Untitled Document

12. Akayesu submits that the Prosecution’s appeal must be found inadmissible since no error that the Prosecutor attributes to the Trial Chamber falls within the scope of Article 24 of the Statute.[9] Indeed, the Prosecutor alleges errors which will not affect the Judgment and seeks no remedy which would impact on the verdict of culpability. Akayesu recognizes that to be sure ICTY Appeals Chamber considered in the Tadic Appeal Judgment, issues which did not fall within the terms of Article 25 of ICTY Statute but were of general significance to the Tribunal’s jurisprudence.[10] It is Akayesu’s submission, that that matter must be distinguished from the instant case. In the Tadic case, the Appeals Chamber had considered general issues raised together with other grounds of appeal which fell squarely within the confines of Article 25 of ICTY Statute and within the context of an appeal which “stood on its own”.[11] In the instant case, a decision by the Appeals Chamber to entertain the Prosecution’s appeal would be a complete departure from the provisions of the Statute, amounting to creating a new appellate jurisdiction devoid of a legal basis,[12] vested with an “advisory … jurisdiction over academic and general issues”.[13] Akayesu recalls that national jurisdictions which consider such questions do so with statutory authority.

13. Akayesu further submits that all of the Prosecutor’s grounds of appeal deal with obiter dicta that are immaterial to the Judgment. Akayesu submits that, the Prosecution only seeks to widen the scope the Tribunal’s jurisdiction,[14] since “there is no dispute or tangible conflict between the Prosecutor and the Respondent regarding the matters raised by the Prosecutor, and [therefore] the prerequisite for the exercise of appellate jurisdiction seems to be lacking”.[15] Citing Canadian jurisprudence, Akayesu submits that the adversarial principle is a fundamental tenet of the Tribunal and that, as a result he should not be called upon to participate in an academic or theoretical debate. Akayesu argues that such questions may alone give rise to an appeal.[16]

14. The Prosecution acknowledges that in and of themselves the errors alleged in Grounds 1, 3 and 4 of its appeal will not invalidate the findings made in the Trial Judgment as to Akayesu’s culpability so as to expressly fall within the ambit of Article 24 of the Statute.[17] Nevertheless it submits that errors were committed by the Trial Chamber which raise important matters of general significance to the Tribunal’s jurisprudence.[18] The Prosecution submits that while Article 24 of the Statute governs the proceedings on appeal, the functioning of the Appeals Chamber is not restricted to a narrow area within purview of Article 24; on the contrary, the Appeals Chamber may consider issues which strictly do not fall within Article 24 of the Statute; in other words it may consider errors which in themselves would not invalidate the decision or occasion a miscarriage of justice.[19] In the Prosecution’s submission the Appeals Chamber should follow the approach taken by ICTY Appeals Chamber in the Tadic Appeals Judgment and resolve issues it characterizes as being “of general significance to the Tribunal’s jurisprudence.[20]

15. As to who has standing to bring such an appeal, the Prosecution submits that reference to various national jurisdictions suggests that guidance on points of law may be sought by the Prosecution for the purpose of future practice before the courts.[21] However, the Prosecution also submits that if the Appeals Chamber should find that the Prosecution is not properly before it, (given the nature of the errors alleged and the fact that they fall outside the scope of Article 24 of the Statute), the Prosecution can properly raise these issues as a Respondent. Lastly, it submits that the Appeals Chamber still has the power to review such issues proprio motu.[22]

16. Article 24 of the Statute outlines the circumstances under which a party may appeal from a Judgment by a Trial chamber.[23] A party raising a particular ground of appeal, must show an error under Article 24 which provides:

17. Article 24 of the Statute seeks to circumscribe the scope of review on appeal. On this point, the Appeals Chamber endorses the statement by ICTY Appeals Chamber that “the role of the Appeals Chamber is limited, pursuant to Article 25 of the Statute, to correcting errors of law invalidating a decision, and errors of fact which have occasioned a miscarriage of justice” (emphasis added).[24] Nevertheless the Appeals Chamber underscores that within the framework predefined by the Statute, the Appeals Chamber may consider issues proprio motu, as previously held by ICTY Appeals Chamber in the Erdemovic case.[25]

