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Notion(s)	Filing	Case
Disclosure \| Request for inspection \| Specificity	Decision on Disclosure - 18.05.2010	KAREMERA et al. (ICTR-98-44-AR73.18)
12. Pursuant to Rule 66(B) of the Rules, the Prosecutor shall permit the Defence, upon request, to inspect documents and other records in his custody or control if these records (i) are material to the preparation of the Defence case; (ii) are intended for use by the Prosecution as evidence at trial; or (iii) were obtained from or belonged to the accused. If the Defence is not satisfied with the Prosecution’s response to a request pursuant to Rule 66(B), it may request the Trial Chamber to order the inspection. 32. The Appeals Chamber recalls that to trigger the Prosecution’s obligation under Rule 66(B) of the Rules, the Defence must, inter alia, specifically identify the requested material.[2] “Rule 66(B) of the Rules does not create a broad affirmative obligation on the Prosecution to disclose any and all documents which may be relevant to its cross-examination”.[3] The Defence may not rely on a mere general description of the requested information but is required to define the parameters of its inspection request with sufficient detail. Suitable parameters for such specification may be an indication of a specific event or group of witnesses which the request focuses on, a time period and/or geographic location which the material refers to, or any other features defining the requested items with sufficient precision.[4] A request may also refer to a category of documents[5] defined by criteria which apply to a distinct group of individuals. The scope of what constitutes a “discrete group of individuals” for the purpose of an inspection request, as well as the determination whether the required level of specificity has been met, is considered in light of the specific framework of the case. The Appeals Chamber has previously found the specificity requirements to be satisfied inter alia in cases where the defence has sought access to a precise category of documents, such as immigration-related material of certain Defence witnesses,[6] or witness statements of a specific witness.[7] 33. […] [The Appeals Chamber] finds that sub-section (D) of the June 2002 Inspection Request delineated a category of documents linking acts of Interahamwe with Nzirorera; it also specified the quality of that link, namely whether he “planned, ordered, or otherwise aided and abetted those acts, or was responsible for them under Article 6(3)” of the Statute.[8] The Appeals Chamber considers that these indications define the request parameters with sufficient detail, particularly considering the broad nature of the charges against Nzirorera.[9] show footnotes [1] Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R68, Decision on Motion for Disclosure, 4 March 2010 (“Kamuhanda Disclosure Decision”), para. 14; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.11, Decision on the Prosecution’s Interlocutory Appeal Concerning Disclosure Obligations, 23 January 2008 (“First Karemera Decision”), para 12. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 25 September 2006 (“Bagosora Decision”), paras. 10, 11. [2] First Karemera Decision, para. 12; Bagosora Decision, paras. 10, 11. See also supra, para. 15. [3] Bagosora Decision, para. 10. [4] See ibid. [5] Ibid. [6] Ibid. [7] First Karemera Decision, paras. 14, 16. [8] Appeal [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.18, Joseph Nzirorera’s Appeal from Decision on 27th Rule 66 Violation, 15 February 2010], Annex “B”, p. 2, para. 64(D). [9] The Prosecution has not contested Nzirorera’s contention that he is “alleged to be responsible for all crimes of the ‘Interahamwe’ within Rwanda” (Appeal, para. 36). See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Amended Indictment, 3 April 2008 (“Indictment”), paras. 22-80. [10] The Appeals Chamber notes that Rule 67(D) of the Rules explicitly refers to material that “should have been produced earlier” (emphasis added), thus encompassing both an inspection of records pursuant to Rule 66(B) as well as the disclosure regime pursuant to Rules 66(A), 68, and 70 of the Rules. The Appeals Chamber further notes that in contrast, Rule 67(D) of the Rules of Procedure and Evidence of the ICTY uses the term “disclosed”, which would, on its face, exclude the applicability of Rule 67(D) to Rule 66(B) of the Rules of Procedure and Evidence of the ICTY. Download full document		ICTR Rule Rule 66(B) ICTY Rule Rule 66(B)
Notion(s)	Filing	Case
Additional evidence on appeal \| Admissibility of additional evidence \| Applicable law	Decision on Additional Evidence - 29.04.2010	ŠAINOVIĆ et al. (IT-05-87-A)
44. […] The Appeals Chamber therefore finds that document 6DA23 is not relevant for the purposes of Rule 115 of the Rules. Considering that the requirements of Rule 115 of the Rules are cumulative, the Appeals Chamber will not consider the other requirements of that Rule. […] show footnotes [1] Motion [General Vladimir Lazarević’s Motion to Admit Additional Evidence Pursuant to Rule 115 with Annexes A, B, C, D, E, F”, 16 November 2009], paras 5, 8, 15. [2] Ibid., para. 7. [3] The jurisprudence relied upon by Lazarević refers to Rule 115 (B) prior to its amendment in July 2002 (Motion, paras 5, 8, referring to Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001 (confidential), 11 April 2001, para 6; Prosecutor v. Zoran Kupreškić et al., IT-95-16-A, Appeal Judgement, 23 October 2001, paras 75-76). Prior to its amendment, Rule 115 (B) provided the following with respect to the admissibility of evidence that was unavailable at trial: “The Appeals Chamber shall authorize the presentation of such evidence if it considers that the interests of justice so require”. Following the amendment in 2002, the provision reads: “If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial”. Therefore, the “interests of justice” is no longer the applicable standard for admissibility of additional evidence on appeal (cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on the Fourth Defence Motion to Present Additional Evidence Before the Appeals Chamber (confidential), 29 August 2005, para. 19). [4] See supra, paras 5-12. Download full document		ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s)	Filing	Case
Additional evidence on appeal \| Availability of the proffered evidence at trial \| Due diligence	Decision on Additional Evidence - 29.04.2010	ŠAINOVIĆ et al. (IT-05-87-A)
