292. The Appeals Chamber observes that the Trial Chamber did not make express findings on the mens rea and actus reus related to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute.[1] The Trial Chamber’s reasoning fails to specify when, where, how, and to whom Nzuwonemeye and Sagahutu issued instructions to commit an offence upon which their ordering liability for the killing of the Prime Minister could be founded.[2] Similarly, the Trial Chamber failed to identify in the Trial Judgement what conduct on the part of Nzuwonemeye and Sagahutu had a “direct and substantial effect” on the killing of the Prime Minister.[3]

293. The Appeals Chamber recalls that, as part of fair trial guarantees, a trial chamber is required to provide a reasoned opinion under Article 22(2) of the Statute and Rule 88(C) of the Rules.[4] Consequently, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis on which it reached the decision to convict or acquit an accused.[5] In particular, a trial chamber is required to provide clear, reasoned findings of fact as to each element of the crime charged.[6] The Appeals Chamber finds that the Trial Chamber’s failure to make mens rea and actus reus findings in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering amounts to a failure to provide a reasoned opinion. The Trial Chamber’s failure to provide a reasoned opinion amounts to an error of law which allows the Appeals Chamber to consider the relevant evidence and factual findings in order to determine whether a reasonable trier of fact could have found beyond reasonable doubt that the requisite actus reus and mens rea were established in relation to Nzuwonemeye’s and Sagahutu’s liability for ordering under Article 6(1) of the Statute.[7]

Kordić argued that the Trial Chamber erred in failing to make explicit findings and to give a “reasoned explanation” with respect to each of the elements of the crimes charged. The Appeals Chamber found that:

382. […] the Trial Chamber correctly stated that it “will only deal with such evidence as is necessary for the purposes of the Judgement”,[1] meaning that not each and every piece of evidence has to be discussed.

383. However, this approach does not relieve the Trial Chamber from its obligation pursuant to Article 23(2), sentence 2, of the Statute, translated into Rule 98ter(C), sentence 2, of the Rules to give a reasoned opinion, meaning that all the constituent elements of a crime have to be discussed and supporting evidence has to assessed by the Trial Chamber. Where, as in this case, “a vast amount of detail has been presented”, in fact “too much”[2] – an opinion with which the Appeals Chamber agrees – the obligation to give a reasoned opinion continues to apply.  Apparently, this presentation of too much detail has hindered the Trial Chamber from focusing on the evidence underlying the crimes charged. 

384. The Appeals Chamber notes that the Trial Chamber did not in most cases make specific explicit factual findings with regard to each element of the crimes, but expressly concluded that the crimes were established. The Appeals Chamber considers that by finding that the crimes were established, the Trial Chamber implicitly found all the relevant factual findings required to cover the elements of the crimes. 

385. The Trial Judgement must enable the Appeals Chamber to discharge its task pursuant to Article 25 of the Statute based on a sufficient determination as to what evidence has been accepted as proof of all elements of the crimes charged, and, if discussed, its assessment of, inter alia, the credibility and demeanour of a witness. Relying in part on a catch-all phrase[3] cannot substitute the Trial Chamber’s obligation to give “a reasoned opinion in writing” as envisaged in the afore-mentioned Article 23(2), sentence 2, of the Statute.[4]