Referral

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Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

25. In support of their second ground of appeal, the Appellants submit that the Referral Bench “misconstrued” the Defence’s argument that they needed access to findings and evidence from other proceedings before the International Tribunal “arising out of the same alleged criminal enterprise” since they are crucial for the preparation of their defence; they claim that if their case is referred to BiH they will have no access to such materials. [1] First, the Appeals Chamber notes that this argument is not relevant to the present ground of appeal and that no reference to the Appellants’ submissions before the Referral Bench on this issue is provided. If this issue was not raised before the Referral Bench, the Appellants cannot claim that their argument was “misconstrued” or that the Referral Bench failed to address a matter which was not brought before it, thereby committing an error of law or fact. Second, pursuant to Rule 11bis of the Rules, the Referral Bench was not required to consider the Appellants need to access materials from related proceedings before the International Tribunal (for the preparation of their defence) when reaching a determination concerning the assessment of the gravity of the crimes and the level of responsibility of the Appellants. Therefore, the Appellants have failed to show that the Referral Bench erred in law. [W]ith respect to access to confidential materials from related cases before the International Tribunal, defence counsel in a proceeding in BiH, like the BiH Prosecutor, may request that the Prosecutor of the International Tribunal applies to vary protective measures under Rule 75 of the Rules.[2] Thus, the relevant parties to the proceeding in the national jurisdiction – both the Prosecutor and the Appellants – are on equal footing in terms of their ability to gain access to confidential materials from other International Tribunal cases.[3]

[1] Ibid., para. 38.

[2] See Decision on Registrar’s Submission on a Request from the Office of the Chief Prosecutor of Bosnia and Herzegovina pursuant to Rule 33(B), IT-05-8-Misc 2 (6 April 2005). 

[3] Stanković Rule 11bis Appeal Decision [Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005], para. 24; Janković Rule 11bis Appeal Decision [Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005], para. 51.

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Decision on Referral - 07.04.2006 MEJAKIĆ et al.
(IT-02-65-AR11bis.1)

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]

[1] Prosecutor v. Mejakić et al., Case No. IT-02-65-PT, Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11bis with Confidential Annex, Referral Bench, 20 July 2005 (“Impugned Decision”), para. 31, relying on Prosecutor v. Kovačević, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998.

[2] Impugned Decision, para. 31.

[3] Ibid; see also Decision on Joint Defence Motion to Admit Additional Evidence Before the Appeals Chamber pursuant to Rule 115, 16 November 2005, para. 39 (“Mejakić et al. Rule 115 Decision”).

[4] Impugned Decision, para. 31; Mejakić et al. Rule 115 Decision, para. 39.

[5] U.N. Doc. S/Res/1503 (2003) 28 August 2003.

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Decision on Referral - 07.04.2006 MEJAKIĆ et al.
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At para. 24, the Appeals Chamber recalled its finding in the Janković case:

Nothing in Rule 11bis of the Rules indicates that [a] Referral Bench is obliged to consider the gravity of the crimes charged and the level of responsibility of accused in other cases in order to make its referral decision. Although the Referral Bench may be guided by a comparison with an indictment in another case, it does not commit an error of law if it bases its decision on referral merely on the individual circumstances of the case before it.[1]

[1] Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005, (“Janković Rule 11bis Appeal Decision”), para. 26. 

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Decision on Referral - 07.04.2006 MEJAKIĆ et al.
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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.

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Decision on Referral - 07.04.2006 MEJAKIĆ et al.
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32. […] The Referral Bench was entitled to secure the presence of an accused that had been provisionally released in order to deliver its decision on the referral of his case and make sure that the said decision could be implemented. As the Prosecution points out, pursuant to Rule 11bis(H) of the Rules — which states that a Referral Bench shall have the powers of a Trial Chamber under the Rules — the Referral Bench had the power to order the return of Momčilo Gruban.[1]

On the powers of the Referral Bench, see more generally Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras 50 ff (referred to at paras 94 ff. of the present Decision).

[1] Cf. Rule 65(C) and (I).

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Decision on Referral - 07.04.2006 MEJAKIĆ et al.
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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.

[1] Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras 14-16.

[2] Prosecutor v. Slobodan Milošević, Cases Nos.: IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 3.

[3] Ibid., para. 4.

[4] Ibid., para. 5.

[5] Ibid., para. 6; Prosecutor v. Slobodan Milošević, Case No: IT-00-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 10.

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Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

14.     The Appeals Chamber turns first to Stanković’s challenge to the composition of the Referral Bench. Rule 11bis of the ICTY Rules does not require that a request for revocation be considered by a differently composed bench than the one that referred the case to a national jurisdiction. Indeed, Rule 11bis of the ICTY Rules simply refers to the “Referral Bench” throughout, which is defined in Rule 11bis(A) of the ICTY Rules as “a bench of three Permanent Judges selected from the Trial Chambers”. […]

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Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

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]

[1] The Appeals Chamber recalls that decisions taken pursuant to Rule 11bis of the ICTY Rules, and by extension Rule 14 of the MICT Rules, are treated as akin to interlocutory appeals from decisions on preliminary motions challenging jurisdiction. See Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, para. 14.

[2] See, e.g., Rule 80(B) of the MICT Rules (which precludes interlocutory appeals on certain decisions absent certification granted by a trial chamber).

[3] Cf. Ntagerura Appeal Decision, para. 12; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14 (“Rule 75(G) of the Rules, which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the [ICTR] Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal. However, because issues related to access to confidential material by a convicted person concern the important question of balance between the right of the convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses,the Appeals Chamber considers, proprio motu, that an applicant is entitled to challenge a decision by a Trial Chamber, pursuant to Rule 75(G) of the [ICTR] Rules, rendered after the close of trial and appeal proceedings before the Appeals Chamber.”) (internal citation omitted); André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Prosecution’s Notice of Appeal and Scheduling Order, 18 April 2007, paras. 2-4, 8-9 (allowing an appeal from a decision concerning the compensation of an acquitted person and setting out a scheduling order in the absence of procedural rules for disposing of such an appeal). 

[4] See Rule 14(E) of the MICT Rules (“Notice of appeal shall be filed within fifteen days of the decision unless the accused was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the accused is notified of the decision. The appellant shall file an appeal brief within fifteen days after filing the notice of appeal. The opposite Party shall file a response within ten days of the filing of the appeal brief, and the appellant may file a reply within four days of the filing of the response.”).

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Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

12.     Where an appeal is filed against a decision denying a request for revocation of a referral, the issue before the Appeals Chamber is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but whether the Referral Bench has correctly exercised its discretion in reaching that decision.[1] A party challenging such a decision must show that the Referral Bench: (i) 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; (ii) gave weight to irrelevant considerations or failed to give sufficient weight to relevant considerations; (iii) made an error as to the facts upon which it has exercised its discretion; or (iv) 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]

[1] See Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 28 March 2007 (“Kovačević Rule 11bis Decision”), para. 9, citing Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral Under Rule 11bis, 7 April 2006 (“Mejakić et al. Rule 11bis Decision”), para. 10. 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 (“Ljubičić Rule 11bis Decision”), para. 6.

[2] See Uwinkindi Rule 11bis Decision, para. 23; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5, citing The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5; Kovačević Rule 11bis Decision, para. 9; Ljubičić Rule 11bis Decision, para. 6; Mejakić et al. Rule 11bis Decision, para. 10.

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Decision on Denial of Revocation - 21.05.2014 STANKOVIĆ Radovan
(MICT-13-51)

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]

[1] Cf. In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008 (“Ntagerura Appeal Decision”), para. 12 (“The Applicant seeks leave of the Appeals Chamber to appeal against the Decision of the President and the Decision of the Trial Chamber. While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof.”); Miscellaneous-Kabuga Family-01-A, Decision (Appeal of the Family of Félicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002, p. 3 (“CONSIDERING moreover that the action of the Prosecutor was taken pursuant to a Rule made by the Judges and that, by implication, the Judges, through the appropriate mechanism of a Trial Chamber, retain responsibility to review the working of such action […];”). The Appeals Chamber observes, however, that accused before the International Criminal Tribunal for Rwanda (“ICTR”) have been expressly granted standing to seek revocation in the terms of the decisions ordering their referral. See, e.g., Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Uwinkindi Rule 11bis Decision”), paras. 79, 85. The Appeals Chamber observes that Rule 11bis(F) of the ICTR Rules of Procedure and Evidence tracks the language of Rule 11bis(F) of the ICTY Rules quoted above. In addition, Rule 14(C) of the MICT Rules allows the President to assign, proprio motu or at the request of the Prosecution, a trial chamber to decide whether to revoke a request for referral.

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15. Turning to Stanković’s challenges to the Impugned Decision, the Appeals Chamber notes that the Referral Bench considered that Stanković filed the Revocation Request after the Appellate Panel in Bosnia and Herzegovina had affirmed his conviction.[1] The Referral Bench noted, however, that it “may revoke a referral order proprio motu in the circumstance of a grave violation left unchallenged by the Prosecution or untimely submitted”.[2] Thus, having examined Stanković’s submissions, the Referral Bench concluded that:

[i]n the absence of previously unidentified or grave violations of Stanković’s right to a fair trial, the Referral Bench considers that it would be contrary to the intention of Rule 11bis to order a case referred to the authorities of a State to be sent back to the Tribunal after the trial and appeal proceedings have concluded in that State.[3]

16.     The Appeals Chamber notes that Rule 11bis(F) of the ICTY Rules, Article 6(6) of the MICT Statute, and Rule 14(C) of the MICT Rules unequivocally provide that revocation of a referral order may occur only before the accused has been found guilty or acquitted by a national court. As recalled above, the proceedings against Stanković before the courts of Bosnia and Herzegovina were completed in April 2007.[4] The Appeals Chamber further notes that, contrary to Stanković’s submission,[5] the panel of the State Court and the Appellate Panel of Bosnia and Herzegovina were composed of different judges.[6] Therefore, to the extent that Stanković argues that there is no final judgement against him due to irregularities in the composition of the Appellate Panel, his submission is unsubstantiated.

