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International Criminal Tribunal for Rwanda Appeals Chamber: Kajelijeli v. The Prosecutor

Published online by Cambridge University Press:  27 February 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 44 , Issue 5 , September 2005 , pp. 1129 - 1204
Copyright
Copyright © American Society of International Law 2005

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References

1 For ease of reference, two annexes are appended to this Judgement: Annex A - Procedural Background and Annex B - Cited

2 Trial Judgement, para. 5.

3 Trial Judgement, paras. 6, 739.

4 Trial Judgement, para. 277.

5 Trial Judgement, para. 404.

6 See generally Kajelijeli, Amended Indictment, 25 January 2001.

7 Trial Judgement, paras. 817-845, 896-907.

8 Trial Judgement, para. 942.

9 Trial Judgement, paras. 856-861, 942.

10 See, e.g., Trial Judgement, paras. 832, 988.

11 See, e.g., Trial Judgement, paras. 824, 834.

12 See Trial Judgement, paras. 822, 824, 834.

13 Trial Judgement, paras. 968, 969.

14 Amended Notice of Appeal, p. 28; Appellant's Brief, p. 5.

15 Vasiljević Appeal Judgement, para. 6 (internal citations omitted).See also, e.g., Blaškić Appeal Judgement, para. 14;Niyitegeka Appeal Judgement, para. 7;Rutaganda Appeal Judgement, para. 20;Musema Appeal Judgement, para. 16.

16 Krstić Appeal Judgement, para. 40 (internal citations omitted).See also, e.g., Blaškić Appeal Judgement, paras. 16-19; Nyilegeka Appeal Judgement, para. 8.

17 Niyitegeka Appeal Judgement, para. 9.

18 Niyitegeka Appeal Judgement, para. 9.See also, e.g., Blaškić Appeal Judgement, para. 13;Rutaganda Appeal Judgement, para. 18.

19 Practice Direction on Formal Requirements for Appeals from Judgement, para. 4(b).See also Blaškić Appeal Judgement, para. 13;Niyitegeka Appeal Judgement, para. 10;Vasiljević Appeal Judgement, para. 11;Rutaganda Appeal Judgement, para. 19;Kayishema and Ruzindana Appeal Judgement, para. 137.

20 Vasiljević Appeal Judgement, para. 12.See also Blaškić Appeal Judgement, para. 13;Niyitegeka Appeal Judgement, para. 10;Kunarac et al. Appeal Judgement, paras. 43, 48.

21 Niyitegeka Appeal Judgement, para. 11.See also, e.g., Rutaganda Appeal Judgement, para. 19;Kunarac et al. Appeal Judgement, para. 47.

22 Niyitegeka Appeal Judgement, para. 11.See also, e.g., Blaškić Appeal Judgement, para. 13;Vasiljević Appeal Judgement, para. 12;Rutaganda Appeal Judgement, para. 19;Kunarac et al. Appeal Judgement, para. 48.

23 Amended Notice of Appeal, para. 11; Appellant's Brief, paras. 61, 62.

24 Appellant's Brief, para. 62.

25 Appellant's Brief, para. 62.

26 Respondent's Brief, para. 76.

27 See Amended Notice of Appeal, para. 11; Appellant's Brief, para. 61.

28 Trial Judgement, para. 37.

29 See, e.g., Trial Judgement, paras. 498-508 (witnesses from both sides testifying regarding the murder of Rukara); 652- 655, 662-665 (testimonies of rape victims).

30 Trial Judgement, paras. 542, 580, 589.

31 See Trial Judgement, paras. 37-40.

32 Amended Notice of Appeal, paras. 12-17; Appellant's Brief, paras. 63-79.

33 Appellant's Brief, para. 79.

34 The Appellant does not identify who these six witnesses are(see Appellant's Brief, para. 64), but he does name the following seven Prosecution witnesses as “common criminals most of whom the Appellant himself had sanctioned or arrested and imprisoned'': GBV, GBE, GBH, GAO, GDD, GDQ, GAP.See Appellant's Brief, para. 63 n. 3.

35 Appellant's Brief, para. 79.

36 Amended Notice of Appeal, para. 13; Appellant's Brief, para. 65.

37 Amended Notice of Appeal, para. 15; Appellant's Brief, paras. 67, 79.

38 Respondent's Brief, para. 77.

39 See Respondent's Brief, para. 77 n. 32.

40 See, e.g., Trial Judgement, paras. 146-156

41 See Trial Judgement, para. 147.

42 Amended Notice of Appeal, para. 15.

43 See Trial Judgement, para. 223;see also detailed discussion of Witness JK312's credibilityinfra Chapter V.

44 See Trial Judgement, paras. 224, 227. Nevertheless, the Trial Chamber stated that it will consider’ ‘the full evidence adduced in relation to the alibi when making its findings.”Id., para. 231.

45 Trial Judgement, para. 70.

46 Amended Notice of Appeal, para. 18; Appellant's Brief, pams. 80-93.

47 Appellant's Brief, para. 87.

48 Appellant's Brief, para. 90.

49 Appellant's Brief, para. 92.

50 Respondent's Brief, para. 78.

51 Respondent's Brief, para. 78.

52 Respondent's Brief, para. 79.

53 Respondent's Brief, para. 79.

54 Amended Notice of Appeal, paras. 19, 20; Appellant's Brief, para. 99.

55 Amended Notice of Appeal, para. 20.See also Appellant's Brief, para. 99.

56 Appellant's Brief, para. 102.

57 Respondent's Brief, para. 85.

58 Respondent's Brief, para. 85.

59 Respondent's Brief, para. 91.

60 Respondent's Brief, paras. 90, 91.

61 Trial Judgement, paras. 99-113

62 Trial Judgement, para. 115.

63 See Trial Judgement, paras. 483, 624 (GAP); paras. 400, 491, 492, 499, 519, 531, 534, 545, 621, 695 (GAO); paras. 529, 708,712-714 (GDQ); paras. 546,553 (GBV); para. 591 (GBG and ACM); paras. 465, 469, 472, 476, 606-609, 695, 697 (GDD).

64 Appellant's Brief, paras. 107, 108.

65 Amended Notice of Appeal, paras. 21-23; Appellant's Brief, paras. 107, 108.

66 Appellant's Brief in Reply, para. 26.

67 See infra Chapter XXIII.

68 Amended Notice of Appeal, paras. 24-36; Appellant's Brief, paras. 110-130.

69 Respondent's Brief, para. 93.

70 See supra Chapter II.

71 See, e.g., Trial Judgement, paras. 146-156, 467, 704.

72 See Trial Judgement, para. 147.

73 Appellant's Brief, paras. 121, 124, 128.

74 Appellant's Brief, para. 120.

75 Practice Direction on Formal Requirements for Appeals from Judgement, paras. 4(b), 13.See also Blaškić Appeal Judgement, para. 13;Niyitegeka Appeal Judgement, para. 10;Vasil-jević Appeal Judgement, paras. 11, 12;Rutaganda Appeal Judgement, para. 19; Kayishema and Ruzindana Appeal Judgement, para. 137.

76 Appellant's Brief, paras. 123, 125.

77 Trial Judgement, para. 467.

78 Trial Judgement, para. 467.

79 Amended Notice of Appeal, para. 37; Appellant's Brief, para. 131.

80 Amended Notice of Appeal, paras. 38-49; Appellant's Brief, paras. 137-150.

81 Appellant's Brief, para. 131.

82 Appellant's Brief, para. 133, citingČelebići Case Appeal Judgement, para. 581.

83 Appellant's Brief, paras. 132, 133.

84 Appellant's Brief, para. 136.

85 Respondent's Brief, para. 105.

86 Respondent's Brief, paras. 107-110.

87 Respondent's Brief, para. 109.

88 See Appeal Hearing, T. 7 March 2005 pp. 29, 43^5.

89 Appeal Hearing, T. 7 March 2005 p. 44.

90 Trial Judgement, paras. 165, 166 (internal citations omitted).

91 See Niyitegeka Appeal Judgement, para. 60 citingKayishema and Ruzindana Appeal Judgement, para. 106.

92 Niyitegeka Appeal Judgement, para. 60 (internal citations omitted).See also Čelebići Case Appeal Judgement, para. 581;Musema Appeal Judgement, para. 202;Kayishema and Ruzindana Appeal Judgement, para. 113.

93 Trial Judgement, para. 206; Amended Notice of Appeal, paras. 39, 40; Appellant's Brief, para. 140.

94 Amended Notice of Appeal, para. 45; Appellant's Brief, paras. 141, 142.

95 Amended Notice of Appeal, para. 46; Appellant's Brief, paras. 143, 144.

96 Amended Notice of Appeal, para. 48; Appellant's Brief, para. 147.

97 Respondent's Brief, para. 114.

98 Respondent's Brief, para. 115.

99 Respondent's Brief, para. 115.

100 Trial Judgement, para. 223.

101 See Trial Judgement, para. 206 n. 303.

102 See Trial Judgement, para. 223 (“As a Tutsi who was admittedly fearing for his life, the Chamber finds it implausible that he would have walked to the house of the Accused, especially in view of the fact that according to his own testimony, he was able to make a telephone call to the Accused that same morning, and discuss his safety and to request assistance.“).

