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| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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74. The Appeals Chamber recalls that “an aider and abettor carries out acts specifically directed to assist, encourage, or lend moral support to the perpetration of a certain specific crime, which have a substantial effect on the perpetration of the crime.”[1] The Appeals Chamber has explained that “[a]n accused can be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.”[2] Where this form of aiding and abetting has been a basis of a conviction, “it has been the authority of the accused combined with his presence on (or very near to) the crime scene, especially if considered together with his prior conduct, which all together allow the conclusion that the accused’s conduct amounts to official sanction of the crime and thus substantially contributes to it.”[3] 75. In view of Kalimanzira’s position as directeur de cabinet of the Ministry of Interior, it was reasonable for the Trial Chamber to determine that his silent presence during Ndayamabaje’s inflammatory speech would have offered tacit approval of its message. The basis of Kalimanzira’s conviction, however, rests on the Trial Chamber’s conclusion that Kalimanzira’s tacit approval not only sanctioned Ndayambaje’s message, but in fact substantially contributed to killings which occurred after the ceremony.[4] [1] Muvunyi Appeal Judgement, para. 79. See also Seromba Appeal Judgement, para. 44; Blagojević and Jokić Appeal Judgement, para. 127. [2] Brđanin Appeal Judgement, para. 273. See also Brđanin Appeal Judgement, para. 277. [3] Brđanin Appeal Judgement, para. 277. [4] Trial Judgement, para. 292. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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86. 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 ha[s] a substantial effect on the perpetration of the crime.”[1] Whether a particular contribution qualifies as “substantial” is a “fact-based inquiry”; such assistance need not “serve as condition precedent for the commission of the crime.”[2] With regard to the mens rea required for aiding and abetting, the Appeals Chamber has held that “[t]]he requisite mental element [...]] is knowledge that the acts performed assist the commission of the specific crime of the principal perpetrator.”[3] Specific intent crimes such as genocide require that “the aider and abettor must know of the principal perpetrator’s specific intent.”[4] 87. Kalimanzira’s contention that the Trial Chamber erred in finding that he made a substantial contribution to the killings at Kabuye hill is not convincing. The Trial Chamber reasonably concluded that he substantially contributed to the massacre by encouraging Tutsis to seek refuge at Kabuye hill and by providing armed reinforcements to those trying to kill the Tutsis there. Kalimanzira’s assertion that he did not substantially aid the assault on Kabuye hill rests on his claim that no credible witnesses who were also principal perpetrators placed him there.[5] However, this claim does not take into account the evidence provided by Tutsi survivors of the attacks. It was on the basis of their testimonies that the Trial Chamber placed him at Kabuye hill on 23 April 1994.[6] The Appeals Chamber recalls that it is not necessary for a principal perpetrator to be aware of the aider and abettor’s contribution.[7] It further recalls the Trial Chamber’s finding that the attacks at Kabuye hill involved a large number of individuals over a broad terrain and long period of time.[8] In this context, it was reasonable for the Trial Chamber to conclude that Kalimanzira provided substantial assistance to the massacre at Kabuye hill even if this assistance was not known to principal perpetrators who testified before it.[9] [1]Seromba Appeal Judgement, para. 44. See also Muvunyi Appeal Judgement, para. 79; Blagojević and Jokić Appeal Judgement, para. 127. [2] Blagojević and Jokić Appeal Judgement, para. 134. [3] Muvunyi Appeal Judgement, para. 79. [4] Blagojević and Jokić Appeal Judgement, para. 127. [5] See Kalimanzira Appeal Brief, paras. 196-201. See also Kalimanzira Reply Brief [Callixte Kalimanzira’s Brief in Reply, 13 April 2010] para. 24. [6] See Trial Judgement, paras. 379-383, 393. [7] See Tadić Appeal Judgement, para. 229. [8] See Trial Judgement, paras. 386, 387. [9] The Appeals Chamber further recalls that “the actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated, and that the location at which the actus reus takes place may be removed from the location of the principal crime.” Blaškić Appeal Judgement, para. 48. See also Blagoje Simić Appeal Judgement, para. 85. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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96. The Appeals Chamber recalls that in assessing witness testimony, “it falls to the Trial Chamber to take the approach it considers most appropriate for the assessment of evidence.”[1] A trial chamber “is […]] not obliged in its judgement to recount and justify its findings in relation to every submission made at trial.”[2] In addition, “neither the Rules nor the jurisprudence of the Tribunal oblige[]] [a] Trial Chamber to require a particular type of identification evidence.”[3] However, identifications made in difficult circumstances, such as darkness, obstructed view, or traumatic events,[4] require careful and cautious analysis by a trial chamber.[5] In addition, in-court identification evidence should be assigned “little or no credence” given the signals that can identify an accused aside from prior acquaintance.[6] [1] Rutaganda Appeal Judgement, para. 207. [2] Muhimana Appeal Judgement, para. 176. [3] Kamuhanda Appeal Judgement, para. 298. [4] See, e.g., Kupreškić Appeal Judgement, para. 40. [5] See, e.g., Bagilishema Appeal Judgement, para. 75. See also Kupreškić Appeal Judgement, para. 39. [6] Kamuhanda Appeal Judgement, para. 243. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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96. […] The Appeals Chamber further recalls that “[a]] Trial Chamber has the discretion to cautiously consider hearsay evidence and has the discretion to rely on it.”[1] However, “the weight and probative value to be afforded to that evidence will usually be less than that accorded to the evidence of a witness who has given it under oath and who has been cross-examined.”[2] […] 199. The Appeals Chamber recalls that caution is warranted before basing convictions on hearsay evidence.[3] [1] Karera Appeal Judgement, para. 39 (internal citations omitted). [2] Karera Appeal Judgement, para. 39. [3] See supra Section III.E.2 (Alleged Errors in the Trial Chamber’s Consideration of Witnesses’ Credibility and Provision of Identification Evidence). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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155. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[1] Applying these principles to Jean-Bosco Barayagwiza’s conviction in the Nahimana et al. case for direct and public incitement to commit genocide, the Appeals Chamber determined that supervising a specific group of individuals manning a roadblock does not constitute public incitement to commit genocide, explaining that: the supervision of roadblocks cannot form the basis for the Appellant’s conviction for direct and public incitement to commit genocide; while such supervision could be regarded as instigation to commit genocide, it cannot constitute public incitement, since only the individuals manning the roadblocks would have been the recipients of the message and not the general public.[2] 156. Contrary to the Prosecution’s suggestion, the approach adopted by the Appeals Chamber in the Nahimana et al. Judgement is in accordance with relevant Tribunal jurisprudence and other sources of interpretation, including World War II judgements and the travaux préparatoires of the Genocide Convention. More specifically, the Appeals Chamber observes that, with the exception of the Kalimanzira Trial Judgement, all convictions before the Tribunal for direct and public incitement to commit genocide involve speeches made to large, fully public assemblies, messages disseminated by the media, and communications made through a public address system over a broad public area.[3] These convictions involved audiences which were by definition much broader than the groups of individuals manning the Jaguar and Kajyanama roadblocks, who formed Kalimanzira’s audience. 157. The Tribunal’s jurisprudence is consistent with that of the International Military Tribunal at Nuremberg. The latter considered incitement to, inter alia, murder and extermination, involving widely circulated speeches and articles, rather than speeches to relatively small and closed groups.[4] 158. Moreover, the Appeals Chamber recalls that the language of Article 2 of the Tribunal’s Statute tracks the language of the Genocide Convention. A review of the travaux préparatoires of the Genocide Convention confirms that public incitement to genocide pertains to mass communications. The travaux préparatoires indicate that the Sixth Committee chose to specifically revise the definition of genocide in order to remove private incitement, understood as more subtle forms of communication such as conversations, private meetings, or messages,[5] from its ambit.[6] Instead, the crime was limited to “direct and public incitement to commit genocide,” understood as incitement “in public speeches or in the press, through the radio, the cinema or other ways of reaching the public.”[7] 159. Having established that the relevant holding of the Nahimana et al. Appeal Judgement is consistent with the Tribunal’s jurisprudence and other relevant precedents, the Appeals Chamber turns to consider whether the precedent set in the Nahimana et al. case is applicable to Kalimanzira’s convictions. A review of the former reveals that the underlying factual basis of Barayagwiza’s initial conviction by Trial Chamber I of the Tribunal involved speaking to militiamen at roadblocks from his vehicle and telling them to kill Tutsis and others without certain party membership cards.[8] In addition, the key witness for this event gave evidence that Barayagwiza supervised three roadblocks in the area and heard that Barayagwiza was responsible for ensuring that Tutsis were being killed at them.[9] The facts underlying Kalimanzira’s convictions are similar to those in the Nahimana et al. Appeal Judgement. As was the case for Barayagwiza, Kalimanzira’s actions did not involve any form of mass communication such as a public speech. Instead, the nature of his presence and exchanges with those at the roadblocks are more in line with a “conversation” which is consistent with the definition of private incitement found in the travaux préparatoires of the Genocide Convention. Thus it is clear that the Nahimana et al. Appeal Judgement is directly applicable to Kalimanzira’s convictions with respect to the Jaguar and Kajyanama roadblocks. [1] See Nahimana et al. Appeal Judgement, para. 677. [2] Nahimana et al. Appeal Judgement, para. 862 (emphasis added). The Appeals Chamber notes, for clarity, that the Nahimana et al. Appeals Judgement was originally written in French. The above-quoted excerpt, in French, reads “ En particulier, les actes de supervision des barrages ne sauraient fonder la condamnation de l’Appelant pour incitation directe et publique à commettre le génocide; si cette supervision pouvait être considerée comme une incitation à commettre le génocide, elle ne pourrait pas constituer une incitation ‘publique’ puisque seules les personnes tenant les barrages auraient été les destinataires du message et non le public au sens large”. Therefore, in order to reflect more faithfully Article 2(3)(c) of the Statute, a more accurate English translation of the excerpt should have read: “while such supervision could be regarded as incitement to commit genocide, it cannot constitute public incitement […]].” [3] A review of the jurisprudence is illustrative of what acts have constituted public incitement at the Tribunal. In a first group of cases, inciting speeches at public meetings to “crowds” of people – ranging from “over 100” to approximately 5,000 individuals - were found to constitute public incitement. The Akayesu Trial Chamber found that a speech in a public place to “a crowd of over 100 people” urging the population to eliminate the “enemy” constituted direct and public incitement. See Akayesu Trial Judgement, paras. 