17.     Accordingly, the Appeals Chamber finds that the Referral Bench correctly considered that it would be contrary to the intention of Rule 11bis of the ICTY Rules to revoke a referral order after the legal proceedings in the respective State have been completed. Absent any explicit legal basis for such revocation, the Appeals Chamber finds that it need not consider further whether the Referral Bench committed a discernible error in finding that there were no grounds to revoke the referral of Stanković’s case to the authorities of Bosnia and Herzegovina.

[1] Impugned Decision [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Decision on Radovan Stanković’s Motion of 21 January 2013, 12 June 2013 (confidential)], para. 16.

[2] Impugned Decision, para. 16. See also Impugned Decision, para. 10, citing Prosecutor v. Gojko Janković, Case No. IT-96-23/2-PT, Decision on Gojko Janković’s Motion of 12 April 2010, 21 June 2010, para. 14.

[3] Impugned Decision, para. 16.

[4] See supra, para. 4.

[5] Appeal, para. 15.

[6] See Sixth Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Sixth Progress Report, 20 March 2007], Annex B; Seventh Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Seventh Progress Report, 27 June 2007], Annex B. 

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Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
(ICTR-97-36-R11bis)

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. 

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Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
(ICTR-97-36-R11bis)

4. Rule 11bis of the 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. In assessing whether a state is competent within the meaning of Rule 11bis of the Rules to accept a case from the Tribunal, a designated Trial Chamber must first consider whether it has a legal framework which criminalizes the alleged conduct of the accused and provides an adequate penalty structure.[1] The penalty structure within the state must provide an appropriate punishment for the offences for which the accused is charged,[2] and conditions of detention must accord with internationally recognized standards.[3] The Trial Chamber must also consider whether the accused will receive a fair trial, including whether the accused will be accorded the rights set out in Article 20 of the Tribunal’s Statute (“Statute”).[4] 

These criteria 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. 4 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. 4.

[1] The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on Rule 11bis Appeal, 30 August 2006 (“Bagaragaza Appeal Decision”), para. 9; Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11bis, 7 April 2006 (“Mejakić Appeal Decision”), para. 60.

[2] Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Decision on Referral of Case under Rule 11bis, 17 May 2005 (“Stanković 11bis Decision”), para. 32; Mejakić Appeal Decision, para. 48; Ljubičić Appeal Decision [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. 48.

[3] Stanković Appeal Decision [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005], para. 34; Prosecutor v. Savo Todović, Case No. IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals against Decision on Referral under Rule 11bis, 4 September 2006], para. 99.

[4] The Prosecutor v. Wenceslas Munyeshyaka, Case No. ICTR-2005-87-I, Decision on the Prosecutor’s Request for the Referral of Wenceslas Munyeshyaka’s Indictment to France, 20 November 2007, para. 21; Stanković 11bis Decision, para. 55; Prosecutor v. Zeljko Mejakić et al., Case No. IT-02-65-PT, Decision on Prosecutor’s Request for Referral of Case pursuant to Rule 11bis, 20 July 2005, para. 68.

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Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
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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.

[1] International Covenant on Civil and Political Rights (adopted 19 December, 1966, entered into force 23 March 1976) 999 UNTS 171 (“ICCPR”), Articles 19, 20; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (“ACHPR”), Article 7. Rwanda ratified the ICCPR on 16 April 1975 and the ACHPR on 15 July 1983.

[2] Rule 11bis Decision [Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28 May 2008], para. 47.

[3] Opinion No. 6 (2004)  of the Consultative Council of European Judges (CCJE) to the Attention of the Committee of Ministers of Fair Trial Within a Reasonable Time and Judge’s Role in Trials Taking into Account Alternative Means of Dispute Settlement, CCJE (2004) OP No. 6, 22-24 November 2004, para. 61, referring to Recommendation No. R (87) 18 of the Committee of Ministers of Member States Concerning the Simplification of Criminal Justice (Adopted by the Committee of Ministers on 17 September 1987 at the 410th Meeting of the Ministers’ Deputies), para. III.d.2.

[4] Article 24(1) of the Statute. See also Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006, para. 7, quoting The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases No. ICTR-96-10-A and ICTR-96-17-A, Judgement, 13 December 2004, para. 11 (citations omitted) and para. 8, quoting Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, para. 40 (citations omitted); Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 5. See further Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 21 May 2007, paras. 7, 8; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement, 22 March 2006, para. 8; Prosecutor v. Mitar Vasiljević Case No. IT-98-32-A, Judgement, 25 February 2004, para. 6.

[5] Rule 11bis Decision, paras. 41-46.

[6] The Prosecutor of the Tribunal indicated to the United Nations Security Council on 17 June 2008 that “Rwanda continues to cooperate effectively with the Tribunal”. UN Doc. S/PV.5697, p. 15 and UN Doc. S/PV.5796, p. 11. President Byron also indicated to the United Nations Security Council on 17 June 2008 that “Rwanda has continued to cooperate with the Tribunal by facilitating a steady flow of witnesses from Kigali to Arusha”. UN Doc. S/PV.5697, p. 10.

[7] Rule 11bis Decision, para. 48, fn. 89, referring to Brief of Amicus Curiae, International Criminal Defence Attorneys Association (ICDAA) Concerning the Request for Referral of the Accused Yussuf Munyakazi to Rwanda pursuant to Rule 11bis of the Rules of Procedure and Evidence (“ICDAA Amicus Brief”), para. 8, citing Country US State Department’s Report on Human Practices – 2006, submitted to the United States Congress by Secretary of State Condoleeza Rice, released by the Bureau of Democracy, Human Rights and Labor, March 6, 2007 (“U.S. State Department Report 2007”).

[8] ICDAA Amicus Brief, para. 8, citing U.S. State Department Report 2007.

[9] The amicus curiae brief submitted by HRW refers to interviews with 25 high-ranking Rwandan judicial officials stating that the courts were not independent, but provides no information about the basis for this view, or any cases of actual attempts to interfere with the judiciary. See Brief of Human Rights Watch as Amicus Curiae in Opposition to Rule 11bis Transfer, 17 March 2008 (“HRW Amicus Brief”), para. 51.

[10] HRW Amicus Brief, paras. 89-102; ICDAA Amicus Brief, paras. 83, 85. The Appeals Chamber also notes the case of Aloys Simba v. The Prosecutor, where the Trial Chamber found that the Rwandan authorities had interfered with Defence Witness HBK, resulting in his refusal to testify. See Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, para. 47, referring to The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Judgement, paras. 49-50.

[11] HRW Amicus Brief, para. 96.

[12] HRW Amicus Brief, para. 37.

[13] Rule 11bis Decision, para. 61, referring to HRW Amicus Brief, paras. 30-40.

[14] Rule 11bis Decision, para. 62.

[15] Janković Appeal Decision, para. 49.

[16] ICDAA Amicus Brief, para. 87; HRW Amicus Brief, para. 87.

[17] See HRW Amicus Brief, para. 38. See also footnote 16 of the Response, citing the example of The Prosecutor v. Simeon Nchamihigo, Case No. ICTR-01-63, where 91% of the defence witnesses came from abroad, The Prosecutor v. André Ntagerura, Case No. ICTR-96-10, where 100% of the defence witnesses came from abroad, and The Prosecutor v. Samuel Imanishimwe, Case No. ICTR-97-36, where 100% of the defence witnesses were from abroad.

[18] See HRW Amicus Brief, para. 104, indicating that in interviews with two dozen Rwandans living abroad, no one was willing to travel to Rwanda to testify for the defence. See also the statement by the Rwandan Minister of Justice regarding the immunity for witnesses granted under Article 14 of the Transfer Law, cited in the HRW Amicus Brief at para. 39, and quoted by the Trial Chamber in para. 61 of the Rule 11bis Decision. The Appeals Chamber finds that this statement, which according to HRW, was widely circulated in the diaspora, may contribute to the unwillingness of witnesses residing outside of Rwanda to return to Rwanda to testify. However, the Appeals Chamber finds that the Trial Chamber referred to this quote out of context, as it cited it to demonstrate that the Government would condone the arrests of witnesses who had testified for the Tribunal after their return to Rwanda. The Minister was in fact speaking about the immunity guaranteed under Article 14 of the Transfer Law to witnesses testifying in transfer cases.  Moreover, the Trial Chamber discusses these arrests in the same paragraph as it discusses genocidal ideology, thus implying that defence witnesses who were arrested upon returning to Rwanda after their testimony were arrested for harbouring genocidal ideology. There is no indication that this was the case, and the Minister’s statement did not relate to genocidal ideology.

[19] Rwanda Amicus Brief, para. 23.  Rwanda is a party to the agreement of Mutual Legal Assistance in Criminal Matters of the East Africa Police Chiefs Organisation with many states in the region and elsewhere including Kenya, Uganda, Tanzania, Burundi, Djibouti, Eritrea, Seychelles and Sudan, and has a Mutual Legal Assistance Protocol with states under the Convention Establishing the Economic Community of the Great Lakes Countries (CEPGL).  Rwanda has also negotiated an extradition Memorandum of Understanding with the United Kingdom, and it is cooperating with many justice systems including those of New Zealand, Finland, Denmark and Germany.

