(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.

15. […] The Appeals Chamber recalls that the existence of a mechanism to monitor Mr. Uwinkindi’s case was an important consideration for the Referral Chamber and the Appeals Chamber in rendering their respective decisions on the referral of Mr. Uwinkindi’s case to Rwanda.[1] The Appeals Chamber also takes note of the Referral Chamber’s statement that “effective monitoring would require the monitoring to begin from the date the case is transferred to the relevant national authority”,[2] and shares the concerns of both Mr. Uwinkindi and the Prosecution that the monitoring mechanism contemplated by the Referral Chamber is not yet in place.[3]

16. In rendering the Decision of 16 December 2011, however, the Appeals Chamber did not assume that such a mechanism was already established, nor did it assume that any final agreement with the [African Commission on Human and Peoples’ Rights (“ACHPR”)] had been reached.[4] To the contrary, the Appeals Chamber specifically noted that the Tribunal lacks the authority to compel an independent organization which is neither a party nor an organ of the Tribunal to conduct monitoring.[5] The Appeals Chamber also explicitly observed that the Referral Chamber “requested the Registrar to enter into a suitable agreement with the ACHPR and to seek further directions from the President of the Tribunal, should the arrangements prove ineffective”.[6] The Appeals Chamber thus contemplated that issues with respect to the establishment and effectiveness of the monitoring mechanism might arise, and that such issues could be resolved through the process envisaged by the Referral Chamber involving consultation with the President of the Tribunal or, if not, “[could] be brought to the attention of the Tribunal for appropriate action”.[7] It follows that it is within the authority of the President of the Tribunal to direct the Registrar to seek other sources of funding to meet the ACHPR’s terms or to make arrangements for an alternative monitoring mechanism, and the Appeals Chamber expects that, in light of the changed circumstances, the President will do so.[8] Based on the foregoing, the Appeals Chamber considers that even if the terms proposed by the ACHPR are currently untenable for the Tribunal and arrangements with the ACHPR may have so far proven ineffective, this does not demonstrate a clear error of reasoning in the Appeals Chamber’s Decision of 16 December 2011.

28. The Appeals Chamber is not convinced that the Referral Chamber erred in failing to address the issue of which party bears the burden of proof, or that it placed an inappropriate burden on the Defence in this respect. In its submissions, the Prosecution acknowledged that it bore the burden of proof to demonstrate that Mr. Uwinkindi’s trial in Rwanda will be fair.[1] The Appeals Chamber considers that, in cases where the Prosecution requests referral, it bears the burden of proof to demonstrate that the conditions set out in Rule 11bis of the Rules are met. However, the Appeals Chamber recalls that a designated trial chamber may also rely on any information and orders it reasonably finds necessary in determining whether the proceedings following the transfer will be fair.[2] A review of the Impugned Decision as a whole reflects that the Referral Chamber correctly regarded the burden of proof as falling on the Prosecution and also acted within its discretion in relying on other information or its own orders to satisfy itself that Mr. Uwinkindi’s trial in Rwanda will be fair.

61. The Appeals Chamber observes that, in assessing the availability of defence witness testimony, the Referral Chamber correctly noted that its role was not to determine whether the witnesses’ fears were well-founded, but instead to focus on the likelihood that Mr. Uwinkindi will be able to secure their appearance on his behalf under the same conditions as those testifying against him.[1] The Appeals Chamber further considers that the Referral Chamber emphasized the need for adequate legal safeguards to address the subjective fears that might discourage witnesses from testifying,[2] and demonstrated awareness of the range of fears expressed by Mr. Uwinkindi’s potential defence witnesses about appearing at a trial in Rwanda. In particular, the Referral Chamber noted that most witnesses feared prosecution under Rwanda’s genocide ideology law, while others feared that they would be killed, abducted, transferred to prisons away from their families, or persecuted in prison as a repercussion for their testimony, or that their family members would be subjected to retaliation.[3]

62. The Appeals Chamber considers that the Referral Chamber acted within its discretion in finding that the recent amendments to relevant laws and enhancements to witness protection services constitute sufficient assurances to address defence witnesses’ concerns and to help secure their appearance. Notably, with regard to securing witnesses’ appearances, the Referral Chamber considered: (i) defence and amicus curiae submissions indicating past cases in which defence witnesses have been subjected to prosecutions, intimidation, and actual or threatened violent reprisals for testifying; and (ii) previous findings by the Appeals Chamber in Rule 11bis decisions confirming fear of these consequences as obstacles to securing defence witness testimony.[4] Despite the similarity between the concerns expressed by defence witnesses in this case and those in previous referral cases, the Referral Chamber acted within its discretion in finding it “logical to assume that with the amendments made to [the Transfer Law] regarding witness immunity, the creation of a new witness protection programme, and the safeguards imposed by the Chamber on Rwanda,” the Appeals Chamber’s previous findings that witnesses may be unwilling to testify are “no longer a compelling reason for denying referral.”[5]

