264. […] The Appeals Chamber has previously held that genocidal intent can be proven through inference from the facts and circumstances of a case.[1] Correspondingly, the Appeals Chamber has held that it is sufficient if the evidentiary facts from which the state of mind is to be inferred are pleaded.[2] […]

The Appeals Chamber addressed the issue of vagueness of an indictment following the principles laid out in the Kupreškić Appeal Judgement. The Appeals Chamber reaffirmed that the Prosecution should only plead the modes of responsibility on which it intends to rely, and that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment. Following ICTY and ICTR jurisprudence, the Appeals Chamber held that the mode of liability of joint criminal enterprise must be specifically pleaded in an indictment. The Appeals Chamber stressed that if the Prosecution is relying on the mode of liability of joint criminal enterprise, it is not sufficient for an indictment to charge an accused for “committing” the crimes in question under Article 7(1) of the Statute. It is not sufficient for the generic language of an indictment to encompass the possibility that joint criminal enterprise is being charged. See paragraphs 21 and 22.

21. The practice of both the International Tribunal and the ICTR requires that the Prosecution plead the specific mode or modes of liability for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from the practice of simply restating Article 7(1) of the Statute unless it intends to rely on all of the modes of liability contained therein, because of the ambiguity that this causes.[2] When the Prosecution is intending to rely on all modes of responsibility in Article 7(1), then the material facts relevant to each of those modes must be pleaded in the indictment. Otherwise, the indictment will be defective.[3]  The Appeals Chamber further reaffirms that the Prosecution should only plead the modes of responsibility on which it intends to rely,[4] and considers that the alleged mode(s) of liability of the accused in a crime pursuant to Article 7(1) of the Statute should be clearly laid out in the indictment.[5]

22. Similarly, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the said term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both.[6] It is not enough for the generic language of an indictment to “encompass” the possibility that joint criminal enterprise is being charged.[7] The Appeals Chamber reiterates that joint criminal enterprise must be specifically pleaded in an indictment.[8] Although joint criminal enterprise is a means of “committing”, it is insufficient for an indictment to merely make broad reference to Article 7(1) of the Statute; such reference does not provide sufficient notice to the Defence or to the Trial Chamber that the Prosecution is intending to rely on joint criminal enterprise responsibility.[9] Also, if the Prosecution relies on this specific mode of liability, it must plead the following material facts: the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants in the enterprise, and the nature of the accused’s participation in the enterprise.[10] In order for an accused charged with joint criminal enterprise to fully understand the acts he is allegedly responsible for, the indictment should also clearly indicate which form of joint criminal enterprise is being alleged.[11] The Appeals Chamber considers that failure to specifically plead joint criminal enterprise in the indictment in a case where the Prosecution intends to rely on this mode of liability will result in a defective indictment.[12]

The Appeals Chamber reiterated that a vague indictment not cured by timely, clear and consistent notice causes prejudice to the accused. See paragraph 24.

122. […] The Appeals Chamber has previously held that “objections based on lack of notice should be specific and timely”.[1] Furthermore, when an objection based on lack of notice is raised at trial, a trial chamber may consider whether it was so untimely as to shift the burden of proof to the Defence to demonstrate that the accused’s ability to defend himself has been materially impaired.[2] In the absence of any explanation for Mugenzi’s and Mugiraneza’s failure to make a contemporaneous objection, the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to consider the delay in bringing challenges to the Indictment and conclude that such challenges were untimely. Therefore, Mugenzi and Mugiraneza bear the burden of demonstrating that their ability to prepare a defence was materially impaired.

The Appeals Chamber recalled that vagueness in an indictment may be cured by appropriate notice found in a summary of witness’s anticipated testimony annexed to a Prosecution pre-trial brief. However, in the present case, the Appeals Chamber rejected such notice as insufficient where the relevant summary did not provide clear and consistent information to the Appellant:

223. In the Gacumbitsi Appeal Judgement, the Appeals Chamber held that a summary of an anticipated testimony in an annex to the Prosecution’s pre-trial brief could, in certain circumstances, cure a defect in an indictment.[1] In that case, the indictment alleged generally that “Gacumbitsi killed persons by his own hands”.[2] The Appeals Chamber found this allegation to be vague, in particular as it referred to the physical commission of murder of a particular person.[3] However, a summary of anticipated testimony contained in an annex to the pre-trial brief referred to a specific killing and connected it to the crime of genocide.[4] The Appeals Chamber also observed that the summary did not conflict with any other information that was provided to the accused and was provided in advance of trial.[5] The information in the annex to the pre-trial brief was thus found to be timely, clear, and consistent and to provide sufficient notice of the allegation of the specific murder mentioned in the summary.[6]

224. The circumstances presented in this instance, however, are different. The summary of Witness AW’s anticipated testimony does not simply add greater detail in a consistent manner with a more general allegation already pleaded in the Indictment. Rather, the summary modifies the time, location, and physical perpetrator, matters that were already specifically pleaded in the Indictment, albeit in a materially different manner. In such circumstances, the summary of Witness AW’s anticipated testimony in the annex of the Pre-Trial Brief and the disclosure of his witness statement do not provide clear and consistent information sufficient to put the Appellant on notice that he was being charged with physically committing the murder of Pascasie Mukaremera on Rugona Hill in mid-May 1994. The summary of Witness AW’s testimony does not supplement or provide greater detail, but materially alters key facets of this paragraph. This discrepancy should have been immediately apparent to the Prosecution as it prepared its Pre-Trial Brief and listed the anticipated testimony of Witness AW in support of a paragraph of the Indictment that materially conflicted with it, in particular given that the Prosecution had shortly prior to that added this allegation to the Indictment for the purpose of providing specificity to the Accused. (footnotes omitted).

36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charges.

37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient.

36. The Appeals Chamber recalls that charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused. In reaching its judgement, a Trial Chamber can only convict the accused of crimes that are charged in the indictment.[2] The Appeals Chamber has further held that criminal acts that were physically committed by the accused personally must be set forth specifically in the indictment, including, where feasible, “the identity of the victim, the time and place of the events and the means by which the acts were committed.” An indictment lacking sufficient precision in the pleading of material facts is defective; however, the defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charges.

37. The Trial Chamber found that Munyakazi committed the crimes at Shangi and Mibilizi parishes “[o]n the basis of his leadership position at the crime sites”, which showed that “[he] was as much an integral part of the killings as those he enabled”.[5] As Munyakazi submits, the Indictment does not specifically state that he was the leader of the attacks at Shangi and Mibilizi parishes. However, the more general allegations in paragraphs 13 and 14 of the Indictment that “Yussuf MUNYAKAZI, with the Bugarama interahamwe, attacked and killed” Tutsis at the two parishes must be read in light of paragraph 1 of the Indictment, which alleges his role as “a leader” with “de facto authority” over that militia group.[6] Therefore, the Appeals Chamber is satisfied that the Indictment provided Munyakazi with notice that he had a leadership role and exercised de facto authority over the Bugarama Interahamwe during the attacks at Shangi and Mibilizi parishes. Contrary to Munyakazi’s submission, the fact that the Prosecution’s theory of the scope and basis of his leadership of the Bugarama Interahamwe was broader than that ultimately proven at trial does not mean that the notice of Munyakazi’s role in the crimes was deficient.