[20] Security Council Resolution 1503 states at paragraph 1 that the Security Council “[c]alls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR [...]”. S/RES/1503 (2003). See Stanković Appeal Decision, paragraph 26, where the Appeals Chamber approved of the Trial Chamber’s consideration of Security Council Resolution 1503 and interpreted this paragraph of the resolution as implicitly including cooperation with respect to witnesses.

[21] Rule 11bis Decision, para. 65.

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Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
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30. [....] the Appeals Chamber finds that the Trial Chamber erred in failing to take into account the availability of monitoring and revocation procedures under Rule 11bis(D)(iv) and (F) of the Rules.[1] The Appeals Chamber notes that the Prosecution has approached the African Commission on Human and People’s Rights (“African Commission”), which has undertaken to monitor the proceedings in transfer cases, and monitors could inform the Prosecutor and the Chamber of any concerns regarding the independence, impartiality or competence of the Rwandan judiciary. The Appeals Chamber notes that the African Commission is an independent organ established under the African Charter on Human and Peoples’ Rights and it has no reason to doubt that the African Commission has the necessary qualifications to monitor trials. The Appeals Chamber finds that the Trial Chamber erred in failing to consider this in its assessment.

44. For the reasons already provided under Ground 2 of this decision,[2] the Appeals Chamber considers that the Trial Chamber erred in not taking into account the monitoring and revocation provisions of Rule 11bis(D)(iv) and (F) of the Rules, and the prospect of monitoring by the African Commission, in its assessment of the availability and protection of witnesses.[3] However, the Appeals Chamber finds that this failure did not invalidate the Trial Chamber’s findings on the availability and protection of witnesses.

[1] See Notice of Appeal, paras. 21-24; Appeal Brief, paras. 40-42; Reply, paras. 13, 14, discussed infra, para. 46. See Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11bis(F) “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision [Prosecutor v. Gojko Janković, Case No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis referral, 15 November 2005], paras. 56, 57.

[2] See supra para. 30. See also Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11(F) bis “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision, paras. 56, 57.

[3] See Stanković Appeal Decision, where the Appeals Chamber held at paragraph 52 that it was satisfied that the monitoring procedures and the revocation mechanism under Rule 11(F) bis “was a reasonable variable for the Referral Bench to have included in the Rule 11bis equation”. See also Janković Appeal Decision, paras. 56, 57.

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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.

[1] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

[2] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

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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.

[1] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

[2] Bagaragaza Appeal Decision, para. 9. See also Ljubičić Appeal Decision, para. 6.

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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.

[1] See Rwanda Amicus Brief, para. 2 fn. 3. The Appeals Chamber notes Rwanda’s statement therein that this law has not yet officially entered into force. See also Annex 1.

[2] Rwanda Amicus Brief, para. 2.

[3] See Appeal Decision, para. 37.

[4] See Munyakazi Appeal Decision, paras. 16-20; Kanyarukiga Appeal Decision, paras. 12-16. See also The Prosecutor v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-R11bis, Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, 17 November 2008, para. 87.

[5] See Tubarimo Aloys v. The Government, Case. No. RS/INCONST/Pén. 0002/08/CS, 29 August 2008, para. 36 of the English translation of the Decision. The Supreme Court held that the imposition of periods of solitary confinement is not per se unlawful, but must be implemented in accordance with international standards and proper safeguards. Legislation governing the implementation of solitary confinement has not yet entered into force. The Supreme Court therefore held that it could not repeal Article 4 paragraph 2 “before the law governing the execution of this sentence [of solitary confinement] comes into force, which will make it clear, whether solitary confinement contravenes the Constitution”. See also Kanyarukiga Appeal Decision, para. 15.

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The Appeals Chamber considered whether the Trial Chamber erred in denying referral of Hategekimana’s case on the basis that Rwandan law does not recognise command responsibility. The Appeals Chamber noted Rwanda’s submission that command responsibility is recognised by Rwandan law,[1] and held that:

12.    In light of Rwanda’s submissions, the Appeals Chamber is satisfied that command responsibility is recognized under Rwandan law, in particular the Gacaca Law and the Organic Law No. 33bis/2003, and that the Trial Chamber therefore erred in assuming that Rwandan law does not recognize command responsibility, or that it did not do so at the time relevant to the Amended Indictment. Hategekimana’s submission that the Genocide Law had no legal effect at the time when the Trial Chamber was seized of the Referral Request is thus of limited utility, since it was open to the Trial Chamber to consider Article 53 of the Gacaca Law and the Organic Law No. 33bis/2003. Accordingly, the Appeals Chamber finds that the Trial Chamber, which was aware of the Gacaca Law[2] and had information before it as to the existence of the Organic Law No. 33bis/2003,[3] erred in failing to consider these laws when making its findings on this issue. The Appeals Chamber further notes that the Trial Chamber held that it was not satisfied that Rwanda’s legal framework “criminalizes command responsibility”[4] and that it was “not satisfied that there is an adequate legal framework under Rwandan law which criminalizes Mr. Hategekimana’s alleged conduct.”[5] The Appeals Chamber finds the Trial Chamber’s holdings in this respect to be somewhat confusing, in that they could be interpreted as characterizing command responsibility as a “crime” rather than as a mode of individual criminal responsibility incurred by a superior for failure to prevent or punish certain criminal acts, as enumerated in the Statute, which were committed by his or her subordinates. 

13.    The Appeals Chamber accordingly grants this ground of appeal.

[1] See Appeal Decision, para. 11. See also Rwanda Amicus Brief, paras. 8, 9.

[2] Rule 11bis Decision, paras. 15, 17, 72, 74. See also para. 65.

[3] HRW Amicus Brief, paras. 22, 32.

[4] Rule 11bis Decision, para. 78(i).

[5] Rule 11bis Decision, para. 19.

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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]

[1] Request for Permission to Appear as Amicus Curiae Pursuant to Rule 74 of the ICTR Rules of Procedure and Evidence on behalf of Human Rights Watch, 27 February 2008, paras. 89-94, 97-102 (“HRW Amicus Brief”); Further Submissions as Amicus Curiae in Response to Queries from the Chamber on Behalf of Human Rights Watch, 10 April 2008, paras. 7-11 (“HRW Further Submissions”); Brief of Amicus Curiae International Criminal Defence Attorneys Association (ICDAA) Concerning the Request for Referral of Idelphonse [sic] Hategekimana to Rwanda Pursuant to Rule 11bis of the Rules of Procedure and Evidence, 4 April 2008, paras. 100-126, 131 (“ICDAA Amicus Brief”). See also Kanyarukiga Appeal Decision, para. 26; Munyakazi Appeal Decision, para. 37.

[2] Rule 11bis Decision, para. 63.

[3] Rule 11bis Decision, paras. 63, 65.

[4] Rule 11bis Decision, para. 66, citing HRW Further Submissions, paras. 22-25. See also Rule 11bis Decision, para. 63.

[5] Rule 11bis Decision, para. 67; ICDAA Amicus Brief, paras. 100-126, 131; HRW Amicus Brief, paras. 89-94, 97-102; HRW Further Submissions, paras. 7-11. See also Munyakazi Appeal Decision, para. 37; Kanyarukiga Appeal Decision, para. 26.

[6] Rule 11bis Decision, para. 62.

[7] See supra para. 22.

[8] See Munyakazi Appeal Decision, para. 40; Kanyarukiga Appeal Decision, para. 31.

[9] Rule 11bis Decision, para. 68, citing HRW Amicus Brief, paras. 38-40.

[10] Rule 11bis Decision, para. 68.

[11] Munyakazi Appeal Decision, para. 41; Kanyarukiga Appeal Decision, para. 32. See also Rwanda Amicus Brief, para. 7(a).

[12] Munyakazi Appeal Decision, para. 41; Kanyarukiga Appeal Decision, para. 32. Security Council Resolution 1503 states at paragraph 1 that the Security Council “[c]alls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR [...]”. S/RES/1503 (2003). See Stanković Appeal Decision, para. 26, where the Appeals Chamber approved of the Trial Chamber’s consideration of Security Council Resolution 1503 and interpreted this paragraph of the resolution as implicitly including cooperation with respect to witnesses.

[13] See also Munyakazi Appeal Decision, para. 42; Kanyarukiga Appeal Decision, para. 33.

[14] Rwanda Amicus Brief, para. 7(b).

[15] Rule 11bis Decision, para. 70. See also Munyakazi Appeal Decision, para. 42; Kanyarukiga Appeal Decision, para. 33.

[16] Rule 11bis Decision, para. 70. See also Munyakazi Appeal Decision, para. 42; Kanyarukiga Appeal Decision, para. 33.

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Decision on Referral - 30.10.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

The Appeals Chamber considered whether the Trial Chamber erred in holding that the current penalty structure in Rwanda was not adequate for the purposes of transfer under Rule 11bis of the Rules. The Appeals Chamber considered, in particular, the Trial Chamber’s finding that the relationship between the Abolition of Death Penalty Law and the Transfer Law was unclear, such that there was a risk that Kanyarukiga, if transferred and convicted, might be subject to imprisonment in isolation.[1] The Appeals Chamber recalled its findings in the Munyakazi case on this issue, and found that:

12.    In Munyakazi, the Appeals Chamber already ruled that it is unclear how these two laws will be interpreted by the Rwandan courts,[2] which could construe them as either holding that imprisonment with special provisions is applicable to transfer cases, or that life imprisonment without special provisions is the maximum punishment.[3] There are no reasons to depart from these findings. [...]