672-674. The conviction was upheld on appeal. See Akayesu Appeal Judgement, para. 238, p. 143. The Niyitegeka Trial Chamber determined, inter alia, that by holding a public meeting attended by approximately 5,000 people at which he “urg[ed] attackers to work” – “working” serving as a synonym for killing Tutsis - Eliézer Niyitegeka incurred individual criminal responsibility for “inciting attackers to cause the death and serious bodily and mental harm of Tutsi refugees […] as provided in Article 2(3)(c)” of the Statute. See Niyitegeka Trial Judgement, paras. 257, 437. See also Niyitegeka Trial Judgement, paras. 432-436. Niyitegeka’s conviction was upheld on appeal. See Niyitegeka Appeal Judgement, para. 270. The Kajelijeli Trial Chamber found Juvénal Kajelijeli guilty of direct and public incitement because he had “incited the crowd” to exterminate the Tutsis. See Kajelijeli Trial Judgement, paras. 856-860. The conviction was upheld on appeal. See Kajelijeli Appeal Judgement, paras. 105, 133. A second group of cases reflects that the dissemination of inciting messages via the media also constituted public incitement. The Ruggiu Trial Chamber held that “messages […] broadcast[ed] in a media forum and to members of the general public” constituted public incitement. See Ruggiu Trial Judgement, para. 17. No appeal was filed. The Nahimana et al. Trial Chamber determined that messages disseminated via radio or the press constituted public incitement. See Nahimana et al. Trial Judgement, paras. 1031-1034, 1036-1038. The findings were upheld in relevant part on appeal. See Nahimana et al. Appeal Judgement, paras. 758, 775. Finally, the Bikindi Trial Chamber held Simon Bikindi responsible for direct and public incitement based on its determination that he had used a public address system to disseminate messages inciting the commission of genocide when travelling on a public road to address the population. Bikindi Trial Judgement, paras. 422-424. These findings were upheld on appeal. See Bikindi Appeal Judgement, paras. 50, 86. [4] Judgment of the International Military Tribunal for the Trial of German Major War Criminals (1946), reprinted in The Trial of German Major War Criminals by the International Military Tribunal Sitting at Nuremberg Germany, pp. 101, 102 (2001) (“Judgment of the International Military Tribunal”) (finding Julius Streicher guilty of crimes against humanity for “incitement to murder and extermination” because “[i]n his speeches and articles, week after week, month after month, he infected the German mind with the virus of anti-Semitism, and incited the German people to active persecution […]. Twenty-three different articles […] were produced in evidence, in which extermination ‘root and branch’ was preached […]. Such was the poison Streicher injected into the minds of thousands of Germans which caused them to follow the National Socialists policy of Jewish persecution and extermination.”); Judgment of the International Military Tribunal, p. 128 (describing incitement in the context of “originating or formulating propaganda campaigns” with respect to Hans Fritzsche). [5] 1 The Genocide Convention: The Travaux Préparatoires, p. 986 (Hirad Abtahi & Philippa Webb, eds. 2008) (“Genocide Convention”). [6] 2 Genocide Convention, pp. 1549, 1552. [7] 1 Genocide Convention, p. 986. The Appeals Chamber notes that the definition adopted by the Sixth Committee resembled that originally proposed by the Secretariat of the United Nations (which was altered for some time to include private incitement to genocide, until this alteration was struck by the Sixth Committee). The proposal of the Secretariat differentiated acts such as instructions from officials to subordinates or heads of organizations to members from “direct public incitement.” These acts were considered as “preparatory acts” and covered by other sections of the convention. See 1 Genocide Convention, p. 238. [8] Nahimana et al. Trial Judgement, paras. 718, 719. See also The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, T. 28 August 2001 pp. 21-26; The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, T. 29 August 2001 pp. 33, 43, 44. [9] Nahimana et al. Trial Judgement, para. 718. |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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173. The Appeals Chamber recalls that “accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal” and that “a Chamber, when weighing the probative value of such evidence, is bound to carefully consider the totality of the circumstances in which it was tendered.”[1] The Trial Chamber noted the requirement to approach accomplice witnesses with caution.[2] It also examined the circumstances surrounding Witness BCZ’s testimony and his possible motives to falsely incriminate Kalimanzira.[3] [1] See Muvunyi Appeal Judgement, para. 128. [2] Trial Judgement, para. 72. [3] Trial Judgement, paras. 608, 612. |
