Untitled Document

274. Akayesu submits as a separate ground of appeal that there was a total absence of the rule of law and asserts that:

275. This ground of appeal, raised in Akayeus’s Second Notice of Appeal, was neither discussed in his Brief, nor in his Reply nor at the hearing on appeal. Therefore, the Prosecution did not respond to it.

276. The Appeals Chamber finds that this ground of appeal must be rejected and consequently will not consider it.

277. Akayesu submits that the Trial Chamber erred in the way it treated hearsay evidence. While submittting, on the one hand, that he cannot affirm that the Trial Chamber’s treatment of hearsay evidence alone suffices to establish a miscarriage of justice or error of law,[475] Akayesu argues on the other hand, that should the Appeals Chamber admit this ground of appeal, such a finding would “invalidate in particular his conviction under Count 12 of the Indictment”.[476]

278. Akayesu alleges that the Trial Chamber erred in generally admitting hearsay into evidence without applying the provisions of Rule 89(C) of the Rules and taking account of the requirements for admissibility of hearsay evidence, as laid down in Tadic.[477] As a result, hearsay evidence was admitted as a matter of practice throughout the trial without first testing its reliability.[478] Akayesu submits that although the Trial Judgment found that hearsay evidence was treated with prudence, in fact, this was not the reality.[479] He submits that the Trial Chamber did not permit the parties to raise objections[480] and that, in any event, no objection was raised. In this regard, he criticizes as a whole, his own Counsel, the Tribunal and the Prosecution.[481] Akayesu relies on ICTY case-law to submit that the Trial Chamber has a duty to verify the circumstances under which the evidence was obtained and the content of the statement, as well as to take into consideration “the truthfulness, voluntariness and trustworthiness” of the evidence.[482]

279. To illustrate the Trial Chamber’s treatment of hearsay evidence, Akayesu cites its rejection of the testimony of Defence Witness DJX on two issues.[483] He submits that the Trial Chamber rejected the Witness’s evidence on the points in question without first testing its reliability.[484] This error by the Trial Chamber resulted in particular in rejecting relevant exculpatory evidence in relation to Count 12 of the Indictment. It is Akayesu’s submission that as a result, the conviction under this ground should be reversed.[485] Finally, Akayesu submits that the Trial Chamber erred in admitting hearsay evidence proffered by the Prosecution while rejecting evidence tendered by the Defence, thereby showing what he refers to as “discriminatory attitude.”[486]

280. The Prosecution submits generally that Akayesu has requested no remedy in this ground of appeal, and simply alleged that the error “in particular invalidates the conviction on Count 12”; that Akayesu should have “as a minimum specif[ied] what part of the Judgment is affected by the alleged errors”; that the words “in particular” (in his application for remedy) suggest that other unspecified counts may also be affected by the error alleged, that Akayesu has conceded that the admission of hearsay could not in and of itself invalidate the decision and that no objection was raised by the Defence at trial. As a result, the Appeals Chamber should dismiss this ground of appeal.[487]

281. In the Prosecution’s submission citing the example of Witness DJX as illustrative of a practice of applying to Defence witnesses a higher standard for the admission of hearsay evidence is misleading[488]. The Prosecution submits that contrary to Akayesu’s allegations, the testimony of Witness DJX was in fact admitted by the Trial Chamber, that Akayesu confuses the question of admissibility of evidence with the question of evaluation of evidence.[489] It is the Prosecution’s submission that the issue of assessement of such evidence was not raised under this ground of appeal.[490] In addition, even if the Trial Chamber has excluded such testimony it nevertheless found that, as stated by the Witness, Akayesu had attempted to prevent killings before 18 April 1994.[491]

282. It is the Prosecution’s submission that the Trial Chamber clearly considered the requirements for admission of hearsay evidence throughout the trial and Akayesu has not mentioned any instance where the Trial Chamber admitted hearsay evidence when it should not have.[492] The Prosecution recalls that Akayesu also requested the admission of hearsay evidence during the trial.[493] The Prosecution contends that the argument that the Trial Chamber admitted as a matter of policy Prosecution hearsay evidence as opposed to Defence hearsay evidence is “absolutely inaccurate.”[494] It is the submission of the Prosecution that Akayesu has failed to mention any specific factual finding that could be vitiated due to improper admission of hearsay evidence. In the Prosecution’s submission this is so because, firstly there was no such improper admission of hearsay evidence and secondly because, there is no factual finding throughout the Trial Judgment which is solely supported by hearsay evidence.[495] The Prosecution submits that “[o]n the contrary, the Trial Chamber has not only assessed hearsay evidence with caution but, at most, it has used hearsay as corroborative evidence.”[496]