20. […] The mere assertion that the document was found by the Defence only after the rendering of the Trial Judgement is not sufficient for demonstrating that due diligence had been exercised. […] show footnotes [1] See also supra, para. 7. [2] See Krajišnik Rule 115 Decision of 20 August 2008, para. 23. [3] Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Mile Mrkšić’s Second Rule 115 Motion, 13 February 2009, para. 6, referring to Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Request to Present Additional Evidence under Rule 115, 3 March 2006 (“Haradinaj et al. Rule 115 Decision”), para. 16. [4] See supra, para. 5. [5] Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Consolidated Motion to Present Additional Evidence, 20 October 2004 (“Naletilić Rule 115 Decision”), para. 30, citing Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001 (confidential), para. 12. [6] Naletilić Rule 115 Decision, para. 30, referring to Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 15. Download full document		ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s)	Filing	Case
Additional evidence on appeal \| Credibility	Decision on Additional Evidence - 29.04.2010	ŠAINOVIĆ et al. (IT-05-87-A)
27. […] The Appeals Chamber notes that document 6DA19 contains sufficient indicia of credibility, such as a date, reference number, and the signature of Vlastimir Đorđević.[1] Accordingly, the Appeals Chamber finds document 6DA19 to be prima facie credible.[2] […] 33. […] Given that the document bears sufficient indicia of credibility, such as a date, reference number, and a handwritten confirmation of receipt, the Appeals Chamber finds it to be prima facie credible.[3] […] 40. The Appeals Chamber notes that although the original, untranslated version of document 6DA22 in Annex D of the Motion does not include the page containing the relevant stamps and signatures, the Appeals Chamber is apprised of the name of the court and the date on which the judgement was rendered. The Appeals Chamber further notes that the Prosecution does not contest its credibility. Accordingly, the Appeals Chamber finds document 6DA22 to be prima facie credible. […] show footnotes [1] Ibid. [2] The Appeals Chamber notes that the Prosecution does not challenge the credibility of any of the proposed documents […]. [3] Ibid. [4] Milošević Rule 115 Decision, para. 8; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Appellant Momčilo Krajišnik’s Motion to Call Radovan Karadžić pursuant to Rule 115, 16 October 2008 (“Krajišnik Rule 115 Decision of 16 October 2008”), para. 5; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Decision on Prosecution’s Application to Present Additional Evidence in Its Appeal Against the Re-Assessment Decision, 10 March 2006 (confidential), para. 16; Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-A, Appeal Judgement, 23 October 2001, para. 63. [5] The Appeals Chamber observes that the copies of documents 6DA5 through 6DA9 contained in Annex E of the Motion are of very poor quality. In this particular instance, the Appeals Chamber was able to compare the currently submitted versions of the documents with those tendered at trial in relation to Lukić’s Motion of 7 May 2008 (documents MNA 6D1262, MNA 6D1263, MNA 6D1264, MNA 6D1265, MNA 6D1266) and is satisfied that the documents are indeed the same. Therefore, the fact that in this case the submitted copies of the documents were of poor quality does not affect the Appeals Chamber’s finding in relation to the credibility of the documents. The Appeals Chamber however notes that it is Counsel’s duty to ensure that the documentary evidence sought to be admitted is of good quality. [6] See supra, para. 6. Download full document		ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s)	Filing	Case
Additional evidence on appeal \| Specificity requirement	Decision on Additional Evidence - 29.04.2010	ŠAINOVIĆ et al. (IT-05-87-A)
41. With regard to the issue of whether document 6DA22 could have affected the verdict, the Appeals Chamber recalls that Lukić bears the burden of not only identifying with precision specific finding(s) of fact made by the Trial Chamber to which the additional evidence pertains, but also of specifying with sufficient clarity the impact the additional evidence could or would have had upon the Trial Chamber’s verdict.[1] While the Appeals Chamber is satisfied that Lukić has identified the findings of fact to which the additional evidence pertains, […] he fails to elaborate with sufficient clarity on the impact the proffered material could have had on the verdict had it been admitted at trial. […] show footnotes [1] See supra para. 10. Download full document		ICTR Rule Rule 115 ICTY Rule Rule 115
Notion(s)	Filing	Case
Administrative decisions \| Review of an administrative decision (Registrar's and/or President's)	Review Decision Concerning Payment - 13.04.2010	NSHOGOZA Léonidas (ICTR-07-91-A)
12. The Appeals Chamber recalls that the Registrar has the primary responsibility in the determination of matters relating to the remuneration of counsel.[1] Article 22 of the Directive on the Assignment of Defence Counsel (“Directive”) empowers the Registrar to establish a “lump sum” system of remuneration to assigned counsel, and, in the event of a disagreement over the sum, the Directive vests the Registrar with the discretion to decide the matter after consulting the relevant Chamber.[2] According to Article 30 of the Directive, the Registrar also decides any disagreement on questions relating to the calculation and payment of remuneration or to the reimbursement of expenses after consulting the President and, if necessary, the Advisory Panel.[3] The Directive does not specify an avenue for review of a decision by the Registrar concerning the lump sum payment. 14. However, there is nothing in the Statute of the Tribunal, Rules, or the Directive that provides for a direct appeal of a decision by the Registrar or the President concerning an administrative matter that related exclusively to the trial and has no bearing on appellate proceedings.