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Notion(s) | Filing | Case |
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Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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170. The Appeals Chamber recalls that it is settled jurisprudence of the Tribunal that the abuse of a position of influence and authority in society can be taken into account as an aggravating factor in sentencing. […] [1] Renzaho Appeal Judgement, para. 615; Rukundo Appeal Judgement, para. 250; Seromba Appeal Judgement, para. 230; Ndindabahizi Appeal Judgement, para. 136. See also Dragomir Milošević Appeal Judgement, para. 302; Simba Appeal Judgement, para. 284. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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185. The Appeals Chamber recalls that the determination of the gravity of the crime requires consideration of the particular circumstances of the case, as well as the form and degree of the participation of the accused in the crimes. […] [1] Rukundo Appeal Judgement, para. 243; Kordić and Čerkez Appeal Judgement, para. 1061. See also Nahimana et al. Appeal Judgement, para. 1038. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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186. The Appeals Chamber recalls that each case is examined on its own facts. Furthermore, “[j]ust as there is no category of cases within the jurisdiction of the Tribunal where the imposition of life imprisonment is per se barred, there is also no category of cases where it is per se mandated.” The Appeals Chamber notes that, in deciding Munyakazi’s sentence, the Trial Chamber correctly sought guidance from comparable cases which did not result in life sentences. The Prosecution has not demonstrated that the Trial Chamber committed a discernible error in doing so. [1] Rukundo Appeal Judgement, para. 260. [2] Rukundo Appeal Judgement, para. 260. [3] Trial Judgement, para. 517, citing Simba Appeal Judgement, paras. 279-288, Semanza Appeal Judgement, paras. 388, 389, Kayishema and Ruzindana Appeal Judgement, paras. 191, 194, 352. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charges. 37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient. [1] Muvunyi II Appeal Judgement, para. 19; Renzaho Appeal Judgement, para. 53; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndindabahizi Appeal Judgement, para. 16. [2] Muvunyi II Appeal Judgement, para. 19; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33. See also Nahimana et al. Appeal Judgement, para. 326. [3] Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89. See also Ndindabahizi Appeal Judgement, para. 16. [4] Renzaho Appeal Judgement, para. 55; Kalimanzira Appeal Judgement, para. 46; Nchamihigo Appeal Judgement, para. 338; Muvunyi I Appeal Judgement, para. 20; Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Ntagerura et al. Appeal Judgement, paras. 28, 65; Gacumbitsi Appeal Judgement, para. 49. [5] Trial Judgement, para. 491. [6] See Rutaganda Appeal Judgement, para. 304 (noting that indictment paragraphs cannot be read in isolation from the rest of the document). See also Semanza Appeal Judgement, para. 358 (reading various paragraphs of an indictment together in concluding that the appellant was charged with ordering crimes). |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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161. In cases where the Prosecution intends to rely on a theory of joint criminal enterprise, it must plead the purpose of the enterprise, the identity of its participants, the nature of the accused’s participation in the enterprise, and the period of the enterprise. The indictment should also clearly indicate which form of joint criminal enterprise is being alleged. Failure to specifically plead joint criminal enterprise, including the supporting material facts and the category, constitutes a defect in the indictment. 162. In the Simba Appeal Judgement, the Appeals Chamber determined that an indictment properly pleaded the identity of the participants by identifying the physical perpetrators by general category, such as Interahamwe, and then further identifying them with geographic and temporal details related to each massacre site.[4] The Indictment in the present case provides the same degree of specificity when the reference to the Bugarama Interahamwe in paragraph 4 of the Indictment is read together with paragraphs 13 and 14, alleging that Munyakazi and the Bugarama Interahamwe attacked and killed Tutsi civilians at Shangi and Mibilizi parishes, respectively, on 29 and 30 April 1994. Accordingly, the Trial Chamber erred in law in concluding that the reference to the Bugarama Interahamwe was too vague and in limiting its consideration of the evidence to only the named participants. [1] Simba Appeal Judgement, para. 63. [2] Simba Appeal Judgement, para. 63. [3] Simba Appeal Judgement, para. 63. [4] Simba Appeal Judgement, paras. 