103 Trial Judgement, para. 223.

104 For example, the witness, who was testifying in French, gave an answer to a simple “why” question posed by the Prosecution in English, which appeared to be evasive: Q. Witness, you went to Mr. Kajelijeli for assistance that day. Why did you go to him? A. I said so this morning. I went to him in the morning on the 7th of April ‘94. Q. I said why. A. I went to him to ask him more information, but also to ask him for some help as he had done in the past. I thought he could help me once again. T. 16 September 2002 p. 76 (emphasis added). In the French version of the transcript, however, the exchange is slightly different. It is apparent from the French transcript that the witness was initially asked “when” he went to the Appellant's house and not “why” he went there: Q. Monsieur le Témoin, vous dites sêtre rendu au domicile de Monsieur Kajelijeli pour sollicker une assistance. Quand est-ce que vous êtes allé à son domicile? LE TÉMOIN JK 312 : R. Je l'ai dit ce matin, je suis allé chez lui, dans la matinée, et en date du 7 avril 94. Q. J'ai demandé quelle raison… pour quelle raison vous êtes allé chez lui? R. Je suis allé pour lui demander, exactement… pour avoir de plus amples informations, mais aussi, pour lui demander secours aussi. Comme il l'avait fait dans le passé, j'espérais alors qu'il pouvait m'aider, une fois encore. T. 16 September 2002 p. 135 (emphasis added).

105 See Trial Judgement, para. 223 (“From the observations of the Chamber, it was apparent in the witness's demeanour that in answering these questions and others, the witness appeared more interested in protecting the Accused than in giving straightforward answers to questions put to him.“).

106 Amended Notice of Appeal, para. 38; Appellant's Brief, paras. 137, 138.

107 Respondent's Brief, para. 116.

108 Respondent's Brief, para. 116.

109 See Trial Judgement, paras. 110, 196, 222.

110 See T. 16 September 2002 pp. 68, 69, 71, 72.

111 T. 16 September 2002 p. 94: Q. The Prosecutor, before the break, had said to you, howcould you explain that you remembered the times, for example, when you made a call to Kajelijeli when you heard of the President's death, when you went to his house and the time that you left there? A. You know, when I was scared in a scary situation, I was aware, I am a person who is aware of things. Can you imagine that I cover a distance of 400, 500 metres, and I was able to calculate the time I spent. I left immediately as soon as I got to my sitting room. There was a clock in the sitting room. I saw it. But, then, from that time onwards all that I did is estimations. So this is why I said it took me 20 to 30 minutes. You see, these are estimations, these are estimates; however, given that I had other things to do than look at the clock every time, so part of my confidence — I do hope anyway I have responded to your question, sir.

112 Amended Notice of Appeal, para. 49; Appellant's Brief, paras. 148, 149.

113 Appellant's Brief, para. 150.

114 Respondent's Brief, para. 119.

115 Respondent's Brief, para. 118.

116 T. 17 September 2002 p. 105.

117 Musema Appeal Judgement, para. 20.

118 Musema Appeal Judgement, para. 18 (internal citations omitted).

119 Musema Appeal Judgement, para. 20 (emphasis added) (“This is particularly so in the evaluation of witness testimony, including inconsistencies and the overall credibility of a witness.“).

120 Kvočka et al. Appeal Judgement, para. 23; elebiji Case Appeal Judgement, paras. 483, 485, 498.

121 Kordi﹜ and erkez Appeal Judgement, para. 383;Kvočka et al. Appeal Judgement, para. 23.

122 Rutaganda Appeal Judgement, paras. 217, 228.

123 See Trial Judgement, paras. 37—44.

124 Bagilishema Appeal Judgement, para. 75;Kupreški﹜ et al. Appeal Judgement, paras. 39, 40, 135.

125 Trial Judgement, para. 696 (’ ‘Furthermore, the Chamber notes that all the major sites in Mukingo and Nkulicommunes where the Accused is alleged to have been involved are within short distances of each other. The Chamber finds that during the events alleged to have happened from 6 April to 14 April 1994, the Accused was in a position to move around from one place to another within thecommunes of Mukingo and Nkuli within a short space of time. The evidence presented by the Defence regarding difficulty of movement is of little persuasive value. According to the evidence before it, the Chamber finds no impossibility in the Accused's presence at several different locations within the Nkuli or MukingoCommunes on the same day or evening.“).

126 Even if the various witnesses provided somewhat varying accounts of where the Appellant was at certain particular times of the day, such inconsistencies are to be expected in witness recollections of stressful situations and need not all be explained by the Trial Chamber.See Kvočka et al. Appeal Judgement, para. 23 (“Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail.“).

127 Amended Notice of Appeal, paras. 51, 52; Appellant's Brief, para. 152.

128 Appellant's Brief, para. 153.

129 Appellant's Brief in Reply, para. 44.

130 Amended Notice of Appeal, para. 50; Appellant's Brief, para. 151.

131 Respondent's Brief, para. 123.

132 Respondent's Brief, para. 122.

133 Trial Judgement, para. 313-320.

134 See Amended Notice of Appeal, para. 50; Appellant's Brief, para. 151 referring to Trial Judgement, paras. 251, 252.

135 Amended Notice of Appeal, paras. 53-66; Appellant's Brief, paras. 157-171.

136 Amended Notice of Appeal, para. 64; Appellant's Brief, paras. 157,-159.

137 Appellant's Brief, paras. 159, 162.

138 Amended Notice of Appeal, para. 66; Appellant's Brief, para. 171.

139 Amended Notice of Appeal, para. 65; Appellant's Brief, paras. 158,163, 164, 165.

140 Amended Notice of Appeal, paras. 53-55, 61.

141 Amended Notice of Appeal, paras. 59, 62.

142 Appellant's Brief, paras. 160, 161, 170.

143 Appellant's Brief, para. 168.

144 Amended Notice of Appeal, para. 63; Appellant's Brief, para. 169.

145 Respondent's Brief, paras. 127-131.

146 See Trial Judgement, paras. 333-395.

147 Trial Judgement, para. 400.

148 See Trial Judgement, para. 367.See also Trial Judgement, para. 393 (noting the evidence of Witness TLA that there was no military training of youths at the Isimbi house).

149 See Musema Appeal Judgement, para. 20 (“It does not necessarily follow that because a Trial Chamber did not refer to any particular evidence or testimony in its reasoning, it disregarded it.“).

150 Amended Notice of Appeal, paras. 67-76; Appellant's Brief, paras. 172-194; Appellant's Brief in Reply, paras. 47-49.

151 Amended Notice of Appeal, paras. 129-131; Appellant's Brief, paras. 347-354; Appellant's Brief in Reply, paras. 95, 96. The Appeals Chamber notes that although the Appellant does not refer to Kigombe Commune in the title of his Ground of Appeal 21, he contests the findings of the Trial Chamber with regard to Kigombe Commune as well in the text of his Notice of Appeal and Brief.

152 Appellant's Brief, paras. 172-194 referring to Trial Judgement, paras. 404, 609, 626, 739, 781.

153 Amended Notice of Appeal, para. 68; Appellant's Brief, para 189.

154 Appellant's Brief, paras. 176, 177, 350, 351, 353.

155 Appellant's Brief, paras. 178-188,190-193; Appellant's Brief in Reply, paras. 47-49.

156 Appellant's Brief, paras. 185-187.

157 Appellant's Brief, paras. 180, 190-194.

158 Respondent's Brief, paras. 132, 133, 136-139

159 Respondent's Brief, para. 140.

160 Respondent's Brief, paras. 142, 145.

161 Respondent's Brief, para. 146.

162 Trial Judgement, paras. 842, 843, 905, 906.

163 See Trial Judgement, paras. 842, 843, 905, 906.

164 InKordić and Čerkez, the ICTY Appeals Chamber stated the following in that regard: The provisions of Article 7(1) and Article 7(3) of the Statute connote distinct categories of criminal responsibility. However, the Appeals Chamber considers that, in relation to a particular count, it is not appropriate to convict under both Article 7(1) and Article 7(3) of the Statute. Where both Article 7(1) and Article 7(3) responsibility are alleged under the same count, and where the legal requirements pertaining to both of these heads of responsibility are met, a Trial Chamber should enter a conviction on the basis of Article 7(1) only, and consider the accused's superior position as an aggravating factor in sentencing. … The Appeals Chamber therefore considers that the concurrent conviction pursuant to Article 7(1) and Article 7(3) of the Statute in relation to the same counts based on the same facts, as reflected in the Disposition of the Trial Judgement, constitutes a legal error invalidating the Trial Judgement in this regard.Kordić and Čerkez Appeal Judgement, paras. 34, 35 (citations omitted).See also Blaškić Appeal Judgement, paras. 91, 92.