283. Finally, the Prosecution submits that Akayesu did not oppose the admission of hearsay evidence during the trial and therefore he has waived his right to raise this issue on appeal.[497]

284. The Appeals Chamber identifies two separate allegations in arguments put forward under this ground of appeal, firstly the allegation that the Trial Chamber frequently admitted hearsay evidence without first verifying their reliability, and secondly, the allegation that the Trial Chamber unfairly disregarded hearsay evidence, in particular, when it is tendered by the Defence.[498]

285. Before considering Akayesu’s various submissions, in light of the general question raised by this ground of appeal, the Appeals Chamber deems it appropriate to clarify the law governing the admission and assessement of hearsay evidence before the Tribunal.[499] As pointed out by the Prosecution, the two issues must properly be separated.[500]

286. The Rules of both this Tribunal and ICTY generally reflect a preference for direct, live, in-court testimony. With respect to this Tribunal, such a rule is primarily laid down in Rule 90 of the Rules which provides that witnesses shall, in principle, be heard directly by the Chambers.[501] Such a rule is subject to one exception, where a Trial Chamber has ordered that the witness may be heard by means of deposition, as provided for in Rule 71 of the Rules.[502] However, Rule 89(C) of the Rules also provides that a “Chamber may admit any relevant evidence which it deems to have probative value.”[503] This provision grants a Trial Chamber a broad discretion in assessing admissibility of evidence and under ICTY case-law, “relevant out-of-court statements which a Trial Chamber considers probative, are admissibile under Rule 89(C)….Trial Chambers have a broad discretion under Rule 89(C) to admit relevant hearsay evidence.”[504] This discretion, however, is not unlimited and on the contrary it has been found that “the reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not “probative” and is therefore inadmissible.”[505] In the opinion of the Appeals Chamber the test to be met before ruling evidence admissible is accordingly high. It must firstly be shown that the evidence is so lacking in terms of the indicia of reliability as to be devoid of any probative value.

287. The Appeals Chamber recalls that in the case law cited by Akayesu and in the decisions referred to above, the Appeals Chamber and Trial Chambers were confronted with hearsay evidence in the form of either documents or formal statements which were sought to be admitted and in relation to which an opposing party had not been afforded an opportunity to cross-examine. The situation in the instant case is rather different.[506] Akayesu challenges in a general way, the admission of hearsay evidence in the form of statements made by witnesses during live testimony, regarding events which they allegedly had not witnessed first hand.[507] The Appeals Chamber considers that when a witness testifies, their evidence is admitted in that, in the absence of timely objection, it becomes part of the trial record, as reflected in the transcripts. ICTY Appeals Chamber has found that “Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable.”[508] The main safeguard applicable in this case, is the preservation of the right to cross-examine the witness on the hearsay evidence, which has been called into question.[509] This right is enshrined in Article 20(4)(e) of the Statute[510] and Rule 85(B) of the Rules.[511] In these circumstances, the Appeals Chamber holds that although it will always depend on the case at hand, it is unlikely considering the stage of the proceedings and, in particular, in the absence of an objection, that a Trial Chamber would find that the live testimony of a witness it had just heard, was so lacking in terms of indicia of reliability as to be inadmissible.[512]

289. The Appeals Chamber finds that clearly the Trial Chamber has taken into account the requirements of Rule 89 of the Rules and has in particular lived up to its intention to assess hearsay evidence “with caution.” The Appeals Chamber can find no substantive error in these general findings.

