[1] See Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Decision on Prosecution’s Motion for Leave to Amend the Rule 65ter Witness List and for Disclosure of an Expert Witness Report Pursuant to Rule 94bis, 31 August 2010, para. 4; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Prosecution’s Motion for Leave to Amend Its Witness List to Add Witness KDZ597, 1 July 2010, para. 5; Prosecutor v. Momčilo Perišić, Case No. IT‑04-81-T, Decision on Prosecution’s Motion to Substitute Expert Witness, 30 October 2009 (“Perišić 30 October 2009 Decision”), para. 6; Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-T, Decision on Prosecution’s Motion to Add Milan Đaković to the Rule 65ter Witness List, 21 May 2009 (“Đorđević 21 May 2009 Decision”), para. 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73bis(E), 21 May 2004, para. 13. See also The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Prosecution Motion to Vary Its List of Witnesses: Rule 73 bis (E) of the Rules, 11 February 2005, paras. 22, 23.

[2] See Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-AR73(C), Decision on Ngirabatware’s Appeal of the Decision Reducing the Number of Defence Witnesses, 20 February 2012 (“Ngirabatware Appeal Decision”), para. 12; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007 (“21 August 2007 Appeal Decision”), para. 10; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against Second Decision Precluding the Prosecution from Adding General Wesley Clark to Its 65ter Witness List, 20 April 2007 (“Milutinović et al. Appeal Decision”), paras. 9, 10.

[3] See The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Prosecution Motion for Leave to Vary Its Witness List, 28 January 2010, para. 50, referring to The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Sagahutu’s Request to Vary His Witness List, 26 May 2008, paras. 5, 6.

[4] See, e.g., Perišić 30 October 2009 Decision, para. 6; Đorđević 21 May 2009 Decision, para. 5; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Decision on Prosecution’s Motion to Amend Prosecution’s Witness List (Dr. Fagel), 3 November 2008, p. 3.

[5] Haradinaj et al. Appeal Judgement, para. 39.

[6] Haradinaj et al. Appeal Judgement, para. 39.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 150; Ntagerura et al. Appeal Judgement, para. 23; Kupreškić et al. Appeal Judgement, para. 89.

[2] Cf. Uwinkindi Appeal Decision [Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72(C), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011], para. 36 (“When the Prosecution pleads a case of ‘instigation’, it must precisely describe the instigating acts and the instigated persons or groups of persons”), referring to Blaškić Appeal Judgement, para. 226. See also Ndindiliyimana et al. Appeal Judgement, para. 174.

[1] Cf. Tadić Appeal Judgement, para. 284; Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Appeal Decision on Jurisdiction”), paras. 78, 140-141. The Appeals Chamber notes that this is similar to the Statute of the ICTY. See Article 5(h) of the Statute of the ICTY. On the contrary, the Appeals Chamber observes that the Rome Statute does not limit the jurisdiction of the ICC to an exhaustive list of discriminatory grounds on which persecution as a crime against humanity must be committed. Indeed, Article 7(1)(h) of the Rome Statute contains an illustrative (open-ended) list of prohibited grounds for persecution as a crime against humanity, which reads as follows: “For the purpose of this Statute, ‘crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. The Appeals Chamber further notes that the Statute of the Special Court for Sierra Leone (“SCSL”), which was adopted after the Rome Statute, limits the jurisdiction of the SCSL over the crime of persecution as a crime against humanity to an exhaustive list of four discriminatory grounds, namely political, racial, ethnic, and religious grounds. See Article 2(h) of the Statute of the SCSL.

[2] Tadić Appeal Judgement, para. 296. See also Tadić Appeal Decision on Jurisdiction, paras. 78, 140, 141. Cf. also Tadić Appeal Judgement, paras. 249, 251.

