[1] Rwamakuba Appeal Decision [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007], para. 24. See also Gatete Appeal Judgement, para. 286; Kajelijeli Appeal Judgement, para. 255. See also International Covenant on Civil and Political Rights, General Assembly Resolution 2200 A (XXI), UN Doc. A/RES/21/2200, 16 December 1966, entered into force on 23 March 1976 (“ICCPR”), Article 2(3)(a).

[2] Rwamakuba Appeal Decision, para. 27.

[3] Cf. Kajelijeli Appeal Judgement, para. 206 (internal references omitted):

[…] However, even if it were to reconsider the issue of its personal jurisdiction, the Appeals Chamber does not find that these newly and more detailed submitted breaches rise to the requisite level of egregiousness amounting to the Tribunal’s loss of personal jurisdiction. The Appeals Chamber is mindful that it must maintain the correct balance between “the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law.” While a Chamber may use its discretion under the circumstances of a case to decline to exercise jurisdiction, it should only do so “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity.” For example, “in circumstances where an accused is very seriously mistreated, maybe even subject to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, this may constitute a legal impediment.” However, those cases are exceptional and, in most circumstances, the “remedy of setting aside jurisdiction, will . . . be disproportionate.” The Appeals Chamber gives due weight to the violations alleged by the Appellant; however, it does not consider that this case falls within the exceptional category of cases highlighted above.

[4] See Gatete Appeal Judgement, paras. 45, 286, 287; Kajelijeli Appeal Judgement, paras. 323, 324; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Review Decision”), para. 75; Semanza Appeal Decision [Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, dated 31 May 2000, filed 1 June 2000 (originally filed in French, English translation filed on 4 July 2001)], p. 34.

[5] See Barayagwiza Review Decision, para. 75; Semanza Appeal Decision, p. 34. See also Rwamakuba Appeal Decision, paras. 24-30.

[6] Rwamakuba Appeal Decision, paras. 31, 32.

[1] The Appeals Chamber recalls that, in the Kajelijeli Appeal Judgement, the Appeals Chamber upheld the Trial Chamber’s reliance, with respect to establishing Kajelijeli’s de facto superior position over Interahamwe, on evidence that the Interahamwe reported to him the details of the massacres they participated in following his instructions to kill Tutsis and orders to dress up and start work. However, the Interahamwe’s daily reporting was only considered as one of several relevant evidentiary indicia of authority in the circumstances of the case and was not considered a necessary element for the establishment of superior authority in general. See Kajelijeli Appeal Judgement, para. 90. See also Ndahimana Appeal Judgement, para. 53, referring to Blaškić Appeal Judgement, para. 69.

[2] Halilović Appeal Judgement, para. 210 (“Indeed, the Appeals Chamber recalls that the material ability to punish and its corresponding duty to punish can only amount to effective control over the perpetrators if they are premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators. In this regard, the ability to exercise effective control in the sense of a material power to prevent or punish necessitates a pre-existing relationship of subordination, hierarchy or chain of command.”) (internal reference omitted). See also Bizimungu Appeal Judgement, para. 133 (“The Appeals Chamber recalls that the material ability to prevent or punish can only amount to effective control over the perpetrators if it is premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators.”) (internal reference omitted).

[3] See Halilović Appeal Judgement, para. 207. See also Blaškić Appeal Judgement, para. 69.

[4] See Čelebići Appeal Judgement, para. 303 (internal reference omitted).

[5] This is the type of authority that could allow for the imposition of ordering liability under Article 6(1) of the Statute. See Semanza Appeal Judgement, para. 361 (“Thus, in its definition, the Trial Chamber did not require proof of a formal superior-subordinate relationship for the Appellant to be found responsible for ordering. All that it required was the implied existence of a superior-subordinate relationship. The Trial Chamber’s approach in this case is consistent with recent jurisprudence of the Appeals Chamber. As recently clarified by the ICTY Appeals Chamber in Kordić and Čerkez, the actus reus of ‘ordering’ is that a person in a position of authority instruct another person to commit an offence. No formal superior-subordinate relationship between the accused and the perpetrator is required. It is sufficient that there is proof of some position of authority on the part of the accused that would compel another to commit a crime in following the accused’s order. The Trial Chamber thus committed no legal error in its enunciation of the elements of ordering.”) (internal references omitted).