71, 72, quoting Simba Trial Judgement, paras. 392, 393. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls 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.”[3] 103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very 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.” Rather, the main question is whether two or more credible accounts are incompatible. 118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account. 154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […] 110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […] [1] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [2] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [3] Nahimana et al. Appeal Judgement, para. 428. See also Rukundo Appeal Judgement, para. 201; Karera Appeal Judgement, para. 173. [4] Nahimana et al. Appeal Judgement, para. 428. [5] Nahimana et al. Appeal Judgement, para. 428. [6] Muvunyi II Appeal Judgement, para. 57; Muhimana Appeal Judgement, para. 103; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29. [7] Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [8] Simba Appeal Judgement, para. 16. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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51. A Trial Chamber has the discretion to evaluate whether evidence taken as a whole is reliable and credible and to accept or reject the fundamental features of the evidence.[1] [1] Simba Appeal Judgement, para. 103. See also Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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77. […] The Appeals Chamber recalls that the Trial Chamber has the discretion to cautiously consider and rely on hearsay evidence.[1] […] [1] Kalimanzira Appeal Judgement, para. 96; Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 831. See also Muvunyi I Appeal Judgement, para. 70; Ndindabahizi Appeal Judgement, para. 115; Gacumbitsi Appeal Judgement, para. 115; Rutaganda Appeal Judgement, para. 34. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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135. In relation to genocide and extermination as a crime against humanity, the Appeals Chamber has held that “committing” under Article 6(1) of the Statute, which envisions physical perpetration of a crime, need not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crimes. The question is whether an accused’s conduct “was as much an integral part of the [crimes] as were the killings which it enabled.” In this case, the Trial Chamber found that Munyakazi’s leadership role constituted an integral part of the crimes. This approach is in line with the jurisprudence of the Appeals Chamber. 136. Contrary to Munyakazi’s submissions, his role in the crimes is entirely consistent with the facts of the Seromba and Gacumbitsi cases.[5] Munyakazi fails to appreciate that the Trial Chamber found that he personally participated in the attacks, led the assailants, issued instructions, and, in particular, oversaw key aspects of the crimes, such as the destruction of the door at Shangi parish and the removal of refugees from Mibilizi parish.[6] The Appeals Chamber recalls that it has already rejected Munyakazi’s challenges to the assessment of his alibi, the Prosecution evidence, and his authority.[7] His liability was not based on his prominence or influence alone, but rather on his active involvement in the crimes committed at Shangi and Mibilizi parishes on 29 and 30 April 1994, respectively. [1] Gacumbitsi Appeal Judgement, para. 60. See also Kalimanzira Appeal Judgement, para. 219; Seromba Appeal Judgement, para. 161. [2] Kalimanzira Appeal Judgement, para. 219, quoting Gacumbitsi Appeal Judgement, para. 60. See also Seromba Appeal Judgement, para. 161. [3] Trial Judgement, para. 491. [4] Seromba Appeal Judgement, paras. 164-172, 190; Gacumbitsi Appeal Judgement, para. 60. [5] Seromba Appeal Judgement, para. 171 (“It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed.”); Gacumbitsi Appeal Judgement, para. 60 (“Here, the accused was physically present at the scene of the Nyarubuye Parish massacre, which he ‘directed’ and ‘played a leading role in conducting and, especially, supervising’.”)(internal citations omitted). [6] Trial Judgement, paras. 134, 365, 366, 376, 380, 386, 387, 416, 417, 422, 423, 491. [7] See supra Sections III.A (Alleged Errors in Assessing the Alibi); III.B.1 (Alleged Defects in the Form of the Indictment); III.B.2 (Alleged Errors in the Assessment of the Evidence); III.C (Alleged Errors Relating to Shangi Parish); III.D (Alleged Errors Relating to Mibilizi Parish). |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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160. The Appeals Chamber recalls that the actus reus for participation in a joint criminal enterprise requires: (i) a plurality of persons; (ii) the existence of a common purpose (or plan) which amounts to or involves the commission of a crime encompassed by the Statute; and (iii) the participation of the accused in this common purpose. The basic form of joint criminal enterprise, which is at issue in this case, requires that the accused must both intend the commission of the crime and intend to participate in a common plan aimed at its commission. 