123. A review of the trial record, including the evidence of Witness YAQ, reveals that Muvunyi did not object to the form of this paragraph before trial or during the witness’s testimony. Nonetheless, he challenged the form of paragraph 3.24 of the Indictment at the trial stage in his motion for judgement of acquittal, although his submissions did not take specific issue with the evidence of Witness YAQ.[1] In this respect, the Appeals Chamber has held:

[O]bjections based on lack of notice should be specific and timely. The Appeals Chamber agrees with the Prosecution that blanket objections that “the entire indictment is defective” are insufficiently specific. As to timeliness, the objection should be raised at the pre-trial stage (for instance in a motion challenging the indictment) or at the time the evidence of a new material fact is introduced. However, an objection raised later at trial will not automatically lead to a shift in the burden of proof: the Trial Chamber must consider relevant factors, such as whether the Defence provided a reasonable explanation for its failure to raise the objection earlier in the trial.[2]

The Trial Chamber did not consider Muvunyi’s objection to the form of paragraph 3.24 of the Indictment to be timely.[3] Muvunyi has not advanced any reason suggesting that this conclusion was erroneous. It therefore falls to him to demonstrate that the preparation of his defence was prejudiced by the omission from the Indictment of the approximate time and place of the Gikonko meeting.[4]

124. Muvunyi has failed to make such a demonstration. Indeed, the Appellant’s Brief does not address the question of prejudice suffered from the leading of evidence about the Gikonko meeting.[5] In these circumstances, the Appeals Chamber finds that Muvunyi has not discharged his burden to demonstrate prejudice. Consequently, this sub-ground of appeal is dismissed.

125. […] The Appeals Chamber recalls that a defect in the Indictment, not cured by timely, clear, and consistent notice, constitutes a prejudice to the accused.[1] The defect may only be deemed harmless through a demonstration that the accused’s ability to prepare his or her defence was not materially impaired.[2] When an appellant raises a defect in the indictment for the first time on appeal, the appellant bears the burden of showing that his or her ability to prepare his or her defence was materially impaired.[3] When, however, an accused has previously raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to prove on appeal that the ability of the accused to prepare his or her defence was not materially impaired. The Appeals Chamber therefore turns to consider this issue.

126. In the pre-trial stage, Renzaho challenged the Indictment on the basis of vagueness, a challenge that was dismissed by the Trial Chamber.[4] Although Renzaho did not object to Witnesses AWO’s and AWN’s evidence that he encouraged rapes upon the filing of the Prosecution Pre-Trial Brief or at the time of their testimony, the Appeals Chamber considers that Renzaho’s confusion regarding the import of this evidence, discussed below, reasonably explains his failure to object. Further, in his Closing Brief, Renzaho renewed his challenge to the Indictment on the basis that it failed to plead the material facts necessary to establish his superior responsibility.[5] Renzaho also contended that the charges alleging his responsibility for sexual violence were impermissibly vague, and noted that the evidence that he made encouraging statements about rapes was not included in the Indictment.[6] The Appeals Chamber therefore finds that Renzaho raised an adequate objection to the failure to properly plead his reason to know.[7] Consequently, the Prosecution has the burden of establishing that Renzaho’s defence was not materially impaired by the defect in the Indictment.[8]

127. The Appeals Chamber finds that the Prosecution has not met its burden. It notes that, when Witness AWN testified that it was Renzaho who encouraged rapes, rather than another individual, the Defence did not object to the introduction of the new material fact. At the Appeal Hearing, the Defence indicated that it failed to do so because it “did not make the link at that time”[9] and suffered prejudice from the introduction of this new material fact because it did not understand that this evidence was relevant to the charge under Article 6(3) of the Statute.[10] The strategy adopted at trial by the Defence and in particular the cross-examination of Witnesses AWO and AWN convinces the Appeals Chamber that Renzaho understood that he was to defend himself against knowledge of rapes through receipt of reports as pleaded in the Indictment.[11] He was therefore prejudiced by the Prosecution’s failure to cure the defect in the Indictment through adequate notice.

128. The Appeals Chamber also notes with concern that the relevant paragraphs of the Indictment are extremely broad, and fail to specify the dates and locations of the meetings at which Renzaho encouraged the rapes; the dates and locations of the rapes; and the names of the victims. The provision of these material facts only in post-indictment documents impacts upon the ability of the accused to know the case he or she has to meet and to prepare his or her defence,[12] and is particularly troubling when the Prosecution was in a position to include them in the Indictment.[13]

22. […] While confirming the principle that to avoid prejudice to an accused in the preparation of the defence case the Prosecution must plead the material facts in the indictment, it does not follow that a Trial Chamber must allow a Prosecution application to amend an indictment to expand the material facts alleged pre-trial if in all the circumstances prejudice would accrue to the accused by those amendments.  The fact that the expansion of counts charged may be derived from material already disclosed to the Accused also does not automatically nullify prejudice to the Accused.  It is to be assumed that an Accused will prepare his defence on the basis of material facts contained in the indictment, not on the basis of all the material disclosed to him that may support any number of additional charges, or expand the scope of existing charges.  In either circumstance, when a complaint is made on appeal about a failure to plead material facts, or objection is made to a Prosecution application to amend to add material facts or new charges, the issue is whether the accused has been or will be prejudiced.

38. While the Appeals Chamber has determined that the Trial Chamber erred in classifying some of the proposed amendments as new charges, this does not necessarily mean that the Trial Chamber erred in the decision that it reached to reject the proposed amendments.  As the Trial Chamber acknowledged in its decision, new charges do not prohibit a Chamber from granting the Prosecution leave to amend an indictment.  Conversely, the fact that an amendment to an indictment does not amount to a new charge does not automatically obligate the Trial Chamber to permit it.  Rule 50 (A), which governs the permissibility of amendments to indictments, does not distinguish between amendments that add new charges and those that merely add or clarify material facts.  Rather, whether to permit either kind of indictment is a multi-factor discretionary decision for the Trial Chamber.  In this case, the Trial Chamber’s decision did not turn principally on the fact that new charges were involved, but rather on the prejudice to the Accused that would result from permitting the amendments and on the Prosecution’s failure to request the amendments at a date consistent with due diligence.  Thus, the Appeals Chamber’s conclusion that the Trial Chamber incorrectly categorised some of the amendments as new charges does not require setting aside the Trial Chamber’s decision; instead, the Appeals Chamber must assess the issues of prejudice and prosecutorial diligence.

51. […] As the Appeals Chamber held in the Karemera case, “although Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason”.[1]  Under some circumstances, the Prosecution might justifiably wait to file an amendment while it continues its investigation so as to determine whether further evidence either strengthens its case or weakens it.  […] Where the Prosecution has delayed unnecessarily in bringing particular allegations, and this delay has caused prejudice to the defendant, it is within the Trial Chamber’s discretion to find that this delay constitutes sufficient ground to refuse an amendment to an indictment.[2]

301. An Indictment is aimed at providing the accused with “a description of the charges against him with sufficient particularity to enable him to mount his defence.”[1] Accordingly, the indictment must be sufficiently specific, meaning that it must reasonably inform the accused of the material charges, and their criminal characterisation. The materiality of an alleged fact depends, above all, on the nature of the alleged criminal conduct charged to the accused.[2] Before the ICTY, these principles derive from Articles 17(4), 20(2), 20(4)(a) and (b) of the Statute, and Rule 47(C) of the Rules.