[3] Cf. Tadić Trial Judgement, para. 711 (“There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. The grounds in the Statute are based on the Nürnberg Charter which included race, religion and politics as the three grounds, as did Control Council Law No. 10, both of which were drafted to address the European situation. In contrast the Tokyo Charter excluded religion as a basis for persecution, given its inapplicability to the Pacific theatre of operation while, alternatively, the Convention on the Prevention and Punishment of the Crime of Genocide contains the additional ground of ethnicity as do the 1991 and 1996 versions of the I.L.C. Draft Code, whereas the original 1954 Draft Code included culture as a basis for persecution. The possible discriminatory bases which the International Tribunal is empowered to consider are limited by the Statute to persecutions undertaken on the basis of race, religion and politics.”) (internal references omitted).

[4] Tadić Appeal Judgement, para. 282.

[5] Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331 (“Vienna Convention”). See also Tadić Appeal Judgement, para. 282, referring to International Court of Justice, Competence of the General Assembly for the admission of a State to the United Nations, Advisory Opinion: I.C.J. Reports 1950, p. 4; Aleksovski Appeal Judgement, para. 98, referring to Article 31(1) of the Vienna Convention (“Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology) set out in the 1969 Vienna Convention on the Law of Treaties.”); Čelebići Appeal Judgement, para. 67 and references cited therein (reiterating that Article 31 of the Vienna Convention reflects customary international law); Jelisić Appeal Judgement, para. 35 (“Following the settled jurisprudence of the Tribunal, those words [(of Rules 98bis(B) of the ICTY Rules of Procedure and Evidence)] are to be ‘interpreted in good faith in accordance with the ordinary meaning to be given to [them] in their context and in the light of [their] object and purpose’, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties 1969.” (alteration in the original)).

[6] See supra, para. 2135.

[7] The Appeals Chamber recalls that “it is an elementary rule of interpretation that one should not construe a provision or a part of [it] as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements.” See Tadić Appeal Judgement, para. 284. The Appeals Chamber further observes that the distinction between “race” and “ethnicity” is also clearly established in the definition of genocide given in Article 2 of the Statute (“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […].”).

[8] Nahimana et al. Appeal Judgement, para. 985. See also, e.g., Kvočka et al. Appeal Judgement, para. 320; Kordić and Čerkez Appeal Judgement, para. 101; Blaškić Appeal Judgement, para. 131; Krnojelac Appeal Judgement, para. 185.

[9] Trial Judgement, para. 6097, referring to Bagosora et al. Trial Judgement, para. 2209, Nahimana et al. Appeal Judgement, paras. 986-988, 1002. The Appeals Chamber notes that paragraph 2209 of the Bagosora et al. Trial Judgement also refers to paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.

[10] See Trial Judgement, para. 6097.

[11] See Nahimana et al. Appeal Judgement, para. 986. The Appeals Chamber further notes that, in the Nahimana et al. case, the convictions for persecution as a crime against humanity were based on the Trial Judgement’s finding that “the discriminatory intent of the Accused falls within the scope of crime against humanity of persecution on political grounds of an ethnic character”, noting that “RTLM, Kangura and CDR […] essentially merged political and ethnic identity, defining their political target on the basis of ethnicity and political positions relating to ethnicity.” See Nahimana et al. Trial Judgement, para. 1071. This finding was not challenged on appeal.

[12] Trial Judgement, para. 6097.

[1] Prosecutor v. Zdravko Tolimir et al., Case No. IT‑04‑80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Miletić Appeal Decision on Joinder”), para. 7; Prosecutor v. Vinko Pandurević and Milorad Trbić, Case No. IT‑05‑86‑AR73.1, Decision on Vinko Pandurević’s Interlocutory Appeal against the Trial Chamber’s Decision on Joinder of Accused, 24 January 2006 (“Pandurević Appeal Decision on Joinder”), para. 7.

[2] Cf. Prosecutor v. Ante Gotovina et al., Cases Nos. IT-01-45-AR73.1, IT‑03-73-AR73.1, IT-03-73-AR73.2, Decision on Interlocutory Appeals Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006 (“Gotovina Appeal Decision on Joinder”), para. 16; Pandurević Appeal Decision on Joinder, para. 7. The Appeals Chamber considers that, although these decisions were taken in the context of joinder of cases where the Prosecution requested both joinder of the charges and consequently of the trials, this jurisprudence applies mutatis mutandis to cases, like the present case, where only joinder of trials was requested on the basis of several confirmed indictments.

