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] […]

391. The Appeals Chamber reiterates that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[1] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[2]

[…]

394. However, the Appeals Chamber does not find that the violation of the co‑Appellants’ right to be tried without undue delay and the prejudice they suffered were so serious or egregious as to justify a stay or the termination of the proceedings requested by Nyiramasuhuko, Ntahobali, Kanyabashi, Nteziryayo, and Ndayambaje.[3] Nevertheless, in light of the length of the undue delay, the Appeals Chamber is also not convinced that a formal recognition of the violation would constitute an effective remedy in the present case.

395. The Appeals Chamber observes that a reduction of sentence has been considered an effective remedy in cases where the breach of the fair trial rights resulted in the accused being detained impermissibly or for a longer period than necessary.[4] Financial compensation has also been envisioned in limited situations where the accused was ultimately not found guilty.[5] In the Rwamakuba case, where the accused was acquitted of all charges, a financial compensation was awarded to André Rwamakuba as part of an effective remedy for the violations of his rights to legal assistance and to initial appearance without delay.[6]

2516.            […] [I]t is apparent that the key source of Kanyabashi’s knowledge and the conduct by which he was alleged to have failed to prevent or punish the crimes on the basis of which he was convicted was materially different from the acts expressly pleaded in the Indictment. As such, the Appeals Chamber considers that the Trial Chamber’s findings were based upon a set of material facts different from those that were specifically pleaded in the Indictment, set forth in the Prosecution Pre-Trial Brief, and pursued throughout the trial. The Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi based on material facts that were not pleaded by the Prosecution in the Indictment and at trial.

See also para. 2518.

1003.            […] The reporting of subordinates to a superior and rewards by a superior for doing so are indicia relevant to determining effective control but are not a necessary requirement.[1]

[…]

2568.            The Appeals Chamber recalls that the imposition of superior responsibility necessitates a pre‑existing superior-subordinate relationship between the accused and the perpetrators.[2] While proof that an accused is not only able to issue orders but that his orders are actually followed provides an example of effective control,[3] the Appeals Chamber has held that:

[t]he ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of the superior-subordinate relationship, will almost invariably not be satisfied unless such a relationship of subordination exists. However, it is possible to imagine scenarios in which one of two persons of equal status or rank – such as two soldiers or two civilian prison guards – could in fact exercise ‘effective control’ over the other at least in the sense of a purely practical ability to prevent the conduct of the other by, for example, force of personality or physical strength. The Appeals Chamber does not consider the doctrine of command responsibility – which developed with an emphasis on persons who, by virtue of the position which they occupy, have authority over others – as having been intended to impose criminal liability on persons for the acts of other persons of completely equal status.[4]

[…]

2570.            The Appeals Chamber considers that the Trial Chamber’s findings that Kanyabashi ordered soldiers to shoot at Tutsis and that the soldiers obeyed this order may be demonstrative of the fact that Kanyabashi was in a position of authority or influence that could compel the commission of a crime through the execution of his orders.[5] As noted above, these findings could be indicative of the fact that Kanyabashi exercised effective control over the soldiers.[6] However, the Appeals Chamber finds that no reasonable trier of fact could have found that a single order from a civilian authority which was followed by soldiers demonstrated a pre-existing superior‑subordinate relationship, which, in turn, imposed a duty on that civilian authority to prevent the soldiers from committing crimes or to punish them for the crimes committed.[7]

1058.            […] The Appeals Chamber acknowledges the critical role investigators play to Defence investigations. […]