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]

17.       In considering the referral of a case, Article 6(2) of the Statute requires the Mechanism to determine whether the case should be referred to the authorities of a State: (i) where the crime was committed; (ii) where the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should immediately refer the case “to the appropriate court for trial within that State”. The Statute further mandates the monitoring of cases referred to “national courts” and provides for revocation of a referred case “before the accused is found guilty or acquitted by a national court” when it is clear that the conditions for referral of the case are no longer met and it is in the interests of justice.[1] Notably, the Appeals Chamber has held that if a competent domestic court determines that it does not have jurisdiction to prosecute an accused in relation to a referred contempt case, a formal request for deferral may be made in the interests of justice.[2] Accordingly, the Statute explicitly provides that a referred case shall be tried in criminal proceedings before an appropriate national court.

18.       The Appeals Chamber considers the distinction drawn in the Impugned Decision between the referral of a contempt matter and the referral of a case concerning allegations of serious violations of international humanitarian law[3] to be unsupported by the language of the Statute and binding appellate jurisprudence. While the Referral Judge correctly observed that Article 6(2) of the Statute mirrors the language of Rule 11bis of the ICTR and ICTY Rules of Procedure and Evidence regulating the referral of core crimes cases,[4] the inference that the requirements set out therein apply solely to the referral of such cases fails to appreciate the full ambit of Article 6 of the Statute. Article 6(1) of the Statute explicitly provides for the Mechanism’s power to refer to national jurisdictions both cases concerning serious violations of international humanitarian law under Article 1(3) of the Statute, as well as cases concerning contempt of court and false testimony under Article 1(4) of the Statute. There is nothing in the text of Article 6(2) of the Statute implicating a differentiation in standards, or the application thereof, between referral of cases involving persons subject to Article 1(3) of the Statute, and those involving persons subject to Article 1(4) of the Statute. Accordingly, the ordinary meaning to be given to the terms of Article 6(2) of the Statute, in their context, is that the requirement of a criminal trial before an appropriate national court applies equally to referral of allegations of contempt as it does to referral of allegations of serious violations of international humanitarian law.[5]

19.       In relation to the Statute’s object and purpose, as the Referral Judge correctly observed, the Statute indicates a strong preference for referral of a contempt case if all relevant conditions are met.[6] The Appeals Chamber has previously interpreted this to mean that “the Mechanism may only exercise jurisdiction [over a contempt case] after it has considered whether the case can be transferred to a national jurisdiction for trial” and that “where a State expresses a willingness and commitment to try a case over which it has jurisdiction […] it should be given the opportunity to do so, provided other relevant factors are satisfied”.[7] It follows that, with the Statute’s strong preference for referral in mind, the requirement of a criminal trial before an appropriate national court with jurisdiction over the case is not limited solely to the referral of cases concerning serious violations of international humanitarian law, but equally applies to the referral of contempt cases. This is also consistent with prior jurisprudence where the requirements set out in Article 6(2) of the Statute have been applied in the context of the referral of contempt cases, involving an examination of whether an adequate legal framework exists in the receiving State criminalizing the accused’s conduct and providing for an adequate penalty structure.[8] The application of the requirements set out in Article 6(2) of the Statute in the context of the referral of contempt cases has also been confirmed by the Appeals Chamber.[9]

20.       Given the above, 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 and in light of its object and purpose, provides that cases, including contempt cases, may only be referred to the authorities of a State for criminal trial before an appropriate national court. The Statute does not vest discretion to refer a contempt case to a State that has no criminal jurisdiction over the alleged conduct.