15.    The Appeals Chamber further recognizes that the punishment of solitary confinement may constitute a violation of international standards if not applied as an exceptional measure which is necessary, proportionate, restricted in time and includes minimum safeguards.[4] However, it observes that there was no information before the Trial Chamber that Rwandan law provides for such safeguards.[5]

16.    Since there is genuine ambiguity about which punishment provision would apply to transfer cases,[6] 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,[7] 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 11bis of the Rules. 

[1] Rule 11bis Decision [Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 6 June 2008], para. 96.

[2] Munyakazi Appeal Decision [The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecutor’s Appeal against Decision on Referral under Rule 11bis, 9 October 2008], para. 16.

[3] Munyakazi Appeal Decision, para. 19.

[4] See Ramirez Sanchez v. France, European Court of Human Rights, Grand Chamber (GC), App. No. 59450/00, Judgement, 4 July 2006, paras. 121, 136, 145; Inter-American Court of Human Rights: Case of Castillo Petruzzi et al. v. Peru, Judgement (Merits, Reparations and Costs), 30 May 1999, Series C, No. 52, paras. 194-199; Case of Miguel Castro-Castro Prison v. Peru, Judgement, 25 November 2006, Series C, No. 160, para. 315; Case of García Asto and Ramirez Rojas, Judgement, November 25 2005, Series C, No. 137, para. 221; Case of Raxacó Reyes, Judgement, 15 September 2005, Series C, No. 133, para. 95; Case of Fermín Ramírez, Judgement of 20 June 2005, Series C, No. 126, para. 118. Concluding Observations of the Human Rights Committee: Denmark, 31 October 2000, UN Doc. CCPR/CO/70/DNK; UN Committee against Torture (CAT), Conclusions and Recommendations of the Committee against Torture: Japan, 3 August 2007, UN Doc. CAT/C/JPN/CO/1, para. 18. The Trial Chamber noted in the Rule 11bis Decision that “it is common ground that prolonged solitary confinement may constitute a violation of Article 7 of the ICCPR and other instruments prohibiting torture and inhuman and degrading treatment or punishment”. The Trial Chamber further found that the parties did not address this issue. See Rule 11bis Decision, para. 95 and fn. 130.

[5] See Tubarimo Aloys Decision, supra fn. 37.

[6] Munyakazi Appeal Decision, para. 20.

[7] Munyakazi Appeal Decision, para. 20.

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Decision on Referral - 30.10.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

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.

[1] Brief of Human Rights Watch as Amicus Curiae in Opposition to Rule 11 bis Transfer, 27 February 2008 (“HRW Amicus Brief”), paras. 89-102; Brief of Amicus Curiae, International Criminal Defence Attorneys Association (ICDAA) Concerning the Request for Referral of the Accused Gaspard Kanyarukiga to Rwanda pursuant to Rule 11bis of the Rules of Procedure and Evidence (“ICDAA Amicus Brief”), paras. 87, 89. See also Munyakazi Appeal Decision, para. 37.

[2] HRW Amicus Brief, para. 37.

[3] Rule11bis Decision, para. 72, referring to HRW Amicus Brief, paras. 30-40.

[4] See also Munyakazi Appeal Decision, para. 37.

[5] See also Munyakazi Appeal Decision, para. 38.

[6] ICDAA Amicus Brief, para. 85; HRW Amicus Brief, para. 87.

[7] Rule 11bis Decision, para. 81.

[8] Munyakazi Appeal Decision, para. 40.

[9] See HRW Amicus Brief, para. 38.

[10] See HRW Amicus Brief, para. 10, indicating that in interviews with two dozen Rwandans living abroad, no one was willing to travel to Rwanda to testify for the defence. See also the statement by the Rwandan Minister of Justice regarding immunity for witnesses granted pursuant to Article 14 of the Transfer Law, cited in the HRW Amicus Brief at para. 39, and quoted by the Trial Chamber in fn. 107 of the Rule 11bis Decision. The Appeals Chamber finds that this statement, which according to HRW, was widely circulated in the diaspora, may contribute to the unwillingness of witnesses residing outside of Rwanda to return to Rwanda to testify. See also Munyakazi Appeal Decision, para. 40.

[11] Munyakazi Appeal Decision, para. 41. See Rwanda Amicus Brief, para. 10, referring to Rwanda Amicus Brief (Munyakazi), para. 23. Rwanda is a party to the agreement of Mutual Legal Assistance in Criminal Matters of the East Africa Police Chiefs Organisation with many states in the region and elsewhere including Kenya, Uganda, Tanzania, Burundi, Djibouti, Eritrea, Seychelles and Sudan, and has a Mutual Legal Assistance Protocol with states under the Convention Establishing the Economic Community of the Great Lakes Countries (CEPGL). Rwanda has also negotiated an extradition Memorandum of Understanding with the United Kingdom, and it is cooperating with many justice systems including those of New Zealand, Finland, Denmark and Germany.

[12] Munyakazi Appeal Decision, para. 41. Security Council Resolution 1503 states at paragraph 1 that the Security Council “[c]alls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR [...]”, S/RES/1503 (2003). See Stanković Appeal Decision, para. 26, where the Appeals Chamber approved of the Trial Chamber’s consideration of Security Council Resolution 1503 and interpreted this paragraph of the resolution as implicitly including cooperation with respect to witnesses.

[13] Rule 11bis Decision, fn. 109.

[14] See also Munyakazi Appeal Decision, para. 42.

[15] Rule 11bis Decision, paras. 79, 80. See also Munyakazi Appeal Decision, para. 42.

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Decision on Referral - 30.10.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

The Appeals Chamber also considered whether the Trial Chamber erred in failing to give sufficient weight to the monitoring of proceedings in Rwanda by the African Commission on Human and People’s Rights (“African Commission”) and the remedy of revocation, which the Prosecution contends, sufficiently protects Kanyarukiga’s right to a fair trial. The Appeals Chamber opined:

38.    The Appeals Chamber finds that the Trial Chamber considered and gave sufficient weight to the information concerning the proposed monitoring system and the remedy of revocation. It further agrees that, while the African Commission indeed has the necessary qualifications to monitor trials,[1] these procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses. Furthermore, the Appeals Chamber notes that both the decision to send monitors and the right to request a Trial Chamber to consider revocation lie within the sole discretion of the Prosecution.[2] Therefore, the Accused would not be able himself to trigger the operation of these “remedies”. The Appeals Chamber thus finds no error in the Trial Chamber’s conclusion in this regard.

[1] Munyakazi Appeal Decision, para. 30.

[2] Rule 11bis (D) (iv) and (F) of the Rules.

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Decision on Referral - 04.09.2006 TODOVIĆ & RAŠEVIĆ
(IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2)

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.

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Decision on Referral - 04.09.2006 TODOVIĆ & RAŠEVIĆ
(IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2)

Savo Todović’s appeal against the Referral Bench’s 31 May 2006 decision (“Second Impugned Decision”), was largely based on a report by the OSCE  Mission to BiH on the proceedings in the Janković case transferred to the State Court pursuant to Rule 11bis, last November.[1] To sum up, the OSCE Report:

(a)  raises concerns related mainly to the “Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use of Evidence Collected by ICTY in Proceedings before the Courts in BiH” (“Law on Transfer”) regarding provisions on the procedure for adapting the ICTY indictment and for reviewing pre-trial custody during the pre-adaptation period;

(b)  provides an assessment of the practice of the State Court and the Appellate Panel,  vis-à-vis Article 5 of the European Convention on Human Rights (“ECHR”); 

(c)  makes recommendations to the legislative authorities on specific amendments to the Law on Transfer;

(d)  makes recommendations to the judges dealing with transferred cases regarding the interpretation of applicable law, and

(e)  makes recommendations to the BiH Prosecutor regarding motions for pre-trial custody.

The OSCE Report is critical of the State Court’s decision to give primacy to the ICTY orders on detention on remand, and the Appellate Panel’s practice of “rubber-stamping” first instance decisions when examining appeals on detention. Hence, the OSCE Report concludes that after examining the State Court’s practice through the prism of international human right standards, Janković’s right to have a judicial authority review his detention during the adaptation period according to Article 5(3) of the ECHR, has been breached.

Noting that the OSCE report makes recommendations under Article 5 of the ECHR, which provides for the right to liberty and security of person, rather than Article 6 of the ECHR with respect to the right to a fair trial, the Appeals Chamber’s decision concludes that the OSCE report does not provide concrete reason to believe that Todović will receive an unfair trial in BiH; emphasizes the seriousness of the concerns raised by the OSCE; acknowledges the importance of the role played by this organisation in the monitoring of the proceedings in cases transferred by the International Tribunal to the Sate Court of BiH, and encourages the competent authorities in BiH to follow the recommendations made by the OSCE concerning judicial practice and the amendment of legal provisions.

See paras 112-124, and in particular the following paragraphs:

118.    The Appeals Chamber finds that the OSCE raises very legitimate concerns with regard to the Law on Transfer as well as Article 132(1)(d) of the BiH CPC. Nevertheless, it finds that the Referral Bench did not abuse its discretion in considering that overall, the BiH laws applicable to the Appellant still provide an adequate legal basis to ensure compliance with the requirement for a fair trial, which includes ensuring rights of an accused while in detention, and the Appeals Chamber does not read the OSCE April 2006 Report as asserting the contrary.[2] However, the Appeals Chamber has no doubt that the competent authorities of BiH will seriously take into consideration the OSCE’s recommendation to strengthen this legal basis by making certain amendments to the Law on Transfer, as well as to  Article 132(1)(d) of the BiH CPC.

