At para. 31, the Appeals Chamber confirmed the Referral Bench’s finding that regardless of the way an accused is transferred to the Tribunal, “transfer pursuant to Rule 11bis would not amount to an extradition stricto sensu”.[1] It held:

31. […] The Referral Bench’s reliance on the Kovačević Decision in support of the proposition that regardless of the manner in which the Appellants were originally transferred to the International Tribunal, referral pursuant to Rule 11bis of the Rules would not amount to an extradition stricto sensu, is correct.[2] Accordingly, the Referral Bench properly concluded that the treaty or national law governing extradition does not apply to prevent the referral of the Appellants’ case pursuant to Rule 11bis of the Rules because, as with the initial transfer of the Appellants to the International Tribunal, their transfer to the State authorities under Rule 11bis is not the result of an agreement between the State and the International Tribunal.[3] The Appeals Chamber recalls that the obligation upon States to cooperate with the International Tribunal and comply with its orders arises from Chapter VII of the United Nations Charter. Accordingly, a State cannot impose conditions on the transfer of an accused, or invoke the rule of specialty or non-transfer concerning its nationals.[4] The referral procedure envisaged in Rule 11bis is implemented pursuant to a Security Council resolution, which, under the United Nations Charter, overrides any State’s extradition requirements under treaty or national law.[5]

At para. 48, the Appeals Chamber held:

The Referral Bench had no obligation to determine which jurisdiction provided guarantees of enforcing the more lenient law on the Appellants in the case of referral; it had only to satisfy itself that there were appropriate provisions —within the legal framework of BiH— to address the criminal acts alleged in the Indictment and that there was an adequate penalty structure in place.

At para. 10, the Appeals Chamber set clearly the standard of review for Rule 11bis motions:

The Appeals Chamber recalls that an appeal pursuant to Rule 11bis(I) of the Rules is more akin to an interlocutory appeal, than to an appeal from judgement.[1] The Appeals Chamber further recalls that a Trial Chamber exercises discretion in different situations, inter alia, when imposing sentence, in determining whether provisional release should be granted, in relation to the admissibility of some types of evidence, in evaluating evidence, and in deciding points of practice or procedure.[2]A decision on whether or not a case should be referred to the authorities of a State which meets the requirements set out in Rule 11bis of the Rules is such a discretionary decision. Under the plain language of Rule 11bis(B), the Referral Bench “may order” referral proprio motu or at the request of the Prosecutor. Thus, where an appeal is brought from a Rule 11bis referral decision, the issue “is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[3] The burden rests upon the party challenging a discretionary decision to demonstrate that the Trial Chamber has committed a “discernible error.”[4] Accordingly, the party challenging a decision pursuant to Rule 11bis of the Rules must show that the Referral Bench misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of its discretion, or that the Referral Bench gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.[5]

See also Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 4 July 2006, para. 6.

9. The Appeals Chamber further observes that Rule 11bis(I) of the ICTY Rules and Rule 14(E) of the MICT Rules expressly provide for an appeal as of right from a decision of a trial chamber on the referral of a case. However, Rule 11bis of the ICTY Rules and Rule 14 of the MICT Rules are silent on appeals from a decision of a trial chamber concerning revocation of a case. Notwithstanding, decisions on revocation concern, among other things, fundamental questions related to whether the Mechanism should exercise jurisdiction over a case and the fairness of the proceedings of the referred case.[1] In the absence of any provision limiting the right of appeal,[2] the Appeals Chamber considers that a decision on whether or not to revoke a case should be subject to appellate review.[3] For reasons of consistency, the Appeals Chamber considers that such appeals should follow the same procedure as provided for in cases involving appeals from decisions on referral set out in Rule 14(E) of the MICT Rules.[4]

7.       Rule 11bis(F) of the ICTY Rules provides:

At any time after an order has been issued pursuant to this Rule and before the accused is found guilty or acquitted by a national court, the Referral Bench may, at the request of the Prosecutor and upon having given to the State authorities concerned the opportunity to be heard, revoke the order and make a formal request for deferral within the terms of Rule 10.

8.       Pursuant to this provision, only the ICTY Prosecution has standing to seek the revocation of a referral made pursuant to Rule 11bis of the ICTY Rules. However, as the matter at hand relates to the fairness of the proceedings, the Appeals Chamber is satisfied that the Referral Bench had inherent jurisdiction to consider a direct request from Stanković for the revocation of his referral.[1]

The Appeals Chamber considered whether the Trial Chamber erred in law by holding that Rwanda’s penalty structure, and, in particular, the possibility of life imprisonment in solitary confinement, did not accord with internationally recognized standards and with the requirements of international law. The Appeals Chamber considered, in particular, whether the Trial Chamber erred in relying on the Abolition of Death Penalty Law, rather than the Transfer Law. The Appeals Chamber held:

19. The Appeals Chamber considers that it is not up to the Trial Chamber to determine how these laws could be interpreted or which law could be applied by Rwandan courts in transfer cases. For the reasons provided above, the Appeals Chamber is of the view that it would be possible for courts in Rwanda to interpret the relevant laws either to hold that life imprisonment with special provisions is applicable to transfer cases, or to hold that life imprisonment without special provisions is the maximum punishment. 

20. Since there is genuine ambiguity about which punishment provision would apply to transfer cases, and since, therefore, the possibility exists that Rwandan courts might hold that a penalty of life imprisonment in isolation would apply to such cases, pursuant to the Abolition of Death Penalty Law, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that the current penalty structure in Rwanda is not adequate for the purposes of transfer under Rule 11bisof the Rules. 