[6] See supra, para. 2568.

[7] The Appeals Chamber stresses that only through an accused’s superior position does the corresponding duty arise to exercise effective control to prevent the crimes of subordinates or punish them. See Halilović Trial Judgement, para. 87 (“[I]nternational humanitarian law entrusts commanders with a role of guarantors of laws dealing with humanitarian protection and war crimes, and for this reason they are placed in a position of control over the acts of their subordinates, and it is this position which generates a responsibility for failure to act.”). Cf. Bagilishema Appeal Judgement, paras. 33, 35.

[1] See, e.g., Karemera and Ngirumpatse Appeal Judgement, para. 660; Lukić and Lukić Appeal Judgement, para. 536; Bagosora and Nsengiyumva Appeal Judgement, para. 394; Ntakirutimana Appeal Judgement, para. 516.

[2] See, e.g., Lukić and Lukić Appeal Judgement, para. 536; Stakić Appeal Judgement, para. 260, referring to Ntakirutimana Appeal Judgement, para. 516.

[3] See, e.g., Lukić and Lukić Appeal Judgement, para. 537; Rukundo Appeal Judgement, para. 185; Ntakirutimana Appeal Judgement, para. 516. See also Bagosora and Nsengiyumva Appeal Judgement, fn. 924.

[4] Lukić and Lukić Appeal Judgement, para. 538 and references cited therein.

[5] Lukić and Lukić Appeal Judgement, para. 538 and references cited therein.

[6] Bagosora and Nsengiyumva Appeal Judgement, para. 396. See also Karemera and Ngirumpatse Appeal Judgement, para. 661.

[7] See supra, Sections V.F, V.G.3, V.G.4, V.I, V.J.

[8] Trial Judgement, paras. 5783, 5784, 5844, 5852, 5854, 5870-5873, 5914, 5915. The Appeals Chamber is mindful that there is no genocidal intent requirement for the crime of extermination as a crime against humanity. However, the Appeals Chamber finds that the Trial Chamber’s findings with respect to the perpetrators’ and Ntahobali’s genocidal intent are relevant in this case to establish that the killings were directed against Tutsis as a collective group rather than victims in their individual capacities.

[9] Cf. Lukić and Lukić Appeal Judgement, para. 537.

[10] See Trial Judgement, paras. 1018, 1398, 5949.

[11] See Trial Judgement, paras. 5754, 5757, 5774, 5955.

[12] Trial Judgement, paras. 5756, 5773, 5954. The Appeals Chamber is mindful that there is no genocidal intent requirement for the crime of extermination as a crime against humanity. However, the Appeals Chamber finds that the Trial Chamber’s findings with respect to the perpetrators’ and Ndayambaje’s genocidal intent are relevant in this case to establish that the killings were directed against Tutsis as a collective group rather than victims in their individual capacities.

[13] See also supra, para. 2125.

[1] Trial Judgement, paras. 4985, 5938, 6014.

[2] Trial Judgement, paras. 4985, 5938, 6014.

[3] Trial Judgement, paras. 5940, 6018.

[4] Trial Judgement, paras. 5870, 5871. See also ibid., paras. 5873, 5874. Nyiramasuhuko was found guilty of genocide for ordering Interahamwe to kill Tutsis who had sought refuge at the Butare Prefecture Office. See ibid., paras. 5867, 5876, 5969, 5970.

[5] Rukundo Appeal Judgement, para. 234; Blagojević and Jokić Appeal Judgement, para. 123; Krstić Appeal Judgement, para. 33. See also Jelisić Appeal Judgement, para. 47; Semanza Appeal Judgement, paras. 261, 262; Kayishema and Ruzindana Appeal Judgement, para. 159.

[6] Cf. Šainović et al. Appeal Judgement, para. 1035.

[7] See supra, para. 985.

[1] Tadić Appeal Judgement, para. 227. See also Stakić Appeal Judgement, para. 64; Brđanin Appeal Judgement, para. 364.

