320. The Appeals Chamber further notes that the conclusion that Renzaho gave an order to kill at roadblocks is, standing alone, an insufficient basis to find that Renzaho is criminally responsible under Article 6(1) of the Statute for ordering any such killings. In the present case, the Trial Chamber made no findings concerning when or where Renzaho gave the order,[1] to whom or to what category of perpetrators he gave the order,[2] and whether Renzaho was in a position of authority vis-à-vis the recipient.[3] The Appeals Chamber recalls that a Trial Chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[4] Taken together, the paucity of findings in relation to the conclusion that Renzaho ordered killings at roadblocks convinces the Appeals Chamber, Judge Pocar dissenting, that the Trial Chamber erred in failing to provide a reasoned opinion. 

207. The Appeals Chamber is deeply concerned about the allegations that the Defence Investigator intimidated prospective Defence witnesses. It considers that witness intimidation undermines the fundamental objectives of the Tribunal, provided in Article 20(2) of the Statute, including the objective to ensure that trials are fair.[1]

208. Considering the gravity of the allegations under investigation, the Appeals Chamber is of the view that the Trial Chamber was obliged to ensure that the Renzaho Investigation was carried out diligently and, in particular, that it was completed. It is unacceptable that the matter appears to have been simply abandoned at some juncture, without explanation.

209. Although the Appeals Chamber notes with concern the Defence’s failure to bring a motion at any point seeking the assistance of the Trial Chamber to secure the attendance of witnesses or the completion of the Renzaho Investigation, it recalls that “Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu.”[2] In this particular instance, the Trial Chamber was obliged, at the very least, to ensure that a final report was received from Jean Haguma before delivering the Trial Judgement. By failing to do so, the Trial Chamber erred and brought into question Renzaho’s right to a fair trial under Article 20(2) of the Statute.

238. The right to be tried without undue delay is enshrined in Article 20(4)(c) of the Statute. The Appeals Chamber recalls that this right only protects the accused against undue delay, which is determined on a case-by-case basis.[1] A number of factors are relevant to this assessment, including: the length of the delay; the complexity of the proceedings (the number of counts, the number of accused, the number of witnesses, the quantity of evidence, the complexity of the facts and of the law); the conduct of the parties; the conduct of the authorities involved; and the prejudice to the accused, if any.[2]

239. The Appeals Chamber notes that Renzaho does not allege that undue delay was attributable to any Party or the Tribunal, or that he was prejudiced by the length of the proceedings. He points only to the length of his proceedings to support his assertion that he was denied the right to an expeditious trial. While the proceedings have been lengthy, the Appeals Chamber notes that the case against Renzaho was complex. With respect to the pre-trial phase, the Indictment was amended three times, altering the scope of the case.[3] Renzaho does not point to any error in this regard.

240. Further, the Indictment charged direct and superior responsibility under six Counts, including genocide, complicity in genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Renzaho was charged with criminal conduct at several locations, over an extended period of time, including multiple killings and rapes. Although the Appeals Chamber accepts that preparing such a case for trial can reasonably require a lengthy period of time, it emphasizes that every effort should be made to bring cases to trial as expeditiously as possible.[4]

241. Turning to the trial phase, the Appeals Chamber notes that it lasted for thirteen months.[5] There is no assertion that the trial itself was unduly long, and the Appeals Chamber cannot find that this period was unreasonable. With respect to the delivery of the Trial Judgement, the Appeals Chamber notes that it was delivered one and a half years after the close of trial. In the context of this case, such a delay is concerning. The Appeals Chamber underscores that lengthy delays can give rise to serious questions regarding fairness to the accused. However, in view of the complexity of this case, including the number of charges and the volume of evidence produced by the Parties, Renzaho has not demonstrated that the delivery of the Trial Judgement was unduly delayed.

242. The Appeals Chamber is mindful that the right enshrined in Article 20(4)(c) of the Statute is fundamental. While the Appeals Chamber is concerned by the length of the proceedings as a whole, in the particular circumstances of this case, the Appeals Chamber finds that Renzaho has failed to demonstrate that his right to be tried without undue delay has been violated.