The Appeals Chamber considered whether the Trial Chamber had erred in concluding that Rwanda does not respect the independence of the judiciary and that the composition of the High Court of Rwanda does not accord with the right to be tried by an independent tribunal and the right to a fair trial.  The Appeals Chamber held:

26. While the Appeals Chamber shares the Trial Chamber’s concern about the fact that politically sensitive cases, such as genocide cases, will be tried by a single judge, it is nonetheless not persuaded that the composition of the High Court by a single judge is as such incompatible with Munyakazi’s right to a fair trial. The Appeals Chamber recalls that international legal instruments, including human rights conventions, do not require that a trial or appeal be heard by a specific number of judges to be fair and independent.[1] The Appeals Chamber also notes that the Opinion of the Consultative Council of European Judges, which the Trial Chamber cites in support of its finding,[2] is recommendatory only.[3] There is also no evidence on the record in this case that single judge trials in Rwanda, which commenced with judicial reforms in 2004, have been more susceptible to outside interference or pressure, particularly from the Rwandan Government, than previous trials involving panels of judges.

27. The Appeals Chamber also finds that the Trial Chamber erred in considering that Munyakazi’s right to a fair trial would be further compromised as a result of the limited review powers of the Supreme Court. Article 16 of the Transfer Law provides that appeals may be heard on an error on a question of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. This is not an unusual standard of review in appellate proceedings; it is in fact the applicable standard before this Tribunal.[4] There was also no information before the Trial Chamber that would allow it to conclude that the Supreme Court could not re-examine witnesses or make its own findings of fact.

29. Further, the Appeals Chamber finds that the Trial Chamber erred in considering that there was a serious risk of government interference with the judiciary in Rwanda. The Trial Chamber primarily based its conclusion on Rwanda’s reaction to Jean-Bosco Barayagwiza’s successful appeal concerning the violation of his rights, and the reactions of the Rwandan government to certain indictments issued in Spain and France.[5] However, the Appeals Chamber recalls that the Barayagwiza Decision was issued nine years ago. It notes that the Tribunal has since acquitted five persons, and that Rwanda has not suspended its cooperation with the Tribunal as a result of these acquittals. The Appeals Chamber also observes that the Trial Chamber did not take into account the continued cooperation of the Rwandan government with the Tribunal.[6] The Appeals Chamber also considers that the reaction of the Rwandan government to foreign indictments does not necessarily indicate how Rwanda would react to rulings by its own courts, and thus does not constitute a sufficient reason to find that there is a significant risk of interference by the government in transfer cases before the Rwandan High Court and Supreme Court.

30. The only other information referred to by the Trial Chamber in support of its findings relating to the independence of the Rwandan judiciary was the 2007 United States State Department Report cited by the ICDAA in its amicus curiae brief.[7] However, this report states only in very general terms that there are constraints on judicial independence, and “that government officials had sometimes attempted to influence individual cases, primarily in gacaca cases”.[8] The Trial Chamber did not cite any other information supporting its findings relating to the independence of the judiciary, and, notably, did not refer to any information demonstrating actual interference by the Rwandan government in any cases before the Rwandan courts. Moreover, other evidence submitted by the amicus curiae during the referral proceedings concerning interference with the judiciary primarily involved gacaca cases, rather than the High Court or Supreme Court, which will adjudicate the transfer cases, and failed to mention any specific incidents of judicial interference.[9] The Appeals Chamber therefore finds that, based on the record before it, no reasonable Trial Chamber would have concluded that there was sufficient risk of government interference with the Rwandan judiciary to warrant denying the Prosecution’s request to transfer Munyakazi to Rwanda.

The Appeals Chamber also considered whether the Trial Chamber erred in concluding that Munyakazi’s fair trial right relating to the attendance of witnesses cannot be guaranteed in Rwanda at present.  The Appeals Chamber found with respect to witnesses within Rwanda that:

37.  The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[10] The Trial Chamber noted with particular concern the submission from HRW that at least eight genocide survivors were murdered in 2007, including persons who had, or intended, to testify in genocide trials.[11] There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent.[12] The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.[13] The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or being killed. It therefore finds that the Trial Chamber did not err in concluding that it was unlikely that Defence witnesses would feel secure enough to testify in a transferred case.

38. The Trial Chamber further held that there were concerns with respect to the witness protection program in Rwanda.[14] The Appeals Chamber notes that no judicial system can guarantee absolute witness protection.[15] However, it is not persuaded that the Trial Chamber erred in finding that Rwanda’s witness protection service currently lacks resources, and is understaffed. The Appeals Chamber agrees with the Prosecution that the fact that the witness protection service is presently administered by the Office of the Prosecutor General and that threats of harassment are reported to the police does not necessarily render the service inadequate. However, it finds that, based on the information before it, the Trial Chamber did not err in finding that witnesses would be afraid to avail themselves of its services for this reason.[16]

The Appeals Chamber found with respect to witnesses outside Rwanda:

40. The Appeals Chamber finds that the Trial Chamber did not err in accepting Munyakazi’s assertion that most of its witnesses reside outside Rwanda, as this is usual for cases before the Tribunal, and is supported by information from HRW.[17] The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.[18] It therefore finds that the Trial Chamber did not err in concluding, based on information before it, that despite the protections available in Rwandan law, many witnesses residing abroad would fear intimidation and threats.

41. With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber notes that Rwanda has several mutual assistance agreements with states in the region and elsewhere in Africa, and that agreements have been arranged with other states as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[19] Further, the Appeals Chamber notes that United Nations Security Council Resolution 1503, calling on all states to assist national jurisdictions where cases have been transferred, provides a clear basis for requesting and obtaining cooperation.[20] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to secure the attendance or evidence of witnesses from abroad, or the cooperation of other states.