119.    With regard to the OSCE’s recommendations on the interpretation and application of applicable law to pre-trial detention vis-à-vis proper judicial review of pre-trial custody conditions by the State Court, the Appeals Chamber does not yet consider that the OSCE’s findings with regard to the Stanković and Janković cases, constitute evidence of an ongoing practice of “rubber stamping” by the Appellate Panel of the State Court when examining appeals of first instance decisions on pre-trial detention. Nevertheless, the Appeals Chamber agrees with the OSCE that the failure of preliminary hearing Judges and the Appellate Panel to consider the merits of complaints made by Stanković and Janković during the pre-adaptation of the indictment phase primarily on the basis of the primacy of the International Tribunal’s Order on Detention on Remand, does not constitute meaningful judicial review of complaints as to pre-trial detention conditions. That being said, the Appeals Chamber emphasizes that despite the failure by the preliminary Judges and the Appellate Panel to apply the relevant provisions in those cases, the Referral Bench did not abuse its discretion in finding that there exists a satisfactory legal framework in BiH to ensure the respect of the rights of an accused in pre-trial custody. The Appeals Chamber reiterates that it expects that the State Court will adhere to the recommendations of the OSCE and will therefore apply those provisions in the BiH laws guaranteeing the rights of an accused in pre-trial custody in such a way as to actually guarantee those rights.  

[1] See Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-PT, Prosecutor’s Second Progress Report, 3 May 2006, Annex A, “First Report Case of Defendant Gojko Janković Transferred to the State Court pursuant to Rule 11bis” OSCE Mission to Bosnia and Herzegovina, April 2006 (“OSCE Report”).

[2] See Prosecutor v. Gojko Janković, Case No.: IT-96-23/2-PT, Prosecutor’s Second Progress Report, 3 May 2006, para. 6. The Appeals Chamber notes that the Prosecution stated that it considered that the procedural issues identified by the OSCE, which were related primarily to the application of international human right standards, did not appear to affect Gojko Janković’s right to a fair trial.

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Decision on Referral - 04.09.2006 TODOVIĆ & RAŠEVIĆ
(IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2)

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.

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Referral Decision - 23.02.2006 TODOVIĆ Savo
(IT-97-25/1-AR11bis.1)

In the present case, the Referral Bench decided upon a motion for referral on the basis of a proposed amended indictment which was challenged by the Accused.

The Referral Bench had considered that it could base its decision on the proposed amended indictment without prejudice to the Accused, apparently because it found that the indictment was based on the same facts but was only reducing the charges. The Appeals Chamber considered that this was an error of law as the indictment was not the operative indictment:

14. While the Impugned Decision was taken on the basis that no prejudice would accrue to the Appellant, the Appeal Chamber considers that the fact that the Referral Bench based the Impugned Decision on an indictment, which was subject to challenge by the Appellant before the Trial Chamber and yet to be accepted by the Trial Chamber as the operative indictment, was an error of law invalidating the Impugned Decision […].

The Appeals Chamber gave two reasons: (1) the Referral Bench pre-judged the Trial Chamber’s decision on the proposed amended indictment (para. 14); (2) in BIH, criminal prosecution can only be initiated once the indictment has been confirmed by the International Tribunal (paras 15-17).

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Reconsideration Decision - 23.02.2012 UWINKINDI Jean
(ICTR-01-75-AR11bis)

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.

[1] See, e.g., Decision of 16 December 2011, paras. 52, 83-85, 87; [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 28 June 2011 (“Decision of 28 June 2011”)], paras. 35, 43, 60, 132, 146, 159, 169, 196, 208-216.

[2] Decision of 28 June 2011, para. 216.

[3] See, e.g., Uwinkindi Motion, para. 17; Response and Prosecution Motion, para. 2; Uwinkindi Reply, para. 3. See generally [Supplmentary [sic] Submissions to the Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda, 16 February 2012 (confidential)].

[4] See Decision of 16 December 2011, para. 84.

[5] Decision of 16 December 2011, para. 84.

[6] Decision of 16 December 2011, para. 84 (emphasis added).

[7] Decision of 16 December 2011, para. 84.

[8] While the Decision of 28 June 2011 specifically referred to the ACHPR as the monitor for Mr. Uwinkindi’s case, for the reasons already indicated, the Appeals Chamber is not persuaded that the appointment of alternative observers to monitor the proceedings in Rwanda violates that Decision as affirmed by the Decision of 16 December 2011. 

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Reconsideration Decision - 23.02.2012 UWINKINDI Jean
(ICTR-01-75-AR11bis)

9. Mr. Uwinkindi seeks either review or reconsideration of the [Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Decision of 16 December 2011”)], a request which he acknowledges is without precedent with regard to a decision under Rule 11bis of the Rules.[1] […]

10. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and by Rules 120 and 121 of the Rules.[2] The Appeals Chamber considers that only a final judgement – a decision which puts an end to proceedings – can be reviewed pursuant to Article 25 of the Statute and Rule 120 of the Rules.[3] Accordingly, the Decision of 16 December 2011 is not subject to review.

11. As Mr. Uwinkindi acknowledges,[4] the Appeals Chamber considers that an appeal pursuant to Rule 11bis of the Rules is more akin to an interlocutory appeal than to an appeal from judgement.[5] The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice”.[6] Accordingly, the Appeals Chamber will proceed to consider the Uwinkindi Motion as a request for reconsideration.

15. The Appeals Chamber finds that Mr. Uwinkindi has not demonstrated a clear error of reasoning in the Decision of 16 December 2011 warranting reconsideration. […]

[1] [Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda, 25 January 2012 (“Uwinkindi Motion”)], paras. 1, 21, 22; [Defence Reply to Opposition to Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Motion to Vacate Interim Order, 7 February 2012 (“Uwinkindi Reply”)], paras. 6, 7.

[2] See François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011, para. 9 (and references therein).

[3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 juillet 2000 et réparation pour abus de procédure, 23 June 2006, para. 21; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (English translation of the French original filed on 7 April 2000), para. 49; Rule 120(A) of the Rules.

[4] See Uwinkindi Reply, para. 6 (“Rule 11bis proceedings are strictly speaking interlocutory in nature.”). Mr. Uwinkindi contends, however, that such decisions have a “far greater element of finality” than other interlocutory proceedings, given the unlikelihood that revocation would ever be ordered. See Uwinkindi Reply, para. 6. The Appeals Chamber considers that this point of distinction is speculative and, in any event, inconsistent with the Appeals Chamber’s explicit provision for the case to remain trial ready at the Tribunal in the event of any possible revocation. See Decision of 16 December 2011, para. 88. See also, e.g., The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11 Bis (F) & (G), 17 August 2007, p. 5 (disposition) (revoking referral of a case to the Kingdom of the Netherlands).

[5] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras. 14-16, cited with approval in The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on the Prosecution’s Request for a Scheduling Order, 8 June 2006, paras. 3, 4.

[6] Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203 (internal quotation marks omitted). See also, e.g., Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3 (and references therein).

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Referral Decision - 16.12.2011 UWINKINDI Jean
(ICTR-01-75-AR11bis)

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.

[1] [Prosecutor’s Response Brief, 28 September 2011 (“Response Brief”)], para. 10.

[2] Stanković Appeal Decision, para. 50. See also Impugned Decision, para. 16.

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50. The parties do not dispute that, on its face, Article 59 of the [Rwandan Code of Criminal Procedure (“RCCP”)] could bar the presentation of evidence by an accused or any defence witnesses who are suspected of involvement in an offence.[1] The Appeals Chamber notes, however, that the Referral Chamber interpreted Article 59 of the RCCP as being inconsistent with Article 13(10) of the Transfer Law and therefore inapplicable in any case transferred to Rwanda by the Tribunal pursuant to Article 25 of the Transfer Law. Implicit in this ruling is the Referral Chamber’s conclusion that, in light of the Transfer Law, Mr. Uwinkindi would not be precluded from presenting the evidence of a witness suspected of involvement in an offence or presenting evidence on his own behalf. In this respect, the Appeals Chamber recalls that the Rules of the Tribunal guarantee an accused the right to appear as a “witness” in his own defence.[2] It further notes that parties before the Tribunal are permitted to, and do, rely on accomplice witnesses or other witnesses who are suspected of being involved in the commission of crimes.[3]

51. The Appeals Chamber observes that the Transfer Law is not as clear as it could be in relation to the right of all parties to present evidence of witnesses without limitation in any referred case, and notes that Article 59 of the RCCP is ambivalent as to whether the proscription it contains applies equally to witnesses called by prosecutors in Rwanda. The Appeals Chamber is nonetheless satisfied that it was within the discretion of the Referral Chamber to conclude that Article 59 of the RCCP would not be applied in any referred case and that the Transfer Law guaranteed the accused the requisite fair trial rights with regard to the presentation of witness evidence.

[1] See [Defence Reply to the Prosecutor’s Response Brief to the Defence Appeal Brief Against the Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, 4 October 2011 (“Reply Brief”)], paras. 22, 23; Response Brief, para. 33.

[2] Rule 85(C) of the Rules. See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, para. 27; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006, paras. 19, 22.

[3] See Impugned Decision, para. 39. Cf. Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-01-63-A, Judgement, 18 March 2010, paras. 42-48.

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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.