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| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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180. The Appeals Chamber recalls that Rule 90(A) of the Rules provides that witnesses shall be heard by the trial chamber. Prior out-of-court witness statements are normally relevant only as necessary for the trial chamber to assess credibility.[1] Witness statements used for this purpose normally bear the witness’s signature or some other indicator that their content reflects what the witness said.[2] A will-say statement, however, differs from a typical statement given by a witness. In the practice of the Tribunal, will-say statements are primarily communications from one party to another and the trial chamber concerning aspects of a witness’s anticipated testimony that were not mentioned in previously-disclosed witness statements.[3] Will-say statements are generally communicated by counsel upon learning of new details during the preparation of a witness for examination,[4] and are not necessarily acknowledged by the witness. Therefore, will-say statements have no probative value except to the extent that the witness confirms their content. In the instant case, Witness AKK explicitly repudiated the content of the unsigned will-say statement, the contents of which were allegedly unknown to her.[5] Given the lack of any explanation for why it was nonetheless acceptable to rely on the unsigned and repudiated will-say statement, the Appeals Chamber finds that the Trial Chamber erred in law in relying on the will-say statement to discredit aspects of Witness AKK’s testimony. [1] Simba Appeal Judgement, para. 103, quoting Akayesu Appeal Judgement, paras. 134, 135. [2] For example, some statements are transcriptions of interviews or are signed by a domestic judicial authority. [3] See, e.g., The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Decision on the Admissibility of Evidence of Witness KDD, 1 November 2004 (“Simba Admissibility of Evidence Decision”), paras. 9-11. [4] Simba Admissibility of Evidence Decision, para. 9. [5] See [The Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T] T. 26 November 2008 pp. 55-58. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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213. The Appeals Chamber recalls that ordering requires that a person in a position of authority instruct another person to commit an offence. It is clear that the Trial Chamber found that Kalimanzira was in a position of authority.[2] The Trial Chamber, however, made no findings that he instructed anyone at Kabuye hill to commit a crime. Instead, it follows from the Trial Judgment that Kalimanzira’s role during his time at Kabuye hill involved “providing armed reinforcements.”[3] While it is possible that an order to attack could have been inferred from the surrounding circumstances, the Appeals Chamber is not satisfied that the Prosecution has demonstrated that this is the only reasonable inference from the evidence. [1] Semanza Appeal Judgement, paras. 361, 363. [2] Trial Judgement, paras. 97-99. [3] Trial Judgement, para. 393. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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218. In discussing the forms of responsibility under Article 6(1) of the Statute, the Trial Chamber stated that “‘[c]ommitting’ implies, primarily, physically perpetrating a crime.”[1] The Appeals Chamber can identify no error in this definition. The formulation is similar to the one articulated in the Nahimana et al. Appeal Judgement.[2] Indeed, the Trial Chamber’s use of the term “primarily” to qualify its definition of committing as physical perpetration illustrates that it did not limit the scope of its inquiry.[3] This stands in contrast to the definition used by the trial chamber in the Seromba case, which the Appeals Chamber found too restrictive.[4] The fact that the Trial Chamber did not explicitly recall the additional clarification of this well-settled principle provided by the Gacumbitsi and Seromba Appeal Judgements does not mean that these clarifications were not considered. 219. It follows from the Gacumbitsi and Seromba Appeal Judgements that physical perpetration need not only mean physical killing and that other acts can constitute direct participation in the actus reus of the crime.[5] The question is whether an accused’s conduct “was as much an integral part of the genocide as were the killings which it enabled.”[6] Bearing this in mind, the Appeals Chamber is not convinced that the Trial Chamber’s conclusion that Kalimanzira’s conduct was best characterized as aiding and abetting was unreasonable. The Trial Chamber did not find that he supervised or directed the attack at Kabuye hill. Instead, it concluded that he lured Tutsis to Kabuye hill and brought armed reinforcements.[7] 220. In other cases, trial chambers have qualified bringing assailants to a killing site as aiding and abetting.[8] In the circumstances of this case, the Appeals Chamber is not convinced that Kalimanzira’s tacit approval of Sub-Prefect Ntawukulilyayo’s call for Tutsis to go to Kabuye hill, and his leading assailants to Kabuye hill,[9] are sufficient to require that the legal qualification of his overall conduct be elevated to “committing”. Furthermore, the fact that the Trial Chamber found that Kalimanzira possessed genocidal intent,[10] rather than simply knowledge of the principal perpetrators’ mens rea,[11] does not in itself compel the conclusion that the Trial Chamber erred in finding that aiding and abetting most accurately described Kalimanzira’s conduct. The Appeals Chamber recalls that it is not unusual for a trial chamber to find that an individual convicted only of aiding and abetting possesses genocidal intent.[12] [1] Trial Judgement, para. 161. [2] Nahimana et al. Appeal Judgement, para. 478 (“The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, but also participation in a joint criminal enterprise.”). [3] Trial Judgement, para. 161. [4] See Seromba Appeal Judgement, para. 155 (“‘committing’ means [...] direct physical or personal perpetration”), quoting Seromba Trial Judgement, para. 302. See also Seromba Appeal Judgement, para. 161 (“[T]he Trial Chamber erred in law by holding that ‘committing’ requires direct and physical perpetration of the crime by the offender.”). [5] Gacumbitsi Appeal Judgement, para. 60; Seromba Appeal Judgement, para. 161. [6] Gacumbitsi Appeal Judgement, para. 60. See also Seromba Appeal Judgement, para. 161. [7] Trial Judgement, para. 393. [8] See, e.g., Semanza Trial Judgement, paras. 431-433; Ntakirutimana Trial Judgement, paras. 827-831. [9] See Trial Judgement, paras. 392, 393. [10] Trial Judgement, para. 393. [11] See Blagojević and Jokić Appeal Judgement, para. 127. [12] See Ntakirutimana Trial Judgement, paras. 827-831. Cf. Semanza Trial Judgement, paras. 431-433. |
