CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamber’s Judgement or factual errors occasioning a miscarriage of justice,[1] it has repeatedly held that it may also consider legal issues that are “of general significance to the Tribunal’s jurisprudence,”[2] even if they do not affect the verdict, so long as they have a “nexus with the case at hand,”[3] and that such determinations do not constitute impermissible “advisory opinions,”[4] but are instead necessary means of moving forward this ad hoc International Tribunal’s jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;[5]

7. […] In the circumstances of this case, the Appeals Chamber finds that should the Prosecution take steps to fulfil its disclosure obligations, a risk would arise that privileged communications would be exposed to the Prosecution to the detriment of the Defendants. This creates a conflict for the Prosecution, which must meet its disclosure obligations under Rules 66 and 68 of the Rules while currently in possession of the Potentially Privileged Material [the potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010].

8. Despite it being within the ambit of the Appeals Chamber to review the Potentially Privileged Material, there also exists a risk that communications between any of the Defendants and their legal counsel could be revealed to the Appeals Chamber. Additionally, as the Potentially Privileged Material comprises a voluminous amount of documentation,[1] should the Appeals Chamber review the Potentially Privileged Material there will be a considerable delay in the appellate proceedings. In light of the above, and out of concern for efficiency and expeditiousness, the Appeals Chamber considers that the best course of action under the circumstances presented is for a Judge of the Tribunal not sitting on the Popović et al. Bench to review the Potentially Privileged Material in order to determine whether lawyer-client privilege attaches to any of the material in question.

The Appeals Chamber reiterated that that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction and that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction. Nonetheless, the Appeals Chamber specifies for the first time that, while any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

12. Rule 75(F)(i) of the Rules provides that “[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the ‘first proceedings’), such protective measures […] shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the ‘second proceedings’) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule”. Pursuant to Rule 75(G) of the Rules, “[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seised of the first proceedings; or (ii) if no Chamber remains seised of the first proceedings, to the Chamber seised of the second proceedings.”

13. In this case, variation is not sought for a case before the Tribunal, and Mr. Mungwarere is not “a party to the second proceedings” within the meaning of Rule 75 of the Rules. However, while Rule 75 of the Rules does not provide for such variation, the Appeals Chamber has held that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction, as in the present case.[1] The Appeals Chamber has also considered that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction.[2]

14. However, the Appeals Chamber considers that a distinction must be drawn between requests from a judge or a court from another jurisdiction, and requests emanating from a party to proceedings before another jurisdiction. While any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, the Appeals Chamber considers that a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

16. The Appeals Chamber notes that Mr. Mungwarere expressly refers to the legal standard applicable to requests for access to confidential material by an accused in another case before the Tribunal.[3] However, the Appeals Chamber emphasizes that, in the present instance, access to confidential material is not sought by an accused in another case before the Tribunal, but by an accused before another jurisdiction.

17. In such a case, the Appeals Chamber considers that the material sought should be specifically identified.[4] In addition, as is the case with requests by an accused in proceedings before the Tribunal, the applicant seeking access to confidential material for proceedings before another jurisdiction must demonstrate a legitimate forensic purpose. The Appeals Chamber recalls in this regard that consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the applicant’s case and the case from which such material is sought.[5] The applicant must further establish that this material is likely to assist his case materially, or that there is at least a good chance that it would.[6]

18. Moreover, the Appeals Chamber has repeatedly underscored the importance of the protected witness’s consent to the disclosure of confidential material for proceedings before another jurisdiction.[7] In the absence of such consent, variation of protective measures may only be granted where the applicant demonstrates that the protective measures are no longer justified or that exceptional circumstances warrant the variation sought.[8]

20. The Appeals Chamber considers that Hategekimana’s submissions are based on the erroneous premise that legal officers play a controlling role in judicial decision-making.[1] The Appeals Chamber has previously held that “[j]udicial decision-making is the sole purview of the Judges and legal officers […] play no role in it.”[2] The Appeals Chamber further considers that “mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves”,[3] to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges. The Appeals Chamber does not find that the role of the legal officer in the competition is “so problematic” as to impugn the impartiality of the Judges or the appearance thereof.[4] Therefore, there is no merit to Hategekimana’s contention that the Trial Chamber erred in allowing the legal officer to be involved in the drafting process of the Trial Judgement.