[1] Impugned Decision, paras. 85, 90.

[2] Impugned Decision, para. 103.

[3] Impugned Decision, paras. 88-90.

[4] Impugned Decision, paras. 99, 100.

[5] Impugned Decision, para. 100.

[6] Cf. Stanković Appeal Judgement, para. 26.

[7] See [The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008], paras. 22-25, 30.

[8] See Impugned Decision, paras. 109, 112, 113.

[9] See [The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 9 October 2008], para. 42.

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71. The Appeals Chamber recalls that a Referral Chamber must “satisf[y] itself that the State would supply defence counsel to accused who cannot afford their own representation” and is “not obligated […] to itemize the provisions of the [State’s] budget” once it has learned there is financial support for that representation.[1] The Referral Chamber explicitly noted that: the Transfer Law guarantees an indigent accused the right to legal aid;[2] Rwanda has budgeted funds for this purpose;[3] and this was all that the Referral Chamber was required to consider in finding that Mr. Uwinkindi would be guaranteed adequate representation.[4] The Appeals Chamber can also identify no error in the Referral Chamber’s reliance on the provisions of the Transfer Law in addressing Mr. Uwinkindi’s concerns related to the difficulties of working in Rwanda.[5]

[1] See Stanković Appeal Decision, para. 21.

[2] Impugned Decision, para. 135, citing Article 13(6) of the Transfer Law.

[3] Impugned Decision, para. 141.

[4] Impugned Decision, para. 144.

[5] See Impugned Decision, paras. 152-161. The Appeals Chamber notes that the examples cited by Mr. Uwinkindi are not related to trials conducted in accordance with the Transfer Law and its accompanying immunities and protections. The Appeals Chamber further considers that Mr. Uwinkindi’s suggestion that the Transfer Law would not be applied in practice is purely speculative and is dismissed. See [Defence Appeal Brief Against the Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, 8 September 2011], paras. 67, 68.

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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.

[1] See Janković Appeal Decision, paras. 74, 75.

[2] The Appeals Chamber observes that there are two laws relevant to the transfer of cases from the Tribunal to Rwanda. The first law was adopted in March 2007. See Organic Law No 11/2007 of 16/03/2007 Concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (“2007 Transfer Law”). Certain provisions of the 2007 Transfer Law were modified in May 2009. See Organic Law No 03/2009/OL. of 26/05/2009 Modifying and Complementing the Organic Law No 11/2007 of 16/03/2007 Concerning the Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and Other States (“2009 Amendment”). The Appeals Chamber will refer to these provisions collectively as the “Transfer Law”.

[3] Impugned Decision [The Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-R11bis, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda, 28 June 2011], para. 58. See also 2007 Transfer Law, art. 23.

[4] Stanković Appeal Decision, para. 34.

[5] See Stanković Appeal Decision, para. 50 (“The question, then, is how much authority the Referral Bench has in satisfying itself that the accused will receive a fair trial. In the view of the Appeals Chamber, the answer is straightforward: whatever information the Referral Bench reasonably feels it needs, and whatever orders it reasonably finds necessary, are within the Referral Bench’s authority so long as they assist the Bench in determining whether the proceedings following the transfer will be fair.”).

[6] See Impugned Decision, p. 59 (disposition) (“NOTES that upon the conclusion of the mandate of the Tribunal, all obligations of the parties, the monitors and Rwanda will be subject to the directions of the International Residual Mechanism for Criminal Tribunals.”).

[7] See infra paras. 77-85.

[8] Impugned Decision, pp. 58, 59 (disposition). See also Impugned Decision, paras. 213, 214.

[9] Impugned Decision, paras. 35, 60, 132, 139, 146, 159, 169, 196, 219. See also Impugned Decision, pp. 57, 58 (disposition).

[10] See Stanković Appeal Decision, para. 52.

[11] See Stanković Appeal Decision, paras. 50-52, 55.

[12] The Tribunal’s coercive authority cannot exceed Chapter VII of the United Nations Charter, which imposes obligations on member states of the United Nations only. Although paragraph 4 of Security Council Resolution 955 (1994) requests voluntary financial, material, and expert assistance from organizations, it does not mandate this type of cooperation. See The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Defence Motion to Obtain Cooperation from the Vatican Pursuant to Article 28, 13 May 2004, para. 3.

[13] Impugned Decision, para. 221. See also Impugned Decision, pp. 57, 58 (disposition).

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Decision on Prosecution Request for a Scheduling Order - 08.06.2006 BAGARAGAZA Michel
(ICTR-05-86-AR11bis)

At para. 3, the ICTR Appeals Chamber confirmed the ICTY Appeals Chamber’s finding that the delay for filing an appeal brief in an appeal from a Rule 11bis decision is 15 days:

3. Rule 11bis(H) sets a time frame of fifteen days for the filing of a notice of appeal, but is silent on the period for filing an appeal brief. Under the equivalent provision of the Rules of Procedure and Evidence for the ICTY, the Appeals Chamber has followed a practice of allowing fifteen days from the filing of the notice of appeal for the filing of the appeal brief on the merits.[1] The Appeals Chamber sees no reason to depart from this practice in considering appeals under Rule 11bis in this Tribunal.

[1] The Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005 paras. 17, 18. See also The Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Motion for Extension of Time, 10 May 2006, p. 1.

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(ICTR-98-44-AR11bis)

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.

[1] Rule 15bis (D) Appeals Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis (D), filed 20 April 2007], para. 38.

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9.       The Appeals Chamber finds no legal basis for Mr. Nzirorera to appeal against the Impugned Decision. Rule 11bis (H) of the Rules expressly provides for the possibility to appeal a Trial Chamber’s decision determining whether to refer a case to a national jurisdiction. The Tribunal’s Statute and Rules do not provide for appellate review of a decision taken by the President pursuant to Rule 11bis (A) to designate a Trial Chamber for determining whether referral of a case would be appropriate. Furthermore, the Appeals Chamber has already held, in a different context, that a decision taken by the Tribunal’s President within his exclusive discretion is not subject to appeal.[1]

10.     The Appeals Chamber is also unable to accept Mr. Nzirorera’s proposition that the Appeals Chamber may hear his appeal as part of its inherent jurisdiction. While it is correct that the Appeals Chamber has the statutory duty to ensure the fairness of proceedings on appeal and, to this effect, has jurisdiction to review decisions taken by the Tribunal’s President,[2] Mr. Nzirorera’s case is presently not on appeal. Moreover, the Appeals Chamber’s consideration of the underlying issues of the fairness of Mr. Nzirorera’s proceedings is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal as of right under the Tribunal’s Rules or as certified by a Trial Chamber.[3]

11.     Mr. Nzirorera’s argument that the Appeals Chamber should decide his appeal on the basis that it concerns an issue “of general significance to the Tribunal’s jurisprudence” is likewise not persuasive. […]

[1] Cf. The Prosecutor v. Vincent Rutaganira, Case No. ICTR-95-IC-AR, Decision on Appeal of a Decision of the President on Early Release, 24 August 2006, para. 3; The Prosecutor v. Athanase Seromba, Case No. ICTR-01-66-AR, Decision on Interlocutory Appeal of a Bureau Decision, 22 May 2006 (for the proposition that decisions taken by the Bureau may not be appealed) (“Seromba Appeal Decision”).

[2] Cf. Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Hassan Ngeze’s Motion to Set Aside President’s Møse’s Decision and Request to Consummate His Marriage, 6 December 2005.

[3] See Seromba Appeal Decision, para. 4 (citing cases).

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Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

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.

[1] [United Nations Security Council, Statement by the President of the Security Council, 23 July 2002, S/PRST/2002/21.]

[2] See United Nations Security Council, Statement by the President of the Security Council, 23 July 2002, S/PRST/2002/21(also cited in Security Council Resolutions 1503 (2003) and 1534 (2004)).

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27. In light of this decision of the Appeals Chamber, it would be open to the Referral Bench to reconsider its decision relating to Sredoje Lukić, after giving him and the Prosecution an opportunity to be heard, on the ground that it would be judicially more appropriate for both cases to be heard by the same judicial body.

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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]

[1] Prosecutor v. Mitar Rašević and Savo Todović, Case Nos. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals Against Decisions on Referral under Rule 11bis, 4 September 2006 (“Todović Decision of 4 September 2006”), para. 8.

[2] Todović Decision of 4 September 2006, para. 8.

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12. The Appeals Chamber sees no error in the Referral Bench’s use of the currently operative indictment at the time of its decision (in this case, the Second Amended Indictment) in evaluating gravity and level of responsibility.  Indeed, the Appeals Chamber’s decisions in Prosecutor v. Mitar Rašević and Savo Todović plainly support this approach.[1]  In that case, the Appeals Chamber indicated that the Referral Bench should rely on the most recently confirmed version of the indictment, even where the Prosecution sought and received leave to use this version after the appointment of the Referral Bench.[2]

17. The Appeals Chamber agrees with the Appellant that, in assessing the Appellant’s level of responsibility, the Referral Bench relied solely on the factual allegations made in the Second Amended Indictment.[3]  But the Appeals Chamber disagrees with the Appellant’s suggestion that this approach was wrong. Existing case law clearly endorses the approach taken by the Referral Bench.[4] Indeed, in Prosecutor v. Gojko Janković, the Appeals Chamber explicitly rejected the accused’s argument that the Trial Chamber should have considered allegations that were not in the indictment in assessing the gravity of his alleged crimes.  The Appeals Chamber declines to revisit its existing approach, which is supported both by the text of the Rules and by sound policy reasons.  […] Were the Referral Bench required to look beyond the four corners of an indictment, it would find itself in the untenable position of making speculation upon speculation with regard to whether there are other possible charges that could be brought against the accused, whether these charges may in fact be brought, and how these possible charges might relate to the issues of gravity and level of responsibility.  Thus, at least in the absence of a showing that the Prosecution has withheld charges against an accused in order to promote the possibility of referral, the Referral Bench appropriately assesses gravity and level of responsibility solely in light of the allegations in the operative indictment. […]

[1] Prosecutor v. Savo Todović, Case No. IT-97-25/1-AR11bis.1, Decision on Rule 11bis Referral, 23 February 2006 (“Todović Decision of 23 February 2006”), paras 12-14, 18-19; Todović Decision of 4 September 2006, paras 3-4, 6, 13.

