20. Insofar as the Appellant argues that the sentence of 20 years was unfair because it was longer than the facts underlying the charges required, the Appeals Chamber can find no error in the exercise of the Trial Chamber’s discretion in this regard.  The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead.

[…]

22. With respect to the Appellant’s final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention.  The Trial Chamber’s decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber’s analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber.

28. Neither the Statute nor the Rules provide guidance for judicial discretion with respect to the recommendation of a minimum sentence.  The discretion of a Trial Chamber to recommend a minimum sentence flows from the powers inherent in its judicial function and does not amount to a departure from the Statute and the Rules.  However, the judicial discretion of Trial Chambers to attach conditions to sentences is subject to the limitations imposed by fundamental fairness.

[…]

31. […] the Trial Chamber’s recommendation that the ten-year minimum sentence begins to run “from the date of this Sentencing Judgment or of the final determination of any appeal, whichever is the” later raises legitimate concerns. Such a condition could suggest to prospective appellants that the exercise of the right to appeal could result in enhanced penalties.  The consequential discouragement of appeals may deprive the Appeals Chamber of the opportunity to hear appeals on substantial questions of law.

32. Accordingly, the Appeals Chamber finds that the Trial Chamber erred insofar as it ordered that the recommended minimum term take as its starting point the final determination of any appeal.   […]

See also paras. 29–30.

21. […]  The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken unto account by the Trial Chambers for the purpose of sentencing, the wording of the Sub-rule 101(A) of the Rules, which grants the power to imprison for the remainder of a convicted person’s life, itself shows that a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system. […]  

See paragraph 72 of the decision.

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

See paragraphs 42, 60 of the decision.

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

See paragraphs 46-47, 53-54, 61-63 of the decision.

See also paragraphs 48-51, 55-57, 64, 67 of the decision.

[RULE 40 bis OF THE ICTR STATUTE WAS AMENDED ON 26 JUNE 2000 AND 30 MAY 2001]

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

See paragraphs 91-92, 99 of the decision.

Disclaimer: No Word version of the present decision is currently available. It has therefore not been possible to include the text of the decision. Instead, the reader is directed to the relevant paragraphs of the decision.

20. [T]he RequestingState had no right to be notified or to be heard before the Binding Order was issued to it.

See also paragraphs 18-19.

In paragraph 34, the Appeals Chamber recalled that a binding order to a State for the production of documents must satisfy four criteria.

38. […] The requirement of specificity [i.e. the first criterion] clearly prohibits the use of broad categories, which, of course, in itself is a relative term.  It does not […] prohibit the use of categories as such.

[…]

40. The second criterion states that the requested documents have to be relevant to the trial of the accused.  The Appeals Chamber takes the view that it falls squarely within the discretion of the Trial Chamber to determine whether the documents sought are relevant to the trial.  Furthermore, the State from whom the documents are requested does not have locus standi to challenge their relevance.  […]

41. The third criterion states that a binding order must not be unduly onerous.  This criterion must be read together with the clearly illustrative statement that “a party cannot request hundreds of documents, particularly when it is evident that the identification, location and scrutiny of such documents by the relevant national authorities would be overly taxing and not strictly justified by the exigencies of the trial”.[1]  Contrary to the assertion of the Requesting State, this criterion does not automatically exclude all requests that involve the production of hundreds of documents.  […]  It entails the striking of a balance between the need, on the one hand, for the Tribunal to have the assistance of States in the collection of evidence for the purpose of prosecuting persons responsible for serious violations of international humanitarian law and the need, on the other hand, to ensure that the obligation upon States to assist the Tribunal in the evidence collecting process is not unfairly burdensome.  […] [T]he crucial question is not whether the obligation falling upon States to assist the Tribunal in the evidence collecting process is onerous, but whether it is unduly onerous, taking into account mainly whether the difficulty of producing the evidence is not disproportionate to the extent that process is “strictly justified by the exigencies of the trial”.[2] 

[…]

43. The fourth criterion states that a State shall be given sufficient time for compliance with a binding order.  [I]t does not follow from this requirement that a State is entitled to be heard prior to the issuance of the binding order.  It simply sets out the obvious in the sense that a State must be given a reasonable time-frame in which to comply.  It follows from the statement that “[r]easonable and workable deadlines could be set by the Trial Chamber after consulting the requested State”,[3] and that it falls within the discretion of the Trial Chamber to do so. […]

[On 17 November 1999, Rule 54bis was adopted.]

248. The Appeals Chamber agrees with the Prosecution that there is nothing in Article 5 to suggest that it contains a requirement that crimes against humanity cannot be committed for purely personal motives. The Appeals Chamber agrees that it may be inferred from the words “directed against any civilian population” in Article 5 of the Statute that the acts of the accused must comprise part of a pattern of widespread or systematic crimes directed against a civilian population[1] and that the accused must have known that his acts fit into such a pattern. There is nothing in the Statute, however, which mandates the imposition of a further condition that the acts in question must not be committed for purely personal reasons, except to the extent that this condition is a consequence or a re-statement of the other two conditions mentioned.