18. Can the Appeals Chamber consider all the alleged errors of law? Article 24 (1) covers prima facie only errors of law invalidating the decision, that is, errors which, if proved, would have an effect on the verdict of guilty. Yet, ICTY Appeals Chamber has agreed to consider errors of law the review of which had no bearing on the verdict and which therefore did not stricto sensu fall within the scope of the provisions of the Statute relating to appellate proceedings. Indeed, in the Tadic case, the Prosecution had raised several grounds of appeal three of which raised issues of general significance to the jurisprudence and functioning of the Tribunal.[26]The Prosecutor had acknowledged that the Appeals Chamber’s decision would have no bearing on the relevant charges. But the Appeals Chamber explained each ground of appeal in issue, respectively:

19. The Appeals Chamber endorses the above line of reasoning and, like ICTY Appeals Chamber, rules that it has jurisdiction to determine issues which, though they have no bearing on the verdict reached by a Trial Chamber, are of general significance to the Tribunal’s jurisprudence.

20. However, as submitted by Akayesu, the Appeals Chamber must be mindful of the difference between the Tadic case and the instant case referred to it. In the instant, the Prosecution’s grounds of appeal raise solely issues of general importance, which are the reason for its appeal. In the Tadic Judgment, issues of general significance were raised together with a series of grounds of appeal which met the requirements of Article 24 of the Statute, that is, they were likely to have a bearing on the verdict of guilt. At issue in the case at bar is therefore whether the Appeals Chamber may entertain an appeal that raises only issues which fall outside the scope of Article 24 of the Statute or whether, on the contrary, such issues must necessarily be raised alongside grounds of appeal which meet the requirements of Article 24 of the Statute.

21. To that end, it may be useful to recall the rationale behind the approach taken by ICTY Appeals Chamber. In this case, it was agreed that issues of general significance may be raised essentially in order to ensure the development of the Tribunal’s jurisprudence. As ICTY Appeals Chamber explained, consideration of an issue of general significance is appropriate since its resolution is important to the development of the Tribunal’s jurisprudence and since at issue here is an important point of law which merits review. Thus, the need to pass on issues of general importance is justified in light of the Appeals Chamber’s role in unifying the applicable law. Indeed, the Appeals Chamber must provide guidance to the Trial Chambers in interpreting the law. Such a role of “the final arbiter of the law of the Tribunal”,[27] must be defined according to the special nature of the Tribunal and, in particular, as an ad hoc and temporary body. As submitted by the Prosecution “ The Tribunal is at an early stage of its development and the Appeals Chamber would therefore be justified in allowing the Parties to raise points of law, which affects the jurisprudence of the Tribunal in order to ensure an effective and equal administration of justice”.[28]

22. Indeed, the Appeals Chamber recalls that since the Tribunal is not a permanent court, its jurisdiction is time bound.[29] Furthermore, the crimes covered by the Statute of the Tribunal are, by nature, particularly serious and their definition given the courts contributes to the overall development of international humanitarian law and criminal law. Such a definition must be uniform. ICTY Appeals Chamber specified that “The need for coherence is particularly acute in the context in which the Tribunal operates, where the norms of international humanitarian law and international criminal law are developing and where, therefore, the need for those appearing before the Tribunal, the accused and the Prosecution, to be certain of the regime in which cases are tried is even more ponounced.”[30] Consequently, the Appeals Chamber is of the opinion that in deciding to pass on an issue of general importance, it is playing its role of unifying the law.

23. That an appeal is based solely on issues of general importance does not fundamentally change the case. Akayesu submits that were it to entertain such an appeal the Appeals Chamber would be arrogating powers it does not have and which are not provided in the Statute. The Appeals Chamber recalls that consideration of issues of general significance does not seek to create a new remedy or a possible advisory power. Unlike the International Court of Justice[31] or certain municipal courts,[32] the Appeals Chamber of the Tribunal does not have advisory power. On the other hand, it may deem it necessary to pass on issues of general importance if it finds that their resolution is likely to contribute substantially to the development of the Tribunal’s jurisprudence. The exercise of such a power is not contingent upon the raising of grounds of appeal which strictly fall within the ambit of Article 24 of the Statute. In other words, it is within its discretion. While the Appeals Chamber may find it necessary to address issues, it may also decline to do so. In such a case (if the Appeals Chamber does not pass on an issue raised), the opinion of the Trial Chamber remains the sole formal pronouncement by the Tribunal on the issue at bar. It will therefore carry some weight.