[4] Rather, the Appeals Chamber’s consideration of such matters is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[5] Therefore, the Appeals Chamber considers that it has no jurisdiction over this matter. show footnotes [1] See, e.g., Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, para. 4. See also Prosecutor v. Nikola [ainović et al., Case No. IT-05-87-A, Decision on Nebojša Pavković’s Motion for Stay of Proceedings, 2 March 2010, para. 12, referring to Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19. [2] Article 22(C) of the Directive states: “The Registrar, with the concurrence of the President, may establish an alternative scheme of payment based on a fixed fee (“lump sum”) system consisting of a maximum allotment of moneys for each Defence Team in respect of each stage of the procedure taking into account the Registrar’s estimate of the duration of the stage and the apparent complexity of the case. In the event that a stage of the procedure is of substantially longer or shorter duration than estimated, the Registrar may adapt the allotment, whether by increasing or decreasing it. In the event of disagreement on the quantum of the maximum allotment, the Registrar shall make a decision, after consulting the Chamber and, if he deems it expedient to do so, the Advisory Panel.” [3] Article 30 of the Directive states: “In the event of a disagreement on questions relating to the calculation and payment of remuneration or to the reimbursement of expenses, the Registrar shall make a decision after consulting the President and, if necessary, the Advisory Panel, on an equitable basis. The Registrar may also consult the President and, if necessary, the Advisory Panel, and make a decision under this Article, if it appears to the Registrar that a Counsel has been submitting inflated claims for remuneration or claims for expenses which are unnecessary or unreasonable.” [4] Cf. The Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-AR, Decision on Interlocutory Appeal of a Bureau Decision, 22 May 2006, para. 4 (“Seromba Decision”); Case Miscellaneous Kabuga Family-01-A, Decision (Appeal of the Family of Felicien Kabuga against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002, p. 3; In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12 (“The Applicant seeks leave of the Appeals Chamber to appeal against the Decision of the President and the Decision of the Trial Chamber. While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof. The Appeals Chamber also recalls that it has inherent jurisdiction to review decisions issued by the President of the Tribunal in certain instances, including where such decisions are closely related to issues involving the fairness of proceedings before the Appeals Chamber.”) (emphasis added) (internal citations omitted). [5] Cf. Seromba Decision, para. 4. See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.6, Decision on Radovan Karadžić’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010; Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.2, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Adequate Facilities, 7 May 2009. Download full document
Notion(s)	Filing	Case
Right to have adequate time and facilities for the preparation of a defence \| Trial management issues \| Trial date	Decision on Postponement of Trial - 31.03.2010	KARADŽIĆ Radovan (IT-95-5/18-AR73.7)
23. In the course of discharging their duty to ensure that a trial is fair and expeditious,[1] Trial Chambers enjoy considerable discretion in scheduling trials.[2] The Appeals Chamber recalls that “it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case”.[3] Thus, a Trial Chamber’s assessment of the time and resources required to prepare for trial is such a “fact-intensive exercise” that Karadžić’s comparisons to other cases are of little assistance and limited relevance.[4] 25. […] Based on the information provided, the Trial Chamber conducted considerably detailed analyses concerning the quantity and nature of the disclosed items, as well as reasons for their disclosure at this stage of the proceedings.[5] The Trial Chamber found that much of the disclosure made to Karadžić during the adjournment period was unavoidable […].[6] […]. Taking into account that Karadžić had already had 18 months to prepare, the Trial Chamber found that the volume of additional disclosure did not justify further delay to the hearing of evidence.[7] The Trial Chamber also considered other means to ensure that Karadžić’s rights were not prejudiced by late disclosure, such as granting him additional time to prepare for his cross-examination or familiarise himself with the disclosure, or allowing him to re-call a witness, upon a showing of good cause.[8] 26. […] Regarding the Prosecution’s motions relating to judicial notice, bar table and amendment of the Rule 65ter exhibit list,[9] to which Karadžić was supposed to respond during the adjournment period, the Trial Chamber has already granted extensions of time of four to six weeks to respond in view of their voluminous nature.[10] Taking into account the President’s analysis of the same motions, the Trial Chamber held that any difficulty Karadžić had faced in responding to these motions during the adjournment period due to the limitation on the defence funding could be remedied by granting further extensions of time to respond.[11] […]. 28. In light of the above, the Appeals Chamber is satisfied that the Trial Chamber took into account all the relevant factors, including the impact of the February 2010 President Decision on the staffing of Karadžić’s defence team and possible remedies for the period when his team was understaffed. As a result, the Trial Chamber made no error in assessing that further postponement of the trial was not justified. Karadžić has failed to demonstrate that the Trial Chamber abused its discretion in reaching this conclusion. show footnotes [1] Article 20(1) of the Statute. See also Article 21(4)(b) of the Statute, requiring a Trial Chamber to guarantee the accused’s right to have adequate time and facilities for the preparation of his defence. [2] Ngirabatware Decision, para. 22; Milošević Decision, para. 16. [3] Appeal Decision on Commencement of Trial [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.5, Decision on Radovan Karadžić’s Appeal of the Decision on Commencement of Trial, 13 October 2009], para. 19; Ngirabataware Decision, para. 28. [4] See Appeal Decision on Commencement of Trial, paras 19, 23. See also Ngirabataware Decision, para. 28. [5] Impugned Decision, paras 25-37. [6] Id., para. 38. [7] Id., para. 39. [8] Id., para. 40. [9] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s First Motion for Judicial Notice of Documentary Evidence Related to the Sarajevo Component with Confidential Appendix A, 19 October 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Prosecution’s Motion for Leave to File a Supplemental Rule 65ter Exhibit List with Confidential Appendix A, Public Appendix B and Confidential and Ex Parte Appendix C, 14 December 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Prosecution’s First Bar Table Motion with Appendix A, 15 December 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Fifth Prosecution Motion for Judicial Notice of Adjudicated Facts, 15 December 2009. [10] Impugned Decision, para. 42, referring to Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Motion for Extension of Time to File Response to Prosecution Motion for Judicial Notice of Documents, 30 October 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion for Extension of Time to Respond to Prosecution Motions, 24 December 2009. [11] Impugned Decision, para. 43. The Trial Chamber accordingly granted extensions of two additional weeks except for one motion to which he had already responded, see id., para. 49, d), setting 12 March 2010 as the deadline for responses to the relevant motions. Download full document		ICTR Statute Article 19(1); Article 20(4)(d) ICTY Statute Article 20(1); Article 21(4)(d)
