Fn. 587. The Appeals Chamber notes that views of a single signatory on the meaning of a particular term used in a treaty only bind that State for the purpose of domestic implementing legislation and do not necessarily suggest a universal consensus on this issue. Even if the United States of America had submitted an official reservation as to the use of the term “mental harm” in Article II of the Genocide Convention – which it did not – such a reservation would not have modified the Convention for other signatories in that respect. See VCLT, Art. 21(2) (“The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.”).

22. As a general principle, interpretation of the Rules of Evidence should “best favour a fair determination of the matter” and be “consonant with the spirit of the Statute and the general principles of law.”[1] In interpreting a particular Rule, a Trial Chamber should ensure that it is interpreted in accordance with its “ordinary meaning” and “in the light of [the] object and purpose” of the Statute and Rules.[2]

23. The Trial Chamber relied on the principle of effectiveness (interpretation par la méthode de 1’effet utile or ut res magis valeat quam pereat) in finding that “the Rules must be interpreted to give them useful effect.”[3] The question arises as to whether or not the Trial Chamber’s interpretation achieved this, without contravening the rights of the Appellant and the need to ensure a fair trial both of which requirements underline the object and purpose of the Statute and the Rules. As the International Court of Justice has stated:

The principle of interpretation expressed in the maxim: ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions...a meaning which...would be contrary to their letter and spirit.[4]

[…]

32. […] [T]he Rules must be interpreted with some degree of flexibility, the primary object being “to achieve justice, not to delay it, and not to permit mere technicalities to intrude where there has been no material prejudice caused by a non-compliance.”[5] Indeed, the Appeals Chamber has, in some other types of cases, accepted non-compliance with the precise terms of a Rule, provided it has no adverse effect upon the integrity of the proceedings or the rights of the accused.[6] […]

23. [...] [T]he maxim expressio unius est exclusio alterius[...][1] [...] must always be applied with great care in statutory interpretation, for it is not of universal application. [...]

2135.            Article 3(h) of the Statute, which confers jurisdiction on the Tribunal over the crime of persecution as a crime against humanity, reads as follows:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: […] (h) Persecutions on political, racial and religious grounds[.]

2136.            The Appeals Chamber notes that Article 3(h) of the Statute limits the jurisdiction of the Tribunal over persecution as a crime against humanity to three listed discriminatory grounds, namely political, racial, and religious grounds.[1] While persecution as a crime against humanity under customary international law might not be restricted to these three discriminatory grounds, the Appeals Chamber recalls that “it [was] open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law.”[2] Whether or not the Security Council may have defined the crime of persecution as a crime against humanity more narrowly than necessary under customary international law, the Tribunal’s jurisdiction is limited to persecution on political, racial, and religious grounds.[3]

2137.            As ethnicity is not enumerated among the discriminatory grounds of persecution in Article 3(h) of the Statute, the question remains whether it is subsumed under one of the three listed discriminatory grounds, more specifically under the “racial” ground. The Appeals Chamber recalls that, while the Statute “is legally a very different instrument from an international treaty”,[4] it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law.[5] In this regard, the Appeals Chamber observes that the chapeau of Article 3 of the Statute distinguishes “ethnicity” from “race” in the listed discriminatory grounds for the attack against a civilian population.[6] The Appeals Chamber, Judge Agius dissenting, considers that, according to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. In the view of the Appeals Chamber, Judge Agius dissenting, this conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it clear that “ethnicity” cannot be encapsulated in “race”. Indeed, interpreting the discriminatory ground of “race” in Article 3(h) of the Statute as including “ethnicity” would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous.[7] According to a textual and contextual interpretation of Article 3(h) of the Statute, the Appeals Chamber, Judge Agius dissenting, therefore finds that “ethnicity” cannot be interpreted as being included in the list of discriminatory grounds enumerated therein.

2138. Moreover, the Appeals Chamber notes that the definition of persecution as a crime against humanity is well settled in the jurisprudence of the Tribunal. As reiterated by the Appeals Chamber in the Nahimana et al. case, “the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).”[8] Thus, in the Nahimana et al. case, the Appeals Chamber specified the mens rea requirement for persecution as a crime against humanity and, contrary to the Trial Chamber’s holding, did not extend it to include “ethnicity” as an additional discriminatory ground. The Appeals Chamber notes that to support its conclusion that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape”, the Trial Chamber relied, inter alia, on paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.[9] However, the Appeals Chamber observes that the Trial Chamber’s reliance on these paragraphs of the Nahimana et al. Appeal Judgement to define the mens rea of the crime of persecution is misplaced.[10] Contrary to the Trial Chamber’s finding, these paragraphs of the Nahimana et al. Appeal Judgement deal with the actus reus – and not the mens rea – of the crime of persecution, holding that hate speech targeting the population on the basis of ethnicity could constitute an act, which discriminates in fact.[11]

2139.            Accordingly, the Appeals Chamber finds that the Trial Chamber committed an error of law in considering that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape.”[12] […]