24. Therefore, the Appeals Chamber will not consider all issues of general significance. Indeed, the issues raised must be of interest to legal practice of the Tribunal and must have a nexus with the case at hand.

25. In the case at bar, issues raised by the Prosecution concern, in the main: firstly, the application by the Trial Chamber of the “ ‘public agent or Government representative test’ to determine persons who may be held responsible for serious violations of Article 3 and Additional Protocol II thereto”;[33] secondly, the requirement to prove a discriminatory intent for a crime stipulated under Article 3 of the Statute to be defined as a crime against humanity; thirdly, the requirement that instigation as provided under Article 6(1) of the Statute be direct and public.

26. The Prosecution explains why, in its submission, all issues raised are “of general significance to the Tribunal’s jurisprudence and practice”.[34] With respect to the second issue, in particular, it submit that “crimes against humanity under Article 3 of the Statute are alleged in all of the indictments currently issued by ICTR. There is a possibility (and the Prosecution would submit, danger) that the Trial Chamber’s conclusions regarding the requirements of murder as a crime against humanity may be extended to the other enumerated crimes in Article 3 of the Statute. Clarification of the requirements of Article 3 is, therefore, timely and will provide guidance to Trial Chambers and the parties in future cases”[35] Regarding the third issue, the Prosecution submits that “As instigation under Article 6(1) is one of the pillars of individual criminal responsibility under the Statute, [it is submitted] that clarification of this issue by the Appeals Chamber would be of benefit to Trial Chambers and the parties in future cases”.[36]

27. The Appeals Chamber is satisfied by the Prosecution’s arguments and finds that the issues raised in the instant case, do meet the above-mentioned admissibility requirements. Indeed, all the issues raised relate to the legal definition of certain offences covered in the Statute and as such go to the jurisdiction ratione materiae of the Tribunal. Therefore they relate to the legal practice of the Tribunal. Moreover, all the issues have a nexus with the case before the Trial Chamber. Indeed, they all concern the constituent elements adopted by the Trial Chamber in its interpretation of Articles 3, 4 and 6 of the Statute.[37]

28. For all the foregoing reasons, the Appeals Chamber shall address the four grounds of appeal raised by the Prosecutor.

B Preliminary issues relating to Akayesu’s Appeal

29. Akayesu’s strategy in his appeal has been to somehow call into question the entirety of the trial proceedings. To this end, he has adopted the following approach:

30. Firstly, the Appeals Chamber observes that Akayesu has attempted to establish some hierarchy among his grounds of appeal making his first alleged denial by the Tribunal of Counsel of his own choosing and second (alleged denial of assistance by competent counsel) grounds of Appeal the linchpin of his entire case. Thus, he alleges that the Tribunal denied him the right to be assisted by Counsel of his own choosing and that, on the other hand, Counsel assigned to him by the Registry were incompetent. Regarding the alleged incompetence of his Counsel, Akayesu submits that, in general, the latter failed to afford him a proper defence and raises, in this respect, several of his other grounds of appeal. The Appeals Chamber observes, in particular, that whenever Akayesu has alleged on appeal that the Trial Chamber committed an error of law or of fact, he has attributed his failure to react before the Trial Chamber to the incompetence of his Counsel at the time .[38] Consequently, in the opinion of the Appeals Chamber following such an approach, the first two grounds of appeal thus govern all the others (which mainly concern proceedings before the Trial Chamber).