Notion(s)	Filing	Case
President \| Competence vis-à-vis Trial Chambers	Decision on Postponement of Trial - 31.03.2010	KARADŽIĆ Radovan (IT-95-5/18-AR73.7)
On 19 February 2010, the President of the Tribunal (“President”) rendered a decision[1], in which he held that the remuneration granted by the Registry to Radovan Karadžić’s defence team for the period between the adjournment of the trial and the resumption thereof (“adjournment period”)[2] was insufficient. This raised the question how the February 2010 President Decision should affect the date of the resumption of the trial scheduled by the Trial Chamber. In determining this matter, the Appeals Chamber clarified the competence of the President vis-à-vis Trial Chambers, stating: 19. […]. The President is vested with the authority to supervise the activities of the Registrar, who is in charge of the administration and servicing of the Tribunal.[3] However, decisions relating to the general conduct of trial proceedings, including the scheduling of trials, are matters that fall within the discretion of Trial Chambers.[4] None of the provisions in the Statute of the Tribunal (“Statute”) or the Rules confers on the President the authority to interfere with a Trial Chamber’s determination with respect to the scheduling of a trial to which it is assigned. Indeed, while Trial Chambers are bound by the ratio decidendi of decisions of the Appeals Chamber,[5] the President has no competence to issue decisions that are binding on Trial Chambers.[6] This power is exclusively conferred upon the Appeals Chamber pursuant to Article 25 of the Statute.[7] 20. Thus, in accordance with his mandate, in the February 2010 President Decision, the President solely dealt with the issue of remuneration for Karadžić’s defence team. He refrained from stating how his determination of the issue might affect the scheduled date of the resumption of the trial. The latter was clearly within the competence of the Trial Chamber, not of the President. 21. The Appeals Chamber considers that the President’s evaluation of defence funding may be a factor for a Trial Chamber to consider when deciding upon the scheduling of a trial, in discharging its duty to ensure the fair and expeditious management of the trial proceedings. However, this does not mean that the President’s order to increase the remuneration for a defence team invariably warrants postponement of the trial. Thus, it was open for the Trial Chamber to conclude, in light of other relevant factors, that the President’s view on the defence funding during the adjournment period would not necessitate further delay in the proceedings in order to safeguard Karadžić’s rights to a fair trial. 22. […] Therefore, Karadžić’s assertion that the Trial Chamber overruled the February 2010 President Decision or removed the remedy granted therein although it was obliged to implement the President’s order, is based on the misconception of both the law and the Impugned Decision. The Trial Chamber did not overrule the President, but concluded that the level of defence assistance for Karadžić, which the President found too low, could be remedied by means other than postponement of the trial.[8] The Appeals Chamber finds no error in this approach. show footnotes [1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Request for Review of OLAD Decision on Trial Phase Remuneration, 19 February 2010 (“February 2010 President Decision”). [2] The trial in the Karadžić case commenced on 26 October 2009. However Karadžić absented himself from the proceedings. On 5 November 2009, the Trial Chamber adjourned the proceedings until 1 March 2010, see Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further Trial Proceedings, 5 November 2009. [3] Rules 19(A) and 33(A) of the Rules [Rules of Procedure and Evidence]. [4] Ngirabatware Decision [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 22; Milošević Decision [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004], para. 16; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.2, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on Adequate Facilities, 7 May 2009, para. 11. See also Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on Appeal Against Registry Decision of 19 December 2006, 12 March 2007, para. 6. [5] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 113. [6] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-T, Decision on Urgent Registry Submission Pursuant to Rule 33(B) Seeking Direction From the President on the Trial Chamber’s Decision of 27 November 2008, 17 December 2008, para. 9. [7] Id. [8] Id., paras 40, 43, 47. Download full document		ICTR Rule Rule 19(A) ICTY Rule Rule 19(A)
Notion(s)	Filing	Case
Indictment \| Mens rea \| Genocide \| Pleading	Decision on Exclusion of Evidence - 23.03.2010	KANYARUKIGA Gaspard (ICTR-02-78-AR73.2)
