A.        Trial Proceedings

3.        The amended Indictment of 6 May 1999[3] (the "Amended Indictment"), on the basis of which Musema was tried, charged the Appellant with involvement in crimes committed during the months of April, May and June 1994 in Gisovu and Gishyita communes, Bisesero area, Kibuye pr�fecture,  Republic of Rwanda.  The Appellant’s trial commenced before the Trial Chamber on 25 January 1999 and concluded on 28 June 1999.  The Trial Chamber rendered Judgement and sentence on 27 January 2000.

4.        In his capacity as director of Gisovu tea factory, Musema was charged under Articles 6(1) and 6(3) of the Statute of the Tribunal (the "Statute"): (i) with bringing armed individuals to the area of Bisesero, often in concert with others, and ordering the attack on persons who had sought refuge there; (ii)  with personally attacking and killing, often in concert with others, persons who had sought refuge in that area. In conformity with the Amended Indictment, Musema had to answer for the following nine (9)[4] counts punishable under the Statute:

-         Genocide, pursuant to Article 2 (3 )(a) of the Statute (Count 1);

-         Complicity in genocide and conspiracy to commit genocide, pursuant to Article 2 (3)(c) and (b) of the Statute (Counts 2 and 3);

-         Crimes against humanity (murder, extermination, other inhumane acts, rape), pursuant to Article 3 (a), (b),(i) and (g) of the Statute (Counts 4, 5, 6 and 7);

-         Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment, pursuant to Article 4(a) of the Statute (Count 8);

-         Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II outrages upon personal dignity, in particular, humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault, pursuant to Article 4(e) of the Statute.

5.         Musema was found guilty on the count of genocide  (Count 1), the counts of crime against humanity- extermination and rape- (Counts 5 and 7) and not guilty on the remaining counts (2, 3, 4, 6, 8, and 9).  The Trial Chamber imposed a single sentence of life imprisonment on Musema for all the counts on which he had been found guilty.     

B.  Appeal

6.        Musema appealed against the conviction and sentence handed down by the Trial Chamber on 27 January 2000.  The Appeals Chamber heard all the parties at a public hearing held at the Seat of the Tribunal on 28 and 29 May 2001.[5]

7.        Under the grounds of appeal against conviction, Musema alleges that the Trial Chamber erred in law and in fact pursuant to Article 24(1) (a), and (b) of the Statute and requests, as remedy that the Appeals Chamber:

(i)        Set aside the verdict of the Trial Chamber with respect to Counts 1, 5,[6]and 7);

(ii)      Substitute each of the verdicts of guilty for a verdict of not guilty;

(iii)     Order his immediate release.

The alleged errors in law and in fact may be summarized as follows:

(i)         The Trial Chamber erred in law by setting forth criteria on the standard and burden of proof and by applying them in considering documentary evidence, false testimony, the impact of trauma,  the probative value of confidential testimonies, and the defence of alibi.  Moreover, the Trial Chamber committed a series of errors in law and in fact by applying the said criteria to the facts of the instant case.  These allegations, which constitute the first ground of appeal, relate to Counts 1, 5, and 7 of the Amended Indictment;  

(ii)      The Trial Chamber erred in law in allowing the Prosecution to call witnesses whose written statements had not been disclosed to the Defence within 60 days before the date set for trial.  This allegation, which constitutes the second ground of appeal, relates to Counts 1, 5 and 7 of the Amended Indictment;

(iii)     The Trial Chamber erred in law by failing to order the immediate release of the Appellant on the grounds of undue delay in the pre-trial proceedings and in his transfer to the Detention Facility of the Tribunal.  This allegation, which constitutes the third ground of appeal, has been dropped by the Appellant;[7]

(iv)    The Trial Chamber erred in law by granting the Prosecution leave to amend the Indictment in the course of the trial to add (3) three new counts, including Count 7.  This allegation,  which constitutes the fourth ground of Appeal, relates to Count 7 of the Amended Indictment;

(v)      The Trial Chamber erred in law in finding that the Appellant had to answer for the new counts added to the Amended Indictment,  on the grounds that said Indictment was never officially served on him.  This allegation, which constitutes the fifth ground of appeal, is related to Count 7 of the amended Indictment;

(vi)    The Trial Chamber erred in law in finding the Appellant guilty of two offences based on the same set of facts.  This allegation which constitutes the sixth ground of appeal relates to Counts 1 and 5 of the Amended Indictment.

The first, second, fourth, fifth and sixth grounds of appeal are considered under Sub-Section II, III.A, III.B, III.C and IV of this Judgement, respectively.  The Appeals Chamber will not rule on the third ground of appeal as the Appellant had dropped it.