42. The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, it is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony, and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[21]

43. Considering the totality of the circumstances, although the Appeals Chamber finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to secure the attendance or evidence of witnesses from abroad, or the cooperation of other states, it dismisses this sub-ground of appeal.

The Appeals Chamber therefore held that:

45. [...] the Trial Chamber did not err in concluding that Munyakazi’s right to obtain the attendance of, and to examine, Defence witnesses under the same conditions as witnesses called by the Prosecution, cannot be guaranteed at this time in Rwanda. The Appeals Chamber therefore dismisses this ground of appeal.

5. The Trial Chamber has the discretion to decide whether to refer a case to a national jurisdiction and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.[1] As the Appeals Chamber has previously stated:

An appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

These provisions were reiterated verbatim in two subsequent decisions – The Prosecutor v. Gaspard Kanyarugika, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5 and The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-E11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5.

The Appeals Chamber considered whether the Trial Chamber erred in law when it concluded that, pursuant to Rwandan law, Hategekimana may face life imprisonment in isolation without adequate safeguards, in violation of his right not to be subjected to cruel, inhumane and degrading treatment. The Appeals Chamber noted Rwanda’s submission that its Parliament had recently passed a new law which modifies the Abolition of Death Penalty Law,[1] and that in accordance with Article 1 of this law, life imprisonment with special provisions, which includes solitary confinement, shall not apply to cases transferred from the Tribunal to Rwanda under the Transfer Law.[2]  The Appeals Chamber further noted[3] that Article 1 of the said law provides:

[L]ife imprisonment with special provision as provided for by paragraph one of this article shall not apply to cases transferred to Rwanda from the International Criminal Tribunal for Rwanda and from other States in accordance with the provisions of the [Transfer Law]…

The Appeals Chamber found that:

38.    The Appeals Chamber considers that, should this new law enter into force in its current form, the ambiguity as to the applicable punishment for transfer cases which it noted in the Munyakazi and Kanyarukiga decisions[4] would be resolved. However, there is no information before the Appeals Chamber to indicate that this law has entered into force. The Appeals Chamber is therefore unable to conclude that the ambiguity as to the applicable punishment under Rwandan law for transfer cases has been resolved. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that under Rwanda’s current legal framework, Hategekimana may face life imprisonment in isolation without adequate safeguards, in violation of his right not to be subjected to cruel, inhumane and degrading treatment.[5] The Appeals Chamber therefore dismisses this ground of appeal.

The Appeals Chamber concluded by finding that:

40.    The Appeals Chamber acknowledges the steps which Rwanda has recently taken to clarify the issue of the applicable penalty for transfer cases. However, the Appeals Chamber notes its finding under Ground 2 that the Trial Chamber did not err in concluding that Hategekimana’s right to obtain the attendance of, and to examine, Defence witnesses under the same conditions as witnesses called by the Prosecution cannot be guaranteed at this time in Rwanda. The Appeals Chamber therefore finds that the Prosecution has not shown that the Trial Chamber abused its discretion in denying the request to transfer Hategekimana’s case to Rwanda on the basis that, under the present circumstances, it was not satisfied that he would receive a fair trial in that country.

The Appeals Chamber considered whether the Trial Chamber erred in law and in fact by (1) holding that Hategekimana will not obtain the attendance and examination of Defence witnesses residing inside Rwanda and abroad under the same conditions as witnesses against him; and (2) failing to give equal weight to the monitoring and revocation mechanisms available under Rwandan law as a means to deal with the availability of witnesses, despite doing so elsewhere in the Rule 11bis Decision in regard to other issues.

With regard to witnesses within Rwanda, the Appeals Chamber held:

21.    The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that defence witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[1] The Trial Chamber noted that HRW, ICDAA and Hategekimana provided examples of witnesses who had been threatened or harassed after testifying before the Tribunal as well as ordinary and Gacaca courts in Rwanda.[2] It also noted that some witnesses were arrested or accused in Gacaca proceedings in Rwanda after testifying[3] and that, according to HRW, some witnesses were afraid to testify for fear of prosecution under Rwandan laws concerning genocidal ideology.[4]

22.    The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the defence as a result of the fear that they may face serious consequences, including prosecution, threats, harassment, torture, arrest, or even murder.[5] The Appeals Chamber considers that it was therefore not necessary for the Trial Chamber to satisfy itself that individual Defence witnesses in this particular case are reluctant to testify for these reasons. It consequently finds that the Trial Chamber did not err in concluding that witnesses in Rwanda may be unwilling to testify for the Defence.

23.    The Appeals Chamber further considers that in making its finding on the availability of witnesses, the Trial Chamber did take into account the safeguards in Rwandan law to facilitate or if necessary enforce the attendance of witnesses living in Rwanda and abroad, including immunity and safe passage for defence witnesses. The Trial Chamber explicitly considered Article 14 of the Transfer Law which deals with the assistance and protection of witnesses, including defence witnesses.[6]

As for witnesses outside Rwanda, the Appeals Chamber found that

24.    […] the Trial Chamber did explicitly consider the provisions of Rwandan law relating to measures put into place to facilitate witness protection and safety, including Article 14 of the Transfer Law.[7] The Appeals Chamber further finds that the Trial Chamber did not err in accepting Hategekimana’s assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal.[8] The Trial Chamber also expressly referred to the submissions from HRW in finding that witnesses residing outside Rwanda may be unwilling to travel to Rwanda to testify,[9] and that some Defence witnesses may be prevented from returning to Rwanda to testify, as a consequence of their refugee status.[10] The Appeals Chamber therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, Hategekimana may face difficulties in obtaining the testimony of witnesses living outside Rwanda.