302. Although, a priori, the Prosecution is required to prove the facts alleged in the Indictment, the Appeals Chamber holds the view that the Indictment cannot have the degree of specificity of the evidence underpinning it. The Appeals Chamber therefore considers that, in general, minor differences between the indictment and the evidence presented at trial are not such as to prevent the Trial Chamber from considering the indictment in the light of the evidence presented at trial. Moreover, the Appeals Chamber notes that in Kunarac, the ICTY Appeals Chamber held that “minor discrepancies between the dates in the Trial Judgement and those in the Indictment […] go to prove […] that the events charged in the Indictment did not occur.”[3]

303. Such doctrines must, however, be assessed in the light of paragraphs 20(2), (4)(a) and (b) of the Statute, and take into account the specific circumstances of each case. Indeed, the Appeals Chamber is of the opinion that the right of the accused to be informed of the nature of the charge against him and the right to have adequate time for the preparation of his defence imply that an accused must be able to identify the criminal acts and conduct alleged in the indictment in all circumstances. Before holding that an event charged is immaterial[4] or that there are minor discrepancies between the indictment and the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to mislead the accused as to the nature of the charges against him. Depending on the specific circumstances of each case, the question to be to determined is whether an accused was reasonably able to identify the crime and criminal conduct alleged in each of the paragraphs of the Indictment.[5]

[…]

306. It is the opinion of the Appeals Chamber that the alleged variance between the evidence presented at trial and the Indictment in relation to the date of the commission of the offence cannot lead to invalidation of the Trial Chamber’s findings unless the said date is actually an essential part of the Appellant’s alleged offence.[6]

[…]

401. […] [W]here the Appellant makes serious allegations regarding the integrity of the judicial process, […], he must, inter alia, demonstrate the prejudice caused by the divergences between the facts alleged in the Indictment and the evidence adduced at trial in accordance with the relevant jurisprudence […].[7]

322. Under Articles 17(4), 20(2), 20(4)(a) and 20(4)(b) of the Statute and Rule 47(C) of the Rules, the Prosecutor must state the material facts underpinning the charges in the indictment, but not the evidence by which such facts are to be proved.[1] The indictment is pleaded with sufficient particularity only if it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence.[2] An indictment which fails to duly set forth the specific material facts underpinning the charges against the accused is defective.[3] The Appeals Chamber emphasises that the issue as to whether a fact is material or not cannot be determined in the abstract: whether or not a fact is considered “material” depends on the nature of the Prosecution's case.[4]

325. Where the Appeals Chamber finds that the Trial Chamber tried the accused on the basis of a defective indictment, it must consider whether the accused has nevertheless been accorded a fair trial, in other words, whether the defect noted caused prejudice to the Defence.[1] In some cases, a defective indictment can indeed be “cured” and a conviction handed down if the Prosecutor provided the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him.[2] This information could, inter alia and depending on the circumstances, be supplied in the Prosecutor’s pre-trial brief or opening statement.[3] The Appeals Chamber would nonetheless emphasize that the possibility of curing defects in the indictment is not unlimited. A clear distinction has to be drawn between vagueness or ambiguity in the indictment and an indictment which omits certain charges altogether. While it is possible to remedy ambiguity or vagueness in an indictment by providing the defendant with timely, clear and consistent information detailing the factual basis underpinning the charges, omitted charges can be incorporated into the indictment only by formal amendment under Rule 50 of the Rules.[4]

326. The Appeals Chamber reaffirms that a vague or imprecise indictment which is not cured of its defects by providing the accused with timely, clear and consistent information constitutes a prejudice to the accused. The defect can be deemed harmless only if it is established that the accused's ability to prepare his defence was not materially impaired.[5] Where the failure to give sufficient notice of the legal and factual reasons for the charges against him violated the right to a fair trial, no conviction can result.[6]

460. […] However, as the Appeals Chamber has emphasized, when the Prosecutor relies on material facts which are not stated in the Indictment and, which on their own, could constitute distinct charges, which is the case here, the Prosecutor must seek leave to amend the Indictment in order to add the new material facts:

the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[7] […]

347. With respect to mens rea, the Appeals Chamber recalls that the indictment may either (i) plead the state of mind of the accused, in which case the facts by which that matter is to be established are matters of evidence, and need not be pleaded; or (ii) the evidentiary facts from which the state of mind is to be inferred.[1]

Para. 27, lines 4-8: the Prosecution’s Rule 65ter witness list may in some cases serve to cure a defective indictment.

Para. 27, lines 8-9: law developed to state that not only the mere service of witness statements, but also of potential exhibits, does not suffice to inform the accused of material facts that the Prosecution intends to prove at trial.

195. The Appeals Chamber recalls that where the Indictment is found to be defective, an appellant who raises a defect in the indictment for the first time on appeal bears the burden of showing that his ability to prepare his defence was materially impaired. Where, however, an accused had already raised the issue of lack of notice before the Trial Chamber, the burden rests on the Prosecution to demonstrate on appeal that the accused’s ability to prepare a defence was not materially impaired.

196. With regard to the Trial Chamber’s finding that Sagahutu issued an operational instruction in relation to the Belgian peacekeepers’ access to the Prime Minister’s residence and sent an armoured unit and supplies to his subordinates on the ground, the Trial Chamber relied on the evidence of Prosecution Witnesses AWC, ALN, DA, and HP.[3] The Appeals Chamber notes that, in his closing arguments, Sagahutu made a general objection in relation to the pleading in the Indictment of the charge regarding the killing of the Prime Minister.[4] Nonetheless, Sagahutu did not take specific issue with the introduction of particular material facts during the testimony of Witnesses AWC, ALN, DA, and HP.[5] Therefore, the Appeals Chamber considers that Sagahutu did not make a specific and timely objection at trial to the lack of pleading in the Indictment of these material facts. In such circumstances, it falls on Sagahutu to demonstrate that the preparation of his defence was materially impaired by these omissions in the Indictment.[6]

21. In Niyitegeka, the Appeals Chamber ruled that, in order to succeed in challenging the exclusion of a material fact from an indictment, an accused must make a timely objection to the admission of evidence of the material fact in question before the Trial Chamber:

In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation.[1]

Failure to object before the Trial Chamber will usually result in the Appeals Chamber disregarding the argument. Here, the Defence did not object to the introduction of Witness GEK’s testimony at trial; rather, it challenged her credibility during cross-examination. However, even in such a case, the Appeals Chamber may choose to intervene proprio motu, considering the importance of the accused’s right to be informed of the charges against him and the possibility of serious prejudice to the accused if the Prosecution informs him about crucial facts for the first time at trial. In such circumstances the accused has the burden of proving on appeal that his ability to prepare his case was materially impaired.[2]

22. In Ntakirutimana, the Appeals Chamber treated a challenge to the Indictment as properly raised, although the Appellant did not object to the error at the time of the introduction of the evidence at trial, because the Trial Chamber had concluded that the challenges to the vagueness of the Indictment had subsequently been properly presented before it.[3]

198. In considering whether a defect in the indictment has been cured by subsequent disclosure, the question arises as to which party has the burden of proof on the matter. Although the Judgement in Kupreškić did not address this issue expressly, the Appeals Chamber’s discussion indicates that the burden in that case rested with the Prosecution. Kupreškić stated that, in the circumstances of that case, a breach of “the substantial safeguards that an indictment is intended to furnish to the accused” raised the presumption “that such a fundamental defect in the … Indictment did indeed cause injustice.”[1] The defect could only have been deemed harmless through a demonstration “that [the Accused’s] ability to prepare their defence was not materially impaired.”[2] Kupreškić clearly imposed the duty to make that showing on the Prosecution, since the absence of such a showing led the Appeals Chamber to “uph[o]ld the objections” of the accused.[3]

250.   Recalling that waiver “should not entirely foreclose” indictment defects from being raised for the first time on appeal by the defence,[1] the Appeals Chamber notes that it has not previously considered whether waiver should preclude the Prosecution from arguing for the first time on appeal that its Indictment should have been interpreted differently, when it had been put on notice at trial that the Trial Chamber considered the Indictment to be defective. The Appeals Chamber observes that the rationale for allowing the Defence to raise such objections for the first time on appeal does not apply to the Prosecution who bears the obligation of ensuring that the indictment adequately pleads its case against the accused.

