77.     The Appeals Chamber cannot accept the argument that the phrase “persons responsible for” used in resolution 955 implies that the Tribunal was unable to discharge its judicial functions. The Appeals Chamber recalls that the principle of the presumption of innocence is reiterated in Article 20(3) of the Statute:

“The accused person shall be presumed innocent until proven guilty according to the provisions of the present Statute.”

The Appeals Chamber reiterates with force its holding in Barayagwiza.[1]

[…]

107.    […] The Appeals Chamber recalls that in conformity with the principle of presumption of innocence, as enunciated in the Judgement,[2] supra, it is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt.

335.    The Appeals Chamber notes that a Trial Chamber is required, as a matter of law, under both the Statute and the Rules, to take into account aggravating and mitigating circumstances. Therefore, if it fails to do so, it commits an error of law. Article 23(2) of the Statute provides, inter alia, that in imposing sentence, the Trial Chamber “should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.”

336.    Rule 101(B) of the Rules is binding in that the Trial Chamber “shall take into account” the factors listed. Therefore, if it does not, it will be committing an error of law. The Appeals Chamber must first examine whether or not the Trial Chamber considered these factors.[1] Second, it must consider whether or not it properly took them into account.[2]

337.    In considering the issue of whether a sentence should be revised, the Appeals Chamber notes that the degree of discretion conferred on a Trial Chamber is very broad. As a result, the Appeals Chamber will not intervene in the exercise of this discretion, unless it finds that there was a “discernible error”[3] or that the Trial Chamber has failed to follow the applicable law.[4] In this regard, it confirms that the weighing and assessing of the various aggravating and mitigating factors in sentencing is a matter primarily within the discretion of the Trial Chamber. Therefore, as long as a Trial Chamber does not venture outside its “discretionary framework”[5] in imposing a sentence, the Appeals Chamber shall not intervene.

338.    The burden rests on the Appellants to “show that the Trial Chamber abused its discretion, so invalidating the sentence. The sentence must be shown to be outside the discretionary framework provided by the Statute and the Rules.”[6]

[…]

352.    […] The Appeals Chamber recalls that the degree of discretion conferred on a Trial Chamber in the area of sentencing is broad, and that the gravity of the offence is the primary consideration in imposing sentence.[7] Furthermore, as noted above, a Trial Chamber must consider the individual circumstances of the accused, as well as the aggravating and mitigating factors; weighing these factors is a task primarily within its discretion. The Appeals Chamber will not intervene in this exercise unless there has been an abuse of discretion. […]

See also paras. 363 and 366.

357.    The Appeals Chamber finds that the fact that the Accused held a position of authority or leadership may constitute an aggravating factor in sentencing. In the Kambanda Appeal Judgement, this Chamber, in affirming the sentence imposed by the Trial Chamber, expressly noted the Trial Chamber finding that “the aggravating circumstances surrounding the crimes negate the mitigating circumstances, especially since Jean Kambanda occupied a high ministerial post at the time he committed the said crimes.”[1] Furthermore, in the Aleksovski Appeal Judgement, ICTY Appeals Chamber maintained that the Appellant’s “superior responsibility as a warden seriously aggravated the Appellant’s offences, [and that] instead of preventing it, he involved himself in violence against those whom he should have been protecting …”.[2]

358.    The Appeals Chamber would interpret the existing jurisprudence on this point as follows: Article 6(3) imposes liability on a superior if he knew or had reason to know that his subordinate was about to commit such acts or had done so, and had failed to take the necessary and reasonable measures to prevent such acts or punish the perpetrators. The mere fact that an accused has command authority is not an aggravating circumstance in sentencing, in respect of Article 6(3) charge; that goes only to conviction. However, a finding that superior responsibility lies because of such failure to prevent or punish does not preclude a further finding that the manner in which an accused exercises his command can be an aggravating circumstance in relation to sentencing. […]

14. [A]n indictment must necessarily, in the absence of a special order, consist of the one document.  Its contents cannot properly or practicably be identified by reference to a number of documents in which statements made in one document are altered by statements made in another document. […]

15. In any event, the argument by the prosecution that the whole of the altered contents of the two schedules related only to matters of evidence is not made out.  An indictment is required to plead the material facts upon which the prosecution relies, but not the evidence by which those material facts are to be proved.  Whether or not a fact is material depends upon the proximity of the accused person to the events for which that person is alleged to be criminally responsible.[1]  If the accused person is alleged to have personally committed the acts giving rise to the charges against him, the material facts would include such details as the identity of the victim, the place and the approximate date of the events in question, and the means by which the offence was committed.[2]  As the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the prosecution relies to establish his responsibility as an accessory or as a superior to the persons who personally committed the acts giving rise to the charges against him.[3]

36.     One of the duties of a Trial Chamber is to assess the credibility of witnesses.  In discharging that duty, the Trial Chamber takes into account all the circumstances of the case.  As stated in the Aleksovski Appeal Judgement, “[w]hether a Trial Chamber will rely on single witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.”[1]  It may be that a Trial Chamber would require the testimony of a witness to be corroborated, but according to the established practice of this Tribunal and of the International Criminal Tribunal for the Former Yugoslavia (ICTY), that is clearly not a requirement.[2]

37.     In the instant case, the Trial Chamber affirmed that it “may rule on the basis of a single testimony if, in its opinion, that testimony is relevant and credible.”[3] It further stated that:

[…] it is proper to infer that the ability of the Chamber to rule on the basis of testimonies and other evidence is not bound by any rule of corroboration, but rather on the Chamber’s own assessment of the probative value of the evidence before it.

The Chamber may freely assess the relevance and credibility of all evidence presented to it. The Chamber notes that this freedom to assess evidence extends even to those testimonies which are corroborated: the corroboration of testimonies, even by many witnesses, does not establish absolutely the credibility of those testimonies.[4]

38.     The Appeals Chamber is of the view that these statements correctly reflect the position of the law regarding the Trial Chamber’s discretion in assessing testimonies and the evidence before it.

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.