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.

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.

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. […]

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]

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.

98. The Appeals Chamber considers that, in order to convict Hartmann, the Trial Chamber had to conclude that publishing the confidential information in the Book and Article in violation of a court order was done “knowingly and wilfully”.[1] The Trial Chamber convicted Hartmann in part based upon its finding that “the Chamber is satisfied beyond reasonable doubt that the Accused had knowledge at the time of publication of her Book and the Article that her disclosure was in violation of an order of the Tribunal”.[2] The Appeals Chamber is of the view the Trial Chamber, having made this finding, was under no obligation to also make a finding on whether Hartmann’s actions were “more than negligent”. In the present case, the only criterion that the Trial Chamber had to explicitly consider to establish contempt under Rule 77 of the Rules was whether Hartmann knowingly and wilfully interfered with the Tribunal’s administration of justice.

127. The Appeals Chamber recalls that it is settled jurisprudence that “the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber. Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent”.[3] Insofar as Hartmann contends that the Nobilo Appeal Judgement set out a different standard,[4] she is mistaken; any ambiguity in its analysis of the mens rea required to enter a conviction for contempt has been definitively addressed by later Appeals Chamber judgements.[5]

128. The Trial Chamber set out the mens rea required to enter a conviction for contempt under Rule 77(A)(ii) of the Rules as follows:

The mens rea required [....] is the disclosure of particular information in knowing violation of a Chamber’s order. Generally, it is sufficient to establish that the conduct which constituted the violation was deliberate and not accidental. This may be inferred from circumstantial evidence. Where it is established that an accused had knowledge of the existence of a Court order, a finding of intent to violate the order will almost necessarily follow. Wilful blindness to the existence of the order, or reckless indifference to the consequences of the act by which the order is violated may satisfy the mental element. Mere negligence in failing to ascertain whether an order had been made is insufficient.[6]

The Appeals Chamber considers that the Trial Chamber’s analysis of the mens rea required to enter a conviction for contempt was consistent with Appeals Chamber precedent. It correctly found that this precedent does not require the Prosecution to prove specific intent to interfere with the administration of justice in order to secure a conviction under Rule 77(A)(ii) of the Rules.

108. It also follows from the above that the issue of whether there was a real risk to the administration of justice was not a jurisdictional matter. The Appeals Chamber is therefore of the view that the Trial Chamber did not err by refusing to treat this issue as such during the trial.

24. Haradinaj is mistaken in his contention that the Impugned Decision’s finding that the Prosecution may seek the admission of evidence beyond that of the two witnesses who were the focus of the Appeal Judgement undermines principles of law geared to “securing certainty and finality in criminal litigation”.[1] The Muvunyi Decision held that “a retrial […] inherently includes the possibility of hearing evidence that was not presented during the initial proceedings” and underscored that the scope of a retrial is determined “by the Appeals Chamber in a particular instance.”[2] Thus the Appeals Chamber is able to set out the appropriate parameters of a retrial, taking into account the specific context of each case, including whether the retrial follows conviction or acquittal, as well as relevant principles of law.

26. The Appeals Chamber underscores that whether a retrial follows acquittal or conviction is not necessarily insignificant. However the context of each retrial is unique, and the impact of a previous conviction or acquittal can only be addressed by taking into account this individual context. Any potential for undue prejudice to a defendant in a retrial following an acquittal should be addressed through both the Appeals Chamber’s careful delineation of a retrial’s parameters and the Trial Chamber’s continuing duty to apply fair trial principles.[1] In this context, the Appeals Chamber directs the Trial Chamber, when determining the admissibility of evidence in the retrial, to be particularly mindful of any potential prejudice that the admission of new evidence may cause to the fair trial rights of the Accused. Where the Prosecution seeks to introduce evidence that was excluded in prior proceedings, the Trial Chamber should explicitly consider whether re-litigation of this same issue in the retrial would be unduly prejudicial. If such is the case, the evidence must be excluded.

564. Although neither Party raised the issue, the Appeals Chamber notes that the Trial Chamber’s language in rendering its convictions against Renzaho may give the impression that it entered double convictions under Articles 6(1) and 6(3) of the Statute. The Appeals Chamber recalls that it is inappropriate to convict an accused for a specific count under both Article 6(1) and Article 6(3) of the Statute.[1] When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both provisions and the accused could be found liable under both, the Trial Chamber should enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance in sentencing.[2]

565. The Trial Chamber found Renzaho guilty of genocide under Article 6(1) of the Statute for aiding and abetting as well as ordering the killing of Tutsis at roadblocks throughout Kigali from April to July 1994; for aiding and abetting and ordering killings at CELA on 22 April 1994; and for his orders in relation to crimes committed at Sainte Famille on 17 June 1994.[3] The Trial Chamber also found Renzaho “liable” as a superior for these crimes,[4] indicating that it would take this liability into account in sentencing.[5]

566. The Trial Chamber also found Renzaho guilty of murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 6(1) of the Statute for ordering the killing of at least 17 Tutsi men at Sainte Famille church on 17 June 1994.[6] The Trial Chamber found Renzaho “liable” as a superior for these murders as well.[7] The Trial Chamber indicated that it would take Renzaho’s liability as a superior into account in sentencing.[8]

567. In addition, the Trial Chamber found Renzaho guilty of murder as a crime against humanity under Article 6(1) of the Statute for aiding and abetting and ordering the killing of Charles, Wilson, and Déglote Rwanga, who had been removed from CELA on 22 April 1994.[9] The Trial Chamber likewise found Renzaho “guilty” as a superior based on Article 6(3) of Statute, for the killing of Charles, Wilson, and Déglote Rwanga as well as the other mostly Tutsi men removed from CELA on that date.[10] The Trial Chamber indicated in connection with these crimes that it would take Renzaho’s liability as a superior into account in sentencing. [11]

568. While it is clear that the Trial Chamber considered Renzaho’s superior position as an aggravating circumstance,[12] the Appeals Chamber considers that the Trial Chamber should have refrained from using language which is suggestive of double convictions based on both Articles 6(1) and 6(3) of the Statute. Nevertheless, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts where it found him to be “liable” as a superior. Likewise, and despite the unfortunate use of the term “guilty” when finding Renzaho liable as a superior for murder as a crime against humanity for the killings of Charles, Wilson, and Déglote Rwanga, the Appeals Chamber is not convinced that the Trial Chamber impermissibly convicted Renzaho twice for the same facts.[13]