290. As stated above, in this case the hearsay evidence challenged by Akayesu was elicited in the course of live, in-court testimony.[514] It consisted of testimony given under oath before the Tribunal, that was subject to cross-examination by Akayesu and which was known to be, primarily but not solely “first hand” evidence, that is, evidence which was generally not far removed from the original source. In these circumstances, the Appeals Chamber finds that it falls in principle within the Trial Chamber’s discretion to find that such testimony is sufficiently reliable to warrant admission under the general principle governing admissibility of hearsay evidence before the Tribunal. In any case, Akayesu has cited no specific instance of non-compliance with such rules.

291. Akayesu has not submitted that irrelevant hearsay evidence was admitted. In fact, Akayesu does not cite any instance where the Trial Chamber improperly admitted hearsay evidence or where his Counsel objected to the admission of hearsay evidence by the Trial Chamber. Similarly, Akayesu fails to identify any specific prejudice he suffered as a result. Akayesu submits generally that the Trial Chamber erred. This does not suffice to show that the error was such as to call for the Appeals Chamber’s intervention. Accordingly, the Appeals Chamber finds that Akayesu has failed to show that the Trial Chamber erred in general in admitting hearsay evidence.[515]

292. The Appeals Chamber observes, that admission of hearsay evidence does not automatically carry any particular finding as to its assessement. That a Trial Chamber admits a hearsay statement, does not necessarily imply that it accepts it as reliable and probative. Those are qualities which a Trial Chamber will freely consider at the end of trial when weighing and evaluating the evidence as a whole, in light of the context and of the nature of the evidence itself, including the credibility and reliability of the relevant witness. Akayesu submits that throughout the trial, the Trial Chamber failed to distinguish between admissibility of hearsay evidence and its probative value.[516] The Appeals Chamber has already recalled that the Trial Chamber had pledged to consider hearsay evidence “with caution.” Akayesu has put forward no evidence to show that the Trial Chamber failed to do so. Accordingly, the Appeals Chamber has been given no reason to find that the Trial Chamber acted otherwise.[517]

293. Akayesu submits that the Trial Chamber unfairly admitted hearsay evidence by Prosecution witnesses while rejecting such evidence by Defence witnesses. As has been found, Akayesu has not pointed to any instance where the Trial Chamber unfairly admitted such Prosecution evidence. On the other hand, and as pointed out by the Prosecution, the Trial Chamber admitted a large amount of hearsay evidence presented by defence witnesses, many of whom testified to events which they had not witnessed.[518] This fact alone serves to rebut this argument. However, Akayesu cites in support of his argument one specific example, that is, the Trial Chamber’s rejection of the testimony of Defence Witness DJX.[519] Akayesu submits that, “The Tribunal did not test the reliability of the information and, on its own initiative, excluded [the] evidence.”[520] He argues that “the burden of proof is to raise a doubt.”[521] Contends that, “in excluding relevant hearsay evidence which could have cast doubt on the attitude of the Appellant towards the Tutsi population and on his attempts to protect it, the Chamber committed a major error causing prejudice to the Appellant”[522]. In Akayesu’s submission this prejudice “vitiated his conviction under Count 12 of the Indictment.”[523] The Appeals Chamber identifies three arguments as based on this Witness’s testimony.

294. Firstly, Akayesu appears to submit that this example is illustrative of the fact that the Trial Chamber applied a higher standard to the Defence hearsay evidence than to the Prosecution’s.[524]

295. The Appeals Chamber points out that the Trial Chamber found Akayesu not guilty on Count 12 of the Indictment.[525] In addition, it observes that the Trial Chamber did not, as Akayesu submitted, reject outright the testimony of Witness DJX. This witness testified on 11 February 1997.[526] His testimony was specifically mentioned by the Trial Chamber in the Trial Judgment in its consideration of the allegations of sexual violence (Counts 13 to 15 of the Indictment) and in the discussion of the accused’s line of defence.[527]

296. Consequently, Akayesu has failed to show how the Trial Chamber erred in admitting and assessing this evidence. More specifically, in evaluating this evidence against Counts 13 to 15, the Trial Chamber noted, in particular, that Witness DJX was a minor, that he was 12 years old at the time of the events in question and that he did not go to the bureau communal during the material period.[528] Furthermore, the Trial Chamber considered his testimony in light of the other evidence before it from other witnesses on the allegations in question. There is no evidence that the Trial Chamber rejected this witness testimony, that is it refused to admit it. This also emerges from the specific context referred to by Akayesu, which will be discussed below.