76. The Trial Chamber referred to the conversation when assessing Kanyarukiga’s actus reus of planning.[1] Moreover, the Trial Chamber concluded in this context that it was “satisfied beyond reasonable doubt that Gaspard Kanyarukiga, Grégoire Ndahimana, Fulgence Kayishema, Télesphore Ndungutse, Joseph Habiyambere and others planned the destruction of the Nyange [c]hurch on 15 and 16 April 1994 and that the church was destroyed on the afternoon of 16 April 1994, killing those inside.”[2] Accordingly, in the Trial Chamber’s view, Kanyarukiga planned the destruction of the church on both days, his criminal conduct on 15 April 1994 consisting of his conversation with Kayishema.[3] This conversation thus amounted to a material fact that, along with others, underpinned Kanyarukiga’s conviction for planning. Recalling that when the accused is charged with planning, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charge in question,[4] the Appeals Chamber finds that the conversation should have been pleaded in the Amended Indictment. In this respect, the Amended Indictment was defective.

77. However, as will be discussed below, Kanyarukiga was also held responsible for participating in a meeting at the Nyange parish on the morning of 16 April 1994 where the demolition of the Nyange church was discussed and agreed to as well as for making a remark after the meeting about the need to destroy the church. This conduct was adequately pleaded in the Amended Indictment and is a sufficient basis for Kanyarukiga’s convictions. Therefore, by partly relying on Kanyarukiga’s conversation on 15 April 1994, the Trial Chamber did not commit an error which would invalidate the verdict. The Appeals Chamber therefore declines to consider the issue further[5] and will instead simply disregard the conversation as a basis for Kanyarukiga’s liability.

106. The Appeals Chamber recalls that the Prosecution’s failure to expressly state that a paragraph in the indictment supports a particular count in the indictment is indicative that the allegation in the paragraph is not charged as a crime.[1] Paragraphs 4.6 and 4.8 of the Indictment, however, are contained in a section titled “The Accused”, which merely describes Ntabakuze and provides information on his professional background and military authority during the period of the relevant events.[2] Although they contain material facts supporting elements of crimes pleaded elsewhere in the Indictment, paragraphs 4.6 and 4.8 do not plead allegations that may be separately charged as a crime. As a result, the Appeals Chamber considers that the Prosecution was not required to plead these paragraphs expressly under each of the counts in the charging section of the Indictment.

13. The Trial Chamber also erred in concluding that there was no need to amend the Amended Indictment because the Prosecution indicated in its Response to the Preliminary Motion that it intended to rely on the basic and extended forms of JCE and because additional details could be provided in the Pre-Trial Brief.[1] It is accepted that defects in the indictment can be cured later by timely, clear, and consistent information detailing the factual basis underpinning the charge.[2] However, the indictment is the primary accusatory instrument[3] and the Prosecution has been warned in the past that the practice of failing to allege known material facts in the indictment is unacceptable.[4] Consequently, in a case such as the present, where defects in the indictment surface at the pre-trial stage, the Prosecution cannot refrain from amending the indictment by arguing that it will correct existing defects through its Pre-Trial Brief.[5]

39. The Appeals Chamber rejects the Prosecution’s argument that the Trial Chamber properly denied Uwinkindi’s Preliminary Motion because additional details are contained in a disclosed witness statement and because the Prosecution suggested that paragraph 10 of the Amended Indictment could be further amended in light of this material. As stated above, the indictment is the primary accusatory instrument.[6] Furthermore, the Appeals Chamber has repeatedly held that the mere service of witness statements or potential exhibits by the Prosecution pursuant to disclosure requirements does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[7]

123. The Appeals Chamber recalls that in respect of [failure to prevent or punish], in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[1] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[2]

125. [A] review of the Indictment reflects that the Prosecution did not explicitly plead Ntabakuze’s failure to prevent or punish the crimes of his subordinates. However, the Appeals Chamber observes that paragraph 6.18 of the Indictment, which was specifically relied on in support of Ntabakuze’s superior responsibility, pleads that the crimes alleged in the Indictment were carried out on his orders and directives. This, in the Appeals Chamber’s opinion, gave notice to Ntabakuze that he was alleged to have failed to take the necessary measures to prevent or punish the crimes. Further notice was provided through the allegations of repeated and continuing crimes by Ntabakuze’s subordinates from the Para-Commando Battalion,[3] and the allegation at paragraph 6.44 of the Indictment that “[c]ertain units of the Para‑Commando, Reconnaissance and Presidential Guard battalions were the most implicated in these crimes”.[4]

Footnote 88:            The Appeals Chamber notes that the Prosecution appears to submit that, given the widespread nature of the massacres, and the involvement of virtually every unit of the army in perpetrating them in multiple locations throughout Kigali and other prefectures, it was “legitimate” for the Indictment to only provide examples of some locations where massacres occurred. See [Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Prosecutor’s Brief in Response to Aloys Ntabakuze’s Appeal, 7 September 2009 (“Prosecution Response Brief”)], para. 31. See also AT. 27 September 2011 p. 39. The Appeals Chamber considers this argument to be ill-founded. The Appeals Chamber has previously stated that “the facts relevant to the acts of those others for whose acts the accused is alleged to be responsible as a superior [...]] will usually be stated with less precision because the detail[s] of those acts are often unknown, and because the acts themselves are often not very much in issue”. See Muvunyi Appeal Judgement of 29 August 2008, para. 58, citing Ntagerura et al. Appeal Judgement, para. 26, fn. 82, quoting Blaškić Appeal Judgement, para. 218. However, the indictment must plead the criminal conduct of the subordinates for whom the accused is alleged to be responsible. See infra, para. 100. At a minimum, this includes pleading the location and approximate date of the alleged criminal acts and the means by which they were committed when this information is in possession of the Prosecution.

11. The Appeals Chamber recalls that JCE must be specifically pleaded in the indictment.[1] The Prosecution must plead the nature and purpose of the enterprise, the period over which the enterprise is said to have existed, the identity of the participants, and the nature of the accused’s participation therein.[2] In order for an accused to fully understand the acts for which he is allegedly responsible, the indictment should further clearly indicate which form of JCE is being alleged: basic, systemic, or extended.[3] Since the three forms of JCE vary with respect to the mens rea element, the indictment must also plead the mens rea element of each category on which the Prosecution intends to rely.[4]

12. While the Amended Indictment states that Uwinkindi “willfully [sic] and knowingly participated in a joint criminal enterprise”, it does not specify which form of JCE is charged and consequently also fails to plead Uwinkindi’s mens rea.[5] This renders the Amended Indictment defective and the Trial Chamber erred in failing to find so.

Para. 21(“curing” is likely to occur only in a limited number of cases):

21. The ICTY Appeals Chamber has explained that

in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.[1] 

Thus, “curing” is likely to occur only in a limited number of cases. In this connection, the Appeals Chamber is not convinced by the Trial Chamber’s suggestion, at paragraph 4 of the Impugned Decision, that a distinction should be made between cases “where the Prosecution knows of material facts at the time the indictment is filed, but fails to plead them” (in which cases curing would be exceptional) and cases where the material facts “are subsequently discovered” (in which cases curing would not be characterized as exceptional). Indeed, the risk of prejudice to the accused is the same in both types of cases.[2] In both types of cases, the defect in the indictment may be deemed cured only by the provision of timely, clear and consistent information to the accused.