165 Kordić and Čerkez Appeal Judgement, para. 34 quotingBlaškić Appeal Judgement, para. 91.

166 Čelebići Case Appeal Judgement, para. 745 (emphasis added).

167 Čelebići Case Appeal Judgement, para. 763 (emphasis added).

168 Appellant's Brief, paras. 183, 184 quotingČelebići Case Trial Judgement, paras. 183, 646.

169 Appellant's Brief, paras. 185 (quotingČelebići Case Trial Judgement, para. 646), 186, 187, 191.

170 Appellant's Brief, paras. 186, 191; Appellant's Brief in Reply, para. 49.

171 See Trial Judgement, para. 773.

172 Bagilishema Appeal Judgement, para. 50 citingČelebići Case Appeal Judgement, para. 192.

173 Bagilishema Appeal Judgement, para. 51;see also Čelebići Case Appeal Judgement, paras. 196, 197.

174 Bagilishema Appeal Judgement, para. 52.

175 Čelebići Case Appeal Judgement, para. 256 (internal citations omitted) (emphasis added);see also Bagilishema Appeal Judgement, para. 51 quotingMusema Trial Judgement, para. 135.

176 Bagilishema Appeal Judgement, para. 55.

177 Bagilishema Appeal Judgement, para. 55 (emphasis added).

178 Amended Notice of Appeal, para. 68; Appellant's Brief, paras. 176, 177, 189, 194, 350, 351, 353, referring to Trial Judgement, paras. 404, 609, 626, 739, 781.

179 Appellant's Brief, paras. 176, 177, 353.

180 The Appeals Chamber rejects the Appellant's assertion in his Notice of Appeal that the Trial Chamber “ignored” the testimony of Witness RGM.See Appellant's Amended Notice of Appeal, para. 68. The Appeals Chamber notes that in para. 527 of the Trial Judgement, the Trial Chamber carefully assessed the credibility of Witness RGM and found him to be unreliable with regard to his testimony on the presence of the Appellant at the scenes of the crimes because he seemed to deliberately remove the Appellant from any of the events with which he was charged. Nevertheless, the Trial Chamber found that Witness RGM did provide detailed and informed evidence with regard to many of the events at issue in the trial and took the witness's testimony into account several times throughout the Trial Judgement.See, e.g., Trial Judgement, paras. 538-541, 564, 600, 615, 621, 633, 635, 678, 700. The Appeals Chamber finds that the Appellant fails to demonstrate how the Trial Chamber's conclusions with regard to the testimony of Witness RGM were unreasonable.See also discussion of Witness RGMinfra Chapter XI.

181 See Appellant's Brief, para. 353 n. 204.

182 Kayishema and Ruzindana Appeal Judgement, para. 299.

183 Kayishema and Ruzindana Appeal Judgement, para. 299.

184 Trial Judgement, para. 739.See also Trial Judgement, paras. 531, 559, 597, 625.

185 Amended Notice of Appeal, paras. 77-83.

186 Appellant's Brief, paras. 195-207.

187 Respondent's Brief, para. 149.

188 Respondent's Brief, para. 150.

189 See supra Chapter IV.

190 T. 3 October 2001 p. 134.

191 T. 3 October 2001 p. 134. (“Well, I told him — I asked him, you know, if I were to give you information, what would it be my interest, or what interest I derive from it? He told me there wouldn't be anything because ICTR — how should I put it? Yes, thank you. So he told me that ICTR could not issue instructions or go against instructions issued by Court in Rwanda. So I said, thank you. I am disappointed because I would want to be released, but since ICTR cannot do anything about my case, well, I will tell you the truth.“).

192 Appellant's Brief, paras. 199, 201-203.

193 Rutaganda Appeal Judgement, para. 443.See also Musema Appeal Judgement, para. 89; elebiji Case Appeal Judgement, para. 497;Kupreski﹜ et al. Appeal Judgement, para. 156.

194 See T. 4 October 2001 pp. 68-100.

195 Trial Judgement, para. 467.

196 Amended Notice of Appeal, para. 84; Appellant's Brief, para. 208.

197 Amended Notice of Appeal, para. 86; Appellant's Brief, para. 210.

198 Amended Notice of Appeal, para. 85; Appellant's Brief, para. 209.

199 Appellant's Brief, para. 211.

200 Respondent's Brief, para. 154.

201 Respondent's Brief, paras. 155, 156.

202 Respondent's Brief, para. 157.

203 Appellant's Brief, para. 210.

204 Appellant's Brief in Reply, para. 58.

205 Appellant's Brief in Reply, para. 57.

206 See Appellant's Brief in Reply, n. 39.

207 See Practice Direction on Formal Requirements for Appealsfrom Judgements, paras. 4(b), 9.

208 See Trial Judgement, para. 481.

209 Trial Judgement, para. 48

210 Rutaganda Appeal Judgement, para. 21.

211 Appellant's Brief, para. 211 citing T. 3 December 2001 p. 48.

212 T. 3 December 2001 p. 48.

213 T. 3 December 2001 pp. 48-50.See also T. 4 December 2001 pp. 78, 79 (re-examination): Q. Thank you very much. Now, I want to ask you — I want you to tell this court about the charges you currently face in Rwanda. You told this court, in cross-examination, that you were not facing the death penalty and you also told this court that you are not likely to be imprisoned. Were you, in any way, asked by the Rwandan authorities to come and testify in this court in return for a lighter sentence? A. No, the Rwandan authorities have not made any promise to me. They never promised to give me a lighter sentence. Besides, I'm very sure that I'll be found innocent, because all the charges brought against me, in fact, should have been brought against Kajelijeli, because he is the one who committed the acts that are being charged to me.

214 Amended Notice of Appeal, para. 104; Appellant's Brief, para. 212.

215 Amended Notice of Appeal, para. 88; Appellant's Brief, para. 218.

216 Appellant's Brief, para. 214.

217 Appellant's Brief, para. 214.

218 Appellant's Brief, para. 217.

219 Amended Notice of Appeal, para. 91; Appellant's Brief, paras. 221, 222.

220 Appellant's Brief, para. 215; Appellant's Brief in Reply, para. 61.

221 Amended Notice of Appeal, para. 92; Appellant's Brief, para. 219.

222 Respondent's Brief, para. 160.

223 Respondent's Brief, para. 160.

224 Respondent's Brief, para. 160.

225 Respondent's Brief, para. 161.

226 See Trial Judgement, para. 519.

227 See Trial Judgement, para. 522.

228 Trial Judgement, para. 522.

229 See Amended Notice of Appeal, para. 92.

230 Trial Judgement, para. 523 (emphasis added).

231 Amended Notice of Appeal, para. 93; Appellant's Brief, para. 220; Appellant's Brief in Reply, paras. 62, 65.

232 Trial Judgement, para. 525.

233 See Trial Judgement, paras. 499, 500.

234 The Appeals Chamber recalls that the Appellant's Brief in Reply is to be ‘ ‘limited to arguments in reply to the Respondent's Brief”. Practice Direction on Formal Requirements for Appeals from Judgement, para. 6. The Appellant has not identified which argument from the Respondent's Brief this submission is in reply to and, indeed, it does not appear that the Prosecution has addressed this matter in the Respondent's Brief.

235 Appellant's Brief in Reply, para. 62.

236 Appellant's Brief in Reply, para. 62.

237 See Appellant's Brief in Reply, n. 45.

238 Trial Judgement, para. 485.

239 Vasiljević Appeal Judgement, para. 12.See also Blaškić Appeal Judgement, para. 13;Niyitegeka Appeal Judgement, para. 10;Kunarac et al. Appeal Judgement, paras. 43, 48.

240 Amended Notice of Appeal, para. 94; Appellant's Brief, para. 213.

241 See Trial Judgement, para. 503.

242 See Trial Judgement, para. 501.

243 See Trial Judgement, para. 526.

244 See Trial Judgement, para. 529.

245 Trial Judgement, para. 530.

246 Amended Notice of Appeal, para. 87.

247 Amended Notice of Appeal, paras. 89, 90; Appellant's Brief, paras. 213, 230, 232; Appellant's Brief in Reply, para. 70.

248 Amended Notice of Appeal, para. 95; Appellant's Brief, para. 233; Appellant's Brief in Reply, paras. 72, 73.

249 Respondent's Brief, para. 164.

250 Respondent's Brief, para. 166.

251 Respondent's Brief, para. 166.

252 Respondent's Brief, para. 166.

253 Respondent's Brief, para. 167.

254 Trial Judgement, para. 511 (“Defence Witness MEM testified that he did not see the Accused at Byangabo Market at the time of Rukara's beating. The Witness confirmed that he did not see the Accused, the Accused's vehicle or the communal vehicle in or around Byangabo Market between 6:30am and 4:00pm on 7 April 1994.“).