297. Secondly, Akayesu suggests that the Trial Chamber’s “discriminatory attitude” towards defence hearsay evidence is reflected in its treatment of Witness DJX testimony before it. Akayesu submits that the Presiding Judge interrupted Witness DJX as he was trying to answer questions, pressured him into testifying whether or not he had actually witnessed any event and expressed a sort of “satisfaction” when witness DJX finally testified that he had not.[529] It is Akayesu’s submission that “[o]n two occasions, the Chamber did not permit verification of the circumstances of the knowledge of the events and dismissed the hearsay evidence. The Chamber acted unreasonably and unlawfully to the prejudice of the Defence”.(sic)[530]

298. The Appeals Chamber finds that Akayesu’s allegations are misplaced. During examination-in-chief, Witness DJX testified in general as to his knowledge of Akayesu during the relevant time period. The Presiding Judge did not interrupt during this questioning save to clarify one minor point with Akayesu’s Counsel.[531] Under cross-examination the Witness testified (both in response to questions and on his own motion) inter alia that he had not witnessed certain of the events or acts he had referred to.[532] When the Prosecution asked the Witness whether he had seen the Interahamwe kill police officers, the Witness appears to have become evasive. Consequently, the Presiding Judge asked him to answer the question. When the Witness finally answered the Presiding Judge stated “voila.”[533] Despite Akayesu’s insinuations, the Appeals Chamber finds no error in this line of questioning and does not find that one can infer from this remark that the Trial Chamber was happy or pleased with witness DJX’s response. This also applies to the questioning as to whether or not Witness DJX had seen Akayesu save Gukwaya’s life.[534] In light of the relevant transcripts, it is once again clear to the Appeals Chamber that Witness DJX had evinced evasiveness and that the Presiding Judge wished to establish whether or not he had witnessed the events.

299. The Appeals Chamber finds no error or impropriety in both the Prosecution and the Trial Chamber trying to establish whether Witness DJX had witnessed these events or rather had heard about them. It is important for a Trial Chamber to be in possession of such information to be in a position to assess any evidence before it. Contrary to Akayesu’s assertions, the Appeals Chamber is not of the opinion that on both of these occasions, the Trial Chamber would not permit “the verification of the circumstances of the knowledge of the events and dismissed the hearsay evidence”[535] or that it prevented Witness DJX from providing details “which might have been useful” with respect to Gatwaya[536]. Once these questions had concluded (questions which in the opinion of the Appeals Chamber were neither improper nor intimidating), the Prosecution concluded its cross-examination. Akayesu’s Counsel indicated that he did not wish to re-examine and the Witness was discharged. The Appeals Chamber finds that the Trial Chamber’s treatment of this testimony in no way reflects an overall “discriminatory attitude” by the Trial Chamber with regard to defence hearsay evidence or an improper conduct towards the potential evidence of Witness DJX.

300. Thirdly, Akayesu alleges that the Trial Chamber erred in rejecting exculpatory evidence from this witness. Akayesu submits that Witness DJX provided evidence in rebuttal of the allegation in paragraph 12 of the Indictment, that “Akayesu never attempted to prevent the killing of Tutsis in the commune […]”[537]. He further submits that the Trial Chamber failed to verify the reliability thereof.[538] The Prosecution submits that even if the Trial Chamber had excluded this Witness’s testimony, “no harm would have been caused” because the Trial Judgment had already found “in relation to the period of time referred to by Witness DJX” that there was substantial evidence that before 18 April 1994, Akayesu had prevented acts of violence.[539] On the other hand, Akayesu submits that the Witness testified in general as to events prior to his departure on 28 June 1998 and that his testimony contradicted the findings by the Trial Chamber on this point. In addition, Akayesu submits that the Trial Chamber interrupted the Witness when he tried to explain how Akayesu had saved Gakwaya’s life after 19 April 1994.[540]

301. The Appeals Chamber has already found that the Trial Chamber did not exclude the testimony of Witness DJX, which is sufficient to reach a finding on this issue.