ICTR Statute Article 6 (1) ICTY Statute Article 7(1) | |
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| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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238. Finally, the Appeals Chamber is not persuaded by the Prosecution’s reading of the Gacumbitsi Appeal Judgement and its relevance to this case. Just as there is no category of cases within the jurisdiction of the Tribunal where the imposition of a sentence of life imprisonment is per se barred, there is also no category of cases where it is per se mandated. Each case remains to be examined on its own individual facts.[1] [1] Gacumbitsi Trial Judgement, paras. 224, 325. The Trial Chamber found that Gacumbitsi had exhibited particular sadism and that there were no significant mitigating circumstances. He was found to be a “primary player” and “a leader in the commune who used his power to commit the brutal massacre and rape of thousands.” See Gacumbitsi Appeal Judgement, para. 204. The Appeals Chamber noted that, although not every individual convicted of genocide or extermination has been sentenced to life imprisonment, Gacumbitsi’s case was not comparable to the cases where a fixed term of imprisonment has been imposed. See Gacumbitsi Appeal Judgement, paras. 204, 205, n. 446. |
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| Appeal Judgement - 20.10.2010 |
KALIMANZIRA Callixte (ICTR-05-88-A) |
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229. The Appeals Chamber agrees that the crimes’ commission in Kalimanzira’s own prefecture and not at the national level is not a relevant fact for the purpose of assessing their gravity. The genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994, which resulted in the killings of hundreds of thousands of Tutsis, is indivisible.[1] […] [1] See Ndindabahizi Appeal Judgement, para. 138. |
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| Decision on Arrest of Counsel - 06.10.2010 |
BAGOSORA et al. (Military I) (ICTR-98-41-A) |
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18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […] 19. […] The Appeals Chamber considers that Defence Counsel fall within the category of persons required at the seat or meeting place of the Tribunal and as such must be accorded such treatment as is necessary for the proper functioning of the Tribunal. The proper functioning of the Tribunal requires that Defense Counsel be able to investigate and present arguments in support of their client’s case without fear of repercussions against them for these actions. Without such assurance, Defense Counsel cannot be reasonably expected to adequately represent their clients. 20. Additionally, the Memorandum of Understanding between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office in Rwanda of the International Tribunal for Rwanda of 3 June 1999 (“Memorandum of Understanding”),[1] which governs the privileges and immunities of the Tribunal’s operations in Rwanda, should also be taken into account. Of particular relevance to the present situation, the Memorandum of Understanding provides that the government of Rwanda shall extend: To other persons assigned to the Office whose names shall be communicated to the Government of Rwanda for that purpose, the privileges and immunities accorded to experts on mission for the United Nations, in accordance with Article VI of the Convention.[2] With respect to whether Defense Counsel fall within the meaning of “other persons assigned to the Office”, the Appeals Chamber notes that while Defense Counsel are not employees of the Tribunal they are assigned or appointed by the Tribunal to their positions as Defense Counsel. Furthermore, the procedures associated with Defense Counsel going on mission to Rwanda indicate that the Tribunal considers Defense Counsel to be acting in official capacity and on assignment in association with the Tribunal. For instance, Defense Counsel may request logistical support from the Tribunal while performing their missions in Rwanda. 21. The Appeals Chamber further notes that the Memorandum of Understanding sets out the rights and facilities granted to the Tribunal by the Government of Rwanda on its territory. These rights and facilities include various access rights such as the “right to question victims and witnesses, to gather evidence and all useful information and to conduct investigations in the field”.[3] The Appeals Chamber considers that, as the rights of access to undertake investigations are fundamental to the preparation of the Defence case, in concluding the Memorandum of Understanding it was contemplated that it applied to Defence Counsel as well as officials of the Tribunal. Indeed, if the Memorandum of Understanding did not extend to Defence Counsel, the right of equality of arms would be meaningless as the Defence would have no guarantee of access to potential witnesses and evidence to allow them to prepare their case. 22. In light of the procedural practice of the Tribunal as well as the purpose of the Memorandum of Understanding, the Appeals Chamber finds that Defence Counsel fall within the meaning of “other persons assigned to the Office” and therefore are to be accorded the privileges and immunities due to experts performing missions for the United Nations pursuant to Article VI of the Convention.[4] 23. This is further supported by the interpretation of the International Court of Justice as to who can be considered an expert according to Section 22 of the Convention: The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them ‘such privileges and immunities as are necessary for the independent exercise of their functions’. The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission.[5] Applying this reasoning to Defence Counsel on mission, the Appeals Chamber concludes that they are to be considered experts on mission within the meaning of the Convention. While Defence Counsel are not officials of the Tribunal, some guarantee is necessary for the independent exercise of their Tribunal assigned functions which are integral to its functioning. Accordingly, the nature of their mission, which is to engage in preparations for proceedings before the Tribunal, is the defining factor in granting them such privileges and immunities as granted to experts on mission – not their administrative status with the Tribunal. 24. The Appeals Chamber also notes that the response of the Prosecutor General of Rwanda to the Registrar’s invocation of the Memorandum of Understanding as affording to persons carrying out functions on behalf of the Tribunal, such as Defence Counsel, the immunities provided for in Article VI of the Convention[6] reflects support for the application of the relevant provisions of the Memorandum of Understanding to Defence Counsel of the Tribunal operating in Rwanda: “[…] I wish to state on record, that [Erlinder’s] arrest is not at all related to his assignments at the ICTR and that we remain in full compliance with the provisions of the memorandum of understanding [g]overn[]ing our cooperation”.[7] 25. Article VI of the Convention provides that experts performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions. In particular, Section 22 of Article VI of the Convention, invoked in the Registrar’s note verbale of 15 June 2010,[8] provides that: Experts (other than officials coming within the scope of Article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded: (a) Immunity from personal arrest or detention and from seizure of their personal baggage; (b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations; […] 26. Accordingly, Defence Counsel benefit from immunity from personal arrest or detention while performing their duties assigned by the Tribunal and also with respect to words spoken or written and acts done by them in the course of the performance of their duties as Defence Counsel before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article 29 of the Statute. […] 27. The Appeals Chamber recalls that, at the time of his arrest, Erlinder was not in Rwanda in his capacity as Ntabakuze’s Defence Counsel. He was therefore not immune from personal arrest or detention as provided for under Section 22(a) of Article VI of the Convention. Nonetheless, Erlinder benefits from immunity from legal process in respect of words spoken or written and acts done by him in the course of his representation of Ntabakuze before the Tribunal. […] 30. The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[9] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal. [1] United Nations Treaty Series vol. 2066, p. 5. [2] Memorandum of Understanding, para. 2, referring to Convention on the Privileges and Immunities of the United Nations, adopted by General Assembly Resolution A/RES/22(I)A, 13 February 1946 (“Convention”). [3] Memorandum of Understanding, para. 3(vi). Other rights provided for include the freedom of movement in Rwanda, right of access to prisons, the right to access all documents the consultation of which may be necessary for the smooth functioning of the Office, the right to make direct contact with national and local authorities, including the armed forces, individuals, intergovernmental and non-governmental organisations, private institutions and the media. Memorandum of Understanding, para. 3(ii)-(v), (vii). [4] Convention on the Privileges and Immunities of the United Nations, adopted by General Assembly Resolution A/RES/22(I)A, 13 February 1946. [5] Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, para. 47. [6] Registrar’s Submissions of 11 June 2010 [Registrar’s Submissions Under Rule 33 (B) of the Rules of Procedure and Evidence in Respect of the Appeals Chamber Order to the Registrar Dated 9 June 2010, dated 10 June 2010, filed 11 June 2010], Annex 1: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 31 May 2010 (“The ICTR attaches the utmost importance to the respect of the immunity which Defence Counsel assigned to cases before [the] ICTR enjoy, when they carry out the mandate vested on them by [the] ICTR. [… The] ICTR wishes to recall the 3 June 1999 Memorandum of Understanding (MOU) Between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to The Office in Rwanda of the International Criminal Tribunal for Rwanda. Pursuant to the said MOU, Rwanda will extend to persons carrying out functions on behalf of [the] ICTR, including experts on mission, the same privileges and immunities, as provided for in Articles VI and VII of the General UN Convention on the Privileges and Immunities to which the Republic of Rwanda is a party.”). See also Registrar’s Submissions of 15 June 2010 [Further Registrar’s Submissions Under Rule 33 (B) of the Rules of Procedure and Evidence in Respect of the Appeals Chamber Order to the Registrar Dated 9 June 2010, 15 June 2010], Annex: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 15 June 2010. [7] Registrar’s Submissions of 11 June 2010, Annex 2: Correspondence from Mr. Martin Ngoga, Prosecutor General of Rwanda, to the Registrar of the Tribunal dated 2 June 2010. See also Registrar’s Submissions of 15 July 2010, para. 9 (“The Rwandan Prosecutor General also stressed that Mr. Erlanger’s arrest was not based on his work before this Tribunal and clarified that he would respect any conflicting judicial finding of the ICTR. In this respect, he indicated to the President of the ICTR that he stands ready to remove any disclosed documents that might be deemed to be linked to the ICTR business.”). [8] Registrar’s Submissions of 15 June 2010, Annex: Note Verbale from the Registrar to the Minister of Foreign Affairs and Cooperation dated 15 June 2010. [9] Registrar’s Submissions of 15 July 2010, para. 9. |