31. Secondly, Akayesu envisages three remedies for the alleged errors: he contends that some of the errors alleged in his grounds of appeal could in and of themselves justify an order “for termination of proceedings to cure the discernibly irreparable prejudice”,[39] he requests the “setting aside of the verdict” for the other sentences;[40] and as regards the eighth ground of appeal and what the Appeals Chamber referred to as “Other issues”, he submits that the alleged irregularities discussed therein constitute an additional justification for ordering “a stay of proceedings”.[41]

32. Thirdly, Akayesu submits that the Appeals Chamber should consider, in their entirety, the errors which, he alleges in his grounds of appeal, were committed by the Trial Chamber. He submits that:

The above violations would justify a retrial or an order for a stay of proceedings. Taken separately, some of the irregularities would not justify recourse to such an exceptional remedy to wit, a stay of proceedings. But, taken together, they involve or call into question the Rule of Law: each error of law or of fact and each violation of the rights of the Appellant is serious and affects his right to a just and fair trial.[42]

33. Akayesu submits that if such grounds of appeal taken together (and not separately), and once all the alleged errors have been proved, the Appeals Chamber must rule that they offer sufficient ground to “order a complete stay of proceedings and his immediate release”.[43]

34. The Appeals Chamber is of the opinion that it is necessary to reaffirm here its role in appellate proceedings under Article 24 of the Statute.

35. As a rule, it falls to the Appellant to prove that the alleged error of law and of fact is such as would invalidate the decision or occasion a miscarriage of justice.[44] In other words, an error of law or of fact does not necessarily require the intervention of the Appeals Chamber.[45] The Appeals Chamber shall address this issue in due course in this judgment. As to the remedies that the Appeals Chamber may grant, Article 24(2) of the Statute limits them by providing for the power to “affirm, reverse or revise” the impugned decision.

36. The Appeals Chamber indicates that, in the instant case, it shall consider, as a matter of priority, those grounds of appeal in which Akayesu submitted that the alleged error had a bearing on the verdict of the Trial Chamber. This applies in particular to Akayesu’s fourth and eighth grounds of appeal. During the hearing on appeal, the Appeals Chamber confirmed to Akayesu which issues would be grouped under the fourth ground of appeal.[46] Those are the following four issues which the Appeals Chamber shall address which are separate “grounds of appeal ”:

37. The Appeals Chamber indicates that several other “grounds” raised by Akayesu mainly in Chapter 13 of his brief, which also includes the eighth ground, are also grouped under the fourth ground of appeal. However, the Appeals Chamber observes that Akayesu has, in fact, withdrawn or renounced several of these grounds of appeal;[47] some are incorporated in the arguments set out in other grounds of appeal,[48] whereas by the Decision of 22 August 2000, he was denied leave to add two other grounds of appeal.[49] Grounds abandoned or excluded shall therefore be disregarded.

38. As to the rest, there are eight “Other Issues”[50] that the Appeals Chamber has grouped under the fourth ground of appeal, and on which it ruled at the same time as the Eighth ground. It is not Akayesu’s contention that, taken individually, the alleged errors caused him irreparable prejudice and that they are such as would invalidate the judgment rendered by the Trial Chamber or that they occasioned a miscarriage of justice. Thus he submits that he lacks sufficient evidence to support the allegation relating to interpretation, but, however, he maintains the said allegation all the more since a reading of the trial record shows serious interpretation problems throughout the trial;[51] that inaccurate transcripts of his trial “caused difficulties to the Appellant, although he cannot aver that such shortcomings are in and of themselves fatal or material;”[52] that although no evidence in the transcripts supports the allegation that a judge and a witness held, on at least one occasion, informal conversations and although such irregularity would not invalidate the judgment, he argues that “such a conduct is unacceptable”.[53] Other allegations are simply made but are not supported by any submissions, detailed arguments or references to a prejudice possibly suffered. In his Reply, Akayesu makes a reference to these issues by referring to “Other irregularities of lesser importance”.[54]

39. The Prosecution argues generally that Akayesu has failed to identify any legal and/or factual errors and seeks to support his allegations without any arguments to which the Prosecutor can respond.[55] It submits that such allegations must, as a result, all fail.[56] The Prosecution has made no substantial submissions in response. During the hearing on appeal, Akayesu submitted the following in response:

40. However, Akayesu had, in general, submitted that, taken as a whole, the errors alleged may constitute an additional justification for ordering “a stay of proceedings”.[58] He has not expressly alleged that these grounds of appeal independently provide justification for a relief, such as is provided in Article 24 of the Statute..