25.    With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber, recalling its findings in Munyakazi and Kanyarukiga, and noting Rwanda’s submissions in this case, finds that Rwanda has several mutual assistance agreements with States in the region and elsewhere in Africa, and that agreements have been negotiated with other States as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[11] Further, the Appeals Chamber reiterates that United Nations Security Council Resolution 1503, calling on all States to assist national jurisdictions where cases have been referred, provides a clear basis for requesting and obtaining cooperation.[12] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters, or to secure the attendance or evidence of witnesses from abroad.

26.    The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person.[13] The Appeals Chamber further notes Rwanda’s submission that this procedure is intended to be an exceptional measure and that the possibility also exists for evidence to be taken abroad.[14] However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony,[15] and that it would be a violation of the principle of equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[16]

With respect to the working conditions for the Defence in Rwanda, the Appeals Chamber held:

21.    The Appeals Chamber notes that it is unclear how the mechanisms of monitoring and revocation under the Rules would constitute sufficient safeguards for the defence with regard to obtaining documents in a timely manner and visiting detainees. The Appeals Chamber further notes that Article 15 of the Transfer Law, while ensuring Defence Counsel and staff the right to enter and move freely within Rwanda and freedom from search, seizure, arrest or detention in the performance of their legal duties, is silent on the issues of obtaining documents from the Rwandan authorities or visiting detainees. Article 13(4) of the Transfer Law, on the other hand, does provide the right of the Accused to adequate time and facilities to prepare his defence, which could constitute the basis for seeking a remedy before the Rwandan courts. As the Trial Chamber did not make any specific finding that such issues could not be so remedied, however, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that defence teams have experienced impediments in obtaining documents from the Rwandan authorities and in meeting witnesses. The Appeals Chamber considers that these obstacles, whilst not sufficient in and of themselves to prevent referral of a case to Rwanda under Rule 11bis, do indicate that working conditions for the defence may be difficult in Rwanda, which in turn has a bearing on the fairness of the trial.

With regard to the issue of whether the Trial Chamber erred in finding that the Defence might face problems in obtaining witnesses residing inside Rwanda because they will be afraid to testify, the Appeals Chamber held:

26.    The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[1] There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent.[2] The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.[3] The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or even murder.[4] It therefore finds that the Trial Chamber did not err in concluding that Kanyarukiga might face problems in obtaining witnesses residing in Rwanda because they would be afraid to testify.

27.    The Appeals Chamber agrees with the Trial Chamber’s conclusion that the fact that the Rwandan witness protection service is administered by the Office of the Prosecutor General and that threats of harassment are reported to the police does not necessarily render it inadequate.[5] However, it finds that, based on the information before it,[6] the Trial Chamber did not err in finding that witnesses would be afraid to avail themselves of its services for these reasons.

The Appeals Chamber also considered whether the Trial Chamber erred in finding that the Defence will not be able to call witnesses residing outside Rwanda, to the extent and in the manner that will ensure a fair trial:[7]

31.    The Appeals Chamber finds that the Trial Chamber did not err in accepting Kanyarukiga’s assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal,[8] and is supported by information from HRW.[9] The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.[10] It therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, it was not satisfied that Kanyarukiga would be able to call witnesses residing outside Rwanda to the extent and in a manner which would ensure a fair trial if the case were transferred to Rwanda.

32.    With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber recalls its finding in Munyakazi that Rwanda has several mutual assistance agreements with states in the region and elsewhere in Africa, and that agreements have been negotiated with other states as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[11] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters that would make it difficult to secure the attendance of witnesses. Further, the Appeals Chamber reiterates that United Nations Security Council Resolution 1503, calling on all states to assist national jurisdictions where cases have been referred, provides a clear basis for requesting and obtaining cooperation.[12] The Trial Chamber took note of the Resolution, but concluded that it was not convinced that it would be in itself sufficient to ensure the availability of Defence witnesses.[13] Given the finding made above as to the likely difficulty that Kanyarukiga would face in bringing witnesses outside Rwanda to testify in view of the genuine fear they harbour, the Appeals Chamber agrees with the Trial Chamber.

33.    The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony,[14] and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[15]

34.    The Appeals Chamber finds that while the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters, the totality of circumstances indicate that the Trial Chamber was correct in concluding that Kanyarukiga would still face significant difficulties in securing the attendance of witnesses who reside outside Rwanda to the extent and in a manner which would jeopardize his right to a fair trial.

35.    The Appeals Chamber therefore finds that, in light of the above, the Trial Chamber did not err in holding, based on the information before it, that if the case were to be transferred to Rwanda, Kanyarukiga might face difficulties in obtaining witnesses residing within Rwanda because they would be afraid to testify, and that he would not be able to call witnesses residing outside Rwanda, to the extent and in a manner that would ensure a fair trial. The Appeals Chamber therefore dismisses this sub-ground of appeal.

At para. 56, the Appeals Chamber also reasoned that it is not for the Referral Bench to determine how the criminal provisions in the Bosnian law will be applied, as this is a matter for the State Court if a case is referred.

See also para. 74:

If, upon referral of a case, a situation arose where counsel representing the accused at the Tribunal could not continue to represent him and where another counsel who did not speak English were assigned to him and there was a need to review materials from other cases (only available in English) for the preparation of his defence, the audiotapes of proceedings could be reviewed, in which case, it would be for the State Court of BiH to adopt the necessary measures and order that the necessary resources are provided to ensure that the accused’s right to have adequate time to prepare a defence is balanced against his right to be tried without undue delay.