64. The Referral Chamber acted within the scope of its discretion in relying on the existence of such a legal framework as a primary basis for determining whether an accused will be able to secure the attendance of reluctant witnesses.[6] The Appeals Chamber has previously held that a designated trial chamber could reasonably deny referral notwithstanding the existence of this framework, largely due to the specific finding that the accused may face difficulties in securing the attendance of witnesses to the extent that it would jeopardize his right to a fair trial.[7] However, it is equally within the discretion of a trial chamber to find that the ability to compel testimony is a factor which can be taken into account in addressing the subjective fears of defence witnesses. The Appeals Chamber is satisfied that the Referral Chamber had a reasonable basis to conclude that Mr. Uwinkindi will be able to secure the attendance of witnesses.

66. The Appeals Chamber notes, however, that the existence of witness protection services and a regime for obtaining compulsory process is not necessarily a panacea for securing the testimony of defence witnesses who have obtained refugee status in countries outside Rwanda. It would be unreasonable to require refugees, for whom a well-founded fear of persecution upon returning to Rwanda has been determined, to appear as witnesses in Rwanda before the High Court. The Referral Chamber considered, however, that the Transfer Law allows for alternative methods of obtaining testimony from witnesses abroad: by deposition, video-link, or a judge sitting in a foreign jurisdiction.[8] Given the variety of alternative means available under the Transfer Law for securing such testimony, the Appeals Chamber is not convinced that the Referral Chamber committed a discernible error by failing to determine whether video-link was technically feasible in each of the countries where Mr. Uwinkindi’s potential witnesses are located.

67. The Appeals Chamber further notes that it would be a violation of the principle of equality of arms if the majority of defence witnesses appeared by means substantially different from those for the Prosecution.[9] However, the Appeals Chamber notes that Mr. Uwinkindi has not identified how many of his potential witnesses might fall into this category or that it constitutes a sufficiently significant part of his possible evidence. It cannot be said that hearing a portion of evidence from either party by alternative means per se amounts to a violation of an accused’s rights. The relevant inquiry is a fact-based assessment that is best left to a chamber with a fully developed record as to the nature of the evidence against the accused, and with specific knowledge of the nature of the proposed defence case and the relevant sources of evidence.

37. The Appeals Chamber recalls that, in assessing the conditions of detention, a designated trial chamber should ascertain whether the laws governing detention incorporate relevant international standards regarding the treatment of prisoners.[1] In this respect, the Appeals Chamber notes that, in assessing the conditions of detention in Rwanda, the Referral Chamber discussed the guarantee in the Transfer Law[2] that any person transferred would be detained in accordance with the minimum standards of detention adopted by United Nations General Assembly Resolution 43/173, and that the detention would be subject to monitoring by a representative of the Tribunal or the International Committee of the Red Cross.[3] Mr. Uwinkindi has not demonstrated that the Referral Chamber’s consideration of this legal framework was a discernible error.

38. With respect to the monitoring of the detention conditions, the Appeals Chamber finds Mr. Uwinkindi’s assertions unpersuasive. The Appeals Chamber recalls that the conditions of detention are a relevant consideration in assessing the fairness of domestic criminal proceedings.[4] Thus, it was within the inherent authority of the Referral Chamber to extend the monitoring to this aspect of the referral of his case.[5] Mr. Uwinkindi’s challenge to the effectiveness of this monitoring by referring to the finite mandate of the Tribunal fails to account for the role that the International Residual Mechanism for Criminal Tribunals (“Residual Mechanism”) will play in ensuring oversight of referred cases.[6] Moreover, the Appeals Chamber is not satisfied that the Referral Chamber erred in not identifying the measures that would be taken if it received a report of mistreatment, as such measures could only be determined in a specific context.

52. […] the Appeals Chamber takes specific note of the provisions ordered by the Referral Chamber for monitoring the case,[7] and recalls that, should the interpretation of the Transfer Law set forth herein be proven incorrect, the Tribunal in any event retains the right to revoke the reference of this case to the Rwandan courts. In this respect, the Appeals Chamber notes that although the Referral Chamber requested the African Commission on Human and Peoples’ Rights (“ACHPR”) to monitor the referred case and submit reports every three months after its initial report,[8] nothing in the Impugned Decision precludes the ACHPR from making more frequent or interim reports, as appropriate. In this context, the Appeals Chamber considers that the submission of monitoring reports on a monthly basis is warranted until the President of the Tribunal or Residual Mechanism decides otherwise. The Appeals Chamber is confident that, should there be any violation of Mr. Uwinkindi’s fair trial rights, including Mr. Uwinkindi’s rights to call witnesses and to testify on his own behalf, it would be reported forthwith and a request for revocation of the referral would be made immediately.