41. Under these conditions, the Appeals Chamber shall deal with these issues (as defined above) and the appeal, in general, as follows. It will first consider what it has identified as Akayesu’s main grounds of appeal, to determine whether the Trial Chamber has committed the errors alleged. There after it will decide whether to consider what Akayesu has referred to as “Other irregularities of lesser importance” that is, the other issues and ground eight. Only then will it consider, if necessary, the errors alleged as a while (provided they have been proved).

42. The Appeals Chamber notes that in the Prosecution’s Response, the Prosecution appears to have adopted a policy with regard to certain grounds of appeal by designating the issues which, it believes to have been raised by Akayesu under the particular ground of appeal and addressing only those issues. In addition, the Prosecution elected not to respond to any of the “[o]ther [i]ssues” under Ground 4 nor to the ninth Ground of appeal. It submitted in this regard that: “Should the Appeals Chamber wish to have the Prosecution’s response to other questions raised by the Appellant […] the Prosecution would respectfully seek leave to file a supplementary response on any such matter”.[59]

43. The Appeals Chamber confirms that the Prosecution’s right to file a response to an appellant’s brief is prima facie laid down by Rule 112 of the Rules which provides that “a Respondent’s brief shall contain all the arguments and authorities. It shall be served on the other party and filed with the Registrar within thirty days of the filing of the Appellant’s brief.” On the other hand, there is no provision in the Rules that a party may chose the issues to which it will respond, in the hope that if it erred in so doing, it would have the opportunity to file a supplementary response at a later date.[60] The Prosecution errs in so assuming. The Appeals Chamber will only consider the submissions contained within the Prosecution’s Response and those made during the hearing on appeal.

[9] Following the filing of the Prosecutor’s Brief, Akayesu filed, in response, a document titled “Motion for inadmissibility of the Appellant’s Brief and Respondent’s Brief”, in which he prayed the Appeals Chamber to dismiss the Prosecution’s appeal. See annex A. Cf. Akayesu’s Response, paras. 1 to 14; T(A), 2 November 2000, p.4.

[10] The text of this article is identical to that of Article 24 of ICTR Statute.

[13] T(A). 2 November, 2000, p.6. What the Prosecution is asking here, is creation of a new legal appeal with no legal text. Cf. T(A), 2 November 2000, pp. 8 and 9: “…”.

[16] Generally speaking, Akayesu submits that each of the Grounds concerns alleged errors, which would not affect the verdict of the Trial Chamber as the alleged findings were obiter dicta. As to Grounds 1 and 2, he submits that “The remark made by the Trial Chamber on the mandate test seems to be incidental and obiter (sic); even if the Chamber set them aside that will not have altered anything in its decision not to apply Article 4 for lack of a nexus between the alleged facts and the armed conflict. This ground of appeal therefore seems to be futile (sic). Regarding Prosecution Ground 3, Akayesu submits that the Prosecutor “suggests an interpretative Statement on how Article 3 is to be construed. The remedy sought has no bearing on the verdict or the finding on this point.. She challenges the Respondent, Akayesu, to an academic debate that does not concern him, but other accused. Consequently, the Respondent does not wish to engage the Prosecutor in a debate that has no direct relationship with his case and whose conclusion will have no bearing on him. The respondent is not bound to subscribe to the interpretation of Article 3 sought by the Prosecutor, nor does he have to fight against it. The statements impugned by the Prosecutor seem to be obiter and their revision by the Appeals Chamber will not in any way alter the legal finding [of the Trial Chamber]”. Lastly, concerning Ground 4, Akayesu submits that like in Ground 3, “ The remedy sought by the Prosecutor would have no effect on the Respondent and would allow the Prosecutor to broaden the scope of the Statute in such a way as to encompass scenarios outside its ambit. It is therefore with respect to future cases that the Prosecutor wants to correct the purported deficiencies of the Statute”. Cf. Akayesu Response, para. 8. See also T(A) 2 November 2000, pp. 8 and 9: “ We didn’t want to involve ourselves in this kind of exercise and we thought that may be you could have chosen a case which was more interesting where the stakes or issues would be discussed in depth by the two parties interested in an interlocutory debate”.

[17] Prosecution’s Brief, para. 1.17; T(A) 1 November 2000, p. 236.