[3] Gotovina Appeal Decision on Joinder, para. 16; Miletić Appeal Decision on Joinder, para. 7; Pandurević Appeal Decision on Joinder, para. 7.

[4] Miletić Appeal Decision on Joinder, para. 8; Pandurević Appeal Decision on Joinder, para. 8. See also Gotovina Appeal Decision on Joinder, para. 17.

[5] See Gotovina Appeal Decision on Joinder, para. 17; Miletić Appeal Decision on Joinder, para. 8; Pandurević Appeal Decision on Joinder, para. 8. Cf. also Ntabakuze Appeal Decision on Severance [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Severance, Retention of the Briefing Schedule and Judicial Bar to the Untimely Filing of the Prosecution’s Response Brief, 24 July 2009], para. 25.

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la Requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 Juillet 2000 et réparation pour abus de procédure, 23 June 2006 (“Barayagwiza 23 June 2006 Appeal Decision”), para. 27. The Appeals Chamber has in the past reconsidered previous interlocutory decisions in an appeal judgement. See Kajelijeli Appeal Judgement, paras. 203-207.

[2] See, e.g., Munyagishari Appeal Decision [Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s Motion for Reconsideration of the Decision on Appeals Against Referral Decision, 8 July 2013], para. 13; Kajelijeli Appeal Judgement, para. 203; Barayagwiza 4 February 2005 Appeal Decision [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005], p. 2.

[3] See, e.g., Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 5; Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 204.

[4] See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202.

[5] See Barayagwiza 23 June 2006 Appeal Decision, para. 22; Kajelijeli Appeal Judgement, para. 202.

[6] See Čelebići Appeal Judgement, para. 641. It is settled jurisprudence that a party should not refrain from making an objection to a matter which was apparent during the course of the trial to raise it only on appeal in the event of an adverse finding against that party. See Nahimana et al. Appeal Judgement, para. 215; Niyitegeka Appeal Judgement, para. 199; Čelebići Appeal Judgement, para. 640; Tadić Appeal Judgement, para. 55.

[7] See Čelebići Appeal Judgement, para. 641.

[1] Trial Judgement, para. 143.

[2] See supra, para. 346.

[3] See Renzaho Appeal Judgement, para. 240.

[4] In this respect, the Appeals Chamber rejects Ndayambaje’s undeveloped claim that the death of Judge Kama unduly delayed the commencement of the trial. See supra, fn. 856.

[5] For example:

- in the Ndindiliyimana et al. case, a four-accused case, the trial phase extended over four years and nine months;

- in the Bizimungu et al. case, a four-accused case, the trial phase lasted over five years;

- in the Bagosora et al. case, a four-accused case, the trial phase lasted for five years and two months; and

- in the Nahimana et al. case, a three-accused case, the trial phase lasted two years and ten months.

See Ndindiliyimana et al. Trial Judgement, Annex A, paras. 34, 134; Bizimungu et al. Trial Judgement, Annex A, paras. 29, 81; Bagosora et al. Trial Judgement, Annex A, paras. 2314, 2367; Nahimana et al. Trial Judgement, para. 94.

[6] See Mugenzi and Mugiraneza Appeal Judgement, para. 32.

[7] Trial Judgement, para. 139.

[8] Trial Judgement, paras. 6345, 6349, 6357, 6361, 6367, 6377, 6379, 6384, 6386, 6389, fns. 159, 160.

[9] See Ndindabahizi Trial Judgement, Section I.4, paras. 17, 21.

[10] See Bisengimana Sentencing Judgement, Section VI.A, paras. 220, 228, 233.

[11] See Nzabirinda Sentencing Judgement, Section II.A, paras. 9, 48.

[12] As regards the Prosecution’s heavy reliance on the fact that most of the co-Accused repeatedly requested more time to prepare their defence, the Appeals Chamber emphasises that an accused cannot be blamed for trying to take full advantage of the resources afforded by the law in their defence as long as his conduct is not obstructive. Noting that the right to a fair trial in Article 20 of the Statute is in pari materia with Article 6 of the European Convention on Human Rights, the Appeals Chamber considers that the jurisprudence of the European Court of Human Rights (“ECtHR”) may provide useful guidance for the interpretation of the right to trial without undue delay. In this regard, see, e.g., Yagci and Sargin v. Turkey, ECtHR, Nos. 16419/90 and 16426/90, Judgment, 8 June 1995, para. 66. Regarding the reliance on the jurisprudence of the ECtHR, see Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006, paras. 18, 19.