302. Witness DJX testified during direct examination that the material time period extended to the date when he left Taba (which he guessed to be 25 June 1994.[541]) The parties disagree on the answer given by the witness under cross-examination when he was asked to state exactly the time period to which he referred.[542] Upon review of the transcript, the Appeals Chamber finds that Witness DJX testified in general terms about events which occurred up to the date he left Taba.

303. Therefore, the Appeals Chamber finds that this witness’s evidence was relevant to events both before and after 19 April 1994. The Appeals Chamber observes also that the Trial Chamber did not specifically refer to this witness’s testimony in reviewing the allegations contained in paragraph 12 of the Indictment and in reaching its findings in relation thereto.[543] However, the Trial Chamber mentioned it during its presentation of Akayesu’s line of defence. It found that:

304. Here again, this shows that the Trial Chamber did not, as alleged, totally reject this testimony. As regards the Trial Chamber’s discussion of paragraph 12 of the Indictment, it should be noted that it was conducted in two stages, corresponding to the periods before and after 19 April 1994. The Trial Chamber found as follows:

305. As to the period after 18 April 1994, the Trial Chamber found (for the reasons set forth in the Trial Judgment) that beyond this date Akayesu did not attempt to prevent killings of Tutsis in his commune. It found that a “substantial amount of evidence has been presented” indicating that Akayesu’s conduct changed after the meeting on 18 April 1994. Thus it also referred to the testimony of Defence witnesses who testified that he had failed to prevent killings after this date.[546]

306. Although it could be argued that the Trial Chamber should have specifically explained why it did not accept Witness DJX’s testimony on this point, it is also the case that the Trial Chamber is not obliged to set forth each and every reason for its decision.[547] As stated above, there is no evidence that the Trial Chamber rejected the testimony of Witness DJX and, in actuality, it did mention it in the Judgment. Concerning the weight given to it by the Trial Chamber, the Appeals Chamber recalls once again that “the task of hearing, weighing and assessing the evidence, lies primarily within the discretion of the Trial Chamber”.[548] It falls to the Trial Chamber to rule on the reliability of evidence before it, in light of the circumstances of the case. The Trial Chamber found that there was substantial evidence on which it could base its findings on this paragraph. Akayesu has failed to establish that the Trial Chamber did not evaluate all the evidence before it[549] or that it erred in making its finding or that it erred in failing to mention specifically the testimony of Witness DJX in its finding on this allegation.[550] Akayesu has not shown why the Trial Chamber’s finding is not one which could be reached by a reasonable court nor has he shown that the Trial Chamber reached such a finding because it had rejected the hearsay evidence in question by applying a test standard higher than was applied to Prosecution evidence.

307. Lastly, the Appeals Chamber notes that Akayesu also includes in his argument two grounds of appeal taken from his first Notice of Appeal:

308. The Appeals Chamber observes that these grounds of appeal are general in nature and unsupported by any specific arguments. The Appeals Chamber has already found that the Trial Chamber properly considered the evidence before it and that Akayesu has failed to show otherwise.

309. For the foregoing reasons, the grounds of appeal raised in this section must fail.

[474] Decision of 24 May 2000, granted Akayesu leave to add the main ground of appeal in this section. In his Brief, Akayesu also cited two grounds of appeal initially included in his First Notice of Appeal.

[475] Akayesu’s Brief, Chapter 9, para. 14.

[476] Akayesu’s Brief, Chapter 15, para. 3.

[477] Akayeus’s main ground of appeal. Akayseus’s Brief, Chapter 9, para. 1. The Appeals Chamber notes that although Akayesu began to discuss this ground of appeal during the Hearing on Appeal, in fact, he made no specific submissions thereon. Akayesu submits that the Rules are not as strict as the criminal procedure followed by common law jurisdictions but that despite that there is still the crucial obligation to establish the veracity of evidence. In other words, he alleges in general that during the trial, “hearsay was not discussed”. T(A), 1 November 2000, pp. 90-91.

[478] Akayesu’s Brief, Chapter 9, paras. 3, 12 and 13.

[479] Akayesu’s Brief, Chapter 9, paras. 2 and 3.

