71.     In this instance, the Trial Chamber found that exceptional circumstances existed which justified the non-disclosure of the identities of Prosecution witnesses.  In the opinion of the Appeals Chamber, the Trial Chamber was, in the circumstances, bound to consider the testimony of these witnesses in the same way as that of witnesses who were not afforded protective measures.  Indeed, when assessing the probative value of the testimony of a protected witness, the Trial Chamber may take into consideration his status as protected witness, but it is incorrect to say that a Trial Chamber must exercise “special caution” in assessing such evidence. 

369.   On the issue of cumulative charges, ICTY Appeals Chamber in Čelebići held:

[c]umulative charging is to be allowed in light of the fact that, prior to the presentation of all of the evidence, it is not possible to determine to a certainty which of the charges brought against an accused will be proven.  The Trial Chamber is better poised, after the parties’ presentation of the evidence, to evaluate which of the charges may be retained, based upon the sufficiency of the evidence.  In addition, cumulative charging constitutes the usual practice of both this Tribunal and ICTR.[1]

The Appeals Chamber finds that the above holding on cumulative charges reflects a general principle and is equally applicable to ICTR.  As a result, the Appeals Chamber confirms that cumulative charging is generally permitted.

370.   […] The Appeals Chamber further holds that cumulative charging is generally permitted.

364.   In the case at bar, the Trial Chamber found Musema guilty of genocide (Count 1) and of extermination as a crime against humanity (Count 5) on the basis of the same set of facts.  Musema requests the reversal of the conviction for extermination.  The issue is whether such double conviction is permissible.

365.   Applying the provisions of the test articulated above, the first issue is whether a given statutory provision has a materially distinct element not contained in the other provision, an element being regarded as materially distinct from another if it requires proof of a fact not required by the other.

366.   Genocide requires proof of an intent to destroy, in whole or in part, a national, ethnical, racial or religious group; this is not required by extermination as a crime against humanity.  Extermination as a crime against humanity requires proof that the crime was committed as a part of a widespread or systematic attack against a civilian population, which proof is not required in the case of genocide.

367.   As a result, the applicable test with respect to double convictions for genocide and extermination as a crime against humanity is satisfied; these convictions are permissible.  Accordingly, Musema’s ground of appeal on this point is dismissed.

381.   In Tadić, the Appeals Chamber of ICTY also considered the relative position of a convicted person in a command structure to be a relevant factor in determining sentence.  In that case, the Appeals Chamber considered that, while Tadic’s criminal conduct was “incontestably heinous”,  his level in the command structure in comparison to his superiors was low”,[1]  and consequently, the sentence passed by the Trial Chamber was excessive.[2]  In subsequent ICTY Appeals Chamber decisions, the need to establish a gradation of sentencing has been endorsed.[3]  In the Čelebići appeal, the Appeals Chamber held that:

[e]stablishing a gradation does not entail a low sentence for all those in a low level of the overall command structure.  On the contrary, a sentence must always reflect the inherent level of gravity of a crime … the gravity of the crime may be so great that even following consideration of any mitigating factors, and despite the fact that the accused was not senior in the so-called overall command structure, a very severe penalty is nevertheless justified.[4]

382.   It went on to state that “while the Appeals Chamber has determined that it is important to establish a gradation in sentencing, this does not detract from the finding that it is as essential that a sentence take into account all the circumstances of an individual case”.[5]  It follows that the jurisprudence of ICTY acknowledges the existence of a general principle that sentences should be graduated, that is, that the most senior levels of the command structure should attract the severest sentences, with less severe sentences for those lower down the structure.  This principle is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence.[6]

383.   As to whether this principle should be applicable to the Trial Chambers of this Tribunal, as a general principle, this Appeals Chamber agrees with the jurisprudence of ICTY that the most senior members of a command structure, that is, the leaders and planners of a particular conflict, should bear heavier criminal responsibility than those lower down the scale, such as the foot soldiers carrying out the orders.  But this principle is always subject to the crucial proviso that the gravity of the offence is the primary consideration of a Trial Chamber in imposing sentence; if the offence is serious enough, a Trial Chamber should not be precluded from imposing a severe penalty upon the accused, just because he is not at a high level of command.

47.     In the instant case, the Trial Chamber noted that “the burden of proof of the reliability … of the document lies on the party that seeks to rely on the document”, and that the requisite standard of proof was proof on the balance of probabilities.[1]  Without ruling on the issue as to whether such was the appropriate standard, the Appeals Chamber holds that the Trial Chamber did not err in stating that for a document to be admissible as evidence, the Party relying on it must establish that it has sufficient indicia of reliability.

48.     The Trial Chamber also found that, “the standard of proof required for admissibility should be lower than the standard of proof required in the final determination of the matter at hand through the weighing up of the probative value of all the evidence before the Chamber.”[2]   It is the view of the Appeals Chamber that, in that sentence, the Trial Chamber was making a distinction between admissibility and the final assessment of evidence.