Para. 26 (when numerous defects found to have been “cured”):

The Appeals Chamber agrees that when the indictment suffers from numerous defects, there may still be a risk of prejudice to the accused even if the defects are found to be cured by post-indictment submissions. In particular, the accumulation of a large number of material facts not pled in the indictment reduces the clarity and relevancy of that indictment, which may have an impact on the ability of the accused to know the case he or she has to meet for purposes of preparing an adequate defence. Further, while the addition of a few material facts may not prejudice the Defence in the preparation of its case, the addition of numerous material facts increases the risk of prejudice as the Defence may not have sufficient time and resources to investigate properly all the new material facts. Thus, where a Trial Chamber considers that a defective indictment has been subsequently cured by the Prosecution, it should further consider whether the extent of the defects in the indictment materially prejudice an accused’s right to a fair trial by hindering the preparation of a proper defence. The Appeals Chamber finds that the Trial Chamber failed to do so in the Impugned Decision and therefore, instructs the Trial Chamber to reconsider the Impugned Decision on this basis.

Paras 29-30 (type of defects that can be cured):

29. The Appeals Chamber is not convinced by the arguments of the Appellant on this point. The Appeals Chamber first recalls the distinction between counts or charges (“accusations” in French) and “material facts”:

The count or charge is the legal characterisation of the material facts which support that count or charge.  In pleading an indictment, the Prosecution is required to specify the alleged legal prohibition infringed (the count or charge) and the acts or omissions of the Accused that give rise to that allegation of infringement of a legal prohibition (material facts).[3]

It is clear that the omission of a count or charge from the indictment cannot be “cured” by the provision of timely, clear, consistent information.[4] Indeed, since the indictment is the only charging instrument,[5] the addition of counts or charges is possible only through amendment, as set out in Rule 50 of the Rules. However, it is also clear that the omission of a material fact underpinning a charge in the indictment can, in certain cases, be cured by the provision of timely, clear and consistent information.[6]

30. In this connection, the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused.[7] The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges,[8] the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[9]

Para. 35: The Appeals Chamber found that a defect in indictment could be cured by information conveyed in Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

35. The Appeals Chamber reiterates that, while the addition of a charge must necessarily be done through an amendment to the indictment, the omission of material facts from the indictment can in certain circumstances be cured without having to amend the indictment.[10] As to whether notice of a new material fact could be conveyed through a Prosecution motion to add a witness, the Appeals Chamber recalls that, as a general rule:

Whether the Prosecution cured a defect in the indictment depends, of course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment’s failure to give notice of the charges asserted against the accused. Kupreškić considered that adequate notice of material facts might be communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. The timing of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant in determining whether subsequent communications make up for the defect in the indictment. As has been previously noted, “mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[11]

In determining whether a defective indictment was cured by timely, clear and consistent information, the Appeals Chamber has looked to the Prosecution pre-trial brief (together with its annexes and chart of witnesses)[12] or the Prosecution’s opening statement.[13] However, the Appeals Chamber never suggested that defects in the indictment could only be cured through the Prosecution pre-trial brief or its opening statement. The Appeals Chamber cannot exclude the possibility that a defect in the indictment could be cured through a Prosecution motion for addition of a witness, provided any possible prejudice to the Defence was alleviated by, for example, an adjournment to allow the Defence time to prepare for cross-examination of the witness. Accordingly, the Appeals Chamber is not convinced that the Trial Chamber erred in stating that although disclosure of witness statements or potential exhibits are generally insufficient to put an accused on reasonable notice, a defect in the indictment could be cured by the information conveyed in a Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

Para. 37: The Appeals Chamber found that an accused can be put on reasonable notice of material facts omitted from indictment where an adjournment is ordered by the Trial Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.

37. In Kupreškić, the Appeals Chamber emphasized that

the Prosecution is expected to know its case before it goes to trial.  It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.  There are, of course, instances in criminal trials where the evidence turns out differently than expected.  Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.[14] 

Thus, when a new material fact is discovered at trial, the Trial Chamber should determine which measure(s) are required in the circumstances of the case to preserve the fairness of the proceedings. If the Trial Chamber decides that an adjournment is warranted, it could also order the Prosecution to amend the indictment for greater clarity, but this might not be required in every case. Accordingly, the Appeals Chamber does not find that the Trial Chamber erred in stating at paragraph 10 of the Impugned Decision that the accused was put on reasonable notice of material facts omitted from the indictment where “a lengthy adjournment was ordered by the Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.”

The Appeals Chamber confirmed that a Trial Chamber is entitled to reconsider previous decisions after the closing arguments of the parties. However, in such a case the Trial Chamber has to carefully consider the impact of its reconsideration on the aspects of the procedure which were affected by its initial decision. In the present case, the Trial Chamber was obliged to reopen the debate to give the parties the opportunity to present their view on the issue (para. 55):

55.     It is apparent from the foregoing that the Trial Chamber reconsidered in the Trial Judgement some of the findings it had made in certain pre-trial decisions on the form of the Indictments. This does not in itself constitute an error, as it is within the discretion of a Trial Chamber to reconsider a decision it has previously made if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice. However, the Appeals Chamber emphasises that “where such a decision is changed, there will be a need in every case for the Trial Chamber to consider with great care and to deal with the consequences of the change upon the proceedings which have in the meantime been conducted in accordance with the original decision”. In the present case, the Appeals Chamber considers that, once the Trial Chamber decided to reconsider its pre-trial decisions relating to the specificity of the Indictments at the stage of deliberations, it should have interrupted the deliberation process and reopened the hearings. At such an advanced stage of the proceedings, after all the evidence had been heard and the parties had made their final submissions, the Prosecution could not move to amend the Indictment. On the other hand, reopening the hearings would have allowed the Prosecution to try to convince the Trial Chamber of the correctness of its initial pre-trial decisions on the form of the Indictment, or to argue that any defects had since been remedied. The Appeals Chamber finds that the Trial Chamber erred in remaining silent on its decision to find the abovementioned parts of the Indictments defective until the rendering of the Trial Judgement.

77. […] Although the evidence at trial sometimes turns out to be different from the Prosecution’s expectations, the accused are generally entitled to proceed on the basis that the material facts disclosed to them are “exhaustive in nature” unless and “until given sufficient notice that evidence will be led of additional incidents.”[1] Given that “the Prosecution is expected to know its case before it goes to trial,” the question is whether it was fair to the Appellant to be tried and convicted based on an allegation as to which neither he nor the Prosecution had actual or specific notice.[2] On this question, as on the question of whether communications of information sufficed to cure an indictment defect, the Prosecution bears the burden of demonstrating that the new incidents that became known at trial caused no prejudice to the Appellant.

[…]

112. [I]n circumstances where the Prosecution relies on material facts that were revealed for the first time at trial, the Prosecution bears the burden of showing that there was no unfairness to the Accused.

202. In additional support of its finding that Ntawukulilyayo knew that he was charged with ordering the killings at Kabuye hill on 23 April 1994, the Trial Chamber recalled that the Prosecution’s Closing Brief and Closing Arguments provided him with further notice that ordering was pleaded.[1] In this regard, the Appeals Chamber emphasizes that the Prosecution is expected to know its case before proceeding to trial.[2] Considering that the basic purpose of informing an accused clearly of the charges against him is so that he may prepare his defence,[3] the Appeals Chamber finds that notification in closing submissions cannot constitute proper notice.

163. The Appeals Chamber considers that a broad date range, in and of itself, does not invalidate a paragraph of an indictment.[1] In light of the Trial Chamber’s finding that abductions were recurring and that Rukundo was involved on “at least four occasions”,[2] and given that the evidence indicates that his involvement in the abductions did essentially span this period, the Appeals Chamber does not consider that the date range of April and May 1994 was unreasonably broad. […]

30. The Appeals Chamber recalls that the practice of both the Tribunal and the ICTY requires the Prosecution to plead the specific forms of individual criminal responsibility for which the accused is being charged.[1] The Prosecution has repeatedly been discouraged from simply restating Article 6(1) of the Statute, unless it intends to rely on all of the forms of individual criminal responsibility contained therein, because of the ambiguity that this causes.[2]

132. The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct charged.[1] The Trial Chamber correctly stated that where an accused “is alleged to have given precise orders for the killing of specific individuals, the obligation to provide precisions as to the circumstances thereof is as its highest”.[2] In the present case, the Prosecution was, at the time of the filing of the Indictment,[3] in a position to provide information that was obviously valuable to the preparation of Nsengiyumva’s defence by naming the victim, and should have done so.[4] The Indictment was therefore defective in respect of the identity of this victim, as well as the time and place of this particular event.

