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. 

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]

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.

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.

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]

99. […] The term “common knowledge” encompasses facts that are widely known and not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature.[1]

101. The Appeals Chamber considers that the Trial Chamber could have taken into account the fact that the request was made late in the proceedings in assessing, for example, whether the facts sought to be judicially noticed were relevant to the Appellant’s case. However, the Trial Chamber erred in rejecting the Defence Motion for Judicial Notice solely on the basis of its late filing. The Trial Chamber should have considered whether the facts at issue were facts of common knowledge and, if so, whether they were relevant to the Appellant’s case. While the Trial Chamber erred in dismissing the application on the grounds that it was untimely, the Appeals Chamber is not satisfied that the facts submitted by the Appellant were capable of being judicially noticed by the Trial Chamber. The information contained in these documents regarding the movements of the troops of Operation Turquoise would certainly not qualify as facts that are commonly accepted or universally known or beyond reasonable dispute. As a consequence, the Appeals Chamber finds that the Trial Chamber erred in rejecting the Defence Motion for Judicial Notice for lateness but considers that this error did not invalidate the decision.

165. […][W]hilst a Trial Chamber is required to take into account any mitigating circumstances in determining a sentence, it is the accused who bears the burden of establishing mitigating factors by a preponderance of the evidence.[1] It was the Appellant’s prerogative to address sentencing submissions during closing arguments and to identify any mitigating circumstances in the trial record.[2] Having failed to specifically refer, in his Final Trial Brief or Closing Arguments, to the Defence evidence adduced during trial that he assisted several Tutsis in a camp in Mugunga after the genocide as a mitigating circumstance, the Appellant cannot raise it for the first time on appeal.[3] The Trial Chamber was not under an obligation to seek out information that Counsel did not put before it at the appropriate time.[4] The Appellant’s arguments in this respect are dismissed.

158. The Appeals Chamber reiterates that in assessing the individual circumstances of the accused, the Trial Chamber shall consider aggravating and mitigating circumstances.[1] The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered in mitigation. Rather, what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.[2] The Trial Chamber is endowed with a considerable degree of discretion in making this determination,[3] as well as in deciding how much weight, if any, to be accorded to the mitigating circumstances identified.[4]

154. The Appeals Chamber considers that, pursuant to Article 23 of the Statute and Rule 101 of the Rules, the Trial Chamber was not obliged to take into account the sentencing practice of national jurisdictions other than Rwanda. […]