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.

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

21. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate credibility and weight to be accorded to the testimony of a witness;[1] corroboration is one of many potential factors relevant to this assessment.[2] A Trial Chamber retains discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.[3]

[…]

24. Nevertheless, the Appeals Chamber recalls that two prima facie credible testimonies need not be identical in all aspects or describe the same fact in the same way in order to be corroborative.[4] Every witness presents what he has seen from his own point of view at the time of the events, or according to how he understood the events recounted by others.[5] It follows that corroboration may exist even when some details differ between testimonies, provided that no credible testimony describes the facts in question in a way which is not compatible with the description given in another credible testimony.[6]

23. The Appeals Chamber recalls that, pursuant to Article 22 of the Statute, “[t]he judgement shall be rendered by a majority of the judges of the Trial Chamber, and shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned opinion in writing, to which separate or dissenting opinions may be appended”. Similarly, Rules 88(A) and (C) of the Rules of Procedure and Evidence of the Tribunal (“Rules”) provide that “[t]he judgement shall be pronounced in public”, “rendered by a majority of the Judges”, and “accompanied or followed as soon as possible by a reasoned opinion in writing”.

24. In the present case, the Trial Judgement was rendered unanimously and delivered in public on 18 December 2008. It was followed by a written reasoned opinion on 9 February 2009. On the day of the delivery of the Trial Judgement, the Trial Chamber pronounced its verdict and sentence, and provided an oral summary of the judgement, highlighting key findings. It specified that:

The judgement amounts to several hundred pages. The Chamber will now read out its summary. Only the key findings can be highlighted here. The full text of the judgement will be available in the coming days after the conclusion of the editorial process. It contains many incidents where the Prosecution did not prove its case. A French translation will be provided in due course. This summary is not binding. Only the written judgement is authoritative.[1]

25. While the oral summary of the Trial Chamber’s findings was not authoritative, the verdicts and sentences pronounced on 18 December 2008 were. The reasoned opinion which followed was simply a written version of the judgement. The Appeals Chamber considers it to be clear from the statement noted above that the written reasoned opinion was complete at the time of the delivery of the judgement on 18 December 2008 and that what followed was merely the completion of the editorial process.[2] Nsengiyumva does not demonstrate that Judge Reddy failed to fulfil his judicial duties in this case prior to the expiration of his mandate on 31 December 2008.

394. Extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale,[1] committed within the context of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds.[2]

396. The […] Appeals Chamber considers that the Trial Chamber was unreasonable to conclude that the “large scale” requirement for extermination was satisfied based on a collective consideration of events committed in different prefectures, in different circumstances, by different perpetrators, and over a period of two months. Each of the incidents which formed the basis of Nsengiyumva’s convictions presented distinct features and could not be said to constitute one and the same incident.[1] As such, they could not be considered to constitute one and the same crime sharing the same actus reus.

397. The Appeals Chamber notes that the Trial Chamber nonetheless suggested that some of the killings of which the co-Accused were convicted “in themselves” satisfied the requirement of killing on a large scale.[1] However, the Trial Chamber failed to make any factual findings as to whether the killings perpetrated in Gisenyi town on 7 April 1994 met the requisite threshold of having been committed “on a large scale” in themselves.[2] With respect to the killings in Gisenyi town, the Trial Chamber’s findings are limited to stating that “targeted attacks against Tutsis and suspected accomplices” were perpetrated.[3] The Appeals Chamber is concerned that the Trial Chamber did not make any specific findings on this fundamental element of the crime of extermination.

398. Nevertheless, the Appeals Chamber considers that the facts as found by the Trial Chamber and the evidence it relied upon support a finding beyond reasonable doubt that the killings in Gisenyi town were perpetrated on a large scale. The Appeals Chamber notes with respect to the Gisenyi town killings that the Trial Chamber accepted and relied upon Prosecution Witness DO’s evidence that the victims included: a Tutsi teacher and his daughter; Hutus suspected of being accomplices, such as Daniel Rwabijongo, as well as Assoumani Kajanja and his Tutsi wife; Gilbert and another Tutsi man hiding in a compound with him; and a Tutsi woman named Mukabutare and her daughter.[4] Witness DO testified that there were several other groups of assailants apart from the one he was assigned to that were perpetrating parallel killings throughout Gisenyi town at the same time.[5] In the Appeals Chamber’s view, these killings are qualifiable as having occurred on a large scale.