102. The Trial Chamber found that Bizimungu failed to prevent the crimes for which he was convicted or to punish his subordinates for their roles in these crimes.[1]

103. Bizimungu submits that the Indictment does not state how it could be inferred from his conduct that he failed to take the necessary and reasonable measures to prevent the crimes or punish his subordinates as it merely reproduced the wording of Article 6(3) of the Statute.[2] He asserts that neither the Prosecution Pre-Trial Brief nor its opening statement remedied this defect.[3] The Prosecution responds that Bizimungu’s submissions lack merit.[4]

104. The Appeals Chamber recalls that, in respect of this element of superior responsibility, in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[5] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[6] The Appeals Chamber finds the Indictment sufficient in this respect, particularly in light of the Indictment’s further qualification that Bizimungu did not “use his statutory powers to punish the perpetrators or to institute proceedings against them”.[7] Accordingly, this argument is dismissed.

292. The charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to an accused. Whether a fact is “material” depends on the nature of the Prosecution’s case.[2] The Appeals Chamber has previously held that where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation, or execution of the alleged crimes, the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question.

293. An indictment which fails to set forth the specific material facts underpinning the charges against the accused is defective.[4] The defect may be cured if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge. However, a clear distinction has to be drawn between vagueness in an indictment and an indictment omitting certain charges altogether.[6] While it is possible, as stated above, to remedy the vagueness of an indictment, omitted charges can be incorporated into the indictment only by a formal amendment pursuant to Rule 50 of the Rules. [7]

The Appeals Chamber considered proprio motu the question of whether the Trial Chamber erred in finding the Appellant responsible for the killings of individuals under Count 1 (genocide) and Count 3 (extermination as a crime against humanity), while these killings were only pleaded under Count 4 (murder as a crime against humanity).[1] It found

365. In Muvunyi, the Appeals Chamber observed that “the Prosecution’s failure to expressly state that a paragraph in the Indictment supports a particular count in the Indictment is indicative that the allegation is not charged as a crime”.[2] The Appeals Chamber considers that the same may be said where a particular allegation is charged under a particular count only. In the present case, the Amended Indictment put the Appellant on notice that the Prosecution was charging him for the murder of Murekezi only under Count 4. In view of this, there is some basis for argument that by reading the Amended Indictment alone, the Appellant would not have understood that he was also charged for the same fact under Counts 1 and 3. In regard to the Amended Indictment, the Prosecution knew the identity of a finite number of victims and was able, when it sought to amend the Indictment, to specify the circumstances of their murder.  It chose not to list Murekezi’s killing in the statements of facts pertaining to counts alleging genocide and extermination as a crime against humanity. The Appeals Chamber has previously held that “[e]ven in cases where a high degree of specificity is ‘impractical […] since the identity of the victim is information that is valuable to the preparation of the defence case, if the Prosecution is in a position to name the victims, it should do so.’”[3]

366. Turning to the Prosecution’s submission that the Amended Indictment has to be read as a whole, the Appeals Chamber notes that while the statement of facts supporting Count 4 incorporates the statements of facts supporting Counts 1 and 3, the reverse is not true. The statements of facts supporting Counts 1 and 3 do not incorporate the statement of facts supporting Count 4. This lack of reciprocity might have added to the impression that Murekezi’s murder was not incorporated in Counts 1 and 3 of the Amended Indictment.

367. The Appeals Chamber further notes that the process of amending the initial Indictment might have laid the groundwork for confusion on this issue. Originally, Murekezi’s killing was listed in a statement of facts pertaining to both Counts 3 and 4. However, this statement of facts was eventually severed, and Murekezi’s killing was subsequently mentioned only in the statement of facts applicable to Count 4. While the rationale for the severing of the original, combined statement of facts did not centre on Murekezi, the amendment may have given the message that Murekezi’s killing related only to Count 4 of the Indictment, rather than serving as a key basis for the gravest of the charges involved.[4] The Prosecution’s decision not to refer to Murekezi at all in Counts 1 and 3 of the Amended Indictment, especially in the context of the Indictment amendment process, resulted in vagueness with potentially serious consequences for the preparation of the Appellant’s defence.  In these circumstances, the Appeals Chamber considers that reversal of the affected convictions is appropriate.[5]

368. The Appeals Chamber further notes that the Amended Indictment was issued on 19 December 2005, seven days after the filing of the Prosecution Pre-Trial Brief.[6] As a result, while the Prosecution Pre-Trial Brief included a summary of anticipated witness testimony, the text of the Prosecution Pre-Trial Brief and the summaries referred to either the Indictment or the draft amended indictment annexed to the Prosecution Motion to Amend the Indictment,[7] but not to the Amended Indictment itself. Turning to the Prosecution’s contention that the Prosecution Pre-Trial Brief presented “the factual allegations by location, including Nyamirambo, rather than with respect to each count”, the Appeals Chamber does not see how this argument is capable of demonstrating that any defect in the Amended Indictment relating to the facts underlying Counts 1 and 3 was cured by the Prosecution Pre-Trial Brief.

369. In a world of limited legal resources, the Appellant’s counsel might have focused more attention on Murekezi’s killing had this key material fact been more specifically linked to a larger number of counts concerning crimes such as genocide and extermination as a crime against humanity, which on their face appear even more serious than murder. Instead, the Amended Indictment may have given the opposite impression. This error and the confusion it might have generated justify reversal of the Appellant’s convictions under Counts 1 and 3, insofar as they rely on the murder of Murekezi.

61. Article 18(4) of the Statute and Rule 47(C) of the Rules require that an indictment contain a concise statement of the facts of the case and of the crime with which the suspect is charged.  That requirement does not include an obligation to state in the indictment the evidence on which the Prosecution has relied.  Where evidence is presented at trial which, in the view of the accused, falls outside the scope of the indictment, an objection as to lack of fair notice may be raised and an appropriate remedy may be provided by the Trial Chamber, either by way of an adjournment of the proceedings, allowing the Defence adequate time to respond to the additional allegations, or by excluding the challenged evidence. 

See also para. 147.

The Appeals Chamber further found:

153. […] the Appeals Chamber considers as correct the distinction made in Krnojelac between the material facts underpinning the charges and the evidence that goes to prove those material facts.  In terms of Article 18 of the Statute and Rule 47, the indictment need only contain those material facts and need not set out the evidence that is to be adduced in support of them.  In the instant case, the Appeals Chamber can find nothing wrong in the Trial Chamber’s admission of this evidence which supports the charge of torture, even though it was not specified in the Amended Indictment.  It would obviously be unworkable for an indictment to contain all the evidence that the Prosecutor proposes to introduce at the trial.

See also para. 162.

138.    […] With respect to the nature of the liability incurred, the Appeals Chamber holds that it is vital for the indictment to specify at least on what legal basis of the Statute an individual is being charged (Article 7(1) and/or 7(3)). Since Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as soon as possible and, in any event, before the start of the trial. Likewise, when the Prosecution charges the “commission” of one of the crimes under the Statute within the meaning of Article 7(1), it must specify whether the term is to be understood as meaning physical commission by the accused or participation in a joint criminal enterprise, or both. The Appeals Chamber also considers that it is preferable for an indictment alleging the accused’s responsibility as a participant in a joint criminal enterprise also to refer to the particular form (basic or extended) of joint criminal enterprise envisaged. However, this does not, in principle, prevent the Prosecution from pleading elsewhere than in the indictment - for instance in a pre-trial brief - the legal theory which it believes best demonstrates that the crime or crimes alleged are imputable to the accused in law in the light of the facts alleged. This option is, however, limited by the need to guarantee the accused a fair trial. 