8.         Alternatively, Musema  appealed against the sentence on the grounds that the Trial Chamber allegedly abused its discretion by imposing a sentence of life imprisonment.  He is requesting that the Appeals Chamber rectify the alleged error by replacing the sentence of life imprisonment with a fixed sentence.  In support of this appeal, the Appellant advances the following 3(three) arguments:

-           The sentence fails to take into account the need to lay down a range of sentences proportional to the situation of the Accused in the context of the Rwandan conflict;

-           The sentence is out of proportion to the other sentences passed by the Tribunal for the crime ofgenocide;

-           The sentence does not sufficiently take into account the mitigating circumstances in this case.

The arguments in support of the appeal against sentence are considered in Section V of this Judgement.

9.         At the start of the hearing on appeal on 28 May 2001, Musema also filed a motion, that was heard in camera, to present additional evidence (statements of Witnesses CB, EB and AC ), together with a request for leave to file a supplementary ground of appeal.  The Appeals Chamber ruled on the motion on 28 September 2001 and, in its decision:

(i)        Denied the request for leave to file Witness AC’s statement;

(ii)      Granted the request for leave to file the statements of Witnesses CB and EB;

(iii)     Denied the request for leave to file a supplementary ground of appeal;

(iv)    Ordered that Witnesses CB and EB be called to testify before the Appeals Chamber.

On 3 October 2001, the President of the Tribunal allowed the Appeals Chamber to sit outside the seat of the Tribunal in order that witnesses CB and EB could be heard at The Hague, The Netherlands on 17 October 2001.

10.       The effect of the extra judicial and judicial statements of Witnesses CB and EB on the appeal and factual findings of the Trial Chamber is dealt with in sub-sections II.C and V of this Judgement.

II.      FIRST GROUND OF APPEAL: ALLEGATION OF ERRORS OF LAW AND OF FACT IN THE TRIAL CHAMBER’S ASSESSMENT OF EVIDENCE AND IN ITS FACTUAL FINDINGS

11.       In general, Musema argues in his first ground of appeal that the Trial Chamber’s findings of guilt:

[…] were based on an evaluation of evidence that was wholly erroneous. This is owing to the fact that the Trial Chamber failed to apply the correct burden and standard of proof to the facts before it. [8]

12.  This ground of appeal raises three principal issues:

(A)       Standard for appellate review: This refers, in particular, to the role of the Appeals Chamber when considering allegations of errors of fact and errors alleged to have been committed by the Trial Chamber in its assessment of evidence;

(B)       Burden and standard of proof at trial:  This refers to the test to be applied by a Trial Chamber in assessing evidence and the burden of proof that lies on each party;

(C)       Application of the above principles to the facts of the case:  In this section, Musema challenges the Trial Chamber’s assessment of the evidence in the instant case, in particular, its findings as to witness credibility and the rejection of his alibi.

These issues relate generally to alleged errors in the Trial Chamber’s evaluation of the evidence and to the factual findings on which the three counts for which Musema was convicted are based.[9] The Appeals Chamber will now address each of the issues separately. 

A.  Standard for Appellate Review

1.        Arguments of the parties

13.  Musema accepts that it is for the appealing party to establish the existence of an error of law or of fact.[10]  He contends that the correct test to be applied in both cases is whether the Appeals Chamber was satisfied "that no reasonable Trial Chamber could have come to a different conclusion from that which had been reached by the Trial Chamber if they had directed themselves properly."[11] He submits that it is the duty of the Trial Chamber, as trier of fact and law, to exercise its functions properly and fairly, notwithstanding that objections may or may not have been raised by the parties.  He does not accept the proposition that a party must be taken to have acquiesced in the manner in which the Trial Chamber exercised its discretion on the ground that the party did not raise an objection at the time such discretion was exercised[12] and contends that the role of the Appeals Chamber is not to apportion blame to this or that party or to judge the performance of the parties, but to determine whether there has been an error of law or of fact which invalidates the decision rendered or occasioned a miscarriage of justice.[13] 

14.    The Prosecution maintains that an error on a question of law encompasses two types of error: (i) error in the application of the substantive law; and (ii) error in the manner the Trial Chamber exercised its discretion.  It submits that the nature of the burden with regard to the first error is one of persuasion rather than proof, since the Appeals Chamber has the latitude and discretion to decide questions of law.[14]  However,  as regards alleged errors in the exercise of judicial discretion,  the Prosecution argues that it falls to the appealing party to show that the Trial Chamber abused its discretion. Absent such showing,  the Prosecution submits that the Trial Chamber’s decision should stand.[15]  In respect of alleged errors of fact, the "reasonableness" standard applies.  The Prosecution submits that this standard of review is "deferential in nature and in application",  and requires the Appeals Chamber "to give a margin of deference" to the findings of fact reached by a Trial Chamber, as evidenced by several Appeals Chamber decisions.[16]

