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.

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]

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] […]

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.

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]

34. The central factual context of the Prosecution’s appeal is the unprecedented atmosphere of widespread and serious witness intimidation that surrounded the trial. The Trial Chamber acknowledged this in the Trial Judgement, observing that:

[…] throughout the trial, the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses. Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence. The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe. This was due to a number of factors specific to Kosovo/Kosova, for example Kosovo/Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult. The parties themselves agreed that an unstable security situation existed in Kosovo/Kosova that was particularly unfavourable to witnesses.[1]

35. In circumstances of witness intimidation such as this, it is incumbent upon a Trial Chamber to do its utmost to ensure that a fair trial is possible. Witness intimidation of the type described by the Trial Chamber undermines the fundamental objective of the Tribunal, enshrined in Article 20(1) of the Statute: to ensure that trials are fair, expeditious, and conducted with due regard for the protection of victims and witnesses. Countering witness intimidation is a primary and necessary function of a Trial Chamber. While a Trial Chamber is always required to “provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”,[2] this obligation is especially pressing when outside forces seek to undermine the ability of a party to present its evidence at trial. For the Tribunal to function effectively, 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.

39. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in managing the trials before them. However, the manner in which such discretion is exercised by a Trial Chamber should be determined in accordance with the case before it. Indeed, what is reasonable in one trial is not automatically reasonable in another. Thus, the question of whether a Trial Chamber abused its discretion should not be considered in isolation, but rather should be assessed taking into account all the relevant circumstances of the case at hand.

40. Taken individually and outside the context of the trial, each of the Trial Chamber’s decisions concerning Kabashi and the other witness could be considered as falling within its scope of discretion. When these decisions are evaluated together, however, particularly in the context of the serious witness intimidation that formed the context of the Trial, it is clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of Kabashi and the other witness. […]

48. […] [T]he context of this trial was far from normal and required the Trial Chamber to proactively focus on ensuring the fairness of the proceedings in accordance with the Statute.[1] This required flexibility from the Trial Chamber with regard to subsidiary issues of witness scheduling, trial logistics, and deadlines. The Trial Chamber’s failure to show the required flexibility effectively helped to ensure that witness intimidation succeeded in denying the Prosecution an opportunity to present potentially crucial evidence in support of its case.[2]

290. The jurisprudence of the Tribunal defines torture as follows:

(i) The infliction, by act or omission, of severe pain or suffering, whether physical or mental.

(ii) The act or omission must be intentional.

(iii) The act or omission must aim at obtaining information or a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person.[1]

145. The Appeals Chamber recalls that a Trial Chamber may enter a conviction on the “basis of a single witness, although such evidence must be assessed with the appropriate caution, and care must be taken to guard against the exercise of an underlying motive on the part of the witness.”[1] The Appeals Chamber further recalls that “a Trial Chamber should at least briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused; in this way, a Trial Chamber shows its cautious assessment of this evidence.”[2] [see also para. 242 of the Appeals Judgement]

219. The Appeals Chamber recalls that a Trial Chamber is at liberty to rely on the evidence of a single witness when making its findings.[3] The testimony of a single witness may be accepted without the need for corroboration, even if it relates to a material fact.[4] […]

19. At the Appeal Hearing, the Prosecution further argued that, given the extraordinary circumstances of the trial, during which two crucial witnesses did not testify due to intimidation, the Trial Chamber was obliged under Article 20(1) of the Statute to consider, proprio motu, receiving their written statements under Rule 89(F) of the Rules.[1] The Appeals Chamber recalls that, unless specifically authorised by the Appeals Chamber, parties should not raise new arguments during an appeal hearing that are not contained in their written briefs.[2] Given that the Prosecution raised this argument for the first time during the Appeal Hearing without authorisation from the Appeals Chamber, the Appeals Chamber declines to consider it.