[2] Tadić Appeal Judgement, para. 228. See also Stakić Appeal Judgement, para. 65; Brđanin Appeal Judgement, para. 365; Krajišnik Appeal Judgement, paras 200-208, 707.

[3] Tadić Appeal Judgement, para. 228. See also Stakić Appeal Judgement, para. 65; Brđanin Appeal Judgement, paras 365, 411; [ainović et al. Appeal Judgement, para. 1557.

[1] Šainović et al. Appeal Judgement, para. 1649.

[2] Šainović et al. Appeal Judgement, paras 1623-1625, referring to Tadić Appeal Judgement, para. 229, Aleksovski Appeal Judgement, para. 163, Gotovina and Markač Appeal Judgement, para. 127, Brđanin Appeal Judgement, para. 151, Krstić Appeal Judgement, para. 137, Čelebići Appeal Judgement, para. 352, Blaškić Appeal Judgement, paras 45-46 (quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249), Krnojelac Appeal Judgement, paras 33, 37, Kvočka et al. Appeal Judgement, paras 89-90, Blagojević and Jokić Appeal Judgement, paras 127, 186, 189, 191, 193-194, Simić Appeal Judgement, para. 85, Orić Appeal Judgement, para. 43, Vasiljević Appeal Judgement, paras 102, 134-135, Kupreškić et al. Appeal Judgement, paras 254, 283, Karera Appeal Judgement, para. 321, Nahimana et al. Appeal Judgement, paras 482, 672, Kalimanzira Appeal Judgement, para. 74, Ntawukulilyayo Appeal Judgement, paras 214, 216, Rukundo Appeal Judgement, para. 52, Muvunyi I Appeal Judgement, para. 79, Seromba Appeal Judgement, para. 139, Muhimana Appeal Judgement, para. 189, Ntagerura et al. Appeal Judgement, para. 370, Ntakirutimana Appeal Judgement, para. 530. See also Šainović et al. Appeal Judgement, paras 1619, 1650, referring to Mrkšić and [ljivančanin Appeal Judgement, para. 159, Lukić and Lukić Appeal Judgement, para. 424. See further Šainović et al. Appeal Judgement, para. 1622.

[3] Šainović et al. Appeal Judgement, paras 1626-1648. The Appeals Chamber examined the jurisprudence derived from cases which dealt with crimes committed during the Second World War and found that, in none of these relevant cases, was “specific direction” required as a distinct element. See Šainović et al. Appeal Judgement, paras 1627-1642. The Appeals Chamber also reviewed national law and held that requiring specific direction for aiding and abetting liability is not a general, uniform practice in national jurisdictions. See Šainović et al. Appeal Judgement, paras 1643-1646. Finally, the Appeals Chamber examined international instruments (the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission in 1996 and the ICC Statute) and found no support for the proposition that specific direction is an element of aiding and abetting liability under customary international law. See Šainović et al. Appeal Judgement, paras 1647-1648. See also Šainović et al. Appeal Judgement, para. 1622.

[4] Šainović et al. Appeal Judgement, paras 1623-1625, 1649.

[5] Perišić Appeal Judgement, para. 36.

[6] Šainović et al. Appeal Judgement, para. 1650.

[7] Šainović et al. Appeal Judgement, para. 1649, quoting Blaškić Appeal Judgement, para. 46, in turn quoting Blaškić Trial Judgement, para. 283, in turn quoting Furundžija Trial Judgement, para. 249. Accordingly, the Appeals Chamber confirmed that “the Mrkšić and Šljivančanin and Lukić and Lukić Appeal Judgements stated the prevailing law in holding that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting, accurately reflecting customary international law and the legal standard that has been constantly and consistently applied in determining aiding and abetting liability”. See Šainović et al. Appeal Judgement, para. 1650 (internal references omitted).

[8] Popović et al. Appeal Judgement, para. 1758, quoting [ainović et al. Appeal Judgement, para. 1649. See also Popović et al. Appeal Judgement, paras 1764, 1783.