The Appellant Kanyarukiga requests the exclusion of Witness YAU’s evidence as in his submission this evidence relates to material facts not properly pleaded in the operative indictment.[1] 9. The Appeals Chamber recalls that there are two ways in which mens rea may be pleaded: (i) either the specific state of mind itself should be pleaded as a material fact, in which case, the facts by which that material fact is to be established are ordinarily matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred, should be pleaded.[2] 10. In the present case, the Indictment pleads as a material fact the specific state of mind alleged in relation to the counts of genocide and complicity in genocide, in particular that Kanyarukiga acted “with the intent to destroy the Tutsi population in whole [or] in part”.[3] Given that the Indictment pleads as a material fact the specific state of mind alleged, the facts by which his mens rea is to be established are matters of evidence and need not be pleaded.[4] show footnotes [1] The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-I, Amended Indictment, 14 November 2007 (“Indictment”). [2] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (“Nahimana et al. Appeal Judgement”), para. 347; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 29 July 2004 (“Blaškić Appeal Judgement”), para. 219. [3] Indictment, para. 4. See also Indictment, paras. 7 (“Gaspard KANYARUKIGA, with intent to destroy, in whole or in part, the Tutsi racial or ethnic group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnical group…”), 8 (“Gaspard KANYARUKIGA, with intent to destroy in whole or in part, the Tutsi racial or ethical [sic] group, or knowing that other people intended to destroy, in whole or in part, the Tutsi racial or ethnic group, and knowing that his assistance would contribute to the crime of genocide…”). [4] Nahimana et al. Appeal Judgement, para. 347; Blaškić Appeal Judgement, para. 219. Download full document
Notion(s)	Filing	Case
Alibi \| Applicable law	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
92. […] the Appeals Chamber recalls the basic principles of the assessment of alibi evidence before considering the specific contentions raised under each ground. The Appeals Chamber recalls that an alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime.”[4] If the alibi is reasonably possibly true, it must be accepted.[5] 93. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[6] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[7] for example, by demonstrating that the alibi evidence is not credible. 97. In certain circumstances, failure to raise an alibi in a timely manner can impact a Trial Chamber’s findings,[8] as it may take such failure into account when weighing the credibility of the alibi.[9] Therefore, the Trial Chamber was entitled to take into account the Appellant’s late submission of the Notice of Alibi when assessing the credibility of the alibi.[10] show footnotes [1] Zigiranyirazo Appeal Judgement, para. 17, citing Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Kayishema and Ruzindana Appeal Judgement, para. 106; Čelebići Appeal Judgement, para. 581. [2] Zigiranyirazo Appeal Judgement, para. 17, citing Nahimana et al. Appeal Judgement, para. 414; Ndindabahizi Appeal Judgement, para. 66; Kajelijeli Appeal Judgement, paras. 41, 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 106; Čelebići Appeal Judgement, para. 581. [3] Zigiranyirazo Appeal Judgement, para. 17, citing Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Karera Appeal Judgement, para. 331; Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, para. 107. [4] Zigiranyirazo Appeal Judgement, para. 17, quoting Musema Appeal Judgement, para. 202. [5] Zigiranyirazo Appeal Judgement, para. 17, citing Nahimana et al. Appeal Judgement, para. 414; Kamuhanda Appeal Judgement, para. 38; Kajelijeli Appeal Judgement, para. 41; Musema Appeal Judgement, paras. 205, 206. [6] Zigiranyirazo Appeal Judgement, para. 18, citing Karera Appeal Judgement, para. 330; Nahimana et al. Appeal Judgement, para. 414; Simba Appeal Judgement, para. 184; Kajelijeli Appeal Judgement, para. 42; Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, paras. 205, 206; Kayishema and Ruzindana Appeal Judgement, para. 107; Limaj et al. Appeal Judgement, para. 64. [7] Zigiranyirazo Appeal Judgement, para. 18, citing Kajelijeli Appeal Judgement, para. 41; Kayishema and Ruzindana Appeal Judgement, para. 106. See also Limaj et al. Appeal Judgement, paras. 64, 65; Čelebići Appeal Judgement, para. 581. [8] Rutaganda Appeal Judgement, fn. 392. [9] Kajelijeli Trial Judgement, para. 164; Kamuhanda Trial Judgement, para. 82; Musema Trial Judgement, para. 107; Niyitegeka Trial Judgement, para. 50; Kayishema and Ruzindana Trial Judgement, para. 237; Semanza Trial Judgement, para. 82. [10] Trial Judgement, para. 20. Download full document
Notion(s)	Filing	Case
Genocide \| Genocidal plan	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
363. The Appeals Chamber recalls that proof of the existence of a “high level genocidal plan” is not required in order to convict an accused of genocide[1] or for the mode of liability of instigation to commit genocide.[2] Accordingly, the Appeals Chamber finds no error on the part of the Trial Chamber in considering as unnecessary proof of a nexus between the Appellant’s crimes and a national campaign. show footnotes [1] See Semanza Appeal Judgement, para. 260. See also Simba Appeal Judgement, para. 260. [2] See Nahimana et al. Appeal Judgement, para. 480. Download full document
Notion(s)	Filing	Case
Trial management issues \| Trial date	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
The Trial Chamber commenced the trial while there was still a pending preliminary motion objecting to certain defects in the Indictment. The Appeals Chamber found 31. […] that in deciding to start the trial prior to ruling on the pending Motion of 29 August 2006, the Trial Chamber violated the express provision of Rule 72(A) of the Rules that preliminary motions “shall be disposed of […] before the commencement of the opening statements”.[1] Because the language of Rule 72(A) of the Rules is mandatory, the Trial Chamber committed a discernible error of law when it allowed the trial to commence without disposing of the Appellant’s motion. show footnotes [1] T. [Trial Transcript page from hearings in The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T] 25 September 2006 pp. 2, 3 (Status Conference). Download full document
Notion(s)	Filing	Case
Indictment \| Mens rea \| Pleading \| Genocide	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
136. […] The Appeals Chamber recalls that, with respect to mens rea, an indictment may plead either (1) the state of mind of the accused, in which case the facts by which that state of mind is to be established are matters of evidence, and need not be pleaded; or (2) the evidentiary facts from which the state of mind is to be inferred.[1] 137. In the instant case, the Indictment pleaded that the Appellant had “the intent to destroy, in whole or in part, an ethnic or racial group as such”,[2] thus providing sufficient notice to the Appellant of the allegation that he possessed the specific intent to commit genocide. The Indictment therefore did not have to plead that the Appellant participated in recruiting young Hutu men for militia training as Impuzamugambi. show footnotes [1] Nahimana et al. Appeal Judgement, para. 347. See also Blaškić Appeal Judgement, para. 219. [2] Indictment [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T, Second Revised Amended Indictment (In conformity with Trial Chamber III Decision dated 7 December 2006), filed 11 December 2006], para. 19. Download full document