[480] Akayesu’s Brief, Chapter 9, para. 4. Akaysesu did not discuss this point under this ground of appeal. However, the Appeals Chamber observes that Akayesu made reference, in support of this allegation, to the cross-examination of Witness S. The Chamber’s presiding Judge instructed the Prosecution to keep its comments (in fact, correction of a statement made by the Defence Counsel), for further cross-examination of the witness. He stated: “[ …]” T(A), 5 February 1997, p.161. It is within this context that this observation was made and, at any rate, it has no link with the issue raised under this ground of appeal. In any case, Akayesu does not insist on this point.

[481]Akayesu’s Brief, Chapter 9, paras. 4 and 14. Akayesu “criticized the Tribunal, his Counsel and the Prosecutor for the improper use of hearsay evidence”. Akayesu’s Reply, para. 96. The allegations as to incompetence of counsel are treated as a whole in the second Ground of Appeal. Akayesu’s Brief, Chapter 9, note 7, Akayesu’s Reply, note 44. In particular, it is recalled that the fact that counsel did not object to the admission of hearsay evidence cannot in itself be indicative of incompetence. It is not for the Appeals Chamber to try to understand the “strategy” employed by counsel in a particular case.

[482] Akayesu’s Brief, Chapter 9, para. 6, relying on: Decision concerning Defence motion for collateral evidence, The Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Trial Chamber, 5 August 1996. He also relies on the Blaskic Judgment and the Decision relating to Prosecution’s oral requests for admission of exhibit 155 into the file of evidence and for compelling the accused Zdravko Mućić to produce a sample of written documents, The Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-T, 19 January 1998 (Akayesu’s Brief, Chapter 9, paras. 7 and 9). Akayesu also submits that the law that obtains in ICTY and the Tribunal should be uniform. Akayesu’s Brief, Chapter 9, para. 5.

[483] The witness was testifying as to (1) the fact that his father had worked with Akayesu to calm the population and try to prevent further conflict (2) the fact the Interahamwe killed some police officers; and (3) the fact that Akayesu had saved the life of “one Gakwaya” Akayesu’s Brief, Chapter 9, paras. 15 – 16.

[484] Akayesu’s Brief, Chapter 9, paras. 14 – 17. In para. 17, he asserts that: “On two occasions, the Chamber did not permit verification of the circumstances of the knowledge about the events and dismissed the hearsay evidence. The Chamber acted unreasonably and unlawfully to the prejudice of the Defence”. Akayesu’s Reply, para. 100.

[485] Akayesu’s Brief, Ch. 9, para. 18. Akayesu’s Reply, para. 100. Akayesu submits that “in excluding relevant hearsay evidence which could have cast doubt on the attitude of the Appellant towards the Tutsi population and on his attempts at protecting it, the Chamber committed a major error causing prejudice to the Appellant”.

[487]Prosecution’s Response, paras. 10.4 – 10.8.

[489] Prosecution’s Response, paras. 10.11 – 10.12.

[491] Prosecution’s Response, paras. 10.24 – 10.26.

[492] Prosecution’s Response, paras. 10.16 – 10.17.

[494] Prosecution’s Response, paras. 10.21 – 10.23. The Prosecution refers in particular to the Defence witnesses who testified regarding paras. 12A and 12B of the Indictment. It points out in particular, that in its factual findings in relation to these paras., the Trial Chamber took into consideration hearsay testimony of 10 defence witnesses.

[495] Prosecution’s Response, para. 10.20. The Prosecution stated its belief that the Trial Chamber did not admit any hearsay evidence which was inadmissible under Rule 89 (C). In addition it submits that, it has to be said that the Defence throughout the proceedings also shared this belief, insofar as the Defence did not oppose the admission by the Trial Chamber of hearsay evidence in any instance. Prosecution’s Response para. 10. 17.