26. The Appeals Chamber is satisfied that the Trial Chamber correctly found that defence investigators benefit from the same protections as defence counsel under Article 30(4) of the Statute of the Tribunal.[1] Article 30(4) of the Statute provides that:

[o]ther persons, including the accused, required at the seat of the […] Tribunal shall be accorded such treatment as is necessary for the proper functioning of the […] Tribunal.

27. The Appeals Chamber considers that defence counsel fall within the category of “other persons” required at the seat of the Tribunal to defend the accused. Accordingly, pursuant to Article 30(4) of the Statute, they are to be provided such treatment as is necessary for the proper functioning of the Tribunal.[2] Defence investigators, who facilitate the performance of the duties of defence counsel, have a derivative right to such necessary protections via the defence counsel. If such treatment is not extended to defence investigators, defence counsel’s ability to represent the accused may be frustrated.[3]

28. The Appeals Chamber finds, however, that the Trial Chamber erred in finding that defence members do not enjoy functional immunity from legal process under Article 30(4) of the Statute, that is immunity from legal process “with respect to words spoken or written and acts done by them in the course of the performance of their duties as [defence members] before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article [30] of the Statute.”[4] In particular, it erred in concluding that the absence of an explicit reference to the Vienna Convention on Diplomatic Relations and the UN Convention on Privileges and Immunities from the text of Article 30(4) of the Statute indicated that defence members were denied functional immunity.[5] […] Instead, the Trial Chamber should have focused on what protection was “necessary for the proper functioning of the […] Tribunal” pursuant to Article 30(4) of the Statute. [T]he Appeals Chamber finds that the relevant question is whether functional immunity for defence members is “necessary for the proper functioning of the […] Tribunal”, not whether another treaty or Security Council Resolution provides for such immunity.

The Appeals Chamber further found that in this context, the Trial Chamber failed to properly consider the fundamental differences between a domestic court and an international criminal tribunal:

31. […] The Appeals Chamber considers that members of the defence working in an international criminal court operate in a different legal environment than those working in domestic criminal courts. Finding and interviewing witnesses, conducting on-site investigations, and gathering evidence in a State’s territorial jurisdiction may be more difficult without the grant of functional immunity, as there is always a risk that a State could interfere by exercising its jurisdiction in such a way as to impede or hinder the activities of the defence.[6] Permitting freedom of action in these situations by virtue of a grant of functional immunity protects individuals before the Tribunal in a manner unnecessary in domestic courts, where individuals can rely upon the State’s judicial apparatus and other entities to protect their ability to perform their functions in a criminal trial.

33. The Appeals Chamber accordingly finds that members of the defence, including defence investigators, enjoy functional immunity under Article 30(4) of the Statute with regard to acts that fall within the fulfilment of their official functions before the Tribunal due to their functions being “necessary for the proper functioning of the […] Tribunal”. Failure to accord functional immunity to defence investigators could impact upon the independence of defence investigations, as investigators may fear legal process for actions related to their official Tribunal functions.[7]

8. The Appeals Chamber recalls that “it has the authority to summon a witness, in appropriate circumstances, to testify before the Chamber so as to facilitate the effective conduct of appeal proceedings, and especially Rule 115’s power to admit additional evidence”.[1] However, the purpose of Rule 115 is to deal “with the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial.”[2] The Appeals Chamber considers that Rule 115 of the Rules does not permit a party to merely request a particular person to be summoned as a witness to give evidence at the appellate stage.[3] As repeatedly held, a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[4] Where a party seeks to call a witness at the appellate stage, it needs to provide a statement or other documentation of the potential witness’s proposed evidence,[5] which the Appeals Chamber may admit as additional evidence pursuant to Rule 115 and on the basis of which it may determine whether calling the witness to testify on appeal is necessary.[6]

