385.  The meaning of “legal prejudice” in the Trial Judgement is not clear. In any event, the Appeals Chamber clarifies that any form of prejudice that a party allegedly suffered as a result of undue delay ought to be considered. The Appeals Chamber finds that the Trial Chamber’s failure to expressly address the entirety of the co‑Accused’s arguments[1] and conduct a comprehensive assessment of their alleged prejudice in the Trial Judgement infringed the co‑Accused’s rights to a reasoned opinion under Article 22 of the Statute and Rule 88(C) of the Rules.

[…]

388.  However, the Appeals Chamber recalls its finding that the present proceedings were unduly delayed as a result of the Prosecution’s conduct and the Trial Chamber judges’ simultaneous assignment to multiple proceedings, delays which are not attributable to the co-Accused.[2] These delays prolonged the detention of the co‑Accused. The Appeals Chamber finds that these delays and the resulting prolonged detention constitute prejudice per se and that the Trial Chamber erred in concluding that the co‑Accused did not suffer prejudice.[3]

435. The Appeals Chamber observes that the Rules, which specifically impose the disclosure of all witnesses’ statements and their identity, do not provide for the disclosure of the identity of the witnesses’ parents.[1] Nyiramasuhuko’s submissions, in fact, merely reflect her disagreement with the Trial Chamber’s exercise of its discretion in denying disclosure to the Defence of the identity of the Prosecution witnesses’ parents. […]

1276.            The Appeals Chamber rejects Ntahobali’s claim that the Trial Chamber applied the wrong legal criterion in evaluating the cumulative effect of the defects in the Indictment. Although the Trial Chamber mainly relied on its finding that the defects of the Indictment concerning allegations on which it made factual findings were cured, its analysis reflects that it did not limit its examination to this matter but, in accordance with the jurisprudence that it expressly recalled, examined whether the Defence had sufficient time and resources to investigate properly all the new material facts and that it was not prejudiced by the addition of numerous material facts. The Appeals Chamber refers in particular to the Trial Chamber’s reliance on the additional time allotted to the co-Accused to prepare their case[1] and its findings throughout the Trial Judgement that, where remedied, the original lack of notice had not caused prejudice.[2]

1277.            The Appeals Chamber also finds no merit in Ntahobali’s argument that the number of defects in an indictment that can be cured is limited. The Appeals Chamber considers that, in instances where it is found that defective charges have not only been cured but also that the initial lack of notice did not result in prejudice, the question of the number of defects cured becomes secondary. It is clear from the Appeals Chamber’s jurisprudence that the key question remains whether or not the accused was materially prejudiced in the preparation of his defence.[3]

469. The Appeals Chamber recalls that when an accused is charged with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute, the Prosecution must plead in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial, or religious group, as such.[1] […]

[…]

473. The Appeals Chamber is of the view that, contrary to the Trial Chamber’s determination,[2] there is no requirement for the Prosecution to specify in the Indictment when the conspiracy ended. The crime of conspiracy to commit genocide is an inchoate offence, the actus reus of which is “a concerted agreement to act for the purpose of committing genocide”,[3] and does not require evidence of the time range and end of the conspiracy. Of significance is when the agreement was formed, not when it ended. Therefore, the Appeals Chamber finds that the Trial Chamber erred in determining that the Indictment was defective because it failed to specify “when the conspiracy ended”.

474. […] Moreover, contrary to Nyiramasuhuko’s assertion, the Appeals Chamber considers that the specific individuals with whom the accused is alleged to have reached the agreement aimed at the commission of genocide do not necessarily have to be identified by name and that identification by general category in the Indictment can be sufficient to provide adequate notice to the accused.[4]

3322.            The Appeals Chamber has held in relation to genocide that “committing” under Article 6(1) of the Statute, which envisions the physical perpetration of a crime, does not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.[1] The question is whether an accused’s conduct was “as much an integral part of the [crimes] as were the killings which it enabled.”[2] In the cases where the Appeals Chamber has concluded that an accused’s role constituted an integral part of the crimes, the accused were present at the crime scene and conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators.[3]