[499] The Appeals Chamber notes that this subject has been considered in some detail by the Trial Chambers and the Appeals Chamber of ICTY. See for example: Prosecutor v. Duško Tadić, Decision on Defence Motion on Hearsay, Case No. IT-94-1-T, 5 August 1996 (as relied on by Akayesu in Akayesu’s Brief, Ch. 9, paras 1 and 6); The Prosecution v. Tihomir Blaškić, Decision on the Standing Objection of the Defence to the Admission of Hearsay With no Inquiry as to its Reliability, Case No. IT-95-14-T, 21 January 1998; BlaškićTrial Judgment; Prosecutor v. Zlatko Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73, 16 February 1999 (“the Aleksovski Decision”); Prosecutor vs. Dario Kordić and Mario čerkez, Decision on Appeal Regarding Statement of a Deceased Witness, Case No. IT-95-14/2-AR73.5, 21 July 2000 (“the first Kordić Decision”) and Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and one Formal Statement, 18 September 2000 (“the second KordićDecision”) (To Add ICTR Jurisprudence).

[500] The Appeals Chamber agrees with the Prosecution’s submission that Akayesu “is confusing the question of admissibility of evidence with the question of evaluation of evidence.” See, Prosecution’s Response, para. 10.12. Indeed, the Appeals Chabmer notes that in Akayesu’s Reply, Akayesu persists in confusing the two concepts in his analysis of the testimony of Witness DJX. Akayesu’s Reply, paras. 99 and 100.

[502] The Appeals Chamber notes that a second exception to the general preference for live testimony, can be the filing of expert testimony, if the opposing party states that he or she does not wish to cross-examine the witness (Rule 94bis of the Rules). This Rule was added during the fifth plenary of 8 June 1998 and, consequently it did not apply to Akayesu’s case.

[503] Rule 89 of the Rules provides in full: (A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence. (B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law. (C) A Chamber may admit any relevant evidence which it deems to have probative value. (D) A Chamber may request verification of the authenticity of evidence obtained out of court.

[504] See the second Kordić Decision, para. 24, referring to the Aleksovski Decision, wherein it was also stated that “[i]t is well settled in the practice of the Tribunal that hearsay evidence is admissible.” (para. 15.). See also first Kordic Decision, para. 23.

[506] See, The first Kordić Decision, footnote 21.

[507] Akayesu’s Brief, Chapter 9, para. 12.

[508] The first Kordić Decision, para. 22: “Rule 89( C ) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable”.

[509] In the Aleksovski Decision, the Appeals Chamber found that “[t]he absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is “first-hand” or more removed, are also relevant to the probative value of the evidence.” (para. 15, footnote omitted).

[510] Article 20(4)(e) of the Statute provides that the accused shall be entitled: “[t]o examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;”

[511] Rule 85(B) provides in particular that: “[e]xamination-in-chief, cross-examination and re-examination shall be allowed in each case”.

[513] Trial Judgment, paras. 131 and 136. The Appeals Chamber also makes reference to the testimony of Mathias Ruzindana who stated that “ a clear distinction could be articulated by the witnesses between what they had heard and what they had seen”. The Trial Chamber consequently made a consistent effort to ensure that “this distinction was drawn throughout the trial proceedings”. Judgment, para. 155.

[514] Akayesu submits: “At trial, hearsay evidence was generally admitted. The expression ‘Have you heard or did you hear it being said that’ was frequent. Sometimes, the Tribunal or Counsel for the different parties specified that the testimony was hearsay or that the person was an eye-witness.” Akayesu’s Brief, Chapter 9, para.12.

[515] The Appeals Chamber notes that Akayesu relies in particular on the Blaškić case, regarding which he submits “the discussions were animated and acrimonious but in the Appellant’s trial there were no discussions” Akayesu’ Brief, Chapter. 9, para. 8. However, in that case, the Trial Chamber was primarily concerned with the admission of hearsay evidence submitted in the form of documents, or, for example the statement of a dead witness. A distinction has already been made between that case and the instant case.

[517] This caution is also reflected in some of the findings reached by the Trial Chamber. For example, with regard to the charges of sexual violence in Counts 13 to 15 of the Indictment, the Trial Chamber found that “[i]n considering the role of the Accused in the sexual violence which took place and the extent of his direct knowledge of incidents of sexual violence, the Chamber has taken into account only evidence which is direct and unequivocal.” Trial Judgment, para. 451. See also para. 460.

[518] That is, insofar as the Trial Chamber makes clear references to testimonies during its determination of the case and does not exclude them. See for example, Trial Judgment, paras. 439 (Witness DBB), 444 (Witness DFX), 445 (Witness DEEX), 457 and 458 (concerning testimony by Defence witnesses in general, some of which was found to be first hand and other, hearsay).