The Referral Bench is not legally required to make a finding on whether the funding of the accused’s defence would be adequate to cover the lead counsel’s fees, trial teams, co-counsel and investigations. See para. 56:

56. The Appeals Chamber finds that the Appellant has failed to show that the Referral Bench erred by focusing on whether there was a legal framework in place in BiH. The Referral Bench correctly considered whether it was satisfied that the Appellant would receive a fair trial by establishing that the legislation in BiH allows for adequate time and facilities for the preparation of a defence. That is all it was required to do pursuant to Rule 11bis of the Rules.

15. […] The Appeals Chamber recalls that the existence of a mechanism to monitor Mr. Uwinkindi’s case was an important consideration for the Referral Chamber and the Appeals Chamber in rendering their respective decisions on the referral of Mr. Uwinkindi’s case to Rwanda.[1] The Appeals Chamber also takes note of the Referral Chamber’s statement that “effective monitoring would require the monitoring to begin from the date the case is transferred to the relevant national authority”,[2] and shares the concerns of both Mr. Uwinkindi and the Prosecution that the monitoring mechanism contemplated by the Referral Chamber is not yet in place.[3]

16. In rendering the Decision of 16 December 2011, however, the Appeals Chamber did not assume that such a mechanism was already established, nor did it assume that any final agreement with the [African Commission on Human and Peoples’ Rights (“ACHPR”)] had been reached.[4] To the contrary, the Appeals Chamber specifically noted that the Tribunal lacks the authority to compel an independent organization which is neither a party nor an organ of the Tribunal to conduct monitoring.[5] The Appeals Chamber also explicitly observed that the Referral Chamber “requested the Registrar to enter into a suitable agreement with the ACHPR and to seek further directions from the President of the Tribunal, should the arrangements prove ineffective”.[6] The Appeals Chamber thus contemplated that issues with respect to the establishment and effectiveness of the monitoring mechanism might arise, and that such issues could be resolved through the process envisaged by the Referral Chamber involving consultation with the President of the Tribunal or, if not, “[could] be brought to the attention of the Tribunal for appropriate action”.[7] It follows that it is within the authority of the President of the Tribunal to direct the Registrar to seek other sources of funding to meet the ACHPR’s terms or to make arrangements for an alternative monitoring mechanism, and the Appeals Chamber expects that, in light of the changed circumstances, the President will do so.[8] Based on the foregoing, the Appeals Chamber considers that even if the terms proposed by the ACHPR are currently untenable for the Tribunal and arrangements with the ACHPR may have so far proven ineffective, this does not demonstrate a clear error of reasoning in the Appeals Chamber’s Decision of 16 December 2011.

28. The Appeals Chamber is not convinced that the Referral Chamber erred in failing to address the issue of which party bears the burden of proof, or that it placed an inappropriate burden on the Defence in this respect. In its submissions, the Prosecution acknowledged that it bore the burden of proof to demonstrate that Mr. Uwinkindi’s trial in Rwanda will be fair.[1] The Appeals Chamber considers that, in cases where the Prosecution requests referral, it bears the burden of proof to demonstrate that the conditions set out in Rule 11bis of the Rules are met. However, the Appeals Chamber recalls that a designated trial chamber may also rely on any information and orders it reasonably finds necessary in determining whether the proceedings following the transfer will be fair.[2] A review of the Impugned Decision as a whole reflects that the Referral Chamber correctly regarded the burden of proof as falling on the Prosecution and also acted within its discretion in relying on other information or its own orders to satisfy itself that Mr. Uwinkindi’s trial in Rwanda will be fair.

61. The Appeals Chamber observes that, in assessing the availability of defence witness testimony, the Referral Chamber correctly noted that its role was not to determine whether the witnesses’ fears were well-founded, but instead to focus on the likelihood that Mr. Uwinkindi will be able to secure their appearance on his behalf under the same conditions as those testifying against him.[1] The Appeals Chamber further considers that the Referral Chamber emphasized the need for adequate legal safeguards to address the subjective fears that might discourage witnesses from testifying,[2] and demonstrated awareness of the range of fears expressed by Mr. Uwinkindi’s potential defence witnesses about appearing at a trial in Rwanda. In particular, the Referral Chamber noted that most witnesses feared prosecution under Rwanda’s genocide ideology law, while others feared that they would be killed, abducted, transferred to prisons away from their families, or persecuted in prison as a repercussion for their testimony, or that their family members would be subjected to retaliation.[3]

62. The Appeals Chamber considers that the Referral Chamber acted within its discretion in finding that the recent amendments to relevant laws and enhancements to witness protection services constitute sufficient assurances to address defence witnesses’ concerns and to help secure their appearance. Notably, with regard to securing witnesses’ appearances, the Referral Chamber considered: (i) defence and amicus curiae submissions indicating past cases in which defence witnesses have been subjected to prosecutions, intimidation, and actual or threatened violent reprisals for testifying; and (ii) previous findings by the Appeals Chamber in Rule 11bis decisions confirming fear of these consequences as obstacles to securing defence witness testimony.[4] Despite the similarity between the concerns expressed by defence witnesses in this case and those in previous referral cases, the Referral Chamber acted within its discretion in finding it “logical to assume that with the amendments made to [the Transfer Law] regarding witness immunity, the creation of a new witness protection programme, and the safeguards imposed by the Chamber on Rwanda,” the Appeals Chamber’s previous findings that witnesses may be unwilling to testify are “no longer a compelling reason for denying referral.”[5]

64. The Referral Chamber acted within the scope of its discretion in relying on the existence of such a legal framework as a primary basis for determining whether an accused will be able to secure the attendance of reluctant witnesses.[6] The Appeals Chamber has previously held that a designated trial chamber could reasonably deny referral notwithstanding the existence of this framework, largely due to the specific finding that the accused may face difficulties in securing the attendance of witnesses to the extent that it would jeopardize his right to a fair trial.[7] However, it is equally within the discretion of a trial chamber to find that the ability to compel testimony is a factor which can be taken into account in addressing the subjective fears of defence witnesses. The Appeals Chamber is satisfied that the Referral Chamber had a reasonable basis to conclude that Mr. Uwinkindi will be able to secure the attendance of witnesses.

