280. The Appeals Chamber recalls that the well-established principle of gradation in sentencing holds that leaders and planners should bear heavier criminal responsibility than those further down the scale, subject to the proviso that the gravity of the offence is the primary consideration for a trial chamber in imposing a sentence.[1] Thus, although Kanyarukiga was convicted as a planner, the primary consideration remained the gravity of his offences.

281. The determination of the gravity of the offence requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime. The Appeals Chamber notes that the Trial Chamber expressly considered the very serious nature of the crimes committed, their scale, and the fact that Kanyarukiga participated in planning them.[3] In particular, the Trial Chamber observed that the destruction of the Nyange church on 16 April 1994 resulted in the deaths of over 2,000 Tutsi civilians and that the crimes “were grave and resulted in overwhelming human suffering”.[4]

43. Turning to Ntabakuze’s submission regarding the opportunity to enroll in a work programme, the Appeals Chamber stresses that such a complaint must first be made to the Commanding Officer of the Tribunal’s Detention Unit, who has responsibility for all aspects of the daily management of the Detention Unit.[1] If the detainee is not satisfied with the response of the Commanding Officer, he may then make a written complaint to the Registrar of the Tribunal, who shall then forward it to the President of the Tribunal.[2] In the present case, Ntabakuze has failed to show that the matter is properly brought before the Appeals Chamber after the exhaustion of all available remedies. His complaint is accordingly dismissed.

106. The Appeals Chamber recalls that the Prosecution’s failure to expressly state that a paragraph in the indictment supports a particular count in the indictment is indicative that the allegation in the paragraph is not charged as a crime.[1] Paragraphs 4.6 and 4.8 of the Indictment, however, are contained in a section titled “The Accused”, which merely describes Ntabakuze and provides information on his professional background and military authority during the period of the relevant events.[2] Although they contain material facts supporting elements of crimes pleaded elsewhere in the Indictment, paragraphs 4.6 and 4.8 do not plead allegations that may be separately charged as a crime. As a result, the Appeals Chamber considers that the Prosecution was not required to plead these paragraphs expressly under each of the counts in the charging section of the Indictment.

169. Turning first to Ntabakuze’s submissions concerning effective control, the Appeals Chamber recalls that, while de jure authority is not synonymous with effective control, the possession of de jure powers may suggest a material ability to prevent or punish criminal acts of subordinates.[1]

289. The Appeals Chamber notes that Ntabakuze did not make any explicit sentencing submission at trial regarding this argument.[1] Rule 86(C) of the Rules clearly indicates that sentencing submissions shall be addressed during closing arguments. It was therefore Ntabakuze’s responsibility to identify all mitigating circumstances he wished to have considered at the time.[2] Ntabakuze failed to do so. In view of the lack of specific pleadings at trial, the Appeals Chamber finds no error in the Trial Chamber not expressly considering whether this factor should have been taken into consideration in mitigation.[3] Ntabakuze’s argument in this respect is therefore rejected.

292. The Appeals Chamber recalls that expressions of sincere regret, sympathy, compassion, or sorrow for the victims of the crimes with which an accused is charged may be considered as mitigating factors.[1] In light of the possible impact genuine regret may have on a sentence, the Appeals Chamber considers that the fact that the Trial Chamber expressly referred to other particular factors while not expressly mentioning Ntabakuze’s statement of regret allows for the conclusion that it failed to consider Ntabakuze’s submission. The Appeals Chamber finds that the Trial Chamber should have considered whether this factor constituted a mitigating circumstance, and, if so, whether it should have been accorded any weight. In order to establish whether this error invalidates the Trial Chamber’s determination of the sentence, the Appeals Chamber turns to examine Ntabakuze’s alleged expression of regret.

293. In his Closing Brief, Ntabakuze expressed his eagerness “to be given the chance to work together with his countrymen, without distinction, to reconstruct and reconcile the nation”.[2] He also expressly referred to his testimony at trial during which he stated that he strongly condemned the massacres of Tutsi refugees throughout Rwanda, calling them a “terrible tragedy”, expressed his sadness for the victims, and, while denying his involvement in the massacres, stated: “I regret that I could not have done more to stop [the massacres] […] personally, and using my troops. […] It is regrettable, it is a terrible situation, it is a very sad tragedy […]”.[3]

294. The Appeals Chamber considers that Ntabakuze’s expression of regret should have been considered as a mitigating factor in sentencing by the Trial Chamber,[4] and that the Trial Chamber erred in failing to consider it as such. However, the Appeals Chamber does not find that this error invalidates the sentence imposed by the Trial Chamber, as it considers that the gravity of the crimes for which Ntabakuze was convicted at trial and the aggravating factors identified by the Trial Chamber greatly outweighed this mitigating factor. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

271. The Appeals Chamber notes that the Trial Chamber did not refer to Ntabakuze’s role as a superior in its discussion of the aggravating circumstances.[1] In its discussion of mitigating factors, the Trial Chamber acknowledged that Ntabakuze was “at times following superior orders in executing [his]] crimes”, but concluded that mitigation was not warranted on this ground based, in part, on Ntabakuze’s “own senior status and stature in the Rwandan army”.[2] Contrary to Ntabakuze’s submission, the Appeals Chamber does not consider that the Trial Chamber’s reliance on Ntabakuze’s senior status and stature to deny mitigation implies that it de facto counted them as aggravating circumstances.[3] Grounds for denying mitigation do not, per se, constitute aggravating circumstances, and there is nothing in the Trial Judgement which suggests that the Trial Chamber considered them as such. The Appeals Chamber accordingly rejects Ntabakuze’s argument that the Trial Chamber relied on Ntabakuze’s role as a superior as an aggravating factor in sentencing.