88. An indictment shall, pursuant to Article 18(4) of the Statute, contain “a concise statement of the facts and the crime or crimes with which the accused is charged”.  Similarly, Rule 47(C) of the Rules provides that an indictment, apart from the name and particulars of the suspect, shall set forth “a concise statement of the facts of the case”.  The Prosecution’s obligation to set out concisely the facts of its case in the indictment must be interpreted in conjunction with Articles 21(2) and (4)(a) and (b) of the Statute.  These provisions state that, in the determination of any charges against him, an accused is entitled to a fair hearing and, more particularly, to be informed of the nature and cause of the charges against him and to have adequate time and facilities for the preparation of his defence.  In the jurisprudence of the Tribunal, this translates into an obligation on the part of the Prosecution to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven.[1]  Hence, the question whether an indictment is pleaded with sufficient particularity is dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him so that he may prepare his defence.

Para. 50: when an accused is charged with personally committing a crime, the Prosecution must plead the material facts of that incident:

50. The Indictment, taken alone, does not allege the killing of Mr. Murefu. In the Statement of Facts (“Statement”) related to the genocide count, it states that “Sylvestre Gacumbitsi killed persons by his own hand”, but provides no further details. The Statement goes on to describe the massacre at Nyarubuye Parish, but does not mention Mr. Murefu and does not suggest that the Appellant participated personally in the killing there. Count 4 of the Indictment (Murder) does allege that the Appellant killed a number of individuals in several separate incidents, but Mr. Murefu is not among them. The Appellant could not reasonably have known, on the basis of the Indictment alone, that he was being charged with the killing of Mr. Murefu. While in certain cases, “the sheer scale of the alleged crimes ’makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes’”, this is not such a case. The Prosecution should have expressly pleaded the killing of Mr. Murefu, particularly as it had this information in its possession before the Indictment was filed. The Appeals Chamber thus finds by majority, Judge Shahabuddeen and Judge Schomburg dissenting, that the Indictment was defective in this respect. (internal citation omitted).

At para. 122, the Appeals Chamber recalled its previous finding that, even when the Prosecution quotes in full the provisions of Article 6(1) of the Statute in the Indictment, the Indictment can be sufficiently pleaded in other paragraphs of the indictment.[1]

The Appeals Chamber considered “the reference to aiding and abetting in the preamble to Count 4 [by repeating the language of Article 6(1)], taken in combination with the allegations of material facts sufficient to support a conviction under that mode of liability, was sufficient to put the Appellant on notice that he was charged with aiding and abetting”.[2]

15. The Appeals Chamber finds that Karemera and Ngirumpatse have failed to demonstrate a discernible error in the Trial Chamber’s order in relation to the amendment of the Indictment. It is clear from the Indictment of 23 August 2010, which implements the Impugned Decision, that Nzirorera is no longer an accused in the case. While his name continues to appear in the Indictment of 23 August 2010, his name has been removed from the title and the counts, and his status is now no different from other alleged members of the joint criminal enterprise who are not charged in this case. […]

16. The Appeals Chamber recalls that where joint criminal enterprise is pleaded as a mode of liability, the Prosecution must plead the identity of the alleged members of the joint criminal enterprise.[1] While Nzirorera is no longer an accused in the case, it is still open for the Prosecution to allege that he was a member of the joint criminal enterprise. This being the case, it is proper for the Prosecution to name him in the Indictment while making clear that he is not one of the accused. In this regard, the Appeals Chamber notes that, contrary to Ngirumpatse’s submission, in other cases where proceedings have been terminated in relation to one accused due to that accused’s death but where joint criminal enterprise was pleaded, the deceased accused’s name has continued be referred to in the Indictment.[2]

Galić was charged under Count 1 under the heading “Actual Infliction of Terror” and was convicted of acts of violence with the intent to spread terror among the civilian population. He argued that the Trial Chamber impermissibly departed from the charges stated in his Indictment (Judgement, para. 70). The Appeals Chamber, after pointing to the differences between the duties of a Judge confirming an indictment and those of the Trial Chamber (para. 71), found that the Trial Chamber was “acting within the confines of its jurisdiction in determining that the elements of this crime do not comprise the actual infliction of terror on that population” (para. 73). However, it made clear that the “[t]he core issue remains […] that the accused has to be properly informed of the nature and cause of the charges against him so that he can adequately prepare his defence[1]” and decided upon Galić’s argument in light of this finding (para. 74).

14. [A]n indictment must necessarily, in the absence of a special order, consist of the one document.  Its contents cannot properly or practicably be identified by reference to a number of documents in which statements made in one document are altered by statements made in another document. […]

15. In any event, the argument by the prosecution that the whole of the altered contents of the two schedules related only to matters of evidence is not made out.  An indictment is required to plead the material facts upon which the prosecution relies, but not the evidence by which those material facts are to be proved.  Whether or not a fact is material depends upon the proximity of the accused person to the events for which that person is alleged to be criminally responsible.[1]  If the accused person is alleged to have personally committed the acts giving rise to the charges against him, the material facts would include such details as the identity of the victim, the place and the approximate date of the events in question, and the means by which the offence was committed.[2]  As the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the prosecution relies to establish his responsibility as an accessory or as a superior to the persons who personally committed the acts giving rise to the charges against him.[3]

Čermak argued that by considering the amendment of the indictment together with the issue of joinder the Trial chamber skipped the indictment amendment procedure, preventing the defence from being heard and opposing the process of the amendment, and therefore violates the principle of a fair trial. The Appeals Chamber, however, held at para. 11:

11. […] First, Čermak fails to provide a basis in the Rules or in the jurisprudence of the International Tribunal in support of the proposition that it is required procedure for a Trial Chamber to consider amendments to the indictment first, separate from deciding on the issue of joinder. Furthermore, Čermak fails to demonstrate how addressing both issues together in one decision inevitably leads to a Trial Chamber skipping the appropriate analysis under Rule 50 of the Rules for determining whether proposed amendments to an indictment should be granted under the principle of a fair trial. […] 

Having found that the indictment was vague, the Appeals Chamber considered whether that vagueness was cured by the Prosecution’s other filings (paras 55-58). It confirmed the finding of the ICTY Appeals Chamber in Naletilić and Martinović that an indictment defect can be cured by the provision of timely, clear and consistent information in the form of a Chart of Witnesses, disclosed before trial, setting forth the allegations of the relevant material facts and specifically identifying the charges to which those allegations relate.[1]

370.   […] Under certain circumstances, referring to an alleged subordinate by category can constitute sufficient notice of his or her identity.[1] However, where the Prosecution has specific information in its possession pertaining to the material facts of its case, it should expressly provide these facts in the indictment.[2]

12.  […] The Prosecution is entitled to decide that its theory of the accused’s criminal liability would be better expressed by an amended indictment.  Even if the trial can proceed on the basis of the Current Indictment, the Prosecution is not thereby precluded from seeking to amend it.

20. […] [A]lthough Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason.  The Prosecution cannot earn a strategic advantage by holding an amendment in abeyance while the defence spends time and resources investigating allegations that the Prosecution does not intend to present at trial.  In this regard, it is worth recalling that a substantial delay will be considered undue “if it occur[s] because of any improper tactical advantage sought by the prosecution.”   Strategic efforts to undermine the conduct of proceedings cannot be tolerated, especially if designed to disadvantage the ability of the Defence to respond to the Prosecution’s case.  