66. The Appeals Chamber notes, however, that the existence of witness protection services and a regime for obtaining compulsory process is not necessarily a panacea for securing the testimony of defence witnesses who have obtained refugee status in countries outside Rwanda. It would be unreasonable to require refugees, for whom a well-founded fear of persecution upon returning to Rwanda has been determined, to appear as witnesses in Rwanda before the High Court. The Referral Chamber considered, however, that the Transfer Law allows for alternative methods of obtaining testimony from witnesses abroad: by deposition, video-link, or a judge sitting in a foreign jurisdiction.[8] Given the variety of alternative means available under the Transfer Law for securing such testimony, the Appeals Chamber is not convinced that the Referral Chamber committed a discernible error by failing to determine whether video-link was technically feasible in each of the countries where Mr. Uwinkindi’s potential witnesses are located.

67. The Appeals Chamber further notes that it would be a violation of the principle of equality of arms if the majority of defence witnesses appeared by means substantially different from those for the Prosecution.[9] However, the Appeals Chamber notes that Mr. Uwinkindi has not identified how many of his potential witnesses might fall into this category or that it constitutes a sufficiently significant part of his possible evidence. It cannot be said that hearing a portion of evidence from either party by alternative means per se amounts to a violation of an accused’s rights. The relevant inquiry is a fact-based assessment that is best left to a chamber with a fully developed record as to the nature of the evidence against the accused, and with specific knowledge of the nature of the proposed defence case and the relevant sources of evidence.

37. The Appeals Chamber recalls that, in assessing the conditions of detention, a designated trial chamber should ascertain whether the laws governing detention incorporate relevant international standards regarding the treatment of prisoners.[1] In this respect, the Appeals Chamber notes that, in assessing the conditions of detention in Rwanda, the Referral Chamber discussed the guarantee in the Transfer Law[2] that any person transferred would be detained in accordance with the minimum standards of detention adopted by United Nations General Assembly Resolution 43/173, and that the detention would be subject to monitoring by a representative of the Tribunal or the International Committee of the Red Cross.[3] Mr. Uwinkindi has not demonstrated that the Referral Chamber’s consideration of this legal framework was a discernible error.

38. With respect to the monitoring of the detention conditions, the Appeals Chamber finds Mr. Uwinkindi’s assertions unpersuasive. The Appeals Chamber recalls that the conditions of detention are a relevant consideration in assessing the fairness of domestic criminal proceedings.[4] Thus, it was within the inherent authority of the Referral Chamber to extend the monitoring to this aspect of the referral of his case.[5] Mr. Uwinkindi’s challenge to the effectiveness of this monitoring by referring to the finite mandate of the Tribunal fails to account for the role that the International Residual Mechanism for Criminal Tribunals (“Residual Mechanism”) will play in ensuring oversight of referred cases.[6] Moreover, the Appeals Chamber is not satisfied that the Referral Chamber erred in not identifying the measures that would be taken if it received a report of mistreatment, as such measures could only be determined in a specific context.

52. […] the Appeals Chamber takes specific note of the provisions ordered by the Referral Chamber for monitoring the case,[7] and recalls that, should the interpretation of the Transfer Law set forth herein be proven incorrect, the Tribunal in any event retains the right to revoke the reference of this case to the Rwandan courts. In this respect, the Appeals Chamber notes that although the Referral Chamber requested the African Commission on Human and Peoples’ Rights (“ACHPR”) to monitor the referred case and submit reports every three months after its initial report,[8] nothing in the Impugned Decision precludes the ACHPR from making more frequent or interim reports, as appropriate. In this context, the Appeals Chamber considers that the submission of monitoring reports on a monthly basis is warranted until the President of the Tribunal or Residual Mechanism decides otherwise. The Appeals Chamber is confident that, should there be any violation of Mr. Uwinkindi’s fair trial rights, including Mr. Uwinkindi’s rights to call witnesses and to testify on his own behalf, it would be reported forthwith and a request for revocation of the referral would be made immediately.

83. The Appeals Chamber finds no error in the Referral Chamber relying to a considerable degree on the monitoring mechanism it had fashioned in ensuring that Mr. Uwinkindi’s trial will be fair and, if not, that proceedings would be revoked.[9] The Appeals Chamber recalls that a designated trial chamber has the discretion to order monitoring, and that it may take such a mechanism into account in concluding that the trial will be fair.[10] Moreover, the Appeals Chamber considers that a trial chamber has the authority to dictate the scope of the monitoring and the frequency and nature of the reporting.[11]

84. The Appeals Chamber is also satisfied that the Referral Chamber acted within its discretion in ordering the specific scope and guidelines imposed for the ACHPR’s monitoring in this case. Although the Appeals Chamber notes that the Tribunal lacks the authority to compel an independent organization which is neither a party nor an organ of the Tribunal to conduct monitoring,[12] Rule 11bis(D)(iv) of the Rules authorizes a designated trial chamber to order the Registrar to send monitors. In this case, the Referral Chamber specifically requested the Registrar to enter into a suitable agreement with the ACHPR and to seek further directions from the President of the Tribunal, should the arrangements prove ineffective.[13] Therefore, any difference between the monitoring ordered by the Referral Chamber and the initial expression of willingness by the ACHPR to provide monitoring can be resolved during this process or, if not, can be brought to the attention of the Tribunal for appropriate action.