[519] Akayesu’s Brief, Chapter 9, paras. 14 to 17. The Prosecution argues that this example is in fact misplaced. It submits that this is the “only factual basis offered in support of the allegation that the Trial Chamber illegally admitted hearsay evidence” and that this example in fact concerns the Trial Chamber’s alleged rejection of this witness’s hearsay evidence. See Prosecution’s Response, paras. 10.9 to 10.12.

[520] Akayesu’s Brief, Chapter 9, para. 15.

[521] Akayesu’s Brief, Chapter 9, para. 18.

[523] Akayesu’s Brief, Chapter 9, para. 18.

[524] In Akayesu’s Reply, para. 99, he submits that “[…] the incident concerning DJX […] suggests that the Chamber applied the rules in error.”

[525] Akayesu was acquitted on Count 12 of the Indictment, namely, violation of Article 3 common to the Geneva Conventions (cruel treatment). The Appeals Chamber understands that Akayesu was referring to paragraph 12 of the Indictment.

[527] See Trial Judgment, paras. 443 and 458. See also Trial Judgment, para. 36.

[529] Akayesu’s Brief, Ch. 9, paras. 15 to 17. Akayesu’s Reply, para. 99. The Appeals Chamber here understands Akayesu to be suggesting a sort of satisfaction when he cites the Presiding Judge’s response to the witness.

[530] Akayesu’s Brief, Chapter 9, para. 17. Akayesu’s Reply, para. 99: Akayesu submits that “The Tribunal stopped the witness from providing details which might have been useful, according to the Tadic tests, as regards the reliability of such information with respect to the Appellant’s actions in saving Gatwaya’s life”. (sic)

[532] See T(A), 11 February 1998, p. 57, where the witness testified that: "…No, I was not able to go to the bureau communal but we learned what was happening there because people who would go there would come back and tell us what was happening especially concerning security." See also, pp. 60, 62 to 67.

[533] T, 11 February 1998, pp. 64 to 66. The questioning ran as follows: Q : You mention that police officers were killed. Did you see this happening or happen ? You can answer with a yes or no. A : I cannot answer with a yes or no. I can explain how I heard the matter and how, what I saw. Q. Did you see someone kill a police officer, yes or no ? A : The Interahamwe killed policemen. Q : Did you see it happen ? A : That is what I want to explain. Mr. President : There is no explanation. You just have to say whether you saw it or not. That’s all. The Witness : I heard people talk about it. Mr. President : But you didn’t see it? Witness, you didn’t see it happen ? The Witness : I heard people talk about it. Mr. President : But you didn’t see it happen? The Witness : I didn’t see it happen.

[537] Although the Witness expressed thanks before the re-examination Akayesu confirmed that he had no further questions to ask T, 11 February 1998 p. 67.

[538] Akayesu’s Brief, Chapter 9, para. 18. Akayesu submits that “the evidence could have made a difference”.

[539] Prosecutor’s Response, para. 10.26. Citing Trial Judgment, para. 192.

[541] T(A), 11 February 1998, pp. 53 to 54. See also pp. 57 and 59 to 60 [wherein 26 June and 28 June are mentioned respectively].

[542] The Prosecution has alleged that the witness only provided evidence as to such events one or two weeks after the death of the President. Prosecutor’s Response, para.10.26. Akayesu’s Reply, para. 99.

[543] Trial Judgment, paras. 178 to 193.

[547] Celebici Judgment, para. 481. The Trial Chamber is not compelled to include in the Judgment detailed arguments concerning each witness.

[548] Celebici Judgment, paras. 491 and 506; Aleksovski Judgment, para.36; Tadic Judgment, para. 64.

[550] The Appeals Chamber notes that Akayesu has submitted that “ [t]he burden of proof of the Appellant is to raise a doubt” Akayesu’s Brief, Chapter 9, para. 18. As has been pointed out, Akayesu errs in this assertion. It is not the case that on appeal, an appellant must simply raise a doubt. The standard of review on appeal has been set out above and an appellant must discharge his or her burden thereunder for a ground of appeal to succeed.