which it deems to have probative value.”[1]  The Appeals Chamber affirms that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the ordinary requirement of relevance and thereby clutter the record with matters that would not otherwise be admitted.[2]  Therefore, the Appeals Chamber concludes that the Trial Chamber did not err in applying Rule 89 in addition to Rule 94 of the Rules.

194. At the time of the Decision on Judicial Notice, Rule 94 provided that “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.”[1]  The Rule was later amended[2] to provide, in addition, for the taking of judicial notice of adjudicated facts or documentary evidence.[3]  The provision relating to facts of common knowledge, provided under paragraph (A) of Rule 94, remained the same.[4]  As the ICTY Appeals Chamber explained in Prosecution v. Milošević, Rule 94(A) “commands the taking of judicial notice” of material that is “notorious.”[5]  The term “common knowledge” encompasses facts that are not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature.[6]  Such facts are not only widely known but also beyond reasonable dispute.[7]  As stated above, the fact that the Appellant did dispute some of the facts judicially noticed before the Trial Chamber did not prevent the Trial Chamber from qualifying the facts as facts of common knowledge since, as explained by the Trial Chamber, “[h]aving entered a plea of not guilty to all the counts in the indictment, the Accused has placed even the most patent of facts in dispute. However, this alone cannot rob the Chamber of its discretion to take judicial notice of those facts not subject to dispute among reasonable persons.”[8]  Having regard to the arguments submitted by the Appellant before the Trial Chamber to challenge the nature of the facts adduced by the Prosecution and to the facts themselves, the Appeals Chamber considers that the said facts were not the subject of a “reasonable” dispute. Therefore, the Appeals Chamber finds that the Trial Chamber did not err in considering that the facts enumerated in the Decision on Judicial Notice were “facts of common knowledge” within the meaning of Rule 94 of the Rules.

192. […] Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: […] that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; […]

398. The Appeals Chamber is of the view that it was within the Trial Chamber’s discretion to take into account as mitigation in sentencing the Appellant’s previous good character and accomplishments as bourgmestre. Precedent does not support the Prosecution’s position that “being a successful academic, politician or administrator is irrelevant” as a mitigating factor in crimes of genocide and crimes against humanity. Notwithstanding, the Appeals Chamber notes that in most cases the accused’s previous good character is accorded little weight in the final determination of determining the sentence.[1] […]

394. In relation to the submission that the sentences imposed by the Trial Chamber are disproportionate to those imposed in other cases before the International Tribunals and do not reflect the gravity of the crimes, the Appeals Chamber recalls that, as a general principle, comparison to other cases in support of a move to have the sentence increased may indeed provide guidance if it relates to the same offence, in particular if the crimes were committed in substantially similar circumstances. However, such comparison may be of limited value given that each case has its own particular circumstances and that the aggravating and mitigating factors may dictate different results.[1] Ultimately, the decision as to the length of sentence is a discretionary one, turning on the circumstances of the case.[2]

Transcript of 19 May 2005, pp. 49-50:

Over the past two days, we have heard from two Defence witnesses under Rule 115, provisions for hearing additional evidence on appeal.  We have also heard from two Prosecution witnesses who were presented in the rebuttal to the Appellant's additional evidence, and we are now presented with a new motion by the Appellant to call yet two more witnesses who, the Appellant alleges, will challenge the testimony of one of the Prosecution's rebuttal witnesses. […]

At today's Rule 115 hearing a Prosecution witness alleged that two Tribunal employees approached her at the United Nations safe house where she was staying while testifying before this Tribunal in another case.  She further alleged that these two Tribunal employees offered to pay her money and give her substantial assistance in other ways if she would come back to this Court and recant her trial testimony in the Kamuhanda case.  The Appellant would now like to call these two Tribunal employees, presumably, for the purpose of getting them to deny having offered any bribes to the Prosecution witness in question.

For two reasons, the Appeals Chamber is not persuaded that this is appropriate.  First, this is a Rule 115 hearing, which is intended to be a sharply delimited proceeding for entering discrete, specific evidence into the record; it is not intended to be a trial within a trial that opens the door to the exploration of every issue that might be raised during the hearing.  Presenting these two witnesses would be a rejoinder to a rebuttal to the Defence's original Rule 115 evidence, and there is no guarantee that it would end there.

Second, the Appeals Chamber is not convinced that the witness's testimony will make a material difference to the Defence's case.  The Appeals Chamber simply does not believe that such evidence on the record would be at all helpful in assessing the credibility of the Prosecution's rebuttal witnesses.  The Appeals Chamber does not foreclose the possibility that if sufficiently compelling or unexpected evidence surfaces during a Rule 115 hearing, it might be required in the interests of justice to expand the hearing beyond its original scope.  But under the circumstances of this case the Appellant has failed to convince the Chamber that such truly exceptional circumstances exist.  The Appellant's motion is denied.

The Appeals Chamber decided to refer the allegations of contempt and false testimony, which arose during the course of the Rule 115 proceedings, to the Prosecution for general investigation. See pp. 50-51.