15.  Article 24(1) of the Statute provides for appeals on grounds of an error on a question of law that invalidates the decision or an error of fact which has occasioned a miscarriage of justice. The standards to be applied in both cases are well established. These standards have been uniformly accepted and applied in the case-law of the Appeals Chamber of both ICTR[17] and ICTY[18] and this Appeals Chamber considers that no cogent argument has been put forward by Musema to persuade it to depart therefrom.[19]  The Appeals Chamber rejects the Appellant’s assertion that the applicable standard for both error of law and error of fact is whether the Appeals Chamber is satisfied that no reasonable Trial Chamber could have come to a different conclusion from that which had been reached by the Trial Chamber if it had directed itself properly.

16.  Where an error on a question of law is alleged, the burden is on the appealing party to show that the error is one which invalidated the decision,  although such burden is not absolute.[20]

17.  As to errors of fact, the test to be applied is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable tribunal of fact could have reached.[21] That is, the Appeals Chamber confirms that the standard to be applied is that of reasonableness.  In order to satisfy this test, the burden rests on the appealing party to show that the Trial Chamber committed an error. The Appeals Chamber stresses, as it has done in the past, that an appeal is not an opportunity for a party to have a de novo review of their case.[22]  It is particularly necessary to state this because the present appeal tends to call into question all of the factual findings relied upon to convict the Accused.  An appellant who alleges an error of fact must satisfy a two-fold burden: first, show that an error was committed;  and second, show that the error occasioned a miscarriage of justice.[23]  In other words, it is not every error that will lead the Appeals Chamber to overturn a decision of the Trial Chamber.  The appealing party must demonstrate that the error was such that it led to a miscarriage of justice.[24]

18.  The Appeals Chamber recalls that in determining whether or not a Trial Chamber’s finding was reasonable, it "will not lightly disturb findings of fact by a Trial Chamber."[25]  In the first place, the task of weighing and assessing evidence lies with the Trial Chamber.  Furthermore, it is for the Trial Chamber to determine whether a witness is credible or not.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.[26]  But the Trial Chamber’s discretion in weighing and assessing evidence is always limited by its duty to provide a "reasoned opinion in writing,"[27]  although it is not required to articulate every step of its reasoning for each particular finding it makes.[28]  The question arises as to the extent that a Trial Chamber is obliged to set out its reasons for accepting or rejecting a particular testimony.[29]  There is no guiding principle on this point and, to a large extent, testimony must be considered on a case by case basis. The Appeals Chamber of ICTY held that:[30]

[t]he right of an accused under Article 23 of the Statute to a reasoned opinion is an aspect of the fair trial requirement embodied in Articles 20 and 21 of the Statute.  The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that "the extent to which this duty . . . applies may vary according to the nature of the decision" and "can only be determined in the light of the circumstances of the case."[31]  The European Court of Human Rights has held that a "tribunal’ is not obliged to give a detailed answer to every argument.[32]

19.  In addition, the Appeals Chamber of ICTY has stated that although the evidence produced may not have been referred to by a Trial Chamber, based on the particular circumstances of a given case, it may nevertheless be reasonable to assume that the Trial Chamber had taken it into account.[33]

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.  This is particularly so in the evaluation of witness testimony, including inconsistencies and the overall credibility of a witness. A Trial Chamber is not required to set out in detail why it accepted or rejected a particular testimony.  Thus, in the Celebici case, the Appeals Chamber of ICTY found that it is open to the Trial Chamber to accept what it described as the "fundamental features" of testimony.[34]  It also stated that:

[t]he Trial Chamber is not obliged in its Judgement to recount and justify its findings in relation to every submission made during trial.  It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible. Small inconsistencies cannot suffice to render the whole testimony unreliable.[35]

21.       It is for an appellant to show that the finding made by the Trial Chamber is erroneous and that the Trial Chamber indeed disregarded some item of evidence, as it did not refer to it. In Celebici, the Appeals Chamber found that the Appellant had "failed to show that the Trial Chamber erred in disregarding the alleged inconsistencies in its overall evaluation of the evidence as being compelling and credible, and in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond reasonable doubt on these grounds."[36]