Notion(s)	Filing	Case
Reasoned opinion \| Right to a reasoned opinion	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
165. The Appeals Chamber recalls that a Trial Chamber is required to provide a reasoned opinion under Article 22(2) of the Statute and Rule 88(C) of the Rules.[1] A reasoned opinion ensures that the accused can exercise his right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 24 of the Statute.[2] However, this requirement relates to the Trial Judgment as a whole, not to each submission made at trial.[3] In addition, a Trial Chamber “is not required to set out in detail why it accepted or rejected a particular testimony.”[4] 166. Furthermore, although certain evidence may not have been referred to by a Trial Chamber, in the particular circumstances of a given case it may nevertheless be reasonable to assume that the Trial Chamber took it into account.[5] A Trial Chamber need not refer to every witness testimony or every piece of evidence provided there is no indication that the Trial Chamber completely disregarded any particular piece of evidence; such disregard is shown where evidence that is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.[6] show footnotes [1] Muvunyi Appeal Judgement, para. 144, citing Simba Appeal Judgement, para. 152; Kamuhanda Appeal Judgement, para. 32; Kajelijeli Appeal Judgement, para. 59; Semanza Appeal Judgement, paras. 130, 149. [2] Karera Appeal Judgement, para. 20. See also Musema Appeal Judgement, para. 18 (noting that the Trial Chamber is not required to articulate every step of its reasoning for each particular finding it makes). [3] Karera Appeal Judgement, para. 20. See also Limaj et al. Appeal Judgement, para. 81; Kvočka et al. Appeal Judgement, para. 23. [4] Musema Appeal Judgement, para. 20. [5] Musema Appeal Judgement, para. 19. [6] See also Limaj et al. Appeal Judgement, para. 86, citing Kvočka et al. Appeal Judgement, para. 23. Download full document		ICTR Statute Article 22 ICTY Statute Article 23 ICTR Rule Rule 88(C) ICTY Rule Rule 98ter(C)
Notion(s)	Filing	Case
Instigating \| Mens rea	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
61. The Appeals Chamber recalls that the mens rea for instigating is established where the perpetrator acts with either direct intent to prompt another to commit a crime, or with awareness of the substantial likelihood that a crime will be committed in execution of that instigation.[1] Furthermore, where the crime alleged is genocide, it must also be proven that the perpetrator acted with the specific intent to destroy a protected group as such in whole or in part.[2] show footnotes [1] Kordić and Čerkez Appeal Judgement, paras. 29, 32. [2] Seromba Appeal Judgement, para. 175. Download full document
Notion(s)	Filing	Case
Witnesses \| Accomplice testimony	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
42. The Appeals Chamber has held that nothing in the Statute or the Rules prohibits a Trial Chamber from relying upon the testimony of accomplice witnesses.[1] However, such evidence is to be treated with caution, “the main question being to assess whether the witness concerned might have motives or incentives to implicate the accused”.[2] Nevertheless, a Trial Chamber retains discretion to rely on uncorroborated, but otherwise credible, witness testimony[3] because it is best placed to evaluate the probative value of evidence.[4] Acceptance of and reliance upon uncorroborated evidence does not in itself constitute an error of law.[5] The Appeals Chamber notes that the Appeals Chamber of the Special Court for Sierra Leone has extended this proposition to accomplice witnesses, stating that a Trial Chamber “may convict on the basis of the evidence of a single witness, even an accomplice, provided such evidence is viewed with caution.”[6] 43. Similarly, in a number of domestic jurisdictions, judges and jurors can rely on the uncorroborated evidence of an accomplice witness provided they assess such evidence with caution. For example, the Indian judiciary has recognized that corroboration is not lawfully required but that it is wise to assess accomplice evidence with caution.[7] Moreover, corroboration requirements for accomplices have been abolished in Canada,[8] the United Kingdom,[9] and Australia.[10] The Appeals Chamber further recalls the discussion in Tadić of corroboration requirements in civil law countries, which concluded that “there is no ground for concluding that this requirement of corroboration is any part of customary international law and should be required by [the ICTY]].”[11] 44. The Nahimana et al. and Muvunyi Appeal Judgements upon which the Appellant relies do not represent a different proposition. When the Appeals Chamber stated in Muvunyi that it was necessary for the Trial Chamber to consider whether the testimony of a particular accomplice witness was corroborated, it did so because the Trial Chamber had already found that the witness had a general motive to enhance Muvunyi’s role in the crimes and to diminish his own.[12] Contrary to the Appellant’s argument, this does not evidence a categorical rule requiring Trial Chambers to search for corroboration when evaluating the testimony of an accomplice witness. Rather, the Appeals Chamber simply found that corroboration was necessary in those circumstances because the accomplice witness had a motive to enhance the accused’s role in the crimes. 45. In the passage from the Nahimana et al. Appeal Judgement upon which the Appellant relies, the Appeals Chamber considered whether the Trial Chamber erred when it relied on the testimony of an accomplice witness only to the extent that it was corroborated.[13] The Nahimana Trial Chamber had concluded that it could only rely on the witness’s evidence to the extent that it was corroborated because, in addition to being an accomplice, the witness gave testimony that was confusing and inconsistent.[14] The Nahimana Appeal Judgement found that there was no error in this approach.[15] This reflects the fact that Trial Chambers are endowed with the discretion to require corroboration, but does not mean that corroboration is required when evaluating the testimony of all accomplice witnesses. 46. In support of his proposition, the Appellant also points to a passage from the Krajišnik Appeal Judgement.