[2] Todović Decision of 23 February 2006, paras 18-19 (ordering the Referral Bench to suspend its proceedings until the Trial Chamber had resolved whether to accept proposed amendments to the indictment); Decision of 4 September 2006, paras 4, 6, 13 (seeming to view the most recently confirmed indictment as the relevant one for the Rule 11bis proceedings, but accepting that the differences between this indictment and the prior one were not material enough to justify a revised analysis based on this indictment).

[3] See Referral Decision [Decision on Referral of Case Pursuant to Rule 11bis with Confidential Annex A and Annex B”, filed on 5 April 2007], paras 16, 26-31.

[4] Prosecutor v. Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral under Rule 11bis, 7 April 2006 (“Mejakić et al. Appeal Decision on Referral”), para. 22 (“When assessing the gravity of the crimes charged against the Appellants and their level of responsibility, the Referral Bench properly considered only those facts alleged in the Indictment before reaching a determination concerning the appropriateness of referring the case to a national jurisdiction”).

[5] Janković Appeal Decision on Referral [Prosecutor v. Gojko Janković, Case No. IT-96-23/3-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005], para. 21.

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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.

[1] The crimes charged in the two versions of the Indictment remain the same, although the Second Amended Indictment provides more details with regard to the factual allegations supporting these charges. While the Second Amended Indictment does provide more specific dates with regard to the factual allegations and does limit the geographic location of the crimes to within the municipality of Višegrad, these changes do not give rise to an inference of manipulation.  In this regard, the Appeals Chamber notes that (1) the changes with respect to dates and geographic location primarily clarify rather than limit the specific factual allegations, as the only reference in the specific charges of the Indictment to events outside the Višegrad municipality occurred in the very general allegation of persecution, see Indictment, paras 19-20; and (2) the Second Amended Indictment provides more information with regard to the Appellant’s leadership role in the White Eagles, see Second Amended Indictment paras 1, 31, a point which cuts against the Appellant’s claim that the Second Amended Indictment sought to minimize his level of responsibility.  The Appeals Chamber also notes that the Trial Chamber rejected a claim by Sredoje Lukić that similar amendments to the Indictment implied manipulation.  See Decision Granting Prosecution’s Motion to Amend Indictment and Scheduling Further Appearance, 11 February 2006, para. 13.

[2] Prosecutor v. Gojko Janković, Case No. IT-96-23/3-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005 (“Janković Appeal Decision on Referral”), para. 25.

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Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

17. The Appeals Chamber agrees with the Appellant that, in assessing the Appellant’s level of responsibility, the Referral Bench relied solely on the factual allegations made in the Second Amended Indictment.[1] […] Accordingly, the Referral Bench had no obligation in this case to consider extrinsic evidence with regard to the Appellant’s notoriety or to his possible involvement in criminal acts other than those charged in the Second Amended Indictment.

See also “Confirmed Indictment only” supra.

[1] See Referral Decision, paras 16, 26-31.

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Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

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. 

[1] See Todović Decision of 4 September 2006, para. 16.

[2] See Second Amended Indictment, paras 3, 5-7, 11-13, and 17.

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Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

21. The Appeals Chamber finds more merit in the Appellant’s contention that the Referral Bench erred in its factual assessment of whether he amounted to a “most senior leader”.  The Referral Bench set out the following standard for considering his level of responsibility. […] Yet the Referral Bench’s application of this standard was sparse.  The Referral Bench simply stated that “[i]rrespective of the alleged local notoriety of Milan Lukić and his paramilitary group, neither of the Accused can sensibly be characterised as one of the ‘most senior leaders’, as envisioned by the Security Council in Resolution 1534.”[1]  This conclusory statement appears to presume that a “local” paramilitary leader can never constitute a “most senior leader”.  In doing so, it fails to take into account the “alleged level of participation in the commission of the crimes charged in the indictment.”[2]  The Second Amended Indictment not only alleges that the Appellant directly “committed” the crimes charged, but also suggests that he was a leader and orchestrator of these crimes[3] – which were part of “one of the most notorious campaigns of ethnic cleansing in the conflict”.[4]  There is no suggestion in the Second Amended Indictment that the Appellant was acting under the orders of others, although he may have coordinated with others in carrying out a “reign of terror upon the local Muslim population.”[5]  Rather, it seems that within his own sphere, he was a dominant presence.

22. […] In light of the number and nature of his alleged criminal acts, and given the absence of any suggestion in the Indictment that the Appellant answered to a higher authority, the Appeals Chamber considers the Appellant’s case falls into this category of most significant paramilitary leaders. The Appeals Chamber also takes note of the fact that the Appellant’s paramilitary group appears to have operated for at least two years.[6]  In light of these facts, the Appeals Chamber considers that the Referral Bench underestimated the level of responsibility allegedly held by the Appellant.

26. […] In light of the notorious role played by paramilitary organizations and their leaders during the conflict in the former Yugoslavia, and in light of the Security Council’s recognition that the Tribunal should try at least some of these leaders, the Appeals Chamber considers that the Appellant’s case should be retained by the Tribunal. Based on the allegations set forth in the Second Amended Indictment, the Appellant will be perhaps the most significant paramilitary leader tried by the Tribunal to date.

[1] Referral Decision, para. 30.

[2] Referral Decision, para. 28.

[3] See Second Amended Indictment, para. 31 (describing the Appellant as “form[ing] a group of paramilitaries which worked with local police and military units in exacting a reign of terror upon the local Muslim population”).

[4] Second Amended Indictment, paras 1, 27; see also para. 14 (suggesting that the beatings were done by the Appellant and “other members of [the Appellant’s] group of paramilitaries”). 

[5] Second Amended Indictment, para. 31.

[6] See Second Amended Indictment, paras 3, 5-7, 11-13, and 17.

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Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

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]  […]

[1] Second Amended Indictment, paras 7-11.

[2] Second Amended Indictment, paras 5-6.

[3] Second Amended Indictment, para. 12.

[4] Second Amended Indictment, paras 13-15.

[5] See Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral under Rule 11bis, para. 3 (noting that the Indictment alleged that he had a role in crimes committed over a three-month period in a town and neighboring villages resulting in to the deaths of over 100 civilians, the detention and abuse of many more, and the destruction of Muslim property).

[6] See supra footnote 68 and accompanying text.

[7] See Janković Appeal Decision on Referral, paras 4, 20.

[8] See Janković Appeal Decision on Referral, para. 4 (describing the changes); see also Prosecutor v. Gojko Janković, Case No. IT-96-23/2-PT, Decision on Rule 11bis Referral, 15 November 2005, para. 19 (considering the alleged “incidents of torture and rape involving sixteen females and within a time frame of four months” to be limited in terms of the number of victims). 

[9] Prosecutor v. Željko Ražnjatović, Case No. IT-97-27, Indictment, 26 September 1997 (charging that Željko Ražnjatović, a notable paramilitary leader, bore responsibility for a series of crimes committed in September 1995, including the detention and cruel treatment of roughly 70 individuals, the murder of roughly 80 individuals, the rape of another individual, and several related crimes). 

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Decision on Referral - 04.12.2008 HATEGEKIMANA Idelphonse
(ICTR-00-55B-R11bis)

29.    The Appeals Chamber notes that the Trial Chamber considered the possible safeguard mechanisms of monitoring and revocation available in Rwanda in the context of other issues in its decision,[1] but did not consider these procedures in the context of assessing the availability and protection of witnesses. It accordingly finds that the Trial Chamber erred in failing to consider whether these mechanisms would provide an adequate remedy to deal with the issue of availability and protection of witnesses. However, the Appeals Chamber reiterates its finding in Kanyarukiga that, while the African Commission indeed has the necessary qualifications to monitor trials,[2] these procedures and remedies would not necessarily solve the current problems related to the availability and protection of witnesses.[3] Furthermore, the Appeals Chamber notes that both the decision to send monitors and the right to request a Trial Chamber to consider revocation lie within the sole discretion of the Prosecution.[4] Therefore, Hategekimana would not be able to trigger the operation of these “remedies”.[5] In light of the foregoing, the Appeals Chamber finds that this omission did not invalidate the Trial Chamber’s findings on the availability and protection of witnesses.

[1] See Rule 11bis Decision, paras. 45, 55, 60.

[2] Munyakazi Appeal Decision, para. 30; Kanyarukiga Appeal Decision, para. 38.

[3] Kanyarukiga Appeal Decision, para. 38.

[4] Rule 11bis (D) (iv) and (F) of the Rules. See also Kanyarukiga Appeal Decision, para. 38.

[5] Kanyarukiga Appeal Decision, para. 38. 

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ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
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Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

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.