[13] During the Nyiramasuhuko et al. trial, the Tribunal’s trial chambers were seised of 38 cases involving 53 accused.

[14] The Appeals Chamber notes that, in 2002, in response to the request made by the then President of the Tribunal to complete its tasks within a reasonable amount of time in order to “respect the rights of the accused and to meet the expectations of the victims, Rwandan society and the United Nations”, the Security Council established a pool of ad litem judges. See “Identical Letters dated 14 September 2001 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council”, UN Doc. A/56/265-S/2001/764, 19 September 2001, Appendix, p. 7; Security Council Resolution 1431 (2002), UN Doc. S/RES/1431, 6 September 2002, paras. 1, 2.

[15] The Appeals Chamber refers to the delays caused by the Prosecution’s lack of readiness, the replacement of Judge Maqutu, and the inability of witnesses to travel from Rwanda to Arusha as scheduled. See supra, paras. 364, 370-372.

[16] See Sainović et al. Appeal Judgement, para. 101; Haradinaj et al. Appeal Judgement, para. 46.

[17] The Appeals Chamber notes that the United Nations Human Rights Committee, the African Commission on Human and People’s Rights, and the ECtHR have held that it is for the contracting States to organise their legal systems in such a way that their courts can meet the requirement of a trial within a reasonable time. See, e.g., B. Lubuto v. Zambia, Human Rights Committee, Communication No. 390/1990 (Views adopted on 31 October 1995), UN Doc. CCPR/C/55/D/390/1990 (1995), 3 November 1995, para. 7.3 (“The Committee has noted the State party's explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author's arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c).”); Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), 13 April 1984, para. 10 (Views adopted on 12 May 2003), UN Doc. HRI/GEN/1/REV.6, p. 137 (“Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place “without undue delay”. To make this right effective, a procedure must be available in order to ensure that the trial will proceed “without undue delay”, both in first instance and on appeal.”); Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, African Commission on Human and People’s Rights, Communication No. 301/05, 12 October 2013, para. 235 (“The African Commission also agrees with the Complainants that the complexity of a case should not debar domestic courts from acting with due diligence in dealing with a case on the Merits. At any rate, it is the responsibilities of States Parties to the African Charter to organize their judiciary in such a way that the right guaranteed in Article 7 (1) (d) of the Charter can be effectively enjoyed”) (internal references omitted); EKO-Energie, SPOL. S.R.O v. The Czech Republic, ECtHR, No. 65191/01, Judgment, 17 May 2005, para. 33 (“The Court recalls that the Convention places a duty on the Contracting States to organize their legal system so as to allow the courts to comply with the requirements of Article 6 § 1 of the Convention, including that of trial within a reasonable time. Nonetheless, a temporary backlog of business might not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind.”); Mansur v. Turkey, ECtHR, No. 16026/90, Judgment, 8 June 1995, para. 68; Dobbertin v. France, ECtHR, No. 13089/87, Judgment, 25 February 1993, para. 44; Vocaturo v. Italy, ECtHR, No. 11891/85, Judgment, 24 May 1991, para. 17 (“As regards the excessive workload, the Court points out that under Article 6 para. 1 (art. 6-1) of the Convention everyone has the right to a final decision within a reasonable time in the determination of his civil rights and obligations. It is for the Contracting States to organise their legal systems in such a way that their courts can meet this requirement.”); Abdoella v. The Netherlands, ECtHR, No. 12728/87, Judgment, 25 November 1992, para. 24 (“Article 6 para. 1 (art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements”.). See also Jean Paul Genie-Lacayo v. Nicaragua, Inter-American Court of Human Rights, Judgment, 29 January 1997, paras. 39, 80 (“There is excessive delay regarding the application for judicial review filed on 29/8/94 which still has not been disposed of. Even considering complexity of case, and excuses, impediments and substitution of judges of the Supreme Court of Justice, the 2 years that have elapsed since the application was admitted is not reasonable and a breach of art8(1).”).