16.     The Prosecution is certainly correct that the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment.  Interference with the orderly scheduling of trial, however, is one such circumstance.  The Appeals Chamber stated in Karemera that “a postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all”[1] of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,”[2] which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage,[3]and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial.[4] Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused and the extent to which such prejudice may be cured by methods other than denying the amendment, such as granting adjournments or permitting the Accused to recall witnesses for cross-examination.[5] The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.

 17.     […] [T]he Trial Chamber is not required to enumerate and dispose of all of the arguments raised in support of a motion.  Absent a showing that the Trial Chamber actually refused to consider any factors other than the determination that the amendment would delay the start of trial, or a showing that the Trial Chamber’s conclusion was so unreasonable that it cannot have considered all pertinent factors, the Appeals Chamber must conclude that the Trial Chamber took account of all of the arguments put to it.

[…]

19. […] Although the Prosecution may seek leave to expand its theory of the Accused’s liability after the confirmation of the original indictment, the risk of prejudice from such expansions is high and must be carefully weighed. On the other hand, amendments that narrow the indictment, and thereby increase the fairness and efficiency of proceedings, should be encouraged and usually accepted.

1099.            […] The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged.[1] The Appeals Chamber considers that when the Prosecution intends to prove that an accused ordered particular crimes, it must identify in the indictment, at least by category, to whom the accused is alleged to have given orders[2] and all detail it possesses regarding the location of the incidents.

1276.            The Appeals Chamber rejects Ntahobali’s claim that the Trial Chamber applied the wrong legal criterion in evaluating the cumulative effect of the defects in the Indictment. Although the Trial Chamber mainly relied on its finding that the defects of the Indictment concerning allegations on which it made factual findings were cured, its analysis reflects that it did not limit its examination to this matter but, in accordance with the jurisprudence that it expressly recalled, examined whether the Defence had sufficient time and resources to investigate properly all the new material facts and that it was not prejudiced by the addition of numerous material facts. The Appeals Chamber refers in particular to the Trial Chamber’s reliance on the additional time allotted to the co-Accused to prepare their case[1] and its findings throughout the Trial Judgement that, where remedied, the original lack of notice had not caused prejudice.[2]

1277.            The Appeals Chamber also finds no merit in Ntahobali’s argument that the number of defects in an indictment that can be cured is limited. The Appeals Chamber considers that, in instances where it is found that defective charges have not only been cured but also that the initial lack of notice did not result in prejudice, the question of the number of defects cured becomes secondary. It is clear from the Appeals Chamber’s jurisprudence that the key question remains whether or not the accused was materially prejudiced in the preparation of his defence.[3]

2270.            […] The Appeals Chamber repeatedly held that the Prosecution’s failure to state expressly that a paragraph in the indictment supports a particular count in the indictment is indicative that the allegation in the paragraph is not charged as a crime.[1] There is therefore merit in Nteziryayo’s contention that, by not indicating that the allegation in paragraph 6.34 supported any particular count, the Prosecution may have misled him in believing that the allegation was not charged as a crime.

2271.            The Appeals Chamber, however, stresses that the fundamental question when examining allegations of lack of notice is whether or not the accused was adequately informed of the nature and cause of the charges against him so as to be able to prepare a meaningful defence.[2] The Appeals Chamber’s case law on notice of the charges was developed in this spirit and was not intended to permit mere technicalities of pleading to intrude where it is clear that the accused was informed of the charges against him precisely and in a timely manner.

[…]

2274.            Against this background, Nteziryayo cannot reasonably claim that he did not understand at trial that the Prosecution intended to prove that he was guilty of direct and public incitement to commit genocide through his conduct at Ndayambaje’s Swearing-In Ceremony and that he was misled by the absence of reference to paragraph 6.34 in the charging section of the Indictment. […] in the situation at hand, it is obvious that the Prosecution mistakenly omitted to refer to paragraph 6.34 in the charging section of the Indictment and that it was the Prosecution’s consistent intention throughout the case to prosecute Nteziryayo for his utterances at Ndayambaje’s Swearing-In Ceremony.

[…]

2713.            Turning to Ndayambaje’s challenge to the Trial Chamber’s finding that the defect regarding the dates, location, and his general participation in the massacre was cured, the Appeals Chamber finds no merit in Ndayambaje’s argument that the summaries of the Prosecution witnesses’ anticipated evidence appended to the Prosecution Pre-Trial Brief could not inform him of the allegation against him as they were not explicitly linked to any paragraph of the Indictment.[3] […]

A. Pleading Practices of the Prosecution

9. The interlocutory appeal of the Appellants does relate to issues that should have been raised in a preliminary motion filed pursuant to Rule 72 of the Rules. The first complaint is directed to the pleading practices of the Prosecution. In relation to each of the Counts challenged on this Appeal, the Appellants argue that the Prosecution failed to satisfy the first requirement of the Tadić Jurisdiction Decision by not identifying the rule of international humanitarian law alleged to have been breached, or indicating whether the legal basis for that count was the laws of war (conventional) or customary international law (customs of war).[1]

10. While the Appeals Chamber agrees that an accused is entitled to know the jurisdictional basis for the charge against him, the Appellants in this case did not complain of the Prosecution’s pleading prior to the commencement of this trial pursuant to Rule  72 of the Rules.[2] Given that it was clear at that time that the Prosecution was not expressly pleading the nature of the armed conflict, and that the Prosecution was proceeding on the basis that Article 3 applied to both international and non-international conflicts, it might be inferred that the Appellants saw a tactical advantage in waiting until this time. While the Appellants say that, during the pre-trial stage, they made no challenge to the pleading because of the holding of the Tadić Jurisdiction Decision regarding the application of Article 3 offences to both types of conflict, they also say that the Tadić Jurisdiction Decision did not establish the applicability of all Article 3 offences to non-international armed conflicts, because Tadić was not charged with any property offences under Article 3.[3] Hence, the Appellants’ reliance on the Tadić Jurisdiction Decision as a reason for not bringing a pre-trial motion challenging the Prosecution’s pleading is not persuasive. The Appellants knew at the time of the issuing of the Indictment that their argument would be that the Tadić Jurisdiction Decision did not establish the application of the Article 3 offences subject of Counts 5, 6 and 7 to non-international armed conflicts, and that complaint should have been made pre-trial.

11. The Appellants further complain that the Prosecution did not identify the legal basis for the Counts charged because it did not want to commit itself to proving that the armed conflict was either international or non-international.[4] This is also a complaint about the pleading practice of the Prosecution that should have been brought by the Appellants during the pre-trial stage. By not pleading the nature of the armed conflict in the Indictment, the Prosecution left the issue to the Trial Chamber to determine. The Prosecution also made it clear to the Appellants that it did not consider the Tribunal’s jurisdiction over Counts 5, 6, and 7 to be dependent on a finding that an international armed conflict occurred. If the Appellants required greater clarification than this, they should have filed a pre -trial motion pursuant to Rule 72.

36. [...] [T]he charges against Mladić did not implicate him as a physical perpetrator, concerned a vast amount of territory of Bosnia and Herzegovina, and spanned over three years. Relevant jurisprudence dictates that, while an indictment is required to plead material facts through which the Prosecution seeks to establish an accused’s criminal liability, as the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the Prosecution relies to establish his responsibility as an accessory or a superior to the persons who personally committed the acts giving rise to the charges against him. Indeed, in cases concerning extensive and continuous criminality, specificity with respect to the timing, victims, and location of “representative” incidents of criminality may satisfy the obligation of providing sufficient notice of the nature of the crime to effectively prepare his defence.

62. […] [T]he Appeals Chamber emphasizes that the Prosecution is obligated “to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven”.[1] […]