163. […] The Trial Chamber concluded that “Munyakazi was as much an integral part of [the] killings as those he enabled” and thus convicted him based on his role in the attacks at Shangi and Mibilizi parishes under Article 6(1) of the Statute for committing genocide and extermination as a crime against humanity. Participation in a joint criminal enterprise is a form of committing under Article 6(1) of the Statute. Therefore, a finding that Munyakazi participated in a joint criminal enterprise in connection with the crimes for which he was convicted would have no bearing on the verdict. Munyakazi’s conviction is based on his committing the crimes, which fully encapsulates his criminal conduct. [1] See Brđanin Appeal Judgement, para. 364. See also Ntakirutimana Appeal Judgement, paras. 463, 466. [2] See Brđanin Appeal Judgement, para. 365. See also Ntakirutimana Appeal Judgement, para. 467. [3] Trial Judgement, para. 491. See also Trial Judgement, paras. 501, 508. [4] Nahimana et al. Appeal Judgement, para. 478; Ntagerura et al. Appeal Judgement, para. 24; Ntakirutimana Appeal Judgement, para. 452. See also Krnojelac Appeal Judgement, para. 29, quoting Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, para. 20. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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141. The Appeals Chamber notes that the Trial Chamber correctly set forth the requisite elements of the mens rea for genocide and extermination as a crime against humanity. In particular, the Trial Chamber observed that for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. With respect to extermination as a crime against humanity, the Trial Chamber recalled that an accused must “intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner.” The Trial Chamber further observed that the perpetrator must have acted with knowledge that his acts formed part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds. 142. The Trial Chamber established Munyakazi’s intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused’s intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi’s suggestion, “[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.” The lack of evidence concerning Munyakazi’s personal views about Tutsis does not undermine the reasonableness of the Trial Chamber’s findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians. [1] Trial Judgement, paras. 493, 504, 506. [2] Trial Judgement, para. 493. [3] Trial Judgement, para. 506. [4] Trial Judgement, paras. 503, 504. [5] Trial Judgement, paras. 380, 423, 491, 496, 500, 507. [6] See, e.g., Rukundo Appeal Judgement, para. 61; Nahimana et al. Appeal Judgement, para. 524; Seromba Appeal Judgement, paras. 176, 177. [7] Simba Appeal Judgement, paras. 262, 266. [8] Simba Appeal Judgement, para. 266. [9] See Trial Judgement, paras. 499, 500. |
ICTR Statute Article 2(2) ICTY Statute Article 4(2) | |
Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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141. The Appeals Chamber notes that the Trial Chamber correctly set forth the requisite elements of the mens rea for genocide and extermination as a crime against humanity. In particular, the Trial Chamber observed that for genocide an accused must act “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. With respect to extermination as a crime against humanity, the Trial Chamber recalled that an accused must “intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner.” The Trial Chamber further observed that the perpetrator must have acted with knowledge that his acts formed part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial, or religious grounds. 142. The Trial Chamber established Munyakazi’s intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused’s intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi’s suggestion, “[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent.” The lack of evidence concerning Munyakazi’s personal views about Tutsis does not undermine the reasonableness of the Trial Chamber’s findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians. [1] Trial Judgement, paras. 493, 504, 506. [2] Trial Judgement, para. 493. [3] Trial Judgement, para. 506. [4] Trial Judgement, paras. 503, 504. [5] Trial Judgement, paras. 380, 423, 491, 496, 500, 507. [6] See, e.g., Rukundo Appeal Judgement, para. 61; Nahimana et al. Appeal Judgement, para. 524; Seromba Appeal Judgement, paras. 176, 177. [7] Simba Appeal Judgement, paras. 262, 266. [8] Simba Appeal Judgement, para. 266. [9] See Trial Judgement, paras. 499, 500. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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115. The Appeals Chamber is not convinced that the Trial Chamber’s assessment of the evidence is unreasonable or shows bias. A presumption of impartiality attaches to any Judge of the Tribunal.[1] The Presiding Judge’s question to Witness Nahimana reveals nothing more than her attempt to understand why the witness was better placed to know what transpired at the parish on 30 April 1994 than the two individuals whom he was visiting.[2] [1] See, e.g., Renzaho Appeal Judgement, para. 21; Nahimana et al. Appeal Judgement, para. 48; Rutaganda Appeal Judgement, para. 42. [2] See T. 2 September 2009 p. 20 (“MADAM PRESIDENT: Can you tell the Court why you think number 2, who is now a priest like yourself, and number 3, another priest – he has been a priest for all these years – would come to these Chambers and tell us that Munyakazi was present on that day and led the attack, since they were living there at the time? Why would they come and tell us that that is what happened, since you are saying that it did not happen because you were a visitor there? THE WITNESS: I do not know if I'm able to answer that question and I wouldn't know what it is they told you. They probably told you things the way they saw it. And I'm telling you things the way I saw it. I wouldn't know the reasons for which they told you what they told you. But I was present on the 30th, and I'm telling you things the way I saw them. MADAM PRESIDENT: You were a mere visitor, who left and went back, and they were living there at the time.”). |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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93. The Appeals Chamber has stated that the ordinary meaning of the term “accomplice” is “an association in guilt, a partner in crime”. The caution associated with accomplice testimony is most appropriate where a witness “is charged with the same criminal acts as the accused.” Like Munyakazi, Witness ELB was charged and convicted based on his participation in several attacks, including at Shangi parish. Therefore, the Appeals Chamber is satisfied that the Trial Chamber correctly described Witness ELB as an accomplice. [1] Ntagerura et al. Appeal Judgement, para. 203, quoting Niyitegeka Appeal Judgement, para. 98. [2] Ntagerura et al. Appeal Judgement, para. 234. [3] Trial Judgement, para. 131. See also T. 17 September 2009 pp. 24, 25. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charges. 37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient. [1] Muvunyi II Appeal Judgement, para. 19; Renzaho Appeal Judgement, para. 53; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement, para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49; Ndindabahizi Appeal Judgement, para. 16. [2] Muvunyi II Appeal Judgement, para. 19; Kalimanzira Appeal Judgement, para. 46; Muvunyi I Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33. See also Nahimana et al. Appeal Judgement, para. 326. [3] Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89. See also Ndindabahizi Appeal Judgement, para. 16. [4] Renzaho Appeal Judgement, para. 55; Kalimanzira Appeal Judgement, para. 46; Nchamihigo Appeal Judgement, para. 338; Muvunyi I Appeal Judgement, para. 20; Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal Judgement, paras. 76, 195, 217; Ntagerura et al. Appeal Judgement, paras. 28, 65; Gacumbitsi Appeal Judgement, para. 49. [5] Trial Judgement, para. 491. [6] See Rutaganda Appeal Judgement, para. 304 (noting that indictment paragraphs cannot be read in isolation from the rest of the document). See also Semanza Appeal Judgement, para. 358 (reading various paragraphs of an indictment together in concluding that the appellant was charged with ordering crimes). |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls 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.”[3] 103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very 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.” Rather, the main question is whether two or more credible accounts are incompatible. 118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account. 154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […] 110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […] [1] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [2] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [3] Nahimana et al. Appeal Judgement, para. 428. See also Rukundo Appeal Judgement, para. 201; Karera Appeal Judgement, para. 173. [4] Nahimana et al. Appeal Judgement, para. 428. [5] Nahimana et al. Appeal Judgement, para. 428. [6] Muvunyi II Appeal Judgement, para. 57; Muhimana Appeal Judgement, para. 103; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29. [7] Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [8] Simba Appeal Judgement, para. 16. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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71. […] The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies.[1] It is within the discretion of the Trial Chamber to evaluate any such inconsistencies, to consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence.[2] The Appeals Chamber further recalls 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.”[3] 103. […] Furthermore, corroboration does not require witnesses’ accounts to be identical in all aspects since “[e]very 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.” Rather, the main question is whether two or more credible accounts are incompatible. 118. […] The Appeals Chamber recalls that, when faced with competing versions of events, it is the duty of the Trial Chamber that heard the witnesses to determine which evidence it considers more probative. Based on the foregoing, the Appeals Chamber finds that it was reasonable for the Trial Chamber to accept the Prosecution evidence over Witness Nahimana’s account. 154. The Appeals Chamber recalls that the Trial Chamber has the main responsibility to resolve any inconsistencies that may arise within or among witnesses’ testimonies. […] 110. Finally, the Appeals Chamber recalls that the Trial Chamber has the primary discretion to decide whether or not a site visit is necessary or relevant for the assessment of evidence. […] [1] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [2] Renzaho Appeal Judgement, para. 355; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [3] Nahimana et al. Appeal Judgement, para. 428. See also Rukundo Appeal Judgement, para. 201; Karera Appeal Judgement, para. 173. [4] Nahimana et al. Appeal Judgement, para. 428. [5] Nahimana et al. Appeal Judgement, para. 428. [6] Muvunyi II Appeal Judgement, para. 57; Muhimana Appeal Judgement, para. 103; Gacumbitsi Appeal Judgement, para. 81; Rutaganda Appeal Judgement, para. 29. [7] Renzaho Appeal Judgement, para. 269; Rukundo Appeal Judgement, para. 207; Simba Appeal Judgement, para. 103. [8] Simba Appeal Judgement, para. 16. |
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Notion(s) | Filing | Case |
Appeal Judgement - 28.09.2011 |
MUNYAKAZI Yussuf (ICTR-97-36A-A) |
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85. […] As the Appeals Chamber has previously stated, “to suggest that if something were true a witness would have included it in a statement or a confession letter is obviously speculative and, in general, it cannot substantiate a claim that a Trial Chamber erred in assessing the witness’s credibility.”[1] [1] Kajelijeli Appeal Judgement, para. 176. |
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Notion(s) | Filing | Case |
Decision on Motions to Annul and Reconsider - 27.09.2011 |
NAHIMANA et al. (Media case) (ICTR-99-52B-R) |
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NOTING Mr. Nahimana’s submission that the Decisions of 22 April 2008 and 30 June 2010 should be annulled because they are signed exclusively by Judge Pocar and thus do not evince that the remainder of the Bench participated in the deliberations; CONSIDERING that, in accordance with the consistent practice of the Appeals Chamber, the Presiding Judge signs decisions on behalf of the Bench after the conclusion of deliberations on a motion; FINDING, therefore, that Mr. Nahimana’s argument that the Decisions of 22 April 2008 and 30 June 2010 be annulled on the basis that they were signed exclusively by the Presiding Judge lacks merit; [1] Motion [Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Demande d’annulation des décisions portant la seule signature du juge Fausto Pocar prises dans mon affaire après l’arrêt du 28 [n]ovembre 2007 ; Demande de réexamen de ma “Notice of application for reconsideration of Appeal Decision due to factual errors apparent on the record” du 27 [m]ars 2008 et dans le cas échéant, de ma requête du 27 [a]vril 2010, 13 September 2011], paras. 7-10. |
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Notion(s) | Filing | Case |
Contempt Appeal Judgement - 19.07.2011 |
HARTMANN Florence (IT-02-54-R77.5-A) |
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158. The Appeals Chamber considers that Hartmann appears to submit that, had the Trial Chamber enforced a “strong” presumption in favour of unrestricted publicity, it would have ruled in her favour and permitted her to disclose confidential information pursuant to her freedom of expression rights. The Appeals Chamber considers that there is no merit in Hartmann’s submission. There is no strong presumption of unrestricted publicity for matters a Chamber has ruled are not to be disclosed to the public. This was made clear in the Jović case, in which it was held that: The effect of a closed session order is to exclude the public, including members of the press, from the proceedings and to prevent them from coming into possession of the protected information being discussed therein. In such cases, the presumption of public proceedings under Article 20(4) of the Statute does not apply. [1] 159. At the heart of Hartmann’s submission is the alleged inconsistency of the Trial Judgement with freedom of expression principles recognised by the ECHR. The Appeals Chamber is not bound by the findings of regional or international courts and as such is not bound by ECtHR jurisprudence.