[16] There, the ICTY Appeals Chamber stated that a Trial Chamber should briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused to show its cautious assessment of such evidence.[17] This passage does not mean that corroboration is required. It simply stresses that Trial Chambers cannot merely state that they exercised caution when assessing the evidence of an accomplice witness, but must establish that they in fact did so. 48. In light of the above, the Appeals Chamber considers that the proposition that a Trial Chamber retains the discretion to rely on uncorroborated, but otherwise credible, witness testimony applies equally to the evidence of accomplice witnesses provided that the trier of fact applies the appropriate caution in assessing such evidence. show footnotes [1] Niyitegeka Appeal Judgement, para. 98. [2] Nahimana et al. Appeal Judgement, para. 439, citing Ntagerura et al. Appeal Judgement, paras. 203-206. See also Niyitegeka Appeal Judgement, para. 98 (“However, considering that accomplice witnesses may have motives or incentives to implicate the accused person before the Tribunal, 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.”). The Appeals Chamber notes that the Appeals Chamber of the Special Court for Sierra Leone similarly stated in Brima et al. that “in assessing the reliability of an accomplice, the main consideration for the Trial Chamber should be whether or not the accomplice has an ulterior motive to testify as he did.” Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Case SCSL-2004-16-A, Appeal Judgement, 3 March 2008 (“Brima et al. Appeal Judgement”), para. 128. In some instances a situation may arise where Rule 95 of the Rules is applicable. See Karera Appeal Judgement, para. 234 and fn. 498, referring to Nahimana et al. Appeal Judgement, para. 545. [3] Muvunyi Appeal Judgement, para. 128. See Karera Appeal Judgement, para. 46 (“a Trial Chamber has the discretion to decide, in the circumstances of each case, whether corroboration of evidence is necessary and to rely on uncorroborated, but otherwise credible, witness testimony.”). [4] See Rutaganda Appeal Judgment, para. 29 (“It is possible for one Trial Chamber to prefer that a witness statement be corroborated, but neither the jurisprudence of the International Tribunal nor of the ICTY makes this an obligation.”); Musema Appeal Judgment, paras. 36-38; Kayishema and Ruzindana Appeal Judgement, paras. 154, 187, 320, 322; Čelebići Appeal Judgment, para. 506; Aleksovski Appeal Judgment, paras. 62, 63; Tadić Appeal Judgment, para. 65; Kupreškić et al. Appeal Judgement, para. 33. [5] Niyitegeka Appeal Judgement, para. 92. [6] Brima et al. Appeal Judgement, para. 129. [7] See Dagdu & Others Etc. v. State of Maharashtra (1977) 3 S.C.R. 636, 643 (India) (explaining that section 133 of the Evidence Act permits a conviction to be based on uncorroborated accomplice testimony but given that such evidence may be “hazardous,” a judge should dispense with corroboration “only if the peculiar circumstances of a case make it safe to” do so); Rameshwar v. State of Rajasthan (1952) S.C.R. 377, 385 (India) (clarifying that in cases tried by a judge, the judge should indicate that he considered the rule of caution and “explain why he considered it safe to convict without corroboration in the particular case”). [8] R. v. Vetrovec, [1982]] 1 S.C.R. 811, 830 (Canada) (holding “that there is no special category for accomplices” but cautioning that a jury warning may sometimes be appropriate). [9] See Criminal Justice and Public Order Act 1994, s. 32 (UntitedKingdom) (abolishing any requirement for a corroboration warning). [10] Evidence Act 1995 (Cth), s. 164(1). See, e.g., Conway v. The Queen (2002) 209 C.L.R. 203, 223-224 (Australia) (applying section 164(1) of the Evidence Act 1995, in the context of a case involving testimony from accomplice witnesses, and affirming that the corroboration requirement has been abolished in such circumstances). [11] Tadić Trial Judgement, para. 539. [12] Muvunyi Appeal Judgement, paras. 129-131. [13] Nahimana et al. Appeal Judgement, para. 439. [14] Nahimana et al. Trial Judgement, para. 824. [15] Nahimana et al. Appeal Judgement, para. 439. [16] Brief in Reply [Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Appellant’s Brief in Reply, filed confidentially in French on 15 July 2009 (Mémoire en réplique de l’appelant), re-filed publically on 31 July 2009], paras. 3, 6. [17] Krajišnik Appeal Judgement, para. 146. 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Notion(s)	Filing	Case
Witnesses \| Assessment of testimony	Appeal Judgement - 18.03.2010	NCHAMIHIGO Siméon (ICTR-01-63-A)
47. The Appeals Chamber recalls that a Trial Chamber has full discretion to assess the appropriate weight and credibility to be accorded to the testimony of a witness.[1] In so doing, a Trial Chamber has to consider relevant factors on a case-by-case basis, including the witness’s demeanour in court; his role in the events in question; the plausibility and clarity of his testimony; whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence; any prior examples of false testimony; any motivation to lie; and the witness’s responses during cross-examination.[2] Some factors are particularly relevant for the assessment of accomplice witnesses, including: the extent to which discrepancies in the testimony were explained;[3] whether the accomplice witness has made a plea agreement with the Prosecution; whether he has already been tried and, if applicable, sentenced for his own crimes or is still awaiting the completion of his trial;[4] and whether the witness may have any other reason for holding a grudge against the accused.[5] Corroboration is also one of many potential factors relevant to the Trial Chamber’s assessment of a witness’s credibility.[6] The application of these factors, and the positive or negative impact they may have on the witness’s credibility, varies according to the specific circumstances of each case. 201. The Appeals Chamber recalls that it is not a legal error per se to accept and rely on evidence that deviates from a prior statement or other evidence adduced at trial.[7] However, a Trial Chamber is bound to take into account any explanations offered in respect of inconsistencies when weighing the probative value of the evidence.[8] In this case, the Trial Chamber explicitly considered the Appellant’s contention at trial that Witness LAG “made some prior inconsistent statements.”