49.     As to the second argument that the Trial Chamber erred in stating that the source of a document could be important in determining the reliability of a document, the Trial Chamber held that:

…the source of a document may, taken in context, impact upon the assessment of the reliability or credibility (or both) of the document. For example, evidence produced in support of a defence of alibi from a source other than the Accused may be of greater probative value than evidence provided or produced by the Accused. While noting this, the Chamber emphasizes that such an understanding of the relationship between the source of documentary evidence and its probative value must in no way be interpreted as a presumption of the guilt of the Accused. The Chamber has not, in any way, allowed its assessment of the probative value of documentary evidence to interfere with the right of the Accused to a fair trial.[3]

50.     The first and second arguments overlap.  Again, Musema has not given any instances where he attempted to adduce evidence before the Trial Chamber, which evidence the Trial Chamber rejected on the grounds that Musema himself was the source thereof. Every Trial Chamber is required, in assessing evidence, to determine its overall reliability and credibility.  In the instant case, the Trial Chamber stated that it had “assessed the relative weight and probative value to be accorded to each piece of evidence in the context of all other evidence presented to it in the course of the trial.”[4] It is correct to state that the sole fact that evidence is proffered by the accused is no reason to find that it is, ipso facto, less reliable. Nevertheless, the source of a document may be relevant to the Trial Chamber’s assessment of the reliability and credibility of that document.  Where such a document is tendered by an accused, a Trial Chamber may determine, for example, if the accused had the opportunity to concoct the evidence presented and whether or not he or she had cause to do so. This is part of the Trial Chamber’s duty to assess the evidence before it.

31. […] As the primary trier of fact, it is the Trial Chamber that has the main responsibility to resolve any inconsistencies that may arise within and/or amongst witnesses’ testimonies.  […]  The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable.[1]  Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence.  However, the Trial Chamber should consider such factors as it assesses and weighs the evidence. 

220.    The Prosecution is correct in maintaining that “the testimony of a single witness on a material fact does not require, as a matter of law, any corroboration”.[1]  Rather, the absence of corroboration is simply one factor to be taken into consideration by the Trial Chamber in weighing the evidence and arriving at its determination of witness credibility.  Certainly, in cases hinging on a single witness’ identification of the accused made in difficult circumstances, corroborative evidence takes on more importance.[2]  However, of itself, the absence of corroboration is not a ground for the Appeals Chamber to intervene in a factual finding made by the Trial Chamber.

75. […] The test to be applied by the Appeals Chamber in deciding whether or not to uphold a conviction where additional evidence has been admitted before the Chamber is: has the appellant established that no reasonable tribunal of fact could have reached a conclusion of guilt based upon the evidence before the Trial Chamber together with the additional evidence admitted during the appellate proceedings.  In framing the test in this manner, the Appeals Chamber has been guided by Rule 117(A) which provides that “[t]he Appeals Chamber shall pronounce judgement on the basis of the record on appeal together with such additional evidence as has been presented to it”.

70. Where the Rule 115 evidence is accepted for consideration, the Appeals Chamber has, in effect, decided that the evidence is sufficiently important that, if it had been before the Trial Chamber at trial, the conclusion of guilt could have been different.  At that stage in the proceedings, the new evidence may not have been subjected to any form of adversarial scrutiny, save for the Appeals Chamber’s initial assessment as to whether it was, on its face, credible.  It may be that there is no dispute between the parties as to this issue.  But, in the more likely case that the opposing party challenges the veracity of the additional evidence, the Appeals Chamber is faced with a choice – either it can test the evidence itself to determine veracity, or order the case to be remitted to a Trial Chamber (either the Trial Chamber at first instance, or a differently constituted Trial Chamber) to hear the new evidence.  In the present case, the Prosecution wished to challenge the veracity of several pieces of additional evidence submitted by the Defendants[1] and the Appeals Chamber decided that the most appropriate course was to hold an evidentiary hearing.[2]  In another instance, it admitted two pieces of conflicting evidence without such a hearing, without prejudice to the determination of the weight to be attached thereto.[3]

71. Obviously, an Appeals Chamber may choose to delay its entire decision on the admissibility and weight of new evidence until the time of the main appeal and decide, at one stage, whether the new material will be admitted and whether it will reverse the conviction.  Such an approach has advantages since the Appeals Chamber will be making its decision on impact at the same time it considers all the other evidence in the case and after it has completed its study of the trial record.  The disadvantage to this procedure is that the parties, in making their main submissions on appeal, are not informed as to whether they can rely on the additional evidence or not.  In some cases, the final appeal hearing will be prolonged considerably.  The present Rule 115 does not require the admissibility of new evidence to be decided at any particular time.  Thus, the Appeals Chamber should choose whether it is most expeditious to postpone hearing the evidence until the time of the main appeal hearing, or to do it earlier, according to the complexity of the new material and of the trial record in the context of what will be assessed.  It should be noted that Rule 117 instructs the Chamber to pronounce judgement on the basis of the record on appeal along with any additional evidence it has received.  This suggests that, even if the decision to admit the evidence is made at the same time as the main appeal, a two-step process is nonetheless envisioned in which new evidence, once admitted, will then be assessed as to its effect upon the appeal as a whole.

88. An indictment shall, pursuant to Article 18(4) of the Statute, contain “a concise statement of the facts and the crime or crimes with which the accused is charged”.  Similarly, Rule 47(C) of the Rules provides that an indictment, apart from the name and particulars of the suspect, shall set forth “a concise statement of the facts of the case”.  The Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and (4)(a) and (b) of the Statute.  These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.  In the jurisprudence of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.[1]  Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.