255 Trial Judgement, para. 526.

256 See Trial Judgement, paras. 495, 509-511.

257 Trial Judgement, para. 526.

258 Amended Notice of Appeal, para. 96; Appellant's Brief, paras. 224-228; Appellant's Brief in Reply, paras. 68, 69.

259 Respondent's Brief, para. 163.

260 Trial Judgement, para. 527.

261 Trial Judgement, para. 527.

262 Trial Judgement, para. 527.

263 Amended Notice of Appeal, paras. 97, 98; Appellant's Brief, paras. 238, 239; Appellant's Brief in Reply, para. 76.

264 Respondent's Brief, paras. 170-172.

265 See Trial Judgement, paras. 528, 496.

266 Amended Notice of Appeal, paras. 87, 99, 102, 103; Appellant's Brief, paras. 233-236; Appellant's Brief in Reply, para. 75.

267 Respondent's Brief, para. 168.

268 Respondent's Brief, para. 169.

269 Respondent's Brief, para. 169.

270 Trial Judgement, paras. 513-516.

271 See Trial Judgement, para. 532.

272 See Čelebići Case Appeal Judgement, para. 481.

273 Appellant's Brief, para. 240.

274 Appellant's Brief, para. 247

275 Appellant's Brief in Reply, para. 77.

276 Appellant's Brief in Reply, para. 78.

277 Appellant's Brief, para. 248.

278 Appellant's Brief, para. 249.

279 Appellant's Brief, para. 256.

280 Appellant's Brief, para. 249; Appellant's Brief in Reply, para. 79.

281 Amended Notice of Appeal, para. 107; Appellant's Brief, para.251; Appellant's Brief in Reply, paras. 82, 83.

282 Amended Notice of Appeal, paras. 105,108,109; Appellant's Brief, para. 253; Appellant's Brief in Reply, para. 81.

283 Appellant's Brief, paras. 257, 260.

284 Appellant's Brief, para. 261.

285 Appellant's Brief, paras. 263,264; Appellant's Brief in Reply, para. 81.

286 Amended Notice of Appeal, para. 106.

287 Appellant's Brief, para. 252.

288 Respondent's Brief, para. 174.

289 Respondent's Brief, para. 176.

290 Respondent's Brief, para. 180.

291 Respondent's Brief, para. 181.

292 Respondent's Brief, para. 182.

293 Respondent's Brief, para. 182.

294 Trial Judgement, para. 545; T. 23 July 2001 pp. 26-28.

295 Trial Judgement, para. 546.

296 T. 4 December 2001 p. 61.

297 Trial Judgement, para. 518.

298 Trial Judgement, para. 551.

299 Niyitegeka Appeal Judgement, paras. 115, 124;Bagilishema Appeal Judgement, para. 88;Musema Appeal Judgement, para. 18;Kayishema and Ruzindana Appeal Judgement, para. 165;Čelebići Case Appeal Judgement, para. 481;Furundžija Appeal Judgement, para. 69.

300 See Trial Judgement, para. 557.

301 Trial Judgement, para. 527.See supra Chapter XI.

302 Trial Judgement, paras. 542, 543.

303 See Trial Judgement, paras. 544-549.

304 Niyitegeka Appeal Judgement, paras. 115, 124;Bagilishema Appeal Judgement, para. 88;Musema Appeal Judgement, para. 18;Kayishema and Ruzindana Appeal Judgement, para. 165;Čelebići Case Appeal Judgement, para. 481;Furundžija Appeal Judgement, para. 69.

305 See supra Chapter XI.

306 Amended Notice of Appeal, para. 106.

307 Amended Notice of Appeal, para. 115; Appellant's Brief, para. 265.

308 Amended Notice of Appeal, para. 115; Appellant's Brief, para. 265.

309 Amended Notice of Appeal, para. 114; Appellant's Brief, para. 290. Although the Amended Notice of Appeal refers to Witness “GBE”, it is clear from the Appellant's Brief and from the cited text of the Trial Judgement that the Appellant is referring to Witness “GBG”.

310 Amended Notice of Appeal, paras. 110, 112, 113; Appellant's Brief in Reply, para. 86.

311 Appellant's Brief, para. 267.

312 Appellant's Brief, paras. 274, 284.

313 Appellant's Brief, para. 275.

314 Appellant's Brief, para. 287.

315 Appellant's Brief, paras. 277, 281.

316 Appellant's Brief, para. 286.

317 Respondent's Brief, para. 186.

318 Respondent's Brief, paras. 187, 189.

319 Respondent's Brief, paras. 190, 193, 195.

320 Respondent's Brief, para. 197.

321 See Trial Judgement, paras. 592-594.

322 Trial Judgement, para. 595.

323 Trial Judgement, para. 595.

324 T. 11 December 2001 p. 87 (“A. I signed my statement soon after I made it. Q. Did they read the statement back to you in Kinyarwandan and ask you whether or not that statement was truthful and accurate? A. No, when I made my statement, it was not re-read to me — it was not read back to me. I had confidence in these people. They said they had — they had written down the statement I gave to them, and I signed without it being read back to me.'’).See also T. 11 December 2001 p. 98; T. 12 December 2001 p. 17.

325 See Trial Judgement, paras. 579-581 (MLCF); 573, 574, 577, 578 (RHU25); 575, 582, 583 (RHU23); 584, 585 (RHU29); 587-590 (KAA).

326 Trial Judgement, para. 581.

327 Trial Judgement, para. 578.

328 Trial Judgement, para. 590.

329 Trial Judgement, paras. 582 (RHU23), 584 (RHU29).

330 Trial Judgement, para. 596.

331 Amended Notice of Appeal, para. 116; Appellant's Brief, para. 299.

332 Appellant's Brief, paras. 303, 304.

333 Respondent's Brief, para. 198.

334 Musema Appeal Judgement, para. 82.

335 Amended Notice of Appeal, para. 117; Appellant's Brief, para. 305.

336 Appellant's Brief, para. 307.

337 Appellant's Brief, para. 308.

338 Respondent's Brief, para. 201.

339 Niyitegeka Appeal Judgement, para. 92.See also, e.g., Rutaganda Appeal Judgement, para. 29;Musema Appeal Judgement, paras. 36-38; elebiji Case Appeal Judgement, para. 506;Aleksovski Appeal Judgement, paras. 62-63;Kupreški) et al. Appeal Judgement, para. 33.

340 Trial Judgement, para. 467.

341 See supra Chapters IV and IX.

342 Amended Notice of Appeal, paras. 119-121; Appellant's Brief, para. 318.

343 Amended Notice of Appeal, para. 118; Appellant's Brief, para. 309.

344 Appellant's Brief, paras. 310, 311

345 Appellant's Brief, para. 312.

346 Appellant's Brief, paras. 312-314; Appellant's Brief in Reply para. 88.

347 Appellant's Brief, paras. 315-317.

348 Respondent's Brief, para. 203.

349 Respondent's Brief, para. 205.

350 Respondent's Brief, para. 210.

351 Respondent's Brief, para. 207.

352 Respondent's Brief, paras. 211, 212.

353 See Trial Judgement, para. 527.See also supra Chapter XI.

354 T. 23 July 2001 pp. 40, 41.

355 T. 24 July 2001 pp. 64, 65.

356 See supra Chapter XI.

357 Musema Appeal Judgement, para. 20.

358 Trial Judgement, para. 619.

359 See Trial Judgement, paras. 613-617.

360 Amended Notice of Appeal, para. 122; Appellant's Brief, para. 319.

361 Appellant's Brief, paras. 323, 324.

362 Appellant's Brief in Reply, paras. 91-93.

363 Amended Notice of Appeal, para. 124.

364 Amended Notice of Appeal, para. 123.

365 Amended Notice of Appeal, para. 125.

366 Appellant's Brief, paras. 325, 326.

367 Appellant's Brief, paras. 320, 321.

368 Respondent's Brief, para. 215.

369 Respondent's Brief, para. 216.

370 Respondent's Brief, para. 217.

371 See Amended Notice of Appeal, para. 125.

372 Trial Judgement, para. 713.

373 Trial Judgement, para. 713.

374 Trial Judgement, para. 713.

375 Trial Judgement, para. 713.

376 Trial Judgement, para. 713.

377 T. 11 December 2002 pp. 59, 60.

378 T. 11 December 2002 p. 62.

379 Appellant's Brief, paras. 325, 326.

380 Appellant's Brief, para. 320.

381 Appellant's Brief, para. 320.

382 T. 26 November 2001 pp. 104-126; T. 27 November 2001 pp. 6-92; T. 28 November 2001 pp. 63-79.

383 T. 27 November 2001 pp. 18, 19.

384 Amended Notice of Appeal, para. 126; Appellant's Brief, para. 327.

385 Amended Notice of Appeal, para. 127; Appellant's Brief, para. 330.

386 Amended Notice of Appeal, para. 128; Appellant's Brief, para. 341.

387 Respondent's Brief, para. 220.

388 Appellant's Brief, para. 328.

389 See Appellant's Brief, n. 199.

390 See supra Chapters XI, XVI.

391 The Appellant makes no attempt to explain how findings about this event, which took place on 8 April 1994, could support his contention of an error in the Trial Chamber's findings of his responsibility for events that took place on 7 April 1994.