18. […] While the public interest of protecting the integrity of proceedings through the effective prosecution of offences against the administration of justice cannot be underestimated, it cannot be allowed to undermine the Accused’s rights guaranteed by the principle of legality, which requires sufficient precision and clarity in prescribing modes of criminal liability.[1]

[…]

21. […] [I]n the absence of clear evidence that the doctrine of joint criminal enterprise applies to contempt in customary international law or as a general principle of international law, [the Single Judge] was not satisfied that the Mechanism has jurisdiction over this form of liability for crimes committed in violation of Rule 90 of the Rules.[2] […] [T]he Prosecution’s submissions […] fail to demonstrate the existence of a general principle of law common to all major legal systems or otherwise show error in the Single Judge’s finding.[3]

230. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in relation to the management of the proceedings before them,[1] including on decisions concerning disclosure of evidence and protective measures for witnesses.[2] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a discernible error resulting in prejudice to that party.[3]

See also para.251.

231. Rule 66(A)(ii) of the ICTY Rules provides in relevant part that, subject to Rules 53 and 69 of the ICTY Rules and within the time-limit prescribed by a trial chamber or a pre-trial Judge appointed pursuant to Rule 65 ter of the ICTY Rules, the Prosecution shall disclose to the Defence copies of the statements of all witnesses whom the Prosecution intends to call to testify at trial. At the time of the Decision on Disclosure Violation of 8 February 2012, Rule 69 of the ICTY Rules provided that:

(A) In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.

[…]

(C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence.[4]

Rule 69(C) of the ICTY Rules was amended on 28 August 2012 to read:

Subject to Rule 75, the identity of the victim or witness shall be disclosed within such time as determined by the Trial Chamber to allow adequate time for preparation of the Prosecution or defence.[5]

This remains the operative language of Rule 69(C) of the ICTY Rules. Rule 75(A) of the ICTY Rules provides that “[a] Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused”.[6]

232. The Appeals Chamber observes that in the Šešelj Decision of 24 January 2008, the ICTY Appeals Chamber stated that it did “not accept […] that Rule 69(C) must be interpreted as authorising delayed disclosure prior to the commencement of the opening of the trial only”.[7] It reasoned that the purpose of Rule 69(C) of the ICTY Rules is to allow a trial chamber to grant protective measures that are necessary to protect the integrity of its victims and witnesses, subject to the caveat that such measures are consistent with the rights of the accused to have adequate time for the preparation of his defence. The ICTY Appeals Chamber then stated that “[t]here is no rule that the rights of the defence to have adequate time for preparation mandate that delayed disclosure be granted only with reference to the beginning of trial”.[9] It concluded that “[t]he matter rather falls under the discretion of the Trial Chamber”.[10] 

233. On 14 December 2011, the ICTR Appeals Chamber in the Bagosora and Nsengiyumva case held that the trial chamber in that case had erred in ordering the prosecution to disclose the identity of protected victims and witnesses and their unredacted statements no later than 35 days before the expected date of their testimony, rather than prior to trial. In interpreting a provision of the ICTR Rules that was identical to Rule 69(C) of the ICTY Rules, the ICTR Appeals Chamber stated that, while a trial chamber has discretion to order protective measures where it has established the existence of exceptional circumstances, “this discretion is still constrained by the scope of the Rules”.[12] It emphasized that at the time of the trial chamber’s decision in that case, the phrase “prior to the trial” was part of Rule 69(C) of the ICTR Rules. It further stated that it did not consider that the trial chamber’s “disregard for the explicit provision of the Rules was necessary for the protection of witnesses”.[14] It noted a protective measures decision in the Nsengiyumva case prior to the joinder of the two cases[15] in which the trial chamber had ordered the temporary redaction of identifying information until witnesses were brought under the protection of the ICTR, but had nonetheless required that the defence be provided with unredacted witnesses statements within sufficient time prior to the trial.[16] It continued that “[a]t no point did the Trial Chamber indicate that any problems had arisen from this previous arrangement justifying a more restrictive disclosure schedule”.[17]

[…]

235. […] While the ICTR Appeals Chamber stated that a trial chamber’s discretion to order protective measures is constrained by the scope of the Rules, which provided that such disclosure be made “prior to the trial”, it did not rule out a deviation from this requirement for the purposes of a more restrictive disclosure schedule required for the protection of witnesses. Thus, the Appeals Chamber does not consider that the Bagosora and Nsengiyumva Appeal Judgement overruled the Šešelj Decision of 24 January 2008 in which the ICTY Appeals Chamber concluded that the allowance for delayed disclosure until after the commencement of trial falls within a trial chamber’s discretion to allow such protective measures that are necessary for the protection of witnesses, subject to safeguarding the rights of the accused.[19] In this respect the Appeals Chamber notes that the ICTR Appeals Chamber in the Bagosora and Nsengiyumva Appeal Judgement did not refer to the decision of the ICTY Appeals Chamber in the Šešelj case and did not propose to depart from its reasoning. […]