ICTR Statute
Article 29
ICTY Statute
Article 30
ICTR Rule
Rule 54 Rule 107 Other instruments Convention on the Privileges and Immunities of the United Nations. Memorandum of Understanding Between the United Nations and the Republic of Rwanda to Regulate Matters of Mutual Concern Relating to the Office of Rwanda of the ICTR of 3 June 1999. |
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| Notion(s) | Filing | Case |
| Decision on Arrest of Counsel - 06.10.2010 |
BAGOSORA et al. (Military I) (ICTR-98-41-A) |
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18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […] […] 30. The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[1] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal. [1] Registrar’s Submissions of 15 July 2010, para. 9. |
ICTR Statute
Article 28
ICTY Statute
Article 29
ICTR Rule
Rule 54 Rule 107 |
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| Notion(s) | Filing | Case |
| Decision on Death of Co-Accused - 24.09.2010 |
KAREMERA et al. (ICTR-98-44-AR50) |
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15. The Appeals Chamber finds that Karemera and Ngirumpatse have failed to demonstrate a discernible error in the Trial Chamber’s order in relation to the amendment of the Indictment. It is clear from the Indictment of 23 August 2010, which implements the Impugned Decision, that Nzirorera is no longer an accused in the case. While his name continues to appear in the Indictment of 23 August 2010, his name has been removed from the title and the counts, and his status is now no different from other alleged members of the joint criminal enterprise who are not charged in this case. […] 16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] While Nzirorera is no longer an accused in the case, it is still open for the Prosecution to allege that he was a member of the joint criminal enterprise. This being the case, it is proper for the Prosecution to name him in the Indictment while making clear that he is not one of the accused. In this regard, the Appeals Chamber notes that, contrary to Ngirumpatse’s submission, in other cases where proceedings have been terminated in relation to one accused due to that accused’s death but where joint criminal enterprise was pleaded, the deceased accused’s name has continued be referred to in the Indictment.[2] [1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006, para. 22; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 24. [2] See, e.g., Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, in which Momir Talić was separated from the case and later died, but his name continued to appear in the Indictment (see Prosecutor v. Radoslav Brðanin and Momir Talić, Case No. IT-99-36-T, Decision on Prosecution’s Oral Request for the Separation of Trials, 20 September 2002 (“Brðanin and Talić Decision of 20 September 2002”); Brðanin Sixth Amended Indictment [Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, Sixth Amended Indictment, 9 December 2003]); Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, in which Vlajko Stojiljković died but his name continued to appear in the Indictment (see Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-PT, Third Amended Indictment, 19 July 2002, p. 1; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Third Amended Joinder Indictment, 21 June 2006, paras. 14, 20, 48, 61). See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, in which charges against Momir Nikolić and Dragan Obrenović were dismissed following their guilty pleas and both their names continued to appear in the amended indictment (see Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Prosecution’s Motion for Leave to File Third Amended Indictment, 17 June 2003; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Amended Joinder Indictment, 26 May 2003). |
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| Notion(s) | Filing | Case |
| Decision on Death of Co-Accused - 24.09.2010 |
KAREMERA et al. (ICTR-98-44-AR50) |
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17. Turning to the issue of retaining the body of evidence adduced to date on the record, the Appeals Chamber also finds that Karemera and Ngirumpatse have failed to demonstrate that the Trial Chamber committed a discernible error in this regard.[1] Although the Trial Chamber retained all the evidence on the record, it specifically clarified that in its deliberations it would “separate the evidence that relates only to Nzirorera and that which relates to a joint criminal enterprise or conspiracy or aiding and abetting amongst Nzirorera and others”.[2] In adopting this approach, it correctly recalled that “[t]here is clear statutory language and jurisprudence which emphasize the individual nature of criminal responsibility in this Tribunal [and that] [e]ven if Accused persons are joined together into one trial, this in no way diminishes the Prosecution’s burden to prove each element of each crime individually against each of the co-Accused.”[3] The Appeals Chamber does not find this “streamlined approach”[4] unreasonable. 18. Furthermore, the Appeals Chamber recalls that a similar approach was adopted in the Brðanin case before the ICTY, in which Momir Talić was severed from the case eight months after the trial started.[5] Not only did Talić’s name continue to appear in the indictment,[6] but the evidence already on the record was retained.[7] In the Brðanin Trial Judgement, the Trial Chamber noted that “[it] ha[d] taken into consideration the evidence given against the former co-accused Momir Talić, whose case was severed from that of the Accused and who subsequently passed away, as far as it [was] relevant to the case against the Accused.”