298. The Appeals Chamber recalls that while sentences of like individuals in like cases should indeed be comparable,[1] Trial Chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[2] Comparison between cases is thus generally of limited assistance.[3] Any given case may contain a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual,[4] and often the differences are more significant than the similarities, and the mitigating and aggravating factors dictate different results for every individual.[5] In the same vein, the Appeals Chamber considers that materially different criminal behaviour of different convicted persons may, by measure of its specific gravity, warrant a coincidentally similar punishment.

299. The Appeals Chamber acknowledges that Bagosora and Nsengiyumva were convicted by the Trial Chamber pursuant to Article 6(1) of the Statute.[6] However, it considers that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute.[7] It also observes that Ntabakuze was convicted on counts of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for events where a substantial number of Tutsi refugees were brutally slaughtered. As to Ntabakuze’s degree of participation in the crimes, it is worth noting that the Trial Chamber found that the massacres for which Ntabakuze was held accountable were “organised military operations which, in such a disciplined and elite unit, only would have occurred following Ntabakuze’s orders or with his authorisation”.[8] Further, the Appeals Chamber notes that the Trial Chamber emphasised the gravity of the Nyanza massacre – an incident for which Bagosora and Nsengiyumva were not convicted – as “one of the most notorious early massacres of the genocide”.[9]

300. In these circumstances, the Appeals Chamber, mindful of the difference in the number and nature of convictions between Ntabakuze on the one hand, and Bagosora and Nsengiyumva on the other hand, finds that Ntabakuze does not demonstrate that the sentence imposed on him by the Trial Chamber was out of reasonable proportion with those it imposed on Bagosora and Nsengiyumva.[10] Ntabakuze’s argument in this respect is therefore rejected.

302. The Appeals Chamber recalls that the sentence must reflect the gravity of the offences.[1] The determination of the gravity of the offences requires a consideration of the particular circumstances of the case, as well as the form and degree of the participation of the convicted person in the crime. Further, the seriousness of a superior’s conduct in failing to prevent or punish crimes must be measured to some degree by the nature of the crimes to which this failure relates, i.e. the gravity of the crimes committed by the direct perpetrator(s).[3]

303. Regarding Ntabakuze’s degree of responsibility by virtue of his conviction pursuant to Article 6(3) of the Statute, the Appeals Chamber observes that the Statute does not accord any “lesser” form of individual criminal responsibility to superior responsibility. While the Appeals Chamber also acknowledges that, in appropriate cases, a conviction under Article 6(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 6(1) conviction,[4] it reiterates its view that, in the circumstances of this case, superior responsibility under Article 6(3) of the Statute is not to be seen as less grave than criminal responsibility under Article 6(1) of the Statute.[5] The Appeals Chamber also recalls the well-established principle of gradation in sentencing, which holds that leaders and planners should bear heavier criminal responsibility than those further down the scale.[6]

305. In light of the foregoing, the Appeals Chamber finds no abuse of discretion in the Trial Chamber’s holding that the gravity of the crimes committed by Ntabakuze warranted similar treatment to those who planned or ordered atrocities as well as the most senior authorities.[7] In the same vein, the fact that Ntabakuze was the first person before the Tribunal to be sentenced to life imprisonment solely based on superior responsibility does not have any bearing on the reasonableness of the Trial Chamber’s findings on the matter. The Appeals Chamber emphasises that a sentence of life imprisonment is provided for in Rule 101(A) of the Rules irrespective of the mode of liability of which an accused is convicted. The Appeals Chamber therefore dismisses this part of Ntabakuze’s appeal.

(i)   Being the only woman detained at the UNDU

11. The Appeals Chamber notes Rašić’s submission that, as the only female detainee at the UNDU, “[h]er detention is consequently a form of quasi-solitary confinement which, though not intended as punitive, threatens to substantially impact her well-being”, and that “[t]his is true particularly in the context of her ongoing psychological condition.”[1] The Appeals Chamber further notes that, in its Sentencing Judgement, the Trial Chamber considered that the fact that Rašić was the only female detainee at the UNDU constituted “special circumstances”.[2] However, the Trial Chamber’s findings in this respect were aimed solely at establishing mitigating factors in sentencing, and supported its decision to consider in mitigation her “good behaviour in detention”.[3] In the Appeals Chamber’s view, the fact that Rašić is the only woman detained at the UNDU does not constitute “special circumstances” pursuant to Rule 65(I)(iii) of the Rules.

(ii)   Serving the entirety of a custodial portion of a sentence

12. However, the Appeals Chamber recalls that, as of 16 March 2012, Rašić has served the entirety of the custodial portion of her sentence. She was therefore eligible for release on 16 March 2012, were it not for the pending appeal,[4] In the Appeals Chamber’s view, this constitutes a special circumstance that, when assessed in conjunction with Rašić’s fulfilment of the other requirements of Rule 65(I) of the Rules, warrants granting her provisional release. The jurisprudence of the Tribunal supports this conclusion,[5] and the fact that contempt proceedings are governed by an expedited regime does not militate against granting provisional release where circumstances warrant it. As such, the Appeals Chamber finds that special circumstances warranting Rašić’s provisional release have been established.