83. The Appeals Chamber finds no error in the Referral Chamber relying to a considerable degree on the monitoring mechanism it had fashioned in ensuring that Mr. Uwinkindi’s trial will be fair and, if not, that proceedings would be revoked.[9] The Appeals Chamber recalls that a designated trial chamber has the discretion to order monitoring, and that it may take such a mechanism into account in concluding that the trial will be fair.[10] Moreover, the Appeals Chamber considers that a trial chamber has the authority to dictate the scope of the monitoring and the frequency and nature of the reporting.[11]

84. The Appeals Chamber is also satisfied that the Referral Chamber acted within its discretion in ordering the specific scope and guidelines imposed for the ACHPR’s monitoring in this case. Although the Appeals Chamber notes that the Tribunal lacks the authority to compel an independent organization which is neither a party nor an organ of the Tribunal to conduct monitoring,[12] Rule 11bis(D)(iv) of the Rules authorizes a designated trial chamber to order the Registrar to send monitors. In this case, the Referral Chamber specifically requested the Registrar to enter into a suitable agreement with the ACHPR and to seek further directions from the President of the Tribunal, should the arrangements prove ineffective.[13] Therefore, any difference between the monitoring ordered by the Referral Chamber and the initial expression of willingness by the ACHPR to provide monitoring can be resolved during this process or, if not, can be brought to the attention of the Tribunal for appropriate action.

85. […] Finally, the Appeals Chamber considers that Mr. Uwinkindi’s assertion that there are insufficient means by which he can seek revocation fails to appreciate that the Referral Chamber granted him standing to personally request this remedy, and this contention is therefore dismissed.

10. […] [T]he Appeals Chamber recalls that the advanced stage of proceedings could have a prejudicial effect on victims and witnesses.[1] To this end, the Trial Chamber considered the potential effect that the release of a person accused of such serious crimes could have on victims, stating that “this is one of the reasons why it always ensured that provisional releases of the accused were accompanied by very strict security measures […]”. […] Such measures, in the opinion of the Trial Chamber, “should contribute to reducing the potential effect that the release of [Prlić] in the Republic of Croatia could have on victims and witnesses”.[2] […] [T]he Appeals Chamber cannot find in the present case that the Trial Chamber abused its discretion.

214. The Appeals Chamber recalls that the actus reus of aiding and abetting is constituted by acts or omissions specifically aimed at assisting, encouraging, or lending moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.[1] Whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”, and need not “serve as condition precedent for the commission of the crime.”[2]

[…]

216. The Appeals Chamber considers that it was reasonable for the Trial Chamber to conclude that Ntawukulilyayo substantially contributed to the Kabuye hill killings by encouraging Tutsis to seek refuge there and then providing reinforcements to those attempting to kill them. These acts alone suffice to constitute the actus reus of aiding and abetting. […]

236. The Appeals Chamber considers that Ntawukulilyayo’s participation in the Kabuye hill massacre constituted his culpable conduct and the fact that he was not found guilty of other crimes or that his criminal conduct was limited in time did not reduce that culpability. […]

243. The Appeals Chamber recalls that it has found that the Trial Chamber erred in convicting Ntawukulilyayo of ordering genocide for the killings perpetrated at Kabuye hill. It has nonetheless found no error in the Trial Chamber’s finding that Ntawukulilyayo aided and abetted genocide by instructing the refugees who had gathered at Gisagara market to move to Kabuye hill, and by transporting soldiers to the hill who participated in the attack there.

244. The reversal of Ntawukulilyayo’s conviction for ordering genocide removes the only direct form of responsibility by which he was found to have participated in the Kabuye hill killings. The Appeals Chamber notes that aiding and abetting is a mode of responsibility which has generally warranted lower sentences than forms of direct participation such as committing or ordering.[1] The Appeals Chamber therefore considers that the reversal of Ntawukulilyayo’s conviction for ordering genocide calls for a reduction of his sentence. It notes, nonetheless, that Ntawukulilyayo remains convicted of an extremely serious crime.

245. Taking into account the particular circumstances of this case, the mitigating and aggravating circumstances as found by the Trial Chamber, as well as the form and degree of Ntawukulilyayo’s participation in the crime, the Appeals Chamber reduces Ntawukulilyayo’s sentence of 25 years of imprisonment to 20 years of imprisonment.

202. In additional support of its finding that Ntawukulilyayo knew that he was charged with ordering the killings at Kabuye hill on 23 April 1994, the Trial Chamber recalled that the Prosecution’s Closing Brief and Closing Arguments provided him with further notice that ordering was pleaded.[1] In this regard, the Appeals Chamber emphasizes that the Prosecution is expected to know its case before proceeding to trial.[2] Considering that the basic purpose of informing an accused clearly of the charges against him is so that he may prepare his defence,[3] the Appeals Chamber finds that notification in closing submissions cannot constitute proper notice.