[1] Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Request for Disqualification of Judge Pocar, 6 June 2012, para. 17, referring to Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-60-PT, Decision on Blagojević’s Application Pursuant to Rule 15(B), 19 March 2003, para. 14.

[2] See, e.g., Dimitrov and others v. Bulgaria, ECtHR, No. 77938/11, Judgement, 1 July 2014, para. 159 (“Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary […]. The facts that some of the judges hearing the case ruled against them on some points or decided to proceed in a certain manner do not constitute such proof”); Previti v. Italy, ECtHR, No. 45291/06, Décision sur la recevabilité, 8 December 2009, para. 258 ("La Cour a cependant eu l’occasion de souligner que des craintes quant à un manque d’indépendance et d’impartialité des juges nationaux se fondant uniquement sur le contenu des décisions judiciaires prononcées contre un requérant (Bracci précité, § 52) ou sur les simples circonstances qu’une juridiction interne a commis des erreurs de fait ou de droit et que sa décision a été annulée par une instance supérieure (Sofri et autres, décision précitée) ne sauraient passer pour objectivement justifiées.”); Bracci v. Italy, ECtHR, No. 36822/02, Arrêt, 15 February 2006, para. 52 (“La Cour observe également que les craintes du requérant d'un manque d'indépendance et d'impartialité des juges nationaux se fondent uniquement sur le contenu des décisions judiciaires prononcées à son encontre. Elles ne sauraient dès lors passer pour objectivement justifiées.”); Sofri and others v. Italy, ECtHR, No. 37234/97, Decision, 4 March 2003, Section B.2.a (“Moreover, the fact that a domestic court has erred in fact or law or that its decision has been set aside by a higher court is not capable by itself of raising objectively justified doubts about its impartiality.”).

[1] See Amendments – 14th Plenary Session (23-24 April 2004), pp. 6, 7.

[2] See, e.g., The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Decision on Prosecutor’s Motion to Correct the Indictment Dated 22 December 2000 and Motion for Leave to File an Amended Indictment, 25 January 2001, paras. 26, 40; The Prosecutor v. Éliezer Niyitegeka, Case No. ICTR-96-14-I, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, 21 June 2000, paras. 43-45; The Prosecutor v. Jean Bosco Barayagwiza, Case No. ICTR-97-19-I, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, 11 April 2000, pp. 3, 4; The Prosecutor v. Ferdinand Nahimana, Case No. ICTR-96-11-T, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, signed 5 November 1999, filed 10 November 1999, paras. 7, 14, 15; The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case Nos. ICTR-97-34-I & ICTR-97-30-I, Decision on the Prosecutor’s Motion to Amend the Indictment, 8 October 1999 (“Kabiligi8 October 1999 Decision”), paras. 42, 43.

[3] See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on the Prosecutor’s Motion for Leave to Amend the Indictment, 13 February 2004, para. 35 (originally filed in French, English version filed on 14 May 2004); The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, dated 6 May 1999, signed 24 May 1999, filed 25 May 1999, para. 19. See also Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-PT, Decision on Prosecution’s Motion to Amend the Amended Indictment, signed 12 February 2004, filed 13 February 2004, para. 8; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-PT, Decision on Form of Indictment, 17 September 2003, paras. 35, 36.

[4] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR50, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber II Decision of 6 October 2003 Denying Leave to File Amended Indictment, 12 February 2004 (“Bizimungu et al. 12 February 2004 Appeal Decision”). See also Nahimana et al. Appeal Judgement, paras. 390-393. This issue was subject to disagreement among the judges of the Tribunal. See Bizimungu et al. 12 February 2004 Appeal Decision, Individual Opinion of Judge Pocar.

[1] Cf. 21 August 2007 Appeal Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007], para. 11. See also Practice Direction on Formal Requirements on Appeal [Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005], para. 5.

[1] Rutaganda Appeal Judgement, para. 205.