[18] Prosecution’s Brief, para. 1.17, It submits that the Appeals Chamber has already considered such issues in the past and the Prosecution believes “that it is very important for the Appeals Chamber to pronounce on these questions for a variety of reasons … to give one example, the test of the link with the armed conflict which was laid down in the Akayesu decision, has also been taken over by other trial chambers …And as regards all the questions which form the grounds of appeal, we believe they are of general importance for the jurisprudence of this Tribunal and for the developments and clarification of international criminal law. All these questions are questions of law which are important to all trial chambers. Cf.T(A). 2 November 2000, pp. 22 to 26.

[19] Prosecution’s Reply, paras. 2.5 and 2.6; T(A), 1 November 2000, pp. 236 – 238.

[20] Citing the Tadic Judgment. The Prosecution submits that “it would be very interesting if the Appeals Chamber can entertain these appeals and come out with judgments that will help shape the future of appeals, the future of trials, both to Trial Chambers and the parties before the Tribunal” (sic) T(A), 1 November 2000, pp. 239 and 240. See generally, Prosecution’s Reply paras. 2.6 – 2.8.

[21] Prosecution’s Reply, paras. 2.10 – 2.14 T(A), 1 November 2000, pp. 240 – 243.

[22] Prosecution’s Reply, paras. 2.16 and 2.17.

[23] In the Tadic Decision (interlocutory motion), ICTY Appeals Chamber recalled that Article 25 of ICTY Statute (it should be recalled, is identical to Article 24 of ICTR Statute) “[…] opens up the possibility of appellate proceedings within the International Tribunal. […] stands in conformity with the International Covenant on Civil and Political Rights which insists upon a right of appeal” (para. 4).

[25] Indeed, ICTY Appeals Chamber stated: “The Appeals Chamber has raised preliminary issues proprio motu pursuant to its inherent powers as an appellate body once being seized of an appeal lodged by either party pursuant to Article 25 of the Statute. The Appeals Chamber finds nothing in the Statute or the Rules, nor in practices of international institutions or national judicial systems, which would confine its consideration of the appeal to the issues raised formally by the parties”. Cf. Erdemovic Judgment, para. 16.

[26] The three grounds of appeal were as follows: Appeal Ground 3 contends that the Trial Chamber erred in considering that crimes against humanity cannot be committed for purely personal motives (Tadic Judgment, paras. 238 to 272); Ground 4 contends that the Appeals Chamber erred in considering that all crimes against humanity require a discriminatory intent (Tadic Judgment, paras. 237 to 305) and Ground 5 concerned dismissal of Prosecution motion for disclosure of Defence witness statements (Tadic Judgment, paras. 306 to 326).

[27] Furundzija Judgment on Appeal, para. 35.

[28] Prosecution’s Brief in Reply, para. 2.14.

[29] Article 1 of the Statute of the Tribunal provides: “The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute”.

[31] An avenue provided for under Article 65 of the Statute of the International Court of Justice. Any organ or agency authorized by the United Nations Charter may apply to the Court for advisory opinion on any legal issue.

[32] Common Law prohibits the Prosecutor from lodging an appeal where a person tried on indictment is acquitted of a crime. However, he may refer an issue to the High Court in order to clarify a point of law. In such a case, the opposing party is not compelled to refute the arguments submitted by the Prosecutor. Here, the purpose of such reference is not to alter the verdict on the matter before the Tribunal, but rather to explain the law in view of its application in future cases. The Court’s response will affect only future decisions and not the decision on the ongoing case. Cf. Section 36 of the Criminal Justice Act 1972 as amended by the Prosecution of Offences Act 1985 (Great Britain): “Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it” [Section 36(1)]. Cf. Also Criminal Procedure (Scotland) Act 1995: “123. –(1) Where a person tried on indictment is acquitted or convicted of a charge, the Lord Advocate may refer a point of law which has arisen in relation to that charge to the High Court for their opinion […]”.

[33] This issue constitutes the First Ground of Appeal raised along with another ancillary ground of appeal based on the erroneous application of the test defined by the Trial Chamber: indeed, in the Prosecution’s submission, having applied the public agent or Government representative test, the Trial Chamber erred in fact in finding that Akayesu did not fall within the category of persons who could be held responsible under Article 4.

[34] Prosecutor’s Akayesu Brief, para. 1.17.

[35] Prosecutor’s Akayesu Brief, para. 4.5.