85. […] Finally, the Appeals Chamber considers that Mr. Uwinkindi’s assertion that there are insufficient means by which he can seek revocation fails to appreciate that the Referral Chamber granted him standing to personally request this remedy, and this contention is therefore dismissed.

11..    […] The Appeals Chamber has already decided the issue which is the subject of the present appeal. It explicitly noted that “Rule 11bis of the Rules makes no provision for an accused to request the transfer of his case to a national jurisdiction for trial” and concluded that “[c]onsequently, the remaining Judges were not obliged to take into consideration Mr. Nzirorera’s request to the President pursuant to Rule 11bis of the Rules”.[1] In light of the above, the Appeals Chamber finds that Mr. Nzirorera has no standing to appeal against the Impugned Decision.

The Appeals Chamber held that while not all paramilitary leaders are “most senior leaders”, at least some should be presumed to be:

20. To begin with, the Appeals Chamber rejects the Appellant’s suggestion that the statement by the President of the Security Council[1] precludes the referral of paramilitary leaders as a matter of law.  The Appeals Chamber does not read this statement to bar referral of all cases involving civilian, military, and paramilitary leaders.  Were that to be the case, then the Security Council would not have referenced “most senior leaders” in Resolutions 1503 (2003) and 1534 (2004), but would instead have spoken of all leaders.  Instead, the Appeals Chamber understands the statement of the President of the Security Council simply to indicate that “most senior leaders” may come from positions of civilian, military, or paramilitary leadership (rather than simply from military leadership positions, for example). The reasoning of the Referral Bench was in keeping with this approach, as it plainly recognized that paramilitary leaders could fall within the category of “most senior leaders”.

22. […] the President of the Security Council’s statement did not show an intent for the Tribunal to retain all paramilitary leaders, it certainly gives rise to the inference that the cases of at least some paramilitary leaders should be retained rather than referred.[2]

See infra for the application of these principles to the facts of the case.

9. “The Appeals Chamber recalls that a decision on whether or not a case should be referred to the authorities of a State which meets the requirements set out in Rule 11bis of the Rules is a discretionary one.”[1]  Therefore, “the party challenging a decision pursuant to Rule 11bis of the Rules must show that the Referral Bench misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of its discretion, or that the Referral Bench gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.”[2]

13. The Appeals Chamber further rejects the Appellant’s claim that manipulation of the Indictment by the Prosecution justifies a different approach in this case.  The Appeals Chamber need not address whether or not such manipulation, if proved, would justify a different approach, because here the Appellant fails to offer any credible evidence of manipulation.  In the absence of support for an assertion of manipulation, “the Appeals Chamber takes it for granted that the Prosecution would not seek to influence the proceedings in such a way that by [changing] the charges alleged, this Tribunal would have decided the referral request differently.”

17. […] In the present case, the Appeals Chamber is of the view that the fact that the Prosecution may now possess some evidence suggesting that the Appellant was also involved in the events of Srebrenica is not enough, standing alone, to raise concerns that the Prosecution has withheld charges against the Appellant in order to promote referral.

22. The Appeals Chamber also considers that the Referral Bench placed too much stress on the local character of the Appellant’s crimes.  Of course, this is a relevant factor and in some situations can be a significant one.[1] […] Since the criminal acts of paramilitary leaders are likely to be limited to a municipal (or at most regional) scope, an undue emphasis on geographic scope might thwart the intent of the Security Council that the Tribunal retain jurisdiction over at least the most significant paramilitary leaders.  There is no necessary nexus between, on the one hand, leadership responsibility for the most serious crimes and, on the other hand, a broad geographic area.  […] The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[2]  In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant. 

25. […] As the Referral Bench found, the crimes allegedly committed by the Appellant were grave indeed. They included a number of horrific incidents that resulted in the deaths of a total of more than 150 people – namely, two incidents where Bosnian Muslim men, women, and children were forcibly barricaded into houses that were then set on fire,[1] two incidents in which Bosnian Muslim men were seized and then gunned down along the banks of a river,[2] one incident in which a Bosnian Muslim woman was questioned and then shot repeatedly,[3] and repeated incidents of inhumane acts and cruel treatment aimed at Bosnian Muslim men held at a detention camp.[4] Of course, gravity alone is not dispositive.  The alleged crimes in this case are comparable to those alleged with regard to Paško Ljubičić, an intermediate-level military leader whose case was referred by the Tribunal pursuant to Rule 11bis.[5]  But when the Appellant’s alleged crimes are taken in conjunction with the earlier-discussed role allegedly played by him as a paramilitary leader, this case becomes too significant to be appropriate for referral.  As noted earlier, the Security Council intended for the Tribunal to try top paramilitary leaders[6] and the allegations against the Appellant put him into this category.  In this regard, his case differs substantially from that of Gojko Janković (“Janković”), another paramilitary leader whose case was referred pursuant to Rule 11bis of the Rules.  Although a paramilitary leader, Janković was also acting at an intermediate level within the military hierarchy as a sub-commander of the military police.[7]  Moreover, Janković was charged with crimes in relation to a series of rapes and sexual assaults which, while serious indeed, involved far fewer victims and fewer varied incidents than the charges set out against the Appellant in the Second Amended Indictment.[8]

26.    Indeed, the Prosecution has not identified any paramilitary leader indicted by the Tribunal in whose case the gravity of crimes charged and the level of responsibility of the accused are, when taken in conjunction, as significant as those in the present case.  Nor is the Appeals Chamber aware of any such case, with the possible exception of the indictment issued against the now-deceased Željko Ražnjatović (also known as “Arkan”).[9]  […]