162. The Appeals Chamber is satisfied that the Trial Chamber reasonably relied on Witness Sezirahiga’s testimony in finding that the actus reus of rape was established. It follows from the Trial Judgement that Witness Sezirahiga observed the commission of the crime from a distance of four meters.[1] Although the witness was not specifically asked about the penetration of his daughter, he clearly and constantly used the word “rape” throughout his testimony to describe what happened to her.[2] The Appeals Chamber is satisfied that this term was reasonably understood in the context of this case as sexual penetration by the witness, the Trial Chamber, and the parties.[3] In this respect, the Appeals Chamber notes that Hategekimana did not dispute at trial that Nura Sezirahiga was raped.[4] The Appeals Chamber therefore finds no merit in his challenge to this aspect of the Trial Chamber’s finding on appeal.

52. The Appeals Chamber recalls that when a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the trial chamber violated a provision of the Statute and/or the Rules and that this violation caused prejudice which amounts to an error of law invalidating the trial judgement.[1] […] The Appeals Chamber would only reverse such a decision [related to the general conduct of trial proceedings] where it was demonstrated that the Trial Chamber committed a discernible error in rendering the decision, based on an incorrect interpretation of the governing law or a patently incorrect conclusion of fact, or where the decision was so unfair or unreasonable so as to constitute an abuse of the Trial Chamber’s discretion.[2]

187. […] It is well established that trial chambers have the discretion to accept some but reject other parts of a witness’s testimony.[1] The Appeals Chamber therefore dismisses Kanyarukiga’s assertion that the Trial Chamber was precluded from relying on Witness CDL with respect to the 16 April 1994 meeting because it rejected other parts of his evidence. The Trial Chamber’s rejection of portions of his testimony rather demonstrates that it was fully aware of credibility concerns relating to this witness and that it adopted a cautious approach to his evidence.

76. The Trial Chamber referred to the conversation when assessing Kanyarukiga’s actus reus of planning.[1] Moreover, the Trial Chamber concluded in this context that it was “satisfied beyond reasonable doubt that Gaspard Kanyarukiga, Grégoire Ndahimana, Fulgence Kayishema, Télesphore Ndungutse, Joseph Habiyambere and others planned the destruction of the Nyange [c]hurch on 15 and 16 April 1994 and that the church was destroyed on the afternoon of 16 April 1994, killing those inside.”[2] Accordingly, in the Trial Chamber’s view, Kanyarukiga planned the destruction of the church on both days, his criminal conduct on 15 April 1994 consisting of his conversation with Kayishema.[3] This conversation thus amounted to a material fact that, along with others, underpinned Kanyarukiga’s conviction for planning. Recalling that when the accused is charged with planning, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charge in question,[4] the Appeals Chamber finds that the conversation should have been pleaded in the Amended Indictment. In this respect, the Amended Indictment was defective.

77. However, as will be discussed below, Kanyarukiga was also held responsible for participating in a meeting at the Nyange parish on the morning of 16 April 1994 where the demolition of the Nyange church was discussed and agreed to as well as for making a remark after the meeting about the need to destroy the church. This conduct was adequately pleaded in the Amended Indictment and is a sufficient basis for Kanyarukiga’s convictions. Therefore, by partly relying on Kanyarukiga’s conversation on 15 April 1994, the Trial Chamber did not commit an error which would invalidate the verdict. The Appeals Chamber therefore declines to consider the issue further[5] and will instead simply disregard the conversation as a basis for Kanyarukiga’s liability.

150. The Appeals Chamber recalls the finding in the Zigiranyirazo Appeal Judgement that “evidence concerning specific travel details taken after several years can only be of limited assistance in establishing the time and exact itinerary” of a trip taken in April 1994.[1] However, it also recalls that, in the circumstances of that case, the observations of the Trial Chamber on the site visit were found to be a relevant factor in assessing the credibility of the alibi.[2] As such, although it is true that observations from a site visit taken several years after an event may only be of limited assistance, their relevance will depend on the circumstances of each case. Therefore, the Appeals Chamber does not find that the Trial Chamber erred in law by comparing its observations during the site visit with the evidence of the alibi witnesses. The Appeals Chamber will therefore turn to consider whether the Trial Chamber was reasonable in this comparison.

262. The Appeals Chamber notes that motive, as opposed to mens rea, is not an element of any crime.[1] The question whether Kanyarukiga lacked a motive to participate in the crimes for which he was convicted thus does not have the potential to invalidate the verdict and the Appeals Chamber declines to consider it.[2]