58. [T]he Appeals Chamber recalls that, in principle, trial chambers enjoy considerable discretion in relation to the management of proceedings before them.[1] Such discretion is exercised in a plethora of circumstances, for instance, in relation to the joinder of cases, the scheduling of trials, the admission and evaluation of evidence, in deciding points of practice and procedure, including in assignment of counsel, in determining whether an accused should be granted provisional release, and in imposing a sentence.[2] The unprecedented nature of a procedure, which is neither expressly allowed for nor specifically prohibited in the Statute or the Rules, does not per se indicate that such procedure falls outside a trial chamber’s discretionary power.[3]

59. In the present case, relying on its discretion to manage the proceedings before it, the Trial Chamber decided to adopt “an alternative finding procedure that resembles a trial as closely as possible”.[4] The Trial Chamber explained that, in the course of this procedure: (i) Kabuga’s attendance would be unnecessary due to his lack of fitness to participate effectively in the trial coupled with the fact that the procedure will not result in a conviction;[5] and (ii) the Prosecution would retain the burden to prove beyond reasonable doubt both the actus reus and mens rea elements of each charge against Kabuga.[6] The Appeals Chamber considers that, although seemingly procedural in nature, the essential elements of the “alternative finding procedure”, as defined by the Trial Chamber, impact Kabuga’s substantive rights “in the sense of there being a legitimate expectation to be tried in a certain way in order to achieve the fundamental objective of a fair trial”.[7] The Appeals Chamber therefore considers that whether the Trial Chamber is vested with discretion to conduct such an “alternative finding procedure” in lieu of a trial is ultimately a question of statutory interpretation.[8]

60. The Appeals Chamber recalls that the Statute is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in light of its object and purpose.[9] Turning first to the terms of the Statute […].

61. The Appeals Chamber considers that a proper construction of the Statute, in accordance with the ordinary meaning to be given to the terms in their context, provides for the conduct of trials, without the possibility of conducting procedures that merely resemble trials in lieu of such trials.[10] This interpretation is also consistent with the object and purpose of the Statute as envisaged in United Nations Security Council Resolution 1966, in which the United Nations Security Council reaffirmed the need for the establishment of the Mechanism to carry out a number of essential functions of the ICTR, including “the trial of fugitives who are among the most senior leaders suspected of being most responsible for crimes”.[11]

62. The Appeals Chamber further recalls that the Statute and the Rules of the Mechanism reflect normative continuity with the statutes and rules of procedure and evidence of the ICTR and the ICTY.[12] In establishing the ICTR and adopting its statute, the United Nations Security Council appears to have intended to give the ICTR jurisdiction to prosecute persons responsible for serious violation of international humanitarian law through the conduct of trials.[13] […]

63. The Appeals Chamber echoes the Trial Chamber’s emphasis on the purpose for which the ICTR was established, which includes contributing to the process of national reconciliation in Rwanda and to the restoration and maintenance of peace.[14] Indeed, the United Nations Security Council unequivocally expressed its conviction in this regard when adopting the Statute of the ICTR (“ICTR Statute”), which is also reflected in the statements of various delegates at the meeting, who supported the establishment of the ad hoc tribunal as an instrument of national reconciliation.[15] Notwithstanding, a holistic reading of the relevant United Nations Security Council resolutions concerning the establishment of the ICTR and the Mechanism reflects that the framers intended to effect these goals through combating impunity by way of creating tribunals that would investigate, prosecute, and conduct proceedings, for the “sole purpose” of holding individuals criminally accountable for serious violations of international humanitarian law.[16] It is pertinent to recall in this regard that the fundamental mandate of the Mechanism to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law.[17]

68. […] [T]he Appeals Chamber finds that neither the Statute nor the jurisprudence of the Mechanism and its predecessor tribunals allow for the conduct of an “alternative finding procedure”, as defined by the Trial Chamber, in lieu of a trial. […] The Appeals Chamber observes that treaty provisions and state legislative practice, while of significance, are not necessarily determinative of the scope of the Mechanism’s jurisdiction. It is the Statute, as the constitutive instrument of the Mechanism, that defines the scope and limits of its mandate and can only be amended or derogated by means of a United Nations Security Council resolution.[1]