18.     The Referral Chamber transferred Munyarugarama’s case to Rwanda pursuant to Rule 11bis of the ICTR Rules.[1] Rule 11bis of the ICTR Rules allows a designated trial chamber to refer a case to a competent national jurisdiction for trial if it is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. In assessing whether a State is competent within the meaning of Rule 11bis of the ICTR Rules to accept a case from the ICTR, a designated trial chamber must consider whether the accused will be accorded the fair trial rights set out in Article 20 of the ICTR Statute, whether the State in question has a legal framework which criminalizes the alleged conduct of the accused, and whether it provides an adequate penalty structure.[2] The penalty structure within the State must provide an appropriate punishment for the offences for which the accused is charged, and conditions of detention must accord with internationally recognized standards.[3]

19.     In considering an appeal from a decision under Rule 11bis of the ICTR Rules, the Appeals Chamber of the ICTR has stated:

The trial chamber has the discretion to decide whether to refer a case to a national jurisdiction, and the Appeals Chamber will only intervene if the trial chamber’s decision was based on a discernible error. To demonstrate such error, an appellant must show that the trial chamber: misdirected itself either as to the legal principle to be applied or as to the law which is relevant to the exercise of its discretion; gave weight to irrelevant considerations; failed to give sufficient weight to relevant considerations; made an error as to the facts upon which it has exercised its discretion; or reached a decision that was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the trial chamber must have failed to exercise its discretion properly.[4]

The Appeals Chamber of the Mechanism adopts this standard of review in considering the present appeal.

At para. 9, the Appeals Chamber of the ICTR, being seized for the first time of a Rule 11bis motion, applied the standard of review as set out by the ICTY Appeals Chamber.

9. This case is the first involving a referral under Rule 11bis in this Tribunal. However, the ICTY Appeals Chamber has considered referrals to national jurisdictions in cases under a similar legal framework.[1] Such case law is largely applicable in the context of this Tribunal as well. In assessing whether a state is competent within the meaning of Rule 11bis to accept one of the Tribunal’s cases, a designated Trial Chamber must consider whether it has a legal framework which criminalizes the alleged conduct of the accused and provides an adequate penalty structure.[2] The Trial Chamber’s decision on whether to refer a case to a national jurisdiction is a discretionary one, and the Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.[3] Accordingly, an appellant must show that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of its discretion, gave weight to irrelevant considerations, failed to give sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion; or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[4]

5. Rule 115 of the Rules provides for the admission of additional evidence on appeal where a party is in possession of material that was not before the trial chamber and which represents additional evidence of a fact or issue litigated at trial.[1] The Appeals Chamber considers that Rule 115 of the Rules is equally applicable to appeals from referral decisions under Rule 11 bis of the Rules.[2] […]

12.     […] the Trial Chamber’s statement that “the Mechanism’s role is not to act as an independent level of appellate review for the national proceedings, but rather to determine primarily whether the conditions for a fair trial in the domestic jurisdiction no longer exist” is entirely consistent with Article 6(6) of the Statute and Rule 14(C) of the Rules, which govern the Mechanism’s authority to revoke cases referred to national jurisdictions.

[…]

64.     The Appeals Chamber finds that Uwinkindi demonstrates no error in the Trial Chamber’s statement that it was not within its purview to scrutinize the Rwandan legal aid budget, inquire into its sufficiency, or verify its administration and disbursement, particularly in light of the conclusion that the circumstances in Rwanda ensured Uwinkindi’s right to free legal assistance.[1]

11. The Mechanism has the power to prosecute persons who have knowingly and wilfully interfered with the administration of justice by the Mechanism, the ICTY and the ICTR, and to hold such persons in contempt.[44] States are required to cooperate with the Mechanism in the investigation and prosecution of contempt cases and shall comply without undue delay with any order issued by a Single Judge or Trial Chamber, including orders for the surrender or the transfer of the accused to the Mechanism.[45] Before proceeding to try such persons, however, the Mechanism “shall” consider referring a case to the authorities of a competent national jurisdiction, taking into account the interests of justice and expediency.[46] This requirement is mandatory, and the inclusion of this provision in the Statute indicates a strong preference for referral if all relevant conditions are met. Accordingly, the Mechanism may only exercise jurisdiction after it has considered whether the case can be transferred to a national jurisdiction for trial.

12. Articles 6(2) and 12(1) of the Statute provide that a Single Judge may be designated to make this determination.[47] The Single Judge is to consider whether the case should be referred to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept the case and try it.[48]

[…]

14. […] The Appeals Chamber recalls that the Statute explicitly contemplates referral to a State “in whose territory the crime was committed”, without requiring that all the alleged acts, omissions, or effects thereof be committed or sustained in the territory of that State.[53] […] [T]o read the Statute as so requiring would effectively render meaningless the provisions that allow for the referral of contempt cases as the impact of the alleged conduct will always be on proceedings that took place in The Hague or Arusha, while the alleged acts or omissions could be committed anywhere. If that impact is to be determinative, the Mechanism would be precluded from transferring any such case to another State for trial.

[…]

21. […] The Mechanism’s Statute explicitly provides for the referral of contempt cases and requires States to comply with any order for the surrender or the transfer to the Mechanism of any person accused of contempt,[77] whereas the ICTY Statute did not.[78] In light of the specific provisions allowing for referral of contempt cases, the Appeals Chamber considers that where a State expresses a willingness and commitment to try a case over which it has jurisdiction, […] it should be given the opportunity to do so, provided other relevant factors are satisfied.