392 See supra Chapters XI, XII, XIII, XVII.

393 Appellant's Brief, paras. 342, 344.

394 Appellant's Brief, para. 343.

395 Appellant's Brief, para. 345.

396 See Grounds of Appeal 6, 9, 13, 14, 18.

397 See Trial Judgement, para. 699.

398 Trial Judgement, para. 701.

399 Trial Judgement, para. 695.

400 Kajelijeli, Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing (“Decision of 8 May 2000“).

401 The Appeals Chamber notes that while the heading of this ground of appeal suggests that the Appellant is only challenging the Trial Chamber's Decision of 8 May 2000 on personal jurisdiction, he, in fact, is also challenging a later decision on jurisdiction by the Trial Chamber as to its temporal jurisdiction:Kajelijeli, Decision on the Defence Motion Objecting to the Jurisdiction of the Tribunal (“Decision of 13 March 2001“).See Appellant's Brief, para. 371.

402 Amended Notice of Appeal, para. 132; Appellant's Brief, paras. 355-372; Appellant's Brief in Reply, paras. 97, 98.

403 Appeal Hearing, T. 7 March 2005 p. 12.

404 Appeal Hearing, T. 7 March 2005 p. 13.

405 Respondent's Brief, paras. 230, 235-247.

406 Respondent's Brief, paras. 231, 248-252.

407 Respondent's Brief, paras. 233, 253-269.

408 Respondent's Brief, paras. 234, 270-277.

409 See Kajelijeli, Order, 10 August 2000.See also Kajelijeli, Scheduling Order, 26 July 2000;Kajelijeli, Order (On Motion to Grant Relief from Dismissal of Appeal), 12 December 2000.

410 See Decision of 13 March 2001, para. 1.

411 See Decision of 13 March 2001, para. 1. Article 1 of the Tribunal's Statute provides, in relevant part, that “[t]he International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law … between 1 January 1994 and 31 December 1994. …” Article 7 of the Tribunal's Statute states that ”… [t]he temporal jurisdiction of the International Tribunal for Rwanda shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994.“

412 Decision of 13 March 2001, para. 6.

413 Decision of 13 March 2001, para. 5.

414 Decision of 16 November 2001, p. 4.

415 Decision of 16 November 2001, p. 4.

416 Decision of 16 November 2001, p. 4.

417 Black's Law Dictionary (8th ed. 2004). A limited exception to the doctrine ofres judicata barring review of final judgements is found under Article 25 of the Statute and Rules 120 and 121 of the Rules whereby a final judgement may be reviewed when a new fact is discovered that was not known at the time of the original proceedings either before the Trial or Appeals Chambers, could not have been discovered through the exercise of due diligence, and could have been a decisive factor in reaching the final decision.

418 Under this Tribunal's jurisprudence, interlocutory appeal decisions are not considered ‘ ‘final judgements” unless they terminate the proceedings between the parties, which is not the case here.See Barayagwiza, Decision (Prosecutor's Request for Review or Reconsideration), paras. 49, 51.

419 Čelebići Case Sentencing Appeal Judgement, paras. 48-60.

420 Nahimana et al, Decision on Jean-Bosco Barayagwiza's Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, p. 2.

421 Dragan Nikolić, Decision on Interlocutory Appeal Concerning Legality of Arrest, para. 30.

422 Barayagwiza, Decision, 3 November 1999, para. 74.

423 Dragan Nikolić, Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, para. 114, affirmed byDragan Nikolić, Decision on Interlocutory Appeal Concerning Legality of Arrest, paras. 28, 30.

424 Dragan Nikolić, Decision on Interlocutory Appeal Concerning Legality of Arrest, para. 30.

425 Niyitegeka Appeal Judgement, para. 7.See also Rutaganda Appeal Judgement, para. 20;Musema Appeal Judgement, para. 16.

426 The Appeals Chamber notes that the Appellant failed to argue this issue before the Trial Chamber even after being directed to do so by the Appeals Chamber in its interlocutory Decision of 16 November 2001. However, the Appeals Chamber considers that this oversight by the Appellant does not bar it from considering the issue hereproprio motu. The Appeals Chamber is convinced by the Appellant's argument at the Appeal Hearing that he failed to raise that argument because he did not understand the Decision of 16 November 2001 as finding that he was illegally arrested and detained, contrary to the Trial Chamber's Decision of 8 May 2000, and thus that he was entitled to seek some form of alternative remedy.See Appeal Hearing, T. 7 March 2005 p. 15. The Appellant stated that had he so understood, he would have raised the question of an alternative remedy before the Trial Chamber.Id.

427 See Barayagwiza, Decision, 3 November 1999, para. 40.

428 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.

429 African [Banjul] Charter on Human and Peoples’ Rights, 21 I.L.M. 58 (1982).

430 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222.

431 American Convention on Human Rights, 1144 U.N.T.S. 123.

432 See UNHCR Attestation for Mr. Juvénal Kajelijeli dated 11 September 1997, Annex to Appellant's prose Requête portant sur l'arrestation arbitraire et la detention illégale du suspect Juvénal Kajelijeli, 9 November 1998, filed 20 November 1998.

433 Decision of 8 May 2000, Preamble and paras. 3, 16.

434 Annex to Appellant'spro se Requête portant sur l'arrestation arbitraire et la detention illegale du suspect Juvénal Kajelijeli, 9 November 1998, filed 20 November 1998.See also Decision of 8 May 2000, para. 13.

435 Prosecution Request for an Order for Transfer and Provisiona Detention under Rule40bis, 24 August 1998.

436 Decision of 8 May 2000, Preamble; Mandat d'Arrêt et Ordon-nance de Placement en Detention, 29 août 1998.

437 Appeal Hearing, T. 7 March 2005 pp. 8-10.

438 Appeal Hearing, T. 7 March 2005 pp. 10, 11.

439 Appeal Hearing, T. 7 March 2005 p. 12.

440 Respondent's Brief, paras. 254-257.

441 Respondent's Brief, para. 268.

442 Respondent's Brief, para. 260.

443 See Rules 2(A), 47(H)(ii).

444 See Rule 40(A)(i) and (iii).

445 See Statute, art. 28(1) and (2)(d).

446 U.N. Security Council Resolution 955, para. 2.

447 Rule 40(A)(i) of the Rules merely states that “[i]n case of urgency, the Prosecutor may request any State: (i) To arrest a suspect and place him in custody….“

448 U.N. Security Council Resolution 955, para. 2, provides, in pertinent part that: all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessaryunder their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance … under Article 28 of the Statute…. (emphasis added).

449 Barayagwiza, Decision, 3 November 1999, paras. 91, 92.

450 In this regard, the Appeals Chamber notes that the Republic of Benin acceded to the ICCPR on 12 March 1992 and to the ACHPR on 20 January 1986.

451 Numerous international bodies have condemned incommunicado detention.See Standard Minimum Rules for the Treatment of Prisoners, art. 92; U.N. Human Rights Commission Resolutions 1998/38, para. 5, and 1997/38, para. 20; U.N. Commission on Human Rights, Report of the Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment or Punishment, para. 926(d); Inter-American Commission on Human Rights, Annual Report of the Inter-American Commission, 1982-1983;Mukong v.Cameroon, para. 9.4;El-Megreisi v.Libyan Arab Jamahiriya, para. 5.4;Suárez Rosero Case, para. 91 (describing detainee's being cut off from communication with his family as cruel, inhuman, and degrading treatment).See also Art. 104(4) of the German Constitution (the “Grundgesetz“): “A relative or a person enjoying the confidence of the person in custodyshall be notified without delay of any judicial decision imposing or continuing a deprivation of freedom.” (Emphasis added). The rationale behind this constitutional norm is that it is an inalienable duty to inform relatives or good friends of a person as to any deprivation of liberty. This provision is based upon lessons learned in Germany from World War II whereby legal safeguards must exist such that never again should the judiciary be able to abuse its power by causing human beings to just disappear.

451 See Vienna Convention on Consular Relations, art. 36(b).

452 Semanza, Decision, 31 May 2000, Declaration of Judge Lai Chand Vohrah, para. 6.

453 See also ACHR, Art. 7(1), (3).

454 Article 9(2) of the ICCPR states that “[a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his

455 arrest and shall be promptly informed of any charges against him.”See also ECHR, art. 5(2).

456 The Appeals Chamber notes that the Trial Chamber failed to say anything in its Decision of 8 May 2000 on whether the Appellant's detention subsequent to his arrest in Benin prior to the issuance of the indictment against him on 29 August 1998 was unlawful.