[9] Trial Judgement, para. 1264. In this regard, the Appeals Chamber notes that the Trial Chamber took a slightly different approach from the Perišić Appeal Judgement, which considered substantial contribution by an aider and abettor to be a requirement independent from, and in addition to, specific direction, and stated that substantial contribution may be one of the factors for determining whether specific direction is established. See Perišić Appeal Judgement, paras 38-39. In the present case, the Prosecution asserts that, even accepting that specific direction constitutes an element of the actus reus of aiding and abetting, the Trial Chamber misapplied the legal test for aiding and abetting as set out in the Perišić Appeal Judgement, by making a finding of substantial contribution contingent upon establishing specific direction. See Prosecution Appeal Brief [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A, Prosecution Appeal Brief, 11 September 2013 (confidential; public redacted version filed on 25 September 2013)], para. 161. See also Prosecution Appeal Brief, paras 154-155. Given that the Appeals Chamber has found that specific direction is not an element of aiding and abetting liability, the Prosecution’s argument is moot to the extent that it concerns the Trial Chamber’s misapplication of the legal test as set out in the Perišić Appeal Judgement.

[10] See supra, paras 104-106.

[11] Deronjić Appeal Judgement, para. 96; D. Nikolić Appeal Judgement, para. 81.

[12] See supra, paras 104-105.

[13] See supra, para. 119. 

[1] See supra, paras 104-106.

[2] Deronjić Appeal Judgement, para. 96; D. Nikolić Appeal Judgement, para. 81.

[3] See supra, paras 104-105.

[4] See supra, para. 119. 

[1] See Motion for Appointment of Amicus Curiae [The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Motion for Appointment of Amicus Curiae Prosecutor to Investigate Prosecution Witness GEK, 2 August 2015 (with public annexes A-D and confidential annex E)], para. 13; Appeal [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-AR90/108, Appeal of Decision on Jurisdiction to Investigate Prosecution Witness GEK, 15 October 2015], para. 45.

[2] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”), paras. 4, 6.

[3] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Motions for Reconsideration, 5 September 2014 (“Prlić Decision of 5 September 2014”), p. 3; Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Decision of 27 September 2011 and of his Sentence, 29 June 2012, p. 3; Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2012 (“Uwinkindi Decision of 23 February 2012”), para. 11, referring to Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3.

[4] See Uwinkindi Decision of 23 February 2012, para. 10, referring to 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, para. 21; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006 (“Niyitegeka Decision of 27 September 2006”), p. 3, referring to Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), signed on 31 March 2000, filed on 7 April 2000, para. 49. Cf. Prosecutor v. Pavle Strugar, Case No. IT-01-42-Misc.1, Decision on Strugar’s Request to Reopen Appeal Proceedings, 7 June 2007, para. 25.

[5] Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Motion on Behalf of Veselin [ljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009, p. 2; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision on Hassan Ngeze’s Motions and Requests Related to Reconsideration, 31 January 2008, p. 3; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 6; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version), paras. 79, 80; Prosecutor v. Zoran Žigić a/k/a “Ziga”, 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. 9.

[6] Eliézer Niyitegeka v. Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Assignment of Counsel, 6 November 2014, para. 11, referring to François Karera v. Prosecutor, Case No. MICT-12-24-R, Decision on Request for Assignment of Counsel, 4 December 2012, para. 11; François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012, para. 8; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Motion for Reconsideration of Fifth Review Decision, 25 March 2010, para. 5; Niyitegeka Decision of 27 September 2006, pp. 2, 3.

[7] Prlić Decision of 5 September 2014, p. 3, referring to Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mićo Stanišić’s Motion Seeking Reconsideration of Decision on Stanišić’s Motion for Declaration of Mistrial and Župljanin’s Motion to Vacate Trial Judgement, 24 July 2014, para. 12.

[8] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-A & IT-95-5/18-T, Decision on Motion by Radovan Karadžić for Reconsideration of Decision on Motion for Access to Confidential Materials in the Stanišić and Simatović Case, 16 February 2015, p. 2, referring to Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-A, Decision on the Prosecution’s “Motion for Reconsideration and Rescission of the Order to Disclose Issued in Trial Chamber’s ‘Decision on Motion by Radovan Karadžić for Access to Confidential Materials in the Lukić and Lukić Case’ of 10 July 2009“, 7 December 2009, para. 4.

[9] Munyarugarama Decision of 5 October 2012, para. 5.