[9] The Appellant has not articulated either how the Trial Chamber erred in evaluating the prior statements or how the particular inconsistencies raised here could potentially result in the Trial Judgement being reversed or revised. show footnotes [1] Nahimana et al. Appeal Judgement, para. 194. [2] See Nahimana et al. Appeal Judgement, para. 194. [3] See Simba Appeal Judgement, para. 129; Kordić and Čerkez Appeal Judgement, para. 266. [4] See Blagojević and Jokić Trial Judgement, para. 24. [5] See Kajelijeli Trial Judgement, para. 151. [6] Simba Appeal Judgement, para. 24, quoting Ntakirutimana Appeal Judgement, para. 132. [7] Muhimana Appeal Judgement, para. 135; Niyitegeka Appeal Judgement, para. 96. [8] Muhimana Appeal Judgement, para. 135; Niyitegeka Appeal Judgement, para. 96, citing Kupreškić et al. Appeal Judgement, para. 31. [9] Trial Judgement [The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T, Judgement and Sentence, 12 November 2008], para. 92. The Trial Chamber merely refers, as an example, to the issue of Witness LAG’s membership of the Liberal Party. Download full document
Notion(s)	Filing	Case
Counsel \| Right to competent counsel	Appeal Judgement - 18.03.2010	BIKINDI Simon (ICTR-01-72-A)
21. Pursuant to Article 20(4)(d) of the Statute, an accused has the right to be represented by competent counsel. Counsel is “considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.” The Appeals Chamber recalls that Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel. The presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of counsel to succeed, an appellant must rebut the presumption of competence by demonstrating gross professional misconduct or negligence on the part of the counsel which occasioned a miscarriage of justice. 22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case. Thus, where an accused claims that his right to competent assistance from counsel is violated, the onus is on the accused to bring this violation to the attention of the Trial Chamber. If the accused does not do so at trial, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act. He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice. show footnotes [1] See supra [Trial Judgement, Annex A – Procedural History] para. 22. [2] See supra para. 22. [3] Krajišnik Appeal Judgement, para. 42. Download full document		ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s)	Filing	Case
Counsel \| Right to competent counsel \| Alleging incompetence of trial counsel on appeal	Appeal Judgement - 18.03.2010	BIKINDI Simon (ICTR-01-72-A)
29. […] the Appeals Chamber finds that the Appellant should have raised the issue of the Co-Counsel’s competence at trial. However, as noted above, the Appellant is not precluded from raising the issue for the first time on appeal. As such, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to intervene and he must further demonstrate that the Trial Chamber’s failure to act occasioned a miscarriage of justice. 44. […] The Appeals Chamber considers that the manner in which counsel structures a cross-examination is a matter of defence strategy which rests squarely within the discretion of the defence. This is consistent with the general principle that it is is not for the Trial Chamber to dictate to a party how to conduct its case.[3] Furthermore, the Appeals Chamber cannot analyse defence strategy in a vacuum after the completion of trial, nor would it be appropriate for the Appeals Chamber to do so. It follows that it is not sufficient for the Appellant merely to assert after the completion of trial that his Co-Counsel was incompetent because he did not adopt a different approach during the cross-examination of a given witness. At a minimum, the Appellant should demonstrate how a different approach would have had a positive impact on the verdict. show footnotes [1] See supra [Trial Judgement, Annex A – Procedural History] para. 22. [2] See supra para. 22. [3] Krajišnik Appeal Judgement, para. 42. Download full document
Notion(s)	Filing	Case
Direct and public incitement to commit genocide \| Definition \| Elements	Appeal Judgement - 18.03.2010	BIKINDI Simon (ICTR-01-72-A)
145. The Appellant contends that the crime of direct and public incitement to commit genocide, whilst a “serious offence”, cannot be considered as a crime of similar gravity to genocide, since, unlike the crime of genocide, it is an inchoate offence.[1] The Appeals Chamber disagrees. There is no hierarchy of crimes within the jurisdiction of the Tribunal.[2] […] 146. […] [T]he analysis in the Nahimana et al. Appeal Judgement in fact supports the proposition that the offence of direct and public incitement to commit genocide is, in and of itself, a serious offence warranting serious punishment, notwithstanding that no physical act of genocide may have been committed. It does not indicate any hierarchy between the two offences. […] 148. The Appeals Chamber reiterates that whilst a Trial Chamber is obliged to take into account the general sentencing practice in Rwanda, it is not obliged to follow it.[3] The Appeals Chamber notes that although it would appear that Rwandan law does not make direct and public incitement to commit genocide a separate offence, it nevertheless criminalizes genocide[4] and provides that the act of, inter alia, “incitement, by way of speech, image or writing, to commits [sic] such a crime, even where not followed by an execution” shall be punishable by penalties provided for under that law.[5] show footnotes [1] Bikindi’s Appellant’s Brief, para. 109, citing Nahimana et al. Appeal Judgement, para. 678. See also AT. [Transcript page from Appeal hearings held on 30 September 2009 in Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A] 30 September 2009 pp. 72, 73. [2] Mrkšić and [ljivančanin Appeal Judgement, para. 375, quoting D. Nikolić Sentencing Appeal Judgement, para. 46; Stakić Appeal Judgement, para. 375. See also Nahimana et al. Appeal Judgement, para. 1060. [3] See supra [Bikindi’s Appellant’s Brief] para. 141. [4] See, e.g., Organic Law No. 33bis/2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes, of 6 September 2003 (“Organic Law No. 33bis/2003”), Article 2. [5] See Organic Law No. 33bis/2003, Article 17(3). The Appeals Chamber observes that whilst it would have been preferable for the Trial Chamber to also refer to Organic Law No. 33bis/2003 in its discussion on the Rwandan law relating to the offence of genocide, its failure to do so does not impact the validity of the Trial Chamber’s overall assessment of Rwanda’s sentencing practice. Download full document		ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c)