[8] Accordingly, the Trial Chamber in that case followed the same approach proposed by the Trial Chamber in the present case. [1] See Impugned Decision; Reasons for Impugned Decision [The Prosecutor v. Édouard Karemera and Matthieu Ngirumpatse, Case No. ICTR-98-44-T, Reasons for Oral Decision of 23 August 2010 and on Oral Applications for Certification to Appeal, 26 August 2010 (“Reasons for Impugned Decision”)], p. 7. [2] Reasons for Impugned Decision, para. 9. [3] Reasons for Impugned Decision, para. 14. [4] Reasons for Impugned Decision, para. 10. [5] The trial started on 23 January 2002 and Talić was severed from the case on 20 September 2002. See Brðanin and Talić Decision of 20 September 2002, para. 2, p. 9. [6] See Brðanin Sixth Amended Indictment, paras. 10, 12, 13, 19, 20, 20.1, 21, 23.1, 24-26, 27.2. [7] Indeed the Brðanin and Talić Decision of 20 September 2002 provided that the severance would come into force following the completion of the cross-examination of a witness whose testimony had been suspended when Talić fell ill. Brðanin and Talić Decision of 20 September 2002, para. 29, p. 9. [8] Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-T, Judgement, 1 September 2004, para. 36. |
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| Notion(s) | Filing | Case |
| Decision on Death of Co-Accused - 24.09.2010 |
KAREMERA et al. (ICTR-98-44-AR50) |
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16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] […] [1] Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement, 28 November 2006, para. 22; The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement, 7 July 2006, para. 24. |
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| Notion(s) | Filing | Case |
| Decision on Death of Co-Accused - 24.09.2010 |
KAREMERA et al. (ICTR-98-44-AR50) |
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17. […] [The Trial Chamber] correctly recalled that “[t]here is clear statutory language and jurisprudence which emphasize the individual nature of criminal responsibility in this Tribunal [and that] [e]ven if Accused persons are joined together into one trial, this in no way diminishes the Prosecution’s burden to prove each element of each crime individually against each of the co-Accused.”[1][…] 21. […] As noted above, the Trial Chamber explicitly recalled the principle of individual criminal responsibility and that the Prosecution must prove each element of each crime individually against each of the co-Accused.[2] To the extent that they are charged with joint criminal enterprise and may thus be held accountable for acts of others in accordance with the common criminal purpose, the Appeals Chamber notes that Nzirorera’s death does not affect the burden to be met by the Prosecution in relation to Karemera and Ngirumpatse. [1] Reasons for Impugned Decision, para. 14. [2] Reasons for Impugned Decision, para. 14. |
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| Notion(s) | Filing | Case |
| Reconsideration Decision - 20.09.2010 |
NZABONIMANA Callixte (ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2) |
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23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned. 24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration. [1] See supra, para. 13 and references cited therein [Prosecutor v. Stanislav Galić, IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 13; The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion for Reconsideration of the Trial Chamber’s Oral Decisions Rendered on 23 September 2009, 7 July 2010, para. 16. The Appeals Chamber recalls, however, that there is no power to reconsider a final judgement. See Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005”, 26 June 2006, para. 9; Ferdinand Nahimana v.The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6]. [2] Nzabonimana’s Reply [Callixte Nzabonimana’s Reply to Prosecutor’s Response to Nzabonimana’s Interlocutory Appeal on the Order Rescinding the 4 March 2010 Decision, 21 June 2010], paras. 9-11. |
ICTR Rule Rule 7 bis ICTY Rule Rule 7 bis | |
| Notion(s) | Filing | Case |
| Reconsideration Decision - 20.09.2010 |
NZABONIMANA Callixte (ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2) |
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35. As recognised in the 5 May 2010 President’s Decision, the role of the President of the Tribunal under Rule 7bis (A) of the Rules is simply to transmit the judicial finding of the relevant Chamber to the Security Council.[1] The Appeals Chamber therefore agrees that “it is not within the jurisdiction of the President to replace the assessment of the Chamber about a Member State’s violation of Article 28 of the Statute at the request of a party with his own”.[2] Accordingly, once a Trial Chamber has rescinded its request under Rule 7bis of the Rules, the President is no longer seised of the matter and his subsequent decision not to report the matter to the Security Council cannot be successfully challenged on appeal. [1] 5 May 2010 President’s Decision, para. 5 [The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on Nzabonimana’s Motion for the Implementation of the Order of Trial Chamber III of 4 March 2010 and for Allowing the Defence to Make Submissions Before the Security Council, 5 May 2010], referring to Blaškić Judgement on Request for Review [Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997], para. 37. [2] 5 May 2010 President’s Decision, para. 9. |
ICTR Rule Rule 7 bis ICTY Rule Rule 7 bis | |
| Notion(s) | Filing | Case |
| Reconsideration Decision - 20.09.2010 |
NZABONIMANA Callixte (ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2) |
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29. The Appeals Chamber considers that while a Trial Chamber may proprio motu decide to reconsider its own decision, this does not relieve it of its duty to hear a party whose rights may be affected by this reconsideration.[1] [1] See Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement, 5 July 2001, para. 27, referring to R. v. Barking and Dagenham Justices, ex parte Director of Public Prosecutions [1995] Crim LR 953, and Director of Public Prosecution v. Cosier, Q.B.D., 5 April 2000. |
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