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.

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.