9. In the present case, Bagosora has not provided the Appeals Chamber with any statement from Gatsinzi or any documentation that may be admissible as additional evidence and the contents of which would prompt the Appeals Chamber to call the witness to testify in person. Bagosora explains that he could not procure a statement from Gatsinzi because Gatsinzi was unwilling to cooperate with his Defence.[7] In addition, although Bagosora provides no alternative documentation on appeal, the Appeals Chamber notes that Bagosora introduced aspects of Gatsinzi’s potential testimony into evidence at trial in the form of Exhibits DB256 (Gatsinzi Pro Justitia Statement dated 16 June 1995), DB274 (Audio-recording of Jean Kambanda’s Speech and portion of Gatsinzi’s Interview with a journalist of Radio Rwanda of 10 April 1994), and DB284 (Book written by Jacques Roger Booh-Booh titled “Le Patron de Dallaire parle”). In the absence of any material from Gatsinzi that Bagosora can legitimately seek to admit as “additional evidence”, the Appeals Chamber considers that Bagosora’s request for an order to call Gatsinzi as a witness pursuant to Rule 115 of the Rules cannot be granted.

12. The Appeals Chamber recalls that review proceedings are provided for by Article 26 of the Statute, and that according to Rules 119 and 120 of the Rules, if the Appeals Chamber determines that a judgement should be reviewed, it shall “pronounce a further judgement after hearing the parties.”[1]

33. In the Mrkšić and Šljivančanin Appeal Judgement, the Appeals Chamber considered that the sentence of five years’ imprisonment imposed by the Trial Chamber on Šljivančanin for aiding and abetting torture did not “adequately reflect the level of gravity of the crimes committed by Šljivančanin”.[1] In particular, the Appeals Chamber noted that the torture was “characterized by extreme cruelty and brutality towards the [Prisoners], some of whom may have been previously injured as they had been taken from the Vukovar hospital”,[2] and referred to “the consequences of the torture upon the victims and their families, the particular vulnerability of the [P]risoners, and the very large number of victims”.[3] Based on the circumstances of the case, “including the seriousness of the crimes for which Šljivančanin was convicted” by the Trial Chamber as well as the entry of the Additional Conviction,[4] the Appeals Chamber proceeded to quash Šljivančanin’s original sentence of five years’ imprisonment and imposed, Judges Pocar and Vaz dissenting, a new sentence of 17 years’ imprisonment.[5] Because the Appeals Chamber has now vacated the Additional Conviction, which constituted a partial basis for the increase in Šljivančanin’s sentence, the Appeals Chamber must consider whether the sentence of 17 years’ imprisonment should be revised.

36. The Appeals Chamber considers that the reversal of the Additional Conviction represents a significant reduction in Šljivančanin’s culpability and calls for a revision in sentence. The Appeals Chamber observes, however, that Šljivančanin’s aiding and abetting the torture of the Prisoners was an extremely serious crime. In the circumstances of this case, the Appeals Chamber, Judge Pocar dissenting, reduces Šljivančanin’s sentence of 17 years’ imprisonment to ten years’ imprisonment.

Judge Meron and Judge Güney appended separate opinions. Judge Pocar appended a partially dissenting opinion.

12. In addition, the Appeals Chamber notes that paragraphs 26 and 27 of the Bagaragaza Sentencing Judgement which Nsengiyumva also seeks to have judicially noticed contain legal conclusions on Michel Bagaragaza’s criminal responsibility and not facts. The Appeals Chamber recalls that “[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings.”[1] Therefore, the Appeals Chamber finds that paragraphs 26 and 27 of the Bagaragaza Sentencing Judgement cannot be subject to judicial notice under Rule 94(B) of the Rules.

8. The Appeal Chamber further recalls that on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted and must meet the requirements provided for by Rule 115 of the Rules.[1] The Appeals Chamber emphasizes in this regard that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general rules governing the admissibility of evidence.[2]

52. The Appeals Chamber has explained that an “aider and abettor commit[s]] acts specifically aimed at assisting, encouraging, or lending moral support for the perpetration of a specific crime, and that this support had a substantial effect on the perpetration of the crime.”[1] It recalls that there is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime nor that such conduct served as a condition precedent to the commission of the crime.[2] It is sufficient for the aider and abettor’s assistance or encouragement to have had a substantial effect on the realisation of that crime,[3] the establishment of which is a “fact-based inquiry”.[4] […]