457 Decision of 8 May 2000, paras. 42^4.

458 Semanza, Decision, 31 May 2000, para. 78.

459 See Semanza, Decision, 31 May 2000, n. 106 citingBarayagwiza, Decision, 3 November 1999.

460 Appeal Hearing, T. 7 March 2005 p. 51.

461 Appeal Hearing, T. 7 March 2005 pp. 10, 48.

462 Appeal Hearing, T. 7 March 2005 p. 11.

463 See Respondent's Brief, paras. 268, 269.

464 See generally Rule40bis.

465 Rule40bis (E).

466 See Rule40bis (A), (B), (D), (E).

467 Article 9(1) of the ICCPR states that: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.…See also ACHR, art. 7(1), (3); ACHPR, art. 6.

468 See also ECHR, art. 6(3)(a); ACHR, art. 7(4).

469 Barayagwiza, Decision, 3 November 1999, paras. 80, 81.

470 See U.N. Human Rights Committee, General Comment No. 8, para. 3;Barayagwiza, Decision, 3 November 1999, para. 62.

471 See U.N. Human Rights Committee, General Comment No. 8, para. 3;Barayagwiza, Decision, 3 November 1999, para. 63.

472 See Campbell v. Jamaica, para. 7.1.See also Valentini de Bazzano v. Uruguay, paras. 9, 10 (finding that eight months provisional detention without charge was in violation of Article 9(2));Carballal v. Uruguay, paras. 2.2, 2.5, 13 (deciding that 1 year detention between arrest and formal filing of charges was in violation of Article 9(2)).

473 Barayagwiza, Decision, 3 November 1999, para. 62.

474 Article 9(3) of the ICCPR states that “[a]nyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release….”See also ACHR, art. 7(5).

475 See U.N. Human Rights Committee, General Comment No.8, para. 2.

476 Freemantle v. Jamaica, para. 7.4.

477 Lobban v.Jamaica, para. 8.3;Casafranca v.Peru, para. 7.2;Jones v.Jamaica, para. 9.3.

478 Grauzinis v. Lithuania, para. 25.

479 Brogan and Others v.The United Kingdom, paras. 6, 62;Tepe v. Turkey, paras. 64-70;Öcalan v. Turkey, para. 106.

480 Rule 40W*(A) and (E).

481 The Appeals Chamber rejects the Prosecution's argument that its duty to inform the suspect as soon as possible of the reasons why he or she is considered a suspect and of any provisional charges against him or her was fulfilled by its questioning of the Appellant on 12 June 1998.See Appeal Hearing, T. 7 March 2005 p. 51.

482 Cf. Semanza, Decision, 31 May 2000, para. 87 (finding that 18 days’ delay between the time the Appellant was taken into custody and informed of the charges brought against him by the Prosecution constituted a violation of the Appellant's right to be promptly informed of the nature of the charges against him).

483 See Semanza, Decision, 31 May 2000, n. 104(citing Barayagwiza, Decision, 3 November 1999).

484 Appeal Hearing, T. 7 March 2005 p. 51.

485 For example, Milan and Miroslav Vuckovic were transferred to the ICTY instead of Predrag and Nenad Banovic,see Sikirica et al, None[sic] Parties Milan and Miroslav Vuckovic's Motion for an Order Compelling Discovery, 2 September 1999.See also Kolundzija, Order on Non-Party Motion for Discovery, 29 September 1999. Similarly, Agim Murtezi was brought before the ICTY on the basis of an indictment in which the true identity of the perpetrator was uncertain,see Limaj et ah, Order to Withdraw the Indictment against Agim Murtezi and Order for His Immediate Release, 28 February 2003.

486 Decision DCC 00-064, The Constitutional Court, Republique du Benin, 24 October 2000. Article 18(4) of the Benin Constitution stipulates that “no one can be held for a period beyond 48 hours without a decision from a Magistrate to whom the person is presented, this timeframe can only be exceeded exceptionally as provided for by law and that cannot exceed a period of eight days.“

487 Barayagwiza, Decision, 3 November 1999, paras. 46, 53.

488 Barayagwiza, Decision, 3 November 1999, paras. 46, 53.

489 Barayagwiza, Decision, 3 November 1999, paras. 46, 53.

490 Appeal Hearing, T. 7 March 2005 p. 52.

491 Article 17 provides, in relevant part that: 2. The Prosecutor shall have the power to question suspects … to collect evidence and to conduct on-sight investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned. 3.If questioned, the suspect shall be entitled to be assisted by Counsel of his or her own choice, including the right to have legal assistance assigned to the suspect without payment by him or her in any such case if he or she does not have sufficient means to pay for it….

492 Rule 42 of the Rules states, in relevant part, that:(A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which he shall be informed by the Prosecutor prior to questioning, in a language he speaks and understands:(i) The right to be assisted by counsel of his choice or to have legal assistance assigned to him without payment if he does not have sufficient means to pay for it; …(B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived his right to counsel.In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.

493 Decision of 8 May 2000, paras. 37-39.

494 Memorandum by Deputy Chief of the Tribunal's Legal and Defence Facility Management (“LDFMS“), 10 December 1999;see also Decision of 8 May 2000, para. 25.

495 Decision of 8 May 2000, Preamble.

496 Appellant'spro se Requête portant sur 1'attestation arbitraire et la detention illégale du suspect Juvenal Kajelijeli, 9 November 1998, filed 20 November 1998.

497 Appeal Hearing, T. 7 March 2005 p. 12.

498 Appeal Hearing, T. 7 March 2005 pp. 12, 13.

499 Respondent's Brief, paras. 261, 263.

500 The Appeals Chamber notes that the Prosecution concedes that it bears some responsibility for the scheduling of the initial appearance, although the Prosecution contends that “primary responsibility … rests with the Registry.” The Prosecution points out that because the Appellant was initially named in an indictment with seven co-accused, the Registry was seeking to organize an initial appearance for all of the accused and was attempting to first assign counsel to represent each of the accused.See Respondent's Brief, paras. 262, 265.

501 Respondent's Brief, paras. 262-267.

502 See supra para. 217.

503 See also ICCPR, art. 14(3)(d); ECHR, art. 6(3)(c); ACHR, art. 8(2)(d).

504 See Directive on the Assignment of Defence Counsel.

505 Decision of 8 May 2000, paras. 40, 41.

506 Decision of 8 May 2000, para. 45.

507 Decision of 8 May 2000, para. 28 referring to the written brief of 7 February 2000 filed by Mr. Antoine Mindua, a representative of the Registry.

508 See supra n. 484.

509 See generally Rule 62.

510 Cf. Barayagwiza, Decision, 3 November 1999, para. 73.

511 See supra para. 206.

512 See Semanza, Decision, 31 May 2000, para. 129;Barayagwiza, Decision (Prosecutor's Request for Review or Reconsideration), para. 75.

513 Appellant's Brief, paras. 373-377.

514 Kajelijeli, Decision on Kajelijeli's Urgent Motion and Certification with Appendices in Support of Urgent Motion for Disclosure of Materials Pursuant to Rule 66(B) and Rule 68 of the Rules of Procedure and Evidence, 5 July 2001.

515 Kajelijeli, Decision on Kajelijeli's Motion to Exclude Statements and Testimonies of Detained Witnesses, 14 June 2002.

516 Appellant's Brief, para. 373.

517 Appellant's Brief, para. 373.

518 Appellant's Brief, para. 374.

519 Appellant's Brief, paras. 374, 375.

520 Appellant's Brief, para. 376.

521 Appellant's Brief, para. 376.

522 Appellant's Brief, para. 377.

523 Appellant's Brief, para. 377.

524 Respondent's Brief, para. 278.

525 Respondent's Brief, para. 278.

526 Respondent's Brief, para.280.

527 Kajelijeli, Decision on Kajelijeli's Urgent Motion and Certification with Appendices in Support of Urgent Motion for Disclosure of Materials Pursuant to Rule 66(B) and Rule 68 of the Rules of Procedure and Evidence, para. 10.

528 Kajelijeli, Decision on Kajelijeli's Urgent Motion and Certification with Appendices in Support of Urgent Motion for Disclosure of Materials Pursuant to Rule 66(B) and Rule 68 of the Rules of Procedure and Evidence, para. 11.

529 Kajelijeli, Decision on Kajelijeli's Urgent Motion and Certification with Appendices in Support of Urgent Motion for Disclosure of Materials Pursuant to Rule 66(B) and Rule 68 of the Rules of Procedure and Evidence, para. 14.

530 Blaskic Appeal Judgment, para. 268.

531 See Blaskic Appeal Judgment, para. 268.

532 See Krstic Appeal Judgement, para. 153.

533 T. 24 July 2001 p. 113.

534 T. 24 July 2001 pp. 14, 15, 113-115.

535 T. 25 July 2001 pp. 28, 29.

536 T. 25 July 2001 pp. 28-30.

537 Kajelijeli, Decision on Juvénal Kajelijeli's Motion Requesting the Recalling of Prosecution Witness GAO, para. 23.

538 Kajelijeli, Decision on Juvenal Kajelijeli's Motion Requesting the Recalling of Prosecution Witness GAO, para. 23.

539 T. 28 November 2001 pp. 6-14.

540 T. 28 November 2001 p. 55; Trial Judgement, para.31.Kajelijeli, Decision on Kajelijeli's Request to Admit into Evidence the Statements of GAO, 1 July 2003.

