499.   […] The Appeals Chamber recalls that the dissemination of inciting messages via the media may establish the public element of incitement, as noted by the Trial Chamber.[1]

153.   The Appeals Chamber also finds no merit in Ngirumpatse’s contention that the Trial Chamber failed to establish any connection between him and the various criminal acts or other participants in the joint criminal enterprise. In this respect, the Appeals Chamber notes that the Trial Chamber was not required to find that Ngirumpatse contributed to each criminal act, but rather that he made a significant contribution to the common purpose and that each of the crimes for which he was held responsible formed part of that purpose.[1] It is immaterial whether Ngirumpatse was out of the country while some of the criminal acts were perpetrated. A participant in a joint criminal enterprise is not required to be physically present when and where the crime is being committed.[2] […]

52.     The Appeals Chamber further recalls that decisions of individual trial chambers have no binding force on other trial chambers.[1] A trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it.[2] Consequently, two reasonable triers of facts may reach different but equally reasonable conclusions when determining the probative value of the evidence presented at trial.[3] Likewise, the Appeals Chamber considers that an assessment as to whether the defence has been prejudiced by the Prosecution’s disclosure violations and whether a remedy is appropriate depends on the particular circumstances of the case.[4] An error cannot be established by simply demonstrating that other trial chambers have exercised their discretion in a different way.[5]

See also paras 257, 262, 439, 543.

121.  The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[1] Such intent in itself presupposes a genocidal intent.[2]

[…]

124.  […] The Appeals Chamber observes that the Kalimanzira Appeals Chamber did not rule on the definition of the public element given by the Kalimanzira Trial Chamber, which recalled the definition from the Akayesu Trial Judgement, and did not specify whether the number of persons present is an essential factor. On the one hand, the Kalimanzira Appeals Chamber concluded that the Tribunal’s jurisprudence and other sources indicated mass communication to be a factor, implying that the public element of direct and public incitement corresponds to a large audience.[3] On the other hand, the Kalimanzira Appeals Chamber reversed the convictions on the basis that recipients of the incriminating message were not intended to be the general public.[4] It is thus unclear whether the Kalimanzira Appeals Chamber considered the size of the audience to be a requirement of public and direct incitement as opposed to whether the audience can also be selected or limited. In fact, in both the Nahimana et al. and Kalimanzira cases, the Appeals Chamber opined that the “general public” was not the recipient of the message or considered that the message was not intended to be for the general public.[5]

125.  Considering that the jurisprudence of the Appeals Chamber does not specify whether a large audience is a requirement for direct and public incitement to commit genocide, the Appeals Chamber will turn to the definition given by trial chambers,[6] which recalls the definition from the Akayesu Trial Judgement. Referring to various sources of international law, the Akayesu Trial Chamber elaborated on the definition of the public element of the crime of incitement to commit genocide. It noted a 1996 report of the International Law Commission that defined “public incitement” as “a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media, for example, radio or television”.[7] It also considered that the Civil Law systems understood words as being public when “spoken aloud in a place that were [sic] public by definition”.[8]

126.  […] [T]he Appeals Chamber does not consider that the incitement must necessarily be communicated through mass communication in order to amount to “public” incitement within the meaning of Article 2(3)(c) of the Statute. The number of individuals in the audience is not an element of the crime of direct and public incitement to commit genocide. Though the Kalimanzira Appeal Judgement noted that the Tribunal’s jurisprudence includes convictions involving “speeches made to large, fully public assemblies”, in the Appeals Chamber’s view, it does not foreclose convictions based on communications to smaller audiences when the incriminating message is given in a public space to an unselected audience. The Appeals Chamber notes that the travaux préparatoires of the Genocide Convention do not contradict, but support this position by stating that public incitement was understood as “public speeches or in the press, through the radio, the cinema or other ways of reaching the public”, though it expressly excluded “private” incitement.[9] The International Law Commission confirmed that the indispensable element of public incitement requires communicating “the call for criminal action to a number of individuals in a public place or to members of the general public at large. Thus, an individual may communicate the call for criminal action in person in a public place or by technical means of mass communication, such as by radio or television”.[10]

127.  Consequently, the Appeals Chamber detects no error in the Trial Chamber applying the definition of “public” as stated in the Muvunyi, Niyitegeka, Kajelijeli, and Akayesu Trial Judgements. Indeed, though most convictions for direct and public incitement involve mass communication, a smaller audience is also consistent with international law according to which:

[The Trial] Chamber may consider the surrounding circumstances, such as the place where the incitement occurred and whether the audience was selective [sic] or limited. Incitement is ‘public’ when conducted through speeches shouting or threats uttered in public places or at public gatherings[11]

[…]

231.  The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[12] The Appeals Chamber recalls that when assessing the “public” element of the incitement, factors such as the place where the incitement occurred and whether the attendance was selected or limited can be taken into account.[13] It also recalls that the number of persons present is not an essential factor in this assessment.[14] The Appeals Chamber considers that, though not required, the number of persons and the medium through which the message is conveyed may be relevant in assessing whether the attendance was selected or limited, thereby determining whether or not the recipient of the message was the general public.[15]

[…]

386.  The Appeals Chamber is also not persuaded by the Prosecution’s submission that an inciting speech, which discussed public matters, delivered to a gathering of public officials, addressed in their function as public officials, is necessarily public. In support of this argument the Prosecution underlines that, in light of the purpose and object of the crime of incitement, inciting public officials rather than “a gathering of random members of the population” creates a greater risk that genocide will actually occur because public officials “have the authority and the means to trigger massacres”. While this may be the case, the Appeals Chamber fails to see how this supports the public nature of the incitement at the Murambi meeting.