[1] Impugned Decision [The Prosecutor v. Phénéas Munyarugarama, Case No. ICTR-02-79-R11bis, Decision on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda, 28 June 2012 ], pp. 15, 16.

[2] Uwinkindi Decision of 16 December 2011, para. 22; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 4 December 2008 (“Hategekimana Decision of 4 December 2008”), para. 4; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 30 October 2008 (“Kanyarukiga Decision of 30 October 2008”), para. 4. See also The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 9 October 2008 (“Munyakazi Decision of 9 October 2008”), para. 4.

[3] Uwinkindi Decision of 16 December 2011, para. 22; Hategekimana Decision of 4 December 2008, para. 4; Kanyarukiga Decision of 30 October 2008, para. 4; Munyakazi Decision of 9 October 2008, para. 4.

[4] Uwinkindi Decision of 16 December 2011, para. 23 (internal citations omitted).

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Rule 11bis Decision - 30.08.2006 BAGARAGAZA Michel
(ICTR-05-86-AR11bis)

At paras 16-18, the ICTR Appeals Chamber recalled the ICTY Appeals Chamber case-law that a case can only be referred to another jurisdiction under Rule 11bis when the crimes charged can be prosecuted in those jurisdiction as a “serious violation of international humanitarian law” as the ICTY and ICTR Statutes envisage:

16. […] The Appeals Chamber recalls that the basis of the Tribunal’s authority to refer its cases to national jurisdictions flows from Article 8 of the Statute, as affirmed in Security Council resolutions.[1] Article 8 specifies that the Tribunal has concurrent jurisdiction with national authorities to prosecute “serious violations of international humanitarian law”. In other words, this provision delimits the Tribunal’s authority, allowing it only to refer cases where the state will charge and convict for those international crimes listed in its Statute.

17. The Appeals Chamber agrees with the Prosecution that the concept of a “case” is broader than any given charge in an indictment and that the authorities in the referralState need not necessarily proceed under their laws against each act or crime mentioned in the Indictment in the same manner that the Prosecution would before this Tribunal.[2] In addition, the Appeals Chamber appreciates fully that Norway’s proposed prosecution of Mr. Bagaragaza, even under the general provisions of its criminal code, intends to take due account of and treat with due gravity the alleged genocidal nature of the acts underlying his present indictment. However, in the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the “ordinary crime” of homicide. That the legal qualification matters for referrals under the Tribunal’s Statute and Rules is reflected inter alia in Article 9 reflecting the Tribunal’s principle of non bis in idem.[3] According to this statutory provision, the Tribunal may still try a person who has been tried before a national court for “acts constituting serious violations of international humanitarian law” if the acts for which he or she was tried were “categorized as an ordinary crime”. Furthermore, the protected legal values are different. The penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.

18. The Appeals Chamber recognizes that this decision may have a practical impact on Mr. Bagaragaza’s situation who, according to the Prosecution’s submissions to the President of the Tribunal, faces security risks if detained in the UNDF in Arusha. It also notes that it may limit future referrals to similar jurisdictions which could assist the Tribunal in the completion of its mandate. However, the Appeals Chamber cannot sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law. This is particularly so when the accused has been charged with genocide, an offence that -- unlike murder -- is designed to protect a “national, ethnical, racial or religious group, as such”.

[1] The ICTY Appeals Chamber made this observation on the basis of the equivalent Article of the ICTY Statute (Article 9) in Stanković Appeal Decision, paras 14-17. See also Mejakić et al. Appeal Decision, para. 16. The Security Council has endorsed the referral of cases by this Tribunal in S/Res/1503 (2003) and S/Res/1534 (2004).

[2] See Mejakić et al. Appeal Decision, para. 60.

[3] Article 9(2) states in pertinent part: “A person who has been tried before a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal for Rwanda only if: (a) The act for which he or she was tried was characterized as an ordinary crime; or (b) The national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted.”

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Rule 11bis Decision - 30.08.2006 BAGARAGAZA Michel
(ICTR-05-86-AR11bis)

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]

[1] The Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Appeal Decision”); The Prosecutor v. Gojko Janković, Case No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005 (“Janković Appeal Decision”); Prosecutor v. Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral under Rule 11bis, 7 April 2006, (“Mejakić et al. Appeal Decision”); The Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 4 July 2006 (“Ljubičić Appeal Decision”).

[2] See Mejakić et al. Appeal Decision, para. 60.

[3] Ljubičić Appeal Decision, para. 6.

[4] Id.

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Decision on Referral - 11.07.2007 LUKIĆ & LUKIĆ
(IT-98-32/1-AR11bis.1)

17. […] Rule 11bis (C) of the Rules speaks of the “charge[s]”, not of possible future charges. The ultimate case brought against an accused (whether in the Tribunal or in BiH State Court following a referral) may include additional charges, not present in the operative indictment at the time of referral,[1] that affect ultimate findings with regard to gravity and level of responsibility.  But this is not sufficient justification to abandon the existing approach. […]

[1] See Todović Decision of 23 February 2006, paras 15-16.

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Decision on Additional Evidence - 25.02.2013 MUNYAGISHARI Bernard
(ICTR-05-89-AR11bis)

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] […]

[1] See, e.g., Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Augustin Bizimungu's Rule 92Bis Motion and on His Rule 115 Motion for Admission of Additional Evidence, 11 June 2012 ("Ndindiliyimana et al. Decision"), para. 8; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva's Motions for the Admission of Additional Evidence, 21 March 2011 ("Bagosora et al. Decision of 21 March 2011"), para. 5; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on Request to Admit Additional Evidence, signed on 2 October 2008, filed on 3 October 2008 (“Hategekimana Decision"), para. 5.

[2] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6, in which it was held that additional evidence may be admitted pursuant to Rule 115 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia in the course of Rule 11 bis appeal proceedings. See also Hategekimana Decision.

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ICTR Rule Rule 11 bis;
Rule 115
ICTY Rule Rule 11 bis;
Rule 115
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Decision on Additional Evidence - 22.09.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

5.       Rule 142 of the Rules provides for the admission of additional evidence on appeal, and the Appeals Chamber finds that, in accordance with the jurisprudence of the ICTR and the International Tribunal for the former Yugoslavia (“ICTY”), this provision is applicable to appeals of decisions issued pursuant Rule 14 of the Rules.[1] According to Rule 142(A) of the Rules, a motion for the admission of additional evidence shall clearly identify with precision the specific finding of fact made by the trial chamber to which the evidence is directed. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[2] The applicant must also show that the additional evidence is relevant to a material issue at trial and credible.[3] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 142(C) of the Rules whether it could have been a decisive factor in reaching the Impugned Decision.[4]

6.       Where, however, the evidence was available during the revocation proceedings or could have been discovered through the exercise of due diligence, it may still be admissible on appeal pursuant to Rule 142(C) of the Rules if the applicant shows that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the Impugned Decision.[5]

7.       In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s decision.[6] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[7]

See also para. 39.

[1] See Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s First and Second Motions for Admission of Additional Evidence, 25 February 2013 (“Munyagishari Decision of 25 February 2013”), para. 5; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence before the Appeals Chamber pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Decision of 16 November 2005”), para. 6.

[2] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24; Munyagishari Decision of 25 February 2013, para. 5.

[3] Ngirabatware Decision of 21 November 2014, para. 25; Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10.

[4] Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. Cf. Ngirabatware Decision of 21 November 2014, para. 26.

[5] Cf. Ngirabatware Decision of 21 November 2014, para. 27; Munyagishari Decision of 25 February 2013, para. 6; Mejakić et al. Decision of 16 November 2005, para. 12.

[6] Cf. Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

[7] Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein.

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ICTR Rule Rule 115 ICTY Rule Rule 115 MICT Rule Rule 142
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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

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]

[1] See The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2013, para. 71 (recalling that a Referral Chamber must “satisif[y] itself that the State would supply defence counsel to accused who cannot afford their own representation” and is “not obligated […] to itemize the provisions of the [State’s] budget once it has learned there is financial support for that representation”). See also Prosecutor v. Mitar Rašević and Savo Todović, Case No. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals against Decisions on Referral under Rule 11bis, 4 September 2006, para. 59; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11bis, 7 April 2006, para. 70; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 21. 

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MICT Statute Article 6(6) MICT Rule Rule 14(C)
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Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

29.     The Appeals Chamber further finds that Uwinkindi fails to establish that the non-inclusion of the charge of complicity in genocide in his ICTR Indictment prohibited its inclusion in his indictment before the Rwandan High Court in view of the res judicata principle. Res judicata arises only when there is an identity of parties, identity of issues, and importantly a final determination of those issues in the previous decision by a court competent to decide them.[1] Notably, the litigation before the ICTR concerning the inclusion of complicity in genocide in Uwinkindi’s indictment did not result in a final determination and the Rwandan Prosecution was not a party to it.[2]

[1] See Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Decision on a Motion for Redacted Versions of Decisions Issued under Rule 75(H) of the ICTY Rules, 18 July 2016, p. 4 and references cited therein; The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Decision on the Kingdom of Belgium’s Application to File an Amicus Curiae Brief and on the Defence Application to Strike Out the Observations of the Kingdom of Belgium Concerning the Preliminary Response by the Defence, 12 February 2001, para. 11.

[2] Specifically, Trial Chamber III of the ICTR subsequently confirmed the initial indictment against Uwinkindi but ordered the Prosecution to amend it to clearly indicate what facts could support Uwinkindi’s involvement in the crime of complicity in genocide; the decision did not require the Prosecution to drop the charge. See The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I, Confirmation of Indictment, 3 September 2001, paras. 7, 9.

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