541 T. 28 November 2001 pp. 4, 5.

542 Witness GDD testified from 2 to 4 October 2001. Witness GAP testified from 28 November to 4 December 2001. Witness GDQ testified from 5 to 6 December 2001. Before each of these witnesses was excused, the Defence reserved the right to recall them once their prior statements were received. T. 4 October 2001 p. 163; T. 5 October 2001 p. 34; T. 4 December 2001 p. 119; T. 6 December 2001 pp. 61, 62.

543 Requête en Extrême Urgence de la Défense aux fins d'Exclusion de la Cause des Déclarations et depositions des témoins détenus GDD, GDQ, GAP et GAO, 18 April 2002.

544 Kajelijeli, Decision on Kajelijeli's Motion to Exclude Statments and Testimonies of Detained Witnesses, paras. 11-13.

545 Kajelijeli, Decision on Kajelijeli's Motion to Exclude Statments and Testimonies of Detained Witnesses, para. 13.

546 Appellant's Brief, paras. 378-387;Kajelijeli, Decision on Kajelijeli's Motion to Admit Into Evidence Rental Receipts of Witness RHU23 Pursuant to Rule 92bis (A), 1 July 2003.

547 Appellant's Brief, paras. 378-382.

548 Appellant's Brief, paras. 379-381.

549 Appellant's Brief, para. 384.

550 Appellant's Brief, paras. 385-387.

551 Appellant's Brief, para. 386.

552 Appellant's Brief, para. 387.

553 Respondent's Brief, para. 300. The Prosecution cites toRutaganda Appeal Judgement, paras. 15, 18, 20;Kupreškić et al. Appeal Judgement, para. 27;Bagilishema Appeal Judgement, para. 10;Musema Appeal Judgement, para. 18.

554 Respondent's Brief, para. 303.

555 Respondent's Brief, para. 303.

556 Kajelijeli, Decision on Kajelijeli's Motion to Admit into Evidence Rental Receipts of Witness RHU23 Pursuant to Rule 92bis (A), paras. 4, 7.

557 Kajelijeli, Decision on Kajelijeli's Motion to Admit into Evidence Rental Receipts of Witness RHU23 Pursuant to Rule 92bis (A), para. 5.

558 Kajelijeli, Decision on Kajelijeli's Motion to Admit into Evidence Rental Receipts of Witness RHU23 Pursuant to Rule 92bis (A), para. 6.

559 T. 25 September 2002 p. 40.

560 Certification in Support of Extremely Urgent Motion to Admit Into Evidence RHU-23's Rental Receipt Pursuant to Rule 92bis (A), 10 June 2003, para. 3.

561 Certification in Support of Extremely Urgent Motion to Admit into Evidence RHU-23's Rental Receipt Pursuant to Rule 92bis (A), para. 5.

562 Brief in Reply, para. 104.

563 Kajelijeli, Decision on Kajelijeli's Motion to Admit into Evidence Rental Receipts of Witness RHU23 Pursuant to Rule 92bis (A), para. 5.

564 Trial Judgement, para. 323.

565 Trial Judgement, para. 314.

566 Trial Judgement, para. 315.

567 Trial Judgement, para. 701.

568 For a discussion of the applicable standards,see supra Chapter I.

569 Amended Notice of Appeal, para. 2; Appellant's Brief, para. 23.

570 Amended Notice of Appeal, paras. 3, 4; Appellant's Brief, para. 23.

571 Respondent's Brief, paras. 45-55.

572 See supra Chapter V.

573 Amended Notice of Appeal, paras. 5-7.

574 Amended Notice of Appeal, para. 8.

575 Respondent's Brief, paras. 62, 63.

576 Amended Notice of Appeal, para. 9.

577 Appellant's Brief, para. 53.

578 Appellant's Brief, paras. 54, 55.

579 Appellant's Brief, para. 55.

580 Appellant's Brief, paras. 57-59.

581 Respondent's Brief, para. 68.

582 Respondent's Brief, paras. 70-72.

583 See Appellant's Brief, para. 59.

584 Trial Judgement, para. 942.

585 Trial Judgement, paras. 968, 969.

586 Trial Judgement, para. 970. The Appeals Chamber notes that this credit encompassed the total period the Appellant was in custody pending surrender and trial, including his period of arrest and detention in Benin prior to transfer to the custody of the Tribunal.See Trial Judgement, paras. 965-967.

587 Cf. Blaškić Appeal Judgement, para. 679.

588 Čelebići Case Appeal Judgement, para. 429.

589 Statute, art. 9(3).

590 Musema Appeal Judgement, para. 380 citing elebiji Case Appeal Judgement, para. 718;Furundžija Appeal Judgement, para. 238.See also Blaškić Appeal Judgement, para. 680.

591 Akayesu Appeal Judgement, paras. 178, 408 citing elebifi Case Appeal Judgement, paras. 724—725;Kayishema and Ruzindana, Appeal Judgement, para. 320;Musema Appeal Judgement, para. 15.See also Dragan Nikolić Sentencing Appeal Judgement, para. 8.

592 Čelebići Case Appeal Judgement, para. 717;Vasiljević Appeal Judgement, para. 9;Blaškić Appeal Judgement, para. 680;Dragan Nikolić Sentencing Appeal Judgement, para. 9.

593 Serushago Sentencing Appeal Judgement, para. 32.See also Aleksovski Appeal Judgement, para. 187;Tadić Sentencing Appeal Judgement, paras. 20-22;Čelebići Case Appeal Judgement, para. 725;Blaškić Appeal Judgement, para. 680.

594 Serushago Sentencing Appeal Judgement, para. 23.See also Kayishema andRuzindana Appeal Judgement, para. 366;Dragan Nikolić Sentencing Appeal Judgement, para. 9.

595 Aleksovski Appeal Judgement, para. 187;Furund'ija Appeal Judgement, para. 239;Tadi﹜ Sentencing Appeal Judgement, para. 22; elebiji Case Appeal Judgement, para. 725;Jelisi﹜ Appeal Judgement, para. 99;Serushago Sentencing Appeal, para. 32;Akayesu Appeal Judgement, para. 409;Dragan Nikolić Sentencing Appeal Judgement, para. 9.

596 The Appeals Chamber notes that in his Amended Notice of Appeal, at paras. 139, 140, the Appellant raised two additional sub-grounds of appeal under this ground with respect to alleged errors by the Trial Chamber in giving weight to the following aggravating factors at sentencing: 1) that the Appellant directed and participated in the killings in various locations in Ruhengeri Prefecture; and 2) that the Appellant used his considerable influence to bring people together to commit massacres and acted as a bridge between military and civilian spheres to for the purpose of attacking and massacring Tutsi civilians. However, the Appellant failed to raise these alleged errors again in his Brief, Brief in Reply or at the Appeal Hearing, or to develop any specific arguments or cite to any authorities in support of his contention that the Trial Chamber committed error in this regard. Thus, the Appeals Chamber declines to consider these sub-grounds, finding that the Appellant's right to appeal as to them is waived.See Kayishema and Ruzindana Appeal Judgement, para. 46.

597 Amended Notice of Appeal, paras. 135-138; Appellant's Brief, paras. 394-404; Brief in Reply, paras. 108, 109.See also Trial Judgement, para. 968.

598 Appellant's Brief, paras. 403, 404.

599 See Trial Judgement, paras. 948-951.

600 Amended Notice of Appeal, paras. 135-138; Appellant's Brief, para. 401; Brief in Reply, para. 108.

601 Serushago Sentencing Appeal Judgement, para. 22.See also Musema Appeal Judgement, para. 395.

602 Musema Appeal Judgement, para. 395.

603 Čelebići Case Appeal Judgement, para. 763.

604 Čelebići Case Appeal Judgement, para. 590.

605 Niyitegeka Appeal Judgement, para. 266, referring toMusema Appeal Judgement, para. 396 andKayishema and Ruzindana Appeal Judgement, para. 366.

606 The Prosecution merely generally asserts that 1) the Appellant has failed to demonstrate any error made by the Trial Chamber with respect to its finding that there are no circumstances to mitigate the culpability of the Appellant; 2) according to theTribunal's jurisprudence the fact that an accused has saved Tutsi lives does not automatically serve as a mitigating factor in sentencing; 3) even if the Trial Chamber had considered this a mitigating factor, the sentence imposed by the Trial Chamber reflects the gravity of the crimes of which the Appellant was found guilty and falls well within its discretionary framework.See Respondent's Brief, paras. 308-311, 314.

607 Rule 111 of the Rules states that “ [a]n Appellant's briefsetting out all the arguments and authorities shall be filed. …“(Emphasis added).

