1.         On 21 March 2003, the Appellants and the Prosecution filed their notices of appeal against Trial Chamber I’s Judgement and Sentence of 21 February 2003. On 28 March 2003, the Presiding Judge of the Appeals Chamber assigned Judges Theodor Meron, Fausto Pocar, Mohamed Shahabuddeen, David Hunt and Mehmet Güney to the appeal and designated Judge Mehmet Güney to serve as pre-appeal judge. [972] Thereafter, Judge Inés Weinberg de Roca replaced Judge Hunt, [973] Judge Wolfgang Schomburg replaced Judge Pocar, [974] and Judge Florence Mumba replaced Judge Shahabuddeen. [975]

2.         The Prosecution’s Appeal Brief was filed on 23 June 2003. Following a number of decisions from the pre-appeal judge on requests for extension of page limits and time, Gérard Ntakirutimana and Elizaphan Ntakirutimana’s Appeal Briefs were re-filed on 28 July 2003 and 11 August 2003, respectively. Briefings were complete by 13 October 2003 with the filing of the Appellants’ Reply Briefs. [976] The Appeals Chamber also granted the Prosecution’s request for an extension of time within which to file its Appeal Book. [977]

3.         On 8 April 2004, the Appeals Chamber rejected Gérard Ntakirutimana’s motion for the admission of additional evidence. In the motion, Gérard Ntakirutimana requested pursuant to Rule 115 of the Rules an order from the Appeals Chamber for the admission as additional evidence of the transcripts of the public and in camera testimony of Witness KJ in the case of Eliézer Niyitegeka (Witness OO in the instant case), and also sought an order permitting him to file an addendum to his brief on Appeal. The Appeals Chamber reviewed the transcripts of the witness and concluded that the witness’s evidence in Niyitegeka was not such that it could have affected the verdict in this case. It also noted that, as the transcripts did not form part of the record and were not to be admitted as additional evidence, it would not consider any references to Witness OO’s testimony in Niyitegeka although the Prosecution had sought to rely on parts of transcripts in its submissions on appeal in this case. [978]

4.         On 24 June 2004, the Appeals Chamber granted in part Gérard Ntakirutimana’s motion to strike Annex B from the Prosecution Response Brief and for re-certification of the record. The Appeals Chamber recalled that, in support of one of his grounds of appeal, Gérard Ntakirutimana argued, with reference to the transcript, that Witness GG had personally spelt names of people and places whilst testifying before the Trial Chamber, despite the witness’ claim of illiteracy. In its Response Brief, the Prosecution had submitted that the transcript failed to reflect that it was the interpreter, rather than Witness GG, who spelt out the names. The Prosecution presented in Annex B of its Response Brief a “Certification of audio transcripts by Mathias Ruzindana, Reviser; Language Services Section, 3 September 2003.” The Appeals Chamber considered that the Certification provided in Annex B raised legitimate doubts on the accuracy of the transcript as to whether it was the Witness GG or the interpreter who spelt names during the witness’ testimony before the Trial Chamber and was of the view that, in light of the Appellant’s argument regarding the credibility of Witness GG, it would be in the interests of justice to clarify the matter. Consequently, the Appeals Chamber granted the motion in part and ordered the Registry to review the transcript of the testimony given by Witness GG before the Trial Chamber for accuracy and to submit to the Appeals Chamber and the parties newly certified copies of the accurate transcripts in the official languages of the International Tribunal not later than 1 July 2004. [979]

5.         On 5 July 2004, the Appeals Chamber dismissed two further motions for the admission of additional evidence filed by the Appellants. In the motions, the Appellants sought notably to have admitted as additional evidence: a statement dated 13 and 14 January 2004; transcripts of the testimony of Witness KJ (Witness OO in the instant case), who testified in the case of Bagosora et al. from 19 to 27 April 2004; the transcripts of the testimony of Witness AT (Witness GG in the instant case) who testified in the Muhimana case on 19 and 20 April 2004; materials from proceedings before a United States Immigration Court in a case involving several individuals who testified as witnesses at the Appellants’ trial; transcripts of the testimony of Witness BH (Witness DD in the instant case), who testified in the Muhimana case on 8 April 2004; and transcripts of the testimony of Witness BI (Witness YY in the instant case), who testified in the Muhimana case on 8 April 2004. Finding both motions to be timely within the meaning of Rule 115, the Appeals Chamber concluded that the evidence which the Appellants sought to have admitted did not meet the criteria of admissibility under Rule 115. The Appeals Chamber was also not persuaded by the Appellants arguments that it should reconsider its previous Rule 115 decision in this case, wherein the Appeals Chamber dismissed the Appellant’s argument that the witness presented inconsistent evidence in this case and in Niyitegeka. [980]

6.         Appeal hearings in the case were postponed on two occasions. On 20 November 2003, the Appeals Chamber, by majority, granted the Prosecution’s request for adjournment of the hearings. [981] The Prosecution’s request to adjourn the hearing until 1 March 2004 was based on the United Nations Security Council’s decision to amend Article 15 of the Statute of the International Tribunal to create the new position of Prosecutor of the International Tribunal, separate from the holder of the office of the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia, and to appoint a new Prosecutor of the International Tribunal effective 15 September 2003. The Prosecution argued that as a result it was still recruiting staff and that the only appeals lawyer then hired was a senior appeals counsel who was to take up his duties on 8 February 2004. The Prosecution submitted that it was not in a position to argue the Appeals or to assist the Appeals Chamber in any matters to be raised during the scheduled hearing in December.

7.         The Appeals Chamber expressed its disappointment that the Prosecution had not been able to make arrangements for it to be adequately represented in this case notwithstanding that it had time to do so. It noted that the Prosecution had been aware of the complex and substantial nature of the Appeals since at least the end of July 2003, when the Appellants’ Briefs were filed, and had known of the division of the two Prosecutors’ Offices since the Security Council’s resolutions were adopted on 28 August and 4 September 2003. The Appeals Chamber also noted that the Prosecution accordingly had two months to assign attorneys already present in the Arusha Office of the Prosecutor to cover the Appeals and to begin work on them even before they were formally transferred from the appeals section of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia.

8.         Despite the regrettable situation, the Appeals Chamber was persuaded that, in light of the complexity of the Appeals and the likelihood of substantial questioning from the bench, the interests of justice narrowly supported an adjournment in the circumstances.

9.         Subsequently, further to a request from Counsel for Elizaphan Ntakirutimana, on 5 April 2004, the Appeals Chamber granted a further postponement of the hearings. Counsel for Elizaphan Ntakirutimana had suffered an automobile accident which required extensive surgery and necessitated a prolonged post-operatic recovery period. He had been advised against long air travel. The Appeals Chamber noted that Mr. Clark was the sole counsel for Elizaphan Ntakirutimana and had represented him continuously during the proceedings before the Tribunal. It considered Mr. Clark’s participation at the hearing essential to the proper consideration of these Appeals. Consequently, the Appeals Chamber re-scheduled the hearing of the Appeals to Wednesday, 7 July, Thursday, 8 July, and Friday, 9 July 2004. [982]