[36] Prosecutor’s Akayesu Brief, para. 5.3.

[37] Indeed, the Trial Chamber held with respect to the first issue raised, that: “The Chamber further finds that it has not been proved beyond reasonable doubt that Akayesu was a member of the armed forces, or that he was legitimately mandated and expected, as a public official or agent or person otherwise holding public authority or de facto representing the Government, to support or fulfill the war efforts” (para. 643 of the Trial Judgment); regarding the second issue, the Trial Chamber found that in ordering the killing of Simon Mutijima, Thaddée Uwanyiligira and Jean Chrysostome, in ordering the killing of eight refugees and in ordering the killing of five teachers, Akayesu had “ the requisite intent to kill them as part of a widespread or systematic attack against the civilian population of Rwanda on ethnic grounds” (paras. 650, 658 and 668 of the Judgment); concerning the third issue, the Trial Chamber explained that it “is satisfied beyond a reasonable doubt that, by the above-mentioned speeches made in public and in a public place, Akayesu had the intent to directly create a particular state of mind in his audience necessary to lead to the destruction of the Tutsi group, as such. Accordingly, the Chamber finds that the said acts constitute the crime of direct and public incitement to commit genocide, as defined above. In addition, the Chamber finds that the direct and public incitement to commit genocide as engaged in by Akayesu, was indeed successful and did lead to the destruction of a great number of Tutsi in the commune of Taba” (paras. 674 and 675 of the Judgment).

[38] Allegations of incompetence raised under grounds of appeal 3 to 11 are covered as a whole in the section on the Second Ground of Appeal (incompetence of Counsel).

[39] Akayesu’s Brief, Chapter 15, para.1. Akayesu included the first and second grounds of appeal (choice of counsel and incompetence of Counsel), the third ground of appeal (lack of independence and impartiality of the Tribunal), the fourth ground of appeal (fatal errors of the verdict of culpability), the fourth submission of the last ground of appeal (out-of-court evidence) and ninth ground of appeal (the letter from DAAX to the judges). See also Akayesu’s Reply, para. 9.

[40] Akayesu’s Brief, Chapter 15, para. 3. Akayesu also prays the Appeals Chamber to rule “that the specific findings in respect of the above chapters support the central or fundamental submission of the Appellant for a termination of proceedings”. This includes the fourth ground of appeal in its first submissions (amendment to the initial indictment), second submission (prior statements) and third submission (reasonable doubt), sixth submission (hearsay evidence) and seventh ground of appeal (cross-examination).

[41] Appellant’s Brief, Chapter 15, para. 4.

[42] Akayesu’s Reply, para. 13. See also Akayesu’s Reply, paras. 7 to 13 in general.

[44] The principle requiring the Appellant to prove his allegations is, however, not absolute, since the Appeals Chamber may, if necessary, exercise its discretionary power in the matter. See Furundzija, paras. 35 to 37, Kambanda Appeals Judgment, para. 98.

[45] Furundzija Appeals Judgment, paras. 36 and 37.

[46] Statement by the Appeals Chamber. The Appeals Chamber is of the opinion that Akayesu has mixed up the grounds of appeal in the first notice of appeal with those contained in the second notice of appeal and, in certain cases, has gleaned from both in order to present an argument. Akayesu accepted the grouping of his grounds of appeal by the Appeals Chamber.

[47] These grounds of appeal are: Ground 19, first notice of appeal, concerning the illness of Witness DFX (Akayesu’s Brief, Chap. 8, para. 7); Ground 30, First Notice of Appeal and Ground 4(z), Second Notice of Appeal, concerning the Trial Chamber’s rejection of a motion for false testimony by Witness R. The Appeals Chamber observes that regarding this issue, Akayesu first stated that he had erred in the title he gave to this ground, which he had withdrawn. Nevertheless, he insists “ that Witness R is completely without credibility”. The Appeals Chamber has no reason to further consider such an unfounded assertion, since this ground of appeal has been withdrawn (Akayesu’s Brief Chap. 13, para. 11; Ground 6, first Ground of Appeal concerning corroboration (Akayesu’s Brief, Chap. 13, para. 13); Ground 4(w), Second Notice of Appeal concerning testimony behind curtains (Akayesu’s Brief, Chap. 13, para. 14). The Appeals Chamber observes that Ground 28 of the first notice of appeal relates to the latter issue and must be included in the abandoned grounds.