608 Amended Notice of Appeal, para. 135; Appellant's Brief, paras. 401, 403; Brief in Reply, paras. 108, 109.

609 Akayesu Appeal Judgement, para. 404 citingKambanda Appeal Judgement, para. 98.

610 Akayesu Appeal Judgement, para. 404 citingKambanda Appeal Judgement, para. 98.

611 Kambanda Appeal Judgement, para. 116.

612 Seegenerally Simba, Decision on Interlocutory Appeal Regarding Temporal Jurisdiction, 29 July 2004;Ngeze and Nahimana, Décision on the Interlocutory Appeals, 5 September 2000.See also Kajelijeli, Arret (Appel de la Decision Du 13 mars 2001 Rejetant la “Defence Motion Objecting to the Jurisdiction of the Tribunal“), 16 November 2001.

613 Seesupra para. 294.

614 Niyitegeka Appeal Judgement, para. 267.

615 See Trial Judgement, paras. 101, 104 (ZLA); 102, 107 (RHU26); 105 (SMR2); 106 (RHU21).

616 See,e.g., T. 11 December 2001 pp. 11-16.

617 See Trial Judgement, para. 114.

618 See Trial Judgement, paras. 114, 948.

619 See Trial Judgement, para. 115.

620 For example, inKupreskic, the Trial Chamber held that: (i) generally speaking, evidence of the accused's character prior to the events for which he is indicted before the International Tribunal is not a relevant issue inasmuch as (a) by their nature as crimes committed in the context of widespread violence and during a national or international emergency, war crimes and crimes against humanity may be committed by persons with no prior convictions or history of violence, and that consequently evidence of prior good, or bad, conduct on the part of the accused before the armed conflict began is rarely of any probative value before the International Tribunal, and (b) as a general principle of criminal law, evidence as to the character of an accused is generally inadmissible to show the accused's propensity to act in conformity therewith.Kupreškićet al., Decision on Evidence of the Good Character of the Accused and the Defence ofTu Quoque, 17 February 1999 (emphasis added); c/Bagilishema Trial Judgement, para. 116;Ntakirutimana Trial Judgement, para. 732;Niyitegeka Trial Judgement, para. 375. The ICTY Appeals Chamber inKupreškić affirmed the Trial Chamber's decision not to accord much weight to evidence of prior measures taken by Appellant Josipovic to care for Muslims in jeopardy, such as lending an HVO army vest to a Muslim and stopping soldiers from killing a Muslim; of prior acts to promote positive relations with his Muslim neighbors despite the conflict; and of the Appellant's prior good character in not displaying any nationalist or ethnic prejudices as mitigating circumstances.Kupreskic et al. Appeal Judgement, paras. 428, 430. Likewise, inNiyitegeka, the Appeals Chamber found that the Trial Chamber did not erroneously conclude that the appellant's case “was not one of the exceptional cases where due consideration and weight ought to be given to the evidence of [prior] good character.”Niyitegeka Appeal Judgement, para. 264. The Appeals Chamber found that the Trial Chamber did not exceed its discretion in giving little weight to evidence that the appellant “proved courageous” and “saved […] refugees’ lives” in light of the gravity of the crimes the appellant was found to have committed.Niyitegeka Appeal Judgement, paras. 265, 266, citingNiyitegeka Trial Judgement, paras. 494, 496.

621 Amended Notice of Appeal, para. 136.

622 Amended Notice of Appeal, paras. 136-138; Appellant's Brief, para. 401.

623 Appeal Hearing, T. 7 March 2005 p. 54.

624 Trial Judgement, para. 106, referring to T. 10 December 2002 pp. 40, 41, 44, 46-48, 60-61 (emphasis added).

625 Trial Judgement, para. 107, referring to T. 30 September 2002 pp. 11, 12, 18-21, 37, 38 (internal citations omitted and emphasis added).

626 Trial Judgement, para. 105, referring to T. 19 September 2002 pp. 76, 77, 79, 81, 82; T. 23 September 2002 pp. 9, 10, 12.

627 Appeal Hearing, T. 7 March 2005 p. 20.

628 Appeal Hearing, T. 7 March 2005 p. 60.

629 The Appeals Chamber notes that the evidence on the trial record is not clear on this point. Witnesses RHU21 and RHU26, both testified that the Mukingo home belonged to the Appellant. However, Witness SMR2 was much more closely related to the Appellant and was aware of the property distribution between the Appellant and his wives. In any event, the Appeals Chamber finds that this is a non-issue. The Trial Chamber did not primarily rely upon its finding that the home belonged to the second wife in concluding that no credit was due to the Appellant for hiding the Tutsis in the Mukingo home. Rather, the key findings were that it was the wife who took the Tutsis in and who eventually stayed with them.

630 T. 19 September 2002 pp. 85-88; T. 30 September 2002 pp. 21, 22; T. 10 December 2002 pp. 47, 48.

631 See Trial Judgement, para. 115.

632 Cf. Kvočka et al. Appeal Judgement, para. 693.

633 Seegenerally T. 19 September 2002; T. 23 September 2002; T. 30 September 2002; T. 10 December 2002.

634 Cf. Niyitegeka Appeal Judgement, paras. 264-266.

635 Trial Judgement, para. 950.

636 Seesupra Chapter VIII.

637 Seesupra Chapter VIII.

638 Seesupra Chapter VIII.

639 Trial Judgement, paras. 961-962.

640 Trial Judgement, paras. 958, 959.

641 Cf. Čelebići Case Appeal Judgement, para. 746.

642 Seesupra paras. 251-255.

643 SeeSemanza, Decision, 31 May 2000, para. 129;Barayagwiza, Decision (Prosecutor's Request for Review or Reconsideration), para. 75.

644 Trial Judgement paras. 965-970.

645 Trial Judgement, paras. 966, 967, 970.

646 This figure of 306 days is composed of the following: 95 days in the custody of the Republic of Benin from the arrest on 5 June 1998 to the Appellant's transfer to the Tribunal on 7 September 1998 plus 211 days in the custody of the Tribunal from 8 September 1998 to 6 April 1999.See supra Chapter XIX.

647 The Appellant was impermissibly detained for 85 days before being informed of the reasons for his arrest or of the provisional charges against him and for a further 221 days before his initial appearance before a Judge.See supra Chapter XIX.

648 Notice of Motion for an Extension of Time to File Appellant's Notice of Appeal and Brief Pursuant to Rules 108, 111&116 of RPE, 8 December 2003.

649 Decision on Motion for an Extension of Time to File Appellant's Notice of Appeal and Brief, 17 December 2003.

650 Order on Motion for Extension of Time, 5 April 2004.See also Order Granting an Extension of Time for Filing of Translation of Trial Judgement and Appellant's Brief, 23 February 2004; Order Granting an Extension of Time for Filing of Translation of Trial Judgement and Appellant's Brief, 13 February 2004.

651 Notice of Extremely Urgent Motion for Leave to Vary Grounds of Appeal, 21 April 2004.

652 Order on Extremely Urgent Motion for Leave to Vary Grounds of Appeal, 22 April 2004.

653 Prosecution Urgent Motion for an Extension of Time to File Notice of Appeal, 16 December 2003.

654 Decision on Prosecution Urgent Motion for an Extension of Time to File Notice of Appeal, 17 December 2003.

655 Prosecution Urgent Motion for Acceptance of Prosecution Notice of Appeal Out of Time, 5 January 2004.

656 Decision on Prosecution Urgent Motion for Acceptance of Prosecution Notice of Appeal Out of Time, 23 January 2004.

657 Order of the Presiding Judge Assigning Judges and Designating the Pre-Appeal Judge, 10 December 2003. Order of the Presiding Judge Assigning Judges and Designating the Pre-Appeal Judge, 10 December 2003.

659 Order of the Presiding Judge Replacing a Judge in a Case Before the Appeals Chamber, 31 August 2004.

660 Defence Motion for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 16 February 2004.

661 Order for the Defence to File Additional Evidence in Support of Defence Motion for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 27 February 2004.

662 Addendum to Defence Motion for Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence and Reply to Prosecutor's Response, 8 March 2004.

663 Order for the Defence to File a Detailed Explanation on the Availability of the Additional Evidence Sought for Admission Pursuant to Rule 115 of the Rules of Procedure and Evidence, 4 May 2004.

664 Defence's Detailed Explanation on the Availability of the Additional Evidence Sought for Admission Pursuant to Rule 115 of the Rules of Procedure and Evidence, 13 May 2004.See also Decision on Notice of Leave to File Extremely Urgent Motion for Permission to Supplement Defence's Detailed Explanation Filed on May 24 2004, 15 June 2004.

665 Decision on Defence Motion for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 28 October 2004.

666 Defence Motion for the Admission of Additional Evidence Pursuant to Rule 115 of the Rules of Procedure and Evidence, 15 February 2005.

667 Decision on Second Defence Motion for the Admission of Additional Evidence Pursuant to Rule 155 of the Rules of Procedure and Evidence, 7 March 2005.

668 Scheduling Order, 16 November 2004.

669 Order Postponing the Hearing of the Appeal, 7 December 2004.

670 Scheduling Order, 17 December 2004.

671 Order Concerning the Hearing of the Appeal, 18 February 2005.