79. The Appeals Chamber recalls that the conduct of trial proceedings, including decisions on protective measures and disclosure, is a matter which falls within the discretion of Trial Chambers. This discretion encompasses the ability of a Trial Chamber to revisit its previous decisions. In this regard, it recalls that Rule 69(A) of the Rules explicitly provides that the Trial Chamber may order the non-disclosure of the identity of a victim or witness “until the Chamber decides otherwise”. Accordingly, the fact that there was already an existing protective measures order in Nsengiyumva’s case which the Trial Chamber replaced does not in itself amount to an error. Nonetheless, the Appeals Chamber will now consider whether the Decision on Protective Measures of 7 December 2001[[2]] was in conformity with the Rules.

81. In its Decision on Protective Measures of 7 December 2001, the Trial Chamber acknowledged that the plain language of Rule 69(C) of the Rules required the Prosecution to disclose all protected witnesses’ identifying data prior to the commencement of trial.[3] Nevertheless, it concluded that a departure from the plain language of the Rule was justified by the objective of providing meaningful protection for victims and witnesses.[4] Following consultation with the Witnesses and Victims Support Section of the Prosecution (“WVSS-P”), it found that this unit was unable to place under its protection all the witnesses in the case at the same time.[5] It considered that neither the mandate of witness protection nor the necessity of ensuring that the accused had sufficient time to prepare his defence could be sacrificed and reasoned that “a proper balance must be struck to determine what amount of advance disclosure is strictly necessary to serve the twin aims of Rule 69”.[6] The Trial Chamber concluded that to require the Prosecution to disclose unredacted witness statements and protected witnesses’ identifying data prior to the commencement of trial was “ill advised because it would unnecessarily tax any real notion of witness protection without advancing the Accused’s right to effective cross-examination in any meaningful way”.[7]

82. Although the disclosure requirements under Rule 66 of the Rules are subject to Rule 69, the Appeals Chamber recalls that while a Trial Chamber may order the non-disclosure of the identity of a victim or witness who may be in danger or at risk pursuant to Rule 69(A) of the Rules, it must first establish the existence of exceptional circumstances. In the Decision on Protective Measures of 7 December 2001, the Trial Chamber referred to “the existence of the exceptional circumstance”,[8] without elaborating on what it considered to amount to the exceptional circumstance justifying the non-disclosure of the victims’ and witnesses’ identity. The Appeals Chamber notes, however, that the Trial Chamber recalled that it had consulted with WVSS-P[9] and considered that WVSS-P had informed the Trial Chamber that it lacked the capacity and resources to place all the witnesses under protection at the same time.[10] The Appeals Chamber understands that the Trial Chamber considered that this inability to provide protection to all the witnesses at the same time amounted to an exceptional circumstance warranting the delayed disclosure of the identity of the witnesses. The Appeals Chamber does not find error in this approach.

83. Nevertheless, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony. While a Trial Chamber has discretion pursuant to Rule 69(A) of the Rules regarding the ordering of protective measures where it has established the existence of exceptional circumstances, the Appeals Chamber recalls that this discretion is still constrained by the scope of the Rules. In this regard, it notes that at the time of the decision, Rule 69(C) of the Rules provided that “the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the prosecution and the defence”.[11]

84. Furthermore, the Appeals Chamber does not consider that, as stated by the Trial Chamber, such disregard for the explicit provision of the Rules was necessary for the protection of witnesses.[12] It notes that in the previous witness protection decision in the Nsengiyumva case prior to the joinder, the Trial Chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the Tribunal, but had nonetheless required that the Defence be provided with unredacted witnesses statements “within sufficient time prior to the trial in order to allow the Defence a sufficient amount of time to prepare itself”.[13] At no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule.

85. In light of the foregoing, the Appeals Chamber considers that the Trial Chamber erred in ordering the Prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to the trial, as then provided by the Rules. […]

See also para. 80.