[48] Grounds 33 of first Notice of Appeal and 4(cc) of the second Notice of Appeal concern the disclosure of evidence. Akayesu submits that this argument is discussed in the first Ground of Appeal and the Second submission of the fourth Ground of Appeal (Akayesu’s Brief, Chap. 13 para. 4). The Appeals Chamber observes that Akayesu has not included the merit of Ground 4(cc) in the above-mentioned notices of appeal. Consequently, the Appeals Chamber classes it as one of the other issues. Grounds 26 of the first Notice of Appeal and 4(y) of the second Notice of Appeal concern the allegation that the Trial Chamber erred in deciding that General Dallaire was an expert witness. Akayesu submits that this argument is discussed in the second Ground of Appeal (Akayesu’s Brief, Chap. 13, para. 5). Ground 31 of the first Notice of Appeal, concerning the Trial Chamber’s dismissal of the motion by the accused for an inspection of the site for purposes of forensic analysis, considering in particular, Count 15 of the indictment, is discussed in the Third submission of the fourth Ground of Appeal (Akayesu’s Brief, Chap. 13, para. 10).

[49] Grounds of appeal concerning the testimony of Dr. Mathias Ruzindana, expert-witness, and Trial Attorney Pierre Prosper (Akayesu’s Brief, Chap. 13, para. 5), were excluded by the Appeals Chamber.

[50] The Appeals Chamber observes that Akayesu mentioned these issues just briefly in Chapter 13 of his Brief and advanced no substantial argument, neither in his Reply nor during his hearing on appeal. Only arguments effectively presented have been included in the text.

[51] Akayesu’s Brief, Chap. 13, para. 2 (sic). Regarding paragraph 1 (the Trial Chamber erred in taking certain United Nations reports into account), Akayesu submits that he “does not know which facts in these reports were relied on in his trial and cannot therefore aver that this error of law alone might have caused him irreparable prejudice”.

[56] T(A), 1 November 2000, pp.149 and 150. The Prosecution submits that “ The Appellant has failed in the Prosecution’s submission to sustain these grounds in his appeal brief with any argument, as the Prosecution has pointed out in Chapter 14 of the respondent brief. Today the Appellant did not make any argument to sustain all the allegations or any of the allegations in Chapter 13 of his appeal brief and the Prosecution, therefore, submits that all these grounds must fail”.

[57] T(A), 1 November 2000. The English version of the transcripts (pp. 183 to 184) reflects the following: “[The Prosecution] referred to chapter 13, and chapter 13, we didn’t develop it in a great deal terribly. And there are issues which are clear and simple. Some of the errors there’s no proof of – we said there is no proof of it. Others are questions which are errors inappropriate. We did not say it affected the Judgment but, your Lordships, as jurists, I think it is important to understand what one can take judicial notice of, because if you take judicial notice of United Nations reports, you don’t need trials.” The Appeals Chamber is of the opinion that the last sentence of this quotation should be rendered as follows: “[…] But as jurists, I believe it is important for us to know what can be judicially noticed, because if you take judicial notice of UN reports, then you do not need a trial”. The last observation concerned the ground of appeal alleging that the Chamber had erred in law by deciding that it could take judicial notice of United Nations reports (Akayesu’s Brief, Chap. 13, para. 1). See also T(A), 1 November 2000, p.117 (French): “Le chapitre 14 …13, nous allons donc vous renvoyer à notre mémoire, étant donné que nous n’avons pas beaucoup de temps”. But the English version (p. 85) states: “Chapter 13, which we will leave you with that, because we’ve stated clearly there are not enough”.

[58] Akayesu’s Brief, Chap. XV, para. 4: “[…] the Appellant requests this Chamber to find that other irregularities discussed therein constitute an additional justification for ordering a stay of proceedings”.

[59] Prosecution’s Response, para. 9.6. See also para. 11.5 and 14.4.

[60] Subject of course to the decision on the motion for extension of time-limit, as long as the requesting party shows good cause, in the meaning of Rule 116 of the Rules