See also paras. 129, 381, 384.

146.  […] The Appeals Chamber is also not convinced that the Trial Chamber was specifically required to determine that assailants of the Night and Day Attacks heard what he said at the Cyayi centre. The Appeals Chamber recalls that the actus reus of “instigating” is to prompt another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] Similarly, it is not required that the individuals who were instigated be the same as those who committed the crimes.[3]

398.  The Appeals Chamber is not persuaded that premeditation or the existence of a pre-existing agreement is an element of the crime of conspiracy to commit genocide […].

See also paras. 255, 391, 448.

15. [...] The Appeals Chamber emphasises that it will make its own assessment of the issues. Indeed, it will consider the arguments of the parties on whether, and to what extent, the finding regarding Judge Harhoff's partiality in the Šešelj Decisions has an impact on the present case. However, the Appeals Chamber will do so as part of the normal appellate process, and only after the parties have fully litigated the matter.1 In these circumstances, the Appeals Chamber considers that it was neither necessary nor appropriate to assess any impact of the Šešelj Decisions in the Impugned Decision. [...] 

18. The Appeals Chamber recalls that, under Article 22(2) of the Statute and Rule 88(C) of the Rules, trial chambers are required to provide a reasoned opinion.[1] Accordingly, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused.[2] A reasoned opinion in the trial judgement is essential to ensuring that the Tribunal’s adjudications are fair, and, inter alia, allows for a meaningful exercise of the right of appeal by the parties, and enables the Appeals Chamber to understand and review the trial chamber’s findings.[3]

19. The Appeals Chamber finds that the absence of any relevant legal findings in the Trial Judgement constitutes a manifest failure to provide a reasoned opinion. Indeed, the Appeals Chamber considers the magnitude of this error to be unprecedented in the history of the Tribunal. Rather than engaging in “the most careful of analyses”, as it was required to do,[4] the Trial Chamber failed to even attempt to address in the Trial Judgement the most fundamental of issues: whether the evidence adduced was sufficient to prove Bizimungu’s individual criminal responsibility for genocide.[5]

20. In light of these omissions and to safeguard Bizimungu’s right to an effective appeal, the Appeals Chamber ordered that the appeals concerning Bizimungu be severed.[6] For these same reasons, the Appeals Chamber also ordered additional submissions from the parties on the evidentiary basis for Bizimungu’s conviction for genocide.[7]

[…]

23. The Appeals Chamber recalls that a trial chamber’s failure to provide a reasoned opinion constitutes an error of law which allows the Appeals Chamber to consider the relevant evidence and factual findings in order to determine whether a reasonable trier of fact could have established beyond reasonable doubt the findings challenged by the appellant.[8]

24. Mindful of the extraordinary nature of the Trial Chamber’s omissions and the gravity of a conviction for genocide, the Appeals Chamber shall assess the findings and evidence relevant to each incident supporting Bizimungu’s genocide conviction to determine whether the elements of genocide are established beyond reasonable doubt.[9] In light of the additional submissions, Bizimungu has had a full and focused opportunity to appeal his genocide conviction and to respond to the Prosecution’s case in this regard. In these circumstances, considerations of fairness do not preclude the Appeals Chamber from conducting this review, and, given the Trial Chamber’s conclusions that genocide was committed and that Bizimungu was responsible for this crime, it is necessary in the interests of justice for the Appeals Chamber to determine whether such findings are sustained by the record.[10]

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.[1] The Trial Chamber did not explicitly find the existence of a superior-subordinate relationship between Bizimungu and the Interahamwe who it found committed the criminal acts which formed the basis of his related convictions, that is, attacks at the École des sciences infirmières de Kabgayi (ESI), the Musambira Commune office and dispensary, the Butare Prefecture office and EER, or the Cyangugu stadium.[2] Nonetheless, the Appeals Chamber considers that the Trial Chamber implicitly found that there was a pre-existing hierarchical relationship based on the same factors it relied upon in establishing that the Interahamwe were under his effective control.[3] The Appeals Chamber will therefore consider Bizimungu’s challenges to the Trial Chamber’s assessment in the context of both Bizimungu’s effective control of, and his superior-subordinate relationship with the Interahamwe.

16. The Appeals Chamber considers that the delays that would inevitably result from allowing Praljak to represent himself will negatively affect the right of Praljak, as well as that of his Co-Appellants (all of whom are represented by counsel) to fair and expeditious proceedings. As a trial chamber of the Special Court for Sierra Leone has held, ensuring adequate legal representation of each defendant is of particular importance in the context of a multi-accused case.[1] The Appeals Chamber notes that this consideration is relevant to the case at hand.[2] Praljak himself has stated on several occasions that his interests would be better served through assistance of counsel, in particular during appeal proceedings.[3] The Appeals Chamber is therefore satisfied, given the specific circumstances of this case, that Praljak should not be allowed to represent himself in these proceedings and considers proprio motu that the assignment of counsel to Praljak would be in the interests of justice pursuant to Rule 45ter of the Rules. Accordingly, the Appeals Chamber finds that there is no reason to stay proceedings as requested by Praljak.