249. The Appeals Chamber would also agree with the Prosecution that the words “committed in armed conflict” in Article 5 of the Statute require nothing more than the existence of an armed conflict at the relevant time and place. The Prosecution is, moreover, correct in asserting that the armed conflict requirement is a jurisdictional element, not “a substantive element of the mens rea of crimes against humanity”[2] (i.e., not a legal ingredient of the subjective element of the crime).

250. This distinction is important because, as stated above, if the exclusion of “purely personal” behaviour is understood simply as a re-statement of the two-fold requirement that the acts of the accused form part of a context of mass crimes and that the accused be aware of this fact, then there is nothing objectionable about it; indeed it is a correct statement of the law.  It is only if this phrase is understood as requiring that the motives of the accused (“personal reasons”, in the terminology of the Trial Chamber) not be unrelated to the armed conflict that it is erroneous. Similarly, that phrase is unsound if it is taken to require proof of the accused’s motives, as distinct from the intent to commit the crime and the knowledge of the context into which the crime fits.

251. […] A nexus with the accused’s acts is required, however, only for the attack on “any civilian population”. A nexus between the accused’s acts and the armed conflict is not required, as is instead suggested by the Judgement. The armed conflict requirement is satisfied by proof that there was an armed conflict; that is all that the Statute requires, and in so doing, it requires more than does customary international law.

See also paragraphs 256–270.

The Appeals Chamber concluded:

271. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.

272. For the above reasons, however, the Appeals Chamber does not consider it necessary to further require, as a substantive element of mens rea, a nexus between the specific acts allegedly committed by the accused and the armed conflict, or to require proof of the accused’s motives. Consequently, in the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.

321. The mandate of the International Tribunal, as set out in Article 1 of the Statute, is to prosecute persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia. To fulfil its mandate, a Trial Chamber has to ascertain the credibility of all the evidence brought before it. A Trial Chamber must also take account of the following provisions of the Statute: Article 20(1), concerning the need to ensure a fair and expeditious trial, Article 21 dealing with the rights of the accused, and Article 22, dealing with the protection of victims and witnesses. Further guidance may be taken from Article 14 of the International Covenant on Civil and Political Rights[1] and Article 6 of the European Convention on Human Rights,[2] which are similar to Article 21 of the Statute.

322. With regard to the present case, once a Defence witness has testified, it is for a Trial Chamber to ascertain the credibility of his or her testimony.  If he or she has made a prior statement, a Trial Chamber must be able to evaluate the testimony in the light of this statement, in its quest for the truth and for the purpose of ensuring a fair trial.  Rather than deriving from the sweeping provisions of Sub-rule 89(B), this power is inherent in the jurisdiction of the International Tribunal, as it is within the jurisdiction of any criminal court, national or international.  In other words, this is one of those powers mentioned by the Appeals Chamber in the Blaškić (Subpoena) decision which accrue to a judicial body even if not explicitly or implicitly provided for in the statute or rules of procedure of such a body, because they are essential for the carrying out of judicial functions and ensuring the fair administration of justice.[3]

323. It would be erroneous to consider that such disclosure amounts to having the Defence assist the Prosecution in trying the accused.  Nor does such disclosure undermine the essentially adversarial nature of the proceedings before the International Tribunal, including the basic notion that the Prosecution has to prove its case against the accused.  Although this provision was not in force at the time relevant to the present enquiry, it is worth noting that Sub-rule 73ter(B) provides that should a Pre-Defence Conference be held:

[…] the Trial Chamber may order that the defence, before the commencement of its case but after the close of the case for the prosecution, file the following:

[…];

(iii)        a list of witnesses the defence intends to call with:

(a)        the name or pseudonym of each witness;

(b)         a summary of the facts on which each witness will testify;

[…][4]

This Sub-rule does not require that the Defence file its witness statements.  But the substance is not far removed: the provision has been designed to assist a Trial Chamber in preparing for hearing the Defence case, and the Prosecution in preparing for cross-examination of the witnesses.

324. As stated above, once the Defence has called a witness to testify, it is for a Trial Chamber to ascertain his or her credibility.  If there is a witness statement, in the sense referred to above, it would be subject to disclosure only if so requested by the Prosecution and if the Trial Chamber considers it right in the circumstances to order disclosure.  The provisions of Rule 68 are limited to the Prosecution and do not extend to the Defence.  Disclosure would follow only once the Prosecution’s case has been closed.  Even then, Sub-rules 89(C),[5] (D)[6] and (E)[7] would still apply to such a disclosed witness statement, with the consequence that a Trial Chamber might still exclude it.  Furthermore, the provisions of Sub-rule 90(F)[8] relating to self-incrimination would of course apply.

325. The Appeals Chamber is also of opinion that no reliance can be placed on a claim to privilege.  Rule 97[9] relates to lawyer-client privilege; it does not cover prior Defence witness statements.

It concluded:

326. For the reasons set out above, it is the opinion of the Appeals Chamber that a Trial Chamber may order, depending on the circumstances of the case at hand, the disclosure of Defence witness statements after examination-in-chief of the witness. [10]