[2] 160. The Appeals Chamber notes that Article 21 of the Statute of the Tribunal mirrors the provisions of Article 14 of the ICCPR.[3] The ICCPR and its commentaries are thus among the most persuasive sources in delineating the applicable protections for freedom of expression in the context of the Tribunal’s proceedings.[4] The Human Rights Committee of the United Nations (“Human Rights Committee”) has interpreted Article 14(1) of the ICCPR to require that courts’ judgements be made public, with “certain strictly defined exceptions.”[5] The Appeals Chamber notes that, although Article 19(2) of the ICCPR states that “[e]veryone shall have the right to freedom of expression,” Article 19(3) recognises that The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. The travaux préparatoires of the ICCPR indicate that the “protection of […] public order” in Article 19(3) was intended to include the prohibition of the procurement and dissemination of confidential information.[7] In respect of whether the restriction to an individual’s freedom of expression is “necessary” to achieve its aim, the Human Rights Committee has considered whether the action taken was proportionate to the sought-after aim.[8] 161. Based upon the foregoing, therefore, in order to legitimately restrict Hartmann’s freedom of expression under Article 19 of the ICCPR, the restriction must have been provided by law and proportionately necessary to protect against the dissemination of confidential information.[9] The two Appeal Decisions in the case of Prosecutor v. Slobodan Milošević contained restrictions on the freedom of expression that were “provided by law” because they were filed confidentially under protective measures granted pursuant to Rule 54 bis of the Rules. Furthermore, restricting Hartmann’s freedom of expression in this manner was both proportionate and necessary because it protected the “public order” by guarding against the dissemination of confidential information. These restrictions were therefore within the ambit of Article 19(3) of the ICCPR. 162. In this regard, the Appeals Chamber observes that the Trial Chamber found that the effect of Hartmann’s disclosure of confidential information decreased the likelihood that states would cooperate with the Tribunal in the future, thereby undermining its ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law.[10] The Trial Chamber further found that prosecuting an individual for contempt under these circumstances was proportionate to the effect her actions had on the Tribunal’s ability to administer international criminal justice.[11] The Appeals Chamber is therefore of the view that the Trial Chamber was correct to conclude that Rule 54 bis of the Rules permits the Tribunal to impose confidentiality in an effort to secure the cooperation of sovereign states.[12] In light of the foregoing, the Appeals Chamber is satisfied that the Trial Chamber adequately took into account all relevant considerations to ensure that its Judgement was rendered in conformity with international law.[13] 163. Hartmann also relies on an Appeals Chamber decision in Brđanin to support her argument that the Trial Chamber erred by failing to consider the public’s right to receive information disclosed by Hartmann in evaluating the proportionality of the interference with her freedom of expression.[14] In the instant case, however, the Appeals Chamber considers that the Trial Chamber did explicitly consider the public’s right to receive information. In evaluating the proportionality of the interference with Hartmann’s freedom of expression, it considered certain factors that were: salient in weighing the public interests involved: namely, the public interest in receiving the information and the protection of confidential information to facilitate the administration of international criminal justice, which is also in the public interest, indeed, on an international scale. 164. Finally, the Appeals Chamber considers ARTICLE 19’s discussion of national legal standards regarding freedom of expression.[16] While ARTICLE 19 sets out different ways in which domestic jurisdictions address freedom of expression in the context of contempt of court, it cites no jurisprudence to support the position that contempt proceedings for disclosing confidential information in violation of a court order impermissibly restrict an individual’s freedom of expression. [1] Jović Contempt Appeal Judgement [Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007], para. 21. [2] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007, para. 51. In the Delalić et al. Appeal Judgement, the Appeals Chamber stated that, “[a]lthough the Appeals Chamber will necessarily take into consideration other decisions of international courts, it may, after careful consideration, come to a different conclusion”. Delalić et al. Appeal Judgement [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001], para. 24. [3] See U.N. Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993, para. 106. This Report was issued pursuant to U.N. Security Council Resolution 808, which requested the Secretary-General “to submit for consideration by the [Security] Council […] a report” on the establishment of the Tribunal. See U.N. Security Council Resolution 808, U.N. Doc, S/RES/808 (1993), p. 2. [4] The ICCPR has 167 state parties and, as such, is considered to be closer to universal application than the European Convention, which is a regional human rights instrument. See United Nations Treaty Collection, <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>, accessed 11 July 2011. The Appeals Chamber in the Barayagwiza Decision stated that the ICCPR “is part of general international law and is applied on that basis.” In contrast, the Appeals Chamber indicated that, “[r]egional human rights treaties, such as the [ECHR] and the American Convention on Human Rights, and the jurisprudence developed thereunder, are persuasive authority which may be of assistance in applying and interpreting the Tribunal’s applicable law. Thus, they are not binding of their own accord on the Tribunal. They are, however, authoritative as evidence of international custom.” Jean-Bosco Barayagwiza v. The Prosecutor, Case. No. ICTR-97-19-AR72, Decision, 3 November 1999, para. 40. [5] CCPR General Comment No. 13: Article 14 (Administration of Justice) Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984, para. 6. [6] ICCPR, Article 19(3). Article 14(1) of the ICCPR also restricts a journalist’s right to report on court proceedings. It states, inter alia, that “the press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. This provision was cited in the Blaškić and Jović cases. See Jović Contempt Trial Judgement, para. 23, note 95; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, 18 July 1997, note 248. [7] See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 2nd Revised Edition N.P. Engel, 2005, pp. 464-65 (stating that the term “public order” “covers the grounds for restriction set out in Art. 10(2) of the [ECHR] and repeatedly proposed during the drafting of Art. 19 of the [ICCPR], namely, the procurement and dissemination of confidential information and endangering the impartiality of the judiciary”). [8] Jong-Choel v. The Republic of Korea (CCPR Communication No. 968/2001), U.N. Doc. A/60/40 vol. II (27 July 2005), p. 60, para. 8.3; see also Marques v. Angola (CCPR Communication No. 1128/2002), U.N. Doc. A/60/40 vol. II (29 March 2005) p. 181, para. 6.8 (“The Committee observes that the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect.”). [9] See CCPR General Comment No. 10: Freedom of Expression (Art. 19), 29 June 1983, para. 4; see also Kim Jong-Cheol v. Republic of Korea, para. 8.3; Marques v. Angola, para. 6.8. [10] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 74. [11] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 74. [12] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 72. The Trial Chamber relied upon testimony by Robin Vincent, who testified that the confidentiality breaches would lead to less cooperation by sovereign states regarding the disclosure of information, thereby affecting the Tribunal’s ability to administer international criminal justice. The Trial Chamber also noted that “the testimony was not challenged by the Accused”. See Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 72, note 171. [13] ARTICLE 19’s brief discusses other human rights instruments that guarantee freedom of expression. See ARTICLE 19 Amicus Brief, para. 3. While the Appeals Chamber acknowledges that these instruments contain freedom of expression guarantees, they follow a similar approach to restrictions on freedom of expression as the European Convention and the ICCPR. The UDHR states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” UDHR, Article 29(2). The African Charter on Human Rights and Peoples states: “Every individual shall have the right to express and disseminate his opinions within the law”. African Charter on Human and Peoples' Rights, Article 9(2). The American Convention on Human Rights similarly notes: “Everyone has the right to freedom of thought and expression”. American Convention on Human Rights, Article 13(1). In Article 13(2), it restricts that right by noting, “The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.” American Convention on Human Rights, Article 13(2). [14] Hartmann Final Appeal Brief, para. 19. [15] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 73 (internal citations omitted). [16] See ARTICLE 19 Amicus Brief, paras 30-32. |
ICTY Rule Rule 54 bis |