69. The Appeals Chamber is further not persuaded by the Prosecution’s argument that the “alternative finding procedure” falls within the Mechanism’s inherent powers to issue such rulings as necessary to exercise its express jurisdiction.[2] As recalled above, the Statute, as the constitutive instrument of the Mechanism, defines the scope and limits of the Mechanism’s substantive jurisdiction as set out in Articles 1 to 7 of the ICTR Statute.[3] As with the statutes of its predecessor tribunals, the Appeals Chamber recognizes that the Statute of the Mechanism “is not and does not purport to be […] a meticulously detailed code providing explicitly for every possible scenario and every solution, thereto” and that it sets out in general terms the jurisdictional framework within which the Mechanism has been mandated to operate.[4] Included in this framework is the inherent jurisdiction to ensure that its exercise of judicial functions is safeguarded.[5] In this regard, it has been indeed recognized that judges are not limited strictly and narrowly to the text of the Rules in carrying out their mandateand have the inherent authority to render orders that are reasonably related to the task before them and that derives automatically from the exercise of the judicial function.[6]

70. The Appeals Chamber notes that, in support of its submission, the Prosecution points to the authority of the Mechanism’s predecessor tribunals in adjudicating joint criminal enterprise liability and allegations of contempt, despite the fact that the two notions were not expressly prescribed in their respective statutes and/or rules of procedure and evidence.[7] The Appeals Chamber recalls, however, that the authority to exercise jurisdiction over joint criminal enterprise liability falls within the ICTR’s substantive jurisdiction, prescribed under Article 6(1) of the ICTR Statute, to hold individuals criminally responsible for “committing” crimes referred to in Articles 2 to 4 of the ICTR Statute.[8] As for the authority to exercise jurisdiction over allegations of contempt, the Appeals Chamber recalls that the inherent jurisdiction of the ad hoc tribunals in this respect is derived from their judicial function to ensure that the exercise of jurisdiction, which was expressly given to them by their respective statutes, was not frustrated and that their basic judicial functions were safeguarded.[9]

71. As explained above, the Statute does not expressly give the Mechanism jurisdiction to conduct proceedings other than trial, appellate, and review proceedings.[10] In accordance with the principle ubi lex voluit dixit, had the drafters of the Statute intended to vest the Mechanism with the power to conduct proceedings similar to trials, they would have expressly provided for it. The Appeals Chamber considers that, in the case of an international criminal tribunal, this is not a power that can be regarded as inherent to its function.[11]

77.  The Appeals Chamber recalls that the ICTR was established as a measure contributing to the process of national reconciliation in Rwanda and to the restoration and maintenance of peace. Appeals Chamber jurisprudence also reflects that there is indeed strong public interest to conduct proceedings against persons accused of serious international crimes, including genocide and crimes against humanity. Notwithstanding, the Appeals Chamber is mindful that the essential interests of the international community to prosecute individuals charged with serious violations of international humanitarian law must be balanced with the fundamental rights of the accused. This balance must be achieved within the scope of the Mechanism’s mandate.

33. […] The Appeals Chamber recalls that there is no requirement of a cause-effect relationship between the conduct of the aider and abettor and the commission of the crime, and it is not required that such conduct serve as a condition precedent to the commission of the crime.[1] It is sufficient for the aider and abettor’s assistance or encouragement to have had a substantial effect on the realization of that crime, the establishment of which is a fact-based inquiry.[2] […] Stanišić argues that the limited number of men he was found to have deployed, as compared to the numerous JNA [Yugoslav People’s Army] personnel and other Serb forces involved in the takeover of Bosanski Šamac, undermines the reasonableness of the conclusion that the assistance he provided had a substantial effect on the crimes. However, the Appeals Chamber recalls that the “limited scope” of the practical assistance provided does not preclude a conclusion that it had a substantial effect on the perpetration of a crime.[3]

