The appeal judges highlighted deficiencies in the prosecutor's case and weaknesses in the legal analysis of their predecessors.
The appeal chamber of The Hague only accepted part of the appeal motives of the three defendants; Fernand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze. It noted and sanctioned a significant number of important errors resulting in as many verdicts of guilt being quashed.
The appeal chamber raised errors in certain guilty verdicts by the first instance chamber; for example, when it did not detail nor expressly aim essential facts and acts to retain the responsibility of the three defendants which would have taken place in 1994.
It also retained as legal errors a violation of the rights of defence and the principle of equality of arms for not having suspended the proceedings while waiting for Barayagwiza's new lawyer to be named; and a violation of the principle of equality that did not affect the verdict. With this intention, they simply quashed any allusion to the proceedings which occurred during this period.
The appeal judges especially reprimanded a transgression of ratione temporis jurisdiction by basing the responsibility for the defendants on facts prior to 1994. However, according to articles 1 and 7 of the ICTR statute, the defendants of the international tribunal can only be tried for crimes that were committed between 1 January and 31 December 1994.
If the criminal behaviour would have started prior and would have been continued after, the ICTR can only convict for what occurred in 1994, the former facts can only be used to understand and to determine the context in which the events took place, underlines the judgment.
And it is the characteristic of the two international criminal tribunals, Rwanda (ICTR) and the former Yugoslavia (TPIY), that the Security Council of the United Nations strictly limited the jurisdiction to a clearly defined territory and period. "The provisions conferring jurisdiction to an international tribunal and (...) the criminal law", in general, are by principle of strict interpretation, points out the appeals chamber.
This does not exclude the admissibility of evidence prior to 1994; consequently, specify the appeal judges, "that such elements of evidence are relevant, that they have convincing value and that there is not any dominating reason to exclude them".
They also identified a distortion of the legal concept of direct and public incitement to commit acts of genocide, which was regarded as a continuous infringement.
The appeal chamber states that this infringement, covered by article 2 (3) (c) of the statute, "is consumed as soon as the remarks in question were made, diffused or published" and does not continue itself "until the achievement of the considered acts", as the first instance chamber specified.
Which is different from incitement as a mode of responsibility (article 6 (1)) of the statute for which the defendant will be responsible if it was followed by the commission of a crime punishable by articles 2 to 4 of the statute.
The legal errors committed in first instance are tied to each other. To admit that the crime of incitement is a continuous infringement and to take into account acts prior to 1994 made it possible to mitigate the lack of evidence, flagrant from the analysis of the appeal chamber, of the responsibility for the three defendants for certain events.
Confronted with the number of errors, Judge Theodore Meron, in his dissenting opinion, considers that the best solution would have been to return the case to first instance rather than to try to correct and mitigate the errors.
Is it the urgency of the planned departure of Judge Pillay to the International Criminal Court which would have precipitated the decision-making and certain negligence in the analysis of the elements of evidence?
International criminal justice had not known any cases on the apology of hate in the media since the judgment of Julius Streicher in Nuremberg. But Streicher, founder and editor of the violently anti-Semitic newspaper "Der Stürmer", had not been prosecuted for direct and public incitement to commit genocide, this crime was not known by international law at that time.
The ICTR judges, corrected by the appeal chamber, nevertheless showed that there was a causal link between the serious violations of international humanitarian law committed in Rwanda in 1994 and, firstly, the programs transmitted by the RTLM, described by some as a weapon of the genocide, then the articles published by Kangura, and finally the role of the political party of the Coalition for the Defence of the Republic (CDR).
The appeal chamber quashed the majority of the guilty verdicts pronounced in first instance against Fernand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, but did not considerably reduce their sentences; which surprised more than one jurist.
AV/PB/MM
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