3323.            Even if the Appeals Chamber were to overturn the Trial Chamber’s findings that Kanyabashi’s Speech was not inflammatory and did not substantially contribute to the subsequent killings, it is not convinced that Kanyabashi’s approval of Kambanda’s and Sindikubwabo’s Speeches, his position of authority, and the contents of his speech are sufficient to qualify Kanyabashi’s overall conduct as that of “committing” genocide. The Appeals Chamber considers that, where it is not established that the accused was present at the scene of the crimes, conducted, supervised, directed, played a leading role, or otherwise fully exercised influence over the physical perpetrators, making a speech days, if not weeks, before the physical perpetration of killings cannot be deemed to constitute “direct participation in the actus reus” of the killings. Nor can such circumstances compel the conclusion that the conduct of the individual who gave the speech was as much an integral part of the genocide as were the killings which it allegedly enabled. In the view of the Appeals Chamber, the notion of commission by playing an integral part in the crime is not as expansive as the Prosecution argues in the present case. […]

3404.            The Appeals Chamber notes that nothing precludes a trial chamber from imposing a term of life imprisonment when the gravity of the offence so requires,[1] and that neither Article 7 nor Article 10 of the ICCPR prohibits life imprisonment.[2] The Appeals Chamber considers that Ntahobali’s submissions concerning the enforcement of his sentence are speculative. Furthermore, the Appeals Chamber observes that sentence enforcement issues were not matters for the Trial Chamber and that, as such, there can be no error on behalf of the Trial Chamber in this respect. His arguments concerning pardon, commutation of sentence, and early release are therefore dismissed.

3405.            The Appeals Chamber further dismisses Ntahobali’s contention that the absence in the Residual Mechanism Statute of a mandatory review of his life sentence after a fixed period would violate his fundamental rights. The Appeals Chamber observes that Ntahobali will retain the possibility to directly petition the President of the Residual Mechanism for pardon, commutation of sentence, or early release.[3]

[…]

3517.            The Appeals Chamber also dismisses Ndayambaje’s claim that imposing a single life sentence deprived him of the benefit of any credit based on the period already spent in detention and that the Trial Chamber erred in failing to provide a reasoned opinion in this regard. Rule 101(C) of the Rules states that “[c]redit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal”. This provision, however, does not affect the ability of a trial chamber to impose the maximum sentence, as provided for by Rule 101(A) of the Rules.[4]

63.    The Appeals Chamber recalls that, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[1] The Appeals Chamber, Judge Agius dissenting, does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeals hearing. In these circumstances, the Appeals Chamber, Judge Agius dissenting, dismisses without further consideration this part of Ground 15 of Ndayambaje’s appeal as well as Ndayambaje’s new allegation of error raised at the appeals hearing.

249. As to Ntahobali’s contention that Exhibit P113 lacked sufficient probative value to be admitted under Rule 89(C) of the Rules, the Appeals Chambers considers that the mere fact that a statement is made by a co-accused does not ipso facto render the document’s contents so unreliable that it could not be admitted under Rule 89(C) of the Rules.[1]

See also para. 260.

1616.            The Appeals Chamber recalls that neither the Rules nor the jurisprudence of the Tribunal oblige a trial chamber to require a particular type of identification evidence[1] and that trial chambers have the discretion to consider cautiously and rely on hearsay evidence.[2] The Appeals Chamber further recalls that a witness’s prior knowledge of, or level of familiarity with, an accused is a relevant factor in the assessment of identification evidence; however, contrary to what Ntahobali suggests, the fact that a witness did not personally know an accused prior to the events does not necessarily undermine the reliability of his identification evidence.[3] In the present case, the Trial Chamber correctly recalled generally the law concerning reliance on hearsay evidence in an introductory section of the Trial Judgement and specifically when considering such evidence with respect to Ntahobali’s identification at the prefectoral office.[4] The Trial Chamber considered the hearsay nature of various witnesses’ identifications of Ntahobali at the prefectoral office and concluded that they were reliable for a variety of reasons.[5] Ntahobali’s general contentions concerning the Trial Chamber’s use of hearsay, which do not discuss this analysis,[6] fail to demonstrate that the Trial Chamber erred in this regard.

See also fn. 5590.

576. The Appeals Chamber underlines that trial chambers are tasked with determining the guilt or innocence of the accused and must do so in light of the entirety of the evidence admitted into the record and that neither the Statute nor the Rules prevent a trial chamber from relying on the testimony of the accused to convict that accused, unless the accused’s self-incriminating evidence was compelled in violation of Article 20(4)(g) of the Statute.[1] […]