[See also paras. 93, 97]

35. […] Stanišić’s references to evidence in the record and the Trial Chamber’s discussion in the Trial Judgement as to the nature of the training provided do not demonstrate any error of law based on the absence of any finding that the crimes were planned during the training or that it was aimed at criminal conduct. There is no legal requirement, for example, that the training needed to involve criminal planning.[1] [See also para. 129]

[…]

96. […] [T]he 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 the location at which the actus reus takes place may be removed from the location of the principal crime.[2]

113. [A] party’s arguments that contend, inter alia, that a trial chamber’s findings are insufficient to support its mens rea conclusions for aiding and abetting are challenges of a factual nature and stand to be addressed as such.[1]

173. […] Nothing in the Statute or the Rules prohibits a trial chamber from relying on the evidence of accomplice witnesses.[1] However, such evidence is to be treated with appropriate caution, the main question being whether the witness concerned might have motives or incentives to implicate the accused.[2] Nevertheless, a trial chamber may rely on uncorroborated, but otherwise credible, accomplice witness testimony.[3]

[…]

216. […] The Appeals Chamber recalls the Trial Chamber’s discretion to decide whether to rely on uncorroborated evidence,[4] even that of accomplice witnesses who may have a motive to implicate the accused, provided that appropriate caution is exercised.[5]

268. […] The Appeals Chamber further considers that, as the Trial Chamber was explicitly ordered by the ICTY Appeals Chamber to “apply the correct law on aiding and abetting liability […], which does not require that the acts of the aider and abettor be specifically directed to assist the commission of a crime”,[1] the Trial Chamber was not at liberty to deviate from this order.[2]

280. […] Furthermore, the Appeals Chamber recalls that a proper construction of the Statute requires that the ratio decidendi of its decisions be binding on trial chambers.[3]

278.  […] When instructing the new trial chamber on how to apply the correct law concerning aiding and abetting liability, the ICTY Appeals Chamber stated that:

the principle of lex mitior, as alleged by Simatović, is not applicable to the present case. Whereas this principle applies to situations where there is a change in the concerned applicable law, as noted above, it has been established that specific direction has never been part of the elements of aiding and abetting liability under customary international law, which the [ICTY] has to apply.[1]

[See also paras. 261, 277]

[…]

280. With regard to Simatović’s […] argument that he was treated unequally to other accused in violation of Article 19(1) of the Statute, the Appeals Chamber recalls that this provision encompasses the requirement that there be no discrimination in the enforcement or application of the law.[2] However,[…], the ICTY Appeals Chamber has rejected the legal standard regarding aiding and abetting liability that was applied in the Perišić Appeal Judgement.[3] Furthermore, the Appeals Chamber recalls that a proper construction of the Statute requires that the ratio decidendi of its decisions be binding on trial chambers.[4] Accordingly, the Trial Chamber was not at liberty to include specific direction as an element of aiding and abetting in view of the principle of lex mitior as this would have been in violation of the ICTY Appeals Chamber’s rejection of this proposition in his case.[5]

281. In light of the foregoing, the Appeals Chamber finds that Simatović does not demonstrate that the Trial Chamber erred in declining to apply the principle of lex mitior […].

319. […] [T]he Appeals Chamber recalls that comparison between cases is of limited assistance in challenging a sentence.[1] Trial chambers are under no obligation to expressly compare the case of one accused to that of another,[2] and “similar cases do not provide a legally binding tariff of sentences” on others.[3]  [See also para. 371]

[…]

331. The Appeals Chamber recalls that a trial chamber is not bound by the sentencing conclusions of other trial chambers.[4] Comparison between cases is therefore of limited assistance in challenging a sentence,[5] given the broad discretion afforded to trial chambers in determining the appropriate sentence.[6] […].